It has been held that the tenant
has no vested right under the Rent Act, as the tenant has only a
protective right. In the present case, undisputedly no proceedings
were instituted under the Bombay Act (repealed Act) nor were pending on the date on which the Bombay Act was repealed.
In view of above, it cannot be said that the Courts below
have committed an error of law in passing a decree for possession by
holding that the suit was maintainable invoking the ordinary civil
jurisdiction of the Civil Court under Section 9 of the Civil Procedure
Code, though the suit was not filed under the Bombay Rents, Hotel
and Lodging House Rates Control Act, 1947.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Shri Anil Dhondu Shinde,
Versus
Shri Govind Jagnnath Samant,
Coram : R.K. Deshpande, J.
Dated : 14 August, 2014
Citation; 2014(6) ALLMR 575,2014(6)ABR375
Regular Civil Suit No.657 of 1991 was filed by two brothers,
namely, Anil Dhondu Shinde and Kishore Dhondu Shinde against the
original owner of the suit property, namely, Govind Jagannath
Samant, joined as the defendant No.1. The lessee of the suit property,
Laxman Vishnu Parulekar, was joined as the defendant No.2 along
with his wife Chhaya Laxman Parulkar as the defendant No.3. It is
was for declaration that the defendant No.1 has no right to obstruct
the entry of vehicles and disturb the possession of the plaintiff and
also for a decree of injunction permanently restraining the defendants
from disconnecting the electric supply and using the 10 feet road from
Regular Civil suit No.814 of 1991 was filed by the owner of
2.
the suit property.
the suit property – Govind Jagannath Samant against
Laxman Vishnu Parulekar and Chhaya Laxman Parulekar, joined as the
defendant No.1 and the defendant No.2 respectively in the capacity as
lessees of the suit property. Anil Dhondu Shinde and Kishore Dhondu
Shinde were joined as the defendant Nos.3 and 4 and a decree for
possession of the suit property was claimed against all the defendants
on the ground that the defendant Nos.1 and 2 have sublet the suit
property to the defendant Nos.3 and 4 without prior written consent
of the plaintifflandlord and have thereby committed breach of the
terms and conditions of lease, resulting into the consequences of
termination of lease by issuing a notice dated 2451991 under Section
106 of the Transfer of Property Act, 1882, duly received by the
3.
defendants.
Special Civil Suit No.947 of 1993 was filed by two brothers
Anil Dhondu Shinde and Kishore Dhondu Shinde against the owner of
the suit property – Govind Jagannath Samant, joined as the defendant
No.2 and the lessees Laxman Vishnu Parulekar and Chhaya Laxman
Parulekar, joined as the defendant Nos.1 and 3 respectively. It was a
suit for specific performance of the agreement to sell dated
30111990 and declaration dated 2491991, said to have been
executed in favour of the plaintiffs.
All the three suits were tried together by a Court of Civil
4.
Judge, Senior Division at Thane, in exercise of its ordinary civil
jurisdiction under Section 9 of the Civil Procedure Code, 1908. The
parties led common evidence and all the suits were decided by a
common judgment on 3032002. The Trial Court dismissed Special
Civil Suit No.947 of 1993 for specific performance of the contract and
also Regular Civil Suit no.657 of 1991 for injunction filed by two
brothers Anil Shinde and Kishore Shinde. However, it passed a decree
for delivery of possession of the suit property in favour of the owner
Govind Jagannath Samant, who was the plaintiff in Regular Civil Suit
5.
No.814 of 1990.
Anil Shinde and Kishore Shinde, two brothers, filed three
appeals, namely, Civil Appeal Nos.160 of 2002, 161 of 2002 and 162
of 2002 challenging the judgment and decree passed by the Trial
Court in all the three suits on 3032002. All these appeals have been
dismissed by the Appellate Court by its common judgment and order
dated 2782003. The decision given by the Appellate Court in
appeals arising out of Special Civil Suit No.947 of 1993 for specific
performance of the contract, and Regular Civil Suit No.657 of 1991 for
injunction – both filed by two brothers, Anil Shinde and
Kishore Shinde have attained finality. The present second appeal
challenges a decree for possession passed by the Trial Court in Regular
Civil Suit No.814 of 1991, as has been confirmed in Civil Appeal
No.161 of 2002 by the Appellate Court, which has dismissed the
appeal.
6.
On 1122004, this Court admitted the second appeal on the
substantial question of law framed in Ground No.(e) of the memo of
appeal, which is reproduced below :
That both the Lower Courts have acted against law and
thereby committed an error in giving judgment and
further ought to have held that the suit of the
Respondent is not maintainable under law, as the suit is
not filed under Bombay Rent Act.”
“(e)
Except the aforesaid substantial question of law, no other substantial
question of law has either been framed or has been urged by the
The findings of fact recorded by the Courts below giving rise
7.
appellants.
to the substantial question of law, need to be stated. The original
plaintiff is undisputedly the owner of the suit property. By a
registered agreement of lease dated 421976, the property was leased
out in favour of the defendant No.1 Laxman Vishnu Parulekar for a
period of 98 years containing Clause (12), which is reproduced
below :
“12. Not to let out or give on licence any portion of the said
building to any person, except with the prior written
consent of the lessor, which consent may be granted in
the sole discretion of the lessor.”
The finding of the Trial Court is that by agreement to sell
dated 30111990, the defendant Nos.1 and 2 have agreed to transfer
the suit property to the defendant Nos.3 and 4 without any authority
and they are also illegally put in possession of the suit property. It has
also been held that defendant No.1 has sublet or assigned the
possession of the premises in favour of the defendant Nos.3 and 4
without prior consent of the plaintiff. It is also a finding recorded that
the defendant No.1 had no right to sublet the suit premises to the
defendant Nos.3 and 4. The Appellate Court has held that the
possession of the defendant Nos.3 and 4 is that of the trespassers. It is
the finding recorded that the defendant No.1 has committed breach of
the terms and conditions of the leaseagreement [Clause No.(12)] by
handing over possession of the suit premises to the defendant Nos.3
and 4 and hence the plaintiff is entitled to a decree for possession of
the suit property on the basis of the termination of lease in accordance
with Section 106 of the Transfer of Property Act. These findings are
also confirmed in appeal by the Appellate Court.
8.
Accepting the aforestated findings of fact recorded by both
the Courts below, Shri Gorwadkar, the learned counsel appearing for
the appellants, proceeds to develop his argument. He submits that the
lease in respect of the 'open land' is covered by the Bombay Rents,
Hotel and Lodging House Rates Control Act, 1947 (for short, 'the
Bombay Act'), as it would be the 'premises' covered by Section 5(8) of
the Bombay Act. He submits that the grounds on which the Courts
below have passed a decree for possession and maintained it, are
covered by Sections 12 and 13 of the Bombay Act. According to him,
the matter is fully governed by the Bombay Act, which confers
exclusive jurisdiction upon the Courts constituted under Section 28 of
the Bombay Act. He submits that the jurisdiction of the Court other
than one referred to under Section 28 of the Bombay Act is expressly
barred. According to him, the decree in question has not been passed
by a Court constituted under Section 28, but it has been passed by the
Court of Civil Judge, Senior Division, Thane, in exercise of its ordinary
civil jurisdiction under Section 9 of the Code of Civil Procedure read
with Section 24 of the Bombay Civil Courts Act, 1869. He, therefore,
submits that the decree passed being in lack of inherent jurisdiction
becomes nullity. He has relied upon the decisions of the Gujarat High
Court in Mohmad Husain Chotumiya Shaikh v. Taraben Manilal Shah,
reported in (1991) 1 GLR 585; and Govindbhai Parshottamdas Patel v.
New Shorrock Mills, reported in AIR 1984 Guj 182.
9.
Shri Ram Apte, the learned Senior Counsel appearing for the
respondent No.1, has invited my attention to the stand taken by the
appellants/defendant Nos.3 and 4 in their written statement and
submits that the objection raised by the Trial Court was regarding the
pecuniary jurisdiction of the Court of Civil Judge, Senior Division to
entertain, try and decide the suit. According to him, the jurisdictional
facts, which are material to raise the question of lack of inherent
jurisdiction because of the bar created under Section 28(1)(b) of the
said Act, have not been pleaded in the written statement. He submits
that even if the suit was to be tried under Section 28(1)(b) of the
Bombay Act, it would be the same Court of Civil Judge, Senior
Division, which has passed the decree in the present suit. He submits
that the forum does not change and no prejudice is caused merely
because the specific provision invoking the jurisdiction of the said
Court under Section 28(1)(b) of the Bombay Act has not been
mentioned. He has relied upon the decision of the Apex Court in
Kamla Devi Budha v. Hem Prabha Ganguli, reported in
(1989) 3 SCC 145, for the proposition that the instant suit can be
treated as one filed under Section 28(1)(b) of the Bombay Act.
Inviting my attention to the pleadings of the defendant Nos.1, 3 and 4,
he submits that it is a case of surrender of tenancy by the defendant
No.1, the original lessee, and in view of the stand taken by the
defendant Nos.3 and 4, it is not a case of claiming protection of the
Bombay Act. They are held to be trespassers. Shri Apte, the learned
Senior Counsel, has relied upon the decision of the Division Bench of
this Court in Ratanlal v. Chanbasappa, reported in AIR 1978 Bombay
10.
216.
The rights and liabilities of the lessor and the lessee or the
landlord and the tenant are governed by the general law of Indian
Contract Act and the Transfer of Property Act, which are the central
legislations. The disputes in respect of such rights and liabilities can
be resolved by invoking ordinary civil jurisdiction of the Civil Court
under Section 9 of the Civil Procedure Code. The rent laws are the
special enactments made by the State Legislatures to provide
additional protection to the tenants by regulating the rates of rent,
repairs of premises, eviction of tenants, etc., and provide a special
machinery or the forum to decide the disputes in respect of it. The
special law does not abrogate or repeal the general law and the
remedies provided therein, but it merely keeps it in a dormant state.
The landlord is not permitted to snap his relationship with the tenant
merely by his act of service of notice to quit under Section 106 of the
Transfer of Property Act, as is permissible under the general law.
spite of service of notice to quit, the rent law says that the tenant
continues to be the tenant enjoying the rights of a lessee and cannot
be evicted unless the grounds for eviction as are stipulated therein are
made out.
The Bombay Rents, Hotel and Lodging House Rates Control
11.
Act, 1947 was brought into force with effect from 1911948 with a
view to amend and consolidate the law relating to the control of rents
and repairs of certain premises, or rates of hotels and lodging houses
and of eviction and also to control the charges for licence of premises,
etc. It was made applicable to the Bombay area of the State of
Maharashtra. Section 3 of the said Act deals with the commencement
and duration of the Act. Subsection (1) therein states that the Act
shall come into operation on such date as the State Government, may,
by notification in the Official Gazette, appoint in this behalf.
Subsection (2) therein states that it shall remain in force upto and
inclusive of the 31st day of March 2000 and shall then expire.
Subsection (3) therein states that Section 7 of the Bombay General
Clauses Act, 1904, shall apply upon the expiry of this Act or upon this
Act or any provision thereof ceasing to be in force in any area, as if it
had then been repealed by a Maharashtra Act. Section 6 therein deals
with the applicability of the Act to the premises let or given on licence
for residence, education, business, trade or storage in the areas
specified in Schedule I under Part II of the said Act. The definition of
'premises' under Section 5(8) includes any land not being used for
12.
agricultural purposes.
The lease in question was in respect of 'open land', which was
included in the definition of the 'premises' under Section 5(8) of the
Bombay Act. The provisions of the Bombay Act were applicable on the
date of filing of the suit in question on 10101991. If the findings of
fact recorded by both the Courts below are accepted, then on the
touchstone of the provisions of Sections 12, 13 and 28 of the Bombay
Act, which were then in force, the jurisdiction of the Court of Civil
Judge, Senior Division at Thane, constituted under Section 28 of the
said Act, was attracted and the jurisdiction of the Court other than it,
was expressly barred.
The suit in question was entertained, tried and
decided by the Civil Court in exercise of its ordinary civil jurisdiction
under Section 9 of the Civil Procedure Code. Obviously, the Court,
which decided the suit in question, suffered inherent lack of
jurisdiction to entertain such a suit, in view of the bar of jurisdiction
created under Section 28(1)(b) of the Bombay Act.
Once it is held that the ordinary civil jurisdiction of the Civil
13.
Judge, Senior Division under Section 9 of the Civil Procedure Code to
entertain the suit in question on 10101991 was barred under
Section 28 of the Bombay Act, the question as to whether a decree
passed by such Court on 3032002, i.e. after the repeal of the Bombay Act on 3012000, can be treated as nullity, needs to be decided.
The Legislature of the State has brought into force the
14.
Maharashtra Rent Control Act, 1999 (for short, “the Maharashtra Act”)
with effect from 3132000, on which date the notification in the
Official Gazette was issued, as required by subsection (3) of Section 1
therein. It applies to the premises let for the purposes of residence,
education, business, trade or storage in the areas specified in
Schedule I or Schedule II in terms of subsection (1) of Section 2 of
the said Act. Subsection (9) of Section 7 therein deals with the
definition of 'premises', which is reproduced below :
“(9) “premises” means any building or part of a building let
or given on licence separately (other than a farm building)
including,
(i)
the gardens, grounds, garages and outhouses, if
any, appurtenant to such building or part of a building,
(ii) any fittings affixed to such building or part of a
building for the more beneficial enjoyment thereof,
but does not include a room or other accommodation in a hotel
or lodging house.”
The open land is not covered by the definition of 'premises',
reproduced above. Thus, the Act has no applicability to the leases in
respect of open lands, whether for agricultural or nonagricultural
purpose.
Section 58 of the Maharashtra Act dealing with repeal and
15.
saving being relevant is reproduced below :
“58. Repeal and saving
(1) On the commencement of this Act, the following
laws, that is to say,
(a) the Bombay Rents, Hotel and Lodging house
Rates Control Act, 1947;
(b) The Central Provinces and Berar Regulation of
Letting of Accommodation Act, 1946 including the
Central Provinces and Berar Letting of house and
Rent Control Order, 1949l and
(c) the Hyderabad Houses (Rent, Eviction and
Lease) Control Act, 1954; shall stand repealed.
(2) Notwithstanding such repeal
(a) all applications, suits and other proceedings
under the said Acts pending, on the date of
commencement of this Act before any Court,
Controller, Competent Authority or other office or
authority shall be continued and disposed of, in
accordance with the provisions of the Acts so
repealed, as if the said Acts had continued in force
and this Act had not been passed;
(b) the provisions for appeal under the Acts so
repealed shall continue in force in respect of
applications, suits and proceedings disposed of
thereunder;
(c) any appointment, rule and notification made or
issued under any of the repealed Acts and in force on
the date of commencement of this Act shall, in so far
as they are not inconsistent with the provisions of this
Act, be deemed to have been made or issued under
this Act and shall continue in force until it is
superseded or modified by any appointment, rule or
notification made or issued under this Act;
(d) All prosecutions instituted under the provisions
of any of the repealed Acts shall be effective and
disposed of in accordance with the law.”
In view of subsection (1) of Section 58 above, the Bombay Act was
repealed on 3132000, that is the date on which the Maharashtra Act
was brought into force. Subsection (2) of Section 58 is a saving
clause, it takes care of all such transactions, which are in respect of all
such applications, suits and other proceedings initiated under the
Bombay Act and pending on the date of repeal of the said Act. Such
applications, suits or other proceedings are required to be continued as
if the Maharashtra Act had never been passed.
16.
Subsection (3) of Section 3 of the Bombay Act states that
Section 7 of the Bombay General Clauses Act, 1904 shall apply upon
the expiry of the Bombay Act as if it had not been repealed by the
Maharashtra Act. Hence, Section 7 of the Bombay General Clauses Act
being relevant, is reproduced below :
“7. Where this Act, or any Bombay Act, or Maharashtra Act,
made after the commencement of this Act, repeals any
enactment hitherto made or hereafter to be made, then unless a
different intention appears, the repeal shall not
(a) revive anything not in force or existing at the time at
which the repeal takes effect; or
(b) affect the previous operation of any enactment so
repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability
acquired, accrued or incurred under any enactment so
repealed; or
(d) affect any penalty, forfeiture or punishment incurred
in respect of any offence committed against any enactment
so repealed; or
(e)
affect any investigation, legal proceeding or remedy in
respect of any such right, privilege, obligation, liability,
penalty, forfeiture or punishment as aforesaid, and such
investigation, legal proceedings or remedy may be
instituted, continued or enforced, and any such penalty,
forfeiture or punishment may be imposed, as if the
repealing Act had not been passed.”
If the repealing enactment does not contain any saving clause or if the
saving clause in the repealing enactment is not applicable, then
Section 7 of the Bombay General Clauses Act can be invoked. Unless a
different intention is expressed by repealing enactment, the repeal
shall not revive anything not in force or existing at the time on which
the repeal takes effect or affect the previous operation of any
enactment so repealed or anything duly done or suffered thereunder
or affect any right, privilege, obligation or liability acquired, accrued
or incurred under any enactment so repealed or affect any
investigation, legal proceeding or remedy in respect of any such right,
privilege, obligation or liability, and such investigation, legal
proceeding or remedy may be instituted, continued or enforced as if
the repealing enactment had not been passed.
17.
The effect of repeal and saving clauses contained in the
repealing Act and Section 6 of the General Clauses Act, 1897, which is
in pari materia of Section 7 of the Bombay General Clauses Act, 1904
came up for consideration before the Apex Court in the case of Qudrat
Ullah v. Municipal Board, Bareilly, reported in (1974) 1 SCC 202. The
Apex Court has laid down the following principles on the question of
(1)
repeal of enactment and its effect.
If the repealing enactment makes a special provision
regarding pending or past transactions, it is this provision
that will determine whether the liability arising under the
(2)
repealed enactment survives or is extinguished.
In the absence of applicability of the saving clause in
the repealing statute, the result would be that a statute is
deemed not to have been on the statute book at all.
(3)
Section 6 of the General Clauses Act applies generally
in the absence of a special saving provision in the repealing
statute, for when there is one then a different intention is
indicated.
(4)
In any case, where a repeal is followed by a fresh
legislation on the subject, the Court has to look to the
provisions of the new Act to see whether they indicate a
different intention.
(5)
What is observed by Section 6 of the General Clauses
Act is – (a) previous operation of the repealed enactment,
(b) rights, privileges, obligations and liabilities acquired,
accrued or incurred under the enactment repealed, and
(c) investigations, legal proceedings and remedies in respect
of any such right, privilege, obligation or liability.
Applying the aforesaid principles of law, the question of impact of
Section 58 of the Maharashtra Act and Section 7 of the Bombay
General Clauses Act on the ordinary civil jurisdiction of the Court
under Section 9 of the Civil Procedure Code will have to be
considered.
18.
Subsection (2) of Section 58 of the Maharashtra Act makes a
special provision regarding pending and passed transactions and it is
this provision that will determine whether the liability arising under
the repealed enactment survives or extinguishes. It applies to all the
applications, suits or other proceedings instituted under the Bombay
Act and pending. It does not apply to the applications, suits or other
proceedings instituted under the law other than the Bombay Act. In
the absence of applicability of
subsection (2)
of Section 58 regarding saving, the result would be
that the repealed enactment is completely obliterated from its
19.
inception as if it never existed.
The suit in question was neither entertained under any
provision of the Bombay Act, nor was instituted in the forum provided
to resolve the dispute arising out of the operation of the Bombay Act.
It was instituted, tried and decided under Section 9 of the Civil
Procedure Code, which is the law other than the Bombay Act. The
provision of saving under subsection (2) of Section 58 of the Bombay
Act would not, therefore, apply to the suit in question. But for the
provision of Section 28(1)(b) of the Bombay Act, the ordinary civil
jurisdiction under Section 9 of the Civil Procedure Code was available
to entertain, try and decide the suit in question. Once a bar under
Section 28(1)(b) of the Bombay Act is lifted as a result of repeal on
3132000, the effect would be that such a bar never existed even on
the date of filing of the suit in question on 10101991; as a result, it
cannot be said that the decree passed by the Trial Court in question
was without jurisdiction.
20.
Clauses (a) to (e) of Section 7 of the Bombay General
Clauses Act would apply in the absence of there being any different
intention expressed under the repealing enactment. In the present
case, although the Bombay Act was applicable to the leases in respect
of open lands, the repealing Act, i.e. the Maharashtra Act, does not
apply to such leases; as a result, it is only the ordinary civil jurisdiction
of the Court under Section 9 of the Civil Procedure Code, which
becomes available. From the date of repeal of the Bombay Act on
3132000, the jurisdiction under Section 28(1)(b) of the Bombay Act
ceases to be available. Thus, the Legislature has made its intention
very clear that the clauses (a) to (e) of Section 7 of the Bombay
General Clauses Act shall not apply to any proceedings in respect of
leases of open lands. In view of this, the decree passed by the Trial
Court in question is not hit by clauses (a) to (e) of Section 7 of the
Bombay General Clauses Act and it cannot be treated as without
jurisdiction and nullity.
21.
In the decision of the Apex Court in the case of Qudrat Ullah,
cited supra, the impact of Section 6 of the General Clauses Act on
Section 3 of the repealed Act was considered. It was held that the
repealed Act had a limited duration of operation. Before the expiry of
the duration of the repealed Act, it was repealed. Section 3 of the
repealed Act provided that no suit without the permission of the
District Magistrate could be filed in any Civil Court against a tenant for
his eviction from any accommodation except on one or more grounds
specified therein. The Apex Court has held that the survival of the
right or continuation of the operation of the Act to the proceedings is
all that is ensured and not the expansion or extension of that right. It
is held that the right is circumscribed in content to the conditions set
out and limited in duration to the period beyond which the Act does
not exist. It has been held that to hold otherwise would be to give
more quantum of right to the party than he would have enjoyed had
the repeal not been made. The Apex Court has held that the previous
operation cannot be converted into sanctioning subsequent operation.
22.
As pointed out earlier, in the present case, the Bombay Act
was brought into force on 1911948 and subsection (2) of Section 3
therein stated that it shall remain in force up to and inclusive of the
31st day of March, 2000 and shall then expire. So, upon expiry of the
Bombay Act on 31st March, 2000, the provisions of general law of the
Indian Contract Act and the Transfer of Property Act along with the
jurisdiction of the Civil Court under Section 9 of the Civil Procedure
Code, come into operation from the suspended or dormant state. To
hold that the Trial Court acting under Section 9 of the Civil Procedure
Code had no jurisdiction to pass a decree after repeal of the Bombay
Act, would amount to extending the operation of the Bombay Act
beyond the date of its expiry on 31st March, 2000. The Apex Court has
held that such a course is not permissible.
In the decision of the Apex Court in the case of Vishwant
23.
Kumar v. Madan Lal Sharma and another, reported in
(2006) 4 SCC 1, the Apex Court considered the question of difference
between the rights of a tenant under the Rent Act and the rights of a
landlord. It has been held that the right of a statutory tenant to pay
rent in exceeding the standard rent or the right to get the standard
rent fixed are the protective rights and not the vested rights. It holds
that on the other hand, the landlord has rights recognized under the
law of contract and the Transfer of Property Act and the date on which
the Rent Act was withdrawn, the suspended rights of the landlord
revive. The Apex Court took support of the ratio of its earlier decision
in Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal and Co., reported in
(2001) 8 SCC 397, concerning the rights of landlord under
Section 14(1)(b) of the Rent Act. It was held that a ground of eviction
based on illegal subletting under Section 14(1)(b) of the Rent Act
would not constitute a vesting right of the landlord, but it would be a
right within the meaning of Section 6(c) of the General Clauses Act, if
proceeding for eviction is pending. It has been held that the tenant
has no vested right under the Rent Act, as the tenant has only a
protective right. In the present case, undisputedly no proceedings
were instituted under the Bombay Act (repealed Act) nor were pending on the date on which the Bombay Act was repealed.
In view of above, it cannot be said that the Courts below
24.
have committed an error of law in passing a decree for possession by
holding that the suit was maintainable invoking the ordinary civil
jurisdiction of the Civil Court under Section 9 of the Civil Procedure
Code, though the suit was not filed under the Bombay Rents, Hotel
and Lodging House Rates Control Act, 1947. The substantial question
of law is answered accordingly.
25.
There cannot be any dispute that if a case is made out and
proved under Section 111(f) and (g) of the Transfer of Property Act
regarding implied surrender and forfeiture on the ground of tenant
renouncing his character as such by setting up a title in third person or
by claiming title in himself, the provisions of the said Act would not be
attracted, as has been held by the Division Bench of this Court in
Ratanlal's case, cited supra. With the assistance of the learned counsel
appearing for the parties, I have gone through the averments made in
the plaint and the written statements of the defendant No.1 and the
defendant Nos.3 and 4. The case made out by the plaintiff in the
pleadings is of an unauthorized subletting by the defendant No.1 in
favour of the defendant Nos.3 and 4. The case is not made out either
of surrender of lease or forfeiture under Section 111(f) and (g) of the
Transfer of Property Act, 1882. The plaintiff has alleged breach of the
terms and conditions of the agreement. Though in para 6, the
averment is that the defendant No.1 has, in response to the letter
dated 2451991, agreed to hand over possession of the suit property,
the same has not been handed over. Unless there is evidence of
handing over possession by the lessee and accepting it by the lessor,
the question of surrender of tenancy either implied or express would
not arise merely on the basis of assurance to surrender the premises.
The questions of implied surrender and forfeiture of tenancy are the
questions of fact, required to be pleaded and proved. No issue was
framed by the Trial Court and the Appellate Court has also not
considered such aspect of the matter. In view of this, no decree can be
passed for possession on the ground either of implied surrender or
incurring of forfeiture by disclaimer. The principles laid down by the
Division Bench of this Court in Ratanlal's case, cited supra, would not,
26.
therefore, apply to the facts of the present case.
In view of above, the second appeal is dismissed. No order
27.
as to costs.
At this stage, the learned counsel appearing for the
appellants submits that the interim protection granted earlier by this
Court be extended for a further period of eight weeks. Shri Apte, the
learned Senior Counsel appearing for the respondent No.1, submits
that it should be subject to condition that the Receiver and the
appellants hand over the vacant possession of the suit premises to the
plaintiff after the expiry of eight weeks.
28.
In view of this, the interim protection granted by this Court is
extended for a further period of eight weeks from today, after the
expiry of which the Receiver and the appellants shall hand over the
vacant possession of the suit premises to the plaintiff, failing which the
plaintiff shall be entitled to recover the same from the Receiver and
the appellants with the costs of Rs.15,000/ per day till the date of
handing over possession. This is, of course, subject to the further
orders by the Apex Court, if any further proceedings are filed.
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