Madhya Pradesh High Court
Nirvikar Gupta vs Ram Kumar on 18 November, 1991
Equivalent citations: AIR 1992 MADHYA PRADESH 115, (1992) 2 RENCR 34
Author: R.C. Lahoti
Bench: R.C. Lahoti
JUDGMENT R.C. Lahoti, J.
1. The defendant/tenant has come up in appeal aggrieved by the judgments and decree of the lower appellate court directing his ejectment on the ground available to the plaintiff/landlord under Section 12(1)(c) of the M. P. Accommodation Control Act, 1961 (hereinafter referred to as 'the Act', for short).
2. The lower appellate Court has held that the defendant/appellant has by commencing business activity relating to loudspeakers and battery charging in addition to watch making has done an act inconsistent with the purpose for which he was admitted to the tenancy and has also by denying the title of the plaintiff/landlord, done an act which is likely to affect adversely and substantially the interests of the landlord. Though the trial court had decreed the suit under Section 12(1)(a) of the Act also, but the lower appellate court has reversed the finding as to availability of that ground for ejectment by holding that there was a dispute as to rate of rent and also as to the person or persons to whom the rent was payable within the meaning of Section 13(2) & (3) of the Act which dispute having not been decided by a provisional order, the operation of Section 13 was arrested and the decree for ejectment under Section 12(1)(a) of the Act could not have been passed. That finding has not been challenged. In the succeeding paras the facts relevant only to Section 12(1)(c) of the Act, therefore shall be noticed.
3. According to the plaintiff the defendant had acquired the suit premises for watch making alone. According to the defendant the purpose of the tenancy was watch making as also loud speakers repairing which activities were still being carried on in the suit premises.
According to the plaintiff suit accommodation had fallen to his share in a mutual partition between himself and his father in the year 1964 whereafter the defendant had attorned to him and was his tenant. The defendant in his written statement denying the title of the plaintiff submitted that the suit accommodation was still owned by the father of the plaintiff from whom he had acquired the premises on tenancy in the year 1962. The pleadings also raised a dispute as to rate of rent whether it was Rs. 13/- or Rs. 10/- per month.
4. Vide order dated 12-2-90 the appeal was admitted for hearing parties on the following two substantial questions of law.
(1) Whether the courts below have illegally held 'change of user' of the suit accommodation by the tenant/appellant in view of law laid down in Gurdial Batra (AIR 1989 SC 1841) (2) Whether the vague denial of the title of the plaintiff does not amount to disclaimer of title by the defendant in view of law laid down in Kundanlal (1989 MPRCJ 111).
5. At the hearing on a prayer made by the learned counsel for the appellant parties have been heard on the additional question as to whether the lower appellate Court could have supported the decree for ejectment on the ground of disclaimer of title, the grounds on which the trial court had not passed a decree and as to which neither a cross-objection nor a cross-appeal was preferred by the plaintiff/ respondent.
Question No.(1):
6. The ground for ejectment contemplated by Section 12(1)(c) of the Act is as under:--
"12. Restriction on eviction of tenants.-
(1) Notwithstanding anything to the contrary contained in any other law or contract, no suit shall be filed in any Civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds only, namely,
(a) and (b)................ .......
"(c) that the tenant or any person residing with him has created a nuisance or has done any act which is inconsistent with the purpose for which he was admitted to the tenancy of the accommodation, or which is likely to affect adversely and substantially the interest of the landlord therein :
Provided that the use by a tenant of a portion of the accommodation as his office shall not be named to be an act inconsistent with the purpose for which he was admitted to the tenancy."
7. The term 'inconsistent' has not been defined in the Act. Chambers 20th Century Dictionary (New edition 1983) defines 'inconsistent' to mean -- not consistent; not suitable or agreeing; intrinsically incompatible; self contradictory etc. The Dictionary meaning makes it clear that the impugned user of the premises must be not consistent, or not suitable or intrinsically incompatible with the purpose of creation of the tenancy to attract the wrath of Clause (c) above quoted. It is not just any change or every change in the user of the premises which is venerable.
8. The provision suggests that faced with a case under that clause the Court of facts must proceed first to determine the purpose for which the tenancy was created and the use to which the tenancy premises were being put by the tenant. Having determined these two questions of facts, the court must proceed to examine whether in law the latter can be said to be 'inconsistent', not agreeable or not compatible with the earlier one. If the answer be in affirmative, the applicability of the Clause is attracted. If there be a contract of tenancy in writing that would determine the purpose of tenancy. The difficulty may arise when there is no written contract. In that event oral evidence has to be seen. The user to which the accommodation has been put by the tenant soon after creation of the tenancy or for long before filing of the suit and other circumstances of the case may be looked into for determining such purpose.
9. In Gurdial Batra v. Raj Kumar Jain, AIR 1989 SC 1841 the phrase 'change of user' as occurred in Section 13(2)(ii)(b) of East Punjab Urban Rent Restriction Act (3 of 1949), came for consideration before their Lordships. The tenancy was intended for running of a cycle and rickshaw repairing shop. The tenant side by side for a period of about 7 month sold televisions in the premises. Their Lordships observed :
"Ordinarily, as long as the interest of the landlord is not prejudiced, a small change in the user would not be actionable."
10. In Mohan Lal v. Jain Bhagwan, AIR 1988 SC 1034, user of the building or rented land for the purpose other than that for which it was leased, as occurring in Section 13(2)(ii)(b) of Haryana Urban (Control of Rent and Eviction) Act, 1973, came up for consideration before their Lordships. The tenant had changed the user from liquor vend business to that of general merchandise. Their Lordships observed (at page 1037):--
"The Parliament legislates to remedy and the judiciary interprets them, it has to be borne in mind that the meaning of the expression must be found in the felt necessities of time. In the background of the purpose of rent legislation and inasmuch as in the instant case the change of the user would not cause any mischief or detriment or impairment of the shop in question and in one sense could be called an allied business in the expanding concept of departmental stores, in our opinion, in this case there was no change of user which attracts the mischief of Section 13(2)(ii)(b) of the Act."
11. The law laid down by the Apex Court in the above noted two decisions makes it clear that in the Rent Control law the change of user providing a cause of action for ejectment of the tenant should not only be inconsistent but should also be such which would prejudicially affect the interest of a landlord on account of its mischievous or detrimental or impairing tendency. The position, however, will be different if there be a specified purpose of tenancy mentioned in the dead of lease coupled with a prohibition on tenancy from using of premises for any other purpose in which case, the prohibited user would itself be a ground for eviction. (See, Kikabhai Abdul Hussain v. Kamlakar and others (1974 MPLJ 485): Manoharlal v. Teradevi (1965 JLJ SN 28)). The very fact that the parties had voluntarily chosen to agree that the user of the premises shall be confined to a particular purpose alone prohibiting any other use of the premises would be suggestive of the intention of the parties that any user of the premises for a purpose other than a prohibited one would be inconsistent and also detrimental to the interest of the landlord.
12. It has already been noticed that there was no written contract of tenancy between the parties providing for a particular purpose of tenancy and prohibiting the use of the premises for any other purpose. Simply because, the tenant had commenced the activity of loud-speakers repairing and battery charging along with watch making without more did not entitle the plaintiff/respondent to seek ejectment of the tenant/ appellant.
Question No. 2:--
13. Denial of title of the landlord or disclaimer of title as the phrase has come to be coined in judicial pronouncement is not a ground for ejectment to be found a mention in so many words in any of the clauses of Sub-section(1) of Section 12 of the Act. It is considered to be an act which is likely to affect adversely and substantially the interest of the landlord and has, therefore, to be recognised as a ground for ejectment. The concept of 'disclaimer of title' should take colour from Section 111(g) of the Transfer of Property Act, 1882, and Section 116 of the Evidence Act. The earlier provision contemplates determination of a lease of an immoveable property by fore feature in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself. The latter provision prohibits a tenant of an immovable property or the person claiming under him to deny during the continuance of the tenancy that the landlord of such tenant at the beginning of the tenancy had a title to such immovable property.
14. In Kundanlal v. Gurudatta, 1989 MPRCJ 111 SC the averments made in a plaint earlier filed by the tenant against Municipality and others was relied on by the landlord in the suit for ejectment for founding the plea of disclaimer of title. Their Lordships observed:--
"Even interpreting the plaint in a manner as favourable to the landlord as may be possible, it has to be accepted that the document cannot be construed to clearly deny the respondents title in unambiguous terms. One thing that is conspicuous is that the appellant did not claim any title in himself. He expressly described the character of his possession as that of a tenant. Is it in this situation permissible to forfeit his lease on the ground of disclaimer of title? In providing disclaimer as a ground for eviction of a tenant in Clause (f) of Section 13(1) of the Act, the Legislature decided to give effect to the provisions of Clause (g) of Section 111 of the Transfer of Property Act. The principle of forfeiture on disclaimer is founded on the rule that a man cannot approbate and reprobate at the same time. Since the consequence of applying the rule is very serious, it must be held that the denial has to be clear and in unequivocal terms."
(underlining by me)
15. A Division Bench of Calcutta High Court in hatimullah and others v. Mahamad Abju Choudhury, AIR 1928 Cal 312 had observed:--
"The principle of forfeiture by disclaimer is that where the tenant denies the landlord's title to recover rent from him bona fide on the ground of seeking information of such title or having such title established in a Court of law in order to protect himself, he is not to be charged with disclaiming the landlord's title. But where the disclaimer is done not with this object but with an express repudiation of the tenancy under the landlord, it would operate as forfeiture."
16. It is well settled by a series of decisions that denial of a mere derivative title does not amount to disclaimer of title. (See Mirkhan Natchekhan v. Kutub Ali (1979 MPLJ 155); Khuman Singh v. Nathuram (1991 MPLR 123); Iqbal Ahmed v. Mohammad Sami (1989 MPRCJ 164); and, Purushottam Das v. Messrs. Firm Gangaram Bhagwandas (1982 MPRCJ Note 136).
16. To sum up, the law is that to amount to 'disclaimer of title' so as to attract the penalty of forfeiture of lease also providing a ground for ejectment within the meaning of Section 12(1)(c) of the Act, the tenants act must take one of the two shapes, (i) the tenant may assert title in the suit premises in himself; (ii) the tenant may set up title in a third person. In both the cases, the act of the tenant would manifest denial of the title of his landlord in the suit property. The denial if clear and unequivocal and not vague would indubitably affect the interest of the landlord adversely and substantially. The tenant merely denying the landlord's title bona fide with the object of seeking information of such title or with the object of having such title established before a Court of law so as to protect himself would not attract the charge of disclaimer of title.
17. In the present case, the defendant/ tenant has not disowned or renounced his own status as tenant in the suit premises. He has simply denied the title of the landlord which the plaintiff had alleged to have derived from a mutual partition between the father and himself. But for the partition set up by the plaintiff the title would have continued to vest in the father whose title the tenant was still admitting. In the opinion of this Court, no case for ejectment under any of the clauses of Section 12(1)(c) of the Act was made out.
Additional question:--
18. The trial Court did not consider the question of disclaimer of title and expressed no opinion on the point whether decree for eviction could be passed on that allegation only. Nevertheless, decree for ejectment was passed. The relief prayed for by the plaintiff was allowed in tote. Before the lower appellate court the landlord pressed this ground to support the decree for eviction in his favour. The learned counsel for the tenant/ appellant submits that this course was not open to the landlord/plaintiff nor to the courts below. In support of his submission, the learned counsel has placed reliance on the following passage from a single Bench decision of this Court in Bhagwandas s/o Murarilal Pawaiya v. Kailash Narayan and Bros. (Firm) (1991 MPLJ 801):
"Each of the different clauses of Section 12(1) of the M.P. Accommodation Control Act provides separately and independently different causes of action for eviction and even if a claim for eviction is founded cumulatively on several of them, the Court can pass a decree in respect only of such grounds in regard to which entitlement is found duly established. It is not the business or duty of the Court to consider suo motu, plaintiffs claim and entitlement; it is the plaintiffs duty to enforce his independent and separate right founded on each of the clauses of Section 12(1). That he can do by preferring cross-objection in regard to the part of decree dismissing his claim founded on any one or more clauses of Section 12(1). The entitlement of respondent contemplated under Rule 22 of Order 41, Civil Procedure Code is, to support a decree in respect to the right enforced and while doing so, he may challenge any finding that may be reached in the Court below against him. The Court below was not under any obligation to record suo motu its finding in regard to each and every ground of eviction in respect to which the suit was instituted."
19. Order 41, Rule 22 of the Code of Civil Procedure provides as under:--
"22. Upon hearing respondent may object to decree as if he had preferred separate appeal.-- (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree (but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour, and may also take any cross-objection) to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.
(Explanation.-- A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that footing, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.) The bracketed portions were introduced into the provision by the Code of Civil Procedure (Amendment) Act, 1976 (104 of 1976) which came into force w.e.f. 1-2-77. The bracketed portion in main provision is in substitution of the following part of sentence which read as follows:
"on any of the grounds decided against him in the Court below but takes any cross-objections."
20. The comparative reading of the present text of the provision with the repealed one indicates that the scope of the provision has been widened by making it more liberal. Earlier it could have been argued that right of the respondent without filing a cross-objection extended only to the extent of canvassing a 'ground' decided against him for supporting the decision of issue in his favour. Now the respondent without filing a cross-objection has the liberty of stating that "any finding against him" in the court below "in respect of any issue" ought to have been in his favour.
21. The Explanation has used the word "may" therein suggests, is permissive and not prohibitive in nature. A respondent may in the situation mentioned in the Explanation choose to file cross-objection but that does not mean that his right to support the decree without filing a cross-objection as provided in the main provision is taken away.
22. In Santosh v. Kunti Devi (1985 MPWN 145), the trial court had decreed the suit for ejectment on the ground of sub-letting while the ground of plaintiffs bona fide need was negatived. In an appeal preferred by the tenant/defendant, the landlord/plaintiff without filing cross-objection proposed to assail the adverse finding on the question of bona fide need which was not permitted by the appellate court. In second appeal this Court held that in face of clear provision contained in Order 41, Rule 22, C.P.C., the first appellate court had acted contrary to law in refusing to consider the correctness of the finding of the trial court on the question of plaintiffs bona fide need in spite of a prayer made on behalf of the plaintiff (respondent in first appeal).
23. In Santosh's case (supra), this Court also observed that what was held therein was also the settled view of this Court in view of three earlier decisions : (i) Tej Kumar v. Purshottam (AIR 1981 MP 55); (ii) Hiralal v. Om prakash (1981-1 MPWN 236); and (iii)Ismail Khan v. Shankarlal (1984) JLJ 609) : (AIR 1984 MP 139).
24. The above said principle is founded on the rule of necessity. The respondent is expected and rather would only be entitled to file a cross-appeal or cross-objection when there is some decree passed by the trial Judge against him. If the suit has been decreed in spite of one or more findings having been recorded or one or more issues having been decided against him, he will not have a right of appeal as there would be nothing to be appealed against. That is why Order 41, Rule 22, C.P.C., statutorily incorporated the rule of season and fair play that the respondent should be allowed to support in the appellate court the decree passed by the trial Judge on any of the grounds decided against him. So was the view taken in Pannu v. Devi Prashad (1963 JLJ 113). The same principle would apply in the matter of "the finding against" in view of the amendment in Order 41, Rule 22, C.P.C. The third contention of the learned counsel for the appellant, therefore, fails. The above quoted extract from Bhagwandas's case (supra) relied on by the learned counsel for the appellant cannot be taken to mean what the learned counsel contends and if it does, with respect, the same runs counter to the settled view of this Court taken in earlier decisions referred to hereinabove, which were unfortunately not placed before the Court deciding Bhagwandas's case. I am bound by the earlier decisions of this Court. Dhanki Mahajan v. Rana Chandubha (AIR 1969 SC 69 Pr. 3); Ayyasuami Gounder v. Munnu-swamy Gounder (AIR 1984 SC 1789 Pr. 13); and Narbada Prasad v. Awadesh Narain (AIR 1973 MP 179 Pr. 20).
25. In spite of the appellant's third contention being overruled, in view of the findings arrived at on the first two questions, the judgments and decrees of the courts below cannot be sustained. None of the grounds for ejectment having been made out, the plaintiffs suit must fail.
26. Accordingly, the appeal is allowed. The decrees of the courts below are set aside. The suit for ejectment filed by the plaintiff/ respondent is directed to be dismissed. In the peculiar facts of the case, the parties are left to bear the costs as incurred throughout.