The lower appellate Court has held that
legal heirs of deceased Baliram
as all
Vithoba Teli/Kalamkar
were not impleaded, the suit itself was not tenable. In
this regard, it is necessary to refer to the provisions of
Section 7(15) of the said Act. The term “tenant” means
and includes, when the premises are let for business, a
person using the premises for such purpose after the
death of the tenant. The respondent who claims to be a
legal heir of Baliram and who is also paying rent, would
therefore a tenant in occupation
of the premises that
were let out for business.
Insofar as the plea that other legal representatives
of deceased Baliram Vithoba Teli/Kalamkar were not
impleaded in the proceedings, it may be noted that the
same would not make the suit untenable. In
the case
of Shkuntala Vasant Pahadi and others Vs Purushottam
Vasant Pethe and others, reported in (2007) 3 SCC 123,
it was held that in absence of any allegation and proof
that the legal heir impleaded was malafidely neglecting
have the
the interests of other legal heirs, the same
would not
effect of the suit itself not being tenable
against one of the legal heirs. The
observation of the
lower appellate Court that only one tenant could
inherent tenancy rights on behalf other legal heirs is also
contrary to provisions of Section 7 (15) of the said Act.
Therefore, failure to implead other legal heirs would not
make the suit untenable as held by the lower appellate
Court.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY:
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 1815 of 2013
Dnyaneshwar Gulabrao Kalamkar,
.... Petitioner.
Ajitnath Jain Shwetambar Mandir
Trust Nagpur,
CORAM : A.S. Chandurkar, J.
DATE
: AUGUST 28, 2014.
Citation;AIR2015(NOC)204 Bom
By order dated 28-08-2013 notice for final disposal
of this writ petition was issued. Accordingly, I have heard
Shri M.G. Sarda, the learned Counsel appearing for the
H.D. Dangre, Advocate along with
petitioner and Shri
Shri A.N. Ansari, Advocate for the respondent.
Rule. Rule heard forthwith with the consent of
2.
parties.
The challenge in the present writ petition is to the
judgment passed by the learned District Judge-11,
Nagpur in an appeal filed under Section 34 of the
Maharashtra Rent Control Act, 1999 (for short, 'the said
Act').
By aforesaid judgment, the suit for eviction of
tenant which was decreed by the trial Court has been
dismissed by allowing the said appeal.
3.
The
petitioner/original
plaintiff
is
a
trust
registered under provisions of Bombay Public Trusts Act,
1950. As it was in need of the suit premises that was
occupied by the tenant, the trust filed Regular Civil Suit
No.239 of 2005 for eviction on the ground of the tenant
being in arrears of rent and that the trust required the
premises for the purposes of the trust.
The aforesaid
suit was filed against M/s Baliram Vithoba Teli/Kalamkar
through one D. Kalamkar. Written statement was filed
by D. G. Kalamkar claiming to be one of the legal heirs of
M/s Baliram Vithoba Teli/Kalamkar. The trial Court after
considering the material on record, decreed the suit
under provisions of Section 16 (1)(g) of the said Act.
of rent
respondent filed
Act.
was
not
permitted.
The
present
appeal under Section 34 of the said
arrears
However, eviction on the ground of the tenant being in
The appellate Court
allowed the appeal on two
grounds; firstly, that the suit as filed was against a dead
person and hence the same was not tenable. Secondly,
that the claim of the landlord was required to be
examined in terms of provisions of Section 16(1)(i) of the
said Act and as there were no pleadings or compliance of
the aforesaid provisions, the decree passed by the trial
Court was contrary to law. Hence, the trust has filed the
present writ petition.
4.
Shri M.G. Sarda the learned Counsel appearing for
the petitioner submitted that the suit was filed against
M/s Baliram Vithoba Teli/Kalamkar through D. Kalamkar
and hence, it could not be said that the same was filed
It was
further submitted that
against a dead person.
the pleadings in the plaint clearly indicated that the suit
premises was required by the trust for its activities and
hence the adjudication
by the trial Court under
provisions of Section 16(1)(g) of the said Act was proper.
He submitted that the case of the trust did not fall under
provisions of Section 16(1)(i) of the said Act and the
lower appellate Court has proceeded on a wrong premise
in that regard. The learned Counsel for the petitioner
relied upon the decision of this Court in the case
Mohanlal Kisanlal Agrawal and others
of
Vs Ajitnath Jain
Shwetambar Mandir Trust, Nagpur and others, reported
in 2011(2) Mh.L.J. 512, to demonstrate that the present
petitioner was the respondent therein and its claim was
considered
on merits.
The learned Counsel further
relied upon the decision of this Court in the case of
Sudha Sumant Barve
Vs
Ranjana Ramesh Padhye,
reported in 2013(4) Mh.L.J. 735, to urge that a suit filed
against a mother
children without
maintainable.
representing interest of her minor
impleadment
of the children was
The learned Counsel further relied upon
the decision of the Karnataka High Court in the case of
Annasaheb Balesha Waghe and others Vs Appasaheb
Dada Pommai and others, reported in 2008 (1) Civil LJ
130, to urge that
it was not necessary to file specific
cross objections and the findings recorded by the trial
could be shown to be
Court against the respondent
incorrect. He, therefore, submitted that the judgment
set aside.
Shri H.D. Dangre, the learned Counsel appearing
5.
passed by the lower appellate Court was required to be
for the respondent, on the other hand, submitted that
the lower appellate Court had rightly found that as the
petitioner desired to
construct a community hall and
temple, the case of the petitioner fell under provisions of
Section 16(1)(i) of the said Act.
He further submitted
that the appellate Court had taken into account the fact
that all legal heirs of deceased
Baliram Vithoba
Teli/Kalamkar were not impleaded and hence the suit
itself was not tenable. He further submitted that there
were
no proper pleadings to make out
bona fide need. It was further urged that
any case of
the present
writ petition is filed on 19-03-2013 while judgment of the
lower appellate Court is dated 21-03-2011 and hence,
the same suffers from delay and laches. He, therefore,
submitted that no interference was called
I have given anxious consideration
submissions
6.
jurisdiction.
for in writ
as made.
to the
I have also gone through the
pleadings of the parties and
judgments of the Courts
below. Insofar as the claim for eviction on the ground of
need of the trust is concerned, in para no.3 of the plaint
it has been stated as under :-
“3.
That
the
petitioner/trust
is
consonance with its aims and objects as
enshrined in the registration of the trust
wanted to build a temple and community
hall on the plot no.669, Anaz Bazar, Itwari,
Nagpur for its bonafide use, occupation and
purposes.”
It is to be noted that the landlord was a trust suing
through its trustee and under provisions of Section 16(1)
(g) of the said Act, where the landlord is a trustee of a
public charitable trust and the premises are required for
initiated under the said clause.
occupation for the purposes of trust, proceedings can be
The respondent in his
written statement specifically denied that there was any
need of the plaintiff trust to build any community hall or
temple. The claim therefore as made was opposed. The
trial Court after considering the case of the plaintiff
under provisions of Section 16(1)(g) of the said Act
ground.
proceeded to pass a decree for eviction on the said
The lower appellate Court, however, has
reversed the said finding on the ground that as the trust
required a premises for construction of community hall
and temple, it ought to have invoked provisions of
Section 16(1)(i) of the said Act.
7.
It is necessary to note that insofar as provisions
of Section 16(1)(g) of the said Act are concerned, when
the same are invoked by a public charitable trust on the
ground that it requires the premises for occupation for
the purposes of trust, there is no need to show
reasonable and bona fide need as contemplated by the
first portion of clause (g) of Section 16(1) of the said Act.
This issue is no longer res integra in view of the decision
Vs
of this Court in the case of Bandu Ravji Nikam
Acharyaratna Deshbushan Shikshan Prasarak Mandal,
Kolhapur,
reported in 2003(3) Mh.L.J. 472, where in it
has been observed thus :-
“4.
As
rightly
contended
by
the
respondent, since the respondent is a public
charitable trust, the requirement of pleading
as well as proof to establish the ground
under section 13(1)(g) of the Act would be
different than the one required by any other
landlord which is not a public charitable
trust.”
It is, therefore, clear that the requirement of pleading
and proof is slightly
different when the landlord is a
trustee of a public charitable trust. The only requirement
is that the trust is required to show that the premises
are required for the purposes for which trust is formed.
In para no.3 of the plaint, it has been specifically stated
that the premises were required for the bona fide use
and purpose for which the trust was created.
8.
Insofar as the need of the trust for
building
a
community hall and temple is concerned, it is not
necessary, that wherever any demolition of the tenanted
premises and construction thereafter is involved, the
landlord would be required to invoke provisions of
Section 16(1)(i) of the said Act. If a trustee of a public
required for
demonstrates that the tenanted premises
are
the purposes of the trust, even if such
purpose would
trust
involve
demolition of premises and
construction of new premises, that would not take the
case of trust out of the purview of provisions of Section
16(1)(g) of the said Act. In the case of Kunhamma alias
Lakshmi Ammas Children and another
Vs Akkali
Purushothaman and others, reported in (2007) 11 SCC
181, the Supreme Court held that merely because the
existing premises were required to be demolished, the
said aspect would not take out the case of the landlord
from the purview of his bona fide need.
9.
Insofar as provisions of Section 16(1)(i) of the said
Act are concerned, the same contemplate reasonable
and bona fide requirement of the landlord for immediate
purpose of demolishing the premises with a view to erect
a new building. When aforesaid provisions are compared
clear that
with provisions of Section 16(1)(g) of the said Act, it is
insofar as a public charitable trust is
concerned, it is not required to
prove
reasonable
or
bona fide need, but, it has only to prove that the
Therefore, merely because the tenanted
ig
the trust.
premises are required for occupation for the purposes of
premises were required for the purposes of the trust for
would not
constructing a community hall and temple, the same
have the effect on the case of such trust
falling under provisions of Section 16(1)(i) of the said
Act. The lower appellate Court, therefore, mis-directed
itself by invoking the provisions of Section 16(1)(i) of the
said Act.
10.
Insofar as the objection that the proceedings were
initiated against a dead person is concerned, it is to be
noted that the plaintiff had filed suit against M/s Baliram
Vithoba
Teli/Kalamkar
through
D.
Kalamkar.
Said
D. Kalamkar filed his written statement and contested
the suit on merits. It is no doubt true, that it has been
pleaded in the written statement that the proceedings
initiated by the petitioner were not maintainable for non
joinder of necessary parties. Further pleadings indicate
that the defendant also contested the proceedings on
merits in the capacity of being a tenant of the premises
in question. Similarly, against the decree as passed,
said D. Kalamkar filed appeal under Section 34 of the
having
been
said Act that was decided on 21-03-2011.
filed
against
M/s
The suit
Baliram
Vithoba
Teli/Kalamkar through D. Kalamkar, it cannot be said that
it was filed against a dead person.
11.
The lower appellate Court has held that
legal heirs of deceased Baliram
as all
Vithoba Teli/Kalamkar
were not impleaded, the suit itself was not tenable. In
this regard, it is necessary to refer to the provisions of
Section 7(15) of the said Act. The term “tenant” means
and includes, when the premises are let for business, a
person using the premises for such purpose after the
death of the tenant. The respondent who claims to be a
legal heir of Baliram and who is also paying rent, would
therefore a tenant in occupation
of the premises that
were let out for business.
Insofar as the plea that other legal representatives
of deceased Baliram Vithoba Teli/Kalamkar were not
impleaded in the proceedings, it may be noted that the
same would not make the suit untenable. In
the case
of Shkuntala Vasant Pahadi and others Vs Purushottam
Vasant Pethe and others, reported in (2007) 3 SCC 123,
it was held that in absence of any allegation and proof
that the legal heir impleaded was malafidely neglecting
have the
the interests of other legal heirs, the same
would not
effect of the suit itself not being tenable
against one of the legal heirs. The
observation of the
lower appellate Court that only one tenant could
inherent tenancy rights on behalf other legal heirs is also
contrary to provisions of Section 7 (15) of the said Act.
Therefore, failure to implead other legal heirs would not
make the suit untenable as held by the lower appellate
Court.
12.
Insofar as the submission of the learned Counsel
for the respondent that there is delay in approaching
this Court, it has been stated in para 16 of the
writ
petition that as there was some litigations against the
trustees and proceedings were required to be initiated
approaching this Court.
against the trust Authorities, some delay was caused in
Considering the fact that the
ground of need of the trust was being pursued by the
petitioner, it cannot be said that there is such delay on
part of the petitioner so as to hold that the claim sought
Therefore, in my view, the lower appellate Court
13.
to be agitated is belated or stale.
committed a serious error of jurisdiction by holding the
suit not to be tenable on the ground that all legal heirs of
the deceased tenant were not impleaded and secondly;
that its case fell within provisions of Section 16(1)(i) of
the said Act when in fact the same clearly fell within the
purview of Section 16(i)(g) of the said Act. I am satisfied
that the impugned judgment has resulted in miscarriage
of justice to the petitioner-trust. Hence, interference in
writ jurisdiction is clearly warranted. In view of the
aforesaid, the impugned judgment will have to be set
aside. As the claim of the petitioner under provisions of
Section 16(1)(g) of the said Act has not been considered
on merits, the appeal has to be directed to be re-decided
14.
by the lower appellate Court.
In view of aforesaid, I pass the following order :-
ORDER
Judgment dated 21-03-2011 passed by District
Judge-11, Nagpur in Regular Civil Appeal No.104 of 2008
is quashed and set aside. The appeal is remitted to the
lower appellate Court for fresh decision in accordance
with the observations made herein above. It is clarified
that this Court has not gone into the correctness of the
findings that are
recorded by the
trial Court and the
lower appellate Court should consider the appeal before
it
independently
without
being
influenced
by
the
observations of this Court. The parties to appear before
the lower appellate Court on 15-09-2014, so that
the
issuance of fresh notices can be dispensed with.
The
writ
petition
is
thus
partly
allowed
on
aforesaid terms with no order as to costs.
JUDGE
Deshmukh
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