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Dinyar Rustom Patell Vs. Rustom J.R. Patell and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberNotice of Motion No. 343 of 1985 in Suit No. 1693 of 1982
Judge
Reported in1986(2)BomCR222
ActsCode of Civil Procedure (CPC) , 1908 - Order 40, Rule 1; Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 5(11)
AppellantDinyar Rustom Patell
RespondentRustom J.R. Patell and ors.
Appellant AdvocateGirish Desai, Adv., i/b., Jahangir Gulabbhai and Daruwalla, Advs.
Respondent AdvocateVarihawa, Adv.
Excerpt:
tenancy - receiver - order 40 rule 1 of code of civil procedure, 1908 and section 5 (11) of bombay rents, hotel and lodging house rates control act, 1947 - whether defendant made out case for relief of receiver's appointment in suit filed by plaintiff - facts revealed plaintiff was not staying in suit premises and premises were kept locked - conduct of plaintiff obtaining injunction from court and remaining way from premises for years together resulted in immense 'waste' of suit premises - plaintiff's right on basis of which he could claim possession of suit premises in dispute - plaintiff claimed to be co-tenant of suit premises - his position was only of joint possession or common possession and not of exclusive possession - by order of appointment of receiver plaintiff does not get.....sharad manohar, j.1. the present notice of motion had been taken out by original defendant no. 1 in the suit filed by the plaintiff. the notice of motion is for appointment of receiver in respect of the suit premises. mr. varihawa, who was appointed as amicus curiae for assistance to the court and who gave very real and very precious help to the court described the suit as bizarreand frivolous. i will probably have occasion to examine that aspect of the question (whether it is a frivolous suit) in separate proceedings. at present, i am concerned mainly with the question as to whether defendant no. 1 (herein the defendant) was made out any case for the relief of receiver's appointment and that too not in his own suit, but in the suit filed by the plaintiff. 2. i will first set out the.....
Judgment:

Sharad Manohar, J.

1. The present Notice of Motion had been taken out by original defendant No. 1 in the suit filed by the plaintiff. The Notice of Motion is for appointment of Receiver in respect of the suit premises. Mr. Varihawa, who was appointed as amicus curiae for assistance to the Court and who gave very real and very precious help to the Court described the suit as bizarreand frivolous. I will probably have occasion to examine that aspect of the question (whether it is a frivolous suit) in separate proceedings. At present, I am concerned mainly with the question as to whether defendant No. 1 (herein the defendant) was made out any case for the relief of Receiver's appointment and that too not in his own suit, but in the suit filed by the plaintiff.

2. I will first set out the facts which are either not disputed or are incapable of being disputed. Some legal position will also be referred while stating the facts for explaining the legal relevance of the fact question.

(a) The suit relates to a portion of two bedrooms, sitting-cum-dining room and toilet and some other portion of Flat No. 8 in thee plaint called Govind Nivas, 16-A Altamount Road, Bomaby-26.

Defendant No. 1 is the main contesting defendant. He is the father of the plaintiff. Defendant No. 2 is his wife, defendant No. 3 is his daughter and defendant No. 4 is his other son. All the 4 defendants have common defence against the plaintiff. In other words, the plaintiff has been fighting this legal battle with his parents, brother and sister; all of them are on one side and he is alone on the other side. As will be presently pointed out, that he is claiming some kind of superior right over even his father, mother, brother and sister in connection with the suit premises.

Admittedly, said building 'Govind Nivas' belonged before 1929, to the grandfather of the plaintiff and defendant Nos. 3 and 4 (that is to say, to the father of defendant No. 1). Some time before 1929, he sold the said building to the present landlord of the some, but retained with himself the possession of two flats therein, Flat No. 6 and Flat No. 8 as tenant of the present landlord. The dispute is confined to Flat No. 8 only and that too in connection with a portion of the same. Till 1929 the plaintiff's said grandfather was the tenant in respect of Flat No. 6 and Flat No. 8. He died in the year 1929. The tenancy was thereafter transferred to his own window, that is to say, the plaintiff's grandmother.

(b) The plaintiff was born in the year 1942. His said grandmother who was then the tenant in respect of both the Flats died in the year 1954. The case of the plaintiff is that he was the member of his grandmother's family and he was residing with her at the time of the death and hence, he became the tenant of Flat No. 8 along worth the defendants. It is this contention of the plaintiff which is seriously questioned by Mr. Varihawa. The plaintiff's suit is based, founded and grounded exclusively upon this plea and that is the reason why Mr. Varihawa has described the suit as a bizarre and frivolous suit. Mr. Varihawa states that, in the first place, the parties and Parses. The concept which is sought to be introduced is that of Joint Family, which is unknown to Parsee Law. Further he appointed out that at the time of the death of plaintiff's grandmother he was not residing with her as member of his grandmother's family. The plaintiff was just 12 years of age at that time and was being educated by his father. He was therefore, living as a member of his father's family and not defendant No. 1's family. Moreover, the artificial definition of the word 'tenant' given in the Rent Act, as it then existed, was not attracted to the tenancy of the suit premises at all, because the tenancy at that time was contractual tenancy which devolved under the General Law and not as per the provisions of the Rent Act as it then existed. He contended that if the tenancy was a contractual tenancy, it would devolve upon defendant No. 1 who was the son of plaintiff's grandmother under the General Law and this position under the General Law was in no way affected by the provisions of General Law for the simple reason that the tenancy was a contractual tenancy and not a statutory tenancy. He further pointed out that even otherwise the provisions of section 5(11) of the Rent Act, as it then stood did not come into operation because this Flat No. 8 was not in possession either of defendant No. 1 or his mother at the time of her death, because admittedly Flat No. 8 was sublet either by the plaintiff's grandfather or plaintiff's grandmother to Richards on Cruddas & Co. Ltd. It was in the occupation of the company at the time of the death of plaintiff's grandmother. It could not, therefore be said that the plaintiff was living in said Flat No. 8 along with his grandmother at the time of her death. The special definition of the word 'tenant' given in section 5(11) of the Rent Act, therefore did not come into operation at all.

There is quite some force and substance in this argument of Mr. Varihawa.

(c) Resuming the factual position, the plaintiff who was born in 1942, naturally attained majority in the year 1960. In the year 1965, the landlord of he building transferred the rent receipts presumably in respect of both the flats, or at least in respect of Flat No. 8, in favour of present defendant Nos. 1 & 2. This date is mentioned because it was Mr. Varihawa's argument that the plea of fraud invented by the present plaintiff is ex-facie untenable. The plea is that in the year 1965, the tenancy in respected of Flat No. 8 belonged not only to defendant No. 1, but even to the plaintiff and other defendant Nos. 2 to 4 and that the transfer of the tenancy in respect of Flat No. 8 in favour of present defendant No. 1 by the landlord is, therefore, according to he plaintiff, the result of fraud and of collusion between defendant No. 1 and the landlord. Mr. Varihawa's contention was that the plaintiff was very much a major at that time. It is not the plaintiff's contention that he was not aware of this position, viz. that the rent receipt came to be transferred in favour of present defendant No. 1 in the year 1965 itself. If he was aware of that position, then the suit filed by him as late as in the year 1982, on the basis of the allegation of fraud practised by his own father in the year 1965, is barred by limitation.

(d) In the year 1967 Richhardson Cruddas & Co. surrendered said Flat No. 8 in the favour of defendant No. 1. It has been the plaintiff's contention that the surrender was in favour of not only defendant No. 1 but also in favour of the plaintiff. But Mr. Desai for the plaintiff was unable to point out as to how it could be so when the fault stood admittedly in the name of defendant No. 1 only. It is not the contention of the plaintiff that Richhards on Cruddas & Co. Ltd., paid rent to the plaintiff at any time. The tenancy in respect of the fault stood in the name of defendant No. 1 and the rent was paid by Richhardson Cruddas & Co. Ltd. to defendant No. 1. It must, therefore follow that he surrender by the company must also be in favour of defendant No. 1.

The plaintiff's plea in the plaint is that after surrender of said Flat No. 8 by the company, Richhardson Cruddas & Co. Ltd. it was mutually agreed amongst the plaintiff and plaintiff and defendants that the plaintiff and defendant No. 4 should share Flat No. 8 with defendant No. 4 in the manner described in the plaint, in para 3 of the plaint and that defendable Nos. 1 to 3 should be in exclusive possession of Flat No. 6. According to the plaintiff, he was to be in exclusive use of two bedrooms in Flat No. 8 the hall-cum-dining room and one toilet, where as defendant No. 4 was to have exclusive use of the other two bedrooms and one toilet and the rest of Flat No. 8 was to be used in common both by the plaintiff and defendant No. 4. It is further averred that there was a mutual agreement regarding sharing of rent, between the plaintiff and the defendant No. 4 in respect of Flat No. 8. It is averred by the plaintiff that by the consent of all (meaning thereby by the consent of himself as well) the rent receipts of both the flats continued to be in the name of both the defendants, Nos. 1 and 2. This specific averment in the plaint has got great significance vis-a-vis the question as to whether there is any substance in the plaintiff's assertion of the right of tenancy in respect Flat No. 8.

There is another averment made relating to the payment of rent in respect the suit property by adjustment in some accounts of M/s. Production Cost Control & Consultation Services and M/s. Parvora Agency Bureau which was allegedly the family Partnership Firms. It is, however unnecessary to refer to the legal effect of his averment relating to the payment of rent.

The plaintiff got married in the year 1978 and according to the plaintiff the dispute stared between him and the other defendants, defendants Nos. 1 and 2 particularly, from the year 1981. A letter dated 12th April, 1982 was written by defendant Nos. 1 and 2 to the plaintiff to vacate the 2 bedrooms in Flat No. 8. The plaintiff stated that he has not given any reply to the said letter dated 12th April, 1982, because of the good relation between himself and defendant Nos. 1 and 2. In the same breath, the plaintiff states that he apprehends that defendant Nos. 1 and 2 may carry out their threats. He has, however, not stated as to what threat he is referring to. A copy of the letter dated 12th April, 1982 is annexed to the plaint; but in that letter no one can discern any threat whatsoever.

This is all the factual data in the context of which the plaintiff contends that he has all the right in the world to stick fast to these premises, because he is a tenant in respect of Flat Nos. 6 and 8 and his further contention is that he is in exclusive possession of the portion of Flat No. 8 which he has described in the plaint. He wants a declaration from the Court to that effect and wants an injunction restraining defendants Nos. 1 and 2 from interfering with his exclusive possession of the portion of the flat described by him in the plaint. Pending his suit, he also took out a Notice of Motion for injunction restraining defendant Nos. 1 and 2 interfering with his exclusive possession of portion of Flat No. 8 described in this Notice of Motion.

3. All the defendants have opposed the Notice of Motion as also the present suit in union. In the Notice of Motion even defendant No. 4 has filed an affidavit denying the plaintiff's claim in to. There arises a question whether the suit has not been filed in an entirely wrong Court and I am dealing with that question separately. But that apart, even on merits there is slender likelihood of the plaintiff even being able to get relief from any Court whatsoever. The suit appears to be without jurisdiction at least prima facie. But is appears to be devoid of any merits almost ex-facie. Mr. Varihawa very ably invited this courts attention on both these aspects of the suit. Whatever that may be, the fact remains that the plaintiff 's Notice of Motion for injunction was made absolute by this Court on an earlier occasion and the result has been that the plaintiff has managed to get into possession of the suit premises on the strength of the said injunction to the exclusion of all others, although his right to claim possession as a matter of right against his won parents, appears to be unfounded.

4. It was contended by Mr. Desai that since the Notice of Motion for injunction has been made absolute by this Court on an earlier occasion, it is not open for me to hold that the plaintiff was not entitled to get injunction from this Court because I can not sit in appeal over the order passed by this Court on an earlier occasion granting the injunction.

Mr. Varihawa, on the other hand, argued that the earlier order granting injunction was of this very Court though by a different learned Judge and since every Court has the inherent power to correct its own order passed at an interlocutory stage, there is no obstacle in my way even in the matter of vacating the injunction wrongly obtained by the plaintiff.

There does exist quite some force in Mr. Varihawa's submission. But I make it clear without going into the question whether I have or have not the jurisdiction to have a second look at the order of injunction passed by this Court on an earlier occasion, that I do not propose to pass any order vacating the injunction at all, of not for any other reason, at least for the reason that if the defendant is entitled to have the relief asked for in this Notice of Motion, it is not necessary, for that purpose to vacate the injunction issued by this Court in favour of the plaintiff on the other earlier occasion. Mr. Desai, however, is not right in contending that I cannot even examine the facts, circumstances and documents on record which go to show that the plaintiff's suit is devoid of any merits and that it has been filed in Court without jurisdiction. The order of injunction passed by this Court in the Notice of Motion was after all on interlocutory order and the courts seized with the suit have always the power to examine the various pieces of evidence already on record with a view to ascertain whether any of the parties are entitled to any further interlocutory relied or not.

5. The present Notice of Motion which is filed by defendant No. 1 came to be filed in peculiar circumstances. The suit itself come up for hearing before me. At that time, I noticed that the only effort on the part of the plaintiff was to have the hearing of the suit postponed sine dine. Defendant No. 1 appeared in person and he was clamouring before the Court that the plaintiff who is his son, has played prank with the Court, that he has obtained injunction from the Court even though he does not reside in the suit premises at all, that he is in fact not staying even in India and for more than 2 years he has been residing abroad, keeping the suit premises locked to he inconvenience of everyone else resulting also, in enormous 'waste' and damage. The fact that the plaintiff does not reside even in India for the period nearly 2 years is specifically admitted by Mr. Desai appearing for the plaintiff. The fact that the major portion of Flat No. 8 is kept by the plaintiff under lock & key for more than 2 years is an admitted fact When I learned about this position resulting into unnecessary 'waste' of the premises, I perused the plaint, filed by the plaintiff only to learn that at least prima facie, the plaintiff had filed a suit in a Court having no jurisdiction to entertain the suit. But this is a question which is required to be tried as one of the issues in the suit. I have heard the argument on the part of Mr. Desai on the said issue. However, I will decide the said issue a little later. After the arguments were advanced on the said issue present defendant No. 1 has move this Notice of Motion for appointment of Receiver in respect of the suit property. When the notice of this Notice of Motion was received by the Attorneys for the plaintiff, the usual motion was made to the Court for adjournment on the ground that the plaintiff himself is out of station, out of India and that the Attorneys must have enough time to have instructions from him. Even though I was satisfied that the plaintiff had no equity in his favour at all, still I gave the Attorneys sufficient time to take instructions from his client for the purpose of filing affidavit in reply to the Notice of Motion.

The Attorneys did not come to file the affidavit in time. The affidavit was sought to be filed long after the period given in filing the affidavit had expired. I realised that it was one of the methods by which the hearing of the suit and the hearing of the motion was being delayed by the plaintiff. By my order dated 12th March, 1985, therefore, I rejected the application for taking the belated affidavit-in reply on record and I directed that the Notice of Motion should proceed without any affidavit on the part of the plaintiff. When, however, the Notice of Motion came up for hearing on 13th March, 1985, I felt that certain important question were involved in the Notice of Motion. I noticed that defendant No. 1 who was appearing in person was causing quite some inconvenience to the Court in the matter of disposal of the Notice of Motion, not for any other reason but on account of the only reason that defendant No. 1 was completely uninitiated to the intricacies of law and, further was blissful unaware of his own ignorance about those intricacies. The result, I noticed was that although in law and equity defendant No. 1 appeared to be having quite a good case, he was unlikely to present his case successfully before the Court. I, therefore, requested Mr. Varihawa to help the Court and to present before an independent view of amicus curiae. After the examination of the facts of the case and the law pertaining to the case this order was passed on 13th March, 1985 appointing Mr. Varihawa as amiscus curiae to assist the Court and on that account a short adjournment was necessitated. Since the hearing of the Notice of Motion was being adjourned I gave further opportunity to the plaintiff to file his belated affidavit in the Court. By my order dated 13th March, 1985, therefore, I took the plaintiff's affidavit-in-reply on record. The draft issues were also taken on record on that date. The issues have been framed subsequently and I heard Mr. Desai in connection with the preliminary issue relating to jurisdiction. The present Notice of Motion is, however, filed by defendant No. 1 during the hearing of the said preliminary issue and in view of the peculiar facts of the present case I allowed him to take out the said Notice of Motion at that stage.

I heard Mr. Varihawa in support of the Notice of Motion and Mr. Desai, in reply to the same.

6. In support of his contention that this is an eminently fit case where the Receiver in respect of the suit premises should be appointed, the 1st point urged by Mr. Varihawa was that the plaintiff's case was devoid of merits ex facie. He contended that this question was relevant for considering even the question whether the appointment if Receiver should be made or not.

His second point was that having regard to the nature of injunction granted by this Court and having regard to the subsequent conduct of the plaintiff, it must be held that there is a gross abuse of the injunction obtained from this Court and hence, this is an eminently fir case for appointment of Receiver. In this connection, Mr. Varihawa relied upon the Commissioner's Report regarding the inventory. The said Report was given by the Commissioner in pursuance of an order passed by Pratap, J., on 29-3-1984, Mr. Varihawa also referred to the prejudice caused to the defendant by virtue of the fact that the premises had been kept by the plaintiff locked for nearly a period of 2 years resulting in untold inconvenience to all the parties and enormous 'waste' of the flat in question.

Mr. Varihawa further contended that keeping the premises vacant for a period of 2 years is nothing but 'waste' of the premises and appointment of Receiver is necessary for avoiding such a 'waste'.

Lastly Mr. Varihawa contended that this is fact a fit case where this Court can and ought to vacate the injunction. He appointed out that the order of injunction was passed on 23-6-1983. But for the year 1982 itself the plaintiff was continuously out of Bombay. Admittedly, in the year 1982 he was in Madras. He was not residing in the suit premises at all. Thereafter, he has been residing not even in India. He is abroad. Right from the year 1982, till this date he is either out of Bombay or out of India. In spite of this position, however, he has obtained injunction from this Court contending that great hardship would be caused to him if his so-called exclusive possession of the suit premises is disturbed. According to Mr. Varihawa, the subsequent conduct of the plaintiff shows that he has, in the first instance, obtained injunction from this Court by misleading the Court about the hardship likely to be caused to him and that, in the second instance, by his subsequent conduct of keeping the premises locked for years together when his right to remain in possession was itself without any basis in law, he has abused this court's injunction.

7. I am prima facie satisfied that even if every statement made in the plaint is true, still

(a) this Court cannot be said to be having jurisdiction to entertain the suit and to give any relief to the plaintiff at all;

(b) even if this Court was having jurisdiction, still in merits the plaintiff has no case whatsoever because the interpretation he want to give to the provisions of Rent Act is fallacious.

So far as the jurisdictional question is concerned, I will deal with it separately, by a separate judgment, while I pass my order on the preliminary issues of jurisdiction. In this judgement, I will presently examine, briefly whether the interpretation sought to be put by the plaintiff upon the provisions of sections 5(11) of the Bombay Rent Act, as it stood in the years 1956 and 1965, can ever be justified. But the 1st question I would like to consider is as to whether the defendant has made good his case of 'waste' of the suit premises.

8. In this connection, Mr. Varihawa invited my attention to the averments made in para 4 of the affidavit is support of the present Notice of Motion. A reference is made therein to the affidavit filed by defendant No. 1 dated 12th June, 1983 giving detailed reasons why the plaintiff should be allowed to open the rooms in questions which have been kept by him under the lock & key and should restore possession to the defendants. He has summarised the position as follows:

'i) The long locked up rooms, neither swept or cleaned for the last 27 months, constitute a grave health hazard to the 4th defendant his wife and two young children. ii) The furniture belonging to these defendants has badly deteriorated as seen during the visit of the Commissioner. It has been exposed in the locked up rooms for the last 27 months to vermin, rats, dampness and leakages from the terrace whereas the plaintiff has been careful to cover his few things with plastic sheets. iii) There is grave risk of fire in this 65 year old timber framed building as the main switch-board of the whole of Flat No. 8 is in the lock up portion. Any short circuit therein may lead to a critical fire depriving the defendants and other tenants of a roof over their heads.'

In reply to those averments, all that is stated by the plaintiff in his belated affidavit is that he has given reply to the same in his earlier affidavit. Mr. Varihawa invited my attention to the said affidavit and pointed out that none of the factual position referred to above has been effectively denied by the plaintiff at all. Admittedly, the plaintiff is not staying not only in Bombay, but even in India. For years together, the precious premises are just kept locked. It does not require much fertility of imagination to conclude that the fears expressed by the defendants is perfectly well founded. If the neighbouring room is kept locked for years together and if anybody has swept the same and cleaned the same for years together, this is bound to cause health hazard to the neighbouring occupants. The furniture in the room is bound to be deteriorated. It is the case of the defendant that part of the furniture in the room is his own furniture. This fact is borne out by the Commissioner's Report filed in this Court pursuant to the order passed by Pratap. J., on 29-3-1984. If one reads the Commissioner Report, no room is left for doubt that keeping the two bedrooms under lock & key for a long time results in unnecessary loss to defendants Nos. 1 and 2. The main switch board of Flat No. 8 is in a locked up portion. If there is any critical situation arising out of the short circuit, the entire building will be gutted by fire because the electrical supply cannot be fused off.

Having regard to all these facts, therefore, not he slightest room is left for doubt that the conduct of the present plaintiff of obtaining an injunction from this Court and remaining away from these premises for years together have resulted in immense 'waste' of the suit premises.

9. Before referring to the prima facie case of the plaintiff on merits would be necessary to refer to the arguments advanced by Mr. Desai on behalf of the plaintiff. His first contention is that he has not suppressed any fact from the Court when he obtained any injunction. Mr. Varihawa contended that this Court would not have granted injunction if this Court was informed that the plaintiff was not residing in the suit premises and was not likely to reside there for years together. This would be so, evidently because in that case the question of balance of convenience would not be in favour of the plaintiff at all. Mr. Desai, however, relied upon the averments made in para 7 of the plaint and contended that the fact that he was to go away was not suppressed by him from the Court. He particularly referred to the following portion of para 7 :

'The plaintiff states that he is employed as an officer in India Hotels Co. Ltd. The plaintiff's employers have passed orders that he be transferred to Madras and work at 'Fishermen's Cove Hotels' which is about 40 kms. away from Madras. The plaintiff has his articles, goods, furniture, clothing and that of his family are in the suit premises at 'Govind Niwas'. The defendants Nos. 1 and have already written a letter to the plaintiff dated 26th July, 1982 wherein he has called upon the plaintiff to remove all his articles, furniture, fixture, refrigerator etc., Hereto annexed and marked Exhibit 'C', is the copy of the said letter dated 26th July, 1982. The plaintiff will be losing his job if he does not proceed to madras on or before the 2nd week of October, 1982.'

To my mind, Mr. Desai's contention cannot be accepted. All that the plaintiff has stated in the said para is that he was to leave for Madras. He has not stated that he was to keep the flat under lock & key. He has not stated that his family was also to leave the flat and was to go abroad. If the Court granting injunction was aware of this position, it is unlikely that the Court would have given equitable relief of injunction to the plaintiff. But even assuming that the injunction was granted for some reason or the other, fact remains that these acts and omission on the part of the plaintiff have resulted in untold damages and 'waste' of the suit property. By passing on order for appointment of Receiver, no would be caused to the plaintiff at all but the 'waste' would be avoided and if this is the position, there is no reason why the orders for appointment of receiver should not be passed.

10. The next contention of Mr. Desai was that the fact that the plaintiff was in possession of the suit premises was admitted by the defendant in paras 8 and 9 of the written statement. I have gone through the written statement and I find no justification for such a plea. All that is admitted by the defendant is that the defendant had been allowed to reside in the said portion of the suit premises, but the defendants have hastened to add poignantly that the plaintiff was never in exclusive possession of the suit premises. It had been made clear by the defendants repeatedly that the plaintiff resided in the suit premises alongwith the defendants and that the plaintiff's possession was never exclusive.

11. The 3rd contention of Mr. Desai is that the plaintiff's possession cannot be disturbed by appointment of Receiver.

In fact, this was his major contention, his sheet anchor, in this Notice of Motion for appointment of Receiver. In support of the same, he placed heavy reliance upon the two authorities. I have examined both the authorities and I find that far from supporting the plaintiff's case they go a long way to support the position that this is a fit case for appointment of Receiver.

The 1st Authority referred to by him is : AIR1955Mad571 Munniammal v. P.M. Ranganatha Nayagar and another.

It is unnecessary it state the facts if the case; it is enough to state here that the question relating to the appointment of Receiver arose in that case out of the maintenance suit. The three guidelines were laid down in the said judgment for considering the question of appointment of Receiver, viz.

'First of all, a plaintiff applying for the appointment of receiver must show prima facie that he has a strong case and good title to the property or a special equity in his favour and that the property in the hands of the defendant in is danger of being wasted.

Secondly, where the property is in media that is to say, in the possession of no one, a Receiver can readily be appointed. But where anyone is in possession under a legal claim, strong and compelling reasons are necessary for interfering with such possession. Thus the bona fide purchaser of the property bona fides have to be presumed unless and until the contrary can be inferred-in dispute should not be disturbed by the appointment of a Receiver unless there is some substantial and compelling ground for such interference. Violently stated vague allegations constitute no substitute vacuum of facts. Thirdly, an application for the appointment of a Receiver should always be made promptly and delay in making it is a circumstance unfavourable to such an appointment. Of course the matter should be considered judicially in all its aspects before being disposed of as there may be legitimate reasons for preferring and application after delay.'

After laying down this principle, it was held in that case that---

'the plaintiff has not shown prima facie title. The properties had been in the possession of the first defendant as auction purchaser for over three years. The suit itself had been filed after every other device had failed and the delay was a circumstances unfavourable to the appointment of a Receiver.'

A.I.R. 1976 Goa 70

'The appointment of a Receiver should not cause the loss of possession of the suit land which a party to the suit has, prior to the suit, unless it is proved that the party in possession causes or is likely to cause damage to the subject-mane of the suit.'

'The Receiver, if appointed in a particular case, must be appointed on the principle that the property must be preserved bending the litigation which is to decide the right of the litigants. In such cases; the Court must of necessity, exercise a discretion as to whether it will or will not take possession of the property by its officer. Where the property is, in media, in the enjoyment of no one, the Court can hardly do wrong in taking possession. It is common interest of all the parties that the Court should prevent a scramble. But where the object of the plaintiff is to assert a right to the property, of which the defendant is in the enjoyment, the case is necessarily involved in further questions. The Court, by taking possession at the instance of the plaintiff may be doing an irreparable wrong to the defendant. If the plaintiff should eventually fail in establishing his right against the defendant, the Court may, by its interference, have caused mischief to the defendant, for which the subsequent restoration of the property may afford no adequate compensation.'

12. Let me now examine Mr. Varihawa's contention that this suit is just a bizarre and frivolous suit, apart from its jurisdictional ineptitude. I may state here that I am in complete agreement with this submission. But I propose to discuss the legal position as I see it myself in the context of the submission made by him. In the first place, the plaintiff has no right whatsoever vesting in him on the basis of which he can claim right to possession of the suit premises. His entire claim is based upon the fact that he was a member of the family of his grandmother at the time of her death (when he was just 13 years of age). One of the extended definition of the word 'tenant' as per section 5(11) of the Bombay Rent Act as it stood in 1956 was that the expression 'tenant' included a member of the tenant's family residing with him in the premises at the time of his death. The plaintiff claims that he was residing with his grandmother in the year 1955 at the time of her death and, hence, he became a tenant of the suit premises. One of the reasons why this contention must be dismissed as bizarre is that it has no basis whatsoever in facts. In the year 1955, the plaintiff was a tiny minor. His father, present defendant No. 1 was having a family of his own and the plaintiff would be a member of his father's family, not his grandmother's family. There is no basis whatsoever for the contention that the grandmother had a family of her own and that she made her own son and grandson members of her said family. The plea stems just from wishful imagination. Such a position normally does not obtain in India. It is true that the rent bill at the time was standing in the name of the grandmother. But that was not because the grandmother was the head of the family. The rent bill must have been transferred by the landlord in the name just because she was wife of the deceased tenant and as such had a right in the tenancy. Moreover, it is doubtful whether the extended definition of the word 'tenant' would extend also to contractual tenancy. It is possible to hold that it was attracted only to contractual tenancy. If so, it is nobody's contention that when he plaintiff's grandmother died, the tenancy was a statutory tenancy. It is nobody's contention that the grandmother's tenancy was terminated by the landlord at any time. It is a possible view that if the tenancy was contractual, pure and simple, the extended definition of the word 'tenant' just did not come into operation because upon the death of plaintiff's grandmother (defendant No. 1's mother) the tenancy devolved exclusive upon her son, viz. defendant No. 1, under the general law. The -plaintiff had not the remotes claim to the tenancy in the year 1956 when the succession to his grandmother opened. Moreover, it is not as if that even under that extended definition, every member of family of the deceased tenant became a tenant. The definition itself shows that the landlord could transfer the rent receipt to any one of the heirs of the deceased tenant with the consent of all the heirs residing with the deceased tenant at the time of his death and in the absence of any agreement amongst the heirs, it was the Court who had to decide as to who should be the tenant. This clearly showed that the entire body of heirs residing in the premises with the deceased tenant at the time of his death did not become ipso facto to the tenants of premises. It may be that contractual tenancy could be inherited by the entire body of heirs. But under the general law, plaintiff was not the heir of his grandmother at all. If it was a case of statutory tenancy, by the consent of all the claimants, any one of them could be recognized by the landlord to be future tenant. In the instant case, by consent of all the heirs, the landlords transferred the rent receipt in the name of present defendants Nos. 1 and 2. It is the plaintiff's own averment in the plaint itself that the he has consented toe the transfer of rent receipt. Even assuming, therefore, that he was one of the heirs of his grandmother and was an such, entitled to claim statutory tenancy, the consent given by him for the transfer of rent receipt in favour of Nos. 1 and 2 completely non-suits him.

13. Even that apart, there is yet another reason why the plaintiff is not entitled to invoke the said extended definition of the word 'tenant'. On his showing present Flat No. 8 was not is possession of the plaintiff 's grandmother at the time of her death. She was not residing in that flat at that time. The flat had been sub-let to Richhardson Cruddas & Co. Ltd. The possession of flat was subsequently surrendered by Richardson Cruddan & Co., Ltd., in favour of present defendants Nos. 1 and 2. If the plaintiff was not residing in Flat No. 8 at time of his grandmother's death it is impossible to see any justification for the contention that he became tenant in respect of that flat by virtue of section 5(11) of the Rent Act. The implicate pre-requisite of that provision is that the heirs of the deceased tenant must have been residing with him in those premises at time of his death. In the present case, in the suit premises the plaintiff was not residing at time of his grandmother's death at all. Her, therefore, cannot claim the benefit of the said definition extended definition.

I may mention here that was placed by Mr. Desai on the present definition of the word ''tenant' and this was obviously so because the present definition saw the light of the day some time after the year 1969. By that time, the Rent Bill had already been transferred to present defendants Nos. 1 and 2 and the plaintiff on his own showing had consented to the same.

14. The plaintiff plea about fraud is equally misleading and illusory. He and not given any particular of the fraud. He has not stated as to who had practised the said fraud upon him. The tenancy was transferred in the name of the defendants Nos. 1 and 2 in the year 1965. At that time, he was 23 years of age. He had made positive averment by saying that he had consented to the transfer of the rent receipt in the name of defendants Nos. 1 and 2. It is impossible to appreciate the plea of fraud levelled by him against his own parents.

15. Moreover, what is being lost sight of is that once the plaintiff stated that had consented to the Rent bill to be transferred in the name of defendants Nos. 1 and 2 his only contention can be that defendant. Nos. 1 and 2 were only benamidars and that the real tenants were the plaintiff and the defendants together. But significantly enough, there is not one word murmured anywhere in the plaint or anywhere in the affidavit that the plaintiff 's parents were the plaintiff's benamidars. By what right the plaintiff has then claimed tenancy of the suit premises is a mystery.

16. It was rightly argued that Mr. Varihawa that apart from the fact that the plea of fraud is and eye-wash, because the plaintiff was very much a major at time when the rent bill was transferred in the name of his parents by the landlord. Points is that the plaints was fully aware of the transfer of the rent receipt. He says that it was made with his own consent. But point is that by fraud or otherwise the tenancy has been created in favour of defendant No. 1 and 2 by the landlord. If there was any fraud practised by the landlord against the plaintiff in collusion with defendants Nos. 1 and 2, it would be at the most a voidable transaction of which the plaintiff was fully aware right from its inception. If he wanted to avoid it he had to get a declaration from the competent Court by filing appropriate suit that defendants Nos. 1 and 2 were not the tenants of the suit premises. If he contends that he did not file a suit because of the fraud, he should have filed a suit immediately when he learned that such a transfer of rent receipt was made by the landlord. On his own showing, he knew about it and consented to it. His suit for declaration that such transfer of rent receipt was bad would be barred by limitation. Moreover, if the present suit is considered to be that suit, the fraud must be by both, by the landlord as well as by defendant Nos. 1 and 2. The landlord is not made a party to this suit. The suit is, thus, bad for any number of reasons including the defect of non-joinder of necessary parties.

All that I would like to state about this submission at this stage is that it is not without force. There is a good deal of force in this contention. But I wish to express no opinion at this stage.

17. Having regard to all the above circumstances, I am prima facie of the view that it is not the plaintiff but defendant Nos. 1 and 2 who have made good their title of tenancy in respect of the suit premises. If this is the position and if it found that the balance of convinces lies completely in favour of the defendants and, further, if it is found that steps are necessary for avoiding 'waste', it must be held that appointment of Receiver would be eminently just and convenient in the instant case.

18. Some arguments were advanced that the defendants were having enough premises of their own to accommodate themselves and hence, the balance of convenience is not in favour of the defendants. I see no justification for such a contention. In these days of security of accommodation, it can ever be said that the premises had by persons with growing families are adequate. It is true that the defendants are having two flats. But as against that, the position is that there is their grown up and expanded families. Their needs go on expanding. The parties belong to quite an affluent class. There is no reason why they should be deprived of the additional premises which they can put to beneficial use, if the possession of the premises is made available to them, without causing any loss or hardship of the plaintiff.

I make it clear that if the plaintiff happens to come back to Bombay, it will be perfectly open for him to apply to this Court being appointed as Receiver's agent and the question will no doubt be considered by this Court on its own merits.

19. I will now refer to some authorities relied upon by Mr. Varihawa.

In : AIR1966Pat154 , the Patna High Court had occasion to consider the scope of the 'just and convenient principle'. It was held in that case that---

'In the matter of appointment of Receiver of the property in dispute before it the Court has a wide discretion. But it will not appoint a Receiver unless from the materials brought to its notice if it is satisfied that it is just and convenient to do so. Different considerations will arise in different cases; but in a case of disputed title, where the plaintiff seeks recovery of possession the Court will appoint a Receiver if it is satisfied on two matters: (1) that the title which the plaintiff has set up is prima facie good; and (2) that the property is in danger of being wasted or dissipated or being so dealt with as to get irretrievably out of the reach of the plaintiff who is prima facie entitled to its possession.'

Applying the above principle to the facts of the present case, it has got to be held that this is an eminently fit case for appointment of Receiver.

The 2nd Authority relied upon by Mr. Varihawa is my own judgment in Appeal from Order No. 999 of 1981 delivered by me, sitting signal on 20-9-1982. I have held in that in these days of acute shortage of accommodation keeping the premises locked and un-used for months & years together is a 'waste' within the contemplation of Order 40 of the Civil Procedure Code, if the concept of 'waste' is appreciated in the social context.

20. Mr. Desai's further contention was that in a suit filed by the plaintiff for injunction to no order should be passed so that the possession which is with the plaintiff should be made over to the defendant.

The proposition may be possibly correct and it may be that in a suit filed by the plaintiff the decree for possession cannot be passed in favour of the defendant. I do not wish to pay down a sweeping proposition of law of the above effect because the above rules there may be conceivable exceptions. But I am prepared, for the moment, to accept the proposition. Point is that this is not a case where the plaintiff's possession of the suit premises is an admitted fact. The defendants have been crying from housetops that the plaintiff was never in exclusive possession of the premises. In fact the position is that the plaintiff managed to obtain injunction from this Court and it is with the help of this injunction that he was entrenched himself in the suit premises. The Report of the Commissioner, referred to above, clearly shows that in the bedroom under the lock-key of the plaintiff, articles belonging to the defendant are very much there. Even assuming that such articles are not there, still if the plaintiff claims to be only a cotenant of the suit premises, his position is only of one in joint possession or common possession; it can never be of an exclusive possession. If the injunction was not secured by the plaintiff, it would have been open for the defendant to file a suit against the plaintiff for mandatory injunction requiring him to remove himself form the premises on the ground that he has no right, title and interest in the same and that the premises vest exclusively in defendant Nos. 1 and 2. In the context of the facts of the case such a suit would be perfectly a valid suit and this Court would have probably decreed that suit. What I am driving as is that this is not a case where the plaintiff is admittedly in possession of the suit premises and that by virtue of the order of appointment of Receiver the plaintiff is going to be dispossessed.

Moreover, by an order of appointment of Receiver itself, the plaintiff does not get dispossessed. The Receiver acts on behalf of the legitimate owner of the suit premises.

Moreover, if as and which the plaintiff comes back to Bombay and requires the premises for occupation, it will be always open for him to approach this Court to pass suitable order in that behalf so that he can be appointed as Receiver's against during the tendency of the suit. Neither in law nor in equity, therefore, the plaintiff can have any objection to appointment of Receiver when he does not have any use of the premises at least for some time to come.

21. Mr. Varihawa cited quite a few authorities in support of his contention that the suit has been filed by the plaintiff in fact in a Court which his divested of its jurisdiction to entertain the suit by virtue of the provision of section 28 of the Bombay Rent Act. Mr. Desai also relied upon a few authorities in support of his contention that this Court has perfect jurisdiction to entertain the present suit.

For reasons, which I may mention while passing order on the preliminary issue relating to jurisdiction, I do not find it necessary or advisable to decide that question in this Notice of Motion. It is enough for me to state here that there is great deal of substance and jurisdiction in the contention advanced by Mr. Varihawa in this behalf. The entire question, however, is kept open and I will pass suitable order on the same, if necessary after hearing also on the said preliminary issue.

22. The Notice of Motion is, therefore, made absolute. The Court Receiver is appointed as the Receiver of the suit premises which were the subject matter of the earlier Notice of Motion No. 1616 of 1982 with all the powers of the Receiver under Order 40 of the Civil Procedure Code. The Receiver shall take possession of the suit premises forthwith and shall appoint defendant No. 1 as his against. Defendant No. 1 shall enter into possession of the suit premises as Receiver's against. He shall be under no liability to pay rent or other compensation to the Receiver. He shall, however, enter into the usual agreement with the Receiver for maintenance of the suit premises and shall give an undertaking that he shall hand over possession of the premises as and when directed by this Court.

I am sorry that I am unable to pass any order as to costs against the plaintiff. If any Advocate had been appointed by defendant Nos. 1 and 2. I would have been inclined to pass a stiff order of costs against the plaintiff, having regard to his conduct in the suit.

I must, however, express my deep indebtedness for the very valuable assistance given by Mr. Varihawa in dealing with the various questions involved in the suit.


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