Bombay High Court
Prabhulal Chhaganlal Kothari vs Chandrakant S. Doshi on 5 November, 1985
Equivalent citations: 1986(2)BOMCR103
JUDGMENT S.M. Daud, J.
1. This petition under Article 227 of the Constitution, takes exception to the dismissal of a claim advanced by the petitioner for being allowed to retain possession of the premises in dispute, the decree passed in R.A.E. Suit No. 6146 of 1965 (Court of Small Causes at Bombay), notwithstanding.
2. The points that arise for determination in the present writ petition have to be considered in the following background---
The suit tenement is Gala No. 3, belonging to Mohammed Edris Haji Abbas, Church Compound, Opposite Surya Cinema Bombay-14. It was part of the tenement leased out to the respondent who inducted the petitioner on an agreement to pay rent of Rs. 72.82 ps. p.m. On 17-7-65, respondent addressed a notice to the petitioner calling upon him to pay arrears of rent then due, and also calling upon him to vacate the suit tenement by 31-8-65. Petitioner replied to the said notice pointing out that rent inclusive and upto February 1965 had been paid to the superior landlord, that there was a prohibitory order issued by the Sales-Tax Department of the Government of Maharashtra restraining debtors of the respondent from paying any debts to him, and, lastly that the agreed rent was excessive which necessitated determination of the standard rent. The notice not having yielded any result, respondent instituted R.A.E. Suit No. 6146 of 1965 in the Small Causes Court at Bombay. The relief claimed was a decree for vacant possession of the suit tenement together with costs of and incidental to the suit. In para 3 of the plaint, there was a reference to defendant being in arrears for 27 months for the period from 31-6-63 to 31-8-65 amounting to Rs. 1966.14 ps. Further, the unpaid rent was not claimed in the suit. Para 4 recited that the premises were required reasonably and in goods faith by the respondent for doing business. Petitioner filed a written statement wherein exception was taken to the claim for possession. It was denied that the premises required reasonably and in good faith by the respondent for doing business. In any case, the hardship and inconvenience that would be caused to the petitioner in case a decree for rejectment was passed, would be far greater than that which would be suffered by the respondent, where a decree refused. In so far as the allegation of non-payment of rent was concerned, there was the plea that petitioner had paid rent upto February 1965 to the superior landlord, that there was an embargo, against the payment of rent to the petitioner by the Sales-Tax Department and, that the agreed rent not being fair, it was necessary to determine the standard rent. At this stage, let me make it clear that a standard rent application instituted by the petitioner was eventually discharged.
3. Upon the pleadings aforesaid, various issues were framed and the recording of evidence began. Respondent testified that his business was increasing, that it averaged a monthly turnover of Rs. 15,000/-, and, that the suit tenant was absolutely essential for his prosperous timber business. He also spoke of the defaults made by the petitioner in the payment of rent. Petitioner, in person, and at later stage, through his Counsel started cross-examining the respondent. At this stage the recess. After the recess, the hearing was resumed. Instead of going ahead with cross-examination of the respondent, parties presented consent terms and sought a decree in terms thereof. There were :---
"1. Defendants to vacate the suit premises by 30th September, 1970, but if the defendants pay Rs. 2687.67 inclusive of arrears of compensation or rent upto 31-8-70 and costs and professional costs after getting credit for Rs. 1092 paid by the defendants to Shri Mohmed Idris the original landlords on behalf of the plaintiff and further sum of Rs. 2850.00 deposited by the defendants in the Hon'ble Court in the above suit by Rs. 305.79 per month commencing from 20-9-70 and the date on 20th day of each succeeding month upto 20th August, 1971 and thereafter Rs. 81-82 per month from 20th September, 1971 till 20th March, 1974 warrant of possession to stay till 31-3-1974. In default of any two instalments warrant of possession to issue without notice.
2. Monies in Court to the plaintiff and further moneys as and when deposited by the defendants in Court to be paid over to the plaintiff.
3. No order as to costs.
4. Defendants undertakes not to part with the possession of the suit premises and to hand over possession to the plaintiff as per consent terms."
(All underlinings mine) On getting the consent terms, the learned Judge before whom the case was, recorded an order as follows :---
"Order in terms of consent terms Exh. A. No order as to costs.
Shri Prabhulal C. Kothari, sole proprietor of the defendants undertakes not to part with the possession of the suit premises and to hand over vacant possession of the suit premises to the plaintiff as per the consent terms. Undertaking accepted."
Pursuant to the aforesaid order, a decree was passed and the copy thereof is at Ex. 'D' of the paper-book (see page 22). Significantly one of the terms appearing in the decree reads thus :---
"......it is ordered that the said defendant do quit and deliver up possession of the said premises by 30th September, 1970 as per CT. Ex. A. to the said plaint, and that a warrant to issue after the 30th of the said September, 1970 to enforce this adjudication and to direct the Bailiff of the said Court to give possession of the said premises."
Shortly before 'D-day', the petitioner moved a petition before the Court contending, that the decree passed against him was a nullity, and, that in any case, he could not be evicted having regard to Maharashtra Act 17 of 1973 whereby section 15A had been placed on the statute book. Notice was issued to the respondent to show cause against the petition. The Judge who heard the matter, negatived the objection. Thereafter, the petitioner filed a suit claiming a declaration that the decree was a nullity and an injunction to restrain the respondent from seeking to execute the same. Upon dismissal of that suit, petitioner filed an appeal to the full Court. The appeal having been dismissed, petitioner instituted the present petition under Article 227 of the Constitution.
4. Having regard to the contentions advanced, the points for determination are :---
1. Whether the decree passed upon the consent terms is a nullity as alleged by the petitioner?
2. Whether the consent terms give rise to a licence thus giving petitioner the benefit of the protection conferred by section 15A of the Rent Act ?
3. What order ?
My findings, for the reasons given below, are :---
1. No; it is not a nullity.
2. No; not so.
3. Petition dismissed with costs.
REASONS
5. In support of their rival submissions, Counsel for the parties have placed reliance upon various decisions. I do not think it necessary to go into all the decisions relied upon. These are all to the same effect, and, I cannot do better than cite the head note appearing in the report pertaining to the Supreme Courts decision in Nagindas Ramdas v. Dalpatram Lccharam, "The Rent Court under the Act is not competent to pass a decree for possession either in invitum or with the consent of the parties on a ground which is de hors the Act or ultra vires the Act. A prohibitory mandate to the Rent Court that it shall not travel beyond the statutory grounds mentioned in sections 12 and 13, and to the parties that they shall not contract out of those statutory grounds is inherent in the public policy built into the statute."
Learned Counsel for the petitioner has taken me through the pleadings. He submitted that on the face of it if is clear that ejectment could not be claimed under section 12 of the Rent Act. This was because six months rent as on the date of notice was not due, and, in any case, the agreed rent was prima facie, not the standard rent. Next, it was submitted that the plaint made no reference to the point of comparative hardship, and, that without consideration as to this factor, no Court constituted under the Rent Act, was at liberty to pass a decree for possession under section 13(1)(g) of the Rent Act. Plausible this argument certainly is, I am prepared to go along with the argument to the extent it pertains to claim for possession under section 12. It does not appear that on the date the notice of demand was given, petitioner was in arrears for a period of six months or more. However, the same cannot be said about the claim for possession vis-a-vis section 13(1)(g) of the Rent Act. Para 4 of the plaint did recite that the premises were required reasonably and in good faith for the personal use and occupation of the respondent. There is no reference to comparative hardship in the plaint. But the statute also does not require that evidence should be pleaded. Normally, evidence in relation to comparative hardship is at least indicated, if not set out in detail, in the pleadings. But that is the case in regard to the pleadings originating from the mofussil and not Bombay city. In this city, the pleadings are anything but in conformity with the requirements of Orders VI, VII and VIII of the Civil Procedure Code. In the authority mentioned above, it has been further said :---
"The consent decree for possession passed by the Court is not necessarily a nullity. If there was a clear admission in the compromise, incorporated in the decree, of the fundamental facts that could constitute a ground for eviction under section 12 or section 13, it will be presumed that the Court was satisfied about the existence of such statutory ground and the decree for eviction though apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement itself. Admissions, if true and clear, are by far the best proof of the facts admitted and they by themselves can be made the foundation of the rights of the parties."
A case, very close to the present one, is that one . There, the Court was compelled to clarify that every compromise in claims for eviction governed by Rent Control Legislation, were not necessarily to be treated as void. It will not be necessary to multiply authorities. The factual position has been set out by me in the preceding paragraphs, and, it shows that respondent had entered the witness box and deposed to his personally requiring the suit premises for his expanding business. It is true that the cross-examination had not concluded. But the incomplete deposition of the respondent was already there before the Judge before the coming in of the consent terms. In substance, the consent terms constituted an admission on the part of the petitioner. This admission was that the ground set out in para 4 of the plaint viz. that petitioner required the suit premises in good faith and reasonably for doing business was true. Now the terms spell out a decree for possession the executability of which is postponed upto 31-3-74, in respect of the main relief. The judgment debtor is given a concession i.e. stay upto 31-3-74, on condition that the rent is paid as specified. In any case, the stay is not to be prolonged beyond 31-3-74. Thus viewed, the consent terms would be an admission which had the imprimatur of the Court. The satisfaction of the Court was further based upon the evidence already recorded. It is not necessary that every case for ejectment should be fought to the bitter end. If parties with a view to purchase peace come to some terms which are not contrary to the statute, and, which in fact have some bearing upon the recitals appearing in the plaint, it cannot be said that the decree based upon the consent terms, is without application of the judicial mind to the provisions of the statute. Viewed thus, it is not possible for me to subscribe to the submission that the decree was a nullity.
6. The next submission is in relation to the consent terms creating a licence within the meaning of section 15A of the Rent Act. Learned Counsel argues that when section 15A was brought on the statute, petitioner was in possession of the premises; the premises consisted of accommodation which was not less than a room, and an agreement was subsisting. As from the date section 15A came into force, the possession which was that of a licensee simpliciter, ripened into a licence protected by statute. Plausible as the argument is, it is not acceptable. Firstly, we do not know whether the original terms of the lease as between Mohmed Idris and the respondent, permitted the creation of a licence. This is of some importance in view of the recent decision of the Full Bench in Ratanlal Chandiprasad Jalan and others v. Raniram Darkhan, decided on October 18, 1985 see judgment in W.P. No. 76 of 1980, . Learned Counsel for the petitioner submits that the superior landlord had not initiated proceedings to evict respondent on the ground of illegal sub-letting or illegal creation of a licence and had accepted rent due upto February 1965 from his client. This, according to Counsel, indicates that the tenant was authorised to induct a licensee into the premises. It is not possible to accept this submission. The superior landlord may have accepted the unpaid rent from the petitioner because of the anxiety not the lose money in addition to the premises which were already in occupation of the respondent. Next, simple inaction in not taking proceedings for evicting a tenant, would not spell out terms in a lease contract, permitting the creation of a licence. Counsel submits that in case the evidence was not in record, a remand should be made so that petitioner could lead evidence to establish that the lease contract permitted the tenant to create a licence. At this late stage such a prayer cannot be countenanced. The plea taken by the petitioner about section 15A of the Rent Act being applicable has to be negatived on the basis of the Division Bench decision of this Court reported in Narendra Bachubhai Dave v. Jethalal S. Dave, See 80 Bom.L.R. 196. To quote the relevant passage therefrom:
"Once a decree for possession was passed in favour of the respondents, they undoubtedly acquired a vested right to recover possession under it and an intention to interfere with such a vested right cannot be interfered except if the words of section 15A clearly showed an intention to override the provisions of a decree or order of a Court. In our view, therefore, even assuming that the appellants must be deemed to have become tenants of the premises of Roop Talkies on February 1, 1973 under the provisions of section 15A of the Bombay Rent Act, that by itself would not render the consent decree inexecutable against them."
Therefore, the second submission advanced by the petitioner has also to be negatived.
7. What remains is the question of costs and the time to be granted to the petitioner for vacating. So far as the costs are concerned, I do not see any reason why they should not follow the event. In regard to time for delivery of possession, petitioner is granted time upto December of 1985 to vacate. This is only upon his undertaking that no third person has been or will be introduced into the premises. Hence the order.
ORDER The petition fails. Rule discharged with costs. Upon petitioner giving a written undertaking that no third person has been or will be introduced into the suit tenement until he hands over possession to the respondent, he is granted time till the end of December 1985 to deliver vacant possession.