Bombay High Court
Abde Ali Turab Ali vs Haji Abdul Jalil And Ors. on 8 July, 1992
Equivalent citations: (1992)94BOMLR409
JUDGMENT H.W. Dhabe, J.
1. The applicant who is the plaintiff has challenged the judgment of the learned IInd Additional Judge, Small Causes Court, Nagpur, who has dismissed the claim of the applicant-plaintiff for possession of the suit property.
2. The facts are that the applicant-plaintiff is the owner of the suit property which was given on lease to one Haji Chhotemiya. The applicant-plaintiff filed an application under Clauses 13(3)(v) and (vi) of the C.P. and Berar Letting of Houses and Rent Control Order, 1949 (for short the Rent Control Order) seeking permission of the Rent Controller to give quit notice to the aforesaid tenant in respect of the suit property. The learned Rent Controller granted him permission on 11.10.1976. The order of the learned Rent Controller was challenged in appeal before the learned Rent Control Appellate Authority which maintained the permission granted to the applicant-plaintiff. During the pendency of the said appeal the above tenant had died and his legal representatives were, therefore, brought on record in the said proceedings.
3. The legal representatives of the aforesaid original tenant Haji Chhotemiya filed a writ petition in this Court registered as Special Civil Application No. 2650 of 1979. During the pendency of the said writ petition one of the legal representatives by name Haji Mohd. Shafi who was one of the writ petitioners died. The other writ petitioners i.e. the other legal representatives who are the defendants in the instant suit filed an application in the said writ petition to delete his name on the ground that his share was separated and he was not at all concerned with the suit property which application was allowed by this Court. The High Court then allowed the said writ petition and set aside the permission granted by the learned Rent Control Authorities. The applicant-plaintiff thereafter filed an appeal under the letters patent of this Court registered as L.P.A. 635 of 1984 which L.P.A. was partially allowed by the Division Bench of this Court on 11.9.1987 as it granted permission to the applicant-plaintiff only under Clause 13(3)(v) of the Rent Control Order. The defendants challenged the aforesaid order in L.P.A. by preferring an appeal by special leave in the Supreme Court. However, the said appeal was dismissed by the Supreme Court on 16.8.1989. The permission granted by the learned Rent Controller to the applicant-plaintiff under Clause 13(3)(v) thus stands maintained.
4. After the permission was granted originally by the learned Rent Controller by his order dated 11.10.1976 the applicant-plaintiff gave a quit notice dated 1.11.1976 to the original tenant Haji Chhotemiya. However, after the expiry of the period of the above notice dt. 11.11.1976 the applicant-plaintiff did not file the suit for possession immediately since in the meanwhile the aforesaid original tenant Haji Chhotemiya has filed an appeal before the learned Rent Control Appellate Authority against the order of the learned Rent Controller granting permission to the applicant-plaintiff to give quit notice to him. He then actually filed the suit for ejectment, arrears of rent and mesne profits against him after the decision in appeal i.e. on 4.11.1978 registered as Civil Suit No. 2358 of 1978. However, when it came to his notice in the proceedings in the said suit that his aforesaid original tenant Haji Chhotemiya had already died on 3.3.1978, which fact is not in dispute between the parties, i.e. prior to the institution of the suit against him, he withdrew the said suit on 26.7.1979.
5. The applicant-plaintiff thereafter gave a fresh notice to quit to the legal representatives of the original tenant Haji Chhotemiya on 7.8.1979. He thereafter filed the instant suit against them on or about 3.9.1979 for ejecting them from the suit property, arrears of rent, and for mesne profit. The defendants resisted the suit claim on various grounds. As regards the relief of possession sought by the applicant-plaintiff, it was the case of the defendants that the permission granted to the applicant-plaintiff by the learned Rent Controller was exhausted on his giving the first quit notice dated 1.11.1976 to the original tenant pursuant to which the previous suit which was withdrawn was filed by him. The submission thus was that the second quit notice dated 7.8.1979 on the basis of which the instant suit was filed was not preceded by a valid permission from the Rent Controller since the earlier permission as shown above had exhausted it was further submitted that in the instant suit since the applicant-plaintiff had claimed rent after the first notice and till the date of expiry of the second notice the lease was treated by him as subsisting which would mean that the permission granted by the learned Rent Controller to terminate the tenancy had exhausted and fresh permission would be necessary to terminate the tenancy. It was thus the case of the defendants that the present suit preferred by the applicant-plaintiff without obtaining fresh permission of the Rent Controller was not maintainable. In support, the defendants had relied upon the judgment of this Court in the case of Chaturbhuj v. Mangnibai 1958 N.L.J. 250.
6. The learned trial Court upheld the above contention urged on behalf of the defendants and thus dismissed the suit of the applicant-plain till for possession of the suit property. It, however, decreed the claim of the applicant-plaintiff for arrears of rent. Feeling aggrieved, the applicant-plaintiff has preferred the instant revision in this Court.
7. The learned Counsel appearing for the defendants has raised a preliminary objection that one of the legal representatives Haji Mohd, Shafi whose name was deleted after his death during the pendency of the suit, was a necessary party and therefore in his absence the instant suit was not maintainable and was liable to be dismissed. The learned trial Court had allowed the applicant-plaintiff to delete his name at his own risk. The learned Counsel for the applicant-plaintiff has, however, urged before me that in the writ petition preferred by the defendants, these defendants themselves made an application in the writ petition that his name from the array of the petitioners should be deleted because he was already separated and was not at all concerned with the suit property. After the decision in the writ petition setting aside the permission granted by the learned Rent Control Authority there was an L.P.A. in which permission was granted to the applicant-plaintiff under Clause 13(3)(v) of the Rent Control Order against which these defendants had filed an appeal by special leave in the Supreme Court. In none of the above proceedings these defendants raised an objection that the legal representatives of the deceased Haji Mohd. Shafi were necessary parties. Even the legal representatives of the said Haji Mohd. Shafi did not come forward to raise the contention in the above referred proceedings that they had interest in the suit property and that they were necessary parties to the suit.
8. From the above facts and circumstances it is clear that it is not open to the present defendants to raise such an objection in the instant suit particularly when instead of bringing the legal representatives of the deceased Haji Mohd. Shafi on record, they have themselves deleted his name as one of the petitioners in the writ petition filed by them on the ground that he had already separated and had no interest in the suit property. The legal representatives of Haji Mohd. Shafi have also not come forward to contest the claim of the applicant-plaintiff in this suit. Even otherwise, it is pertinent to see that the interest of the alleged legal representatives of the deceased Haji Mohd. Shafi which is common with the other defendants who are co-heirs as against the applicant-plaintiff who is the third party stands safeguarded by the defendants who according to them are in actual occupation of the suit premises and who have contested these cases i.e. the Rent Control proceedings and the instant suit tooth and nail. There is thus bona fide representation of the legal representatives of the deceased Haji Mohd. Shafi by the defendants against the stranger i.e. the applicant-plaintiff and hence the decree of possession cannot be held to be a nullity. The principle of bona fide representation has been accepted by the Supreme Court in Mst. Surayya Begum v. Mohd. Usman and Ors. . The above objection raised on behalf of the defendants, therefore, cannot be given effect to.
9. On merits, the first question which needs consideration as urged on behalf of the defendants is whether the permission obtained by the applicant-plaintiff to give quit notice to his tenant is exhausted on his giving the first quit notice on 1.11.1976 to the original tenant Haji Chhotemiya, pursuant to which he had filed the suit for his ejectment, arrears of rent and mesne profits and therefore whether the second notice to quit given by him to the legal representatives of the original tenant i.e. the defendants and the said Haji Mohd. Shafi is not preceded by any valid permission of the Rent Controller as required by Clause 13(1) of the Rent Control Order. The next question which is urged before me is that the applicant-plaintiff is deemed to have waived his right to determine tenancy on the basis of the permission granted to him by the learned Rent Controller because by having the first quit notice dated 1.11.1976 by withdrawing the suit filed on the basis of the same and by giving the second notice on 7.8.1989 and claiming rent till the date of the expiry of the said notice, the applicant-plaintiff has created a fresh tenancy or at any rate treated the old tenancy as subsisting.
10. The question whether the permission obtained by the landlord is exhausted or the question whether the landlord has waived his earlier notice to quit meaning thereby that the tenancy is subsisting requiring fresh permission of the Rent Controller to give quit notice is a question of fact to be decided in the facts and circumstances of each case. The facts in the instant case show that although the application under Clauses 13(3)(v) and (vi) of the Rent Control Order was filed against the original tenant Haji Chhotemiya, after his death during the pendency of the appellate proceedings, his legal representatives viz. the defendants and Haji Mohd. Shafi were brought on record and the said proceedings have been actually contested upto the Supreme Court by his legal representatives. It has next to be seen that the applicant-plaintiff had given the quit notice to the original tenant Haji Chhotemiya on 1.11.1976 immediately after the order of the learned Rent Controller when he was alive. However, he had filed the previous suit against him actually on 6.11.1978 after the decision in the Rent Control appeal case on 30.10.1978. The said suit was obviously against a dead person since the original tenant Haji Chhotemiya had already died on 3.3.1978 and hence it was withdrawn by the applicant-plaintiff on 26.7.1979. It then appears that since the above suit against the dead defendant viz. original tenant Haji Chhotemiya to whom alone the previous quit notice before filing the said suit was given was withdrawn, the applicant-plaintiff thought it fit to give quit notice to his legal representatives before filing the suit against them.
11. In the light of the above facts and circumstances the basic question which needs consideration is whether the permission granted by the learned Rent Controller under Clause 13(3) of the Rent Control Order is exhausted on the applicant-plaintiffs giving quit notice to the original defendant-tenant Haji Chhotemiya on 1.11.1976 pursuant to the permission granted by the learned Rent Controller and thereafter on his filing the civil suit against him, which, as pointed out herein before, was withdrawn because it was against the dead person viz. the original defendant-tenant Haji Chhotemiya who had already died. In appreciating the submissions of the parties on the above question, it is necessary to see that according to Clause 13(1) of the Rent Control Order, it is obligatory upon the landlord to obtain the written permission of the Rent Controller to determine the lease of his tenant. There is, however, no express provision that once a quit notice is given pursuant to a written permission obtained from the Rent Controller, the said permission shall stand exhausted.
12. It is necessary to bear in mind that the proceedings for obtaining the permission of the Rent Controller under Clause 13(1) read with Clause 13(3) are quasi-judicial proceedings with a right of appeal against the order of the learned Rent Controller under Clause 21 of the Rent Control Order. The decision of the Appellate Authority and subject to such decision, the order of the learned Rent Controller is given finality under Clause 21(3) of the Rent Control Order. As observed by the Supreme Court in para 6 of the judgment in the case of Mohammad Swalleh and Ors. v. IIIrd Addl. District Judge. Meerut AIR 1988 SC 94 arising out of the proceedings under Section 3 of the U.P. (Temporary) Control of Rent and Eviction Act of 1947 read with Section 43(2)(rr) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 the finality of order in judicial proceeding is one of the essential principles which the scheme of the administration of justice must strive for.
13. In the judgment of the Supreme Court cited supra, the landlord had obtained permission for eviction of tenant under Section 3 of 1947 Act which became final after the State Government dismissed the revision filed by the tenant. The landlord then filed the suit for eviction of the tenant which suit he withdrew on the ground that the Act of 1972 had been amended and therefore, he filed an application under the said Act for enforcement of the permission granted under Section 3 of 1947 Act. One of the grounds raised before the High Court was that the permission obtained by the landlord under Section 3 of the 1947 Act was exhausted upon the landlord's filing the civil suit pursuant to the same and hence his subsequent application for eviction of the tenant under Section 43(2)(rr) of the 1972 Act was not maintainable. The High Court held that the obvious purpose of the permission under Section 3 of the 1947 Act was to enable the landlord to evict the tenant from the premises and as long as that purpose was not fulfilled the permission could not obviously exhaust itself unless it was shown that the permission was granted to file a single suit only or it was so specified in the order granting permission that the second suit could not be filed on the basis of the same.
(Emphasis supplied) In this view of the matter it was held by the High Court that the permission granted in the said case could not exhaust itself simply because the first suit filed on its basis was dismissed on some technical ground. The said permission was thus held to be available for filing the second suit. In fact the High Court for its aforesaid view had relied upon its earlier judgment in the case of Pahlad Das v. Ganga Saran . The said view of the High Court was affirmed by the Supreme Court in para 6 of its judgment.
14. The ratio of the above judgment of the Supreme Court is squarely applicable in the instant case also. In regard to the question of evicting a tenant who is protected by the Rent Control Order, it is material to see that there is two tier system for evicting such tenant because the landlord has first to obtain permission of the Rent Controller under Clause 13(1) read with Clause 13(3) of the Rent Control Order which decision is subject to appeal to the appellate authority. The matter can then be taken to this Court through a writ petition and can go upto the Supreme Court. It is only after the permission to give the quit notice to the tenant is obtained by the landlord from the Rent Controller that he can start the second process for the actual eviction of his tenant by filing the civil suit against him. It is thus clear that the procedure for eviction of a tenant in the Vidarbha Region of the State where the Rent Control Order of the erstwhile State of Madhya Pradesh is still applicable, is extremely time consuming. It would thus work great hardship to the landlord if it were to be lightly inferred that merely because a second quit notice is given to the tenant and the rent is claimed till the date of the expiry of such notice the permission granted by the Rent Controller to determine the lease is exhausted.
14-A. The permission granted by the learned Rent Controller under Clause 13(3)(v) of the Rent Control Order which has become final after contest upto the Supreme Court and to which the legal representatives of the deceased tenant Haji Chhotemiya were parties, cannot thus be held to be exhausted because the quit notice is given to them and the civil suit is filed against them claiming arrears of rent till the expiry of the notice given to them because previously the quit notice was given to the original tenant Haji Chhotemiya immediately after the order granting permission was passed by the learned Rent Controller and because the suit was filed against him pursuant to the same which civil suit was a nullity being against the above original tenant who had expired.
15. In my view, the question is primarily one of intention of parties whether, after determination of lease by the first notice to quit and by giving a second quit notice and accepting or claiming rent till the expiry of the said notice, parties revived the old lease or created a fresh lease by giving a go-by to the permission granted by the Rent Controller to determine the lease. In the instant case, it is pertinent to see that the initial notice was given by the applicant-plaintiff to the original tenant Haji Chhotemiya immediately after the order was passed by the learned Rent Control. The said original tenant had died during the pendency of the appellate proceeding where after his legal representatives had continued and contested the claim upto the Supreme Court. In fact, in the writ petition preferred by the legal representatives of the deceased tenant in this Court, the permission granted to the applicant-plaintiff by the learned Rent Controller was set aside and it is only in the L.P.A. preferred by the applicant-plaintiff that the permission restricted to Clause 13(3)(v) was granted by the Division Bench of this Court which permission was maintained by the Supreme Court in appeal by Special Leave preferred by the defendants i.e. the legal representatives of the deceased tenant. The permission thus granted was directly binding upon them also.
16. Although it is a different question whether the suit could be filed against the legal representatives on the basis of the quit notice given to the original tenant, what is material to be seen is that the second quit notice is given not to the original landlord himself but to his legal representatives after his death. What is further material to be seen is that the second quit notice appears to have been given because the permission granted by the learned Rent Controller on the basis of which the first quit notice was given to the original tenant was set aside in the writ petition preferred by his legal representatives and the same restricted to Clause 13(3)(v) of the Rent Control Order only was granted in the L.P.A. preferred by the applicant-plaintiff against the aforesaid order in the writ petition.
17. It may then be seen that although the quit notice was given first to the original tenant Haji Chhotemiya and the suit was filed on the basis of the same against him, the said suit was a nullity being against the dead person and was, therefore, withdrawn. As already pointed out hereinbefore the applicant-plaintiff gave notice to the legal representatives of the deceased defendant since after the permission was finally granted against them, he had not given any notice to them to determine the lease presumably thinking that the quit notice given earlier to the original tenant immediately after the order was passed by the learned Rent Controller would not ensure to his benefit in filing the Civil Suit for eviction against them, and thus to avoid any technical objection on that ground. Since he had given the quit notice to them determining their lease on the expiry of the said notice, he had naturally claimed rent upto the said date in the instant suit filed against them.
18. It is clear from the above facts and circumstances that the applicant-plaintiff never intended to revive the lease or create any fresh lease by giving quit notice to the legal representatives of the original tenant Haji Chhotemiya and by claiming rent in the instant suit till the expiry of the said notice. It is well settled that the question of waiver is a question of fact. The ratio of the judgment of this Court in the case of Chaturbhuj v. Mangnibai 1958 N.L.J. 250 has to be restricted to the facts of the said case and cannot, therefore, be successfully pressed into service, in the facts and circumstances of the instant case. On the other hand, the facts in the case of Ramkrishna v. Ramchandra 1977 Mh.L.J. Note 10 are more close to the facts in the instant case because in the said case after decision in appeal in the Rent Controller proceedings the landlord gave second quit notice to the tenant in the said case and claimed from him rent till the date of expiry-of the said notice. Therefore, similar view taken by this Court in the said case on the question of waiver can be usefully relied upon in the instant case also. It cannot thus be held in the facts and circumstances of the instant case that the landlord by giving notice to quit to the legal representatives of the deceased tenant intended to revive the old lease or to create a fresh lease and thus waived his right to determine their lease on the basis of the permission granted by the learned Rent Controller.
19. The instant suit filed by the applicant-plaintiff against the defendants-tenants for their eviction from the suit premises is thus maintainable and can be decreed.
20. In the result, the instant revision is allowed. The impugned judgment and the decree of the learned trial Court is modified. The judgment of the learned trial Court dismissing the claim of the plaintiff for possession of the suit property is set aside and instead a decree is passed for ejectment of the defendants from the suit premises described in para 1 of the plaint. Since the decree for ejectment is passed, there will also be a decree for inquiry into the future mense profits under Order 20, Rule 12, Civil Procedure Code from the date of the suit till the date of the delivery of the possession to the applicant-plaintiff. The costs throughout is saddled upon the defendants.