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Shantinath S. Ghongade Vs. Rajmal Uttamchand Gugale - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 2538 of 1973
Judge
Reported inAIR1979Bom269; (1978)80BOMLR671; 1979MhLJ229
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 5(3), 13(1), 25, 25(1) and 25(2); Registration Act - Sections 17(1) and 49; Transfer of Property Act, 1882 - Sections 107 and 108
AppellantShantinath S. Ghongade
RespondentRajmal Uttamchand Gugale
Appellant AdvocateM.L. Dudhat and ;P.M. Vyas, Advs.
Respondent AdvocateK.J. Abhyankar and ;K.H. Chopda, Advs.
DispositionSuit dismissed
Excerpt:
.....of a sale in his favour - it was held that the suit for possession was not maintainable - - one thing which is, however, clear on evidence is that the defendant has completely failed to establish that the closing up of these windows and the door was done by the plaintiff after he became the owner of the suit property. the defendant has admittedly failed to examine sonabai. notwithstanding anything contained in this act .a landlord shall beentitled to recover possession of any premises if the court is satisfied- (a) that the tenant has committed any act contrary to the provisions of clause (o) of section 108 of the t......respondent on 2nd february 1966 by which the plaintiff-respondent had agreed to purchase the suit property for a sum of rs. 60,000/-. the sale deed was taken almost five years later on 20th jan. 1971 and it was registered on 16th april 1971. a little more than a month thereafter, on 24th may 1971, the plaintiff-respondent issued a notice to the tenant terminating his tenancy. in this notice it was recited that while the premises were taken on rent for the purpose of residence, the tenant had started using the premi-ses for shop purposes and that tenant had also closed the door and the windows on the eastern side and he had thus committed a breach of the term of the tenancy. the averments made in the plaint show that the plaintiff's case was that the defendant had started using the.....
Judgment:
ORDER

1. A question of some importance which arises in this petition and which has been argued at length is whether a purchaser of a property in the possession of a tenant is entitled to invoke the provisions of Clause (a) or Clause (b) of Section 13(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the 'Rent Act'), if the alleged breach has taken place before the plaintiff became owner of the property by virtue of a sale in his favour.

2. Admittedly the premises were let out to the defendant-petitioner on 4th March 1965 and the defendant had executed a rent note in favour of the original owner Sonabai. The rent note is written on an ordinary paper, but the tenant has signed on adhesive stamps of the value of 20 paise stuck thereon. There is no dispute that this rent note specifically refers to the premises being taken on rent for the purposes of residence. One of the stipulations of this rent note is that the tenant had made a deposit of Rs.1500/- with the landlady for which he would not charge interest but that at the time of paying monthly rent he would pay only Rs.15/- and a sum of Rs.30/- would be deducted by the landlady out of the amount lying in deposit. There was an agreement of sale by Sonabai in favour of the present respondent on 2nd February 1966 by which the plaintiff-respondent had agreed to purchase the suit property for a sum of Rs. 60,000/-. The sale deed was taken almost five years later on 20th Jan. 1971 and it was registered on 16th April 1971. A little more than a month thereafter, on 24th May 1971, the plaintiff-respondent issued a notice to the tenant terminating his tenancy. In this notice it was recited that while the premises were taken on rent for the purpose of residence, the tenant had started using the premi-ses for shop purposes and that tenant had also closed the door and the windows on the eastern side and he had thus committed a breach of the term of the tenancy. The averments made in the plaint show that the plaintiff's case was that the defendant had started using the premises for the purpose of a shop after the agreement of sale was made in favour of the plaintiff The averments with regard to the closing of the door and the windows are rather vague inasmuch as there are no positive averments as to when these changes were made. The averment is that the defendant had closed the door and the windows on the eastern side unauthorised and that these amounted to alterations of a permanent nature. The defendant in his written statement tried to make out a case that the original lease itself was a composite lease both for the purpose of residence and business and that he had started using the premises as a shop from 13th Nov. 1966 and that he had taken the consent of the original landlady. A plea of estoppel was raised inasmuch as according to the defendant, the original landlady knew of the use of the premises for the purpose of the shop. With regard to the alterations, the allegation was that it was the plaintiff himself who had closed the door and the windows.

3. The plaintiff and the defendant were the only witnesses in the case. The trial Court came to the conclusion that the lease was specifically granted for residential purposes and that the defendant had changed the use of the premises from residence to business after he had come to know about the plaintiff's agreement of sale. On the question of carrying out permanent alterations, the finding was against the defendant. The trial Court thus decreed the plaintiff's suit. In appeal filed by the defendant, the appellate Court found that the defendant had conceded that in the beginning he was using the premises only for the purpose of his residence and consequently, the Appeal Court found that the defendant had started doing business in the suit premises in the beginning of the year 1969. The Appeal Court found that there was no evidence to show that either the plaintiff or his predecessor-in-title had given consent to the defendant to use the premises for businesspurposes. With regard to the change ofuser, therefore, the Appeal Court found that the defendant had committed a breach of the condition of the lease agreement. The Appeal Court negatived the case of the defendant that it was the plaintiff who had carried out the alleged alterations and found that it was the defendant who must have closed the back side door and windows because he was storing his stock-in-trade in the suit premises. The decree for eviction passed by the trial Court, therefore, came to be confirmed.

4. At the outset it was contended by Mr. Dudhat appearing for the tenant that the rent note should be construed as a document of lease and that notwithstanding the fact that the said rent note in terms referred to the premises having been taken on rent for the purpose of residence, the entire document would have to be left out of consideration because the lease was for a period in excess of one year and would, therefore, be inadmissible for want of registration in view of the provisions of Section 17(1)(d) of the Registration Act. It was argued that ascertaining the purpose of the lease on the basis of the recitals in the rent note would not amount to making use of the document for a collateral purpose as contemplated by the proviso to Section 49 of the Registration Act.

5. Now, it is difficult to accept the argument that Ex. 17 is a lease as contemplated by the Transfer of Property Act. Apart from the fact that Section 107 of the Transfer of Property Act requires that a lease should be executed by both the Lesser and the Lessee -- and admittedly Ex. 17 is not a document which is executed by the landlord, it is difficult to see how this document, which is styled as an agreement of tenancy but is nothing more than a mere rent note executed by the defendant-tenant, can be said to be for a period in excess of one year. Admittedly, there is no express mention of the period of the lease anywhere in the document. What is argued is that the recitals in the rent note show that the tenant would continue to pay Rs.15/- per month as long as the account in respect of Rs.1500/- by way of deposit is not cleared. Consequently, according to the learned Counsel, the period at the endof which this amount of Rs.1500/-would stand cleared must be treated as the period of the lease. Such a conclusion, in my view, is not borne out on the recitals in the document. Admittedly, the tenant had deposited a sum of Rs.1500/- with the landlady Sonabai. Certain adjustments had to be made in respect of the said amount of deposit and while it is not disputed that the amount of rent was to be Rs.45/- per month, the payment actually to be made was to be only Rs.15/- per month, credit being required to be given each month for the balance of the rent of Rs.30/- out of the deposit of Rs.1500/-. These recitals did not prevent either the landlord or the tenant from putting an end to the tenancy before the entire amount of Rs.1500/- was adjusted. In case the tenancy was terminated earlier, all that would have happened was that the tenant would have been able to claim the balance of the amount of deposit. The recitals in the rent note cannot, therefore, be so construed as to make the period of the lease co-extensive with the time when the amount of Rs.1500/- would fully stand adjusted by giving credit for Rs.30/- at the time of payment of rent every month. There was, therefore, no question of the document being construed as a document of lease or an agreement of lease requiring registration.

6. There can also be no dispute that there is nothing in this document which can be read as indicating that the lease contemplated a composite use of residence and business as was sought to be urged for the defendant. Admittedly, the defendant has not started his business in the premises at the time when the premises were taken on lease in March 1965. Even, according to him, he started using the premises for shop purposes in 1966 for the first time. In any case, the finding recorded by both the trial Court and the Appeal Court that the suit premises came to be used for the purposes of business in November 1969 would be a finding of fact for which there was sufficient evidence on record. For the purposes of this petition, therefore, that finding will have to be accepted.

7. Similarly, the other finding with regard to the carrying out of the alterations by the defendant will alsohave to be accepted. To say the least, the evidence of both the plaintiff and the defendant is not very satisfactory as to the point of time when the alleged closing of the door and the windows on the eastern side has taken place. One thing which is, however, clear on evidence is that the defendant has completely failed to establish that the closing up of these windows and the door was done by the plaintiff after he became the owner of the suit property. Once that position becomes clear, the only other conclusion which is possible is that the alterations were made by the defendant prior to the purchase of the suit premises by the plaintiff. The defendant has admittedly failed to examine Sonabai. His case in evidence was that for the purpose of these alterations, he had taken the consent of Sonabai's son Bhalchandra who was not examined. That evidence could not be looked into because it was never his case in the written statement that the permission was taken from Sonabai's son and not from Sonabai. The decision of this petition must, therefore, proceed on the footing that it was the defendant who had closed the back door and the three windows,

8. The only material question of law which, therefore, requires to be decided is whether the plaintiff who had obtained title to this property for the first time on 20th Jan. 1971 could validly claim possession on the ground that prior to his purchase the defendant had committed certain breaches. In other words, the question is whether a cause of action which had accrued to the vendor during the time when the property belonged to the original landlady would ensure for the benefit of the transferee of the property.

9. This question will have to be decided on a plain construction of the provisions of Section 13(1)(a) and (b) read with Section 5(3) of the Rent Act.

10. While Mr. Dudhat appearing on behalf of the defendant-petitioner has contended that the present plaintiff-owner of the property is not entitled to take advantage of the alleged breaches which were committed prior to his purchase, twofold argument has been advanced by Mr. Abhyankar appearing on behalf of the plaintiff-respondent. His first contention is that thetime when the breaches have taken place was not material and all that is necessary for the plaintiff to show was that the defendant had committed acts which fall within Clause (a) or Clause (b) of Section 13(1) of the Rent Act. Alternatively it is contended that the breaches continued even during the time when the property continued to be of the ownership of the plaintiff. According to Mr. Abhyankar, the suit premises which were admittedly taken on rent for residential purposes continued to be used for the purpose of business even after the plaintiff had purchased the property and this continued use contrary to the provisions of Section 108(o) of the Transfer of Property Act right up to the date of the suit was sufficient to enable the plaintiff to found his claim for possession under Section 13(1)(a) of the Rent Act.

11. Now, admittedly in this ease, on the findings recorded by both the Courts, a cause of action could have accrued to the original landlady who could have filed a suit for possession on the ground that the premises had been used contrary to the term of the rent note and that the tenant had erected on the premises a permanent structure in the form of a wall at the place where the door and the windows were situated.

12. The material portion of Section 13(1) in else (a) and (b) reads as follows:

'Notwithstanding anything contained in this Act ......... a landlord shall beentitled to recover possession of any premises if the Court is satisfied-

(a) that the tenant has committed any act contrary to the provisions of Clause (o) of Section 108 of the T. P. Act, 1882; or

(b) that the tenant has, without the landlord's consent given in writing, erected on the premises any permanentstructure.'

Section 13(1)(a) refers to the right of the landlord to recover possession. This right is to be exercised against a person who is a tenant of the landlord. The word 'landlord' is defined in Section 5(3) of the Rent Act. There can be no dispute that for the period after 20th Jan. 1971, the plaintiff is the landlord. The question which arises is whether a cause of action which has accrued in favour of the predecessor-in-title of a landlord for the time beingcan be availed of by the purchaser of the suit property. The definition of the word 'landlord' is not framed as an inclusive definition so as to include the successor-in-interest of a landlord. On the other hand, the definition uses the word 'for the time being.' In order that a person must fall within the definition of the landlord at a particular point of time, he must be a landlord who must be receiving or entitled to receive rent in respect of any premises. In the instant case, the plaintiff would be receiving rent on his own account. The latter part of the definition which refers to a landlord in the case of a tenant and sub-tenant is not relevant. Therefore, the definition of a landlord speaks of a landlord with reference to the point of time when the rights under the Rent Act are sought to be exercised. Consequently, when Section 13(1)(a) or (b) of the Rent Act uses the word 'tenant', who is again defined as any person by whom or on whose account rent is payable for any premises, the inclusive portion not being material for the purposes of the present case, it appears that the intention of the legislature was that the landlord who would be entitled to sue for possession would be only that landlord, whose tenant had committed a breach during the time when he was the tenant of that landlord. If the definitions of 'landlord' and 'tenant' are thus read properly, it is clear that the breaches which are contemplated by clauses (a) and(b) of Section 13(1) of the Rent Act must be breaches qua tenant of that landlord who claims to exercise his right to recover possession. In other words, the breaches in respect of which the plaintiff makes a grievance and on which a right to recover possession is sought to be founded must be committed by a tenant in the capacity of a tenant of that landlord alone. It is not difficult to imagine a case where a previous landlord being conscious of certain breaches declines to claim possession or exercise a right which he could have exercised having regard to the provisions of Section 13(1)(a) or (b) and the landlord continues to recover rent. For example, in a case covered by Clause (b), it is quite possible that structures which have been erected by a tenant are ignored by a landlord, who may later sell away the property. In a given case.the landlord may not proceed on a cause of action founded on clause (a) and (b) for a considerable period of time. There is nothing in the Rent Act which would indicate that the legislature intended that in cases where a cause of action, which was never taken advantage of by the landlord, could ensure for the benefit of the purchaser and the purchaser should be able to base an action for ejectment on the basis of the alleged violation of the provisions of Section 13(1) before the premises were transferred by the original landlord to the purchaser. In the instant case when the property was purchased by the landlord, what was transferred to him was the suit accommodation in the form in which it existed on the date of the sale deed. On the date of the sale deed, the door and the windows were already closed and it is in that form that he has purchased the suit property. If with open eyes, a purchaser of property purchases such property it is difficult to hold that Clause (b) of Section 13(1) of the Rent Act should be so construed as to hold that by virtue of this purchase, he should be allowed to file a suit for possession on the ground that the tenant has erected a permanent structure, thereby implying that even the right to suit which was a statutory right of the vendor but which he had not exercised was also being transferred. Such could never have been the intention of the legislature while giving a right to a landlord to recover possession under Section 13(1)(b) of the Rent Act. The words of Clause (a) and Clause (b) coupled with the terms of Section 13(1), in my view, leave no manner of doubt that the breaches contemplated thereby are breaches committed by the tenant during the subsistence of the tenancy qua the landlord who wants to invoke the provisions of Clause (a) or Clause (b) of Section 13(1) of the Rent Act.

13. Some reference was made by the Appeal Court to Section 25 of the Rent Act. Section 25(1) provides that a landlord shall not use or permit to be used for non-residential purpose any premises which on the date of the coming into operation of this Act were used for a residential purpose. Under Sub-section (2) a contravention of subsection (1) is made punishable with imprisonment for a term which extendsto three months or with fine or with both. A bare reading of Section 25 will show that it creates a disability against the landlord inasmuch as a landlord is not permitted to use or allow the premises to be used for non-residential purpose if the premises were on the coming into operation of the Rent Act used for a residential purpose. These provisions, in my view, were wholly irrelevant while construing the scope of Section 13(1) of the Rent Act.

14. Any landlord who wants to recover possession and wants to take advantage of the provisions of Section 13(1) is bound to show that certain acts were committed by a tenant and, as already pointed out, the tenant referred to in Section 13(1)(a) and (b) is the tenant of the landlord who wants to recover possession. If at the time when the alleged acts were committed the defendant was not the tenant of the plaintiff-landlord, in my view, he, as a transferee of such property, will not be entitled to found his claim for possession on any breaches alleged to have been committed prior to the time when the title vested in the plaintiff.

15. In this view of the matter, there is a clear infirmity in the suit filed by the plaintiff inasmuch as admittedly, both the breaches alleged to have been committed by the defendant were committed long before the plaintiff became the owner of the property. Consequently, he was not entitled to invoke the provisions of Section 13(1)(a) or (b) of the Rent Act against the defendant on the basis of acts alleged to have been committed prior to 20th January 1971. The fact that those breaches continued up to the date of the suit would, in my view, not be material because the breaches had already occurred and there was no question of the breaches being continued.

16. Consequently, the plaintiff's suit must be said to be misconceived and was liable to be dismissed. The decree passed by the trial Court and confirmed by the Appeal Court is thus quashed. Rule absolute. However, there will be no order as to costs.

17. Rule made absolute.


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