Civil Revision Application Nos. 112, 113 and 114 of 2012. Case: Rameshchandra Daulal Soni and Ors. Vs Devichand Hiralal Gandhi and Ors.. High Court of Bombay (India)
| Case Number | Civil Revision Application Nos. 112, 113 and 114 of 2012 |
| Counsel | For Appellant: P.M. Shah, Senior Advocate instructed by and J.R. Shah, Advocate |
| Judges | M. T. Joshi, J. |
| Issue | Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 [Repealed Act] - Sections 12, 13(1)(k), 15, 15A, 5(11)(c), 5(11)(c)(ii); Code of Civil Procedure, 1908 (CPC) - Section 11 |
| Judgement Date | July 20, 2015 |
| Court | High Court of Bombay (India) |
Judgment:
M. T. Joshi, J.
-
All the present civil revision applications have arisen out of one and the same suit filed by the common respondents No. 1 (since deceased) for eviction of the defendants therein on the ground of default in payment of rent, non-user of the suit premises by the original defendants No. 1 and 2 i.e. the petitioners in civil revision application No. 112/2012 for a period of more than six months and sub-letting some portions of the suit premises to the lateron added defendants No. 3 to 7, including the petitioners in civil revision applications No. 113/2012 and 114/2012. The suit was decreed by the learned Civil Judge Senior Division, Ahmednagar on the ground of default in payment of rent and non-user of the suit premises. The ground of subletting some portions of the suit premises did not find favour with the trial court.
Aggrieved by the decree passed by the trial court, the original defendants No. 1 and 2 preferred an appeal before the District Court and aggrieved by the refusal of decree against original defendants No. 3 to 7 as sub-tenants, the original plaintiffs filed cross-objection. Further, original defendant No. 3/revision petitioner in Civil Revision Application No. 113 of 2012 and original defendant No. 5/revision petitioner in Civil Revision Application No. 114 of 2012 also filed cross-objections. Thus, the entire dispute was before the District Court.
-
The learned Principal District Judge dismissed the appeal and though did not agree with the plaintiffs that the defendants No. 3 to 7 were sub-tenants, held that they do not have any independent title than that of the tenants i.e. of defendants No. 1 and 2 and therefore, the decree passed by the trial court was confirmed.
-
It is to be noted that out of these defendants No. 3 to 7, while some of them failed to put their appearance and therefore, the suit proceeded ex-parte against them in the trial court, some of them did not file any written statement and their Advocate had filed no instructions purshis from their respective clients. Eventually, the suit proceeded without any written statement from them. The revision petitioners in civil revision applications No. 113/2012 and 114/2012, are the defendants, who failed to file the written statement.
-
The suit property is a final plot bearing No. 19, lateron included in town planning scheme and is now within the limits of Ahmednagar Municipal Corporation. The said plot admeasures 2656 sq. mtrs.
The suit property was originally owned by three brothers, namely, Shri B.N. Deshmukh, Shri L.N. Deshmukh and Shri M.N. Deshmukh, called as Deshmukhs by the trial court. The grandfather of defendants No. 1 and 2, namely, Jagannath Soni had obtained on lease the suit property by a registered lease-deed dated 22nd May, 1928 from the father of Deshmukhs. The son of said Jagannath Soni, namely, Daulal Soni continued to be in possession of the suit property. Upon his death on 2nd June, 1985, the suit property, according to the plaintiffs, continued with the defendants No. 1 and 2. These defendants have, however, disputed that they are the only legal representatives of the deceased. According to them, two daughters of Daulal Soni also inherited the tenancy rights and therefore, the plea of non-joinder of necessary parties was taken.
The three sons of Narhar Balkrishna Deshmukh, namely, Shri B.N. Deshmukh, Shri L.N. Deshmukh and Shri M.N. Deshmukh had, according to the plaintiffs, sold the suit property to the plaintiff on 08.08.1986 and thus, according to the plaintiff, he became the landlord of defendants No. 1 and 2.
-
In this background, the case of the original plaintiff, in short, is as under:--
On the strength of transfer of the property to the original plaintiff, he gave intimation to the defendant No. 1 about the transfer of the property by registered post acknowledgement due and defendants No. 1 and 2 were directed to take necessary steps for payment of rent at the rate of Rs. 31/- per annum. The tenancy was yearly tenancy, starting from 22nd May of each year and was to end on 21st May of the next year as per the English calender. Despite this intimation and lateron notice at Exh-96, defendants No. 1 and 2 failed to pay the rent and therefore, they became willful defaulter in payment of rent. Hence, the decree on this count is sought.
-
The plaintiff also pleaded non-user of the suit premises. Defendant No. 1 Rameshchandra is a practicing Advocate at Mumbai. Further, the suit premises were let out for Cotton and Ginning Factory and for the storage of the cotton. The said business is now not in existence. Therefore, these defendants are not using the suit premises for the purposes for which those were let out since long. They do not need the suit premises. It is put under lock since so many years. Therefore, they were asked to vacate the suit premises after removing the structure vide notice dated 1st September, 1988.
During the pendency of the suit, the Commissioner was appointed for inspection of the suit premises. It was found that defendants No. 3 to 7 were in possession of some portions of the suit premises. Therefore, the plaint was amended and the decree was also sought on the ground of sub-letting of the suit premises without the permission of the landlord.
-
The defendants No. 1 and 2 though filed their separate written statement, their defence was common. It was pleaded that the lease was for a period of 31 years w.e.f. 22nd May, 1928 at an annual rent of Rs. 31/-. Upon efflux of time also, the tenancy continued. These defendants were never asked to attorn the tenancy. After receipt of intimation dated 6th December, 1986 from the plaintiff, they contacted the plaintiff. However, the plaintiff failed to substantiate his rights and therefore, there is no relationship of landlord and tenant. The suit was bad for non-joinder of necessary party. Further, the pleas regarding the limitation, improper valuation of the court fees and jurisdiction of the court to try the suit, were taken. All other adverse allegations were denied. The defendants No. 1 and 2, therefore, prayed for dismissal of the suit.
-
The oral as well as documentary evidence was adduced before the trial court and the learned trial court recorded the findings, as detailed supra.
-
Mr. P.M. Shah, learned senior counsel, in brief of Mr. J.R. Shah, learned counsel, for the petitioners in civil revision application No. 112/2012, advanced the following submissions:
"(I) That, the defendants No. 1 and 2, in their written statement, have taken a specific plea that deceased Daulal Soni left behind him not only defendants No. 1 and 2, but two daughters and thus, his plea of non-joinder of necessary parties was required to be considered by the learned Principal District Judge in the first appeal. The learned Civil Judge Senior Division wrongly held that the tenancy being statutory tenancy, the same is not heritable, on the basis of the authorities which do not hold any field. Further, the findings on the basis of the provisions of section 5(11)(c) of the Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947 (for short, "the Bombay Rent Act") that a member of the family carrying out the activities for which the premises were let out shall be a tenant, has been misconstrued by the learned courts below. Such a tenant cannot supersede the inheritance of the legal representatives of deceased tenant.
(II) So far as the plea of non-user of the suit premises is concerned, Mr. P.M. Shah points out the provisions of section 13(1)(k) of the Bombay Rent Act and submitted that the pleadings are insufficient. The provisions require that the...
To continue reading
Request your trial