Sharad Manohar, J.
1. This writ petition was assiduously and elaborately argued on behalf of the both the petitioners as well as respondents. However, I find that the concurrent decree for eviction passed by both the courts below has got to be sustained atleast on one of the grounds urged on behalf of the original plaintiff. The petition, therefore, can be disposed of on the said narrow ground. However, since the petition was argued at length on all the points. I will give brief indications as regards the points urged before me and the tentative view taken by me in that behalf.
2. Both the petitions arose out of a common judgment and common decree of eviction passed by the trial Court and confirmed by the Appellate Court though, to some extent on different grounds. For the sake of convenience, I will refer to the facts stated and averments made in Writ Petition No. 659 of 1981 only. The decision in the other petition will follow the decision in the said Writ Petition No. 659 of 1981. For the sake of further convenience, the parties will be referred to hereafter with reference to their position in the style of the suit in the trial Court; that is to say, as plaintiff, defendant No. 1 and defendant No. 2.
3. The suit premises consist of a plot of land admeasuring about one acre, that is to say, about 45,000 sq.ft. being part of C.T.S. No. 2094 at E. Vikramnagar, Kolhapur together with three ground floor structures standing on the same. The entire plot C.T.S. No. 2094 admeasures about 9 acres admittedly the suit premises form a portion of the said C.T.S. 2094.
The entire plot C.T.S. No. 2094 admeasuring about 9 acres including the suit premises admittedly belonged to the joint family of Jamsandekars. The joint family has other properties as well. At all the relevant times till there was a severance of status of the joint family, Anant was the 'Karta' of the said family. It appears that dispute started in the said family and partition was sought to be effected. It further appears that arbitration proceedings were resorted to in connection with the family dispute. We are really not concerned with those proceedings; what we are concerned that in the year 1954, Suit No. 15 of 1954 came to be filed for partition of the joint family and for the possession of the separate share of each of members of the joint family. There is no dispute that Anant was the 'Karta' of the joint family till the family was a joint family but evidently he ceased to have any power to manage the joint family property or to deal with any particular joint family property on behalf of other members with effect from the date of the suit. All the same, however, the said Anant gave the suit premises on lease to one Shankarrao Gopal Dabholkar, husband of defendant No. 1, on monthly rental of Rs. 75/-. This lease is evidence by a document styled as 'Koul Patra' for a period of 25 years. This document plays a crucial and pivotal role in this litigation and hence it is necessary to set out its relevant provisions. The document is executed by Anant Jamsandekar. It stresses that it is executed in favour of Shankarrao Gopal Dabholkar, occupation-Pleader, residing at House No. 328, B-Ward, Kolhapur, 'for the purpose of factory' (Karkhana) Kolhapur Matches. The document further proceeds to state that the entire Plot No. 2094 had been, in the past, let out to Shri Slokhe for the purpose of Match Factory, that the said factory came into possession of Shankarrao Gopal Dabholkar from Salokhe, the substantial portion of the leased premises was made over by said Dabholkar to Jamsandekar from time to time and that in view of the said surrender, the standard rent of the suit premises which was the subject matter of the said 'Koul Patra' was mutually agreed upon to Rs. 75/- per month. Clause 2 of the Koul Patra runs as follows :
'The said property has been given to you by us for the purpose of your factory (Karkhana) Kolhapur Matches on rent for a period of 25 years.'
Clause 3 starts with the statement :
'That the said property is going to be used by you for the purpose of your Karkhana. If for the purpose you are required to construct any sheds or buildings, you may do so. But after the period, at the time of vacating the premises, it is your responsibility to remove the sheds, building etc., and to give vacant possession of the property.' (remaining portion of the clause is not relevant)
Clause 4 runs as follows :
'We will have no objection if you allow anyone to stay in the property for the purpose of the Karkhana. But you will not be allowed to keep any stranger as an independent sub-tenant without our permission nor you will be entitled to make any disposition of the property without our written consent.'
At least apparently the Koul Patra' provides that :
(a) the lease was given to said Dabholkar for the purpose of carrying on his business of the particular Match Factory;
(b) Dabholkar was prohibited from sub-letting his property save with the consent of the landlord;
4. In the partition suit, a preliminary decree was passed in the year 1958. It appears that Anant Jamsandekar filed an appeal against the same preliminary decree to this Court and in that appeal he himself made an application to this Court in January 1960 for appointment of a Receiver in respect of the joint family property. In that application an order was passed by this Court on 8-2-1960 ordering Receiver to be appointed and directing the trial Court to choose the incumbent for being appointed as the Receiver of the property. It is not clear from the record as to whether one Mr. Ghorpade was appointed as Receiver at any time by the trial Court. It is further not clear as to whether appointment of any person as Receiver was made before 12-4-1960, which is another crucial date in this litigation. What is not disputed, however, is that one Bandivadekar came to be appointed as Receiver for the entire family property on 29-9-1960.
5. However, before this date, but after 8-2-1960, Anant himself gave the consent letter to lessee Dabholkar which consent letter is dated 12-4-1960. In the said consent letter it was stated that lessee Dabholkar was trying with the idea of making over the Match Factory to a limited Company that it was not possible to do so in view of the prohibition against sub-letting or assigning and that Anant Jamsandekar had no objection to the course desired by lessee Dabholkar. After making this averment, the letter proceeds to state as follows:
'In pursuance of the stipulation made in Clause 4 of the Koul Patra' we hereby accord our full consent to you to transfer fully or partially all your rights under the 'Koul Patra' to your proposed private company or to anyone else. However, by this letter, none of the other conditions or other clauses are to be affected and the said clauses shall be fully binding upon you, as well as, the person claiming the rights by transfer.'
6. The legal consequence competence and interpretation of the above letter of consent and particular of the above-mentioned averments in the same is the crux of the questions falling for my determination in this petition.
7. It is common ground that inspite of this permission granted to Dabholkar, the suit premises were not sub-let or assigned by Dabholkar to anyone till 1-12-1969. The plaintiff's grievance is that on 1-12-1969 said Dabholkar sub-let the suit property to defendant No. 2 'Span Industries,' The property was in the possession of the Court Receiver at that time. On 1-10-1971, the Court Receiver gave a notice to said Dabholkar terminating his tenancy on various grounds including the ground of unlawful sub-tenancy and of default in the payment of rent. To the said notice reply was given by defendant No. 1 on 30-10-1971. In the reply, it was specifically contended on behalf of the defendants that sub-letting done by defendant No. 1 was not unlawful inasmuch as the property has been sub-let by defendant No. 1 to defendant No. 2 on the strength of the consent letter dated 12-4-1960 written by Anant Jamsandekar to defendant No. 1.
Thereafter, the suit out of which the present petition arises was filed, initially by the Receiver, on 9-8-1972. By the time the suit came to be filed, original lessee Shankarrao Gopal Dabholkar had died and hence his widow Ahilyabai was impleaded as defendant No. 1 in the suit. The alleged unlawful sub-tenant, Span Industries, was impleaded as defendant No. 2. In the suit, possession was claimed from both the defendants on three grounds. The first ground was that defendant No. 1 had unlawfully sub-let the suit property to defendant No. 2. The second ground was that defendant No. 2 constructed a permanent structure upon the suit premises and had thereby made himself liable for eviction under section 13(1)(b) of the Bombay Rent Act. The third ground was that defendants had committed default in the payment of rent for the period exceeding six months.
The defendants filed their written statement and denied all the above allegations. So far as the plea of sub-tenancy was concerned, the common plea of both of the defendants was that defendant No. 1 had sub-let the suit property to defendant No. 2 in pursuance of the consent letter dated 12-4-1960. As regards the allegation of permanent structure, it was denied that any permanent structure was constructed by defendant No. 2. So far as the plea of default in the payment of rent was concerned, the contention was that on the date of the notice, the defendants were not in arrears of rent at all and that, as a matter of fact on that date the defendants had paid much larger amount than the rent due from the defendants to the plaintiff. The contention was that the plaintiff was liable to the Municipal Taxes for the entire plot bearing C.T.S. No. 2094 admeasuring about 9 acres with buildings and structures on the same and that those Municipal Taxes were paid by the defendants at the request of the Receiver. The contention was that after looking into accounts, it would be found that the defendants had over-paid the plaintiff on the date of the notice and hence there was no question of the defendants being in arrears either on the date of the notice or on the date of the suit.
8. It appears that before the above-mentioned eviction suit reached hearing a final decree had already been passed in the partition suit and by the final decree the suit premises had come to the share of Shridhar who was one of the members of the joint family. As a part of the compromise it was provided that Shridhar should step in the shoes of the Receiver as the plaintiff in the said eviction suit. The plaintiff's name was, therefore, substituted in the name of the Receiver as the plaintiff in the eviction suit. It appears further that in the final decree the house which was in the occupation of Shridhar till the time of the final decree was given to the share of some other member and the suit premises were put to the share of Shridhar. The decree further provided that Shridhar should vacate the house till then in his occupation within two years. The position, therefore, was that Shridhar who was newly substituted as the plaintiff in the eviction suit had practically no shelter to live under. Hence, he applied for amendment of the plaint and by the amendment he urged a further ground that the suit premises were necessary for him for his bona fide and reasonable personal requirements of residence. The amendment was duly allowed and it is thus that the fourth ground for eviction came to be added in the plaint. It goes without saying that the defendants denied the bona fides as well as the reasonable character of the plaintiff's demand and contended further that much greater hardship would be caused to the defendants by decree of eviction than would be caused to the plaintiff in case such decree was refused.
9. It was on these pleadings that evidence was led and parties went to trial. After examining the entire evidence, the trial Court negatived the plaintiff's contention relating to construction of permanent structure by defendant No. 2 and relating to six months default in the payment of rent. So far as the plea of bona fide requirement was concerned, the trial Court accepted the plaintiff's contention that he required the suit premises bona fide for his residence. However, the learned Judge held that greater hardship would be caused to the defendants by passing a decree of eviction than would be caused to the plaintiff by refusing the passing of any such decree. It will be thus seen that the plaintiff's plea for possession on these three grounds was rejected by the trial Court. However, the trial Court recorded a finding that sub-letting done by defendant No. 1 in favour of defendant No. 2 on 1-12-1969 was unlawful. In this view of the finding, the trial Court held that the plaintiff was entitled to decree of eviction against both the defendants. The plaintiff's suit for possession against both the defendants was thus decreed by the trial Court.
10. Both the defendants filed appeals to the District Court against the decree of eviction passed by the trial Court. Defendant No. 1 filed Civil Appeal No. 109/78 whereas defendant No. 2 filed Civil Appeal No. 108/78. Both the appeals were hard together and were disposed of by the learned Assistant Judge by a common judgment. It appears that at the time of hearing of the appeal, an application Exh. 23 was made by defendant No. 2 in the Appellate Court for amendment of the written statement. By the proposed amendment, it was sought to be contended that :
a) plaintiff Shridhar has no right to file suit in respect of the suit premises because part of the suit premises had gone to the share of some other member of the joint family;
b) the original lease given by Anant was not to the individual Shankarrao Gopal Dabholkar but it was to a partnership firm and hence that suit for eviction filed against the individual was not maintainable;
c) the transaction dated 1-12-1969 which was alleged to be a transaction of sub-letting by defendant No. 1 to defendant No. 2 was a transaction of leave and licence only and hence no liability was incurred by defendant No. 1 for eviction on the ground of unlawful sub-letting.
For the purpose of substantiating the last plea, a document purporting to be a leave and licence agreement between Shankarrao Gopal Dabholkar and Span Industries was sought to be produced in the Appellate Court.
The Appeal Court rejected the above application Exh. 23 for amendment of the plaint. So far as the first two amendment were concerned, the application was rejected unreservedly. So far as the last amendment relating to leave and licence agreement was concerned some of observation was made in the order to the effect that it was a pure point of law and that, hence, arguments in that behalf could be advanced at the time of hearing of the appeal. The fact, however, remains that the said application was totally rejected by the Appeal Court. Against the said order refusing permission to amend the written statement, Civil Revision Application No. 512/80 was filed by defendant No. 2 in this Court. It appears that before deciding the said revision application, hearing was given by this Court also to the plaintiff and after hearing both the sides, the said revision application was summarily rejected by this Court. It may be stated here that it is not mentioned in the order of rejection that the application was rejected because it was filed at an interlocutory stage. As will be presently pointed, the said rejection could never be considered to be merely on the ground that it was filed at an interlocutory stage.
Against the said order of rejection Special Leave Petition No. 765 of 1980 was filed in the Supreme Court. However, it appears that even in the Supreme Court the present petitioner drew a blank. The said SLP was withdrawn by the petitioner on 23-7-1980.
11. Thereafter the appeal in the District Court was heard and finally decided by the Extra Asstt. Judge, Kolhapur. The learned Judge, however, accepted the plaintiff's contention vis-a-vis all the four grounds, that is to say, not only that he confirmed the trial Court's finding relating to unlawful sub-letting, but he also upheld the plaintiff's contention that defendant No. 2 had constructed a permanent structure over the suit premises and had thus made himself liable for eviction under section 13(1)(b) of the Rent Act. He also upheld the plaintiff's contention that defendant had been guilty of default in the payment of rent for a period exceeding six months. He further held that not only the plaintiff's requirement for recovery of the suit premises was bona fide but he further held that greater hardship would be caused to the plaintiff by not passing a decree of eviction in his favour than would be caused to defendant No. 1 by passing a decree against her. So far as defendant No. 2 was concerned, he held that he being an unlawful subtenant, the hardship that would be caused to him was irrelevant. In view of these findings recorded by him, the learned Judge dismissed the appeals filed by both the defendants.
It is in these circumstances that Writ Petition No. 659 of 1981 has been filed by original defendant No. 2 whereas Writ Petition No. 2566 of 1981 has been filed by defendant No. 1.
12. Mr. Madhukar Soochak, the learned Advocate for the petitioner was successful in satisfying me that the view taken by the learned Asstt. Judge was totally erroneous so far as atleast one of the four grounds discussed by him was concerned. I was satisfied that no decree could be passed against either of the defendants on the ground of erection of permanent structure. I was also satisfied that the finding of the learned Asstt. Judge to the effect that the defendants were in arrears of rent was also not quite correct. Even as regards the ultimate finding relating to the plea of bona fide requirements I was satisfied that the plaintiff's requirement of 45,000 sq.ft. of area for the purpose of his residence was too tall a claim and if it was necessary to decide that question I would have been inclined to consider whether a decree for a smaller portion ought not to be passed against the defendants. However, I am satisfied that the concurrent findings recorded by both the courts below on the question of unlawful sub-letting by defendant No. 1 in favour of defendant No. 2 is not only legal but quite correct even otherwise and hence the decree for eviction passed by both the courts below has got to be sustained. In this view of the matter it would be really unnecessary for me to discuss the question relating to the other grounds on which decree has been passed by the lower Appellate Court. However, I will firstly refer to the ground relating to unlawful sub-letting and thereafter I shall briefly indicate my reaction relating to the other grounds.
13. The plaintiff's contention that defendant No. 1 has unlawfully sub-let the premises to defendant No. 2 is founded upon two-reasoning. His first part of the contention is as follows :
After the partition suit was filed and the preliminary decree was passed against Anant by the Court, he had no power whatsoever to give permission to defendant No. 1 to sub-let the premises. The written consent or permission given by Anant to such sub-letting was, therefore, wholly illegal and inoperative. It, therefore, follows that the inhibition against sub-letting that existed on account of specific provision in Clause 4 of the 'Koul Patra' as also under section 15 of the Bombay Rent Act, continued to prevail, the letter of consent dated 12-4-1960 notwithstanding. The second aspect of the contention is that event assuming that Anant had the power to give such consent, the consent in the instant case was only a qualified consent or a conditional consent. The qualification or condition was that sub-letting would be done by defendant No. 1 to a person who would be carrying on the same activity viz. the manufacture of Matches. Evidently, the first defendant had not sub-let the premises to defendant No. 2 for such restricted purposes. It, therefore, follows that there is no consent for such sub-letting and hence sub-letting is unlawful.
14. In answer to the above plea Mr. Soochak argued that Anant continued to have the power to give consent even after the passing of the preliminary decree. I must state here that I was not at all satisfied by the arguments advanced by Mr. Soochak in this behalf. In this connection, certain factual position has got to be borne in mind. The lease in favour of defendant No. 1 was itself given by Anant on 22-3-1957 long after the severance of status has taken place and long after he had ceased to be the Karta of the joint family. But, it appears that so far as that lease is concerned, the parties have chosen to treat that lease not to be without authority and not to be invalid. It was open for the members of the joint family to acquiesce in the lease being given by the rest-while Karta. The conduct of the parties clearly shows that all the members did acquiesce in such lease being given by Anant to defendant No. 1. Since none of the parties challenged the validity of the lease dated 22-3-1957, the Court had to hold the lease valid.
After the lease was given, a preliminary decree was passed in the year 1958. Against the preliminary decree Anant filed an appeal to this Court and in that appeal, he himself made an application, sometime in January 1960 for appointment of Receiver in respect of the various joint family properties including the suit premises. The application clearly meant that he did not want to manage the property at all and he wanted the Receiver to be appointed so that the property should be managed by the Receiver. On that application this Court passed an order on 8-2-1960 directing the trial Court to appoint the Receiver. It thus follows that at least from the date 8-2-1960 Anant ceased to have any power whatsoever to deal with the suit premises. I must state that he did not have any such power even previously after he ceased to be the Karta of the joint family property, but it would be open for the members of the joint family to own any of the acts committed by the erstwhile Karta and any such act owned by the other co-owners would be binding upon them. Thus, it appears that the act dated 22-3-1957 has been owned or acquiesced in by the other members. That act is, therefore, binding upon the other co-owners. The act dated 12-4-1960, giving the particular kind of consent for sub-letting has not been owned or acquiesced in by the other members of the family at all. As a matter of fact, there is no evidence to show that till the reply given by defendant No. 1 dated 13-10-1971, the plaintiff was even aware of the said letter of consent. On the first principle relating to Hindu Law, I am of the opinion that the letter dated 12-4-1960 given by Anant was wholly without any power. The letter, therefore, was of no legal consequence whatsoever vis-a-vis the other member of the joint family. I may state here that in case the suit premises had gone to the share of Anant by virtue of the final decree, the said letter dated 12-4-1960 might have been binding upon him as against defendant Nos. 1 and 2. But Anant could be said to have no power whatsoever to give the said letter of consent to sub-let so as to bind the other members of the joint family.
15. Mr. Soochak tried to salvage this legal position by setting certain technical pleas. His first contention was that the plaintiff never challenged the validity of the consent letter. His grievance was that the plaint did not contain any challenge to the said consent letter and his further grievance was that even though the plaint was amended at the instance of the plaintiff on two or three occasions, no averment was incorporated in the pleading so as to challenge the validity of the said consent letter.
To my mind, this contention is wholly misconceived. The plaintiff has pleaded unequivocally that the sub-letting done by defendant No. 1 in favour of defendant No. 2 was unlawful. The plea of sub-tenancy being lawful was set up by the defendants by reliance upon the said consent letter. It was they who were relying upon that letter. Hence it was for them to show that the letter was written by a person who had competence to write the same. It was the defendants who set up the plea of consent to the sub-letting. It was for them to satisfy the Court that the consent set up by them was a valid consent given by a person having any authority to give any such consent. If the defendants have failed to establish a valid consent, the sub-letting is unlawful. Another way of looking at it is that as per section 15 of the Bombay Rent Act prohibition against sub-tenancy is the rule; permitted sub-tenancy is the exception. If the defendants wanted to avail of the exception, the burden is upon them to establish every ingredient of the exception. It is not enough for them to merely set up the consent letter. It is further necessary for them to prove that it was a valid letter given by a person who has the authority to give it. It is just as simple as that.
16. Nextly, Mr. Soochak contended that Anant continued to have the power to give consent until the Receiver was actually appointed by this Court. He conceded that the direction to appoint Receiver was passed by this Court as early as on 8-2-1960 at the instance of Anant himself. But he pointed out that actual appointment was made on 3-10-1960 long after the consent letter was written by Anant. The contention was that until actually the Receiver took charge from Anant. Anant continued to have the power to give consent.
I find no jurisdiction for such plea at all. To my mind, the event of the actual appointment of the Receiver is not the only fact which took away Anant's power to manage the property. Anant did not have the power to manage the property at any time after he ceased to be the Karta. After he ceased to be the Karta, his power to manage the property was similar to and co-extensive with that of the other members of the family. He could no doubt take steps for preservation of the property. But such steps could have been taken even by the other members of the family as well. He could no doubt recover rent from the tenants, but he would be accountable for the rent received by him after the suit was filed. Just as he himself could recover the rent, any other coparcener could recover rent and that coparcener could be equally accountable to other coparceners. Anant did not have any larger power than the others so far as dealing with the property was concerned. Point is that he could do everything which could bind himself. He had no right to bind the other members of the family by what was done by himself. The contention raised by Mr. Soochak in this behalf was, therefore, quite unacceptable.
17. Mr. Soochak however tried to bolster his contention by reliance upon two authorities. The first was Sri Thathachariar v. Srinivas Thathachariar alias Srinivasa Raghavachariar ILR1927 Mad 866. It was held in that case as follows :
'In an ordinary suit for partition, in the absence of fraud or other improper conduct, the only account the Karta or manager is liable for is as to the existing state of the property divisible and the parties have no right to look back and claim relief against past inequality of enjoyment or other matters; but it is open to the plaintiff to prove specifically fraud, misappropriation or other improper conduct on the part of the manager with respect to such management; the same rule of accountability of the manager applies in a suit for partition by a minor, as regards his management prior to suit; but subsequent to the date of suit, the plaintiff and the defendant (the manager) are only tenants -in-common or co-sharers and, therefore, the manager is strictly bound to account for all receipts and expenses and can take credit only for such expenses as have been incurred for the benefit or necessarily of the estate, and the net income after deduction of such expenses will have to be divided among the sharers according to their shares.'
I fail to see what application these observations have to the facts of the instant case. The question that was posed before the Madras High Court related to the liabilities of the members inter se relating the accounting in respect of the joint family property before and after the suit for partition. The question with which I am concerned in this petition is as to whether the Karta can deal with the property of the joint family so as to bind other members even after he ceased to be the Karta and particularly after he himself stated to the Court that he did not want to manage the property and got the order from the Court to have the Receiver appointed. The principles laid down by the above authority is wholly irrelevant for the purpose of the question that falls for determination in this petition.
18. The next contention raised by Mr. Soochak is that Anant continued to have the power to deal with the property even after the filing of the suit and in support of that contention he relied upon the judgment of Calcutta High Court in Tewari v. Jibanmal Babu and others, in : AIR1941Cal163 . It was held in that case that though a Receiver is appointed in a partition suit, the title to the suit property does not get vested in the Receiver and the parties are at liberty to deal with their share in the property even after appointment of the Receiver. I fail to see as to what relevance even this principle has got with the question under consideration in our case. It is nobody's case that Anant was not entitled to deal with his own share in the joint family property. Nobody denied to him the right even to sell away all his undivided share in the joint family property even before the passing of the preliminary decree. The question is as to whether he continued to have power to deal with any specific item of the property even after he ceased to be the Karta so as to bind the other members of the family. Supposing in the instant case Anant had sold the suit property to defendant No. 2, could it be said that the said sale was binding upon the other members? The obvious answer to such a question is that he could not have any power to sell the property, except his own share in the same, after he ceased to be the Karta. If after the final decree the said property had been put to the share of some other member of the family, the sale would be wholly void and ineffective. If he could not sell the property, there is no reason to hold why he could have leased the property unless the lease was acquiesced in by the other co-parceners and if he could not lease the property so as to jeopardise the interest of the other members of the family.
My attention was not invited to any other authority which could support the plea that even after the preliminary decree was passed against Anant and even after Receiver was directed to be appointed for the entire property at his own instance, he continued to have power to dabble with the property and to give letter of consent to sub-let the property so as to jeopardise the interest of the member to whose share the property would go ultimately.
19. The next contention of Mr. Soochak was that it was incumbent upon the plaintiff to challenge Anant's bona fides in connection with the giving of the consent letter and that since it was not pleaded that the consent letter was given out of any variety of mala fides, the consent letter should be held to be valid.
To my mind, this plea is wholly irrelevant. Once it is held that Anant had no power whatsoever to writ the said consent letter so as to bind the other members of the family, the question as to whether there existed any mala fides actuating such letter of consent has no bearing whatsoever upon the validity of the letter of consent. Permission given without title of authority does not become valid because it was actuated by lofty motives.
20. It is nextly contended that Anant's power to write a letter continued until the actual appointment of the Receiver and further until the Receiver had actually taken possession of the suit property.
I fail to see by what principle of law such a situation becomes acceptable. The position of law is already set out above. The position is that immediately upon the rational severance of status, Anant ceased to have any power to indulge in any dealings with any specific property belonging to the family so as to bind the other members of the family. The lease executed on 12-4-1960 could itself be held to be illegal vis-a-vis the other members of the family but for the fact that all the other members of the family had chosen to acquiesce in the same. So far as this letter dated 12-4-1960 is concerned, none of the members have acquiesced in the same at any time and in fact none of them had any occasion to acquiesce in the same. The letter saw the light of the day, so far as the plaintiff was concerned, for the first time when the reply dated 30-10-1971 was given by defendant No. 1 to the Receiver's notice dated 1-12-1969. No conduct of the plaintiff is brought on record which would make the letter dated 12-4-1960 binding upon him.
Even assuming that Anant was purporting to manage the property in the interest of the family at the time when the gave the letter of consent dated 12-4-1960 and was acting as agent of the other members, all that pretext of agency and management in the interest of the family came to an end when he himself moved this Court to have the Receiver appointed in respect of the entire property, thus implicitly representing to the Court that he had no desire to manage the property himself or to have it managed by any other member of the family. If that was the evident meaning of the said application for appointment of Receiver and in pursuant to that application he himself got an order for appointment of the Receiver, it beats understanding as to how he could have written that letter dated 8-2-1960, thus arrogating to himself the power which he himself never had and which he specifically wanted the Receiver to exercise. As a matter of fact, not only the Karta but even any other member of the family has full right to deal with undivided share in the properly even after the appointment of the Receiver. The member who was previously the Karta does not stand on any higher footing in this connection after the statutes is severed. The whole point is that neither the rest-while Karta nor any member of the joint family can state that a particular piece of property would belong to him or that he could deal with the same according to his desire with impunity. If he deals with the same say by way of sale of the same, the purchaser takes it subject to the evident risk. If by virtue of the final decree the property goes to the share of this own vendor, the purchaser would get full title to the property. But if it goes to the share of the other member, the Sale Deed taken by such purchaser will be of no legal consequence whatsoever so far as that particular member is concerned. The Calcutta High Court has not decided anything beyond this at all. Mr. Soochak's reliance upon the said authority is, therefore, wholly misplaced.
21. This brings me to the second aspect of plaintiff's contention vis-a-vis the said letter. It touches the question relating to the actual effect of the letter of consent. I have already held above that the letter of consent was of no legal consequence whatsoever vis-a-vis the present plaintiff; but for the purpose of examining this second question, I have to assume that Anant had some kind of power to write the said letter in favour of defendant No. 1. From the wording of the letter of consent which is already set out above it is perfectly clear that excepting Clause 4 of the Koul Patra nothing else was sought to be affected by the said letter. By said Clause 4, the first defendant was precluded from sub-letting the said property to any person without a written consent of the landlord. Clauses 2 and 3 of the Koul Patra, however, make it clear that lease was granted by Anant exclusively for the purpose of defendant No. 1's Match Factory (Karkhana). Koul Patra read as a whole leaves no room for doubt that letting was for the purpose of the said Karkhana meaning thereby for the purpose of enabling defendant No. 1 to carry on his business of said Karkhana in the leased premises. The letter of consent no doubt relaxed the condition of Clause 4. But not only that it did not purport to slacken the conditions contained in Clauses 2 and 3, but in terms it mentioned that the said conditions in Clauses 2 and 3 continued to hold the field as before. This letter of consent, therefore, clearly spells out a qualified or a conditional consent. The condition was that the sub-lease, whether a Joint Stock Company to be newly formed or any other person, had to take the lease for the purpose of manufacture of matches only and not for any other purpose. Nothing was brought to my notice which would show that such a condition or such a qualification to the consent would be either illegal or unenforceable in law. The original tenant, defendant No. 1, was to carry on his business of manufacturing matches in the suit premises and nothing else. The sub-tenant was expected to be subjected to the same condition. The sub-lease made by defendant No. 1 to defendant No. 2 free from such a condition was, therefore, not within the contemplation of the letter of consent dated 12-4-1960. If that is so, the letter of consent would be of no avail to defendant No. 1 or defendant No. 2 to justify the said act of sub-tenancy.
22. The trial Court has discussed circumstance indicating that the consent was a qualified consent. The consent letter makes pointed reference to the desire expressed and the handicapped perceived by the lessee defendant No. 1 regarding transfer of the factory to a company with limited liability. The Court has observed that all that reasoning explaining the permission for sub-letting was a pointed operation of the sub-lessee was free to carry on an activity in the suit premises as he liked. There is quite a deal of substance in the Court's reasoning which can be supported by yet another circumstance. That circumstance was the result of the peculiar provision of section 15 of the Bombay Rent Act read with the notification issued by the Government thereunder.
The position in short is as follows :
Section 15 of the Rent Act, broadly speaking, prohibits sub-letting. The exception to that prohibition is to be found in the notification allowed to be issued by the State Government. The relevant notification of the State Government provides that if the premises are business premises, the tenant may assign the premises incidental with the general assignment by the tenant of his business as a whole as a going concern alongwith the goodwill of and stock-in-trade in the shop premises or the office premises. The assignment in such a case of the tenancy right has got to be incident at to the assignment of the business concern itself. But apart from this qualification, there is a further qualification. Inspite of the notification, the assignment would not be valid in two cases. Firstly, it would be invalid if the contractual tenancy of the tenant has already been terminated. Secondly, it would not be valid if the original lease between the landlord and the tenant contained a stipulation prohibition the tenant from assigning his tenancy rights.
A casual reference to the provisions of Clause 4 of the 'Koul Patra' is enough to show that the second disability for even assignment definitely prevailed in the instant case. He could not have assigned his business of the manufacture of matches even either to a company of limited liability or to any other person even if the entire business was to be sold alongwith stock-in-trade and good will of the business together with incidental assignment of the tenancy rights. Evidently, what must have been contemplated by defendant No. 1 while taking the said consent letter dated 12-4-1960, therefore, was to get over this difficulty. The intention that could be legitimately attributed to Anant for allowing defendant No. 1 to sub-let the suit premises to the limited company or 'to any other person' without intending to cause any loss to the other co-owners, could be of this character; viz. to remove the difficulty in the way of the tenant in the matter of the assignment and nothing more. What was contemplated was the assignment or sub-letting of the Match Factory itself; not the assignment or sub-letting only of the premises. The legal transaction between the parties and the legal documents which are executed by the parties to successfully complete the said transaction must be deemed to have taken place with the awareness of the law that was in vogue at the time of the transaction. Once we appreciate the above-mentioned nature of the law, the concession given by Anant to defendants No. 1 to the sub-let the factory can be clearly understood. But from this very position what emerges is the further position namely that Anant did not give a blank permission to defendants No. 1 to sub-let the premises to any other person for any purpose whatsoever. Permission was to sub-let to a sub-tenant for the self-purpose viz. manufacture of matches. This is the conclusion arrived at by both the courts below and I find myself wholly unable to find any fault with the same.
In this connection, it is to be noted that it is not the contention of either of the defendants that defendant No. 1 sub-let the suit premises to defendants No. 2 specifically for the purpose of manufacture of matches, but that defendant No. 2 subsequently changed the user of the premises to the manufacture of machinery for sugar factories. It is the contention of both the defendants that right from its inception, the sub-lease to defendants No. 2 was for a general purpose without any hidrance. The contention was not that the purpose of the sub-lease was the same as the purpose of the original lease, but that the user was subsequently changed by defendant No. 2. This being the position, the initial sub-lease itself is illegal in the eyes of law.
23. Mr. Soochak further tried to make some acrobatic effort by attempting to persuade me to take the view that the original lease itself had not restricted the user of the same to the manufacture of matches. The words used in Clause 2 of the said Koul Patra are sad follows :
lnjph tkxk rqEgk dksYgkiwj eWpsl ;k rqeP;k dkj[kkU;klkBh HkkM;kus iapohl o'kZ eqnrhus vkEgh rqEgkyk fnyh vkgs-Contention was that the words rqeP;k dkj[kkU;klkBh mean not that the lease was for the purpose of manufacture of matches but that the lease was given to the Karkhana. The contention sought to be raised was that there existed a partnership concern carrying on the business under the name and style 'Kolhapur Matches' and reference to the words dkj[kkU;klkBh means that the lease was made to the partnership concern and not to Shankar Gopal Dabholkar individually.
I may state here unreservedly that this contention is wholly devoid of any basis whatsoever. It was for the first that the contention use being raised before me in arguments that the lease was given to any partnership concern. But even assuming that it was given to any partnership concern, still the words used by the lease no room for argument that the word, dkj[kkU;klkBh connoted a lease to the partnership concern and nothing else. Such a construction is untenable on the face of it. But if any further clarification is required, it can be found from the initiating words of Clause 4. The said Clause 4 starts by saying :
lnj dkj[kkU;kr rqEgh ;sFks dks.kkl jkgk.;kl Bsoys.
The reference to the words lnjP;k dkj[kkU;kr obviously in the context of Clause 2. The plea that Karkhana means a partnership firm of which Shankar Gopal Dabholkar was a partner needs therefore, as just stated to be rejected.
None of the arguments advanced by Mr. Soochak to pursuade me to take the view that permission to sub-let was not a qualified sub-letting are of any avail. It must be, therefore, said that the view taken by both the courts below concurrently to the effects that the sub-letting was unlawful and hence defendant No. 1 as well as defendant No. 2 had incurred the liability for a decree for eviction cannot be found fault with.
24. In this view of the matter, it is really unnecessary for me discuss the other grounds on which decree was passed by the lower Appellate Court against the petitioner. However, I will briefly deal with each of the points discussed by the lower Appellate Court since arguments were advanced before me at length on each of the grounds.
25. The next ground on which a decree has been passed by the District Court against the defendants is that defendant No. 2 has erected permanent structure on the suit premises without prior consent of the landlord. There was some controversy as to what was the precise nature of the so-called permanent structure that was alleged to have been made by defendant No. 2. Both the learned Advocates took me through the entire evidences in this connection. But at the end, both the learned Advocates agreed that the nature of permanent structure made by defendants No. 2 was as follows:
The suit premises consent of open land and certain structure. When defendant No. 2 took the premises for the purpose of his factory of machinery for the sugar industries, he had to lay cement foundation for the girder to install crane fort the purpose of shifting heavy machines. The evidences on records shows that this cement foundation was laid in the ground, but it was not continues foundation. It appears that there were 10 blocks of cement concrete foundation in the ground, 5 one side and 5 on the other and there was spacing in between all cement concrete block. There as no dispute before me that this was the only kind of permanent construction that was proved by the plaintiff. Everything erected upon that foundation was in no sense of any permanent nature whatsoever. The question is as to whether this spaced cement concrete foundation made by defendant No. 2 came within the mischief of the provisions of section 13(1)(b) of the Bombay Rent Act as alleged by the plaintiff. The trial Court has dealt with this question in Issues Nos. 5 and 6. The trial Court came to the conclusion that since the portion above foundation could be removed without any damage to the land as such, the construction could not be said to be of permanent character and hence the trial Court non-suited the plaintiff on the ground arising from the provisions of section 13(1)(b) of the Rent Act. The District Court on the other hand, took the view that this construction was of a permanent character and since the same was made by the defendants without the plaintiffs consent the provisions of section 13(1)(b) of the Act were directly attracted.
I heard both the learned Advocates at length on this point. I may state that I was quite satisfied by the arguments of Mr. Soochak support of his contention that the construction, if any, was not of any permanent character at all. But apart from those arguments, there is a basic point which militates against the plaintiff's contention. That is to be found from the provisions of Clause (3) of the Koul Parta. The agreed English translation of Clause (3) is handed over to me and it runs as follows :
'You are going to use the said premises for your factory and if you wish to construct any sheds, buildings for that purpose you may construct them, but you will be responsible to remove at your cost sheds, building etc. and give vacant possession. However if said buildings are required by me I shall have a primitive right to purchase the same are prevailing markets rate.'
The said clause would clearly show that the tenant was not only put into possession of the land, portion of which was covered by structures, but he was at liberty to construct any sheds or buildings upon the vacant part of the land for the purpose of his manufacture. If he was allowed to construct a building upon the vacant land, certainly he was a liberty to lay down cement concrete foundation for the purpose of the construction. Even a continuous cement concrete foundation could have been made by the defendants, all that the defendants were required to do was to remove away the construction at the time of termination of the lease and to give vacant possession of the land to the lessor. Laying down permanent foundation was, therefore, specially permitted by the Koul Parta. If this was so, it beats imagination to how laying down of spaced foundation block would be tantamount to branch of the conditions of Clause (3) of the Koul Parta. This would clearly show that there was no question of section 13(1)(b) being attracted at all. The entire reasoning of the Appeal Court on this point is patently erroneous and hence the Appeal Court's finding in that connection cannot be sustained.
26. This brings me to the issues relating to the default in payment of rent by the defendants. The factual position is to some extent referred to above. But I may as well refer to the same once again. The requisite notice under section 12(2) of the Rent Act was given by the Receiver to the defendant on 1-10-1971. In that notice allegation was made that defendant No. 1 was in areas of rent for a period exceeding six months. It is true that defendant No. 1 had not paid any amount specifically as rent from the period commencing from 1-2-1970 to 30-9-1971 amounting to Rs. 1500/-. From the period between 1-2-1970 and 31-10-1971 he was in arrears of Rs. 1575/-. The suit was satisfied on 9-8-1972 and if payment made by defendants No. 1 or defendant No. 2 specifically as rent was taken into account, it could be said that on the date of the expiration of the period of the one month's from the date of notice and on the date of the suit, on all these three dates, the defendants were in areas of rent for a period exceeding six months. But the point is that, according to the defendants, they had make much larger permanent on behalf of the Receiver to the Municipality at the request of the Receiver. In this connection, it is to be noted that a per the Koul Parta this defendants No. 1 was under the obligation to pay municipal taxes for the demised premises. But the admitted position is that when then Receiver entered into the possession of the joint family property and particularly the land C.T.S. No. 2094 admeasuring really 9 acres, he had no monies to pay municipal taxes in respect of the entire area. Defendant No. 2 has come out with the allegation that it was defendant No. 2 who has paid all the municipal taxes of the entire area at the instance of the Receiver. Now, no doubt, he did not so also with a view to save the premises which were in his occupation from being attached and/or sold by the Municipality. But the fact remains that if he had made larger permanent for the municipal taxes, he would be entitled to have the same adjusted as against his own rental dues.
But this position need not be left to the conjecture of legal inferences. The Receiver has himself admitted in so many words that he had adjusted the rental arrears as against the payment made by defendant No. 2 or the municipal dues in respect of the entire C.S.T No. 2094 till a certain period. This question has been discussed by the trial court while dealing with issues No. 3. The learned Judge has examined and the Receiver's evidence and has found that the amount of taxes paid by defendant No. 2 for the entire C.S.T. No. 2094 were appropriated towards the rent till the month of January, 1970. Mr. Nalawade, the learned Advocate for the defendant pointed to me that on taking accounts it was found that only a such of Rs. 8/- was due from the tenant to the landlord by the ends of January 1972, meaning thereby that all the amount of rent till that period save Rs. 8/- were paid by defendant No. 2 by way of payment of municipal taxes directly to the Municipality on behalf of the Receiver. The Receiver has stated that he had given him credit in that behalf. He further stated that he would have given the amount paid by defendant No. 2 subsequently if defendant No. 2 has requested him to do so. From this the trial Court has rightly come to the conclusion that those payments were not made by defendant No. 2 gratuitously. If the credits were given to the similar payment made previously, it does not stand to reason that defendant No. 2 would not be entitled to similar credit for the permanent made subsequently. Mr. Nalawade pointed out to me that defendant No. 2. Has paid a sum of Rs. 1800/- on 24-2-1979, a sum of Rs. 900/- on 28-3-1970 and sum a of Rs. 1337/- on 29-4-1970 for the Municipal Taxes in respect of the entire lands C.S.T. No. 2094 which amount was paid by the Receiver. It cannot be disputed that the said amount was paid by defendant No. 2 not gratuitously at all. It can be safely stated further that it was paid at the instance of the Receiver himself. If that was so, then it could not be said at all that on the date of the suit the defendants were in arrears of rent for a period exceeding 6 months. This is the view taken by the trial Court. The Appeal Court has disapproved of this view, but I find no justification for any such disapproval at all. It is not as if that in the instant case the payment made by defendant No. 2 for the Municipal Taxes in respect of the entire property including the suit premises were so independent of un-related to the payment of rent that those payments could not be taken into account while computing the tenant's arrears of rent, under the agreement of lease, the tenant was required to pay Municipal Taxes for the premises let out to him. The Municipal Taxes which the Receiver was bound to pay was something in which the tenant had interest; he was interested in making the payment because, otherwise, the tenant himself would be the suffered along with the landlord if the premises were attached or/and sold by the Municipality. Moreover, it cannot be again said that the payments were made by the tenant to the Municipality at the instance of the Receiver. The Receiver has stated that if request was made by the tenant, the payment would have been appropriated towards rent. It follows that the Receiver was expecting a formal request from the tenant forgetting that the said request was implicit in the entire transaction. It therefore, follows that the view taken by the trial Court in his behalf is quite correct and the Appeal Court's view that the above mentioned payments made by the tenant are to be disregarded has no foundation either in law or in equity. The finding that the tenant was a defaulter in the matter of payment of rent for a period exceeding six months cannot, therefore, be sustained unequivocally.
I make it clear that this is really a question accounting. If after taking account it was found that the payments made by the tenant towards the Municipal dues in respect of the entire land exceeded the total areas of rent due by him to the landlord, he could not be said to be a defaulter at all. If, on the other hand, on taking accounts, it was found that the areas rent owed by him to the landlord on the date of the suit exceeded the total amount of excess payments made by the tenant by way of Municipal Taxes it could be held that the tenant was a defaulter in the matter of payment of rent. While taking accounts it will have to be ascertained as to what, was the amount payable by the tenant-defendant No. 1 to the landlord as the portion of Municipal Taxes payable in connection with the suit premises. The amounts paid by defendant No. 2 from time to time to the Municipality included the amount payable against his own liability, for that porting of the payment, no separate credit could be given to defendants No. 2. He would be entitled to the credit only in respect of the excess payment made by him to the Municipality. As stated above, it is really a matter of accounting. The decree passed against the tenant on the ground of default in the payment of rent for the period exceeding six months in the absence of any such accounting is clearly unjustified.
27. This brings me to the last question agitated by the parties in both the courts namely, the plaintiff's bona fide requirement for possession of the suit premises. The trial Court recorded the finding that the plaintiff's requirement of the suit premises was bona fide. The trial Court further recorded that greater hardship would be caused to defendant No. 2 by passing a decree for eviction than would be caused to the plaintiff by refusing passing of such decree. The Appeal Court has agreed with the first part of the trial court's finding. But so far as the second part as concerned it has held that there was no question of any hardship so far as defendant No. 1 was concerned because she had already sub-let the suit premises to defendant No. 2. So far as defendant No. 2 was concerned, the Appeal Court held that defendant No. 2 being an unlawful sub-tenant on the suit premises the question of hardship likely to be caused to defendant No. 2 was totally irrelevant.
Mr. Soochak argued, with some force, that even the finding relating to the bona fide requirement of the landlord was not all correct, though it was a concurrent finding of fact. He pointed out to me that the plaintiff had prayed for possession of the suit premises for his residential purposes, not for business purpose and pointed out further that the suit premises admeasure nearly one acre, that is to say, about 45000 sq. ft. He pointed out that nothing was brought on record by the plaintiff-landlord to show that an area of about 45,000 sq. ft. would be necessary for him for his residential purpose. Mr. Soochak contended, evidently with some force, that the Court had to take into account not only the bona fide character of the requirements but also the reasonableness of the fact. He contended that the requirement of the entire premises for the plaintiff's personal residence was unreasonable.
I may state here that Mr. Soochak's contention is not without substance, but at the same time, if the factual position was accepted, namely, that the plaintiff had been rendered roofless by virtue of the final decree in the partition suit, it could not be said that his requirement of the suit premises was wholly unreasonable and wholly devoid of bona fides. There exits a principle of interpretation of law based upon the general rule that the whole includes a part and the larger includes the smaller. But there would be some difficulty in commissioning into service this principle for the purpose of restoring to the landlord possession of a portion of the premises sufficient for the purpose of his residence. The difficulty would be that under the general law, the landlord is entitled to get possession either of the entirety of property demised by way of lease or nothing at all. Under the general law, cannot file a suit against a tenant for recovering back only a portion of the land let out to the tenant. This is so because the lease is in respect of the entire property and you can terminate the entire lease or none. Under the general law, there is no half-way house. However this difficulty is surmounted by sub-section (2) of section 13 of the Rent Act under which the Court has been given power to order restoration to the landlord of premises let out by him to the tenant.
The view taken by the District Court as regards the question of convenience or comparative hardship is, however, far from satisfactory. The learned Judge has taken the view that since defendant No. 2 was in unlawful sub-tenant, inconvenience or hardship that was likely to be caused to him could not be taken into account by the Court at all. To my mind, this view is entirely irrational. The various grounds for eviction of the tenant by the landlord have got to be considered disjunctively and not in conjunction with each other. If defendant No. 2 was an unlawful sub-tenant, the other question of eviction was of academic character. When we examine the question relating to the plaintiff's bona fide requirement we assume that the plaintiff has no other ground for eviction. In the instant case, we assume that defendant No. 1 has not made himself liable for eviction on the ground of unlawful sub-tenancy. This means that defendant No. 2 is not an unlawful sub-tenant. If that is so, then hardship that would be caused to defendant No. 2 by virtue of a decree of eviction is as much relevant as the hardship that would be caused to defendant No. 1, the original tenant.
However, as stated above, in view of my findings on the question relating to unlawful sub-tenancy, this question of directing appointment of the premises between the plaintiff and the defendants does not arise.
28. This brings me to the last leg of Mr. Soochak's arguments which he described as the over-riding considerations. Mr. Soochak's contention was that in the Appeal Court both the defendants had made an application for amendment of their written statements. I am informed that both the defendants had made separate application in that behalf, but that they were similar in character. The one made by defendant No. 2 was at Exh. 23 in the appeal filed by himself. By the said application, the defendant wanted to raise three points before the Court. Firstly, he wanted to contend that the suit filed by the plaintiff for recovery of the suit premises against either of the defendants was not tenable because, according to him, the suit premises had not gone to the share of the plaintiff in entirety. The contention was that some portion of the suit premises had been allotted to the present plaintiff in the final decree passed in the partition suit, but certain other portion of the suit premises had been given to certain other members of the joint family, in the said final decree. The contention, therefore, was that the suit filed by the plaintiff alone for the entire suit premises was not maintainable.
The second aspect of the same contention was that during the pendency of the eviction suit there was a further partition between the plaintiff and his own sons and daughters and in that partition the suit premises were divided amongst the plaintiff and his own sons and daughters. The contention, therefore, appears to be that the plaintiff was not entitled to the decree for eviction against the defendants without impleading those other members of the plaintiff's family who were now separate.
The second contention sought to be urged by the amendment was that the lease initially given by Anant to defendant No. 1 on 22-3-1967 was not given to defendant No. 1 individually but was given to the partnership firm of which defendant No. 1 was only a partner. The contention, therefore, was that the suit filed against defendant No. 1 in his individual capacity was not maintainable.
The third contention sought to be urged by the amendment was that the nature of the transaction between defendant Nos. 1 and 2 dated 1-12-1969 was not of sub-letting but was one of leave and licence pure and simple. In support of that contention, a document purporting to be an agreement of leave and licence between defendant Nos. 1 and 2 dated 1-12-1969 was sought to be produced before the District Court.
As stated above, the Appeal Court rejected the said application for amendment. To my mind, the order of rejection was perfectly valid and if this question was res integra before me, I would have stated my own reason as to why the Appeal Court's order rejecting the said application was perfectly correct. But, fortunately, it is not necessary for me to decide the said question at all. As stated above, against the said order of rejection passed by the District Court, defendant No. 2 had filed Civil Revision Application No. 512 of 1980 to this Court. It is common ground that not only defendant No. 2 but even the plaintiff was heard by this Court before passing any order in the said revision application and after hearing both the sides, this Court rejected the said revision application. Mr. Soochak sought to contend before me that the order of rejection must be deemed to have been passed because the revision application was filed against an interlocutory order and his contention is that the entire question is, therefore, open for me for consideration afresh. I am wholly unable to accept this contention. There is nothing in the order dated 3-7-1980 passed on the revision application to show that the order of rejection was passed because application was against an interlocutory order. It is a well-known practice of this Court that if the application is rejected because it is against an interlocutory order, specific mention to that effect is made in the final order itself. The above order dated 3-8-1980 was passed by this Court after hearing both the sides. There is, therefore, no reason to presume that revision application was not rejected on merits but that it was rejected only because it was at an interlocutory stage.
I may mention here that against the said order. In fact, defendant No. 2 had filed a special leave petition to the Supreme Court. But, admittedly, the same withdrawn by the defendant on 23-7-1980. If the order of this Court dated 3-7-1980 was passed only because the proceeding were interlocutory proceedings, there is no reason why such further proceedings would have been taken by the defendant. I called upon Mr. Soochak to point out anything from the proceedings of this Court or even anything from the proceedings in the Supreme Court to show that the said order dated 3-7-1980 was passed on the ground that it was of an interlocutory character. Mr. Soochak was unable to invite my attention to anything to support his said application.
Mr. Soochak contended at the end, somewhat half-heartedly, that at least so far as the question of the transaction being one of leave and licence and not of sub-letting was concerned, the said question was kept by the District Court open for argument at the time of the final hearing of the appeal and that, hence, the rejection of the revision application by this Court was no bar for me to examine the question. However, I may state that Mr. Soochak gave up the said point because he himself found it impossible to sustain the same. In the instant case it has been the contention of the defendants themselves throughout the proceedings before the trial Court that the transaction dated 1-12-1969 was one of sub-tenancy. The question of sub-tenancy was matter of intention. If on their own showing the transaction was one of sub-tenancy and if the emphatic case of the defendants before the Court was that it was a transaction of sub-tenancy, pure and simple, it would be futile on the part of the defendants to contend at the appeal stage that the transaction was one of leave and licence. As stated above, Mr. Soochak himself very fairly gave up the contention so far as this last point relating to leave and lice was concerned.
29. The result is that this petition fails and the same has got to be dismissed. However, even before passing the final order in this behalf, it is necessary to make certain clarification orders. My attention was invited to the fact during the pendency of the appeal in the lower Court, defendant No. 2 was required to pay Municipal Taxes for the entire C.T.S. No. 2094 although the defendant was tenant in respect of just a small portion of the same, measuring a little less than one acre. I have already mentioned above that if the Receiver himself would have proceeded with the suit, he would be bound to give credit to the defendants while computing the arrears of rent as regards the payments made in respect of all the municipal dues. It would be really a matter of accounting. If the amount of Municipal Taxes paid by the defendants in respect of other portion of the property exceeded the rental dues of the defendants, the Receiver would have been liable to adjust the amounts in the future rent and if, for any reason, the amounts paid by defendant No. 2 towards the Municipal Taxes could not be adjusted against the rental dues, an equity would exist in favour of the paying defendant to recover the excess amount from the Receiver. The position in the instant case is that when this Court passed the final decree in the partition suit, the present plaintiff himself volunteered that he would step into the shoes of the Receiver in the eviction suit filed by the Receiver. It was in that view of the matter that in the trial Court itself the plaintiff was substituted as plaintiff in the suit in the place of the Receiver. If that is the position, it would not lie in the mouth of the present plaintiff to contend that he would not be subject to the equitable obligation to which the Receiver would have been subject. I, therefore, makes it clear that the Executing Court should take accounts of the arrears of rent that remain payable by the defendants to the plaintiff at the rate of Rs. 75/- per month in addition to the Municipal Taxes payable in respect of the suit premises. Accounts should also be taken in respect of the Municipal Taxes paid by either of the defendants on behalf of the Receiver in connection with the premiss which were not the subject matter of the original lease. If after taking this account it is found that any monies are due from the plaintiff to either of the defendants, the defendant concerned shall be entitled to recover the said amount from the relevant defendant in the execution proceedings in respect of this very decree. I, however, make it clear that the liability of the defendant to hand over possession of the suit premises to the plaintiff need not be and shall not be held up or obstructed merely because the amount, if any, payable by the plaintiff is either not determined or paid; It goes without saying that the accountability referred to above extends also to the judgment debtor's liability to pay the mense profit as ordered by the courts below.
Mr. Nalawade, the learned Advocate appearing for the defendants made a grievance that the conditional order passed by this Court while granting stay of execution of the decree passed by the lower courts has been construed by the Executing Court to mean that not only defendant No. 2 but even defendant No. 1 should pay the amount of rent to the plaintiff, decree holder with the result that the plaintiff has received double payment of rent. If this is so, it is clearly a misinterpretation of the order of stay. The decree-holder is not entitled to receive anything other than the agreed rent and permitted increases whether from defendant No. 1 or defendant No. 2 not from both of them. If, therefore, he has been paid larger amount than is due to him, accounts in that behalf should be taken by the Executing Court and the plaintiff should be ordered to repay the said amount to the defendant concerned.
Subject to the above clarification, the petition fails. The rules earlier issued stands discharged, but in the circumstances of the case there shall be no order as to costs.
Similarly, Writ Petition No. 2506/1981 fails and is hereby dismissed. Rule stands discharged. However, there shall be no order as to costs.
C.A. No. 560 of 1982 is by the original plaintiff for vacating the stay. In view of the above order, the same does not survive. It stands disposed of with no order as to costs.
20th April, 1982.
ORAL ORDER:----In this petition I have passed an order dismissing the above petition on 22nd March, 1982. I distinctly remember having informed Mr. Soochak, the learned Counsel appearing for the petitioner that I would give him reasonable time for filing an appeal in the Supreme Court and to obtain the requisite interim order from the Supreme Court although I was dismissing the writ petition. It appears that at the time when the final part of the judgment was dictated Mr. Soochak was not present in the Court and this Court and this part of the order which I had promised to Mr. Soochak cannot to be passed.
2. After I signed the judgment; my attention was invited to this position by Mr. Soochak, on Saturday the 17th April, 1982. Since I could not give him any relief at that time in the absence of anybody appearing for the respondent I told him to give notice to Mr. Rege, the learned Advocate appearing for the respondent and to make an appropriate motion to this Court today. Accordingly Mr. Soochak has made an oral application to this Court today to give him some time before the decree could be executed so as to enable him to approach the Hon'ble Supreme Court and to obtain the requisite interim relief from that Court.
3. Mr. Rege, however, strongly opposed this application. His first contention was that I became functus officio after I signed the judgment. His second contention was that the petitioner had got sufficient time from 22nd March, 1982, when the judgment was declared in the open Court, to file the requisite special leave petition to the Supreme Court. His third contention was that even if I had not become functus officio after signing of the judgment an application in writing was necessary and order, if any, could be passed by me only upon filing of the said application.
4. I have mentioned above that even before signing of the judgment I had intended and had conveyed the said intention to Mr. Soochak that sufficient time would be given by me to the petitioner-sub-tenant to approach the Supreme Court against my judgment and to obtain suitable interim relief from the Supreme Court. The mere fact that the said part of my intention did not reflect itself into my final order does not mean that I have become functus officio vis-a-vis the said part of the intended order. It is true that about date; but that does not mean that there is any particular negligence on the part of the petitioner in the matter of approaching the Supreme Court. The judgment is a fairly lengthy judgment and to my mind at least about 2 months time will be required for the preparation of necessary special leave application to be filed in the Supreme Court.
The objection that a written application is necessary cannot be taken very seriously at all. There is nothing either in the Civil Procedure Code or in the High Court rules which requires the Court to insist upon an application in writing if the Court can grant relief conveniently without any such application. I am, therefore, inclined to give time to the petitioner to file the requisite special petition to the Supreme Court against my judgment dated 22nd March, 1982 till June 1982. The decree passed against the petitioner shall not be executed until 2nd June, 1982.
5. Mr. Soochak appearing on behalf of the petitioner made a declaration and gave an undertaking before me on behalf of his client (original defendant No. 2) that he alone is in exclusive possession of the suit premises on this date, and that his client has no intention to and shall not part with possession of the suit premises at any time so as to affect the respondent's right in respect of execution of the decree.