Thus, the present appellant having no privity of tenancy with the plaintiff, it is not open to him to challenge the plaintiff's suit for eviction on ground of bonafide requirement. He having been impleaded merely as a sub-tenant was and is entitled to oppose the suit only on ground of sub-tenancy.
IN THE HIGH COURT OF MADHYA PRADESH (GWALIOR BENCH)
Decided On: 15.01.2010
Harveer Singh and Subalal (Deceased) through his L.Rs.
Vs.
Shri Kishan Singh Tomar and Ors.
Citation: 2010(2) RCJ 21
This judgment disposes of Second Appeal Nos. 108/00, 62/00 and 206/00, as they arise from a common suit.
Subalal, the original plaintiff, instituted a suit for eviction and recovery of arrears of rent on 04.11.1985 against Harveer Singh and Shri Kishan Singh Tomar with allegations that the defendant No. 1 (Harveer Singh) had obtained the suit shop from the plaintiff on rent @ Rs. 400/- per month vide rent note dated 20.02.1980. He sublet it to defendant No. 2 (Shri Kishan Singh Tomar) and parted with possession of the suit shop in favour of defendant No. 2, who is running a shop of motor parts in it. Suit shop is required bonafide for the plaintiff's son, namely, Bahadurlal to start a business of grains.
Defendant No. 1 submitted his written statement and denied the claim of the plaintiff. He denied to have executed the alleged rent note and equally denied to have obtained the suit shop on rent from the plaintiff. He also denied to have parted with possession of the suit shop in favour of defendant No. 2. Alleged genuine requirement for the plaintiff's son was also denied.
Defendant No. 2 submitted a separate written statement. He asserted his possession as tenant of the plaintiff on account of having obtained the suit shop on rent @ Rs. 25/- per month under oral tenancy. He stated that defendant No. 1 was never a tenant in the suit shop and defendant No. 2 was not and is not sub-tenant of defendant No. 1. Alleged genuine need for the plaintiff's son was also denied.
During pendency of the suit, written statement was amended by defendant No. 2 and it was pleaded, in specific, as a special plea that the plaintiff was not owner and occupant of the suit shop on the date of the institution of the suit, therefore, he has no right to seek eviction. In the light of the aforesaid amended version, plaintiff amended the plaint and pleaded that the mutual partition between his sons was accepted by the Municipality, Morena on 01.07.87 and accordingly the suit shop was allotted to the share of Bahadurlal, plaintiff's son, whose need was pleaded in the plaint.
After the complete trial, learned trial judge vide judgment and decree dated 31.03.98 granted a decree for eviction with a finding that the defendant No. 1 had obtained the suit shop from the plaintiff on rent @ Rs. 400/- per month vide rent note dated 20.02.1980. Suit shop is required bonafide for the business of grain-merchant of Bahadurlal, the plaintiff's son. Defendant No. 2 has not occupied the suit shop as a tenant of the plaintiff and is rather a sub-tenant. Accordingly, a decree under Sections 12(1)(b) and (f) of the M.P. Accommodation Control Act, 1961 (for brevity "the Act") was granted in favour of the plaintiff with the arrears of rent and mesne profits @ Rs. 2000/- per month w.e.f. 01.04.1983.
Aggrieved by the aforesaid, defendants No. 1 and 2 preferred separate civil appeals bearing numbers 55A/98 and 42A/98, respectively. Leaned lower appellate judge found that the defendant No. 1 has sublet the suit shop to defendant No. 2 and that the suit shop is bonafide required for the business of grain-merchant of Bahadurlal, plaintiff's son. Accordingly, on these two grounds, judgment and decree of the learned trial judge was confirmed. However, the judgment and decree with regard to mesne profits @ Rs. 2000/- per month has been set aside and instead the same @ Rs. 400/- per month is granted.
Aggrieved by the aforesaid, defendant Nos. 1 and 2 preferred Second Appeal Nos. 108/00 and 62/00, respectively, containing challenge to eviction on ground under Sections 12(1)(b) and (f) of the Act. Simultaneously, plaintiffs/appellants preferred Second Appeal No. 206/00 for grant of future mesne profits @ 2000/- per month.
Appeals are admitted and heard on the following substantial questions of law:
(i) Second Appeal No. 108/2000:
1. Whether in a suit of eviction a decree can be passed to handover the possession to someone else other than the plaintiff?
Whether the decree of eviction can be passed on the ground of subtenancy only on the ground that the rent-note is proved?
(ii) Second Appeal No. 62/2000:
1. Whether the suit filed by the plaintiff/respondent after the disputed shop falling to the share of another member of family was maintainable?
Whether the maintainability of the suit can be decided on the basis of receipts of rent when the rent was so received in ignorance of family partition and the transaction of payment of rent was governed by Section 50 of the Act?
Whether the receipt of rent in ignorance of the fact of partition was vitiated by mistake as to the right to receive rent and the transaction was void under Section 21 of the Indian Contract Act and in any case it was voidable under Section 22 of Indian Contract Act which could give no right under Section 2(b) Accommodation Control Act?
Whether acceptance of rent by the plaintiff from appellant Shri Krishna Singh attracted the principle of waiver and the right of the plaintiff to file the suit for eviction on the ground of subtenancy is waived and no decree could be passed on this ground?
(iii) Second Appeal No. 206/2000:
Whether on the basis of Naval Kishore Mangilal's case finding arrived at by first appellate court regarding mesne profit is without any basis and against evidence led by parties ?
Shri P.K. Patni, learned Counsel for the appellant, in S.A. No. 108/00, submitted that merely on account of the execution of the rent-note having been proved against defendant No. 1, decree for eviction cannot be legally granted on the ground of subtenancy.
On consideration of the aforesaid contention in the light of the material on record, it is observed that the case of the plaintiff, in specific, is that the suit shop was let out to defendant No. 1 vide rent note dated 20.02.1980. Suit shop was obtained by defendant No. 1 on rent @ Rs. 400/- per month from the plaintiff. It is further pleaded in the plaint that after obtaining the suit shop on rent, defendant No. 1 handed it over to defendant No. 2 who happened to be the uncle of defendant No. 1. Since then, defendant No. 2 has been in the actual possession of the suit shop and is running a business of motor parts in it. Defendant No. 1 denied to have executed rent-note in favour of the plaintiff and has also equally denied relationship of tenancy with the plaintiff. According to his own written statement, he is not in possession and it is the defendant No. 2 who is in exclusive possession of the suit shop. Original rent-note dated 20.02.1980 is on record as Ex.P-1 which is duly proved to have been executed by defendant No. 1. Thus, obviously, the case for eviction on ground under 12(1)(b) is made out since the suit shop is occupied by the defendant No. 2 alone without proof of privity of contract with the plaintiff. This finding has been recorded by the courts below after correct appreciation of the evidence on record, therefore, this Court does not find any infirmity in the grant of decree under Section 12(1)(b) of the Act in favour of the plaintiff. Substantial question of law No. 2 is accordingly answered against the appellant.
As regards substantial question of law No. 1, it is contended by Shri Patni, learned Counsel, that the suit shop was already allotted to Bahadurlal, plaintiff's son, prior to the institution of the suit, therefore, the suit instituted by Subalal is not maintainable. Reliance for this purpose is placed on the decision of the Apex Court in the case of T.K. Lathika v. Seth Karsandas Jamnada MANU/SC/0535/1999 : (1999) 6 SCC 632. In the case of T.K. Lathika (Supra), a petition for eviction under Section 11(3) of Kerala Buildings (Lease and Rent Control) Act, 1965, was submitted regardless of the third proviso to Section 11(3) which prescribed that a landlord whose right to recover possession arose under an instrument of transfer inter vivos would be entitled to apply for such possession only after the expiry of one year from the date of instrument.
In the case in hand, it is observed, firstly, that the defendant No. 1/appellant has not taken any such plea in his written statement. Secondly, eviction against appellant is also ordered under Section 12(1)(b) of the Act which enables the landlord to seek eviction of the tenant who has unlawfully sublet, assigned or otherwise parted with the possession of the whole or any part of the accommodation for consideration or otherwise. Plaintiff has already duly proved the rent-note in his favour which was executed by defendant No. 1 who is not in possession of the suit shop. Defendant No. 2 who is running his business in the suit shop has no contractual relationship of landlord and tenant with the plaintiff. Thus, case of the plaintiff that defendant No. 1 has parted with possession in favour of defendant No. 2 is clearly made out and no interference is called for in the decree for eviction on this ground.
It is further contended by Shri Patni that the learned lower appellate judge has illegally directed the defendant to handover possession of the suit shop to Bahadurlal since the latter is third party and no possession could be directed to be handed over except to the plaintiff.
This submission is also not impressive because during pendency of the appeal before this Court, original plaintiff Subalal has died and Bahadurlal being the son of the deceased/original plaintiff has already been brought on record as plaintiff/respondent. The law cited by Shri Patni, learned Counsel, as MANU/SC/0473/1981 : AIR 1981 SC 1113 M.M Quasim v. Manohar Lal Sharma and Ors. MANU/MP/0135/1971 : 1971 JLJ 102 Shankar Sahai v. Kanmal and Ors. and MANU/MP/0001/1965 : 1964 JLJ 436 Pyarelalsa v. Garanchandsa has no application in the case of decree for eviction on ground under Section 12(1)(b), more so, when Bahadurlal has already been brought on record in place of deceased Subalal. Accordingly, substantial question of law No. 1 is also answered against the appellant.
In the result, Second Appeal No. 108/2000 is found meritless and the same is hereby dismissed.
Shri K.N. Gupta, learned Senior Counsel, appearing for appellant in Second Appeal 62/2000 contended that the plaintiff in paragraph 6 of the plaint has admitted by virtue of amendment that the partition took place which was accepted by Municipality Morena vide order dated 01.07.1987. In paragraph 36 of the statement on oath plaintiff has further admitted that the partition between him and his sons took place in the year 1979 and an application for mutation in accordance with the partition was submitted in the year 1982. Relying upon Article 340 of the principle of Hindu Law (Mulla 18th Edition), it is contended that after partition in the year 1979, Subalal ceased to be owner of the suit shop and was not competent to represent the estate. Thus, the suit for ejectment at the instance of Subalal is incompetent.
Per contra, Shri S.B. Mishra, learned senior counsel, appearing for the plaintiff, it is contended, firstly, that it was merely a family settlement which was referred to by the plaintiff in paragraph 36. Secondly, no such specific plea is taken in the written statement by the appellant. Thirdly, Bahadurlal to whom the suit shop is allotted in partition is already impleaded in place of deceased Subalal, therefore, objection raised by the appellant's learned senior counsel is not liable to be accepted.
Considered the submissions and perused the record.
On close scrutiny of the plaintiff's statement, it may be seen that the plaintiff categorically admitted in paragraph 36 that there occurred partition between him and his sons in the year 1979. He did not speak about the alleged family settlement. Plaintiff has further admitted that pursuant to the said partition, application for mutation was submitted in the Municipality, Morena in the year 1982 and the mutation was accordingly made in the year 1987. Thus, by no stretch of imagination, it can be termed as a family settlement.
Again in paragraph 37, the plaintiff has stated that mutation was effected in the year 1987 after partition in the year 1979. Though he has stated that during this period he continued to be the owner, same cannot be accepted in law because the effect of partition is to cause severance of status and the separating members thenceforth hold their respective share as their separate property and the share of each member will pass on his death to his heirs (Mulla Art.340)
Shri K.N. Gupta, learned Senior Advocate, placed reliance for this purpose on MANU/PR/0049/1945 : AIR 1946 Privy Council 59 Jagdish Narain v. Nawab Said Ahmed Khan wherein it is observed that:
...the plaintiffs were suing in ejectment, and they could only succeed on the strength of their own title. There was no obligation upon the defendants to plead possible defects in the plaintiff's title which might manifest themselves when the title was disclosed. It was sufficient that in the written statements the defendants denied the plaintiffs' title, and under this plea they could avail themselves of any defect which such title disclosed.
On perusal, it is found that the defendant/appellant has not denied the ownership of the plaintiff. On the contrary, he has clearly stated in paragraph 16 of his written statement that the defendant No. 2 alone is occupying the suit shop as tenant of the plaintiff @ Rs. 25/- per month. This has not been found proved. Thus, the present appellant having no privity of tenancy with the plaintiff, it is not open to him to challenge the plaintiff's suit for eviction on ground of bonafide requirement. He having been impleaded merely as a sub-tenant was and is entitled to oppose the suit only on ground of sub-tenancy.
As regards substitution of Bahadurlal, son of the plaintiff in place of deceased/plaintiff alongwith other legal heirs, it is submitted by Shri K.N. Gupta, learned Senior Advocate that the requirement was pleaded for the son of the plaintiff. Bahadurlal was impleaded accordingly as legal representative of the deceased and not in his personal capacity. Therefore, ownership of Bahadurlal in respect of the suit shop cannot be invoked. Reliance for this purpose is placed on the decision of Hon. Supreme Court of India in the case of Vidyawati v. Man Mohan and Ors. MANU/SC/0318/1995 : AIR 1995 SC 1653 wherein it is observed that it is true that when the petitioner was impleaded as a party-defendant, all rights under Order 22, Rule 4(2) and defences available to the deceased defendant become available to her. In addition, if the petitioner had any independent right, title or interest in the property then she had to get herself impleaded in the suit as a party defendant in which event she could set up her own independent right, title and interest, to resist the claim made by the plaintiff or challenge the decree that may be passed in the suit.
In MANU/SC/0528/1986 : AIR 1986 SC 1952 Bal Kishan v. Omprakash, it is observed that Sub-rule 2 of Rule 4 of Order 22 of CPC authorised the legal representative of a deceased defendant to file an additional written statement or statement of objections raising all plea which the deceased-defendant had or could have raised except those which were personal to the deceased-defendant or respondent.
Law laid down by the Apex Court in the aforesaid two decisions has also been followed by this Court in the case of Munna Lal S/o Kedarnath Bhandari and Ors. v. Chironjilal S/o Lalluram and Ors. MANU/MP/1403/2006 : 2007(2) MPLJ 104.
It has already been observed above that the defendant No. 1/appellant did not raise any objection in his written statement about the ownership of the plaintiff. Defendant No. 2 is merely a sub-tenant and has no right to oppose the claim for eviction on the ground of bonafide need. He has merely a right to oppose eviction on the ground of sub-tenancy under Section 12(1)(b) of the M.P. Accommodation Control Act, which reads as under:
Section-12. Restriction on eviction of tenants
(1) Notwithstanding anything to the contrary contained in any other law or contract, no suit shall be filed in any civil court against a tenant for his eviction from any accommodation except on one or more of the following grounds only, namely:
(a) that the tenant has, whether before or after the commencement of this Act, unlawfully sub-let, assigned or otherwise parted with the possession of the whole or any part of the accommodation for consideration or otherwise;
(22) A bare perusal of the aforesaid makes it clear that the provision does not contemplate ownership of the landlord. Plaintiff has pleaded, in specific, which has been found proved that the defendant No. 1 was inducted in the suit shop by the plaintiff vide rent-note (Ex.P/1). According to the pleadings of defendants No. 1 and 2, defendant No. 1 is not in possession of the suit shop but it is the defendant No. 2 who is occupying it to the exclusion of the former. Thus, ground under Section 12(1)(b) is clearly made out. Plaintiff, right from the beginning, has been raising the need of Bahadurlal under Section 12(1)(f) of the Act. Bahadurlal is not a stranger but is the son of the plaintiff, who has acquired title by virtue of partition and has already been impleaded in the suit. This proven subsequent event cannot be ignored in view of the law laid down by the Apex Court in the case of Pasupuleti Venkateswarlu v. The Motor and General Traders MANU/SC/0415/1975 : AIR 1975 SC 1409. In paragraph 4, the Apex Court has observed:
...It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice--subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed.
Law is to be always applied in progressive manner and subsequent events must be taken into consideration to promote justice. Eviction has been claimed on various grounds including bonafide need of Bahadurlal, who is proved either exclusive owner or co-owner. Since the ownership is not contemplated for eviction on the ground under Section 12(1)(b) of the Act, it would not be appropriate to dismiss the suit for eviction despite the proof about bonafide need of Bahadurlal on the ground that his father was not competent to represent the estate, at the time of institution of suit. Bahadurlal has already been impleaded in the present litigation as plaintiff and his bonafide need has already been found established by the courts below in concurrent manner. Defendants have been unable to demonstrate any infirmity in such finding. Thus, it would not be appropriate and justiciable to expect Bahadurlal to institute a fresh suit despite his proven need by dismissing the suit on the ground of earlier partition. Bahadurlal has already been impleaded in the present suit and his alleged need has already been found genuine by the courts below. This being so, this Court declines to interfere in the impugned judgment on the substantial question of Law No. 1, at the instance of sub-tenant. Defendant No. 2 is merely a subtenant and has no right to contest the suit for eviction on the ground under Section 12(1)(f) of the Act, therefore, denial of ownership by him of the plaintiff is meaningless and the same cannot be availed by defendant No. 1. Hence, substantial question of law No. 1 is answered accordingly.
As regards substantial question of law Nos. 2, 3 and 4, it may be seen that there is no averment in the written statement either of defendant No. 1 or of defendant No. 2 that the rent was paid in ignorance of the family partition. On the contrary, specific plea of defendant No. 1/appellant is that he was never tenant in the suit shop. Contrary to this, it has been found by the courts below that the defendant/appellant was inducted into suit shop vide rent note marked as Ex.P-1. Further case of the plaintiff is that the possession of the suit shop was handed over by the defendant No. 1 to defendant No. 2 as a sub-tenant within the meaning of Section 12(1)(b) of the Act and decree for eviction on this ground has been sought. Defendant No. 2 has clearly admitted that he is in possession of the suit shop. Thus, in the totality of the facts and circumstances on record, it has been rightly found that the defendant No. 1/appellant has parted with possession in favour of defendant No. 2 and has incurred liability of eviction on ground under Section 12(1)(b) of the Act. There is no proof on record that defendant No. 2 had paid rent as a tenant to the plaintiff. Privity of contract between the plaintiff and defendant No. 2 is not found established by both the courts below in concurrent manner which is obviously finding of fact. Thus, this Court does not find any infirmity in the decree on the ground under Section 12(1)(b) of the Act and accordingly substantial questions of law No. 2, 3 and 4 are decided against the appellant.
In the result, Second Appeal No. 62/2000 stands dismissed for want of substance.
Shri S.B. Mishra, learned Senior Advocate appearing for the appellant in Second Appeal No. 206/2000 submitted that mesne profits @ Rs. 2000/- per month were rightly awarded and the same has been illegally denied by the learned lower appellate judge. This submission is opposed by Shri P.K. Patni, learned Counsel for respondent No. 2 placing reliance on MANU/SC/0366/1977 : AIR 1977 SC 2262 Smt. Chander Kali Bail and Ors. v. Jagdish Singh Thakur and Anr.. The decision in the case of Smt. Chander Kali Bail (Supra) is dated 06.10.1977 whereas the same Bench of the Apex Court by later decision dated 12.10.77 in the case of Shyam Charan v. Sheoji Bhai and Anr. 1977 SC 2270 awarded mesne profits at the rate higher than contractual. In another case of the Apex Court in the case of Nandita Bose (Smt.) v. Ratanlal Nahta 1988(1) MPWN 26 it has been held that the mesne profits can be awarded more than that of rent rate. This Court in the case of Prema Agarwal and Ors. v. Om Prakash Gautam and Anr. MANU/MP/0190/2001 : 2001(1) MPLJ 547, has awarded mesne profit at higher rate after summing up the law in paragraphs 5 and 6 as under:
5. It has been further submitted for the appellants that although the learned appellate court had relied upon a decision of the Apex Court in case of Chandra Kali v. Jagdish Singh Thakur reported in MANU/SC/0366/1977 : AIR 1977 SC 2262. However over-looked the case of Shyam Charan v. Sheoji Bhai AIR 1977 SC 2271 wherein contractual rent was Rs. 1,600/- per month while the mesne profits was awarded by the trial court at the rate of Rs. 4,000/- per month. This amount of mesne profits was not disturbed even up to the appeal before Hon'ble the Supreme Court.
In case of Nandita Bose (Smt.) v. Ratanlal Nahta 1988(1) MPWN 26, it has been held that mesne profits from the tenant can be claimed more than that of rent-rate. Hon'ble Supreme Court in the case of D.C. Oswal v. V.K. Subbiah and Ors. reported in MANU/SC/0041/1992 : AIR 1992 SC 184 has observed that judicial notice can be taken of the fact that rental has escalated everywhere and in appropriate cases the rent can also be raised. The Calcutta High Court in case of Jagat Narayan Singh v. Rabinder Mohan Bhandari and Ors. reported in MANU/WB/0030/1992 : AIR 1992 Calcutta 216 after expiry of lease period held tenant liable to pay mense profits for occupation of premises at prevalent rate and not at contractual rate. In a Division Bench decision of Delhi High Court in case of Vinod Khanna and Ors. v. Bakshi Sachdev (deceased Through L.R's and Ors.) reported in MANU/DE/0933/1995 : AIR 1996 Delhi 32, even when no evidence was led by landlord in respect of increase of rent, held, justified in fixing compensation mesne profits by taking judicial notice of the fact of increase in rent.
It is further observed that in the case in hand, defendant No. 1 (i.e. tenant) has incurred liability to be evicted by parting with possession of the suit shop in favour of the defendant No. 2 (sub-tenant) who is running the business of motor-parts in it for last number of years. When the tenant himself has invited action against him by making available to the landlord a ground for eviction, there would be no impropriety in awarding proper and reasonable mesne profits even at the rate higher to contractual one.
Consequently, substantial question of law in Second Appeal No. 206/2000 is answered in favour of the appellant and it is held that the appellant is entitled to receive mesne profit @ Rs. 1,000/- per month in the facts and circumstances of the case. Accordingly, Second Appeal No. 206/2000 stands partly allowed. The judgment and decree of the lower appellate court to this extent is set aside. Decree be modified accordingly. Appellant to receive cost of Rs. 5,000/- from appellants of Second Appeal No. 108/00 and 62/00, if already certified.
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