Bombay High Court
Omprakash Tulsiram And Ors. vs H.J. Leach And Co. on 17 October, 1988
Equivalent citations: 1988(4)BOMCR97, (1988)90BOMLR554, 1989MHLJ51
JUDGMENT H. Suresh, J.
1. If a tenant claims a right of way, say, a private road, which leads to his premises, and contends that any obstruction by the landlord in the user thereof is an interference with his right to quite enjoyment of the demised premises, which Court will have jurisdiction to entertain and try such a suit? Secondly, to what extent he can enforce his right of way? These are the two questions which arise in this matter.
2. In the suit filed in the Bombay Civil Court bearing No. 8313 of 1987, the plaintiffs/tenants have pleaded that they are the tenants in respect of godowns being Block No. D and D/1 and an open space together admeasuring 7,600 square feet in Gupta Mills Estate, Reay Road, Bombay-400 010. The defendants/respondents are the landlords of the said premises. The plaintiffs say that the demised premises were let out to them by the defendants in September 1940 and that right from the inception of their tenancy they were entitled to the use of the road passing through the Estate for egress and ingress, for the beneficial enjoyment of the demised premises. The road passes through Estate and reaches Reay Road. They further say that the said road in the Estate is meant for the use of the plaintiffs and other tenants and occupants of the Estate. They further say that they have every right to the use of the said road in the Estate, and to continue to use it, without any interference, disturbance or obstruction whatsoever from any one and/or from the defendants. They say that they being the tenants of the defendants, are entitled to the covenant of quite enjoyment of the demised premises. They further plead that the defendants are in law bound not to do any act or acts to deprive the plaintiffs of the said covenant of quite enjoyment of the demised premises.
3. It is further stated that from the inception of their tenancy they (plaintiffs) have never experienced any interference or obstruction in the use of the said road from the defendants, their servants or agents or subordinates. However, six weeks before filing the suit the said plaintiffs noticed heavy articles being dumped on the said road in such a manner calculated to interfere with the plaintiffs' use of the said road and cause obstruction to the vehicular traffic of the plaintiffs and their visitors and customers. The plaintiffs protested, but, the defendants would not heed to such a protest. It is submitted that there is an obligation on the defendants not to interfere or obstruct in the user of the said road so as to deprive the plaintiffs of their beneficial enjoyment of the demised premises. They have further pleaded that the defendants have invaded or threatened to invade the plaintiffs' right to enjoy the said road.
4. On the basis of these pleadings, the plaintiffs have sought an order of permanent injunction restraining the defendants from dumping or stacking any heavy materials on the road shaded red in the plan (Ex. A to the plaint) so as to cause obstruction to the plaintiffs demised premises. They have also sought an order of interim injunction on the same terms.
5. After filing the suit, the plaintiff's took out a notice of motion bearing No. 6436 of 1987 for an interim relief pending the suit, in identical terms as the final relief in the suit. In this notice of motion, the defendants contended that the suit being a suit between the tenants and the landlords and the suit being a suit relating to terms of tenancy, the Bombay City Civil Court has no jurisdiction inasmuch as the suit would fall within the scope of section 28 of the Bombay Rents, Hotel and Lodging House Rents Control Act, 1947 (hereinafter referred to as "the Bombay Rent Act"). They also contended that there is no such right of way at all in favour of the plaintiffs. The learned Judge, who heard the notice of motion, negatived both these contentions. On the question of jurisdiction what was argued before the learned Judge was that the plaint on a proper analysis would show that the suit relates to recovery of possession and, therefore, the suit being a suit between the tenants and the landlords, section 28 of the Bombay Rent Act would apply. The learned Judge negatived this contention. On merits, however, the learned Judge appears to have granted the relief on concession. Both these conclusions have been challenged in this appeal.
6. On the question of jurisdiction, the learned Judge has not said that he was deciding the matter as required under section 9-A of the Code of Civil Procedure, finally. But, both the Counsel who have appeared before me agreed that the said issue be tired as if it is an issue under section 9-A, so that there will be a finality on the question of this issue as such.
7. It is true that in the plaint, it has not been spelt out as to what is the exact right claimed. It is not clear whether it is a term of tenancy or whether it is any other right as contemplated under the Transfer of Property Act or under the Bombay Rent Act, 1947. But, the substance of the plea appears to be this viz., that the plaintiff's have been using this road since September 1940 i.e. from the very inception of their tenancy in respect of the demised premises and that they have every right to the use of the said road and that such a right to use the road cannot be interfered with or disturbed or obstruted in any manner by the defendants. Their further main contention in the plaint is that being the tenants of the defendants, they are entitled to the convenant of quiet enjoyment of the demised premises, which covenant is being interfered with by the obstruction caused by the defendants in the user of the road by the plaintiff's.
8. Certainly, it is not any prescriptive right that has been claimed in the plaint. Obviously, in law, there can be no such right as against their own landlords. It is also not clear whether it is a term of tenancy for there is no such averment in the plaint as such. But, what is pleaded is that any obstruction or interference in the user of the said road, amounts to deprivation of the plaintiffs beneficial enjoyment of the demised premises. This is somewhat akin to the language used under section 108(c) of the Transfer of Property Act, when it says...
"the lessor shall be deemed to contract with the lessee that, if the latter pays the rent reserved by the lease and performs the contract binding on the lessee, he may hold the property during the time limited by the lease without interruption"
9. Though it has been argued before the learned Judge that this is a suit relating to recovery of possession there is a broad concensus before me that the argument could not have been advanced on the plaint. There is no averment in the plaint, to suggest even remotely, that by such obstruction the defendants desire to recover possession of the demised premises. Therefore, though this is a suit between the tenants and their landlords, this being not a suit relating to recovery of rent or possession, unless it is said that this suit deals with any claim or question arising out of the Act or any of its provisions, section 28 of the Bombay Rent Act will not be attracted at all.
10. In this connection Mr. Parekh relies on section 12(1) of the Bombay Rent Act, which reads as follows:
"A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of this Act."
He submits that the rights to quiet enjoyment can certainly be said to be a term of tenancy. Therefore, if it is a term of tenancy, any obligation arising on such a term can be enforced only in the Court provided under section 28 of the Bombay Rent Act, 1947.
11. What section 12(1) says is that as long as the tenant pays the rent reserved or the amount of standard rent and permitted increases, if any and observe and performs the conditions of tenancy, the landlord is not entitled to recover possession of such premises. It is a protection against eviction by the landlord. If a tenant performs all the terms and conditions of tenancy, correspondingly it confers a right on the tenant not to be evicted excepting as provided under section 12(2)(a) or (b) or under section 13 of the Bombay Rent Act. Such a claim would be within the meaning of section 28 of the Bombay Rent Act. If the access which is a term of tenancy, is closed and the landlord is likely to recover possession thereby, or the tenant is likely to lose possession of the premises, such a suit being a suit relating to recover of possession, may fall within the scope of section 28 of the Bombay Rent Act. But a mere interference with the access amounting to any interference with the right to quiet enjoyment but without any element relating to recovery of possession, cannot be considered as a claim or question arising out of the Act.
12. The paramount object of the Bombay Rent Act is to give protection to the tenant against eviction and to regulate rent, repairs and amenities which are essential. The present suit is not a suit to enforce any amenity within the meaning of section 24 of the Bombay Rent Act, and that is not anybody's case. This is also not a suit for recovery of possession. Even though it could be said to be a term of tenancy being an obligation cast on the landlord as such, still, it cannot be said that there is any claim or question which are required to be dealt with under the Bombay Rent Act. In this view of the matter, I am of the opinion that the Bombay City Civil Court will have jurisdiction to entertain and try this suit as this suit does not fall under section 28 of the Bombay Rent Act at all.
13. On this question, across the Bar Mr. Rane cited some authorities. Though, it is not necessary for me to deal with any of these authorities, I will presently mention a couple of cases. Firstly, Mr. Rane drew my attention to the case of Shivaling Gangadhar v. Navnitlal, 60 B.L.R. (1957) 374. This authority is relevant as far as this matter is concerned only to the extent that if you have a litigation between the landlord and the tenant which does not deal with any question where the Rent Act is concerned, then it is rather extraordinary to say that the Civil Court has no jurisdiction to deal with those questions. It is not necessary for me to deal with other observations as such. In the present case, it is true that it is a suit between the tenant and the landlord. But, certainly, it cannot be said that the alleged interference with the private road leading to the premises cannot be considered as a question arising under the Bombay Rent Act and, therefore, it can certainly be dealt with by the ordinary Civil Court.
14. Mr. Rane also referred to the case of Vishnu v. Maharashtra W. and G. Co., , decided by Chandrachud, J. This was a case where the plaintiffs were in occupation of the three shops which formed a part of the premises of a cinema theatre. There was passage in front of these shops. In order to reach the theatre one had to pass necessarily through the passage. The shops had an opening into the passage. It was alleged that the owners of the cinema theatre were also the licensors. They changed the position of the Booking offices of the theatre with the result queues were mostly formed in the passage, which according to the plaintiffs amounted to interference with the business of the plaintiff's. Assuming that the suit could be treated as a suit between the tenants and the landlords, yet, the Court held that it did not relate to recovery of possession, nor did it raise a claim or question arising out of the Act or any of its provisions. It is true that this case has been dealt with by the Supreme Court in the case of S.K. Dhonde v. H.G. Bhogani, and the head-note shows that the above case decided by Chandrachud, J. has been overruled. But, on a careful analysis it can be seen that it is overruled to the extent that it had been held that the suit must necessarily be between the tenant and the landlord if section 28 of the Act has to be made applicable. The Supreme Court held that even though the suit is not between a tenant and a landlord, but in such a suit any question required to be dealt with by the Act arises, such a question can be decided only by the Special Court as contemplated by section 28 of the Bombay Rent Act. But, otherwise the judgment as such has not been reversed. The relevant observation which is still good law is as follows:
"But though the plaintiffs allege that they are contractual tenants, the suit does not raise a claim or question arising out of the Act or any of its provisions. The suit of the plaintiffs is in substance and reality a suit for compelling the defendants to conduct their business so as not to cause interference with that of the plaintiff's. Such a claim does not flow out of any of the provisions of the Act".
15. This takes me to the other question. Here, certain facts are to be looked into. What is pleaded in the plaint is that there is a right of way leading through the Estate of the defendants from the demised premises up to Reay Road (Main gate). it is also stated in the plaint that this road has been used by the plaintiffs/tenants from the very inception of their tenancy since September 1940. It is also stated that other tenants and occupants have been using this road. There is no mention of the fact that there is admittedly another road providing for access from the plaintiff's demised premises to Darukhana, also a public road (Emergency gate No. 20). Apart from the fact that this was suppressed, it appears that the plaintiff's themselves had filed a suit in the Bombay City Civil Court being suit No. 2658 of 1963 as against these defendants, the landlords, for a declaration that they are entitled to use and enjoy the said gate No. 20 abutting on the 4th Lane, Darukhana, leading to the demised premises. Mr. Parekh has produced before me a copy of that plaint. In that plaint it has been stated that the said gate is meant for, and is adjacent to the plaintiffs' godown of which the plaintiffs are the tenants, and that at the inception of the tenancy of the predecessors-in-title of the plaintiffs, a licence was granted to them by the then landlords of the defendants to use the said gate, which licence was coupled with the grant of tenancy of the said godown and the open space. It has been further averred in that plaint that they have been using and enjoying the said gate for last more than 20 years (prior to the said suit) as a matter of right for the purposes of their business, for the ingress and agrees of human beings as well as for the ingress and egress of the lorries motor cars, bullock-carts, hand-carts etc. The suit was filed on the basis that right was being interfered with and, therefore, the plaintiffs had sought a declaration and injunction in that behalf. In reply to this plaint, the present landlords the defendants, had pointed out categorically that there was another entrance to the said premises from the main gate and that all the tenants and occupants of the said Estate used this main gate which on the Reay Road side for all the traffic. It was pointed out that gate No. 20, in respect of which they had filed the said suit, was not the normal access and that was to be used only as an emergency gate. It was also pointed out that the plaintiffs could have no right to use gate No. 20 as that was only an emergency gate and the access was always on the other side. The plaintiffs did not accept this contention of the defendants. On the other hand, they asserted that they were granted a licence to use gate No. 20 as a matter of right. It was their contention that the main gate was being used by the tenants on the other side of the Estate, while the tenants on the Darukhana side would use gate No. 20. It was also further denied by the plaintiffs that all the tenants and occupants of the Estate have to use the Reay Road Side entrance only. In other words, what they had pleaded twenty five years age is exactly contrary to what they have pleaded now. That suit came to be compromised and it was conceded by the defendants that the present plaintiffs shall be entitled to use the passage through gate No. 20 for the purpose of passing and repassing for themselves their servants, agents, as also for the person visiting them as well as for the purpose of passing and repassing the lorries, trucks, bullock carts, motors and other vehicles of the plaintiffs whether owned by them or hired by them as well as of other persons visiting them in the said premises, for loading and unloading or removing goods to and from their said premises or visiting them for any other purpose, and that the present defendants agreed to restore the use of gate No. 20 for the purpose, aforesaid. Nowhere in the consent terms it is said that the plaintiffs have reserved their right to use the other gate also. Therefore, prima facie if one goes through the consent terms, it becomes clear, as far as the plaintiffs are concerned, that if at all any right was reserved, it was only in respect of gate No. 20 and not in respect of the main gate abutting on the Reay Road side.
16. Mr. Rane however, submitted that it cannot be said that the plaintiffs had given up their right of way which is the subject matter of present suit. He also submitted that what was submitted in those proceedings was that ordinarily the tenants on the other side were using the gate on the Reay Road side while the tenants on this side used the emergency gate and, therefore, it cannot be said that the plaintiffs have given up their right of way as such.
17. But, the question is what is the basis of the plaintiffs' suit ? If it is a prescriptive right, there can be no such right. In this connection, Mr. Parekh cited the case of Jeenab Ali v. Allabuddin, 1, Calcutta Weekly Notes, 151. The relevant head-note is as follows:
"A tenant cannot, as against his landlord acquire by prescription an easement of way, in favour of the land occupied by him as tenant over other land belonging to his landlord. But a tenant is settled to a way of necessity over the adjoining land of his landlord".
18. The other case cited is the Full Bench judgment of the Allahabad High Court viz., Udit Singh and others v. Kashi Ram, I.L.R. 14 Allahabad 185. This was a case in which tenant alleged that he had acquired by user an easement of right of way over the adjoining land of his landlords. When the landlords sought to build a wall the tenant contended that that would interfere with the right of way claimed by him. Just as in the present case, in that case also, the tenant did not allege that the holding on which the right of way was claimed was let out to him nor did he allege that the landlords granted any such right of way as appurtenant to the holding, nor again did he allege that way was claimed as a way of necessity. He alleged that he was the tenant in occupation of the holding and had by user obtained a right of way against his landlords over the adjoining land. The learned Chief Justice, who headed the Bench of five Judges, observed......
''In my opinion it is contrary to common sense that any such right as is here alleged could possibly have been acquired. Such right could only have been acquired, if at all, in respect of the holding occupied by the plaintiff. That holding is the landlord's holding, and they, the landlords, are in possession of it through their tenant, the plaintiff. The plaintiff is not an owner claiming a right in respect of a dominant tenement over another, servient tenement; he is not claiming this right for on behalf of his landlords; but he is claiming it adversely to them, although for and on behalf of their property.'' In this, the learned Judge relied on the observation of Lord Cairns in the judgment in Gayford v. Mofatt, (1) B.L.R. 4 Ch. A. 133 wherein it has been said that on first principles, no such easement right can be conferred on a tenant as against his own landlord.
19. If it is a mere licence it cannot be enforced. If it is a licence coupled with the grant of tenancy, one can understand. But, in the present case, there is no such plea. In the earlier suit, in fact, that was the basis of the suit, and that right was ultimately conceded by a compromise. Therefore, if the plaintiffs think that they have another right of access, there should be a specific grant in that behalf. In the absence of any such plea the only right that can be enforced as against the landlords is the right of way by necessity and not otherwise. Mr. Parekh drew my attention to a Madras case of Bank of India v. Sarathy Bros., , in support of his contention that if the passage is a part of the lease the lessee would be entitled to the same, otherwise the lessee cannot insist on a right of passage unless it is of necessity. This has, in fact, been upheld when the case went to Supreme Court as . Thus, in all such cases where what was granted was only a bare licence to use a passage with a view to have access to the respective tenements without any interest being created in favour of the tenants over such a passage, there is no question of enforcing the same, excepting on the ground of necessity.
20. Therefore, in the present case, the access at the Emergency gate No. 20, has been granted by virtue of an express grant under the consent terms, in the previous case. If, in spite of this, the plaintiffs have been using the passage claimed in the present suit, there is no right in their favour. It is, at best, a licence. The fact that the passage becomes more convenient than the one granted, cannot convert the same to any right of way of necessity.
I, therefore, pass the following order :
I declare that the Bombay City Civil Court has jurisdiction to entertain and try the suit, but, not for the reasons as given by the learned Judge.
However, as far as the notice of motion is concerned, the impugned order stands set aside and the notice of motion is dismissed.
Rule is partly made absolute. However, in the circumstances of the case, the parties will bear their own costs.