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Jethanand Kikamal Vs. Ramkrishna Jethanand and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1967)8GLR202
AppellantJethanand Kikamal
RespondentRamkrishna Jethanand and ors.
Cases ReferredSardha Ram v. Paras Ram A.I.R.
Excerpt:
.....an..........possession immediately to the landlord. in some cases it is well known that in order to accommodate the tenant for some time the decree provides that possession shall not be handed over before a particular date and that is with a view to provide some time to the tenant to find out alternative accommodation or to provide some arrangement particularly in view of the shortage of accommodation. if that can be done under the discretionary powers conferred upon the court, i see no reason why a similar procedure cannot be adopted when a statutory cloak of protection from eviction for a particular period is conferred upon the tenant. under these circumstances, it is not possible to accept this contention of mr. parikh.10. in view of the provisions of section 29(1) of the displaced persons.....
Judgment:

B.J. Divan, J.

1. In this Civil Revision Application the petitioner is the original defendant and the opponents are the original plaintiffs. Plaintiffs are the owners of a building situated at Baroda and the petitioner is a tenant occupying premises consisting of ground-floor where a shop is situated and residential premises on the first and second floors where the tenant is residing. The plaintiffs filed the suit on the ground of reasonable and bona fide requirement under Section 13(1)(g) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947. The defendant con-tended that the premises were not reasonably and bona fide required by the landlords. The landlords wanted the tenant to vacate the entire portion viz. the shop on the ground-floor and the residential accommodation on the two upper floors. The suit was tried by the learned 5th Joint Civil Judge (Junior Division), Baroda and he decreed the plaintiffs' suit partially. He decreed the suit so far as the premises of the shop on the ground-floor were concerned and dismissed the plaintiffs' suit so far the first and second floors of the building were concerned. Against this judgment and decree of the learned trial Judge, both the sides went in appeal. Both these appeals were heard together and by a common judgment, the learned Assistant Judge, Baroda, who heard the appeals, dismissed the tenant's appeal with costs and allowed landlords' appeal and decreed the suit entirely in favour of the landlords. It is against this judgment and decree of the learned Assistant Judge that the present Civil Revision Application has been filed.

2. Mr. Parikh appearing on behalf of the petitioners urged the following four points at the hearing of the Civil Revision Application; (1) that the tenant was protected under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1954; (2) that the Court constituted under the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 had no jurisdiction to deal with the matter; (3) that the learned Assistant Judge had erred in considering the balance of convenience instead of considering balance of hardship as be was required to do and lastly (4) that the notice to quit was waived by the landlords by acceptance of rent after the tenancy had been terminated by the notice to quit.

3. Taking up the 4th point first, it is clear in the light of the judgment of the Supreme Court in Ganga Dutt v. Kartik Chandra : [1961]3SCR813 that this contention is not tenable. In that case Shah J. who delivered the judgment of the Supreme Court relied upon a passage from the Judgment of B. K. Mukherjee J. in Kai Khushroo v. Bai Jerbai and the passage is in these terms:.in cases of tenancies relating to dwelling houses to which the Rent Restriction Acts apply, the tenant may enjoy a statutory immunity from eviction even after the lease has expired. The landlord cannot eject him except on specified grounds mentioned in the Acts themselves. In such circumstances, acceptance of rent by the landlord from a statutory tenant whose lease has already expired could not be regarded as evidence of a new agreement of tenancy and it would not be open to such a tenant to urge, by way of defence in a suit for ejectment brought against him under the provisions of Rent Restriction Act that by acceptance of rent a fresh tenancy was created which had to be determined by a fresh notice to quit.

It is common ground between the parties that the Rent Restriction Act would normally apply in the area in which the house in question is situated. But for the certain provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 the rights and obligations of the parties would be governed by the provisions of the Rent Restriction Act. Under these circumstances, even if the landlord had received rent or amount equivalent to rent from the tenant after the tenancy had been determined by a notice to quit and even if he accepted rent for a period subsequent to the termination of the tenancy, such acceptance of rent would not amount to waiver of the notice to quit and it is not open to the tenant to contend that by accepting rent, the landlord created a fresh tenancy in favour of the tenant. Under these circumstances, the 4th point urged by Mr. Parikh must be rejected.

4. As regards the third point which was urged by Mr. Parikh, it is true that in paragraph 11 of his judgment, the learned Assistant Judge considered the question of reasonable and bona fide requirement and while considering that question, he approached the problem from the point of view of balance of convenience to a certain extent. But paragraph No. 12 makes it clear that the requirements of Section 13(2) of the Bombay Rents Hotel and Lodging House Rates (Control) Act, 1947 were very much pre sent to the mind of the learned Judge and he has in a separate paragraph and quite independent of what he has considered in paragraph 11, considered also the question of comparative hardship and the question of balance of hardship as required by Section 13(2). It is therefore not possible for me to accept the contention of Mr. Parikh that the learned Assistant Judge took into consideration the balance of convenience rather than the balance of hardship at the time when he disposed of the appeal before him.

5. As regards the first two points urged by Mr. Parikh, it will be necessary to consider in some detail the provisions of Section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. Section 29 provides that where any person to whom the provisions of this section apply, is in lawful possession of any immovable property of the class notified under Sub-section (2), which is transferred to another person under the provisions of the Act, then, notwithstanding anything contained in any other law, such person shall without prejudice to any other right which he may have in the property, be deemed to be a tenant of the transferee on the same terms and conditions as to payment of rent or otherwise on which he held the property immediately before the transfer: Provided that not withstanding anything contained in any such terms and conditions, no such person shall be liable to be ejected from the property during such period not exceeding two years as may be prescribed in respect of that class of property, except on any of the three grounds which are set out in Clauses (a), (b) and (c) of the proviso to Sub-section (1) of Section 29. Sub-section (2) of Section 29 confers powers on the Central Government to specify by notification in the official Gazette the class of persons to whom, and the class of immovable property in the compensation pool, other than agricultural land, in respect of which the provisions of Section 29 shall apply and in issuing such notification, the Central Government shall have regard to certain matters that are set out in Sub-section (2).

6. Under the powers conferred upon it by Sub-section (2) of Section 29, the Central Government issued a notification in 1955. Schedule I of that notification specifies the persons other than those who had obtained by fraud or misrepresentation multiple allotments or who in the case of residential premises already owned a residential property of their own. Schedule II specifies the class of properties in respect of which the pro-vision was made applicable and Schedule II mentions residential premises, shops and industrial premises. Section 36 provides that save as otherwise expressly provided in the Act, no Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Central Government or any officer or authority appointed under the Act is empowered by or under the Act to determine, and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the Act. Pausing here for a moment, the landlords in the present suit i. e. the original plaintiffs have filed the suit merely for the purpose of getting a decree for possession. Their suit is not in respect of any matter which the Central Government or any officer or authority appointed under the Act is empowered to determine. Reliance was also sought on Section 19 but that would apply only when lease or allotment of any property acquired under the Act was sought to be varied. That is not the case here. The facts are that in 1954 the property was declared to be evacuee property and at an auction held on July 15,1958, by the Collector as the person authorised to do so the predecessors-in-title of the present plaintiffs purchased the property. On May 19,1959 those purchasers at the auction, sold the property to the plaintiffs and on July 1, 1959, the plaintiffs served a notice to quit on the defendant and thereafter filed the present suit on August 6, 1959. In the suit as I have observed earlier, the plaintiffs have relied on the ground of reasonable and bona fide requirement for personal use and occupation covered by Section 13(1)(g) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947.

7. Section 29 Sub-section (1) in the first part merely says that a person who is in lawful possession at the date of the transfer is deemed to be a tenant and such deeming tenancy arises notwithstanding anything contained in any other law to the contrary and again such tenancy comes into existence without prejudice to any other right which such person in lawful possession may have in the property. The terms and conditions of such deemed tenancy are to be the same terms and conditions as those on which such person in possession held the property immediately before the transfer. The proviso to Sub-section (1) of Section 29 lays down that even if there may be something to the contrary to such deemed terms and conditions of the tenancy, such person in lawful possession who becomes a deemed tenant is not liable to be ejected from the property during the period of two years at the maximum except on any of the grounds which are set out in the Clauses (a), (b) and (c). A perusal of the section shows that the ground of reasonable and bona fide requirement of the owner of the property is not one of the grounds on which the person in lawful possession can be ejected from the property. It is common ground between the parties that on July 16, 1958 when the property was transferred to the predecessors-in-title of the plaintiffs, the present defendant was in possession of the entire building consisting of ground-floor and two upper floors and that he was using the ground floor as a shop and the upper two floors as residential premises. Under the proviso to Sub-section (1) of Section 29 it is clear that it is open to the Central Government to prescribe any period less than two years as the period during which the person in possession is not liable to be evicted and under Rule 121 of Displaced Persons Compensation and Rehabilitation Rules, 1955, which have been framed under the Act, the period, during which persons to whom the provisions of Section 29 of the Act apply are not liable to be ejected from any property other than agricultural land in lawful possession, is to be two years in all cases. Thus, reading the proviso to Section 29(1) with Rule 121 it is clear that the defendant as a person who was in lawful possession on July 16,1958 was not liable to be ejected from the property except on any one of the three grounds specified in Clauses (a), (b) and (c) to the proviso and further that such immunity from ejectment from the premises was to continue till July 15, 1960. The main question which arises for consideration is: what is the meaning to be attached to the words 'no such person shall be liable to be ejected from the property'. It has been contended by Mr. Parikh that by this piece of legislation and by this use of the language, the Legislature has conferred a right upon the tenant viz. protection for a period of two years from the date of the transfer and that there is a corresponding curtailment of the right of the landlord to obtain possession except under the three clauses of the proviso to Sub-section (1) of Section 29. He has contended that since the person in lawful possession on the date of the transfer is not liable to be ejected, correspondingly the landlords are not entitled to evict the tenant during this period of two years immediately after the transfer and that during this period the landlord's right to have a decree against the person in possession is suspended unless the landlord or the owner seeks the ejectment on any one of the three grounds specified in the section. I am unable to accept this contention of Mr. Parikh. What the proviso to Sub-section (1) of Section 29 gives is a cloak of protection for a period of two years to all persons in possession, be he a tenant, be he a mortgagee in possession, be he a licensee or whatever other source of title or right he may have to be in possession of the property. The cloak of protection which is extended by the proviso to Section 29(1) is to all such persons who are to be found in lawful possession at the date of the transfer. If such a person in lawful possession has any other rights under any other law, those rights are not affected by this protection which is given by Section 29 of the Act. At the same time, it must be borne in mind that the protection which is granted is not absolute but is for a period of two years only and this means that for a period of two years the owner of the property cannot obtain a decree for ejectment or cannot obtain a decree for possession as against the person in lawful possession on the date of the transfer unless the case falls within Clauses (a), (b) and (c) of the proviso. In the instant case, it is common ground that the defendant was a tenant in occupation of the premises in suit even prior to the date of the transfer. After the transfer he continued to be a tenant of the purchaser and continued to pay rent to the persons who purchased the property at the auction held by the Collector, and after the plaintiffs purchased the property, the rent has been paid to the plaintiffs. Thus, it is clear that apart from being a deemed tenant under Section 29(1) of the Act as a person in lawful possession on the date of the transfer, in fact and in law the defendant was also a tenant of the premises in suit. In view of all these circumstances, during the period of two years, the defendant was not liable to be ejected on any ground other than the grounds set out in Clauses (a), (b) and (c) of proviso to Section 29(1) of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 and during that period it was not open to the landlords to rely upon any of the provisions of Section 13 of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 or any other provisions of the Bombay Act for the purposes of evicting the tenant. But that does not mean that there was an absolute bar on the rights of the landlords. The fact that a defendant was not liable to be ejected from the premises before July 15, 1960 does not mean that no suit for evicting him from the premises could be filed, prior to that date. All that the proviso to Sub-section (1) of Section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 means is that the defendant could not be evicted from these premises before that date except under Clauses (a), (b) or (c). Thus, all the landlords' rights were not altogether abrogated but right of the landlords to obtain decree for possession was suspended for a period of two years from the date of the transfer and that is the only way in which it is possible to construe this particular section. The policy of the Legislature in enacting the proviso to Section 29(1) of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 was to see that for a period of two years at least from the date of the transfer, the person in lawful possession of the property at the date of the transfer was not disturbed in his possession and if his possession was sought to be disturbed, then one of the three grounds in Clauses (a), (b) and (c) was required to be made out. But the protection is not for all time nor does such protection granted to a person in lawful possession for a limited period mean that it completely does away with the right of the landlord or owner of the property who purchases the property on transfer or who is a successor-in-title from such purchaser. Thus, in my opinion the proper construction to be placed on the proviso to Section 29(1) is that this proviso puts a restriction on the right of the landlord for a limited period and that too only on one right of the landlord viz. the right to obtain possession from his tenant. Other rights of the landlord e. g. recovery of rent or right to inspect the premises and other similar rights which the landlord has under ordinary law are not abrogated. Similarly, the right of the landlord to obtain possession if he is able to establish a case under Section 13(1)(g) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act is also not taken away. But the Court cannot evict the tenant or execute a decree for ejectment against the tenant for a period of two years from the date of the transfer.

8. It was argued by Mr. Parikh relying on the judgment of the Punjab High Court in Sardha Ram v. Paras Ram A.I.R. 1962 Punjab 147, at page 150 that the whole scheme of the section was that the rights and liabilities of the transferee and of the person in possession were not intended to be governed by Section 13 of the Rent Restriction Act at all. As a matter of fact what was intended was that slightly more extensive protection was sought to be given to the person in possession than was available to him by the terms and conditions on which he held the property from the Rehabilitation Department or the Central Government as the case may be, and by the general law of the land as contained in the Transfer of Property Act. In the same Judgment, it has been pointed out that the property sold under the Displaced Persons (Compensation and Rehabilitation) Act, 1954 and covered by the provisions of Section 29 was not intended to be controlled by Section 13 of the Punjab Rent Restriction Act, so far as the matter of eviction was concerned. With utmost respect to the learned Judge of the Punjab High Court, I am unable to agree with his reasons if his decision amounts to stating that during the period of two years immediately after the date of the transfer contemplated by the Displaced Persons (Compensation and Rehabilitation) Act, 1954, no proceedings under the Rent Restriction Act can be initiated at all. Initiation of the proceedings is one thing and execution of the decree in favour of the landlord is another thing. All that Section 29 Sub-section (1) and proviso to that sub-section protect is the possession for a period of two years immediately after the date of the transfer and the immunity that has been conferred upon the persons in lawful possession is the immunity from eviction which is a different thing from immunity from a decree for ejectment. It is possible to contemplate a case where a landlord may be able to make out a case for reasonable and bona fide occupation or is able to establish any of the grounds specified in the Rent Restriction Act but the period of two years may not yet be over and therefore the Court may say that it will not eject the tenant from possession of the property and will not deprive him of his possession till the period of two years from the date of the transfer is over. Under these circumstances, it is clear that the provisions of the Rent Restriction Act do apply if the relationship of landlord and tenant is made out notwithstanding anything contained in Section 29(1) and the proviso to that section of the Displaced Persons (Compensation and Rehabilitation) Act, 1954.

9. It was contended in the alternative by Mr. Parikh that assuming that the landlords were entitled to file the suit, on the date on which they filed the suit, the landlords had no present and immediate right to possession and therefore they had no cause of action against the tenant. Now, it is well settled law that a cause of action means the bundle of facts which the plaintiff must aver and prove in order to succeed in his suit. A landlord seeking a decree for possession against his tenant on the ground of reasonable and bona fide requirement, has to set out a bundle of facts in his plaint and again has to establish those facts at the hearing of the suit and if those facts satisfy the ingredients of the section of the Rent Restriction Act, then the Court will pass a decree for possession in his favour. But passing a decree for possession does not necessarily mean that the Court may handover possession immediately to the landlord. In some cases it is well known that in order to accommodate the tenant for some time the decree provides that possession shall not be handed over before a particular date and that is with a view to provide some time to the tenant to find out alternative accommodation or to provide some arrangement particularly in view of the shortage of accommodation. If that can be done under the discretionary powers conferred upon the Court, I see no reason why a similar procedure cannot be adopted when a statutory cloak of protection from eviction for a particular period is conferred upon the tenant. Under these circumstances, it is not possible to accept this contention of Mr. Parikh.

10. In view of the provisions of Section 29(1) of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 the landlords had not been deprived of immediate right to possession. What happened was that they had a right to possession but the possession could not be obtained for a period of two years from the date of the transfer. The right to possession is one thing and the actual obtaining of possession in exercise of that right may be quite another thing altogether. What the law requires is that on the date of the institution of the suit by the landlord, there must be a right to possession though the relief of possession may, for some reason or another, not be immediately available to the landlord. It is true that if the suit filed by the landlord had been decided prior to July 15, 1960, i. e. during the period of two years, the defendant could not have been asked to hand over possession even in execution of the decree of the Court till the expiry of the period of two years but that would merely have meant that the Court would have provided in the judgment and decree that the warrant for possession should not be executed on or before July 15, 1960. The right to possession was there but the Court could not give effect to that right for a period of two years immediately following the date of the transfer. Thus, it cannot be said that the suit instituted by the plaintiffs on August 6, 1959 was a defective one. In any event, as the events have transpired, the decree of the trial Court is of March 29, 1961 and by that time clearly, the period of protection of two years under Section 29(1) proviso, had come to an end; on that date the tenant was no longer entitled to that protection and it could not be said that as on March 29, 1961, the defendant-tenant was not liable to be ejected from these premises.

11. In the light of the interpretation that I have placed on Section 29(1), proviso, of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, it is clear that that Central Act does not conflict with the provisions of the Bombay Rents Hotel and Lodging House Rates (Control) Act of 1947 and hence the Court functioning under the Bombay Act had the jurisdiction to hear and dispose of the suit filed by the landlords.

12. Under these circumstances, it is clear that the suit instituted by the plaintiffs was a proper suit instituted in a proper forum. This Civil Revision Application therefore fails and is dismissed with costs. Rule discharged.


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