Bombay High Court
Abde Musa S/O Mulla Ali Saheb And Ors. vs Lrs. Of Shri Lalta Prasad (Smt. ... on 15 April, 2008
Equivalent citations: 2008(110)BOM.L.R.1316, AIR 2009 (NOC) 774 (BOM.) (NAGPUR BENCH), 2008 (6) AIR BOM R 642 2009 A I H C 1001, 2009 A I H C 1001, 2009 A I H C 1001 2008 (6) AIR BOM R 642, 2008 (6) AIR BOM R 642
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari
JUDGMENT B.P. Dharmadhikari, J.
Page 1319
1. By this Second Appeal, the appellants/landlords are challenging reversing judgment delivered by 13th Additional District Judge, Nagpur, in Regular Civil Appeal No. 665 of 1984. The landlords, after obtaining permission from the Rent Controller under Clauses 13(3)(v) (Alternate accommodation) and 13(3)(vi) (Bonafide need), issued notice under Section 106 of Transfer of Property Act, and then filed Civil Suit No. 988 of 1976, for eviction of respondent . tenant and for recovery of rent. The suit was decree by 19th Joint Civil Judge, Junior Division, Nagpur, on 9th May 1984. The respondent then filed Regular Civil Appeal No. 665 of 1984 which came to be allowed by observing that the suit ought to have been filed before Small Causes Court, in view of 1984 Amendment to Provincial Small Causes and Presidency Small Cause Courts Act. This Court admitted Second Appeal by accepting Question No. (1) in Memo of Appeal as substantial question of law. During hearing before me, the appellants sought to raise additional substantial questions of law and for that purpose filed Civil Application No. 2764 of 2008. After hearing respective Counsel, instead of formulating questions as proposed in Civil Application No. 2764 of 2008, it was found appropriate to accept Question No. 6 in Memo of Appeal as substantial question of law. Accordingly, the appeal needs to be decided on the following questions:
(1) That the learned Appellate Court erred in holding that the Trial Court has no jurisdiction to entertain the suit due to the provisions of Page 1320 Section 26 of the Provincial Small Cause Courts Act, 1887, when as a matter of fact the said provision was introduced in the year 1984 and the suit is a prior one.
(6) That the learned Appellate Court further erred in not appreciating that Clause 13(3)(v) of the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949, deals with the contingency of the tenant having found alternate accommodation and, therefore, not needing the tenanted premises. In the circumstances, the change of the original owner or a change due to a subsequent purchaser having purchased the property would make no difference in the situation whatsoever.
2. I have heard Shri Dewani, Advocate for the appellants and Shri Bhide, Advocate for the respondents.
3. The appellants No. 1 to 5 before this Court became owners on 31.3.1971 and thereafter they filed proceedings under Clause 13 of C.P. & Berar Letting of Housing and Rent Control Order, 1949, (hereinafter referred to as Rent Control Order), on 20.8.1972, seeking permission to terminate tenancy of present respondent under Clauses 13(3)(v) and (vi). Permission was refused by the Rent Controller on 22.11.1975. In appeal under Clause 21 of Rent Control Order, the Additional District Magistrate, Nagpur, granted said permission on 15.5.1976 vide order at Exh. 27. On 1.6.1976, the landlords issued notice under Section 106 of Transfer of Property Act vide Exh. 29 and as respondent . tenant did not vacate, filed Regular Civil Suit No. 988 of 1976 in the year 1976. In the meanwhile, Writ Petition filed by tenant challenging the permission granted by appellate authority was dismissed by this Court on 4.2.1981 vide order at Exh. 28. The suit came to be decreed on 9.5.1984 and thereafter Regular Civil Appeal mentioned above was filed by the respondent on 12.11.1984. On 17.3.1989, present appellant No. 6 purchased the suit premises from other appellants. Appellant No. 6 accordingly became party in Regular Civil Appeal No. 665 of 1984 and the lower appellate Court ultimately allowed that appeal on 21.2.1992.
4. Shri Dewani, Advocate for the appellants in this background has contended that Question No. 1 about retrospective application of Section 26A added by Provincial Small Causes and Presidency Small Causes (Maharashtra Amendment) Act, 1984, squarely stands concluded in favour of present appellants by judgment of this Court in the case of Lilabai Waghela v. Keshaorao Tidke reported at 1986 Mh. L.J. 207. He states that it has been specifically held that suits filed prior to coming into force of said Act i.e. 1.1.1985 are to be decided as if the Amendment Act has not come into force at all. He contends that Question No. 1, therefore, needs to be answered in favour of the appellants.
5. Shri Bhide, Advocate for the respondent states that though he does not accept this legal proposition, in view of concluded judgment, the controversy appears to have been decided in favour of the appellants. In view of the judgment of this Court in the case of Lilabai Waghela v. Keshaorao Tidke, (supra) Question No. 1 accordingly is answered in favour of present appellants.
Page 1321
6. Shri Dewani, Advocate, thereafter points out that the purchase during the pendency of appeal by appellant No. 6 does not disentitle her to permission which was already granted by Rent Controller. He argues that it is not necessary for appellant No. 6 to approach Rent Controller again as observed by lower appellate Court. He relies upon the judgments of this Court as also of the Hon'ble Apex Court particularly the judgment in the case of Pralhad v. Iqbal Hussain reported at 1996 (2) Mh. L.J. 604. The other judgments are relied upon by him to show that the validity or otherwise of order granting permission passed by the Rent Controller cannot be looked into by Civil Court which only executes the permission granted by the Rent Controller. He argues that the permission granted was on account of bonafide need and also on account of acquisition of alternate accommodation by the respondent. He states that even if objection of present respondent is presumed to be correct, still bonafide need only may not inure to the benefit of present appellant No. 6. According to him, this logic cannot and will not apply to permission granted under Clause 13(3)(v) of Rent Control Order and hence the termination of tenancy needs to be maintained and the judgment and decree of lower appellate Court needs to be quashed and set aside. He clarifies that in view of judgment of the Hon'ble Apex Court mentioned above, even the ground of bonafide need inures to the benefit of present appellant No. 6 as appellant No. 6 has purchased the premises after the Rent Controller permission attained finality.
7. As against this, Shri Bhide, Advocate for the respondent states that the permission or benefit flowing therefrom has not been purchased by present appellant No. 6 from appellants No. 1 to 5 and as there is no such assignment, permission granted by the Rent Controller, whether under Clauses 13(3)(v) or 13(3)(vi) of Rent Control Order does not survive for the benefit of present appellant No. 6. He places reliance upon the judgment of this Court in the case of Babarao v. Gangadevi reported at 1982 Mh. L.J. 738. He also points out the judgment of this Court in the case of Jagdishprasad v. Dharamdas reported at 1979 Mh. L.J. 656, to state that subsequent purchaser is not entitled to benefit of permission procurred by his predecessor. He states that similar view is taken by this Court in Dineshkumar v. Additional Collector reported at .
8. In brief reply, Shri Dewani, Advocate for the appellants, states that all judgments relied upon by the respondent are clearly distinguishable and he states that transfer there is before the Rent Controller permission had become final. He contends that in view of the judgment of the Hon'ble Apex Court mentioned above, the controversy clearly stands covered in favour of the appellants.
9. From the facts which are mentioned above, it is apparent that the purchase by present appellant No. 6 is after termination of tenancy of respondent and after said termination was held to be valid by trial Court on 9.5.1984. Writ Petition filed by the respondent challenging the permission granted by Rent Controller vide Special Civil Application No. 4244 Page 1322 of 1976 was dismissed on 4.2.1981 and at that stage, permission given by Rent Controller became final. The appeal under Section 96 of Civil Procedure Code, was filed by the respondent on 12.11.1984 and thereafter on 17.3.1989, appellant No. 6 has purchased the premises. It is, therefore, obvious that purchase is after the permission had become final.
10. The judgment of this Court in Jagdishprasad v. Dharamdas (supra) shows that permission there was granted by Rent Controller on 6.1.1971 and appeal filed by tenant under Clause 21 was pending before the Resident Deputy Collector. During hearing of that appeal on 28.9.1971, the premises were transferred and then purchaser sought to become party before the Resident Deputy Collector. It is in this position that the controversy has been considered and it is, therefore, obvious that the transfer there is, before the permission given by the Rent Controller attained finality. Even in subsequent judgment of this Court (by me) in the case of Dineshkumar v. Additional Collector (supra), the facts are same. The permission was given by the Rent Controller on 4.12.1970 and the appeal preferred by the tenant was decided on 27.11.1973. The transfer was by sale deed dated 20.9.1971 i.e. during the pendency of appeal. It is, therefore, obvious that both these rulings have no application in present facts.
11. The third judgment pointed out by Shri Bhide, Advocate for the respondent, in Babarao v. Gangadevi (supra), considers the law in the background of facts where after seeking permission under Clause 13(3)(i) of Rent Control Order, landlords did not proceed to terminate tenancy but received rent from tenant and thereafter transferred the tenanted property. This Court has found that specific assignment of his right accrued under permission was, therefore, essential. Under Clause 13(3)(i) of Rent Control Order, the Rent Controller has to direct the tenant to clear the arrears within specified time and if he fails to deposit the amount of arrears within said time, the permission is deemed to have been granted. It is obvious that landlord there had received the rent from tenant after the permission was granted. The ruling has, therefore, no application.
12. The judgment of the Hon'ble Apex Court in the case of Pralhad v. Iqbal Hussain (supra) squarely covers the controversy before me. There the appellate Court under Rent Control Order granted permission on 16.12.1988 and accordingly tenancy was also terminated by issuing notice under Section 106 of Transfer of Property Act vide notice dated 3.3.1989 by the end of tenancy month i.e. April 1989. The suit was filed on 2.5.1989 for eviction of tenant. The trial Court directed tenant there to vacate by judgment and decree dated 31.1.1990 and appeal against it was dismissed by District Judge, Amravati, on 24.3.1994. In Civil Revision Application No. 616 of 1994, this High Court found that the subsequent event of purchase of another house by the appellant . landlord was not considered and it was found that as another premises was secured for his bonafide requirement, during pendency of litigation, specially in eviction proceedings, such purchase was significant. The High Court, therefore, set aside that order and remanded matter back to lower appellate Court to consider the subsequent events. This order of remand was Page 1323 questioned before the Hon'ble Apex Court. The Hon'ble Apex Court has considered the scheme of Clause 13 of Rent Control Order in para 8, which is as under:
A perusal of the provisions contained in Clause 13 of the Rent Control Order shows that the nature of protection which has been conferred on the tenant under the said Clause differs from the protection given to the tenant under other similar rent control laws in other States. In most of the rent control laws in force protection against eviction is conferred on the tenant by imposing the requirement that no decree for eviction shall be passed against the tenant except on certain specified grounds or no suit for eviction by the tenant would be filed except on certain specified grounds. Such laws envisage a single judicial proceeding in which the landlord is required to make out a case for eviction of the tenant on the basis of any one of the specified grounds and the decree or order for eviction passed by the civil court or the Rent Controller is subject to an appeal or revision and a further appeal or revision in the High Court. The Rent Control Order, however, envisages two separate proceedings. One is the proceeding before the Rent Controller under Clause 13 of the Rent Control Order for grant of permission to issue a notice terminating his tenancy which order is subject to appeal before the Rent Control Appellate Authority and judicial review by the High Court under Article 226 of the Constitution. In the event of grant of permission to issue the notice terminating the lease, the proceedings under Clause 13 of the Rent Control Order are followed by a second proceeding, viz., a suit for eviction after the landlord has terminated the tenancy by issuing a notice in accordance with the provisions of Section 106 of the Transfer of Property Act. By Clause 13 of the Rent Control Order a bar is placed on the right of the landlord to terminate the tenancy of the tenant by requiring him to obtain the necessary permission in that regard from the Rent Controller and such permission can be granted only if any of the grounds specified in Sub-clause (3) of Clause 13 is made out. In other words under Clause 13 the bar that is placed on the right of the landlord to terminate the tenancy of the tenant is lifted when permission to issue notice is granted and thereafter the landlord can proceed to terminate the tenancy in accordance with Section 106 of the Transfer of Property Act and in the event of the tenant not vacating the premises after the termination of the tenancy by such a notice, the landlord can seek the eviction of the tenant by filing a suit on the ground that the tenancy having been terminated under Section 106 of the Transfer of Property Act the tenant has no right to remain in occupation. In the said suit the validity of the order granting permission cannot be assailed by the tenant in view of the bar created by Section 7 of the Act read with Clause 21(3) of the Rent Control Order.
13. In para 10, the earlier Division Bench judgment of this Court in the case of R.P. Ghosh v. Pramilabai Ravindra Puri and Ors. reported at 1976 Mh. L.J. 828, is considered at some length and observations of the Hon'ble Division Bench that Rent Control Order only provided that a notice of termination of tenancy could not be issued without written permission of Rent Controller are approved. The observations that filing of ejectment suit after giving notice under Section 106 of Transfer of Property Act, is not continuation of proceedings instituted before the Rent Controller but it is an independent and distinct proceeding, is also approved. The Hon'ble Apex Court has found that so far as suit for ejectment is concerned, the cause of action is not the ground on which permission is granted by the Rent Controller but termination of Page 1324 tenancy of tenant under Transfer of Property Act. It also approved the observations of Division Bench that in ejectment suit, the grounds of ejectment were irrelevant.
14. In view of judgment of this Hon'ble Apex Court, it is apparent that present purchase by appellant No. 6, after permission granted by Rent Controller had attained finality, cannot be construed as a subsequent event relevant for the purposes of considering the wiping out of bonafide need of appellants No. 1 to 6 i.e. landlords. The consideration of grounds on which the permission came to be granted became insignificant and irrelevant after the suit for eviction was found to have been validly instituted. Thus, as notice under Section 106 of Transfer of Property Act has been found to be validly served and tenancy was found to be validly terminated, it is apparent that the purchase by appellant No. 6 during the pendency of Regular Civil Appeal, does not in any way help the present respondent and the acceptance of said event as subsequent event to nullify the order of Rent Controller by lower appellate Court is, therefore, unsustainable. Question No. 6 formulated above is, therefore, answered in favour of present appellants.
15. In view of these answers, the judgment and decree dated 21.2.1992 delivered by the 13th Additional District Judge, Nagpur, in Regular Civil Appeal No. 665 of 1984 is hereby quashed and set aside. The judgment and decree dated 9.5.1984 delivered by 19th Joint Civil Judge, Junior Division, Nagpur, in Civil Suit No. 988 of 1976 is hereby restored. Second Appeal is accordingly allowed with cost throughout.