V.A. Mohta, J.
1. On whom does burden lie to prove that the lease is in violation of Clause 22 of the C.P. and Berar Letting of Houses and Rent Control Order 1949 ('the H.R.C. Order' for short) is a question to be determined in this second appeal.
2. Factual background is this : respondent (original plaintiff) purchased House No. 119 in Municipal Ward No. 2 at Wardha by registered sale deed dated 26-12-1972 from Smt. Ambabai Bapurao Kalaskar and Smt. Manormabai Pundlik Mudholkar. The appellant (original defendant) was already occupying the ground floor of the said house as a tenant for running a hair cutting saloon. The tenancy was monthly commencing from 1st of each month. The defendant started paying rent to the plaintiff after due attornment. Sometime latter the plaintiff approached the Rent Controller for permission to terminate the tenancy in terms of the H.R.C. order on the ground of bona fide occupation. The defendant contested the matter on merits but neither questioned the relationship of landlord and tenant nor the legality of the tenancy. The permission was granted by the Rent Controller and was confirmed in appeal and the writ petition challenging the order came to be dismissed. In pursuance of the permission granted to terminate the tenancy, notice as required under section 106 of the Transfer of Property Act was served. There was no reply. Suit for possession as well as arrears of rent was thereafter filed.
3. The defendant resisted the suit on the ground that the lease between him and previous landlord was void being in contravention of Clause 22 of the H.R.C. Order, as the plaintiff's predecessors-in-title had not intimated the vacancy when the previous tenant by name Shamrao had vacated. According to the defendant, Shamrao vacated on 31-12-1959 immediately after which on the very next day the property was leased to the defendant. As there was no initial legal relationship of landlord and tenant, the suit was not maintainable. Both the courts rejected the plea and decreed the suit and hence this appeal.
4. Shri Manohar, the learned Counsel for the appellant, inviting my attention to the Division Bench decision of this Court in the case of Kakubhai & Company v. Nathmal 1979 Mh.L.J. 450 has contended that tenancy was illegal while Shri Kulkarni, the learned Counsel for the respondent, inviting my attention to the Supreme Court decision in the case of Murlidhar v. State of U.P., : 1SCR575 has submitted that it is not so. He vehemently argued that if such contentions are accepted, it would amount to giving premium on or law breaking and would also amount to taking advantage of one's own wrong. My attention was invited by him to Clause 22(2) of the H.R.C. Order which cast duty also on a tenant not to occupy the premises without getting necessary assurance from the landlord, and it was submitted that as no such assurance was pleaded the defendant should not be allowed to raise such plea. Now as the Supreme Court decision in the case of Murlidhar (supra) has been considered by the Division Bench, the same will have binding effect on me, despite the fact that appeal against the said decision is pending in Supreme Court. That apart, in the present case, it is unnecessary to go into that larger question, as the matter can be disposed off on the ground of absence of material on record to hold that in fact there has been violation of Clause 22 in the present matter.
5. Who should fail in the absence of material is a question to be decided. In the first place, it will have to be noticed that this is a suit by a purchaser from the previous landlord during whose ownership and that too 12 years before the purchase the tenancy was created. During the long period the defendant regularly paid rent to those landladies and never questioned the legality of the tenancy. In the year 1972, the plaintiff purchased the property and it is not disputed that the defendant accepted him also as his landlord and continued to pay the rent without any demur. Rent control proceedings were initiated. There was a tooth and nail contest on merits which is apparent from the fact that the matter went to the High Court and for several years, it did not drawn on the defendant that the original tenancy was illegal as no intimation about vacancy was given. Thereafter, a notice of termination was issued. The defendant remained silent and did not raise the plea even at that stage. It is for the first time when the present suit for possession was filed after such a protracted litigation that the defendant chose to raise this plea and that too in absolutely vague manner. The plaintiff examined himself. The defendant did not enter into the witness box but examined his son. The son of the Manager of the previous landlord was also examined by the defendant. It is apparent that none of these persons had any personal knowledge of what happened several years before. No attempt whatsoever to get the record from the office of the Rent Controller about the intimations during the relevant period was made. Under the circumstances, nothing else could prove the illegality of the tenancy. The defendant relied firstly on the contention that after all it was a negative fact which he could not be called upon to prove. Secondly, it was submitted that it was humanly impossible to get release order from the Rent Controller. In respect of the property within a day and, therefore, it must be presumed that no intimation was given. I am not impressed by either point. The finding of fact is that the defendant occupied the premises on 4-1-1960 and not on 1-1-1960, as alleged by him. It is also the finding that the previous tenant had not vacated at the end of December 1959 as contended. The aspect of impossibility of getting release order was considered and it has been held that though in normal course it is difficult task, to say that obtaining of release order within a short period was impossible would not be correct. Many circumstances including the fact that the Manager of the landlord was a lawyer have been considered and I see no reason to take a different view of the matter in second appeal.
6. The definition of 'tenant' as given in the H.R.C. Order is as under :---
'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.'
Considering this definition and the whole background, referred to earlier, it seems to me that burden rested with the defendant to show that he was not legal tenant. Law presumes legality and the burden is always on those two want to prove the contrary. If at all, any authority is needed, it is Paper Sales Ltd. v. Chokhani Bros. A.I.R. 1946 Bom. 429 to which the learned District Judge has rightly made reference.
7. My attention was invited on behalf of the defendant also to the fact that after the defendant raised a question of illegality of tenancy in the written statement, the plaintiff amended the plaint making certain assertions denying the relevant pleadings in the written statement. The argument is that the facts which were pleaded by way of amendment in the plaint were required to be proved by the plaintiff. It seems to me that this argument has also no force. In fact, the amendment to the plaint denying the contents in the written statement was wholly unnecessary. Only because an unnecessary amendment was made and allowed, it does not follow that the burden of proof which was otherwise on the defendant had shifted.
8. There is yet one more aspect to the whole question which needs consideration. By notification dated 31st October, 1968, issued in Maharashtra Government Gazette, Part I, at page 1088, certain houses are exempted from certain provisions of the H.R.C. Order. The relevant notification reads as under :
'In exercise of the powers conferred by Clause 30, the Government of Maharashtra hereby exempts---
a) from all provisions of the said order, any house used for non-residential purposes, if it is constructed on a site lying vacant on the 1st day of January, 1967, or on a site made vacant after that day by demolition of any structure standing thereon;
b) from the provisions of Chapter III of the said Order, any house used for non-residential purposes, if it is constructed before the 1st day of January, 1967.'
9. Now Clause 22 is contained in Chapter III and the house in question was used for non-residential purposes. If defendant had vacated the premises in 1972, there was no necessity of giving any intimation. Admittedly, defendant accepted the plaintiff as landlord for the first time in 1972 and thereafter paid him rent every month. This aspect of the matter will also have definite impact on the question though it cannot be said that actual vacancy was created. For all these reasons I see no reason to take a view that the defendant was not a tenant as contemplated in the H.R.C. Order and that the suit a framed is not maintainable. In result, the present second appeal is dismissed; but under the circumstance without any order as to costs.
10. At this stage, Shri Manohar has made a request that four months' time to vacate should be granted. Shri Kulkarni raised no objection provided on behalf of the defendant, undertaking is given to vacate before the time sought for. Shri Manohar gives such an undertaking and in view of this, the defendant is granted time to vacate till 31st May, 1982.