That brings me to the question of jurisdiction. It was argued by Mr. Gauba ' that after the amendment the suit must be treated as a suit for possession falling within the ambit of Section 28 of the Bombay Rent Act. It was said that this is a suit between a landlord and a tenant relating to the recovery of possession of premises, to which the provisions of the Act apply. It was also said that the suit relates to a claim and question arising out of the Act and its provisions. Therefore, so the argument proceeded, this Court has no jurisdiction to grant any relief to the plaintiffs or either of them. It was argued on the other hand that Section 28 applies to a suit between a landlord and a tenant when there is or has been a valid and binding tenancy between the parties, and admittedly there is here no lawful tenancy. There is, to my mind, considerable force in this argument. There is nothing in the definitions given in the Act which may throw any appreciable light on this short question Which arises for my decision. It would seem, however, from the definitions of the expressions landlord and tenant in the Act that the part of it which is relied on as relevant for the purposes of this suit deals only with tenancy legislation and applies to premises for which rent is payable by agreement of the parties or in respect of which standard rent is or can be fixed under the Act, It can hardly be disputed that no standard rent can be fixed by the Court in respect of a tenancy purported to be created by the parties but is prohibited by law and therefore illegal. I have little doubt that a tenancy between a landlord and a tenant contemplated by the Act and Section 28 can only be one which is recognised by law. Sub-tenancy which is prohibited in express and explicit terms by Section 15 of the Act cannot be said to create any right between the parties to it such as can flow from the relationship of landlord and tenant. No such relationship can arise between the parties to any such agreement or dealing which is illegal in its inception. An examination of the various provisions of the Act also lends support to the view that a sub-tenancy intended to be created in contravention of the provisions of the Act is not within the purview of Section 28. Section 13 of the Act, for instance, clearly contemplates a legal: tenancy as the basis of the rights of the landlord enumerated in it. For all these reasons I am unable to see how the present claim of plaintiff No. 1 based solely on his title and absence of any right or interest in the defendants in the premises in suit can fall within the operation of the Rent Act.
My answers to the issues that remain for determination are:
(1) In the affirmative.
12. My answer to the issue added at the instance of the plaintiffs is that plaintiff No. 1 is entitled to recover possession of the flat from the defendants.
13. My answer to the newly added issue about jurisdiction is that this Court has jurisdiction to grant relief to plaintiff No. 1.
IN THE HIGH COURT OF BOMBAY
O.C.J. Suit No. 901 of 1952
Decided On: 30.01.1957
Jiwanjirao Scindia Vs. Muzammil Khurshid
Hon'ble Judges/Coram:
S.T. Desai, J.
Citation:(1957) 59 Bom. L.R. 1011
1. The plaintiffs in the plaint as originally filed sued for a declaration that the defendants were in occupation by leave and licence of a flat of which plaintiff No. 1 was a tenant and the licence had been validly terminated and the defendants were, therefore, in wrongful use of the flat and were trespassers. The consequential relief sought was that the defendants may be restrained from occupying or using the flat. There was also a prayer for a mandatory injunction directing them to remove themselves from the flat. In addition, compensation at the rate of Rs. 300 per month was sought for use of the flat from January 1, 1951. There was furniture belonging to plaintiff No. 1 in the flat and the plaintiffs also made a claim for that furniture and compensation for its use. The furniture has now been handed back to the plaintiffs.
2. In view of the shape the case has assumed before me at a rather late stage, it is not necessary to refer in any detail to the pleadings with which the parties came to a hearing before me. Succinctly stated the case of the plaintiffs was that plaintiff No. 1 became a tenant of a ground floor flat in a building known as "Sindoola", on Gamadia Road, off Peddar Road. The tenancy of the flat stood in the name of his camp controller. Furniture belonging to plaintiff No. 1 was lying in that flat. Sometime in the beginning of 1950 plaintiff No. 1 had allowed his friend, plaintiff No. 2 to use the flat as his guest. Plaintiff No. 2 thereafter allowed defendants Nos. 1 and 2 to live with him in the flat by leave and licence. Plaintiff No. 2 addressed a letter to defendant No. 1 determining that licence and possession of the flat was demanded. It was also stated in the plaint that the defendants did not pay any amount to the plaintiffs as and by way of compensation for the use of the flat or the furniture. It is common ground that the defendants have since 1951 continued in occupation of the flat.
3. In their written statement, the defendants contended that they were good friends of plaintiff No. 1 and plaintiff No. 1 had personally created a sub tenancy in the flat in favour of defendant No. 1. That was some time in October 1949 and the defendants went in occupation of the flat on December 1, 1949. The rent to be paid by defendant No. 1 to plaintiff No. 1 under the agreement of sub-tenancy was Rs. 400 per month. It was also the case of the defendants that till the middle of 1952 they had been regularly paying rent to plaintiff No. 1 through his camp-controller. The principal contention of the defendants in substance was that the suit could not be maintained on the footing of leave and licence, when in fact there was an agreement of sub tenancy .
4. In para. 12 of the written statement, the defendants stated:
Without prejudice to the submission herein, the defendants submit that the first plaintiff having treated the defendants as his tenants for the purpose of rent and the said plaintiff having reaped the fruits of the transaction by collection of the said rents the said plaintiff is not entitled for purposes of regaining possession now to treat the defendants as mere licencees. In other words the cause of action of the said plaintiff being founded on an illegality the suit is accordingly not maintainable.
5. A number of issues were raised before me. The camp controller of plaintiff No. 1 stepped into the witness-box and in effect stated that the defendants had got into occupation of the flat without the knowledge or permission of plaintiff No. 1 but as guests of plaintiff No. 2 and were merely licencees. He denied that there was an agreement of sub-tenancy created between plaintiff No. 1 and defendant No. 1. He also denied that payments of Rs. 400 and Rs. 1,200 had been made to him by two cheques by defendant No. 1 as alleged by the defendants. He denied all knowledge of the cheques. He also denied that any payment had been made to him by defendant No. 1. This morning the two cheques were shown to him in Court. After some minutes, learned Counsel for the plaintiffs informed me that the endorsements on the cheques were of D.B. Patil. The camp controller had given his evidence in a most unsatisfactory manner, and if it had become necessary for me to consider his evidence on any question of fact, I would not have had any hesitation in observing that he had deliberately given false evidence to serve the purpose of his master.
6. Defendant No. 1 gave evidence before me and stated that he was on Very friendly terms with plaintiff No. 1 and had known him for many years. He also stated that at the relevant time, he was directing a picture entitled "Usha Kiran" which was being produced by Film Land Ltd. Plaintiff No. 1 was financing the production of that picture and had in fact paid Rs. 7,50,000. He also stated that he used to attend on plaintiff No. 1 whenever the latter was in Bombay. Plaintiff No. 1 used to complain that defendant No. 1 was not properly looking after him and entertaining him. Defendant No. 1 pointed out that he was living in a hotel and could not entertain any guest as he had no flat of his own. Plaintiff No. 1 some time thereafter agreed to give him a sub tenancy of his flat at Gamadia Road. He also deposed to the fact that rent was paid by him to D.B. Patil. If I had to decide any issue of fact on the evidence of defendant No. 1, I would have believed him and accepted his testimony as reliable.
7. Now, if the matter had only rested there, the question would have arisen whether the plaintiffs could get any relief on the averments in the plaint as they stood. This morning Mr. Mody on a suggestion made by me applied for an amendment of the plaint. By the amendment plaintiff No. 1 pleaded that he was at all material time the lawful tenant of the flat in suit, and in the event of this Court holding that there was an agreement between plaintiff No. 1 and the defendants for sub-letting the flat to the latter, the creation of such sub tenancy was illegal by virtue of the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The submission was that plaintiff No. 1 could rely on his own title and was, therefore, in any event entitled to get back possession of the flat since the defendants had in law no right to possession of the same. An additional prayer asked by the proposed amendment was for possession of the flat. The application for amendment was opposed by Mr. Gauba. I granted the application for amendment, but ordered that the plaintiffs should pay all the costs of the suit of the defendants till this date. The amendment being allowed, two issues both really of law were raised at the instance of learned Counsel. One issue was:
Whether the first plaintiff is entitled to get back possession of the flat in suit from the defendants as contended in paragraph 9(a) of the plaint.
At the instance of Mr. Gauba another issue was raised:
Whether this Court has jurisdiction to grant relief by way of possession to the plaintiffs even if they succeed in the issue added at the instance of the plaintiffs.
After the amendment was granted, Mr. Mody intimated that he conceded issues 2 to 5 and would rely solely on the title of plaintiff No. 1 and contend that plaintiff No. 1 was entitled to get back possession of the flat.
8. The question that remains for consideration lies in a narrow compass. A tenant of a flat agrees to create a sub-tenancy in favour of another person and puts that other person in possession of the premises. It is common ground that the sub-tenancy is illegal being contrary to the provisions of law, and one which is expressly prohibited by Section 15 of the Rent Act. Can the tenant in such a case get relief from the Court if he only seeks possession of the flat by relying on his own title and on the footing that the defendant has no lawful right or interest in the flat? Can it be said in such a case that though the tenant does not want to rely on the agreement or factum of sub-tenancy and merely seeks possession of the flat, he is disentitled to any relief by operation of the maxim in pari delicto melior est conditio possidentis. The maxim is to the effect that where both parties are equally in the wrong, the position of the possessor is the more favourable. But the merits and demerits of these pithy statements of law which constitute a species of legal short hand are well known. A maxim of law always requires to be understood and applied with its necessary qualifications and limitations. The other maxim often referred to in the same context is ex turpi causa nan oritur actio: no right of action arises from a base cause e.g. on a contract founded on an immoral consideration or the object of which was illegal or immoral. But can it be said that the owner of a property" who lets it out in violation of the Rent laws loses not merely all rights arising under the agreement of the parties and the tenancy intended to be created but also his right to get back possession of the property from one who has not acquired any right or interest in the same? That in. such a case the so called tenant should have the right to squat on the flat indefinitely-and that seems to be the suggestion of learned Counsel appearing for the defendant-sounds to me a startling contention. There is neither principle nor authority in support of the proposition.
9. The plaintiffs' counsel argued that as a general rule a man's right to possession of his own property will be enforced against one who, without any claim of right, is detaining it or is in occupation of it. Reliance was placed on the following statement in Chitty on Contracts, p. 471:
For instance, the owner of a house let to a prostitute could no doubt recover possession by ejectment at the end of the term, though he might be precluded from recovering rent, if he knew the purpose to which it was intended to put the premises.
Reliance was also placed on a decision of the Court of Appeal in England in Bowmakers, Ld. v. Barnet Instruments, Ld. [1945] 1 K.B. 65. In that case the plaintiffs sued the defendants to recover damages for the conversion of certain machine tools which they alleged were their property. The tools in question were the subject of three hiring agreements between the parties. The goods comprised in the agreements fell within the purview of the Defence Regulations of 1939 and were in contravention of those Regulations and the agreements between the parties were, therefore, illegal. A question arose whether in this situation the plaintiffs were entitled to get back their machines. At p. 69 of the report Du Pareq L.J., after expressing the view that the agreements were affected by illegality, observed:
The question, then, is whether in the circumstances the plaintiffs are without a remedy. So far as their claim in conversion is concerned, they are not relying on the hiring agreements at all. On the contrary, they are willing to admit for this purpose that they cannot rely on them. They simply say that the machines were their property, and this, we think, cannot be denied....
Prima facie, a man is entitled to his own property, and it is not a general principle of our law (as was suggested) that when one man's goods have got into another's possession in consequence of some unlawful dealings between them, the true owner can never be allowed to recover those goods by an action. The necessity of such a principle to the interests and advancement of public policy is certainly not obvious. The suggestion that it exists is not, in our opinion, supported by authority. It would, indeed, be astonishing if (to take one instance) a person in the position of the defendant in Pearce v. Brooks (1866) 1 Ex. 213 supposing that she had converted the plaintiff's brougham to her own use, were to be permitted, in the supposed interests of public policy, to keep it or the proceeds of its sale for her own benefit.
Later on in the same judgment, Du Pareq L.J. observed (p. 71) :
In our opinion, a man's right to possess his own chattels will as a general rule be enforced against one who, without any claim of right, is detaining them, or has converted, them to his own use, even though it may appear either from the pleadings, or in the course of the trial, that the chattels in question came into the defendant's possession by reason of an illegal contract between himself and the plaintiff, provided that the plaintiff does not seek, and is not forced, either to found his claim on the illegal contract or to plead its illegality in order to support his claim.
Support is clearly to be derived for the plaintiffs' case from this decision because all that need be done is to translate the word chattels there used into premises and the observations become cogent. I am in respectful agreement with these observations.
10. But no authority seems necessary for the proposition that the owner of any property can on general principle invoke the aid of the Court for the recovery of the same from another not in lawful possession of it so long as he is able to rest his cause of action on his own title and is not compelled to rely as part of his cause of action on any contract or transaction which is illegal or immoral or otherwise opposed to the doctrine of public policy. It is in cases of the latter categories that the Court acts on the principle underlying the maxim Ex turpi causa non oritur actio and refuses to lend its aid to support obligations or rights said to have arisen between the parties to such dealings. This is because no right of action can spring from them. But title and right to possession of property when relied upon in a case cannot be said to spring from any dealing with the property in permissible or impermissible exercise of that title or right; it is apart, and disturbance or denial of it gives rise to a cause of action independent of and unaffected by those dealing's. There is here no turpitude and the cause of action is distinct. Now, on the present submission of plaintiff No. 1 it cannot be said that he founds or is compelled to found his claim on any illegal contract or transaction in order to support his case. The defendants in their written statement have sought to rely on the illegality of the transaction of sub-letting, and it is beyond dispute that the defendants have no claim or right to occupy the flat, the sub-tenancy sought to be created being illegal on their own showing. All that plaintiff No. 1 is now asking the Court to do is to direct that possession of his flat may be restored to him by persons who have no claim or right in the same. Very little could be said by learned Counsel appearing on behalf of the defendant in answer to this contention of plaintiff No. 1 except that this was yet a case where the maxim in pari delicto melior est conditio possidentis must necessarily apply. The argument ignored the situation that required to be considered after the amendment of the plaint. In the result the issue about possession will be decided in favour of plaintiff No. 1.
11. That brings me to the question of jurisdiction. It was argued by Mr. Gauba ' that after the amendment the suit must be treated as a suit for possession falling within the ambit of Section 28 of the Bombay Rent Act. It was said that this is a suit between a landlord and a tenant relating to the recovery of possession of premises, to which the provisions of the Act apply. It was also said that the suit relates to a claim and question arising out of the Act and its provisions. Therefore, so the argument proceeded, this Court has no jurisdiction to grant any relief to the plaintiffs or either of them. It was argued on the other hand that Section 28 applies to a suit between a landlord and a tenant when there is or has been a valid and binding tenancy between the parties, and admittedly there is here no lawful tenancy. There is, to my mind, considerable force in this argument. There is nothing in the definitions given in the Act which may throw any appreciable light on this short question Which arises for my decision. It would seem, however, from the definitions of the expressions landlord and tenant in the Act that the part of it which is relied on as relevant for the purposes of this suit deals only with tenancy legislation and applies to premises for which rent is payable by agreement of the parties or in respect of which standard rent is or can be fixed under the Act, It can hardly be disputed that no standard rent can be fixed by the Court in respect of a tenancy purported to be created by the parties but is prohibited by law and therefore illegal. I have little doubt that a tenancy between a landlord and a tenant contemplated by the Act and Section 28 can only be one which is recognised by law. Sub-tenancy which is prohibited in express and explicit terms by Section 15 of the Act cannot be said to create any right between the parties to it such as can flow from the relationship of landlord and tenant. No such relationship can arise between the parties to any such agreement or dealing which is illegal in its inception. An examination of the various provisions of the Act also lends support to the view that a sub-tenancy intended to be created in contravention of the provisions of the Act is not within the purview of Section 28. Section 13 of the Act, for instance, clearly contemplates a legal: tenancy as the basis of the rights of the landlord enumerated in it. For all these reasons I am unable to see how the present claim of plaintiff No. 1 based solely on his title and absence of any right or interest in the defendants in the premises in suit can fall within the operation of the Rent Act.
My answers to the issues that remain for determination are:
(1) In the affirmative.
12. My answer to the issue added at the instance of the plaintiffs is that plaintiff No. 1 is entitled to recover possession of the flat from the defendants.
13. My answer to the newly added issue about jurisdiction is that this Court has jurisdiction to grant relief to plaintiff No. 1.
14. In the result there will be a decree in favour of plaintiff No. 1 for possession of the flat. There will be no order for costs.
15. At my suggestion, Mr. Mody agrees that the decree for possession will not be executed in any event for six months.
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