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Keshavji Ramji Sanghavi Vs. Sulochanabai Ramkrishna Mirwankar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 431 of 1972
Judge
Reported inAIR1977Bom7; (1976)78BOMLR192; 1976MhLJ625
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 6 and 13(1); Transfer of Property Act, 1882 - Sections 108; Constitution of India - Article 227
AppellantKeshavji Ramji Sanghavi
RespondentSulochanabai Ramkrishna Mirwankar
Appellant AdvocateM.R. Kotwal and ;S.R. Chitnis, Advs.
Respondent AdvocateS.S. Pandit, Adv. for ;V.P. Tipnis, Adv.
Excerpt:
.....1947 (bom. lvii of 1947), section 13(1)(a)--whether removal of termite ridden beam and putting new beam by tenant furnishes ground for eviction.;damage or injury to the property leased is essential before the landlord can rely on the act as one in contravention of section 108(o) of the transfer of property act, 1882 within the meaning of section 13(1) (a) of the bombay rent act, 1947. if a termite ridden beam is removed and a new beam is put it cannot be said to be an act of an imprudent person or an act destructive or permanently injurious to the premises.;it is only when the court is satisfied that the tenant has committed any act contrary to the provisions of section 108(o) of the transfer of property act, that the court has jurisdiction to pass a decree for possession in favour of..........if the tenant has committed any act contrary to the provisions of clause (o) of section 108 of the transfer property act, 1882, the landlord would be entitled to a decree in eviction. clause (o) of section 108 of the transfer of property act, so far as is material for our purpose, prohibits the tenant to use or permit another to use the property for a purpose other than that for which it was leased. in order that the tenant should be guilty under this clause, it must be shown that the property was let for a specific purpose and that the tenant had used it nor for that purpose but for some other purpose. now, the view taken by the lower appellate court was that the premises in the present case were let for the purpose of storage of goods and that by storing a motor-car the tenant had used.....
Judgment:
ORDER

1. This is a tenant's Special Civil Application under Article 227 of the Constitution directed against the judgment and the decree passed by the Joint Judge, Thana, on January 18, 1972, under Section 13(1)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, read with Section 108 (o) of the Transfer of Property Act, 1882.

2. The learned Civil Judge, Senior Division, Thana, held in the suit for eviction, filed by the landlord in his judgment and decree, dated March 31. 1970, that the tenant had removed an old beam ridden with termite and refixed a new one; and this would not be an act contrary to the provisions of Clause (o) of Section 108 of the Transfer of Property Act; and, therefore, dismissed the plaintiff's suit.

3. The learned Joint Judge reversed that decision holding :--

'The act of the defendant in removing the old beam from its place was nothing but destructive or permanently injurious to the suit premises, irrespective of the fact whether actual damage was caused to the building or not. There is also some evidence of damage caused to the plaintiff's house. I, therefore, feel that the defendant's act of removing the old beam from its place was contrary to the provisions of Section 108(o) of the Transfer of Property Act and defendant was liable to be evicted from the suit premises on that ground.' The learned Joint Judge misconceived the law under Section 13(1)(a) of the Bombay Rent Act and Section 108(o) of the Transfer of Property Act. The said provisions are as under:--

'Section 13(1) Notwithstanding anything contained in this Act, a landlord shall be entitled to recover possession of any premises if the Court is satisfied-

(a) that the tenant has committed any act contrary to the provisions of clause (o) of Section 108 of the Transfer of Property Act, 1882;

x x x x x x Section 108. In the absence of a contract or local usage to the contrary, the lessor and the lessee of immovable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased:--

(o) The lessee may use the property and its products (if any) as a person of ordinary prudence would use them if they were his own; but he must not use, or permit another to use, the property for a purpose other than that for which it was leased, or fell or sell timber, pull down or damage buildings belonging to the lessor, or work mines or quarries not open when the lease was granted, or commit any other act which is destructive or permanently injurious thereto.'

It is clear that Clause (o) of Section 108 requires the tenant to use the property as a person of ordinary prudence would use and not to use it for a purpose other than that for which it was leased. It is only when the Court is satisfied that the tenant has committed any act contrary to the provisions of Section 108(o), that the Court has jurisdiction to pass a decree for possession in favour of the landlord under Section 13(1)(a).

4. I do not think that if a termite affected beam is replaced with a hew one and is removed, it can be said to be an act of imprudence on the part of the tenant. By no stretch of words, can it be said that removing such a old and hazardous beam and putting a new beam is an act contrary to provisions of Clause (o) of Section 108 of the Transfer of Property Act, 1882.

5. Further it is well settled that a test that has to be applied for deciding whether there is a contravention of provisions of Section 108(o) is what was the tenant doing? See an unreported decision in Civil Revn. Appln. No. 431 of 1958, decided by Chagla C. J., on 16-7-1958 (Bom).

6. In Special Civil Appln. No. 431 of 1966 decided on 23-8-1968 (Bom) V. S. Desai, J, discussed the effect of Section 13(1)(a) of the Bombay Rent Act read with Section 108(o) of the Transfer of Property Act as under :--

'Section 13(1)(a) provides that if the tenant has committed any act contrary to the provisions of Clause (o) of Section 108 of the Transfer Property Act, 1882, the landlord would be entitled to a decree in eviction. Clause (o) of Section 108 of the Transfer of Property Act, so far as is material for our purpose, prohibits the tenant to use or permit another to use the property for a purpose other than that for which it was leased. In order that the tenant should be guilty under this clause, it must be shown that the property was let for a specific purpose and that the tenant had used it nor for that purpose but for some other purpose. Now, the view taken by the lower Appellate Court was that the premises in the present case were let for the purpose of storage of goods and that by storing a motor-car the tenant had used it for a different purpose. It is difficult to accept this view of the lower appellate Court. The change of purpose, which is contemplated under the provisions of clause (o) of Section 108 of the Transfer of Property Act, is a purpose other than the one for which the premises let were intended to be used and contemplates the user of a different kind from the one which was intended at the time of letting... ... ... ...

The change of purpose contemplated by clause (o) of Section 108 of the Transfer of Property Act is change from user of one kind to another involving waste, alterations, destruction or damage of the property etc. or amounting to an act of nuisance. A change of user, which does not involve any such element, will not amount to a breach of Section 108(o) of the Transfer of Property Act. Under Section 6 of the Rent Act the broad classes of purposes or the users of the premises to which the rented premises may be put are specified as for residence, education, business, trade or storage. The actionable ground contemplated by Section 13(1)(a) by its reference to clause (o) of Section 108 of the Transfer of Property Act is a change of purpose or user from one kind of user to another from amongst the several users as are specified in Section 6 of the Rent Act, except in cases where by a specific restrictive covenant in the lease the user is still further restricted.'

With respect, what V. S. Desai J. has observed with regard to change of user would also apply under Section 108(o) to the change of a termite ridden old beam to a new beam by the tenant, which instead of causing any damage to the tenement is bound to benefit. A breach of act which cannot be said to be contrary to Section 108(o), unless it is an act of an imprudent person, or an act which is destructive or permanently injurious thereto. I do not think that if a termite ridden old beam is removed and a new beam is put, it can be said to be act of an imprudent person or an act destructive or permanently injurious to the premises.

7. In this connection, it is useful to refer to the decision of the Privy Council in UPO Naing v. Burmal Oil Co. Ltd., 56 Ind App 140 : AIR 1929 PC 108. In that case the owner oE oil sites and grantee from Government of the right to win oil therefrom leased sites and the right to win oil for twenty-five years to the respondents, who agreed to pay royalties on oil won by them. In sinking wells, which did not produce oil in commercial quantities, the respondents found natural gas. They tapped the gas by pipes, and for six years used it for their own purpose.

8. The Privy Council held that the appellant owner of the oil sites was not entitled to compensation for the gas, so taken, since that right was not included in the right to royalties upon the oil won; and the lease, on its true construction, was merely a lease for the purpose of winning oil, and the appellant having no property in the gas the respondents were entitled to reduce into possession and use it provided they did so without injury to the leased property; and that was consistent with the Transfer of Property Act, Section 108(o).

9. The first Lord Hailsham L. Chancellor observed at page 145 ;--

'A further argument was based upon the provisions of Section 108(o), of the Transfer of Property Act, 1882, which provides that the lessee of property must not use the property for a purpose other than that for which it was leased. In their Lordships' judgment it is not necessary exhaustively to discuss the limits of that provision, but there seems to be nothing inconsistent with its terms in the use of the gas which is necessarily set free by reason of the sinking of the oil well for the respondents' own purposes without doing any damage or any injury to the property leased.'

The damage or injury to the property leased is, therefore, essential before the landlord can rely on the act as one in contravention of Section 108(o) of the Transfer of Property Act within the meaning of Section 13(1)(a) of the Bombay Rent Act.

10. Similar view appears to have been taken by a single Judge of the Gun-rat High Court in Mahmad Umar v. Manilal, : (1968)9GLR104 , where it was laid down that having regard to the provisions of Section 108(o) of the Transfer of Property Act, a change of user in the absence of a contract to the contrary, would not result in giving a cause of action for evicting the tenant unless it is further proved that it is either destructive or permanently injurious to the property or its produce in the eye of law.

11. In the result, it must be held that the learned Joint Judge acted without jurisdiction in passing the decree for eviction on the erroneous basis that he had a power to do so under Section 13(1)(a) of the Bombay Rent Act. The petition is allowed. The Judgment and the decree passed by the learned Joint Judge, Thana, on January 18, 1972, are set aside and the judgment and the decree passed by the learned Civil Judge. Senior Division, Thana, on March 31, 1'970, as dismissing the plaintiff's suit with costs is restored. The respondent-landlord shall pay the costs of the petitioner in this Court and in the lower appellate Court, also.

12. Petition allowed.


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