Bombay High Court
Sau. Snehalata Raghunath Joshi vs Laxman Hari Mulik on 9 January, 2009
Author: Anoop V.Mohta
Bench: Anoop V.Mohta
ssm
sm IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2194 OF 1991
Sau. Snehalata Raghunath Joshi,
Age 52 years, Occupation Household
duties, Residing at Ganapati Peth,
Sangli. ...Petitioner
(Orig.Plaintiff)
Vs.
1. Laxman Hari Mulik,
(Deceased - By his legal heirs)-
A) Shri Akkatai Laxman Mulik,
Age 77 years, Occu. Household
duties.
B) Ashok Laxman Mulik,
Age 35 years, Occu. Agriculturist.
C)
Vijay Laxman Mulik,
Age 31 years, Occu. Service.
D) Subhash Laxman Mulik,
Age 31 years, Occu. Service.
All residing at 164, Khanbhag,
Sangli.
2. Ramanlal Gangaram Parekh,
Age 55 years, Occu. Business,
residing at Mahavir Nagar,
Sangli. ...Respondents.
(Orig.Defendants)
Mr.S.G.Deshmukh for the Petitioner.
Mr.A.P.Kulkarni for Respondent No.2.
CORAM : ANOOP V.MOHTA, J.
DATED : 9TH JANUARY, 2009.
JUDGMENT:
The Petitioner, landlord has challenged the reversal order dated 05/10/1990 passed by the Additional District Judge, Sangli whereby, the lower Appellate ::: Downloaded on - 09/06/2013 14:13:13 ::: ( 2 ) Court allowed the Appeal filed by the Respondents / tenants and the decree for possession passed in Regular Civil Suit No.117/1979 dated 25/07/1984 is set aside except the part of the money decree, that resulted into dismissal of the suit for possession, filed by the Petitioner.
2. The suit premises - shop admeasuring 12 x 15 sq.fts.
on the ground floor in a building situate in C.T.S. No.736-A, B, C, known as Wadekar Building, Ganpati Peth, Sangli.
Mulik- Original It was leased out to the Original tenant Defendant No.1 at Rs.10/- per Shri month, including electricity charges, education charges, for running tailoring business "Mulik Tailoring shop". He suffered from Leprosy and was unable to run his business. As Defendant No.1 wanted to sublet the premises, the Petitioner gave public notice as well as individual notice to the tenant from time to time since 13/05/1968 till 30/10/1971 including the telegram. For the same reason, another registered notice was given and called upon him not to sublet the premises.
3. In spite of this, Defendant No.1 illegally sublet the suit premises to Defendant No.2 after receiving Pagadi from him. There was no stock in trade or ::: Downloaded on - 09/06/2013 14:13:13 ::: ( 3 ) goodwill as the business was closed. On 13/12/1978 Defendant Nos.1 and 2 sent letter and money order which Petitioner refused to accept. On 31/01/1979 the Petitioner terminated the tenancy of Defendant No.1 by notice which was duly received by him. Defendant No.2 replied the said notice by raising false contentions on 29/01/1979. The suit premises were closed and locked for three months. On 19/03/1979, the Petitioner filed present suit against both the Respondents for possession, arrears and mesne profits.
4. On 25/07/1984, the suit was decreed with costs by holding that Defendant No. 1 illegally assigned / transferred the interest of the suit premises; it was not a sale of running business with stock in trade and goodwill and lease hold rights and thereby directed to deliver the possession and to pay arrears.
5. The Defendants challenged the decree by Regular Civil Appeal No.491 of 1984. By order dated 05/10/1990, the Additional District Judge, Sangli has allowed the Appeal partly, as stated above by holding that Defendant No.2 is protected under Section 15(1) r/w (13)(1) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (for short, "the Bombay Rent Act"). The ::: Downloaded on - 09/06/2013 14:13:13 ::: ( 4 ) relevant Section 15(1) read with Section 13 (1) of the Bombay Rent Act provides protection only when the said sub-tenant / or subsequent occupant proves his case of exemption, as claimed. Therefore, heavy burden lies upon the tenant and the person in occupation to show that the tenant has transferred his total interest in the tenanted premises along with the establishment. The business which was running concern at the time of assignment/ transfer. Jayprakash Shyamsunder Mandare Vs. Laxminarayan Murlidhar Mundade & Ors., 1983 Mh.L.J. 362 (D.B.).
date of There was running concern / business on the transfer of the original tenant which he transferred as provided under the proviso of the section.
6. After going through the evidence as well as material placed on record, the Appellate Court wrongly put burden on the Plaintiff. The burden lies upon the Defendants to claim protection under the said proviso. There is nothing placed on record to show that the tailoring business was going on since 1965. Admittedly, the premises along with alleged business, and stock in trade was transferred in the year 1978. The Plaintiff's son's evidence shows that the suit shop was closed since 1965 but they did not file suit for possession on the ground ::: Downloaded on - 09/06/2013 14:13:13 ::: ( 5 ) of non user or closer as contemplated under Section 13(1) (k) of the Bombay Rent Act. That itself in no way support the case of the running tailoring business and discharging him from proving his case to claim protection under the Section. The Respondent tenant failed to prove by putting material on record that it was the running tailoring business, which in a given would have required various receipts of tailoring business, servants or such other person.
7.
no way The document Exhibit 98 as relied by the proved that the list of articles and or Respondent, list of stock in trade as contemplated in (1977) Vol. 107, Income Tax Reports, page 637) H. Mohmed & Company Vs. Commissioner of Income Tax, Gujarat-I. Gujarat-I The concept of stock in trade though differs from business to business yet it is necessary for the Respondent-tenant, who is claiming protection under the proviso of the Section, to put material on record to show that the said document is nothing but the transfer of running business. There is material in the evidence of Shrikant that deceased Laxman only goes to sit in the suit premises and used to come back. There was no consumption of electricity of the aforesaid shop. Once the business of tailoring was closed and premises was not in regular use, the reasoning and the ::: Downloaded on - 09/06/2013 14:13:13 ::: ( 6 ) submission that on the date of transfer it was running concern is incorrect as observed by the Appellate Court.
8. The proviso to Section 15 of the Bombay Rent Act contemplates the running concern business and or business. If there is no running concern / business, there is no reason of the protection of the said proviso. The alleged goodwill of the business always depends upon the variety of circumstances including the location, service, standing of the business, (AIR 1961 S.C. Vs. 1010, M/s.
ig S.C.Cambatta & Co.
The Commissioner of Excess Profits Taxes, P. Limited Bombay Bombay) The location is also important but provided the business was running on the date of transfer.
9. Even earlier name of "Malik Tailor" was changed to "Datta Enterprises" therefore, it also shows that there was no such transfer of goodwill as claimed. The fact that the name itself has been changed to Datta Enterprises further falsifies the case of transfer / purchase of goodwill. It further support the case of Plaintiff that the business was closed and it was not at all running and therefore, there was no question of goodwill of the shop by name M/s. Malik Tailors, as contended by the Defendants.
::: Downloaded on - 09/06/2013 14:13:13 :::( 7 )
10. There is no evidence whatsoever to indicate that there was any stock in trade in the suit premises.
Original Defendant No.1 was not in position to run the business of tailoring and there was no one to run the said business including the servants. The heavy burden lies upon the party who is claiming that he has purchased the goodwill and therefore entitled to get the benefit under the notification issued by the Government under Section 15 of the Bombay Rent Act.
11. In this background, the reliance of the Supreme Court Judgment in Commissioner of Income Tax, Bangalore Vs. B.C. Srinivas Setty, reported in 1981 Vol. 128, page 294, on the facts itself, has no assistance to the Defendants to claim protection as contemplated under Section 15 of the Bombay Rent Act as there was no running business whatsoever. It was already closed.
The Respondent in fact did not use the same name for his business and changed it into Datta Enterprises.
12. In the present case, the business was closed and there was no running business. Therefore, such transfer / assignment of any such business, cannot be the foundation to claim protection under this Section. If ::: Downloaded on - 09/06/2013 14:13:13 ::: ( 8 ) there is a running business, the son of the original tenant is definitely entitled to claim all the rights and benefits arising out of such goodwill. Here again the burden lies upon the tenant or occupant who is claiming protection on the foundation that the business was running on the date of transfer / assignment. The Appellate Court, according to me is wrong in putting the burden on Plaintiff.
13. Even if, there is a list of stock in trade below the Exhibit 107, still that itself is not sufficient to show that business was running at the relevant time to claim protection. The said list admittedly, was not part of the basic document. There is no satisfactory explanation even from Ramlal Gangadhar Parekh and Subhash Laxman Mulik, Exhibit 106 and 97 respectively, as the stock in trade was not prepared at the time of sale deed Exhibit 98. Exhibit 98 read with Exhibit 107, as observed by the Trial Court have various doubts including its genuineness. It did not mention details of article and stock-in-trade sold. The transfer of interest in such premises without proving the transfer or assignment of running business and stock in trade;
the case of sub-tenancy goes in favour of the landlord
and against the Defendants. Such transfer / assignment
::: Downloaded on - 09/06/2013 14:13:13 :::
( 9 )
of closed business is not protected under proviso of
this Section. (Jayprakash
Jayprakash Shyamsunder Mandare Vs.
Laxminarayan Murlidhar Mundade & Ors., 1983 Mh.L.J.362.) Mh.L.J.362.
14. Admittedly, Defendant No. 2 is in possession of the premises who is not the original tenant. There is no relationship of landlord and tenant/ sub-tenant created in favour of them. The occupation of Defendant No.2 was without consent of the Petitioner.
15. There is ample material to show that the Defendant No.2 is in exclusive possession of the suit premises.
16. The landlord issued various notices public as well as private, warnning Defendant No.1 original tenant, not to create third party right or sub-tenancy in the premises. The occupation of third person other than the original tenant if not in dispute, I am of the view that the landlord has discharged his basic burden. In the present case, the same is wrongly overlooked by the Appellate Court.
17. The bailiff report as noted by the Trial Court, supports the case that the Original Tenant was suffering from Leprosy, specially when the same was not denied and ::: Downloaded on - 09/06/2013 14:13:13 ::: ( 10 ) disproved by the Defendants. The Defendants failed to place on record that he was not suffering from Leprosy and doing business on the date of the transfer.
18. Therefore, taking all this into account, I am of the view that the order of Appellate Court is wrong and whereas the order passed by the Lower Court is correct to hold that Defendant No.1 is the monthly tenant in the suit premises; Defendant No.1 assigned / transferred interest in the premises; therefore, entitled for possession legally of terminated;
the suit premises as the tenancy
the plaintiff is also entitled for
was
money claimed from Defendant No.2. The Lower Court
right in holding that Defendant Nos. 1 and 2 failed to
prove that Defendant No.1 sold his running business with stock in trade along with goodwill and let out the rights to Defendant No.2
19. Resultantly, the Writ Petition is allowed. The impugned order passed by the Appellate Court is quashed and set aside. The order passed by the Joint Civil Judge, Junior Division, Sangli is restored.
21. The Petition is allowed in terms of prayer clauses
(a) and (b). Rule made absolute. No order as to costs.
::: Downloaded on - 09/06/2013 14:13:13 :::( 11 )
22. On the request of the learned counsel appearing for Respondent No.2, the effect and operation of this Judgment is stayed for six weeks on the condition that there should be no creation of third party right or interest in the suit property.
(ANOOP V.MOHTA, J.) ::: Downloaded on - 09/06/2013 14:13:13 :::