1. The accused, a landlord, has been found guilty of abetting the offence of wrongful restraint in that he caused the door of complainant's room which opened cut ward, to be blocked up. By so doing he prevented complainant from entering his room by the ordinary door, that is, he prevented him from going in a direction in which it is said he had a right to go. If the facts and if the rights of the complainant are as stated and implied in this brief statement, then the conviction is correct.
2. The case is not one of the kind that usually invites our consideration in revision. The Magistrate was quite competent to ascertain the facts and to make the required inferences from them. I do not propose, therefore, to say more on that aspect of the case.
3. But owing to the circumstances that the accused is a Bombay landlord and the complainant had been one of his tenants and still remained in occupation of one of the rooms in the landlord's premises, the discussion has touched points of some general importance. As these points are relevant to the case something ought to be said about them.
4. By the 1st March at latest the complainant had ceased to be a real tenant of the accused and though he remained in occupation of the room he had formerly rented, the complainant did so against the wish of the landlord. He was what is termed a tenant holding over. He was this peculiar product of the law of landlord and tenant on the 1st May when he found himself barred from entering his room by the usual way,
5. Had he a right to enter the room by that way? If he had, the conviction of the accused is correct, if he had not, that conviction is bad. This, therefore, is the question to be solved, Had the case arisen in England, the answer would apparently be that the tenant had not a right to enter the room. That seems to me to follow from the case of Jones v. Foley (1891) 1 Q.B. 730 ; 60 L.J.Q.B. 464 ; 64 L.T. 538 ; 39 W.R. 510 ; 55 J.P. 521. The law in this country is, however, different. It is true that the landlord was entitled to possession of the room; that the complainant was not strictly entitled to it; and that in occupying the room he was not acting as of right, was indeed defying the legal rights of the landlord. How then can the complainant be said to have a right to enter the room when fundamentally as between landlord and tenant he had not such a right? Is it not equivalent to saying that he has a right to do wrong? This view of the case would have prevailed with me were it not for the curious, and it may be highly beneficial, embellishment of the relations of landlord and tenant introduced by Section 9 of the Specific Relief Act. Under that provision of the law a tenant holding over, who is dispossessed by any one other than his landlord, can bring a summary suit and be restored to possession. That is natural enough, for whatever his immediate position the tenant acquired possession legally and should not be dispossessed with impunity by one who has no right whatever to possession. But by the case of Rudrappa v. Narsingroo 29 B. 213 ; 7 Bom. L.R. 12 the very simple position above described has been imposed upon the landlord and tenant themselves, when the former dispossesses his tenant holding over, otherwise than in due course of law. This shows that the tenant holding over has a position recognised by the law and that he has a right to retain possession of the premises he occupies even against the landlord himself, until dispossessed in course of law. That being so, the complainant, undoubtedly, had a right to enter the room.
6. It was urged that in the Town and Island of Bombay the English law is in force unless modified by Acts of the Indian Legislature. Assuming this to be so, yet the English law is in this matter modified or rather superseded by the Transfer of Property Act, Section 9 of the Specific Relief Act and other enactments. The modern law is not, as I think, the English law modified merely in the sense that a single exception is grafted on to it. An Indian law is enacted and is so complete that for the basic principle of the law of landlord and tenant in India we must look to and see what is implied in the Indian Acts and not the English law.
7. Undoubtedly, therefore, in my view of the case, the conviction is correct. The landlord was, however, severely provoked; his tenant was contumacious. So the penalty imposed was negligible to a man in what we are informed is the position of the accused. That was, I think, right in this case.
8. I would discharge the rule.
9. I concur, I think it has been established that the complainant's tenancy on monthly rent was extended at most to the end of February 1918. Thereafter he was holding over and no more than a tenant at sufferance, liable for use and occupation of the room to his landlord, the 1st accused. It must also, in my opinion, be held as established that the landlord, the 1st accused, did, with a view to secure possession, direct the Misty, the 2nd accused, to block up the door of the room in the course of the alterations ordered to be made to the buildings towards the end of April 1918. The object was obviously to eject the tenant at sufferance and to put in the other tenant at a higher rent, the photographer, without having to have recourse to the uncertain process of an ejectment suit in face of the recently introduced Bombay Rent Act, II of 1918.
10. The question, therefore, for us to decide is whether the action of the 1st accused, coupled with that of the 2nd accused, did or did not amount to restraining the tenant at sufferance from proceeding in a direction in which he had a right to proceed within the meaning of Sections 339 and 341 of the Indian Penal Code.
11. It has been argued upon this question that the tenant at sufferance was a mere trespasser and had no right whatever to proceed to the room, and in support of this argument a case was quoted in which a landlady was held entitled in somewhat similar circumstances in England to remove the roof of the house of her tenant, the case of Jones v. Foley (1891) 1 Q.B. 730 ; 60 L.J.Q.B. 464 ; 64 L.T. 538 ; 39 W.R. 510 ; 55 J.P. 521. It has also been pointed out that a landlord might in such circumstances himself take possession of his property in England, provided he did not use force and so infringe the Statutes passed against forcible entry referred to in the note to paragraph 1073 of the 18th Volume of Halsbury's Laws of England. It has been urged that the same law has application in this country on the authority of the case of Bandu v. Naba 15 B. 238 ; 8 Ind.Dec. (N.S.) 161 in which it was held that such dispossession by the owner was valid, though it was there significantly added 'subject to the provisions of Section 9 of the Specific Relief Act.' Reference was also made to the case of Kantheppa Radai v. Sheshappa 22 B. 893 ; 11 lnd Dec. (N.S.) 1178 where it was held that the possession of a tenant at sufferance was wrongful within the meaning of the Indian Limitation Act.
12. It was, however, argued in reply that the tenant at sufferance was not a mere trespasser without any right whatever to possession and it was pointed out that he could bring a suit for possession against any other person who was nothing more than a mere trespasser even in England according to the 2nd Clause of paragraph 904 of the 18th Volume of Halsbury's Laws of England. It was admitted that a person who was nothing more than a mere trespasser could not even in this country sue to recover possession on being dispossessed under Section 9 of the Specific Relief Act, according to the case of Amirudin v. Mahamad Jamai 15 B. 685 ; 8 Ind. Dec. (N.S.) 463. But it was pointed out that a tenant at sufferance in this country was much more, because he could maintain a suit for possession even against his own landlord who had evicted him otherwise than in due course of law, that is to say, otherwise than by recourse to the Civil Courts according to the decision in Rudrappa v. Narsingrao 29 B. 213 ; 7 Bom. L.R. 12 decided with special reference to the provisions of Section 9 of the Specific Relief Act. It was accordingly urged that the law obtaining under the Statutes against forcible entry in England was not the same as that resulting from these provisions of the Specific Relief Act in India.
13. It seems to me that this reply has been well founded and that it would be impossible to hold that the tenant at sufferance in this country has no right whatever to proceed to his room and exercise other similar rights of possession, when such a person has been expressly given the right to protect his possession even against his own landlord, according to the ruling of this Court, under the provisions of Section 9 of the Specific Relief Act. It would appear that the tenant at sufferance has been recognised to have these limited rights of possession in order to prevent the disorders which would otherwise arise from allowing people in this country to take the law into their own hands and endeavour to obtain possession, even when lawfully due to them, without having recourse to the Civil Courts, The provisions of Section 9 of the Specific Relief Act would appear to differ materially from the Statutes against forcible entry in England. It is not necessary and indeed would not be proper here to decide the substantial question between the parties, namely, whether a tenant at sufferance would or would not be a tenant within the meaning of Section 9 of the Bombay Rent Act, II of 1918. That question and all other questions arising between them under the Rent Act would be matters properly for decision in regular proceedings in the Civil Courts. The behaviour of the parties has no doubt been petty and entitles neither of them to much respect but it would not, in my opinion, be right to treat as merely trivial, as urged on behalf of the accused, deliberate endeavours to evade the special provision for settling peaceably disputes between landlords and tenants laid down by law. It is, on the contrary, requisite to insist by infliction of substantial punishment that landlords and tenants should not take the law into their own hands, but should proceed by regular process in the Civil Courts as prescribed in this country by the Indian Legislature.