Whether sub tenant is proper party to suit for eviction against tenant?

A bench of three learned Judges held that the claim or question as to the respective rights of the plaintiffs and the Second Defendant raised in the plaint certainly arose out of the Act and the language of Section 23 appeared wide enough to cover the same. That apart, it was held that under the ordinary law a decree for possession passed against a tenant in a suit for ejectment is binding on a person claiming title under or through that tenant and is executable against such person whether or not he was or was not a party to the suit. Though such a person may not be a necessary party to an ejectment suit against the tenant, the Supreme Court held, he is nevertheless, a proper party to the suit in order that the question whether the lease has been properly determined and whether the landlord is entitled to recover possession is decided in his presence so that he may have an opportunity to ensure that there is no collusion between the landlord and the tenant. Such a person could well be joined as a party to the suit as, to hold otherwise, would lead to a multiplicity of suits.

IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 553 and 4819 of 1990

Decided On: 28.08.2003

 Jivatsingh Dhansinghani Vs. Padma Hemandas and Ors.

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud, J.

Citation: 2004(3) BOM CR410

1. Both these Petitions under Article 227 of the Constitution are directed against a judgment and order dated 6th September, 1989 of the Additional District Judge, Pune. The suit for eviction filed by the landlord came to be dismissed. The dismissal of the suit by the Additional Small Causes Judge, Pune on 28th February, 1986 was affirmed by the Additional District Judge. Writ Petition No. 4819 of 1990 is by the landlord while Writ Petition No. 553 of 1990 is filed by the original Second Defendant who seeks to impugn that part of the judgment of the Court below in so far as it holds that he was not entitled to the benefit of the provisions of Section 5(11)(c) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947. For convenience of reference, it would be appropriate to refer to the parties as the landlord and the tenant.

2. The premises in the present case consist of a residential flat bearing Flat No. 5 of Block No. 3 situated in Krishna Niwas, Pudamjee Compound, Pune -2. The premises consist of two rooms one kitchen, a toilet and a balcony totally admeasuring 500 sq.ft. The premises were originally let out by the landlord to one Mrs. Mohini Tikamdas Buxani, who expired in 1979. The monthly rent of the premises was Rs. 80/- together with an amount of Rs. 23/- representing water and service charges and Rs. 4/- as the charges of the watchman. The First Defendant to the suit is the daughter of the original tenant while the Second Defendant is stated to be a cousin. The First Defendant is married and permanently resides in Spain. The Second Defendant who is the Petitioner before the Court in Writ Petition 553 of 1990 also has premises of his own being House No. 11, situated at Solapur Road, Pune. Some time prior to the death of the original tenant, her daughter, the First Defendant came to look after her. Upon the death of the tenant in April 1979, the landlord sought possession of the flat. By a communication dated 29th April, 1979, which was marked in evidence as Exh.24, the First Defendant as the daughter of the original tenant informed the landlord that she had contacted a Trustee (the landlord is a charitable Trust) to allow her to continue in the flat over a further period of 12 months on the understanding that she would hand over possession after the expiry of the period. This request, it was stated, had been accepted. In view of the above facts, the First Defendant requested the Managing Trustee of the trust to collect the monthly rent for the flat occupied by her from time to time.

3. The flat was not vacated upon the expiry of the period that was agreed upon and it was the case of the Trust that the First Defendant left Pune and inducted the Second Defendant into the premises. On 9th June, 1981, an advocate's notice was addressed on behalf of the landlord calling upon the Defendants to hand over possession of the premises and thereafter, Regular Civil Suit No. 2067 of 1981 was instituted in the Court of Small Causes, Pune for the recovery of possession along with the outstanding rent of Rs. 1,799.87 from 1st May, 1980 till 12th July, 1981 and for mesne profits.

4. Issues were framed in the suit and evidence came to be adduced. The first issue that was framed at the trial was whether the plaintiffs proved that after the death of the original tenant, the First Defendant had agreed to surrender her rights of tenancy with effect from 30th April, 1980. This issue was answered in the affirmative. That finding of the learned Trial Judge has also been affirmed in appeal by the Additional District Judge having regard to the document at Exh.24. As already noted, the First Defendant's letter dated 29th April, 1979 clearly reflected a statement of the First Defendant that in pursuance of the time which was granted to her to vacate the premises, she would be surrendering the tenancy with effect from 30th April, 1980. The finding of the learned Trial Judge on the first issue was, therefore, affirmed.

5. The learned Trial Judge held that the Second Defendant was not entitled to the benefit of the provisions of Section 5(11)(c). In so far as this aspect of the matter is concerned, the learned Trial Judge noted that it was evident from the record that the Second Defendant had his own residential premises consisting of House No. 11, situated at Solapur Road, Pune since 1949. The Second Defendant was in possession of those premises even when the suit for eviction came to be instituted. In evidence it had also been brought on the record that the Second Defendant had not brought with him anything from his own residential premises to the suit premises. The case of the Second Defendant was that he had started residing in the suit premises since 1978 and the original tenant had expired in February 1979. Both the learned Trial Judge and, in appeal the Additional District Judge have concurrently found that there was absolutely no evidence to show that the Second Defendant in fact started residing in the suit premises in 1978. The Second Defendant, noted the Trial Judge, was in possession of a ration card until then showing his address at the residence at Solapur Road, Pune. In view of these facts, the Trial Court held that the residence of the Second Defendant in the premises was essentially temporary or casual and that he never desired to reside in the suit premises as a member of the family of the original tenant. Residence for the purpose of Section 5(11)(c) cannot obviously mean a temporary residence. In the present case, the Trial Court held that if any relative of the tenant who is residing elsewhere comes to see the tenant who is seriously ill and had to remain there till the time of the tenant's death, he would not be entitled to the benefit of the provisions of Section 5(11)(c). The aforesaid finding has been affirmed in appeal by the Additional District Judge. The finding which has been arrived at by both the Courts below is absolutely correct. From the circumstances which have been already adverted to it is abundantly clear that the Second Defendant had temporarily come to the residential premises where the original tenant was residing, perhaps to look after her in her last days. The stay of the Second Defendant in the premises cannot be regarded as a residence of the Second Defendant with the tenant as a member of her family. The fact that the Second Defendant retained his own premises at Pune, the fact that the ration card continued to show his address in his own premises even until the judgment of the Trial Court and the circumstance that the Second Defendant had not brought with him anything from the original premises to the suit premises are sufficient to sustain the finding of the Courts below that the stay of the Second Defendant was merely of a temporary nature. The Second Defendant was, therefore, clearly not entitled to the benefit of the provisions of Section 5(11)(c). There is no merit, therefore, in the Petition which has been filed by the Second Defendant (Writ Petition No. 553 of 1990).

6. Despite the aforesaid findings, the Trial Court dismissed the suit for eviction, holding that the Second Defendant could not be regarded as a trespasser. The Trial Court held that the Second Defendant started residing in the premises though temporarily at the instance of the original Defendant and that, therefore, he could not be held to be a trespasser. This finding was affirmed by the Appellate Court. In addition, the Appellate Court held that even if it is assumed that the Second Defendant is not a tenant and a trespasser then also, a suit for ejectment against him would not lie before the Small Causes Court. That is the only ground on which the suit for eviction has been dismissed.

7. The approach, both of the learned Small Causes Judge as well as in appeal of the Additional District Judge, is misconceived. Once both the Courts have concurrently come to the conclusion that the Second Defendant has no individual right, title or interest in respect of the premises, the only conclusion possible was that the Second Defendant was not entitled to reside in the premises at all and he was a trespasser. Now in so far as the First Defendant is concerned, by her letter dated 29th April, 1979, she had clearly evinced her intention to surrender and relinquish the tenancy. Despite this position, the Additional District Judge held, in answer to Issue No. 3 that there was nothing on record to show that the tenancy had been validly terminated. This view is clearly contrary to the law laid down by the Supreme Court in Calcutta Credit Corporation Ltd. v. Happy Homes (Private) Ltd. MANU/SC/0343/1967 : [1968]2SCR20 . Mr. Justice J.C. Shah speaking for a bench of three learned Judges of the Supreme Court held, adverting to the provisions of Section 111(h) of the Transfer of Property Act, 1882 that a lease of immovable property is determined on the expiration of a notice to determine the lease or to quit or of intention to quit, the property leased duly given by one Party to the other. Once a notice is served determining the tenancy or showing an intention to quit on the expiry of the period of the notice the tenancy is at an end, unless with the consent of the other party to whom the notice is given the tenancy is agreed to be treated as subsisting. Whether the notice is given by the landlord or the tenant, the party to whom it is given is entitled to insist upon it and it cannot be withdrawn without the consent of both. Therefore, clearly the communication of the First Defendant dated 29th April. 1979 would amount to a surrender of the tenancy with effect from the expiration of a period of 12 months therefrom.

8. The finding of the learned Additional District Judge to the effect that even if the Second Defendant was a trespasser, a suit for eviction was not maintainable before the Court of Small Causes is contrary to the law laid down by the Supreme Court. Undoubtedly, the First Defendant was entitled, upon the death of the original tenant, to the benefit of the provisions of Section 5(11)(c) of the Rent Act. The First Defendant as the daughter of the original tenant was an heir of the deceased tenant. The suit was thus maintainable before the Court of Small Causes. In so far as the Second Defendant is concerned, the suit before the Small Causes Court would be maintainable in view of the judgment of the Supreme Court in Importers & Manufacturers Ltd v. Phiroze Framroze Taraporewala 1952 (55) B.L.R. 271. In that case, the First Defendant had allegedly sublet the premises to the Second Defendant. After a notice to the First Defendant to vacate the premises, the landlord filed a suit in the Court of Small Causes under Section 28 of the Rent Act. The landlord alleged that the subletting by the First Defendant to the Second Defendant was unlawful, because it was in breach of the terms of the tenancy, as well as on the ground that the statutory tenant was not entitled to create a subtenancy after the contractual tenancy was determined. Before the Supreme Court, it was urged that the Small Causes Court had no jurisdiction to entertain the suit in as much as the Second Defendant was alleged to be a trespasser. That contention was specifically negatived by the Supreme Court. A bench of three learned Judges held that the claim or question as to the respective rights of the plaintiffs and the Second Defendant raised in the plaint certainly arose out of the Act and the language of Section 23 appeared wide enough to cover the same. That apart, it was held that under the ordinary law a decree for possession passed against a tenant in a suit for ejectment is binding on a person claiming title under or through that tenant and is executable against such person whether or not he was or was not a party to the suit. Though such a person may not be a necessary party to an ejectment suit against the tenant, the Supreme Court held, he is nevertheless, a proper party to the suit in order that the question whether the lease has been properly determined and whether the landlord is entitled to recover possession is decided in his presence so that he may have an opportunity to ensure that there is no collusion between the landlord and the tenant. Such a person could well be joined as a party to the suit as, to hold otherwise, would lead to a multiplicity of suits.

9. In view of the aforesaid discussion and particularly having regard to the law laid down by the Supreme Court, I am of the view that the Court of Small Causes and in appeal, the Additional District Judge were clearly in error in declining to decree the suit for eviction. The First Defendant has surrendered the tenancy and in so far as the Second Defendant is concerned, he was rightly been held not to be entitled to the benefit of the provisions of Section 5(11)(c). In the circumstances, Writ Petition 4819 of 1990 is allowed. The judgment and order of the learned Additional District Judge in so far as the findings on Issue Nos. 2, 3 and 4 are concerned is clearly erroneous and is accordingly set aside. There shall be a decree for eviction as prayed. Rule made absolute in the aforesaid terms in Writ Petition 4819 of 1990. Writ Petition 553 of 1990 filed by the original Second Defendant shall, in the circumstances, stand rejected. Rule discharged in Writ Petition 553 of 1990.

No order as to costs.