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Shantaram Keshav Bhirodkar Vs. Popatlal Bharmal Shah - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 2838 of 1979
Judge
Reported in1986(1)BomCR398
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 5 and 12(3)
AppellantShantaram Keshav Bhirodkar
RespondentPopatlal Bharmal Shah
Appellant AdvocateM.D. Angal, Adv.
Respondent AdvocateH.J. Thackar, Adv.
Excerpt:
.....thereafter gets protection under the act as against landlord and also assumes obligations to pay rent - assignee does not claim under the tenant and does not lack privity of landlord - assignee steps into shoes of tenant provided there is no legal bar to assignment - assignee secures direct relationship with landlord and assumes all rights and liabilities vis-a-vis with landlord if assignment is accepted from date of assignment. - - it is now well settled that notice which is required to be given to a defaulter is one as contemplated by section 12(3)(a) and no other notice is ordinarily required in order to secure possession from the tenant under the statute affording protection to the tenant i. it may be mentioned that after giving its opinion that the suit must fail for want of..........he has obtained a stay from the supreme court. if undertaking is not filed by the specified date, decree may be executed on or after 16th september, 1985. 11. if necessary undertaking is filed in this court by specified date then eviction decree is not to be executed upto 15th november, 1985. this is more than ample time for the petitioner to move the supreme court and obtain necessary orders. undertaking must also be to the effect that an amount equivalent to rent will be paid to the respondent by the petitioner for the period. mr. thacker, learned counsel for the respondent, states that the petitioners has paid (or deposited) necessary amount from 1st september, 1979 to 31st august, 1985. the amount for each month after august 1985 should be paid or deposited on or before the.....
Judgment:

S.K. Desai, J.

1. The subject matter of this writ petition is an open plot of land admeasuring 277 sq.feet and designated as open Plot No. 91 forming part of a larger piece of land of about 577 sq. feet, which is situated at Ranade Road, Bombay. The respondent is the owner of the said plot of land. He had let out the suit plot to one Purshottam Atmaram Chitre as a monthly tenant. The said Chitre has assigned tenancy rights in respect of the suit plot in favour of the petitioner. After the assignment, the petitioner entered into possession and started doing his business in the suit plot.

2. The owner landlord filed R.A.E. Suit No. 2149 of 1962 against the tenant Chitre. The petitioner was also joined as the 2nd defendant in the said suit. Ultimately consent terms were arrived at between the plaintiff and the 2nd defendant. Under terms consent terms, the petitioner who was the 2nd defendant, was recognised by the plaintiff-landlord as a lawful assignee of the tenancy rights in respect of the suit plot with effect from 15th May, 1959. Clauses 2 and 8 of the consent terms provided for an eviction decree, but the same was to be stayed permanently if certain amount due to the landlord for Municipal Taxes were paid by the 2nd defendant. We are not concerned with these provisions Clause 4 provided that with effect from the recognised date of assignment i.e. 15th May, 1969 the standard rent plus permitted increases in respect of the suit plot would be fixed at Rs. 37.50p. It may be mentioned that at the very time when these consent terms were taken, the tenant who was the 1st defendant in the submitted to an eviction decree. It may be mentioned further that the tenant was paying contractual rent at the rate of Rs. 30/- per month and amounts at this rate had been deposited presumably upto the date of the compromise which was 16th February, 1967. This, however, means that the balance amount of Rs. 7.50 p. remained payable with effect from 15th May, 1959, which was the date of the assignment which was accepted and recognised by the landlord by these consent terms. The landlord thereafter by his Advocate letter dated 13th January, 1968 called upon the petitioner to pay the arrears from 15th May, 1959 to 31st December, 1967 amounting to Rs. 776.55 p. The defendant however, did not send any reply to the said letter nor did he comply with the requisitions thereof within a period of one month. Thereafter Ejectment Suit No. 1455 of 1968 was filed against the petitioner by the respondent-landlord on the ground that he was a defaulter and had not paid the arrears despite due notice having been served on him. The suit was tried by the Single Judge, who by his judgement dated 17th November, 1975 dismissed the suit. The plaintiff, whose suit was dismissed, carried the matter in appeal, which appeal was numbered as 138 of 1976. The appeal was allowed and the Order of the trial Court passed on 17th November, 1975 dismissing the suit was reversed and an eviction decree was passed against the petitioner.

3. The Appellate Bench noted the consent terms and observed that it was unable to agree with the view of Single Judge that by these consent terms the petitioner was recognised as a lawful tenant and, therefore, notice under section 106 of the Transfer of Property Act was necessary. It may be mentioned that this was the only point which had found favour in the trial Court and on which it had dismissed the suit. It is now well settled that notice which is required to be given to a defaulter is one as contemplated by section 12(3)(a) and no other notice is ordinarily required in order to secure possession from the tenant under the statute affording protection to the tenant i.e. the Bombay Rent Act. This point was not even pressed at the hearing of the petition. It may be mentioned that after giving its opinion that the suit must fail for want of such notice under the Transfer of Property Act, the trial Court had observed that on all other points its findings were in favour of the landlord. The trial Judge had expressly disbelieved the petitioner case that after receipt of the notice he had approached the landlord and tendered rent which was not accepted on a statement that the rent was not settled. This case had been rejected because it was not taken up in the tenant's Point of Defence. The Appellate Court agreed with the factual conclusions of the trial Judge and since the Order of dismissal of the suit could not be sustained on the legal point, which had erroneously found favour with the trial Court, decreed the suit and passed an eviction decree reversing the Order of dismissal.

4. Before me it has been strenuously urged that the right of the landlord to claim rent from the petitioner arose only after the date on which the eviction decree had been passed against the tenant in Suit No. 2149 of 1968. Carrying the argument further, it has been urged that the landlords claim for the difference (Rs. 7.50p. per month) for the period 15th May, 1959 to the date of the consent terms was neither legal nor valid.

5. Indeed, such an argument would have to be upheld if the petitioner had been a sub-tenant in respect of the demised premises and not a lawful assignee. The position in case of a sub-tenant has been affirmed by the Supreme Court in a number of decisions of which we may note only one viz. Hiralal Vallabhram v. Sheth Kasturbhai Lalbhai, : [1967]3SCR343 . This decision has been reiterated in subsequent decisions.

6. The questions is whether an assignee stands on the same footing as a sub-tenant? As far as the sub-tenant is concerned, it is clear on the first principle that until the tenancy is determined he has no privity with the landlord, and as observed by the Supreme Court, it is only when the landlord secures an eviction decree against the tenant after having duly determined the tenancy that the sub-tenant steps in the shoes of the tenant securing the protection under the Bombay Rent Act as against the landlord (real) and also inter alia assumes the obligations to pay the rent. On the other hand, the position of an assignee, as a matter of law, is totally different. The position of an assignee has been enunciated by Division Bench of this Court in Bombay Municipal Corporation v Vasantlal Fulchand Anand Jaitha, 40 Bom.L.R. 497. But even without reference to any judicial decision, it may be stated that the assignee does not claim under the tenant and does not lack privity with the landlord. The assignee, as a matter of law steps in the shoes of the tenant, and if there is no legal bar to the assignment i.e. if the assignment is legal and valid, as it was in the instant case, and particularly if the assignment is accepted by the landlord, as it was in the instant case, then from the accepted date of the assignment, the assignee secures a direct relationship with the landlord and assumes and incurs and secures all liabilities and rights directly vis-a-vis the landlord.

7. In this case, as the recital of facts indicates, when in the earlier suit consent terms were taken between the respondent and the petitioner ( Defendant No. 2 in the said suit), the petitioner was recognised as an assignee with respective effect and from the date he, in law, would incur the obligation to pay the rent. The figures of rent including the permitted increase is specified at the higher figure Rs. 37.50p. per month from 15th May, 1959 which was the date of the assignment. The assignee was entitled to obtain credit for the amounts deposited in the suit, but became liable to pay the balance. This balance he failed to pay even after service of the notice. Indeed, in the points of defence he denied liability to pay the amount. If that be so, he was clearly a defaulter and the landlord was entitled to an eviction decree against him as provided under section 12(3)(a) of the Bombay Rent Act.

8. Mr. Angal, learned Counsel for the petitioner, referred me to the definition of 'tenant' under section 5(11) of the Bombay Rent Act. The definition of 'tenant' would include a tenant as well as a sub-tenant but that does not mean that the legal rights and liabilities of both are identical. As states earlier, the position of a sub-tenant which has been crystallised by the Supreme Court in Hiralal's case differs vitally from that a lawful assignee. The latter steps in the shoes of the tenant from the date of the assignment whereas the former i.e. the sub-tenant steps in the shoes of the tenant only after the landlord obtains an eviction decree against the said tenant. That is the vital difference and if that difference is considered, there is no reason nor warrant for interfering with the eviction decree passed by the Appellate Bench of the Court Small Causes.

9. Mr. Angal sought some time within which the eviction decree may not be executed which will enable the petitioner to move the Supreme Court. Necessary time for the purpose may be granted, but this must be on terms.

10. According the Rule is discharged, Interim stay granted on the date of admissions will continue upto 15th September, 1985, but on or before the said date the petitioner will file an undertaking in this Court to hand over quiet and peaceful possession of the suit plot to the respondent by the extended date as will be fixed by me under this order unless in the meantime he has obtained a stay from the Supreme Court. If undertaking is not filed by the specified date, decree may be executed on or after 16th September, 1985.

11. If necessary undertaking is filed in this Court by specified date then eviction decree is not to be executed upto 15th November, 1985. This is more than ample time for the petitioner to move the Supreme Court and obtain necessary orders. Undertaking must also be to the effect that an amount equivalent to rent will be paid to the respondent by the petitioner for the period. Mr. Thacker, learned Counsel for the respondent, states that the petitioners has paid (or deposited) necessary amount from 1st September, 1979 to 31st August, 1985. The amount for each month after August 1985 should be paid or deposited on or before the 10th day of the following month. Respondent permitted to withdraw the amount deposited.

12. Petitioner will also pay to the respondent costs of the petition on the usual scale.


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