Skip to content


R.P. Ghosh Vs. Pramilabai Ravindra Puri and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 327 of 1972
Judge
Reported inAIR1977Bom181; 1976MhLJ828
ActsTransfer of Property Act, 1882 - Sections 106; Central Provinces and Berar Letting of Houses and Rent Control Order, 1949; Small Cause Courts Act - Sections 25; Delhi Rent Control Act, 1958 - Sections 14(1); Code of Civil Procedure (CPC), 1908 - Order 22, Rule 1; Uttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 - Sections 3(2), 3(3), 3(4), 7-F and 16; Constitution of India - Article 226
AppellantR.P. Ghosh
RespondentPramilabai Ravindra Puri and ors.
Appellant AdvocateA. Shelot, Adv.
Respondent AdvocateR.S. Buxy, Adv.
Excerpt:
.....the legal representatives of the deceased landlord - the landlord had obtained permission of the rent controller for terminating the tenancy of the tenant, for bona fide occupation of himself and his family, under clause 13 (3) (vi) of the c.p and berar letting of houses and rent control order, 1949 - the order terminated the tenancy on account of a valid notice, that was served under section 106 of the transfer of property act, 1882 - the court ruled that suit brought by the legal representatives of the landlord, who died after termination of the tenancy, was competent.;b) the service of notice of termination of the tenancy, by registered post, proved futile - the tenant refused to accept another notice issued - the court held that as the landlord had no other alternative available,..........other grounds, under clause 13 (3) (vi) of the central provinces and berar letting of houses and rent control order, 1949, referred to hereinafter as the rent' control order, seeking permission to serve a notice terminating the tenancy of the applicant-defendant on the ground that he required the premises for his and his family's bona fide personal occupation. such a permission was granted to late ravindra puri by the rent controller on 30-3-1970. an appeal filed against the said order was dismissed by the appellate authority on 27-8-1970. thereafter ravindra puri served a notice upon the defendant-tenant under section 106 of the transfer of property act. when the initial notice came back with a postal endorsement that the tenant had already left the place on 15-12-1970 a fresh notice.....
Judgment:

Dharmadhikari, J.

1. The non-applicants-plaintiffs filed a suit for ejectment, damages, mesne profits etc., against the applicant-defendant, It is an admitted position that the applicant-original defendant was a tenant of the premises on a monthly rent of Rs. 14/- per month, Original Landlord Ravindra Puri filed an application, amongst other grounds, under Clause 13 (3) (vi) of the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949, referred to hereinafter as the Rent' Control Order, seeking permission to serve a notice terminating the tenancy of the applicant-defendant on the ground that he required the premises for his and his family's bona fide personal occupation. Such a permission was granted to late Ravindra Puri by the Rent Controller on 30-3-1970. An appeal filed against the said order was dismissed by the appellate authority on 27-8-1970. Thereafter Ravindra Puri served a notice upon the defendant-tenant under Section 106 of the Transfer of Property Act. When the initial notice came back with a postal endorsement that the tenant had already left the place on 15-12-1970 a fresh notice was affixed to the conspicuous part of the suit house, when according to the plaintiffs, the defendant was inside the house and he refused to accept the notice when tendered. Thus, according to the plaintiffs, the tenancy of the defendant-tenant was validly terminated by a notice dated 13-12-1970 which was affixed to his house on 15-12-1970 terminating his tenancy with effect from 1st January 1971. In the suit the plaintiffs had also claimed notice charges, damages, mesne profits etc.

2. The defendant-tenant resisted the suit and contended that the quit notice was not validly served upon him. He further contended that the originalLandlord Ravindra Puri having died on 4-2-1971, that is, after the service of notice under Section 106 of the Transfer of Property Act, the suit filed by his legal representatives is not maintainable. According to the applicant-tenant, the permission was secured by late Ravindra Puri on the ground that he required the premises for his bona fide personal occupation. It is on this ground alone the permission was granted by the Rent Controller. Ravindra Puri died on 4-2-1971 after securing the permission and serving the notice. The ground on which the permission was sought and granted to late Ravindra Puri was personal to him and, therefore, after his death the cause of action did not survive. The permission granted by the Rent Controller stood exhausted with the death of late Ravindra Puri and it was obligatory on the part of his legal representatives, the present plaintiffs-non-applicants, to prove their own bona fide need independently, Since this has not been done and since a fresh permission from the Rent Controller is not obtained by the legal representatives of deceased Ravindra Puri the present suit is not maintainable.

3. It is pertinent to note at this stage that as Ravindra Purl died on 4-2-1971, the present suit for ejectment waa filed by his legal representatives, namely his widow and his minor children, At the trial on behalf of the plaintiffs, Smt, Pramilabai, plaintiff No. 1 and Madan Thakur (P. W. 2) were examined. A certified copy of the order passed by the Rent Controller was also placed on record. On the other hand, on behalf of the defendant, the defendant himself entered into the witness-box.

4. After appreciating all the evidence on record, the learned Judge of the Small Cause Court, Nagpur, came to the conclusion that on 15-12-1970 the notice was tendered to the defendant-tenant and he refused to accept it, and therefore it was affixed at a conspicuous place on the house occupied by the defendant as a tenant. In this view of the matter, the learned Judge recorded a finding of fact that the quit notice was validly served on the defendant on 15-12-1970. The learned Judge also negatived the contention raised on behalf of the defendant that the suit was not maintainable, because the cause of action was personal to late Ravindra Puri and after his death the present plaintiffs, his legal representatives, had no locus standi to file the present suit unless they obtained a fresh per-mission from the Rent Controller, In the result, therefore he passed a decree against the defendant ordering him to deliver vacant and peaceful possession of the suit premises and also to pay the damages. Against this judgment and decree of Small Cause Court, Nagpur, a revision application was filed by the defendant-tenant under Section 25 of the Small Cause Courts Act.

5. When the matter came up for hearing before the Single Judge of this Court, as the learned Judge found that the matter involves an important question of law relating to the question as to whether the legal representatives of the landlord can proceed to institute a suit after obtaining the permission of the Rent Controller on the ground of bona fide need and requirements of the landlord, who died before the suit is filed and as the learned Judge further found that in view of the subsequent decision of the Supreme Court in Smt. Phool Rani v. Naubat Rai Ahluwalia, : [1973]3SCR679 , the earlier decision of this Court in Husseinbhai v. Navayug Chitrapat Co. Ltd., requires re-consideration, the matter was referred to the Division Bench.

6. Shri Shelot, the learned counsel for the applicant-tenant, contended before us that the impugned notice was not served upon the tenant in accordance with the provisions of Section 106 of the Transfer of Property Act.

7. In our opinion there is no substance in this contention. Once the evidence adduced on behalf of the plaintiffs and particularly the evidence of Madan Thakur (P, W. 2), is accepted, it is quite obvious that on 15-12-1970 the plaintiffs tried to serve a notice on the defendant-tenant. The said notice was dated 13-12-1970. The defendant refused to accept the said notice when tendered and, therefore, as no other alternative was left to the landlord, the said notice was affixed to the conspicuous part of the premises, which are occupied by the defendant as a tenant. It is pertinent to note that on earlier occasion when a notice by registered post was sent to the defendant-tenant on his office address, it came back with an endorsement that he had left. In these circumstances, in our opinion, the landlord was fully, justified in affixing the notice to the conspicuous part of the premises as per the provisions of Section 106 of the Transfer of Property Act, when the tenant refused to accept the same when it was again tendered to him on15-12-1970. In this view of the matter, in our opinion, the learned Judge of the Small Causes Court was fully justified in coming to the conclusion that the service of the notice on the tenant was perfectly legal and valid.

8. It was then contended by Shri Shelot that under the provisions of the Rent Control Order it was late Ravindra Puri who had filed an application under Clause 13 (3) (vi) on the ground that he needed the house for the purpose of his bona fide occupation. After securing such a permission he had also served a notice under Section 106 of the Transfer of Property Act. However, thereafter before institution of the suit itself he died on 4-2-1971 and the suit came to be filed on 9-3-1971 by his legal representatives. Therefore, according to Shri Shelot, the permission granted by the Rent Controller was on the ground which was personal to deceased Ravindra Puri. In this view of the matter, the legal representatives of the landlord have n0 locus standi to institute a suit or to proceed further with the proceedings because the cause of action which was personal to deceased Ravindra Puri had perished with him. In support of. his contentions Shri Shelot has strongly relied upon a decision of the Supreme Court in Smt. Phool Rani v. Sh. Naubat Rai Ahluwalia, (Cit. supra) : [1973]3SCR679 . It is not possible for us to accept these contentions.

9. For properly understanding the controversy involved in this revision application it will be worth-while to refer to certain important provisions of the Rent Control Order. The terms 'Landlord' and 'tenant' are defined in Clauses 2 (4) and (5) respectively of the Rent Control Order, which read as under

2 (4) 'Landlord' includes the person who is receiving or is entitled to receive the rent of a house whether on his own account or on behalf of himself and others or as an agent or trustee, or who could so receive the rent or be entitled to receive the rent if the house were let to a tenant; and

2 (5) 'Tenant' means any person by whom or on whose account rent is payable for a house and includes a sub-tenant and a person continuing in possession after the term of his tenancy has expired.'

The relevant provisions of Clauses 13 (1), (2) and 13 (3) (vi) of the Rent Control Order, which deal with the seeking of previous written permission of the Rent Controller read as under;

'13 (1) No landlord shall, except with the previous written permission of the Controller,--

(a) give notice to a tenant determining the lease or determine the lease if the lease is expressed to be determinable at his option; or

(b) where the lease is determinable by efflux of the time limited thereby, require the tenant to vacate the house by process of law or otherwise if the tenant is willing to continue the lease on the same terms and conditions.

(2) A landlord who seeks to obtain permission under Sub-clause (1) shall apply in writing to the Controller in that behalf:

Provided that where the tenancy is for a specified period agreed upon between the landlord and the tenant, no application under items (vi) and (vii) of sub-clause (3) shall be entertained by the Controller before the expiry of such period.

13 (3) If after hearing the pertinent the controller is satisfied- ***** (vi) that the landlord needs the house or a portion thereof for the purpose of his bona fide occupation, provided he is not occupying any other house of his own in the city or town concerned; he shall grant' the landlord permission to give notice to determine the lease as required by Sub-clause (1).'

From the bare reading of Clause 13, it is obvious that a prohibition is imposed upon a landlord to give notice to determine the lease of the tenant unless he obtains a previous written permission of the Rent Controller. The order passed by the Rent Controller, subject to the provision of an appeal and review, is final. The Rent Control Order confers an exclusive jurisdiction upon the authorities constituted under the Rent Control Order to decide the issues arising out of said order. It is obvious from the provisions of Clause 13 that the permission sought by the landlord for giving a notice to the tenant determining the lease on the grounds enumerated therein can he granted by the Rent Controller alone. Unless the Rent Controller is satisfied that conditions laid down in Clause 13 are fulfilled, it is not open to him to grant such a permission. Once such a permission is granted by the Rent Controller, then the landlord is at liberty to serve a notice upon the tenant terminating his tenancy as per the provisions of the Transfer of Property Act. It is the Transfer of Property Act which then applies. Section 106 of the Transfer of Property Act does not require that a reason for determining the tenancy should be specifically stated in the notice itself. It is not necessary under the Law to set out the grounds for termination in a notice to quit. The contents of notice to quit and its service etc., are wholly governed by the provisions of the Transfer of Property Act. The provisions of the Rent Control Order do not come into play nor they can affect the question of notice to quit, its requirement or its service etc. Once a valid permission from the Rent Controller is obtained, the provisions of the Rent Controller Order are in addition to those of the Transfer of Property Act. Therefore, before a tenant can be evicted by the landlord, he must comply with the provisions of Section 106 of the Transfer of Property Act. The Rent Control Order does not in any way abrogate Chapter V of the Transfer of Property Act which deals with leases. The notice under Section 106 of the Transfer of Property Act is essential for bringing to an end the relationship of a landlord and a tenant. Unless the relationship is validly terminated, the landlord does not get right to obtain possession of premises by evicting the tenant. Section 106 of the Transfer of Property Act does not provide for the satisfaction of any additional condition. The Rent Control Order Only provides that such a notice cannot be given unless a written permission of Rent Controller is obtained. It does not lay down any further condition so far as the quit notice under Section 106 of the Transfer of Property Act is concerned. The filing of a suit for ejectment is an independent action. The combined effect of this is that it contemplates two distinct proceedings, one relating to granting of a written permission by the Rent Controller to give notice to determine the lease under the provisions of the Rent Control Order and thereafter filing of a suit for ejectment before a competent Civil Court after giving necessary notice under Section 106 of the Transfer of Property Act. The Rent Controller or the authority constituted under the Rent Control Order has no authority or jurisdiction to eject a tenant or deliver possession of the property to the landlord. This is the province of a Civil Court. The filing of the ejectment suit after giving a notice under Section 106 of the Transfer of Property Act is not the continuation of the proceedings instituted before the Rent Controller, but it is an independentand distinct proceeding which is governed by the Code of Civil Procedure and the Transfer of Property Act. Therefore, in our opinion the law laid down by the Supreme Court in Smt Phool Rani v. Sh. Naubat Rai Ahluwalia, : [1973]3SCR679 (cit. supra) will have to be understood in this context. If so read, we are further of the opinion that the said decision is obviously distinguishable.

10. In the said case the Supreme Court was concerned with the proceedings instituted under the Delhi Rent Control Act, 1958 and particularly under Section 14(1)(e) of the said Act. In the case before the Supreme Court a landlord had filed an application against a tenant seeking possession of certain premises on the ground of personal requirements and during the course of the said proceeding the landlord died and in that context the Supreme Court observed that legal representatives of landlord (since deceased) have no right to continue the proceeding as Initiated by the landlord for ejectment of the tenant under Section 14(1)(e) of Delhi Rent Control Act. The provisions of the Delhi Rent Control Act and the Rent Control Order are not pari materia, nor they are identical. In the case before us the proceedings under the Rent Control Order had come to an end when the permission was granted by the Rent Controller and was confirmed by the Appellate Court on 27-8-1970, that is, long before the death of the original landlord Ravindra Puri. In the case before the Supreme Court the matter was still pending before the Tribunal constituted under the Delhi Rent Control Act. As the matter was pending before the Tribunal constituted under the said Act, the order passed had not achieved finality. In para. 9 of the said judgment the Supreme Court, therefore, observed that 'though the plaintiff died during the pendency of the appeal, it is as if he died during the pendency of the suit because the suit was dismissed on a preliminary issue concerning the validity of the notices to quit, was remanded in appeal for trial on the merits'. As those proceedings were pending in a suit, the provision of Order 22, Rule 1, Code of Civil Procedure, applied to the proceedings and in -that context ultimately the Supreme Court observed that 'legal representatives of a landlord (since deceased) have no right to continue the proceeding as initiated by the landlord for ejectment of the tenant under Section 14(1)(e) of Delhi Rent Control Act because the bona fide requirement of the premises for the residence of himself (landlord) and his family members (together) is his personal requirement'. In this context reference could usefully be made to the following observations of the Supreme Court in paras. 13, 14, 17, 19 (Partly) and 20:

'13. Several decisions were cited before us but those falling within the following categories are to be distinguished:

(i) cases in which the death of the plaintiff occurred after a decree for possession was passed in his favour; say, during the pendency of an appeal filed by the unsuccessful tenant;

(ii) cases in which the death of the decree-holder landlord was pleaded as defence in execution proceedings; and

(iii) cases in which, not the plaintiff but the defendant-tenant died during the pendency of the proceedings and the tenant's heirs took the plea that the ejectment proceedings cannot be continued against them.

14. Cases of the first category are distinguishable because the decisions therein are explicable on the basis, though not always so expressed, that the estate is entitled to the benefit which, under a decree, has accrued in favour of the plaintiff and therefore, the legal representatives are entitled to defend further proceedings, like an appeal, which constitute a challenge to that benefit.

17. Cases of the second category are distinguishable because the decisions therein are, by and large, based on the principle that an executing court has no jurisdiction to go behind the decree. It must execute the decree as it finds it, save in exceptional cases as, for example where the decree on the face of it is without jurisdiction.

19. Cases of the third category are governed by totally different considerations. The landlord's right to evict the tenant on the grounds available under the Rent Act does not come to an end with the death of the tenant That right is enforceable against those in whom the tenant's interest resides for the time being.

20. We have referred to some of the decisions in three categories- not with a view to determining their correctness but only in order to show that they rest on different principles or could be explained in reference to such principles. We are concerned with a matter not involving the application of any of those principles. For reasons already stated, we are of the viewthat considering the nature of the claim made in the instant case and the bundle of facts which constitute the plaintiff's cause of action, his right to sue will not survive to his legal representatives.'

As already observed, in the case before us the proceedings instituted under the Rent Control Order were already decided and the orders passed therein had become final. The orders passed by the authorities under the Rent Control Order were binding on the pertinent. In pursuance of the permission granted by the Sent Controller, the original landlord had also issued a quit notice under Section 106 of the Transfer of Property Act to the tenant. Before the death of the original landlord Ravindra Puri, the tenancy of the defendant-tenant also stood terminated. These were the accomplished facts which had achieved finality and (hereafter the legal representatives filed a suit for ejectment against the tenant It is not disputed before us, nor it could be disputed, that after the death of Ravindra Puri, the plaintiffs became the owners of the house. They also became the landlords of the suit property and were entitled to receive the rent of the house. A notice to quit under Section 106 of the Transfer of Property Act is to be given by the lessor to lessee. The lessor will obviously include the successor-in-title, that is, heirs. Therefore, the plaintiffs were entitled to serve such a notice upon the defendant. If the notice was already given, then it enures for the benefit of successors-in-title of the original lessor.

11. It is also pertinent to note inthe present case that the permission was sought by the original landlord from the Rent Controller on the ground that he wanted the premises for his bona fide residence of his family, as they have no other house of their own in the city. Obviously exclusive jurisdiction is vested upon the Kent Control Authorities to decide the rights of the pertinent arising out of the Rent Control Order. A decision of the Rent Controller in this behalf is binding upon a Civil Court and it is not open for Civil Court to go behind the said order. In this context a reference could be usefully made to a decision of the Supreme Court in Ramji Das v. Trilok Chand, : [1970]3SCR815 . After making a detailed reference to the provisions of U. P. (Temporary) Control of Rent and Eviction Act,1947, the Supreme Court observed as under:

'3. The proceeding before the District Magistrate under Section 3(2) and before the Commissioner under Section 3 (3) of the U. P. (Temporary) Control of Rent and Eviction Act are quasi-judicial in character. By Section 3 (4) of the Act the decision of- the Commissioner under Sub-section (3) of Section 3, subject to any order passed by the State Government under Section 7-F of the Act, is declared final. The respondent did not prefer any petition before the State Government under Section 7-F of the Act and on that account the order passed by the Additional Commissioner, exercising powers of the Commissioner under Section 3 (3), became final. Section 16 of the Act provides that no order made under the Act by State Government or the District Magistrate shall be called in question in any court. It is true that the finality of the order declared by Section 3 (4) and Section 16 will not exclude the jurisdiction of the High Court in exercise of the jurisdiction under Article 226 of the Constitution to issue an appropriate writ quashing the order. But subject to interference by the High Court, the decision must be deemed final and is not liable to be challenged in any collateral proceeding.

4. In our view, the High Court was in error in holding that the decision of the Rent Control and Eviction Officer was, in the suits filed by the appellant, open to the objection that the officer did not consider the needs of the tenant', The Rent Control and Eviction Officer had jurisdiction to hear and decide the matter. Even if we assume that he committed an error in the exercise of his jurisdiction, the error could be corrected only in a proceeding under Section 7-F of the Act by approaching the State Government and by way of a writ petition to the High Court, but the order made by the Rent Control and Eviction Officer and confirmed by the Additional Commissioner could not be challenged in suit.'

Similar view was taken by this Court in Mohd. Usman v. Bhalida Abdul Karim 1960 Nag LJ 109.

12. Once it is held that the decision of the Rent Controller so far it relates to the matter within his exclusive jurisdiction is concerned, is final and could not be challenged in a suit or in any collateral proceedings then, in our opinion, the same matter cannot be reopened in a Civil Suit instituted by the landlord after obtaining a permission from the Rent Controller. So far as a suit for ejectment is concerned, the cause of action is notthe ground on which the permission is granted by the Kent Controller, but the termination of tenancy of the 'tenant under the provisions of Transfer of Property Act. The same gives an occasion for and forms the foundation of suit. So far as the ejectment suit is concerned, the grounds of ejectment are irrelevant. To such a suit the provisions of the Civil Procedure Code and Transfer of Property Act will apply and not the provisions of the Rent Control Order. If this is so, then, in our opinion, the death of the landlord after valid termination of the tenancy of the tenant will not perish the cause of action itself. Once it is held that the reasons for grant of permission are not relevant while deciding an ejectment suit, then, in our opinion, to such a case the law laid down by the Supreme Court in Smt. Phool Rani's case : [1973]3SCR679 will not apply. Obviously the matter might stand on somewhat different footing if the landlord seeks permission to serve a notice upon the tenant to determine his lease under Clause 13 (3) (vi) of the Rent Control Order for his bona fide personal occupation and during the pendency of the said proceedings before the authorities constituted under the Rent Control Order the landlord dies. Of course In that case also much will depend upon the pleadings of pertinent, the evidence on record and the stage of proceedings etc, In this context reliance was placed by the learned Counsel for the non-applicants upon the decisions of Madras and Rajas-than High Courts in Vijayaraghavan v. Mohamed Yakub AIR 1976 Mad 205 and Ramsharan v. Ramavtar . However, we are not called upon to decide such a question in this revision application and therefore we need not express any opinion in this behalf. In the case before us that stage was over and permission was already granted to deceased Ravindra Puri and the same had also become final.

13. Such a view seems to have been taken by Allahabad High Court in Syed Mohd. Ibne Ali v. Smt. Zanab Be-gum, : AIR1974All195 . After making a reference to the decision of the Supreme Court in Smt. Phool Rani v. Naubat Rai Ahluwalia, : [1973]3SCR679 (cit. supra) the learned Judge in para. 5 of the judgment observed as under:

'Coming to the last point I find that this ground was not taken in the grounds of appeal. However, Sri S. Rahman urged that since it was a legal ground he maybe allowed to argue. He relied upon the case of Smt, Phool Rani v. Naubat Rai Ahluwalia, : [1973]3SCR679 . In my view this ruling does not apply to the facts of the case. In that case the plaintiff had moved an application under the Delhi Rent Control Act seeking permission against the tenant for ejectment of certain premises on the ground of personal requirement. The plaintiff died during the pendency of the application. The question involved was whether the cause of action would survive to the legal representatives or whether the application abated. Their Lordships observed at page 2114 that 'we have referred to some of the decisions In three categories, not with a view to determining their correctness but only in order to show that they rest on different principles or could be explained in reference to such principles. We are concerned with a matter not involving the application of any of those principles. For reasons already stated, we are of the view that considering the nature of the claim made In the instant case and the bundle of facts which constitute the plaintiff's cause of action, his right to sue will not survive to his legal representatives, 'In the case before me permission to sue had already been obtained by the deceased plaintiff and after obtaining such permission he had filed a suit for ejectment. He died during the pendency of the suit, Here the two proceedings are entirely different, namely, there was one stage when permission proceedings were pending before the Rent Control and Eviction Officer. That stage had passed and permission had been granted to the landlord. Without obtaining that permission suit at that tune could not have been filed for ejectment. Having obtained that permission the suit was filed and in this second stage, namely, when suit for ejectment was pending the plaintiff died. Obviously in such a case right to sue survived to the heirs of the landlord.'

14. In the case before us also the permission was already granted by the Rent Controller and in pursuance of that permission the deceased landlord had also terminated the tenancy of the defendant tenant and, therefore, in our opinion, the legal representatives of deceased landlord Ravindra Puri were entitled to file a suit for ejectment of the defendant-tenant.

15. In the view which we have taken, therefore, there is no substance in this revision application. The revisionapplication fails and is dismissed with costs.

16. Revision application dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //