Bombay High Court
Shri. Virendra S/O. Laxmikant Dubey vs Nandashram Lodge, Through One Shri. ... on 14 March, 2019
Author: Manish Pitale
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Writ Petition No.1657 of 2016
Virendra Laxmikant Dube,
aged 43 years, occ.-Agriculturist/business,
R/o.-Vitthal-Rukhmini nagar, Nagpur. ... Petitioner
(Ori. Defendant no.1.)
-Versus-
1] Nandashram Lodge .... (Ori. Plaintiff)
through one Shri Vijay Baburao Misal,
Aged about 38 years, Occ.- Business,
R/o.-Opp. Yeshwant Stadium, Abhyankar Road,
Dhantoli, Nagpur.
2] Munnaji Dube (s/o not known), .... (Ori. Defendant no.2)
aged Major, Occ.- Business,
R/o.- Sawan and Shiv Travels, Room No.34,
Nandashram Lodge, Abhyankar Road,
Opp. Yeshwant Stadium, Masrani Building,
Dhantoli, Nagpur. .... Defendants.
Writ Petition No.1658 of 2016
Virendra Laxmikant Dube,
aged 43 years, Occ.-Agriculturist/business,
R/o.-Vitthal-Rukhmini nagar, Nagpur .... Petitioner
(Ori. Defendant no.1.)
-Versus-
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1] Nandashram Lodge .... (Ori. Plaintiff)
through one Shri Vijay Baburao Misal,
Aged about 38 years, Occ.- Business,
R/o.-Opp. Yeshwant Stadium, Abhyankar Road,
Dhantoli, Nagpur.
2] Munnaji Dube (s/o Not known), .... (Ori. Defendant no.2)
aged Major, Occ.- Business,
R/o.- Sawan and Shiv Travels, Room No.34,
Nandashram Lodge, Abhyankar Road,
Opp. Yeshwant Stadium, Masrani Building,
Dhantoli, Nagpur. .... Defendants.
Mr. S.G. Shukla and A.S. Shukla, Counsel for petitioner.
Mr. M.R. Joharapurkar, Counsel for Caveator/resp. no.1.
Coram : Manish Pitale, J.
Dated : 14th March, 2019.
ORAL JUDGMENT
Both these Writ Petitions are taken up for final hearing in view of the request of the Hon'ble Supreme Court in its order dated 27-11-2018, to decide these Writ Petitions as expeditiously as possible and preferably within a period of six months.
2. These two Writ Petitions have been filed by the original defendant no.1, challenging the concurrent orders passed by the two Courts below i.e. the Small Causes Court, Nagpur and the Court of District Judge, Nagpur (appellate Court), whereby a suit for ejectment, possession and mesne profits filed by respondent no.1 (original petitioner), has been allowed and counterclaim filed by the petitioner has been rejected.
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3. The respondent no.1 filed the aforesaid suit on 06-03-2004, before the Small Causes Court, claiming that it had given a notice dated 22-10-2003 to the petitioner and respondent no.2 (original defendants), to pay arrears of rent in respect of the suit property bearing Room No.34 in Corporation House No.601 at Abhyanakar Nagar, Nagpur. It was contended that when the original defendants failed to make payment in terms of the said notice, respondent no.1 was entitled to seek their ejection from the suit property. The original defendants filed their written statement and denied the fact that they were habitual defaulters in payment of rent and that originally they had been put in possession of Room No.17 and that thereafter, respondent no.1 had requested them to shift to Room No.34 as the said Room No.17 was to be repaired. It was contended that in these circumstances, neither respondent no.1 was entitled to claim arrears of rent nor to seek ejectment of the original defendants on such ground. The parties adduced evidence in support of their respective stands and by the impugned judgment and order dated 24-01-2008, the Small Causes Court held in favour of respondent no.1, thereby granting decree against the original defendants (including the petitioner herein). It is relevant to mention here that the petitioner had filed a counterclaim in the aforesaid suit, claiming that since he was a tenant of Room No.17 and not Room No.34 he was entitled to decree of grant of possession in respect of Room No.17. The Small Causes Court took into consideration both the aspects of the matter and by rendering findings in favour of respondent no.1, not only decreed the suit in favour of respondent no.1, but, dismissed the counterclaim of the petitioner. Aggrieved by the same, the petitioner filed Regular Civil Appeal No.190 of 2008, before the District Court, Nagpur (appellate Court). By the ::: Uploaded on - 20/03/2019 ::: Downloaded on - 31/03/2020 14:17:42 ::: 4 wp 1657.16.odt impugned judgment and order dated 28-10-2015, the appellate Court dismissed the appeal, thereby confirming the decree granted in favour of respondent no.1 and also dismissed the counter claim of the petitioner.
4. The present two Writ Petitions have been filed challenging the impugned orders passed in favour of the respondent. Mr. S.G. Shukla, with Mr. A.S. Shukla, learned Counsel for the petitioner, contended firstly that the material on record demonstrated that the petitioner had taken a clear stand and that he could not be said to be a tenant in respect of the suit premises at all. It was the contention raised on behalf of the petitioner that he was a tenant in respect of Room No.17 and that the material brought on record demonstrated that on the pretext of carrying out repairs of Room. No.17, the original defendants had been asked to shift to Room No. 34 from Room No.17 and that having occupied Room No.34 they could not be stated to be tenants and at the best for respondent no.1, they could be said to be in permissive occupation or licensee of Room No.34. On this basis, it was contended that when the status of tenant could not be attributed to the original defendants, there was no question of applicability of Section 15 of the Maharashtra Rent Control Act, 1999 (for short, 'the aforesaid Act') and that therefore, the entire theory on which the suit was filed was not sustainable. It was further contended that since respondent no.1 claimed to be a Lodging House and the suit itself was filed on this basis, the suit premises did not fall within the purview of definition of "premises" under Section 7(9) of the aforesaid Act and that therefore, the suit was not maintainable. It was contended that the decree passed in favour of respondent no.1 was therefore, wholly unsustainable. It was further contended that the petitioner had deposited amount before ::: Uploaded on - 20/03/2019 ::: Downloaded on - 31/03/2020 14:17:42 ::: 5 wp 1657.16.odt the Small Causes Court upon filing of suit by respondent no.1 and that upon a proper interpretation of the aforesaid Act as a beneficial legislation for the tenant, the said factor ought to have been taken into consideration by the Courts below while considering the question of grant of decree in favour of respondent no.1.
5. It was further contended that in an earlier proceeding concerning arrears of rent filed by respondent no.1, which came up to this Court in the form of Writ Petition No.5527 of 2006, this Court while disposing of the said Writ Petition and confirming the decree of payment of arrears of rent passed against the petitioner, had categorically observed the certain questions raised on behalf of the petitioner and original defendant no.1 in the present proceedings concerning entitlement of restoration of possession of Room No.17 could still be agitated as the findings in the said earlier proceeding would not operate as res judicata. On this basis, it was contended that the Courts below ought to have considered the counterclaim raised on behalf of the petitioner in the proper perspective but they have failed to do so. It was evident that the orders challenged before this Court were not sustainable. It was further contended that mere statement on the part of respondent no.1 that the business of Lodging House was closed down in July, 2003, would not take away the necessity for respondent no.1 to show as to how the suit premises could be covered under the definition of "premises" as contended above. It was also pointed out that respondent no.1, continued to be a proprietary concern and that it had no right to maintain a suit before the Court below under Order XXX Rule 10 of the Code of Civil Procedure, 1908 (CPC). It was contended that respondent no.1, could have been ::: Uploaded on - 20/03/2019 ::: Downloaded on - 31/03/2020 14:17:42 ::: 6 wp 1657.16.odt sued, but it could not sue in that capacity. In order to support the contentions raised on behalf of the petitioner, reliance was placed on the judgments in the case of Indian Hotel Co. Ltd vs Mrs. T. Stevenson, reported at AIR 1982 Bom. 160, Ashwinikumar Govardhandas Gandhi and another vs Gangadhar Dattatraya Gadgil, reported at 1990(1) Mh.L.J. 18, Vinayak Naryan Deshpande and others vs Deelip Pralhad Shisode, reported at (2010) 1 AIR Bom R 523, judgment of Single Judge of this Court in the case of M/s Mahatma Gandhi Sarwajanik Vachanalaya vs Dahyabai Hargovind Bhayani and others, (judgment and order dated 27-01-2017 passed in Second Appeal No.216 of 2001), Bhagvan Manaji Marwadi and others vs Hiraji Premaji Marwadi, reported at 1932 SCC Online Bom 98 and Rasiklal Manikchand Dhariwal and another vs M.S.S. Food Products, reported at (2012) 2 SCC 196.
6. On the other hand, Mr. M.R. Joharapurkar, learned Counsel appearing for respondent no.1, submitted that the contentions raised on behalf of the petitioner were not sustainable and that the orders passed by the two Courts below did not deserve interference by exercising writ jurisdiction of this Court. It was contended that a perusal of the claim, written statement and the admissions given in cross examination by the petitioner would show that throughout the litigation had proceeded on the basis that he had failed to pay rent for the suit premises and that in the earlier litigation concerning arrears of rent filed by respondent no.1, the arrears were indeed deposited by the petitioner and the respondent no.2 in the Court. It was submitted that the said act on the part of the petitioner read with statement in the written statement filed on behalf of the original ::: Uploaded on - 20/03/2019 ::: Downloaded on - 31/03/2020 14:17:42 ::: 7 wp 1657.16.odt defendants, wherein it was stated that they were not habitual defaulters indicated that they had conceded to their obligation to pay rent in respect of the suit premises. This, according to the learned Counsel for respondent no.1, was enough to take away the thrust of the argument raised on behalf of the petitioner that the original defendants were never tenants of the suit premises and that they were tenants only of Room No.17. It was contended that even if respondent no.1 had conceded in the evidence that initially Room No. 17 was given to the original defendants and that thereafter they had shifted to Room No.34, it was of no consequence because in the earlier round of litigation no such objection was ever raised and that the petitioner was not entitled to turn around and now claim that there was no relationship of landlord and tenant between the parties. It was contended that the Courts below had correctly demonstrated the fact that the Lodging House had closed down in July, 2003 itself, prior to filing of the suit and that since the petitioner had failed to place on record contrary material it was clear that he was not entitled to take benefit of the definition of "premises" under Section 7(9) of the aforesaid Act. It was further contended that respondent no.1 had demonstrated that all the requirements of Section 15 of the aforesaid Act had been satisfied and that therefore, the decree of ejectment passed against the petitioner and the original defendant no.2 was justified. It was further contended that there was no substance in the claim relied on behalf of the petitioner, because there was sufficient material brought on record to show that the original defendants were indeed tenants of Room No.34 and that there was no question of grant of decree of possession in respect of Room No.17 in their favour. On this basis, it was contended that both the Writ Petitions deserved to be dismissed. Reliance was placed by the learned Counsel ::: Uploaded on - 20/03/2019 ::: Downloaded on - 31/03/2020 14:17:42 ::: 8 wp 1657.16.odt appearing for respondent no.1 on the Full Bench judgment of this Court in the case of Babulal Fakirchand Agrawal vs Suresh Kedarnath Malpani and others, reported at 2017(4) Mh.L.J. 406.
7. Heard Counsel for the parties and perused the record. Perusal of the pleadings, evidence and material on record shows that the respondent no.1 had filed the suit for ejectment, possession and mesne profits against the original defendants in respect of Room No.34, claiming that they were tenants in the suit premises and that since they had failed to pay rent in terms of order dated 22-10-2013, notice had been issued to them to pay arrears of rent and to vacate the suit premises. It was found that despite receipt of aforesaid notice, no effort was made on the part of the original defendants to pay arrears of rent, which gave cause of action to respondent no.1 to file the aforesaid suit. The first and the foremost contention raised on behalf of the petitioner, was that the original defendants could never be said to be tenant in respect of Room No.34 and that therefore, notice dated 22-10-2003 issued by respondent no.1 and the suit filed in pursuance thereof, were not sustainable in law. It was contended that when there was no status of tenant, the very inception of the suit was not sustainable in the eyes of law and that therefore, the decrees concurrently granted by the Courts below were unsustainable.
8. In order to appreciate the said contention raised on behalf of the petitioner, it would be necessary to peruse the pleadings on record. The respondent no.1 had categorically stated in its plaint that the original defendants were occupying Room No.34 as a tenant and that they were in arrears of rent. It was also stated that an earlier proceeding for recovery ::: Uploaded on - 20/03/2019 ::: Downloaded on - 31/03/2020 14:17:42 ::: 9 wp 1657.16.odt of arrears of rent had been initiated against the original defendants and that there were execution proceedings pending. The original defendants in their written statement claimed that they were not habitual defaulters in payment of arrears of rent. A statement was made by the tenant that instead of Room No.34 they had been inducted as tenant in Room No.17 in the same building, but they were required to vacate the same, as the respondent no.1 claimed that repair works were required to be undertaken in Room No.17. It was the case of the original defendants that they shifted to Room No.34 at the request of respondent no.1 and that therefore, their status as a tenant would continue in respect of Room No.17 but not in respect of Room No.34. The material shows that the earlier proceedings in pursuance of which execution applications were pending were in respect of arrears of rent for Room No.34. The said proceedings were contested wherein the original defendants were facing decrees towards arrears of rent and one of the proceedings came up to this Court in the form of Writ Petition No.5527 of 2006. The Writ Petition was dismissed by confirmation of the decree passed against the original defendants for recovery of arrears of rent. The said proceeding clearly shows that the original defendants had been occupying Room No.34 for a long period of time even at the time, when the earlier proceedings for recovery or arrears of rent were instituted. The original defendants had deposited the amount towards arrears of rent as was suit decreed by the Court and the only aspect on which much emphasis was placed on the part of the original defendants was that the stand being taken in the present proceeding would have to be decided independently. On this basis, it was contended that the earlier proceedings and the stand taken therein by the original defendants would be of no consequence and that it ::: Uploaded on - 20/03/2019 ::: Downloaded on - 31/03/2020 14:17:42 ::: 10 wp 1657.16.odt was required to be decided as to whether the original defendants could be said to be tenants of Room No.34.
9. The material on record shows that in the earlier proceedings no such clear stand was taken, but, in the present proceeding it was contended that the status of the original defendants in respect of Room No.34 could not be said to be that of tenants. The plaint on record and the evidence of the rivals parties shows that even in the present proceedings the original defendants have specifically denied that they were habitual defaulters or that they never paid rent on due date. This Court is of the opinion that the contention raised on behalf of the original defendants cannot be accepted, simply because the entitlement of respondent no.1 regarding recovery of rent has not been specifically denied and also the obligation of the original defendants to pay rent has also not been specifically denied. The fact that the original defendants are in possession of Room No.34 for long years without paying a farthing is a fact which needs to be taken into consideration in the present case. On the one hand, original defendants claimed to be tenants of Room No.17 for which no efforts were ever made to pay rent on the basis that respondent no.1 had failed to demand rent and on the other hand, it was claimed that they cannot be said to be tenant in respect of Room No.34 and that therefore, the status could be anything but that of tenants in respect of said room. Such contention in the face of material on record cannot be countenanced. Although in the order dated 23-11-2007 it has been made clear, that the earlier proceedings regarding recovery of rent would not operate as res judicata for the original defendants, insofar as the present proceedings are concerned, the Courts below cannot be said to have ::: Uploaded on - 20/03/2019 ::: Downloaded on - 31/03/2020 14:17:42 ::: 11 wp 1657.16.odt committed any error in rendering finding that original defendant no.1 had occupied Room No.34 in the aforesaid building. A perusal of the definition of landlord given in Section 7(3) of the aforesaid Act shows that landlord is any person who, inter alia, is entitled to receive rent in respect of the tenanted premises. In the present case, the entitlement of respondent no.1 to receive rent in respect of the suit premises cannot be denied in the face of the material on record and that therefore, the aforesaid contention raised on behalf of the original defendants that the suit itself was not maintainable, because they could not be said to be tenant is wholly unsustainable.
10. Once it is held that there is no substance in the said contention raised on behalf of the original defendants, Section 15 of the aforesaid Act applies in full force and when there is material on record to demonstrate that all the requirements of Section 15 of the aforesaid Act were satisfied by respondent no.1, there was no reason why the suit filed by respondent no.1 could not have been decreed. It is indeed on the basis of appreciation of evidence on record by the Small Causes Court that it was found that original defendants failed to deposit the amount as contemplated in Section 15(3) of the aforesaid Act within the period of 90 days. Some amount was deposited well beyond the said stipulated period, thereby demonstrating that respondent no.1 was indeed entitled to the decree granted in its favour by the two Courts below. As this Court has come to a conclusion that the original defendants were indeed tenants of Room No. 34, there is no question of grant of counterclaim agitated by the original defendants before the Court below. The dismissal of counter claim by the concurrent orders of the two Courts below does not deserve ::: Uploaded on - 20/03/2019 ::: Downloaded on - 31/03/2020 14:17:42 ::: 12 wp 1657.16.odt any interference. The contention raised on behalf of the original defendants that the suit premises was not covered under the definition of "premises" as per Section 7(9) of the aforesaid Act, it has been argued that once it is found that the premises in question were located in a Lodging House it did not matter whether the premises were given on daily charges or monthly charges. It was contended that the definition of premises did not cover the said room occupied by the original defendants and that therefore, the suit was not maintainable. The pleadings on record show that respondent no.1 had categorically stated in the first paragraph of the plaint that the Lodge in question was closed down in July, 2003 itself. The Courts below have found that the original defendants failed to produce any contrary material and that the aforesaid pleadings and material adduced by respondent no.1 in that regard had gone uncontroverted. Once the Lodge is found to be closed down, the rooms or the premises in question would not be covered under the Explanation to the definition of "premises" under Section 7(9) of the aforesaid Act and therefore, there is no substance in the contention raised on behalf of the original defendants. On this basis, this Court finds that the reliance placed on the judgment of this Court in the case of Indian Hotel Co. Ltd vs Mrs. T. Stevenson (supra), is misplaced.
11. It was further contended on behalf of the original defendants that the suit filed by respondent no.1, is not maintainable as it was a proprietary concern and that it could not file suit to recover possession. The said contention, in the first place was never raised before the Courts below and even if the original defendants are entitled to raise the same before this Court, it is found that nowhere did the original defendants ::: Uploaded on - 20/03/2019 ::: Downloaded on - 31/03/2020 14:17:42 ::: 13 wp 1657.16.odt specifically deny in the earlier proceedings for recovery of rent about the entitlement of respondent no.1 to recover rent nor was it specifically denied by the original defendants that they were inducted in the suit premises by way of tenants by respondent no.1. Since, this Court has already held that the entitlement of respondent no.1 was very much made out for recovery of rent and that the original defendants had failed to show anything contrary to the same, this Court finds that the said contention is unsustainable.
12. It would be relevant to refer to a portion of the Full Bench judgment of this Court in the case of Babulal Fakirchand Agrawal vs Suresh Kedarnath Malpani and others (supra) relied upon by the learned Counsel for respondent no.1, wherein it has been held as follows :-
"25. To infer that once the tenant pays the amount recorded in the notice or tenders the same, the landlord has no right to institute a suit for recovery of possession for non-payment of those arrears or continue with such proceeding for eviction and no decree for possession can be asked for, is not within contemplation of provisions of section 15 of the Act. The provision does not interfere with the right of the landlord to initiate proceeding for eviction, however, sub-section (2) of section 15 prescribes precondition for presentation of suit, that is to say that no suit can be initiated ::: Uploaded on - 20/03/2019 ::: Downloaded on - 31/03/2020 14:17:42 ::: 14 wp 1657.16.odt without issuing a notice within contemplation of said sub-section (2) of section 15 and tenant's entitlement to claim relief against forfeiture shall be subject to fulfillment of conditions stipulated under sub-section (1) and (3) of section 15 of the Rent Act. "
13. The said position of law makes it clear that once it is found that respondent no.1 was entitled for recovery of rent in respect of suit premises and that the conditions stipulated in Section 15 of the aforesaid Act stood completely satisfied, there could be no error attributed to the decree of ejectment passed against the original defendants (including the petitioner herein). It has also come on record that the petitioner never made any effort to deposit rent and that certain amounts in lump sum were deposited in furtherance of orders passed by Courts, including order dated 27-11-2018, passed by the Hon'ble Supreme Court, whereby the petitioner deposited amount in the Court below. The aforesaid conduct of the petitioner also disentitles him for any relief from this Court exercising writ jurisdiction.
14. In the light of the above, this Court finds that it would not be necessary to refer to or deal with all the judgments relied upon by the learned Counsel appearing for the original defendants. The emphasis placed by the learned Counsel for the original defendants on the judgment of this Court in the case of M/s Mahatma Gandhi Sarwajanik Vachanalaya vs Dahyabai Hargovind Bhayani and others (supra) is ::: Uploaded on - 20/03/2019 ::: Downloaded on - 31/03/2020 14:17:42 ::: 15 wp 1657.16.odt also misplaced, because in that case there was a clear written agreement between the parties and here there is no such material to accept the contention raised on behalf of the original defendants.
15. In the light of the above, this Court finds that both these Writ Petitions are without any merit and therefore, the same are dismissed.
16. The learned Counsel for the petitioner requests for stay of the effect of this judgment for a period of 8 weeks. But, this Court finds that in the facts and circumstances of the present case and the findings rendered in this judgment, the request made on behalf of the petitioner deserves to be rejected. Accordingly, it is rejected.
17. Rule stands discharged.
JUDGE Deshmukh ::: Uploaded on - 20/03/2019 ::: Downloaded on - 31/03/2020 14:17:42 :::