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Bai Dahi Vs. Ghanashyam Haridas - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 1564 of 1953
Judge
Reported inAIR1956Bom102
ActsSuccession Act, 1925 - Sections 214, 214(2) and 332; Provincial Small Cause Courts Act, 1887 - Sections 25; Code of Civil Procedure (CPC), 1908 - Order 2, Rule 2 - Order 6, Rule 17 - Order 32, Rule 1; Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 11, 12, 12(2), 13 and 49; Administrator Generals Act, 1913 - Sections 31 and 32
AppellantBai Dahi
RespondentGhanashyam Haridas
Appellant AdvocateY.M. Thakkar, Adv. for M.N. Thakkar, Adv.
Respondent AdvocateN.V. Karlekar, Adv.
Excerpt:
.....landlord had let out the land for a period of five years on condition that if the tenant failed to pay rent every year the lease was to be void. the tenant failed to pay rent for the second year and the landlord became entitled to two reliefs,..........andthe procedure which should have been followed in the trial of the two suits by the learned trialjudge was the procedure followed in trial of regular suits and not as in case of suits tried under small cause courts act. but by following the procedure which is followed in case of small cause court trials, assuming that it had been followed in the case of the two suits, what injustice has been caused to the defendant has not been indicated to me. it is not suggested that all the evidence which was tendered before the trial court has not been recorded. the learned trial judge has given adequate reasons also in support of his conclusions. even if there is any substance in the contention raised as to the procedure followed at the trial of the two suits, it is a technical contention.....
Judgment:

1. These two revision applications arise out of two proceedings which were originally filed in the Court of Small Causes at Baroda. Civil Revision Application No. 1564 of 1953 arises out of Small Cause Suit No. 1425 of 1950 filed by the plaintiff on 1-12-1950 for an order against the defendant Bai Dahi in ejectment on the allegations that the defendant was a tenant, that she was in arrears of rent, and that her conduct amounted to a nuisance to the neighbourhood.

2. Small Cause Suit No. 1210 of 1950 out of which Civil Revision Application No. 1565 of 1953 arises was filed by the plaintiff on 5-10-1950, for a decree for recovery of rent which had fallen in arrears. The claim of the plaintiff in suit No. 1425 of 1950 was for recovery of Rs. 2836-9-3 from the defendant. The two suits were resisted by the defendant Bai Dahi in the trial Court. The defendant contended that she was not in arrears, that in any event the plaintiff was not entitled to file a suit forpossession of property against her, and that suit No. 1425 of 1950 was barred under Order IL Rule 2, Civil P. C.

2. The learned trial judge decreed suit No. 1210 of 1950 and dismissed suit No. 1425 of 1950. Appeals were preferred against the two decrees passed by the trial Court in the two suits. In appeal the learned District Judge decreed both the suits. The defendant Bai Dahi has applied to this Court in its revisional jurisdiction against the decrees passed by the District Court in the two suits.

3. Few facts which give rise to this litigation may be stated. The property of which possession is claimed in suit No. 1210 of 1950 consists of 14 rooms and is situate in the town of Baroda. It is used as a boarding house by the defendant Bai Dahi. One Bai Mani was the owner of the property, and she leased out the property to Bai Dahi sometime in the year 1944. The agreed rent was Rs. 120/- per month.

It appears that subsequently there was brought in force a statute in the former Baroda State under which a landlord was entitled to enhance the rent in respect of properties used for non-residential pur-pases upto 50 per cent over the contractual rent. Enhanced rent was recovered from Bai Mani accordingly. Bai Mani died sometime in 1950 having made and published a will dated 26-10-1949.

Under the will the plaintiff Ghansham Haridas was constituted the sole legatee of the 14 rooms which are in dispute in the present case. Ghansham was at the date of the will and even when the suits were filed a minor, and the suits were instituted by his mother acting as his next friend. As I have stated earlier suit No. 1210 of 1950 was filed for possession on the ground of arrears of rent and on the ground that the conduct of the defendant Bai Dahi amounted to a nuisance to the neighbours.

Suit No. 1425. of 1950 was filed for recovery of rent part of which had accrued due during the lifetime of Bai Mani and the balance after her death. In the trial Court the plaintiff's right to the property under the will of Bai Mani does not appear to have been denied. As the learned trial judge has pointed out it was common ground between the parties that the plaintiff Ghansham Hart-das had been constituted a sole legatee of the 14 rooms.

The learned trial judge did not accept the contention of the plaintiff that the defendants' conduct amounted to a nuisance. He held that the plaintiff had become the owner of the suit premises and that the defendant was his tenant, and the defendant being in arrears the plaintiff was entitled to a decree for possession of the property. The defendant had in the two suits raised a contention that the standard rent payable by her was less than the rent demanded by the plaintiff and the trial Court on a consideration of the evidence came to the conclusion that the standard rent for the suit premises must be regarded as Rs. 180/- per month.

In suit. No. 1425 of 1950 the learned trial judge held accepting the plea of the defendant that the plaintiff's suit was barred under Order 2, Rule 2, C. P. C. He held in suit No. 1210 of 1950 that the plaintiff should have claimed arrears of rent which had accrued due till 31-8-1950 and which were claimed in suit No. 1425 of 1950.

The learned trial judge relying upon a judgment of this Court reported in -- Kashinath Ram-chandra v. Nathoo Keshav' AIR 1914 Bom 130 (A), held that the plaintiff's suit for recovery of arrears of rent was bound to fail when the plaintiff hadpreviously filed a suit for possession. In the view of the learned Judge the cause of action to claim the arrears of rent and possession was complete on 5-10-1950. and-if at that date the plaintiff did not file a compromise suit for possession and recovery . of rent the subsequent suit for recovery of rent was liable to fail.

As I have stated earlier, the decree passed in suit for ejectment, i.e.. suit No. 1210 of 1950 by the trial Court was confirmed by the District Court, and the learned District judge reversed the decree passed by the trial Court in suit No. 1425 of 1950. In the view of the learned District Judge the causes of action in the two suits were different.

The learned Judge pointed out that in order to sustain the claim in suit No. 1210 of 1950 the plaintiff had to prove three facts (i) that the tenancy alleged by him had been terminated according to the law of the land, (ii) that the plaintiff himself had served notice under the Bombay Rents Hotel and Lodging House Rates Control Act, 57 of 1947 calling upon the defendant to pay the arrears of rent and (iii) that one month had expired from the date of service of such notice; and it is only when these three facts were proved that a cause of action would he deemed to arise in favour of the plaintiff for a suit for possession.

But said the learned Judge in the other suit, i.e. suit No. 1425 of 1930, which was a suit for recovery of arrears of rent, the plaintiff was required only to prove that the rent had fallen due on a particular date, and that the rent ia arrears had not been paid. On the view taken by him the learned District Judge set aside the decree passed in suit No. 1425 of 1950, and decreed suit No. 1210 of 1950,

4. in these two revision applications Mr. Thakkar on behalf of the petitioner has sought to raise a large number of contentions some of which were not raised even in the courts below. Mr. Thakkar has contended that the plaintiff had no right to file a suit unless he proved the will dated 26-10-1949 and further proved that the executor appointed under the will of Bai Mani had assented to the legacy in favour of the plaintiff. As I have pointed out earlier it was common ground between the parties that the plaintiff was a legatee under the will of Bai Mani and the defendant Bai Dahi waived proof of the will. It is not now open to the defendant to raise in revision applications a contention which does not appear to have been raised in the Courts below. It is true that under the will of a Hindu, the property on the death of the testator vests in the executor, and so long as the executor has not assented to a legacy in favour of the legatee the property continues to be vested in him and the right to sue would also continue to be vested in. the executor.

But as objection to the right of the plaintiff to sue because there was no assent of the executor to the legacy in favour of the plaintiff before the date of the suit does not appear to have been raised in the courts below arid I do not think that I can allow that contention to be raised in these revision, applications.

5. Then Mr. Thakkar contended that the plaintiff's mother was not a proper next friend to represent the plaintiff who could have maintained the suit on behalf of the plaintiff, in my view that contention is futile. If the mother of the plaintiff has as his next friend filed the suits and no objection has been taken in the trial Court to her filing and prosecuting the suits on behalf of the plaintiff, it is not open to the defendant thereafter to raise any contention in that behalf.

6. it was then urged by Mr. Thalckar that thenotice served upon the defendant by the plaintiffs next friend terminating the tenancy was not a proper notice and the plaintiff consequently had no right to file suit No. 1210 of 1950. Even assuming that the notice served upon the defendant was not a proper notice, the question as to the propriety of the notice or sufficiency or otherwise of the notice is not a question which can be raised in a revision application.

Even though an objection was raised in the written statement of the defendant as to the sufficiency and propriety of the notice, no arguments appear to have been advanced before the learned trial ludge as to the ground on which the notice served upon the defendant by the plaintiff was defective. The learned trial judge in para 10 of his judgment in suit No. 1425 of 1950 has observed that

'the notice of eviction is at Ex.. 29. It is a perfectly valid notice and it is not shown how it is in any way defective'.

7. Then Mr. Thakkar urged that the learned District Judge was in error in holding that suit NO. 1425 of 1950 was not barred under Order 2. Rule 2, C. P. C., and he relied upon a judgment of this Court in AIR 1914 Bom 130 (A). That was a case in which the landlord had let out the land for a period of five years on condition that if the tenant failed to pay rent every year the lease was to be void. The tenant failed to pay rent for the second year and the landlord became entitled to two reliefs, viz., the right to sue for recovery of rent and also for possession of the land on the ground that the lease had become void.

The landlord then filed a suit for possession and asked for permission to bring a separate suit for recovery of rent and arrears of rent for two years. But no such permission was given to the landlord. Subsequently the landlord plaintiff filed a suit for recovery of rent for two years and it was held that the suit for rent was barred under Order 2, Rule 2, C. P. C. as the claim in the suit for rent upto the date of forfeiture arose upon the same contract as did the landlord's right to forfeiture for non-payment of rent and. that there was no necessity or reason which existed for a separate suit for rent where there had been forfeiture for non-payment and that the claim for possession and the claim for rent ought to be enforced in one suit.

It is evident from the facts in the case that the right to sue for recovery of rent and possession arose on the same contract and breach of some of the covenants and the court held that the suit having been filed for possession and liberty not having been reserved for recovery of rent in a separate suit, the suit for possession was not maintainable. In the present case, however, I agree with the view of the learned District Judge that the causes of action in the two suits were not the same.

In the case of a suit for recovery of arrears of rent the cause of action arises when the rent falls due and is not paid; whereas in the case of a suit for possession under Bombay Act 57 of 1947 the cause of action arises on the expiration of one month from the date on which a demand for pos-session is made as required by Section 12, Bombay Rents Hotel and Lodging House Rates Control Act, 57 of 1947.

8. Then Mr. Thakkar contended that the trial of the two suits by the learned trial judge was contrary to the rules framed under the Bombay Act 57 of 1947. Mr. Thakkar contends thatin both the suits the claim exceeded Rs. 500/- andthe procedure which should have been followed in the trial of the two suits by the learned trialJudge was the procedure followed in trial of regular suits and not as in case of suits tried under Small Cause Courts Act.

But by following the procedure which is followed in case of small cause Court trials, assuming that it had been followed in the case of the two suits, what injustice has been caused to the defendant has not been indicated to me. It is not suggested that all the evidence which was tendered before the trial Court has not been recorded. The learned trial judge has given adequate reasons also in support of his conclusions.

Even if there is any substance in the contention raised as to the procedure followed at the trial of the two suits, it is a technical contention which cannot be permitted to be raised in these revision applications, unless it is shown that substantial injustice has resulted by reason of infringement of the rules as to the trial of suits.

9. Then Mr. Thakkar contended that theplaintiff at one stage wanted to amend the plaint, at the plaintiff did not press the application for amendment of the plaint. How that conduct of the plaintiff can conceivably be a cause of grievance for the defendant, I am unable to appreciate. It was for the plaintiff to amend or not to amend her plaint, and evidently the defendant cannot compel the plaintiff to amend the plaint if the plaintiff does not desire to do so.

10. Then Mr. Thakkar contended that the defendant was not given an opportunity to lead evidence. The two suits were filed in 1950, and they were disposed of in 1952; and I am informed by Mr. Karlekar who appears on behalf of the plaintiff, that even though as many as 15 adjournments were given the defendant did not remain present in Court to give evidence. Mr. Thakkar says that the adjournments were necessitated by reason of the fact that the defendant was required to change her lawyer, and the lawyer who came on the scene ultimately was not properly instructed as to the progress of the suits.

The question whether adjournments should or should not be granted in the circumstances of the case is within the discretion of the Court, and with the exercise of that discretion this Court would be loath to interfere. When as many as 15 adjournments had been given to enable the defendant to remain present in Court and to lead evidence if the defendant is still not ready and the Court of first instance refuses to grant further adjournment, this court would certainly not interfere with the exercise of that discretion by the Court of first instance.

11. Mr. Thakkar then contended that the defendant wanted to lead evidence to show that she had made improvements upon the property, but the learned trial judge did not allow that evidence to be led. But on turning to the record of the trial Court it appears that the defendant had raised a contention that there was a contract under which she was entitled to make repairs and to be reimbursed for expenses incurred and she had to prove the existence of the contract. If the contract was not proved there was no scope for leading evidence to show that the defendant had spent for repairs.

Then Mr. Thakkar contended that the learned trial judge was in error in fixing the standard rent at Rs. 180/- per month in respect of the suit premises. Mr. Thakkar says that the contractual rent on 1-9-1940, which is the relevant date, was Rs. 120/- per month, and the courts below were not entitled to ignore the contractual rent and arbitrarily fix the rent at Rs. 180/- per month.

In my view there is no substance in that contention also. The contractual rent, it is true, was Rs. 120/- on 1-9-1940; but relying upon the provisions of the statute in force in the former Baroda State the plaintiff was entitled to an increase of 50 percent, over and above the contractual rent and so long as the Baroda State was not merged in the Indian Union the increased rent could be recovered.

Mr. Thakkar says that the Baroda State merged in the Indian Union on 1-1-1950 and the question has to be decided under the Bombay Act 57 of 1947 as to what the proper amount of standard rent can be and that question can only be decided by reference to the period commencing from 1-1-1950 and ending on 31-8-1950 for which period only the arrears of rent have been claimed.

Now under Section 11, Bombay Rents, Hotel and Lodging House Rates Control Act, 57 of 1947, if there is any dispute between the landlord and the tenant regarding the amount of standard rent in any suit or proceeding the Court may fix it at such amount as having regard, to the provisions of the Act and the circumstances of the case, the Court deems just.

The Courts below have taken the view that because under the law in operation in the Baroda State before its merger in the Indian Union the plaintiff was entitled to recover rent at the rate of Rs. 180/- per month, the amount of Rs. 180/- per month must be regarded as the standard rent even after the merger of the Baroda State in the Indian Union. That conclusion of the Courts below must be regarded as a conclusion arrived at 'having regard to the provisions of the Act (57 of 1947) and the circumstances of the case and what the Courts deemed just.

In my opinion it would be doing injustice to the plff. not to declare the standard rent at the figure at which before the date of merger the plff. was entitled to recover rent, unless that rent was so excessive that it required to be interfered with by the Court.

12. Finally Mr. Thakkar contended that the claim for arrears of rent includes a claim for rent which fell due during the lifetime of Bai Mani & also for rent which fell due after her death and in respect of rent which fell due during the life time of Bai Mani the plff. has not obtained any succession certificate. Now rent when it becomes due becomes a debt, and before a decree for that debt would be sealed the Court must insist upon production of a succession certificate.

13. Section 214, Indian Succession Act provides that

'No Court shall pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the effects of the deceased person or to any part thereof, except on the production, by the person so claiming, of either a probate or letters of administration evidencing the grant to him of administration to the estate of the deceased, or a certificate, under Section 31 or Section 32, Administrator General's Act, 1913, and having the debt mentioned therein, or a succession certificate granted under Part X of the Indian Succession Act and having the debt specified therein.'

Prima facie it appears that the rent which accrued due during the lifetime of Bai Mani must be regarded as 'debt' within the meaning of Section 214, Indian Succession Act. It is not rent payable in respect of land used for agricultural purposes and ia therefore not excluded under Sub-section (2) of Section 214 from the operation of the section. The learned District Judge was therefore in error in passing a decree in favour of the plaintiff without production of either a succession certificate or probate, or letters of administration, or a certificate under Section 31 or Section 32, Administrator General's Act, 1913, in respect of the arrears of rent which fell due during the lifetime of Bai Mani.

14. The rule in civil Revision Application No. 1564 of 1953 will be discharged with costs. In Civil Revision application No. 1565 of 1953 the rule will be made absolute and the decree passed by the learned District Judge in favour of the plaintiff will be set aside and the proceedings remanded to the District Court with a direction that the decree awarding arrears of rent which fell due during the lifetime of Bai Mani will be sealed only after the plaintiff produces either a succession certificate or any other representation contemplated by Section 214, Indian Succession Act.

On the succession Certificate or any other representation contemplated by Section 214, Indian Succession Act hems; obtained and produced by the plff. and the decree being sealed the learned Dist. Judge will include in the costs awarded by him to the plff. the costs of this Court against the defen-daat.If the necessary succession certificate or any other representation as contemplated by Section 214, Indian Succession Act is not produced by the plff. there will be a decree in favour of the plff. only for the amount of rent which accrued due after the date on which Bai Mani died.

Order accordingly.


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