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Madhav Vithal Kudwa Vs. Madhavdas Vallabhdas and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberA.F.O. No. 449 of 1971
Judge
Reported inAIR1979Bom49; 1979MhLJ193
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 5(8), 11, 13(1), 23-A, 24, 24(1), 24(4) and 47(1); Specific Relief Act, 1963 - Sections 38(3); Megarry's Rent Act; Madras Buildings (Lease and Rent Control) Act; Transfer of Property Act, 1882 - Sections 108
AppellantMadhav Vithal Kudwa
RespondentMadhavdas Vallabhdas and anr.
Appellant AdvocateR.D. Hattangadi and ;V.S. Bhatt, Advs.
Respondent AdvocateK.K. Vyas, Adv.
DispositionAppeal allowed
Excerpt:
.....suit by granting aninjunction and declaring that the defendant is a trespasser, merely because the right of parking the car in the compound was not mentioned in the rent receipt and the defendant failed to prove that permission was granted to him to park his car in the compound. he also pointed out that, in any event, the amenity of parking the car of a tenant in the compound, where such a compound is available, must be considered as an essential service enjoyed by the tenant in respect of the premises let to him within the meaning of section 24(1) of the said act and the learned judge in the city civil court ignored these provisions when he held that the defendant had no right to park his car in the compound. the word 'appurtenance' occurring in the definition of 'building' in the act..........ignored by the lower court.35. if at all the trustees suffered any loss in terms of money by the tenant parking without permission or by their permitting parking and thereby rendering essential service to car-owning tenants, they could apply to the smallcauses court for increases of rent on account of the parking of the car under section 11 of the bombay rent act, but it was not open to the learned judge in the city civil court to grant the injunction so as to defeat the right of the tenant under the bent act. on this point, mr. vyas drew my attention to an interim order passed at the time of the admission of the application for stay granted in the above first appeal, fixing interim compensation of rs. 30/- per month as condition of the stay being continued and the failure of the.....
Judgment:

1. The above first appeal raises an interesting point with regard to the right of a tenant of a flat in a building in Bombay governed by the BombayRents, Hotel and Lodging House Rates Control Act, 1947 to park his car in the compound of the building.

2. The building in this case belongs to the plaintiffs, the Trustees of Murarji Goculdas Deoji Trust, situate at Kannedy Bridge, Bombay, and known as Murarji Goculdas Deoji Trust Building. The appellant, who was the defendant in the suit filed by the trustees, was the tenant in respect of Room No. 18 on the first floor of the said building for many years. In or about the month of Oct. 1968, the plaintiffs observed that the defendant was parking a car bearing No. BYH 1160 in the compound of the plaintiffs' building without the permission of the plaintiffs. The plaintiffs asked the defendant not to park the car or any vehicle in the compound without their permission. The defendant did not stop parking his car.

3. The plaintiffs, therefore, addressed a letter dated Oct. 11, 1968 through their advocate to the defendant and called upon him to remove the said car forthwith and further called upon him not to park it in the compound of the building. In spite of this letter, the defendant continued to park his car in the compound without replying the said letter or the reminders sent thereafter.

4. The plaintiffs, therefore, submitted that the defendant had no right of whatsoever nature to park his car in the plaintiffs' compound without the plaintiffs' permission; and hence the act of the defendant in parking the car amounted to an act of trespass and an invasion on the plaintiffs' right, The plaintiffs, therefore, claimed that they were entitled to a declaration that the defendants had no right to park his car or any other vehicle in the plaintiffs' said compound and they were also entitled to a permanent injunction restraining the defendant, his servants and agents from parking the car or any other vehicle in the compound without the permission of the plaintiffs. They also claimed an interim injunction. The plaintiffs, accordingly, prayed in the suit for a declaration that the defendant had committed an act of trespass by parking his car in the compound of the building and the defendant, his agents and servants be restrained by a permanent injunction from parking his car or any other vehicle in the compound.

5. In the lower Court, the ad interim injunction was refused and that order of refusal was confirmed by this Court inA. O. No. 338 of 1969 on September 25, 1969.

6. The suit was resisted by the defendant, firstly, on the ground that he was a tenant in respect of Room No. 18 on the first floor and he was parking his car in the compound even prior to Oct. 1'968 with the permission of the deceased Trustee, one Bhagwanji Murarji, and secondly, on the ground that he was parking his car in the compound within his own rights as a tenant of the building not only because of the specific permission already obtained by him but because he had a right to park his car in the compound as tenant, even assuming that no such permission was obtained, as the parking of the car in the compound forms part of the amenities attached to the premises in his occupation as the monthly tenant of the Trust. He, therefore, submitted that he had not committed any trespass by parking the car in the compound. He also submitted that no injunction could be granted to the plaintiffs, as prayed for by them, as no loss or injury would be caused to them by the parking of the car in the compound.

7. The learned Judge in the City Civil Court framed four issues, among which the most important issue was whether the right to park the car was part of the defendant's tenancy of Room No. 18.

8. On behalf of the plaintiffs, Madhavdas Vallabhdas Kapadia, one of the Trustees, was examined. In the examination-in-chief, he reiterated whatever was stated in the plaint. In his cross-examination, he admitted. 'I have not suffered loss, I have not suffered injuries. By 'irreparable loss' mentioned in the plaint I mean that I would be Involved in unnecessary litigation and quarrels with other tenants, who would begin parking their cars. I have not suffered monetary loss by parking of the defendant's car,' He also admitted that the place where the defendant parked his car was not required by the Trustees for any other immediate use.

9. On behalf of the defendant, the defendant himself gave evidence. He stated that he was residing as a tenant in the suit premises since 20 years and he purchased the car in 1968; that he was parking the car in the corner and that this did not cause any obstruction to anybody or any inconvenience to anybody. This also did not cause any hardship to anybody. He further stated that he had not received any complaint from anybodyabout his parking the car, except from the plaintiffs. He had not caused any obstruction to the car of Manilal Kapadia, another tenant of the building. He also stated that in the compound, besides the two cars, namely, his car and the car of another tenant Manilal Kapadia, there was a scooter and a bicycle.

10. According to him, the terms of his tenancy included all the facilities, which he should get, and included the facility of parking a car. He also referred to a sketch, which he had annexed to his affidavit and which was marked 'Y' for identification, to show that the compound had a compound wall, huge gate and a large space inside to enable the parking of tenants' cars very easily without causing any inconvenience to anybody. In the cross-examination, he had to admit that only the late previous Trustee had given him permission before his death, but when he bought the car, he did not seek the permission of the Trustees.

11. The defendant examined Haridas Morarji Bhatia, the son of Morarji Goculdas, who claimed to speak on behalf of all his brothers, who were the beneficiaries of the Trust, and who stated in his examination-in-chief that there was a lot of space in the compound of the trust property and he and his brothers had no objection to the defendant parking his car in the compound; and besides the defendant's car, another car belonging to another tenant of the building, Manilal Kapadia, and two scooters were also being parked in the compound and that the said Manilal Kapadia had put up a shed in the compound where two cars could be parked easily; and the beneficiaries had, therefore, served the Trustees with a notice for permitting Manilal Kapadia to park his car without charging him any rent. But in spite of this, the beneficiaries had no objection to the defendant parking his car in the compound.

12. In the cross-examination, the said Haridas Bhatia further stated that the building where he was residing was separated from the suit building by a private lane and a compound wall and the suit building was at a distance of one minute's walk from his residence.

13. Considering the said oral evidence, In the light of the documentary evidence consisting of a rent receipt, the municipal tax bills, tax receipts, etc. and notices, the learned Judge in the City Civil Court decreed the plaintiffs' suit by granting aninjunction and declaring that the defendant is a trespasser, merely because the right of parking the car in the compound was not mentioned in the rent receipt and the defendant failed to prove that permission was granted to him to park his car in the compound.

14. It is rather unfortunate that the attention of the learned Judge in the City Civil Court was not drawn to the relevant provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, which, so far as Greater Bombay is concerned, governs the obligations and rights of landlords and tenants and which cannot be ignored even by the City Civil Court when granting such injunctions.

15. The decision of the learned Judge is challenged before me by the defendant and Mr. Hattangadi, the learned counsel appearing for the appellant, submitted that having regard to the definition of 'premises' contained in Section 5(8)(b) of the Bombay Rent Act, the premises let to the defendant must include not only the flat but also the grounds appurtenant to that flat, which must include the compound round the building. He also pointed out that, in any event, the amenity of parking the car of a tenant in the compound, where such a compound is available, must be considered as an essential service enjoyed by the tenant in respect of the premises let to him within the meaning of Section 24(1) of the said Act and the learned Judge In the City Civil Court ignored these provisions when he held that the defendant had no right to park his car in the compound.

16. In support of his above argument, Mr. Hattangadi referred to the interpretation of the word 'services' by the English Courts as including maintenance of parking places, as stated at page 325 of Megarry's Rent Acts, Tenth Edition, 1967. He further pointed out the distinction between the words 'appurtenant' and 'adjacent' and argued that 'appurtenant' should necessarily mean belonging to or relating to by relying upon the following passage in para 2861 at page 1655 of Woodfall's Law of Landlord and Tenant, Volume 2, Twenty-seventh Edition, 1968 :--

'Section 2(3) provides that, where in relation to a house let and occupied by a tenant reference is made in Part I of the Act to the house and premises, the reference to premises is to be taken as referring to any garage, outhouse, garden, yard and appurtenance which at the relevant time are let to the tenant with the house and are occupied with and used for the purposes of the house or any part of it by him or by another occupant.'

17. In support of his argument, Mr, Hattangadi also relied on the discussion about the meaning of 'appurtenances' in Trim v. Sturminster Rural District Council, (1938) 2 KB 508, where at page 515 Slesser Lord Justice observed:--

'In the definition to which I have referred certain specific matters are mentioned, that is to say, any yard, garden and outhouses, and then follows the word 'appurtenances'. That word has had applied to it, through a long series of cases mostly dealing with the meaning of the word in demises, a certain limited meaning, and it is now beyond question that, broadly speaking, nothing will pass, under a demise, by the word 'appurtenances' which would not equally pass under a conveyance of the principal subject-matter without the addition of that word, that is to say, as pointed out in the early case of Bryan v. Wetherhead, (1625) Cro Car 17, that the word 'appurtenances' will pass with the house, the orchard, yard, on cartilage and gardens, but not the land. That view, so far as I understand the authorities, has never been departed from, except that in certain cases it has been held that the word 'appurtenances' mar also be competent to pass incorporeal hereditaments.'

18. Mr. Hattangadi also relied on the decision of a Division Bench of the Madras High Court in G. H. Irani v. Chidambaran Chettiar, , a case under the Madras Buildings (Lease and Rent Control) Act, where the Head Note, so far as is relevant, reads as follows (all pp. 654, 655, 658 of AIR):--

'The word 'building' in ordinary parlance 'comprises not only the fabric of the building, but the land upon which it stands.' '

Where the object of the lease was to run the cinema business in the buildings then in existence together with the other buildings used as booking office, office rooms, garages, latrines and so on. It is impossible to escape the conclusion that what was let was a 'building'.

Held also that if the entire around was occupied for the purpose of continuing the superstructure along with the building belonging to the lessor and the whole of it was treated as one unit, the site might be treated as appurtenance in thesecondary sense of the word, meaning 'usually occupied.'

Raghava Rao J.

The word 'appurtenance' occurring In the definition of 'building' in the Act is used In the broad, secondary and non-technical sense of 'relating to', 'usually enjoyed or occupied with' and 'adjoining'. The idea of the legislature seems to be that if grounds appurtenant to the building in this sense are let along with the building, they should stand attracted to the operation of the Act.'

19. In my view, having regard to this meaning of 'appurtenance' and the nature of rights which must be essential to the enjoyment by the tenants occupying parts of the building, namely, the flats, reasonably and comfortably, the legislature itself has conferred a statutory right on all the tenants under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, by defining 'premises' as meaning, inter alia, a part of a building let separately, including 'grounds appurtenant to a building or part of a building'. The word 'appurtenant' is wide enough to give a right to the tenant of a flat in a multi-storeyed building to use along with others like a reasonable and prudent person the compound, if any, round the building, including a right to park his vehicle, like his personal car or motor-cycle or scooter or cycle,

20. It is with a view to prevent the tenants from being harassed by landlords by denying such essential, consequential and incidental uses of the compounds that the legislature has tried to define the word 'premises' in such a comprehensive manner and has further tried to secure this right by laving down in Section 24(1) that no landlord either himself or through any person acting or purporting to act on his behalf shall without just or sufficient cause cut off or withhold any essential supply or service enjoyed by the tenant in respect of the premises let to him.

21. If a tenant has a car, it will be ordinarily an essential service to him, if parking of his car is otherwise possible and is allowed in the compound, if any, round the building. If there is no compound or If the tenant has no car, the question may not arise, as what is essential must necessarily vary according to the circumstances of each case and the needs of the persons concerned, subject to the normal expectations of ordinary, reasonable and prudent tenants and thesensible attitudes of law-abiding landlords.

22. An obligation is also cast on the tenant not to commit a breach of his obligation to make ordinary and prudent use of the premises, as laid down in Clause (o) of Section 108 of the T. P. Act, 1882, which runs as under:--

'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.'

If the tenant commits any breach of the obligation, he is liable to be evicted by the landlord under Section 13(1)(e) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.

23. The legislature has further secured the right of the tenant by providing in Section 24(4) of the Bombay Rent Act that any landlord, who contravenes the provisions of Sub-section (1), shall, on conviction, be punishable with imprisonment for a term which may extend to three months or with fine or with both, and also by providing in Section 47(1) that contravention of Section 24(4) would be a cognizable offence.

24. In my opinion, therefore, the legislature has by defining 'premises' as in Section 5(8) and referring to essential services in Section 24(1) by necessary implication conferred a statutory right on the tenant of a fiat, like the defendant, to park his car in the compound of the building wherever space is available without causing any inconvenience to anybody, as in the present case, and that right can be exercised by the tenant without the permission of the landlord and the landlord cannot object to the exercise of the said right.

25. Mr. Vyas, the learned counsel appearing for the plaintiffs-trustees, submitted that the view, which I am taking, was inconsistent with the view taken by Mody, J. on October 5, 1983 in Appeal No. 251 of 1962 as also the view taken by Apte, J. in Appeals from Orders Nos. 386 and 387 of 1972, which was confirmed in Letters Patent Appeals Nos. 135 and 136 of 1973 by Hajarnavis and Shah, JJ, on June 29, 1976. With respect, however, all these unreported judgments arose out ofinterlocutory proceedings in appeals from interlocutory orders granting injunctions by the City Civil Court in the context of the pleadings of the parties in those cases and the discretion of the Court to grant interim relief. This Court in all these cases expressed only a prim a facie view in that context without being called upon to consider the above provisions of the Bombay Rent Act, which, in my view, should not escape the attention of the Court when finally deciding the rights of tenants of buildings situated in places where the Bombay Rent Act applies.

26. Mr. Vyas also referred to a decision of this Court En Lakhmichand Khatsey Punja v. Ratanbai, 29 BomLR 78 AIR 1927 Bom 115, which was only a case where the cause of action was damages for negligence In repairing the privies; and hence it was held that the common, privies In a Bombay chawl were used by the tenants as licensees, and the landlords are bound to repair them so as to keep them reasonably safe for the tenants and that cannot, in any way, help us in interpreting the rights of the tenants arising under the special provisions of the Bombay Rent Act passed many years later in the light of the experience which the legislature had about the conflicting Interests and attitudes of landlords and tenants in overcrowded cities and towns,

27. Mr. Vyas also submitted that since Explanation 1 to Section 24 and Section 23-A of the Bombay Rent Act do not expressly refer to car-parking services, the legislature must have intended not to include car-parking services as essential services for tenants of flats in a building having a compound. The argument ignores that Explanation 1 to Section 24 only includes certain basic amenities, such as, sanitary arrangements, lighting arrangements, etc. mentioned therein, about which the legislature thought that there should be no controversies in Courts. Explanation 1 does not define or explain exhaustively everything that is essential service, which must vary, as stated above, according to the circumstances of each case and according to the standard of reasonable and prudent persons occupying buildings in a city like Bombay after the Bombay Rent Act came into force.

28. Mr. Vyas referred to the case of Cole v. Harris, (1945) 1 KB 474, and contended that what is not indispensable cannot be considered to be essential. In my view, as I have said above, the word 'essential' must vary according to theneeds and standards of ordinary and reasonable persons becoming tenants in buildings in Greater Bombay after the Bombay Rent Act came into force. In view of lack of space on public roads generally and the prevailing thefts of cars and car parts, if there is a compound in a building, a tenant of that building will consider it as an essential service to park the car in the compound, when the compound is big enough, as in the present case, to allow parking. Such a service may be indispensable in the eyes of a reasonable and prudent person.

29. Mr. Vyas's reference to Section 23-A, which refers to radio and television developments, is also not determinative of the intention of the legislature to exclude the parking services. The very fact that neither Mr. Hattangadi nor Mr. Vyas is able to cite any final decision of any of the Courts in the country, notwithstanding the thousands of suits being filed very year by landlords or tenants under ordinary law or under the Rent Acts, shows that most reasonable and prudent landlords do not object to their tenants parking their cars in their compounds and there are no disputes about the same.

30. Again, neither Mr. Hattangadi nor Mr. Vyas was able to cite a single case from India, England or any of the Common-wealth countries to show that in the branch of law dealing with torts generally and trespass in particular, there was any such dispute about car-parking, which must be considered as essential, incidental or consequential right of the tenant, particularly when it causes no nuisance to any one, and it is convenient to the tenant to park his car in a corner of the compound, as was being done by the tenant in the present case.

31. In my view, therefore, apart from what is stated above about the statutory right of the tenant to park the car, the learned Judge in the City Civil Court was not right in holding that the defendant had no right to park his car in the compound, notwithstanding the admission of the Trustees that no loss whatsoever was caused to the Trustees and the admission of the beneficiaries that they had no objection at all to the defendant parking his car in the compound and the absence of any complaint from any ona from the building about the parking of the car.

32. Further, it was wrong on the part of the learned Judge to hold that mere parking of the car by a tenant was a tres-pass in any event. I have looked into all the books on the Law of Torts, which are available, and I called upon the learned advocates to find out any authority under the Law of Torts where the parking of cars in a compound of a building by the tenants of the building was held to be a trespass or an invasion on the right to property. Neither could they cite any authority nor could I find any to support the proposition that the parking of a car in the compound of a building by the tenant of a flat in the building would be a trespass on the part of the tenant.

33. It must also be noted that, in anyevent, the learned Judge's attention was not drawn to the provisions of Section 38(3) of the Specific Belief Act, which lays down in what cases the Court may grant an injunction, viz., (a) where the defendant is trustee of the property for the plaintiff;(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion; (c) where the invasion is such that compensation in money would not afford adequate relief and (d) where the injunction is necessary to prevent a multiplicity of judicial proceedings. None of the Clauses. (b),(c) or (d) applies to the present case, having regard to the admission of the Trustees and the beneficiaries that no loss whatsoever was caused to the Trustees or the beneficiaries,

34. The only loss which they allegedin the plaint was that their right to property was invaded, but, apart from thefact that parking is no such invasion, forreasons stated above, that is not enoughto ask the Court to grant an injunction, unless the Court is satisfied that monetary compensation is not enough to compensate the invasion. Parking of a car in a compound cannot be considered to be such an invasion as to cause irreparable loss, when the trustees themselves have stated that there was no loss and the other tenants do not make any complaint about it and the beneficiaries had no objection to the parking of the car. Further, the injunction could not be granted so as to defeat the rights of the tenant under the Bombay Kent Act which, as I have stated above, was completely ignored by the lower Court.

35. If at all the Trustees suffered any loss in terms of money by the tenant parking without permission or by their permitting parking and thereby rendering essential service to car-owning tenants, they could apply to the SmallCauses Court for increases of rent on account of the parking of the car under Section 11 of the Bombay Rent Act, but it was not open to the learned Judge in the City Civil Court to grant the injunction so as to defeat the right of the tenant under the Bent Act. On this point, Mr. Vyas drew my attention to an interim order passed at the time of the admission of the application for stay granted in the above first appeal, fixing interim compensation of Rs. 30/- per month as condition of the stay being continued and the failure of the tenant to comply with the condition. Mr. Vyas also drew my attention to a letter addressed to the Trustees by the defendant on Aug. 21, 1976, informing them that he had disposed of the car,

36. But in view of what is stated hereinabove, the plaintiffs are not entitled to ask for any compensation at all and if at all they have any right to increase the rent, they must, in the absence of any agreement between them and their tenant, make an application under Section 11 of the Bombay Rent Act for fixing the standard rent. Merely because at the interim stage any order was passed, it cannot be said that the plaintiff's are entitled to that compensation and must be given that compensation at the final hearing of the appeal, even though they are not at all entitled to compensation, as in this case,

37. The fact that the car has been disposed of also does not entitle the plaintiffs to the continuance of the injunction in the facts and circumstances of the case, when they had no right to such a relief and the Court had no power to grant the injunction, restraining the defendant, or to grant a declaration that the defendant had no right to park his car for the reasons stated above,

38. In the result, the first appeal is allowed, the judgment and decree passed by the learned Judge in the City Civil Court on Dec. 2, 1970 are set aside and the plaintiffs' suit is dismissed. But having regard to the fact that the beneficiaries of the trust gave evidence, saying that they had no objection to the defendant parking his car and also having regard to the fact that the defendant has no car at present, there shall be no order as to costs throughout. In view of this order, the civil application does not survive.

39. Appeal allowed.


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