Bombay High Court
Bombay Rent Act, Section 12(2) and (3)
(Bombay)
(Before A.M. Khanwilkar, J.)
Shankar Vishnu Sonar (Lohokare)
Versus
Kusum Gajanan Pawar
W.P. No. 3794 of 1991
(a) Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947), S. 12(2) and (3)(a) — Suit for ejectment under section 12(3)(a) on the ground of arrears of rent — Issue of demand notice — Assignee of original tenant in possession of the suit premises under a valid assignment — Landlord proceeding against the assignee along with the original tenant for ejectment — He must issue a valid demand notice to the assignee along with the original tenant — Only on compliance of the said obligation, cause of action to sue the tenant on the ground of arrears of rent would accrue to the landlord
Section 12(2) of the Bombay Rent Act is a statutory bar for institution of the suit against the tenant until a demand notice is issued to him and is duly served upon him in the manner provided for therein. Where the tenant happens to be an assignee, who is in possession of the suit premises in his own rights on account of a valid assignment and is allegedly in arrears of rent, a demand notice under section 12(2) must be given to him as well. In absence of such a notice to the assignee, the question of instituting ejectment suit against him on the ground of arrears of rent does not arise at all. The fact that the assignee may become aware about the contents of the demand notice sent to the original or head tenants does not extricate the landlord of his obligation to issue or address a valid demand notice to the assignee, if he wants to proceed even against the assignee along with the head-tenant for ejectment from the suit premises on the ground of arrears of rent. The requirement of section 12(2) is not a mere formality. It is a mandatory provision and only on compliance of the said obligation, the cause of action to sue the tenant on the ground of arrears of rent would accrue to the landlord. Non-compliance of the said mandatory requirement in any manner would result in dismissal of the suit for want of cause of action as the bar placed by sub-section (2) of section 12 of the Act is not lifted.
(Paras 10 and 19)
(b) Constitution of India, Art. 227 — Petition by tenant questioning validity of decree for possession on the ground of arrears of rent — Respondent landlord who had not challenged the refusal of decree on the ground of subletting by way of writ petition or cross objection cannot be heard on the said ground in the petition filed by the tenant. (2003) 5 SCC 150 and (1975) 1 SCC 858, Ref.
(Paras 14 to 17)
(c) Constitution of India, Art. 227 — Concurrent finding of fact against the plea of sub-letting in suit for ejectment by lower Courts — Held, cannot be overturned in exercise of writ jurisdiction.
(Paras 18)
(d) Civil Procedure Code, O. 41 — Adverse finding and conclusion reached in relation to ground of unlawful subletting — Challenge as to — Parameters to be kept in mind to permit such a challenge.
Power of the Court of Appeal is circumscribed by provisions under Order 41 of Civil Procedure Code to be exercised when the portion of the decree appealed against or portion of the decree held liable to be set aside or interfered by the Appellate Court is so inseparably connected with the portion not appealed against or left untouched that for the reasons of the latter portion being left untouched either injustice would result and/or inconsistent decrees would follow. The exercise of power by Court of appeal is subject to atleast three limitations: firstly, the power cannot be exercised to prejudice or disadvantage of a person not a party before the Court. Secondly, the claim given up or lost cannot be revived; and thirdly, such part of the decree which essentially ought to have been appealed against or objected to by a party and which that party has permitted to achieve a finality cannot be reversed to the advantage of such party.
(Paras 13)
1. This writ petition under Article 227 ot the Constitution of India takes exception to the Judgment and decree passed by the 12th Additional Judge, Pune dated 19-7-1991 in Civil Appeal No. 880/1987 which in turn has confirmed the Judgment and decree for possession of the suit premises passed against the petitioner-defendant No. 3 on the ground of arrears of rent by the IInd Additional Small Causes Judge, Pune dated August 1, 1987 in Civil Suit No. 4/1983.
2. Briefly stated, the premises in question consist of a shed-cum-room admeasuring about 40 feet × 18 feet situated at CTS No. 35, Sadashiv Peth, Pune. The case of respondent No. 1-plaintiff was that the aforesaid suit premises were let out to respondents 2 and 3 herein (defendants 1 and 2) for the purpose of running a laundry business. Whereas, the respondent No. 1 found petitioner (defendant No. 3) in possession of the suit premises sometime in 1980. Accordingly, respondent No. 1 issued legal notice to respondents 2 and 3 not only demanding arrears of rent but also terminating the tenancy. Copy of the said notice was marked to petitioner (defendant No. 3). On the basis of said notice, respondent No. 1 proceeded to institute Suit for possession of the suit premises against the defendants, namely, respondents 2 and 3 and petitioner herein, on the ground that the defendants 1 and 2 (respondents 2 and 3 herein) have unlawfully transferred the suit premises in favour of petitioner (defendant No. 3). Respondent No. 1 also alleged that the petitioner (defendant No. 3) without his consent in writing erected a permanent structure in the suit premises. Respondent No. 1 further alleged that in spite of legal notice and raising demand regarding arrears due from June 1980 to November, 1981 in terms of Demand Notice dated 22-10-1982 Exhibit 59, the defendants have failed and neglected to pay the arrears and were defaulters. On the above basis, respondent No. 1 (plaintiff) prayed for possession of the suit premises.
3. The said suit was resisted by the defendants. The defendants denied the allegation of unlawful subletting and instead asserted that a running business was transferred and assigned in favour of petitioner (defendant No. 3) by the respondents 2 and 3 (defendants 1 and 2) which was permissible in view of provisions of section 15 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as Bombay Rent Act) as applicable to the suit premises at the relevant time: Insofar as allegation of erection of permanent structure in the suit premises the same was also stoutly denied. In so far as ground of arrears of rent is concerned, the petitioner (defendant No. 3) principally, in the first place, submitted that rent was paid from time to time
directly to the plaintiff for which no receipts were issued. It was next asserted that petitioner (defendant No. 3) being a transferee/assignee of the running business was tenant within the meaning of section 5(11)(aa) of the Act. However, no notice of demand was addressed to the petitioner (defendant No. 3). The demand notice Exhibit 59 was addressed to defendant Nos. 1 and 2 only and a copy thereof was marked to the petitioner (defendant No. 3). It was contended that forwarding copy of the demand notice was not sufficient compliance of the mandatory requirement of issuance of demand notice even against the petitioner (defendant No. 3) being the transferee/assignee in respect of the running business conducted from the suit premises at the relevant time. The petitioner (defendant No. 3) also asserted that the running business was taken over by a partnership firm of which petitioner-defendant No. 3 was one of the partner. The other partner Shri Wagh, though a necessary party, was not impleaded, for which the suit suffered from non-joinder of necessary party. Broadly, on the above stand the defendants contested the suit.
directly to the plaintiff for which no receipts were issued. It was next asserted that petitioner (defendant No. 3) being a transferee/assignee of the running business was tenant within the meaning of section 5(11)(aa) of the Act. However, no notice of demand was addressed to the petitioner (defendant No. 3). The demand notice Exhibit 59 was addressed to defendant Nos. 1 and 2 only and a copy thereof was marked to the petitioner (defendant No. 3). It was contended that forwarding copy of the demand notice was not sufficient compliance of the mandatory requirement of issuance of demand notice even against the petitioner (defendant No. 3) being the transferee/assignee in respect of the running business conducted from the suit premises at the relevant time. The petitioner (defendant No. 3) also asserted that the running business was taken over by a partnership firm of which petitioner-defendant No. 3 was one of the partner. The other partner Shri Wagh, though a necessary party, was not impleaded, for which the suit suffered from non-joinder of necessary party. Broadly, on the above stand the defendants contested the suit.
4. The parties adduced oral as well as documentary evidence in support of their respective stand. On analysing the evidence on record, the trial Court, in the first place, took the view that non-joinder of another Partner of the petitioner (defendant No. 3), in the partnership firm who had purchased the running business conducted in the suit premises, would not militate against respondent No. 1 (plaintiff). The trial Court then answered the issue of erection of permanent structure on the suit premises against the plaintiff and in favour of defendants on the finding that the plaintiffs failed to establish the said allegation. Even the ground of unlawful subletting has been answered against the plaintiff and in favour of defendants. The trial Court has found that the defendants 1 and 2 (respondents 2 and 3 herein) had transferred their interest in the running business conducted from the suit premises in favour of defendant No. 3 which was permissible within the provisions of section 15 of the Bombay Rent Act read with the Government notification dated 24-9-1948. The only issue answered against the defendants was the ground of arrears of rent. The trial Court found that the demand notice dated 22-10-1982 Exhibit 59 was duly served upon the defendants and in spite of said notice the defendants failed and neglected to pay the amount as demanded therein or to raise dispute regarding standard rent by filing application before the Rent Court in that behalf within one month from the date of receipt of such demand notice. On this finding the trial Court answered the ground of arrears of rent against the defendants.
5. Insofar as the grievance of the petitioner (defendant No. 3) that no demand notice was issued to the petitioner, the trial Court has observed that copy of the notice was forwarded to the petitioner and in spite of being aware about such notice, the petitioner failed to pay the arrears of rent within the statutory period for which he would also suffer the consequence of eviction on the ground of default. The trial Court was of the view that the plaintiff could not be blamed also for the reason that the plaintiff was not aware about the status of defendant No. 3 in relation to the suit premises until the defendants filed their written-statement. In other words, the trial Court proceeded on the basis that intimation received by the petitioner (defendant No. 3) by way of notice dated 22-10-1982 (Exhibit 59) was sufficient to proceed even against the petitioner (defendant No. 3). Accordingly, the trial Court decreed the suit in favour of the plaintiff and
ordered the defendants to deliver vacant possession of the suit premises to the plaintiff. Against the said decree the petitioner (defendant No. 3) alone carried the matter in appeal before the District Court being Civil Appeal No. 880/1987. On the other hand, respondent No. 1 (plaintiff) filed cross objections challenging the opinion of the trial Court on the issue of unlawful subletting and illegal erection of permanent structure in the suit premises. The Appellate Court was pleased to dispose of the appeal as well as the cross objections together by common judgment and decree dated 19-7-1991. The Appellate Court confirmed the finding recorded by the trial Court on every singular issue and, therefore, dismissed the appeal preferred by the petitioner (defendant No. 3) and also the cross objections filed by respondent No. 1 (plaintiff). Against this decision present writ petition has been filed by defendant No. 3 only. No cross objection or cross petition has been filed by the plaintiff in relation to the other two grounds of eviction, which has been answered against him.
ordered the defendants to deliver vacant possession of the suit premises to the plaintiff. Against the said decree the petitioner (defendant No. 3) alone carried the matter in appeal before the District Court being Civil Appeal No. 880/1987. On the other hand, respondent No. 1 (plaintiff) filed cross objections challenging the opinion of the trial Court on the issue of unlawful subletting and illegal erection of permanent structure in the suit premises. The Appellate Court was pleased to dispose of the appeal as well as the cross objections together by common judgment and decree dated 19-7-1991. The Appellate Court confirmed the finding recorded by the trial Court on every singular issue and, therefore, dismissed the appeal preferred by the petitioner (defendant No. 3) and also the cross objections filed by respondent No. 1 (plaintiff). Against this decision present writ petition has been filed by defendant No. 3 only. No cross objection or cross petition has been filed by the plaintiff in relation to the other two grounds of eviction, which has been answered against him.
7. In the present petition, defendant No. 3 has primarily assailed the concurrent view taken by the two Courts below in relation to ground of arrears of rent on which decree of possession of the suit premises has been passed against him as well. More or less similar argument has been canvassed before this Court to assail the correctness of the view taken by the two Courts below on the said issue.
8. Having considered the rival submissions I would straightway observe that insofar as the findings recorded by the two Courts below against defendants 1 and 2 in respect of ground of arrears of rent are concerned, the same are unexceptionable. In that, both the Courts below have concurrently found that demand notice was issued by the plaintiff on 22-10-1982 Exhibit 59 which was duly served on the said defendants. In spite of service of the said demand notice the defendants 1 and 2 (tenants) did not bother to pay the amount as demanded in the said notice nor filed any application for fixation of standard rent within a period of one month from the receipt thereof. The inevitable consequence thereof was to order eviction of the tenants on the ground of arrears of rent within the meaning of section 12(3)(a) of the Act.
9. As aforesaid, the decree passed against defendants 1 and 2 on the ground of arrears of rent has not been challenged by the said defendants. However, the question is whether on the basis of said decree even the petitioner (defendant No. 3) would suffer the consequence of eviction. Indeed, the plaintiff approached the trial Court on the assertion that defendant No. 3 was a person claiming through the defendants 1 and 2, the tenants. If that case was to be accepted, it would necessarily follow that defendant No. 3 would be bound by the decree passed against defendant Nos. 1 and 2. However, the case of defendant No. 3 was that defendants 1 and 2 had transferred the running business along with the stock-in-trade and goodwill thereof in favour of the partnership firm of which he was one of the partner. Both the Courts below have accepted this stand of defendant No. 3. It has also been found by both the Courts below that such transfer/assignment of a running business was permitted by the provisions of section 15 of the Rent Act as it applied at the relevant time. For that reason, the defendant No. 3 cannot be labelled as trespasser or an unlawful subtenant, but has acquired the status of a tenant within the meaning of section 5(11)(aa) of the Act. This finding rendered by the two Courts below in the context of issue of unlawful sub-tenant has been allowed to become final as no writ petition has been filed by the plaintiff nor any cross objection has been filed in the present
writ petition to question the correctness thereof. Considering this finding, the fact that a decree of eviction has been passed against the head-tenant would make no difference. For, that decree would not affect the transferee/assignee who, in law, would be a deemed direct tenant of the landlord. It is only upon determination of that relationship of the defendant No. 3 by the landlord, the question of evicting the transferee/assignee would arise. Indeed, two Courts below have concurrently held that insofar as petitioner (defendant No. 3) is concerned, it is established from the record that copy of the demand notice dated 22-10-1982 Exhibit 59 was duly “forwarded” to the petitioner (defendant No. 3) and was received by him. Further, in spite of receipt of said demand notice, even the petitioner (defendant No. 3) failed and neglected to pay the amount towards arrears of rent as demanded in the said notice or filed application for fixation of standard rent within one month from receipt thereof. The fact proved that the notice was forwarded to the petitioner (defendant No. 3) and that it was received by the petitioner (defendant No. 3) cannot be overturned by this Court.
writ petition to question the correctness thereof. Considering this finding, the fact that a decree of eviction has been passed against the head-tenant would make no difference. For, that decree would not affect the transferee/assignee who, in law, would be a deemed direct tenant of the landlord. It is only upon determination of that relationship of the defendant No. 3 by the landlord, the question of evicting the transferee/assignee would arise. Indeed, two Courts below have concurrently held that insofar as petitioner (defendant No. 3) is concerned, it is established from the record that copy of the demand notice dated 22-10-1982 Exhibit 59 was duly “forwarded” to the petitioner (defendant No. 3) and was received by him. Further, in spite of receipt of said demand notice, even the petitioner (defendant No. 3) failed and neglected to pay the amount towards arrears of rent as demanded in the said notice or filed application for fixation of standard rent within one month from receipt thereof. The fact proved that the notice was forwarded to the petitioner (defendant No. 3) and that it was received by the petitioner (defendant No. 3) cannot be overturned by this Court.
10. The question is: whether merely because copy of demand notice, which was addressed to defendant Nos. 1 and 2, was “forwarded” to defendant No. 3, fulfils the mandatory requirement of due service of a demand notice on the defendant No. 3 within the meaning of section 12(2) of the Act. By now, it is well established position that, unless a notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in section 106 of the Transfer of Property Act, 1882, no suit for recovery of possession can be maintained by the landlord against the tenant. The fact that defendants 1 and 2 have been duly served with the said demand notice would be of no avail, in the fact situation of the present case. In law, defendant No. 3 would become the direct tenant of the plaintiff in terms of section 5(1l)(aa) of the Act, soon after the determination of tenancy of defendant Nos. 1 and 2. On acquiring such status the plaintiff was obliged to serve the defendant No. 3 with a notice in writing about the demand of the standard rent and permitted increases in the manner provided in section 12(2) of the Act. It is not in dispute that the demand notice dated 22-10-1982 Exhibit 59 has been addressed to only defendants 1 and 2 and at the end of the notice it is mentioned that copy is marked to defendant No. 3 (i.e. C.C. sent for information). There is a marked difference between the requirement of sending a demand notice-which is necessarily required to be addressed to a person then merely forwarding a copy of such communication. The latter, at best is in the nature of apprising the recipient of that communication of the fact of issuance of a legal notice to the addressee (i.e. defendant Nos. 1 and 2) by the sender (plaintiff). On the other hand, the legal requirement is of sending or addressing a notice in writing of the demand to the tenant, which postulates putting him to notice about non-payment of the rent and permitted increases which is due, and “calling upon him to pay” the same forthwith, In other words, where the tenant happens to be an assignee, who is in possession of the suit premises in his own rights on account of a valid assignment and is allegedly in arrears of rent, a demand notice under section 12(2) must be given to him as well. In absence of such a notice to the assignee, the question of instituting ejectment suit against him on the ground of arrears of rent does not arise at all. In that, section 12(2) is a statutory bar for institution of suit against the tenant until a demand notice is issued to him and is duly served
upon him in the manner provided for therein. The fact that the assignee may become aware about the contents of the demand notice sent to the original or head tenants does not extricate the landlord of his obligation to issue or address a valid demand notice to the assignee, if he wants to proceed even against the assignee along with the head-tenant for ejectment from the suit premises on the ground of arrears of rent. The fact that the plaintiff in this case was not aware that the defendant No. 3 (petitioner) was lawful transferee/assignee in the suit premises does not take the matter any further. The requirement of section 12(2) is not a mere formality. It is a mandatory provision and only on compliance of the said obligation, the cause of action to sue the tenant on the ground of arrears of rent would accrue to the landlord. Non-compliance of the said mandatory requirement in any manner would result in dismissal of the suit for want of cause of action-as the bar placed by sub-section (2) of section 12 of the Act is not lifted. A priori, even though respondent No. 1 (plaintiff) may have succeeded in getting ejectment decree against the defendants 1 and 2-the head tenants, that decree (insofar as the ground of default) will be of no avail against the assignee (defendant No. 3) unless it is shown that lawful demand notice was addressed also to transferee/assignee (defendant No. 3) and in spite of that notice he failed to pay the outstanding amount demanded in the said notice or file application for fixation of standard rent within a period of one month from the date of service of the notice.
upon him in the manner provided for therein. The fact that the assignee may become aware about the contents of the demand notice sent to the original or head tenants does not extricate the landlord of his obligation to issue or address a valid demand notice to the assignee, if he wants to proceed even against the assignee along with the head-tenant for ejectment from the suit premises on the ground of arrears of rent. The fact that the plaintiff in this case was not aware that the defendant No. 3 (petitioner) was lawful transferee/assignee in the suit premises does not take the matter any further. The requirement of section 12(2) is not a mere formality. It is a mandatory provision and only on compliance of the said obligation, the cause of action to sue the tenant on the ground of arrears of rent would accrue to the landlord. Non-compliance of the said mandatory requirement in any manner would result in dismissal of the suit for want of cause of action-as the bar placed by sub-section (2) of section 12 of the Act is not lifted. A priori, even though respondent No. 1 (plaintiff) may have succeeded in getting ejectment decree against the defendants 1 and 2-the head tenants, that decree (insofar as the ground of default) will be of no avail against the assignee (defendant No. 3) unless it is shown that lawful demand notice was addressed also to transferee/assignee (defendant No. 3) and in spite of that notice he failed to pay the outstanding amount demanded in the said notice or file application for fixation of standard rent within a period of one month from the date of service of the notice.
11. To get over this position, Counsel for the respondent (plaintiff) would submit that the respondent is entitled to support the decree passed by the two Courts below by persuading this Court to hold that the transfer in favour of petitioner (defendant No. 3) was not a lawful transfer or assignment. It was argued that if this submission were to be accepted, it would necessarily follow that the petitioner (defendant No. 3) would be bound by the decree for possession passed against defendant Nos. 1 and 2. However, when confronted with the position that respondent No. 1 has not bothered to challenge the concurrent opinion recorded by two Courts below on the issue of unlawful subletting and for which reason cannot be allowed to raise a new plea across the bar, Counsel for respondent No. 1 would submit that even without filing any cross objection or for that matter challenging the opinion recorded by the Lower Appellate Court while rejecting his cross objection, it is open to respondent No. 1 to support the decree for possession by assailing the finding of the two Courts below on the ground of unlawful subletting on the analogy of provisions of Order 41, Rule 22(1) of Civil Procedure Code. According to him, this issue is already answered in one of the latest decisions of our High Court in the case of Musaji Mohamadali Master v. Mr. Gulamali Dadabhai Amreliwala (deceased through LRs), reported in 2005 (2) All MR 320. In this judgment, single Judge of our High Court has taken the view that the procedure provided by the Civil Procedure Code will have to be followed in relation to filing and prosecuting petition under Article 227 of the Constitution, keeping in mind the purport of section 141 of Civil Procedure Code. In other words, filing of cross objection or cross appeal would be wholly unnecessary to challenge the adverse finding. Learned Counsel also placed reliance on the decision of the Apex Court in the case of Surya Dev Ral v. Ram Chander Rai, reported in 2004 (1) Mh.L.J. (SC) 633 : (2003) 6 SCC 675 which has generally considered the plenitude of power of this Court while exercising jurisdiction under Article 227 of the Constitution of India.
According to respondent No. 1, he is entitled to challenge the finding in relation to ground of unlawful subletting and support the decree of eviction on that ground even though the Courts below have answered the said issue against him. In the alternative, it is submitted that in any case it is open to respondent No. 1 (plaintiff) to challenge the adverse finding recorded by the Courts below on the issue of unlawful subletting and on that basis support the decree passed on the ground of arrears of rent, without asking for a decree on the ground of unlawful subletting, even if respondent No. 1 was to succeed in persuading this Court to overturn the concurrent findings recorded by two Courts below on that issue. According to Counsel for respondent No. 1 that would at best result in confirming the decree on the ground of arrears of rent by adopting different reasons and approach by this Court on the basis of established facts. Learned Counsel also placed reliance on the decision in the case of State of A.P. v. P.V. Hanumantha Rao (dead through LRs), reported in (2003) 10 SCC 121 which has generally observed that the remedy of writ petition is not against the decision of the subordinate Court, Tribunal or Authority but against the “decision making process”. It is further noted that in the “decision making process”, if the Court, Tribunal or authority deciding the case had ignored vital evidence and thereby arrived at erroneous conclusion or has misconstrued the provisions of the relevant Act or misunderstood the scope of its jurisdiction, the Constitutional power of the High Court under Articles 226 and 227 can be invoked to set right such errors and prevent gross injustice to the party complaining. On the assumption that this Court would be bound to consider the challenge to the finding on the issue of unlawful subletting, Counsel for respondent No. 1 has contended that this Court will have to enquire into the fact as to whether any legal evidence has been produced by the defendants to establish the factum of transfer or assignment was in respect of a going concern with stock-in-trade and goodwill thereof. It was argued that very recently this Court in the case of Dattatray Dagdoba Dhole v. Shaikh Javed Husen Hajrat decided on March 6, 2009 in Writ Petition No. 2458/1986 (since reported in 2009 (4) Mh.L.J. 560) had occasion to consider the efficacy of document such as deed executed on 1-4-1980 between the defendants 1 and 2 on the one hand and defendant No. 3 on the other. This Court has taken the view that such deed cannot be used against a person who is not party thereto. It was argued that if the said deed was to be excluded from consideration, no other contemporaneous evidence has been produced by the defendants to establish the fact that the transfer was in respect of a running business along with stock-in-trade and goodwill of a going concern. It was argued that the onus of establishing the fact of transfer/assignment is of a running concern along with stock-in-trade and goodwill thereof is on the person (in this case defendants) who asserts that position. On the above arguments it was contended that respondent No. 1 would be entitled to support the decree of possession passed against the defendants including petitioner (defendant No. 3) on the ground of unlawful subletting and in any case on the ground of arrears of rent upon reversing the finding recorded in relation to the ground of unlawful subletting by the two Courts below.
12. The above argument has been justly countered by the Counsel for the petitioner. The petitioner has rightly pressed into service exposition of the Apex Court in the case of Puran Singh v. State of Punjab, (1996) 2 SCC 205 which has dealt with the question as to whether the provisions of Code of Civil Procedure would govern the proceedings under Articles 226 and 227 of the Constitution. While dealing with this aspect the Apex Court has plainly observed that because of the explanation, occurring in section 141 of the Code, proceedings under Article 226 of the Constitution have been excluded. Hence, there is no question of making applicable the procedure of Code to writ proceedings. The Court went on to observe that procedure prescribed in respect of trial of a suit, if were to be made applicable to the writ proceedings then in many cases it may frustrate the exercise of extraordinary powers of the High Court under Articles 226 and 227 of the Constitution of India. The Court has concluded that it is open to make the procedure provided in the Code in regard to the suits applicable to any other proceedings in any Court of civil jurisdiction, but the explanation added to section 141 of the Code makes it amply clear that such procedure shall not include any proceedings under Article 226 of the Constitution. The Court went on to pose a question that once the proceedings under Article 226 of the Constitution has been excluded from the expression “proceedings” occurring in section 141 of the Code by virtue of the explanation, how on the basis of section 141 of the Code the procedure provided in the Code can be made applicable to proceeding under Article 226 of the Constitution? The Court has also observed that the High Court should be left to adopt its own procedure for granting reliefs to the persons concerned. The High Court is expected to adopt procedure which can be held to be not only reasonable but also expeditious and no useful purpose will be served by limiting the power of High Court by procedural provisions prescribed in the Code.
13. Assuming it is open to respondent No. 1 to challenge the adverse finding and conclusion reached in relation to ground of unlawful subletting, the parameters that will have to be kept in mind to permit such a challenge will have to be in consonance with the dictum of the Apex Court in the case of Banarsi v. Ram Phal, reported in (2003) 9 SCC 606. The Apex Court has observed that power of the Court of Appeal is circumscribed by provisions under Order 41 of Civil Procedure Code to be exercised when the portion of the decree appealed against or portion of the decree held liable to be set aside or interfered by the Appellate Court is so inseparably connected with the portion not appealed against or left untouched that for the reasons of the latter portion being left untouched either injustice would result and/or inconsistent decrees would follow. The exercise of power is subject to atleast three limitations: firstly, the power cannot be exercised to prejudice or disadvantage of a person not a party before the Court. Secondly, the claim given up or lost cannot be revived; and thirdly, such part of the decree which essentially ought to have been appealed against or objected to by a party and which that party has permitted to achieve a finality cannot be reversed to the advantage of such party.
14. In the present case, the third situation contemplated by the Apex Court is clearly attracted. In that, respondent No. 1, after the adverse opinion of the trial Court in respect of unlawful subletting, consciously filed cross objection when the decree for possession was assailed by defendant No. 3 before the Appellate Court. The said cross objection has been dismissed by the Appellate Court, respondent No. 1 did not chose to challenge the decision on the said cross objection by way of substantive writ petition or for that matter by filing formal cross objection after the
receipt of notice of admission of the present writ petition. In other words, respondent No. 1 has failed to appeal against that part of the decree or object thereto and permitted the same to achieve finality. Such party cannot be heard so as to reverse the finding recorded by the two Courts below to his own advantage to support the decree for eviction passed on the ground of arrears of rent.
receipt of notice of admission of the present writ petition. In other words, respondent No. 1 has failed to appeal against that part of the decree or object thereto and permitted the same to achieve finality. Such party cannot be heard so as to reverse the finding recorded by the two Courts below to his own advantage to support the decree for eviction passed on the ground of arrears of rent.
15. Besides, in para-15 of the same decision, the Apex Court has observed that the case where there are two reliefs prayed for and one is refused while the other one is granted and former is not inseparably connected with or necessarily depending on the other in an appeal against the latter, the former relief cannot be granted in favour of the respondent by the Appellate Court by exercising power under Rule 33 of Order 41. The present case arises out of suit for possession filed by respondent No. 1 (plaintiff) on more than one ground available under the provisions of Bombay Rent Act. Each ground is independent and mutually exclusive. In that, relief of possession in respect of each ground would be independent. It is a different matter if in a given case the landlord was to succeed on more than one ground and only one common decree for possession was to be passed by the Rent Court. Nevertheless, such a decree would be deemed to be a separate decree passed by the Rent Court in relation to separate ground which is separable and unconnected with the other (e.g., ground of arrears of rent and ground of unlawful subletting). Thus understood, it was imperative for the respondent No. 1 to challenge the refusal on ground of unlawful subletting by way of writ petition or atleast cross objection; and having failed to do so cannot be heard on the said ground in the writ petition filed by the tenant to question the validity of decree for possession on the ground of arrears of rent.
16. Reliance has been rightly placed by the Counsel for the petitioner on the decision of the Apex Court in T. Laksmipathi v. P. Nithyananda Reddy, reported in (2003) 5 SCC 150. In that case, the Court noted that before the High Court no challenge was made to the finding on the available grounds of eviction arrived at by the Courts below. In view of that, the Court observed that the result is that the finding as to the available grounds of eviction has achieved finality and is immuned from challenge before the Apex Court. Applying the same analogy, the argument of respondent No. 1 calling upon this Court to examine the correctness of the adverse finding recorded by both the Courts below on the issue of unlawful subletting cannot be countenanced.
17. Even if this Court were to entertain the grievance of respondent No. 1, it is well established position that the power of the High Court in exercise of writ jurisdiction under Article 227 of the Constitution is not the same as that of the Appellate Court jurisdiction. The Apex Court in the case of Bathuthmal Raichand Oswal v. Laxmibai R. Tarta, reported in (1975) 1 SCC 858 has observed that the High Court while exercising the jurisdiction under Article 227 does not interfere with the findings of fact recorded by the subordinate Court or Tribunal. Its function is limited to seeing that the subordinate Court or Tribunal functions within the limits of its authority. It cannot correct mere errors of facts by examining the evidence and reappreciate it. The jurisdiction cannot be exercised as a Court of appeal in disguise. The Apex Court went on to observe that if an error of fact, even though apparent on the face of the record, cannot be corrected by means of writ of certiorari, it should follow a fortiori that it is not subject to correction by the High Court in exercise of its jurisdiction under
Article 227. It is further observed that the power of superintendence under Article 227 cannot be invoked to correct an error of fact which the superior Court can do in exercise of its statutory power as a Court of appeal.
Article 227. It is further observed that the power of superintendence under Article 227 cannot be invoked to correct an error of fact which the superior Court can do in exercise of its statutory power as a Court of appeal.
18. Keeping in mind the scope of interference in exercise of writ jurisdiction under Article 227 even if this Court were to examine the correctness of the opinion recorded by the two Courts below on the ground of unlawful subletting that would not take the matter any further for respondent No. 1. Indeed, respondent No. 1 is justified in relying on the latest decision of this Court in the case of Dattatray Dagdoba Dhole (supra). However, in the fact situation of the present case, it will have to be concluded that the view taken by the two Courts below in relation to ground of unlawful subletting is not only a possible view but is unexceptionable. Both the Courts below have concurrently found that there was no reason to disbelieve the case of defendants that defendant Nos. 1 and 2 have transferred their running business in favour of defendant No. 3. The argument of respondent No. 1 that the business was in standstill position at the time when sale deed was executed has been negatived by both the Courts below on the finding that no such plea has been taken by respondent No. 1 in his pleadings. It was not the case of the plaintiff that the document relied by the defendants was a fake document or that it was not a transfer of a running business. On the other hand, the Courts below have concurrently found that the transfer was of a running business and which position has been admitted by the plaintiff on record. The plaintiffs witness No. 1 Ashok Pawar has conceded in his cross-examination that till 1980 defendant Nos. 1 and 2 were carrying on the business in the suit premises. The business was transferred on 1-4-1980 by a registered sale deed Exhibit 66. The other fact noticed by the Courts below is that as per the sale deed, the obligation was on defendant No. 3 to inform the plaintiff about the transaction. However, defendant No. 3 failed to do so. Morever, the rent in respect of the suit premises was offered till April 1980 by the original tenants-defendants 1 and 2. Those facts will make no difference to the concurrent findings reached by the two Courts below, as the Courts below have found that the plaintiff has admitted that when the transfer took place, it was a running business of defendants 1 and 2. That finding of fact cannot be overturned in exercise of writ jurisdiction.
19. Taking any view of the matter, therefore, I have no hesitation in concluding that the suit for possession against the petitioner (defendant No. 3) on the ground of arrears of rent could not have proceeded in absence of issuance of a valid demand notice against him. In that view of the matter, although the decree would stand confirmed as against defendants 1 and 2, the same will have to be overturned insofar as petitioner (defendant No. 3) is concerned. In view of the above, it is not necessary for me to burden this judgment with the issue raised before the Appellate Court that the suit filed in the present form was bad on account of non-joinder of necessary party [i.e. the partner of petitioner (defendant No. 3) in the partnership firm which took over the running business of defendants 1 and 2].
20. Accordingly, this writ petition succeeds. The impugned judgment and decree passed by the Appellate Court as well as the trial Court are set aside to the extent it is passed against the petitioner (defendant No. 3); and instead the suit is dismissed only as against petitioner (defendant No. 3) with no order as to costs.
Writ petition allowed.
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