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Kaikhushru H. Bhivandiwalla and ors. Vs. Nargesh and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 1591 of 1966
Judge
Reported inAIR1971Bom225
ActsTransfer of Property Act, 1882 - Sections 105 and 108; Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 12, 12(2), 12(3), 13(1), 14, 15 and 15(2); Constitution of India - Articles 226 and 227
AppellantKaikhushru H. Bhivandiwalla and ors.
RespondentNargesh and ors.
Appellant AdvocatePorus Mehta, ;S.B. Sukthankar and ;D.K. Padmanabhi, Advs.
Respondent AdvocateR.W. Adik, Adv.
Excerpt:
- - the grounds on which the decree was sought were (1) that the defendant henley had failed to pay (i) water charges, (ii) arrears of rent for more than six months; 1 applied to the court or small causes for bringing herself on he record as executrix of the will and as the sub-tenant of henley and prayed that she may be joined as a party-defendant to enable her to raise her contentions as well as adopt the contentions of the deceased henley. 1 was occupying the suit premises as the sub-tenant of the deceased henley, as to whether the deceased henley was in arrears of rent and failed and neglected to pay the same within one month of the notice and also as to whether the, deceased henley was not using the premises for the purposes for which they were let out for a period of six months.....order1. the petitioners in this special civil application filed under article 227 of the constitution of india are trustees o the estate of the late khan bahadur h.n. bhiwandiwalla owning among other properties a building known as churchill chambers. one h. henley was a tenant of flat no. 7 in the said building for many years prior to 1955. the trustees have appointed a constituted attorney and the said constituted attorney found that the said henley was in arrears and gave a notice to mr. henley to pay rent and water charges due in respect of the said flat henley sent a reply through his solicitors raising various pleas denying his liability to pay rent and water charges. on may 23, 1958, the constituted attorney of the petitioners finally gave a notice to the said henley determining his.....
Judgment:
ORDER

1. The petitioners in this special Civil application filed under Article 227 of the Constitution of India are Trustees o the estate of the late Khan Bahadur H.N. Bhiwandiwalla owning among other properties a building known as Churchill Chambers. One H. Henley was a tenant of flat No. 7 in the said building for many years prior to 1955. The trustees have appointed a constituted attorney and the said constituted attorney found that the said Henley was in arrears and gave a notice to Mr. Henley to pay rent and water charges due in respect of the said flat Henley sent a reply through his Solicitors raising various pleas denying his liability to pay rent and water charges. On May 23, 1958, the constituted attorney of the petitioners finally gave a notice to the said Henley determining his tenancy. It was stated in the notice that the said Henley was liable to pay arrears of rent from October 1, 1957 to April 30, 1958 for 7 months at the rate of Rs. 89.37 per month amounting to Rs. 625.59. It also stated that the said Henley was liable to pay a further sum of Rs. 201.50 in respect or water charges payable to the Bombay Municipal Corporation and alleged that Henley 'in contravention of the terms and conditions of the tenancy, and also against the provisions of the Bombay Rent Control Act, sublet a portion of the premises in his occupation to some persons called Miss Byramji, Miss Mary, and others, to earn income by way of business, causing nuisance and annoyance to the adjoining or neighbouring occupiers. 'The constituted attorney, therefore, called upon Henley by the said notice to quit vacate and deliver possession of the said flat No. 7 at the end of the month next to the current month of his tenancy.

2. Relying on the said notice which remained unreplied by Henley, the petitioners filed a suit, being R.A.E. & R. Suit No. 1686/9105 of 1958 in the Court of Small Causes at Bombay on July 9, 1958praying that the said Henley who was the defendant should be ordered and decreed to deliver possession of the said flat and to pay to the plaintiffs a sum of Rs. 1029.58 and future mesne profits. The grounds on which the decree was sought were (1) that the defendant Henley had failed to pay (i) water charges, (ii) arrears of rent for more than six months; (2) that he was using the premises for purposes for which they were not let for over six months and had consequently committed an act contrary to the provisions of Clause (o) of Section 108 of the Transfer of Property Act inasmuch as the premises were let out to him for the purpose of residence, but the defendant was carrying on therein the business of a lodg-ing and boarding house and hence the plaintiffs were entitled to possession under Section 13(1)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the 'Bombay Rent Act')

3. During the pendency of the suit and after filing his written statement, Henley died on April 5, 1960 leaving behind him a will executed on November 23, 1956 appointing Miss Byramjee respondent No. 1 in this petition as the executrix of his will and bequeathed all his tenancy rights and rights in other properties to her as mentioned in the will.

4. Sometime in December 1960, respondent No. 1 applied to the Court or Small Causes for bringing herself on He record as executrix of the will and as the sub-tenant of Henley and prayed that she may be joined as a party-defendant to enable her to raise her contentions as well as adopt the contentions of the deceased Henley. It appears that the petitioners consented to her being made a party-defendant as she was in possession of the flat and she filed her written statement adopting all the contentions of the deceased Henley and raised a further defence that she had been occupying the suit flat as the sub-tenant of Henley from March 1956 and that the tenancy also vested in her as the executrix of the will of Henley.

5. The learned Judge of the Court of Small Causes framed necessary issues as to whether respondent No. 1 was occupying the suit premises as the sub-tenant of the deceased Henley, as to whether the deceased Henley was in arrears of rent and failed and neglected to pay the same within one month of the notice and also as to whether the, deceased Henley was not using the premises for the purposes for which they were let out for a period of six months immediately preceding the date of the suit. It is not necessary for the disposal of this petition to mention the other issues raised by the learned Judge.

6. On behalf of the petitioners, the constituted attorney Mr. Forbes was the principal witness, but they examined one Miss Kurien who was a paying guest of Henley for sometime and also one Bhavani who was a former paying guest of Henley. The petitioners further examined one clerk in the office of the Administrator General, Atmaram Dhondu Devkar before whom, according to the petitioners, respondent No. 1 stated that she was occupying the suit flat as a paying guest. Respondent No. 1 examined herself and a witness one Rao. She also produced a writing given by Henley on March 20, 1956, Ex. S.

7. The learned Judge considered the entire oral and documentary evidence before him and held inter alia that respondent No, 1 failed to prove that she was occupying the suit premises as the subtenant of the deceased Henley, that theplaintiffs established that Henley was in arrears of rent and had failed to pay the arrears within one month of the service of the notice; and that hence the plaintiffs were entitled to a decree for possession as well as for the arrears of rent.

8. It may be noted that Henley had deposited all the arrears of rent and respondent 1 was paying from time to time the rent due during the pendency of the suit as well as the appeal. It is not disputed that respondent No. 1 has been paying rent thereafter accrued due from time to time.

9. Feeling aggrieved by the decree passed by the learned Judge, respondent No. 1 filed an appeal before the Full Court of the Small Cause Court and the appeal wag heard by the learned Chief Judge Desai and judge Borde who set aside the findings of the learned trial Judge with regard to the question of subletting and arrears of rent holding that respondent No. 1 was a lawful sub-tenant of Henley and protected under the Bombay Bent Act, that it was not established that Henley was in arrears of rent for six months or more at the date of the notice under Section 12(2) of the Bombay Rent Act and hence relief under Section 12(3)(b) ought to be given to respondent No. 1. The petitioners had urged before the appellate court the ground that Henley used the premises for lodging and boarding business contrary to the contracted use of residence and that contention was negatived by the Full Court. As no other findings of the Full Court were referred to in the course of the arguments in this petition, it is not necessary to refer to the said other findings. In view of these findings, the Full Court set aside the decree passed by the trial Court and dismissed the petitioners' suit with costs by their judgment and decree dated February 16, 1983.

10. Feeling aggrieved by the said decision of the Full Court, the petitioners have filed the above special civil application under Article 227 of the Constitution of India challenging the validity of the findings of the Full Court regarding sub-letting of the flat to respondent No. 1, change of user, and non-payment of rent for more than six months by Henley, and it is prayed that the decree passed by the trial Court should be restored.

11. In support of this petition Mr. Porus Mehta, the learned Counsel for the petitioners, urged firstly that the finding of the Full Court with regard to change of user was patently erroneous in law inasmuch as the Full Court overlooked a finding of fact by the trial Court that there were a number of paying guests and came to a decision on a wrong assumption of fact that only one or two paying guests were there. He also submitted that the Full Court committed an error of law in reopening the finding based on an admission by respondent No. 1 that the deceased Henley was usingthe premises for keeping paying guests. As a further argument in support of this contention, he submitted that the Full Court completely misread the findings of the trial Court in this behalf and was wrong in assuming that the dominant user of the premises by Henley was for residence, and hence there was no basis for holding that there was no change of user.

12. There is no substance in any of these contentions. The Full Court, which was entitled to re-appreciate evidence and reverse findings of fact improperly recorded by the trial court, fairly and reasonably considered all the evidence before the court and came to the right conclusion that there was no unauthorised user of the premises by Henley Mr. Mehta has taken me through the entire pleadings and the evidence and I find that the Full Court was quite right in holding:--

'It is clear that right from October 1955 to August 1959, there were two paying guests namely, the appellant upto February 1956, and Miss Kurian upto August 1959.'

The Full Court has also considered and held that Bhavnani was occupying a portion of the flat from October 1953 to April 1955 and after considering all this evidence came to the conclusion as follows:--

'On these facts Mr. Aptekar submits that Mr. Henley was conducting a business of lodging and boarding house. It is in evidence that the appellant was occupying the room, while Miss Kurian used to sleep in the dining room itself. There are four rooms in the flat. Thus the major portion of the flat was being used by Mr. Henley as his residence. The dominant user of the flat was, therefore, by way of residence. The testimony of the appellant and her witness Mr. Rao clearly goes to establish that the appellant was allowed to stay by Mr, Henley mainly for the purpose of looking after him, and his household as he had gone very old and had lost his wife in the year 1954. The appellant was looking after Mr. Henley in all respects and thus she was much more than a paying guest of Mr. Henley, In substance. Miss Kurian can alone be taken as a paying guest in the strict sense of the word. It is, therefore, clear that the dominant user of the flat was of residence and not of conducting any lodging and boarding business,'

13. Mr. Porus Mehta is not right when he contends that the Full Court overlooked a finding of fact by the lower Court that there was a number of paying guests and came to a decision on a wrong assumption of fact. The trial Court has not found that there were a number of paying guests. What the trial Court observed while deciding issue No. 9 was:--

'It is common ground that the deceased Henley was using the suit premises for keeping paying guests.'

There is nothing on the record to support this observation of the learned Judge. Mr. Porus Mehta argues that it must have been conceded before the trial Judge that the deceased Henley was using the suit premises for keeping paying guests and hence, the learned trial Judge has made the above observation. It is difficult to appreciate this argument because unless the concession has something to do with the pleadings and the evidence, the concession itself cannot be said to be a concession on which the Court could act. Moreover, the finding of the trial Court on this issue was in favour of respondent No. 1 inasmuch as the trial Judge held that there was no evidence whatsoever before the court to show for what purpose the suit premises have been let out by the plaintiffs to Henley.

14. In the course of arriving at that finding, the learned Judge has undoubtedly made the above observation that 'it is common ground.' But it cannot be said that it is common ground unless it is admitted in the written statement or in the course of arguments. There is nothing in the written statement filed by Henley or by respondent No. 1 to show that Henley was using the suit premises for keeping guests, apart from the admission that respondent No. 1 herself and Miss Mary Kurien were formerly occupying the premises as paying guests. This is something far less than say-fag that Henley was carrying on the business or keeping paying guests. It is true that in certain circumstances, rooms may be let in the same manner as lands and tenements, but a mere lodger who does not have exclusive possession of his room is given nothing more than a licence to reside in the, house. If Henley entertained only one or two persons at a time as his paying guests, it can never be said that he was carrying on the business of entertaining paying guests.

15. Mr. Porus Mehta has further submitted that in the course of the reasoning in paragraph 27 of the judgment, the Full court bas referred to a conclusion of the trial court as follows:--

'On the strength of his exclusive possession and the absence of any receipts to show that he paid guest charges, the learned trial Judge came to the conclusion that Mr. Bhavnani was a sub-tenant of Mr. Henley.' Mr. Mehta contends that no such finding was recorded by the trial Judge, and therefore, there is an error apparent on the face of the record. Mr. Mehta is quite right in his contention. But the error cannot be said to be a material error as ft does not affect the conclusion of the Full Court that the plaintiffs did not establish that Henley was conducting a business of lodging and boarding house or the business of entertaining paying guests.

16. The Pull Court rightly distinguished the decision in Tompkins v. Rogers (1921) 2 K.B. 94 because in that case,the tenant was proved to be using the entire premises for lodgers and boarders and she herself occupied only one room of the flat and that too along with another lodger. Mr. Mehta submitted that even on the conclusions arrived at by the Full Court, viz., Miss Kurien and respondent No. 1 were paying guests-respondent No. 1 upto February 1956 and Miss Kurien upto August 1959, it should have been held as a matter of law that Henley had changed the user of the premises by doing business of entertaining paying guests. In support of this submission, Mr. Mehta relied on a decision in Thorn V. Madden, 1925 1 Ch. D. 847.

17. But that decision is distinguishable because there was a specific covenant in that case that the lessee of the premises shall not at any time 'during the said term use or permit the said dwelling-house and premises to be used for the purpose of any trade or business whatsoever ....or otherwise than as a private dwelling-house or professional residence only.' The defendant in that case who was an assignee of the original tenant had taken the house although it was beyond her means and she made a practice of taking any friends and other as paying guests in order to meet rent, rates and outgoings. These paying guests were either friends or recommended by friends and were secured by private notification and never by public announcement. The original tenant then filed an action for an injunction to restrain her from doing this on the ground that it constituted a breach of the covenant and Tomlin, J. held that the defendant was committing a breach both of the part of the covenant against using the premises for the purpose of any trade or business and of the part of the covenant against using the premises otherwise than as private dwelling house or professional residence only and that an injunction must be granted to restrain the defendant from committing this breach. Tomlin, J. observed:--

'I think that, where, as here, a lady is of set purpose occupying a house which she is aware is beyond her means and, for the purpose of supplementing her means and enabling her to live in the house, is securing, to use a neutral term, visitors to come and live there for short or long periods upon payment for board and residence, it is impossible to say that the house is being used as a private residence only. It seems to me to be used by her in precisely the same way as it would be used by one who kept a lodging house or a boarding house (whatever the strict distinction between them may be), although there may be some differences in the actual methods employed. This is not like a case between two friends, when to the one desiring to pay a visit the other says: 'I cannot afford to keep you, but I shall be delighted to see you if you will pay. Herewhat is being done is to keep the house permanently available for the accommodation of any approved person who cares to come and stay there and pay for doing so. I think that such a case as this falls into a different category, and amounts to carrying on a business.' (Underlining is mine).

18. In that case the plaintiffs alleged that the defendant had broken the covenants in the sub-lease (inter alia) by using the premises for the purpose of carrying on the business of a boarding house or of letting lodging or of receiving lodgers or paying guests, and by using the premises otherwise than as a private dwelling-house or professional residence only. The defendant admitted the allegation and contended 'that she for the first time in her life, in order to meet rent, rates and outgoings of the said premises, greatly in excess of any sum ever paid for like purpose by her......husband and incurred throughinability to secure a house at less rent on transfer to London from Liverpool, where she formerly resided, on her said husband's change of professional status, and in order to provide against reduction of income and loss through the said change and also her said husband's long illness, has temporarily taken and is taking friends and others as paying guests, who have been secured by private notifications and never by public announcement of the address of the said premises.' Reliance was further placed in that case by the plaintiffs on a letter written by the defendant to a gentleman in Liverpool stating that she had a few paying guests staying in that house and as a doctor and his wife would be leaving, their room would be free for a few days. With respect, Tomlin, J. was right in holding that in view of these allegations by the plaintiffs and admissions by the defendant and other circumstances of the case, in such grease, it may be the business of taking paying guests or a breach of the covenant to use the premises only for private residence.

19. These, however, are not the facts in the instant case. The only thing that was alleged in the plaint paragraph 5 was that the defendant was not using the premises for the purpose for which they were let out for over six months and had consequently committed an act contrary to the provisions of Clause (o) of Section 108 of the Transfer of Property Act and further that

'The plaintiffs state that the premises were let out to the defendant for the purpose of residence but the defendant is carrying on therein the business of a lodging and boarding house.'

These allegations were denied in the written statement paragraph 11 and it was contended therein that the statements made by the plaintiffs were absolutely false and had been made maliciously only with a view to createa ground of ejectment. The evidence led by the plaintiffs, as stated above, was that of Forbes who admitted in cross-examination:--

'So far as I know the defendant and one Miss Mary Kurien were the only persons staying in the suit premises as paying guests; when I filed this suit.' The second witness Miss Mary Kurien admitted in cross-examination that there was no paying guest at any time during her occupation other than herself and respondent No. 1 and she produced the receipt which showed that she was being charged for bed, break-fast and dinner. It is not necessary to mention the evidence of Atmaram Devkar as he has been disbelieved, perhaps rightly, by the Full Court, Thus there is no evidence on the record of this case to show that prior to the filing of the suit, Henley had used the premises for entertaining paying guests as in the case decided by Tomlin, J. The Full Court has found that respondent No. 1 was actually looking after Henley who was an old man and she was something more than guest. Miss Kurien on her own statement had left the premises in August 1959 and there is nothing to show that merely because she was paying for bed, break-fast and dinner, Henley was doing the business of entertaining the paying guests. It was merely a friendly sharing arrangement which can never amount to a business.

20. Mr. Poms Mehta has then relied on another decision in Segal Securities, Ltd. v. Thoseby (1963) 1 All ER 500, where again, there was a specific covenant to use the demised premises 'for the purpose of a private residence in the occupation of one household only' and what was decided by Sachs, J. is, in my judgment, against the proposition made by Mr. Poms Mehta. Sachs, 'J. held that in view of the proof of letting to one Miss Walker by the tenant, it could be said that there was a breach of the covenant to use it for private residence only; but he also observed:--

'To my mind, in the way of life of 1962, the mere taking in of a single paying guest who shares the family life so far as practicable, would not, save in exceptional circumstances, be regarded by a reasonable man as a breach of a covenant to use the house 'only as a private residence. I myself would not willingly hold that to be such a breach; nor do the authorities, on analysis, bind a court so to hold. It is in each case a question of fact and of degree whether the taking in of paying guests is of an order that, having regard to all the circumstances, constitutes a breach of the covenant in question. The way in which those who are sharing the accommodation under the same roof do or do not live as one family could be a relevant circumstance as could the size and lay-out of the premises. Each covenant has to be interpreted as if entered into between two reasonable peoplefamiliar with the premises and their location.'

21. Having regard to these observations and the circumstances of the present case, it cannot be said that the Full Court had committed an error in holding that entertaining Miss Kurien or the respondent No. 1 at one stage or Bhavnani once upon a time, would constitute a change of user and would entitle the plaintiffs to terminate the tenancy of Henley under Section 13(1)(a) of the Bombay Kent Act. (sic),

22. Mr. Porus Mehta has also relied upon the decision in Tendler v. Sproule (1947) 1 All ER 193 which was also considered by Sachs, J. in the above case. Even in Tendler's case there was a covenant 'not to use the premises ..... for any trade or business but keep the same as a private dwelling house only' (underlining is mine.) It was held that taking in of two paying lodgers amounted to breach not only of the covenant not to use the suit premises or any part thereof for any business but also of the covenant to keep the premises for private dwelling house only. But such covenants are not pleaded or established in the present case and in the absence of such express covenants, and in the absence of any evidence to show for what purpose the suit flat was let, as held by the trial Court, it cannot be said that the Full Court was wrong in holding that there was no change of user by Henley in entertaining one or two paying guests.)

23. The next contention of Mr. Porus Mehta is that the Full Court misconstrued Ex. 3 as supporting their conclusion that respondent No. 1 was a sub-tenant who was protected under Section 15 of the Bombay Rent Act. Now Ex. 3 is a writing which is on a piece of paper and which has been admitted in evidence as a writing of Henley and it is as follows

'Dear Miss Byramjee,

You can live at my place as long as you wish.

Sd/-. H. Henley, 20-3-1956.

The flat is more yours than mine. Sd/-. H. H.'

The trial Court came to the conclusion that this document cannot be construed as conferring the status of a sub-tenant on respondent No. 1. The trial Court also relied on the fact that respondent No. 1 was unable to produce any rent receipts or any receipts for payment of rent or any other sum to Henley and in view of the fact that the writing Ex. 3 was inconsistent with the occupation of the premises by Henley himself, it could not be said that respondent No. 1 was occupying the flat as a sub-tenant. The Full Court reversed this finding not merely relying on Exh. 3 but also believing the evidence of respondent No. 1, observing as follows:--

'Let us now consider the evidence on the appellant's side. In order to appreciate the significance of the letter of March 20, 1956, it is necessary to bear in mind its background. As Mr. Rao and the appellant have said, Mr. Henley required somebody, a lady, to look after him and to stay with him in his last days, as he had become a widower in 1954. The appellant has affirmed that she used to give insulin injection to him and look after him in all ways. She adds that she loved him like her father. Thus a bond of affection was created between the two, and it probably resulted in the execution of the letter Ex. 8, by Mr. Henley in appellant's favour. If at all, as a reward of all this, Mr. Henley was pleased merely to allow her to continue to stay only as a paying guest as before, no such writing was necessary. So, something more was intended to be created and given to her by him. Hence probably he added the sentence 'The flat is more yours than mine.' He could have never said so in case of a paying guest. A flat cannot be more of a paying guest than of a landlord or a tenant. These words, therefore, warrant the inevitable conclusion that Mr. Henley did intend to create an interest in the flat in favour of the appellant as a sub-tenant.' The Full Court considered that the reason for such guarded words was that at that time, creation of sub-tenancy was prohibited under the Bombay Rent Act as it stood then and the same reason also explained why Henley passed no receipts of rent to the appellant respondent No. 1, even though she paid it to him. The Full Court further considered the subsequent conduct of the respondent No. 1 and came to the conclusion having regard to all the facts and circumstances of the case that by a writing Ex. 3 Henley intended to create a sub-tenancy in favour of respondent No. 1. I do not think that there is anything wrong in the reasoning or the conclusion of the Full Court with regard to Ex. 3 and in any event, this court will not be justified in interfering with the conclusion arrived at by the Full Court after taking into consideration all the facts and circumstances and believing respondent No. 1 and her witness Rao.

24. The contention of Mr. Porus Mehta that respondent No. 1 would not become a sub-tenant under Section 15 andget the protection as a sub-tenant under Section 15(2) of the Bombay Rent Act, must also be rejected because it is clear that Henley wanted respondent No. 1 to be in possession of the flat and the right to possession is certainly an interest in the premises within the meaning of Section 15(2).

25. The last contention urged by Mr. Porus Mehta is that there is a patent error of law committed by the Full Court in ignoring the admission made by defendant at the trial that the deceased Henley was in arrears of rent and in treating the case asone falling under Section 12(3)(b) of the Bombay Rent Act. There is no substance even in this contention. To my mind, it appears that once the tenancy of Henley was terminated, respondent No. 1 gets the protection under Section 14 and she is entitled to hold the tenancy on the same terms and conditions as he would have held from the tenant if the tenancy had continued. In other words, as a sub-tenant, as long as she was ready and willing to carry out the terms and conditions of the tenancy, she got the protection under Section 12(2) of the Bombay Rent Act and it is undisputed that her tenancy is not at all terminated by the plaintiffs. Mr. Poms Mehta has, however, pointed out that there is something in the decision of the Division Bench or this Court in Indian Coffee Workers Co-operative Stores Ltd. v. Bachoobai Cowasjee Dhanjee-shaw, : AIR1967Bom210 which is contrary to the view which I think should be taken on a proper interpretation of Section 14. But in my judgment, this submission of Mr. Porus Mehta must be rejected because the facts in that case were entirely different. The suit was filed not only against the tenant but also the subtenants on the ground that unauthorised alterations were made by all the defendants. It was found that all the defendants had made unauthorised alterations in the suit premises and what Mr. Justice Patel observed was:--

'Section 12 entitles the landlord to obtain possession for non-payment of rent and Section 13 for other reasons. If, therefore, the landlord is entitled to obtain possession under any of these sections. Section 14 must give way. It would be preposterous to suggest that a tenant who has destroyed the value of the property by unauthorised alterations should be able to successfully prevent the landlord from obtaining possession by parting it to a sub-tenant or who has not paid rent for years should prevent the landlord from obtaining possession by in-dueling a sub-tenant when notice is given. Again in a case where a landlord has sued both the tenant and sub-tenant for possession on the ground that he wants the premises for his personal use it could not be intended that he must thereafter start another litigation against the sub-tenant. For if Section 14 is allowed to have uncontrolled effect after the termination of the tenant's tenancy the sub-tenant would become the tenant, and then ho could claim a fresh notice for eviction. The section, we think, means that the sub-tenant would be deemed to have become a tenant, if the landlord is otherwise not entitled to possession.'

All these observations, in my opinion, must be considered with reference to the facts in the case, viz., that even the sub-tenants in that case were liable to be evicted as it was held that they had also made unauthorised alterations.

26. In the present case, however, there is nothing to show that respondent No. 1 had not paid the rent at any time to the plaintiffs and in such circumstances, with respect, the observations made by Mr. Justice Patel cannot be held to apply and it will be, therefore, unnecessary to consider the other arguments of Mr. Porus Mehta on the question of defaults committed by Henley.

27. But even if my view of the effect of Section 14 may not be correct, I find no reason to interfere with the finding of the Full Court arrived at, after carefully considering all the evidence in the case, that the plaintiffs themselves had refused the tender of rent by Henley wrongly, making the following observations:--

'It is not in dispute that at the time of this notice the respondents were to receive rent for the period from October 1957 to April 1958 i.e., for 7 months. An important and relevant aspect is not considered by the trial court. It is common ground that prior to this notice, Mr. Henley had sent arrears of rent for four months from October 1957 to January 1958 to Mr. Forbes, and the latter refused to accept the same as water charges were not sent (vide letter dated 22nd March 1958 part of Exhibit K). As the rent and water charges are separate and distinct items, the respondents were not entitled to reject the rent tendered in full for four tenancy months. This was not a case of partial tender for the stated period or a tender at a reduced rate of rent ...... Thetender was thus valid and the refusal to accept it was unjustified.'

Mr. Porus Mehta could not advance a single argument as to how this finding of the Fall Court was wrong. If four months' rent was tendered by Henley, it could not be said that he was in default of six months' rent merely because subsequently a notice demanding rent as well as water charges was sent to him. The conclusion was therefore, right for valid reasons and this court cannot interfere in exercise of its powers under Articles 226 and 227 of the Constitution of India for any reason whatsoever with such a proper and just conclusion.

28. No other argument was advance by Mr. Porus Mehta to challenge the decree passed by the Full Court and I find that there is no substance in this special Civil Application which must be dismissed. Rule discharged with costs.

29. Rule discharged.


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