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Patanwadia Budhaji Bakorji and ors. Vs. Desai Shantilal Kishordas and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1963)4GLR721
AppellantPatanwadia Budhaji Bakorji and ors.
RespondentDesai Shantilal Kishordas and anr.
Cases ReferredDr. Muhammad Ibrahim v. Rahiman Khan and Ors.
Excerpt:
.....contained in the act and subject to the provisions of section 15 a landlord shall be entitled to recover possession of any premises if the court is satisfied and then follows a number of clauses which mention the grounds on which the satisfaction of the court is to be obtained. the section read as a whole confers a right to recover possession on the court being satisfied of any one of the conditions mentioned in the sub-section. this means that in the absence of anything to the contrary in the section or any other part of the act the court has to be satisfied about the existence of the conditions at the time when the right to recover is alleged to have arisen. it is well known that an executing court cannot go behind the decree and that it must take the decree as it stands there is..........to opponent no. 2 and in the document of sale opponent no. 1 also transferred his right to recover possession of the suit land under the decree dated 30th of june 1952. thereafter on 17th of june 1958 opponents filed darkhast no. 142 of 1958 for possession of the suit land after demolition of the hut erected by the predecessors-in- title of the petitioner. the petitioner resisted the claim for possession on two grounds: (i) that the decree being a personal decree was incapable of being assigned and therefore the decree could not be executed for the benefit of the assignee and (ii) that the decree had become exhausted by virtue of the fact that after the passing thereof opponent no. 1 had admitted that he had no means of erecting a residential building on the land in suit. the.....
Judgment:

N.M. Miabhoy, J.

1. There is no substance in this revision petition. The petitioner was originally the tenant and the opponent No 1 was originally the landlord. The premises demised were a piece of land on which the predecessors-in-title of the petitioner had erected a hut. The opponent No. 1 filed a suit in the Court of the learned Civil Judge (Senior Division), Nadiad for possession of the open land under Section 13 sub-sec.(1) Clause (i) of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 (hereafter called the Act) on the ground that the opponent No. 1 required the land reasonably and bonafide for the erection of a new residential building. The suit was decreed on the 30th of June 1952. On 26th of October 1956 opponent No. 1 sold the suit land together with certain other premises to opponent No. 2 and in the document of sale opponent No. 1 also transferred his right to recover possession of the suit land under the decree dated 30th of June 1952. Thereafter on 17th of June 1958 opponents filed Darkhast No. 142 of 1958 for possession of the suit land after demolition of the hut erected by the predecessors-in- title of the petitioner. The petitioner resisted the claim for possession on two grounds: (i) that the decree being a personal decree was incapable of being assigned and therefore the decree could not be executed for the benefit of the assignee and (ii) that the decree had become exhausted by virtue of the fact that after the passing thereof opponent No. 1 had admitted that he had no means of erecting a residential building on the land in suit. The Darkhast Court upheld both the contentions and dismissed the Darkhast. The opponents went in appeal to the District Court at Nadiad. The learned Extra Assistant Judge Nadiad reversed the findings of the Darkhast Court and ordered the petitioner to hand over possession of the suit land to the opponents in terms of the decree. It is against this appellate order that the present revision application is filed.

2. Mr. Desai on behalf of the petitioner raises the same two points for decision in this Court which were raised in the two lower Courts. Mr. Desai contends that a decree under Clause (i) of sub-sec.(1) of Section 13 of the Act is a personal decree and that that decree can only be executed by the person who was the landlord at the time when the cause of action arose and that it cannot be executed by anyone else. In support of this argument Mr. Desai contended that the cause of action for a decree passed under Clause (i) aforesaid must subsist till the time of the execution of the decree and that if the cause of action does not subsist but disappears after the passing of the decree then the decree becomes inexecutable. Mr. Desai contends that this result must follow from the language used in the first part of Sub-section (1) of Section 13 That section states that notwithstanding anything contained in the Act and subject to the provisions of Section 15 a landlord shall be entitled to recover possession of any premises if the Court is satisfied and then follows a number of clauses which mention the grounds on which the satisfaction of the Court is to be obtained. Mr. Desai emphasizes the fact that the section does not state that the landlord shall obtain a decree for possession. He says that the section gives a title or a right to recover possession on the grounds mentioned in that section. Consequently the argument is that the right or the title to recover possession of the property must subsist till the stage for the recovery of the possession arises and having regard to the fact that in the instant case recovery of possession of the demised premises was sought at a time when the original landlord had gone out of the scene it must follow that the requirement which was the basis of the original decree had vanished and therefore the decree cannot be executed. He contends that if the assignee wants to take advantage of the Clause (i) aforesaid it is necessary for him to file a second suit and establish his claim to the recovery of possession on that ground. I find difficulty to agree with Mr. Desais' contention. In the first instance Sub-section (1) aforesaid confers a right on the landlord to recover possession of the demised premises. That right is not made contingent on the ground subsisting at the time of the actual recovery of the possession. The section read as a whole confers a right to recover possession on the Court being satisfied of any one of the conditions mentioned in the sub-section. This means that in the absence of anything to the contrary in the section or any other part of the Act the Court has to be satisfied about the existence of the conditions at the time when the right to recover is alleged to have arisen. But it is not necessary for me to decide in the present case whether this view is the correct view. However I will assume in favour of the petitioner that the ground must subsist even at the date when the decree is to be passed. But in my judgment that is the utmost to which the section can be stretched. I find no justification in the language of Sub-section (1) for holding that the ground must subsist even at the date when the decree is actually executed. In the absence of clear language to the contrary in my judgment it would be introducing uncertainty in the administration of law if such a construction were placed. Moreover such a construction would be against the ordinary canons of law on the basis of which the decrees are executed. It is well known that an executing Court cannot go behind the decree and that it must take the decree as it stands There is nothing in Section 13 which suggests that a decree passed under that section is decree of defeasance and that it would become unexecutable on the disappearance of the condition on the basis of which the decree was originally passed Moreover if one turns to Clause (i) there is nothing in it which would justify the conclusion that the decree for possession under that clause is passed only for the benefit of the landlord and for nobody else. Mr. Desai lays considerable emphasis upon the use of the words reasonable and bonafide in that clause. He contends that the basis of the decree is the requirement of the landlord and the fact that the ground insists that the requirement must be reasonable and bonafide introduces an element of personal requirement so far as the landlord is concerned. In my judgment such a reading of Clause (i) is a disjointed reading. The clause read as a whole means that the landlord requires the land for the erection of a new residential building. The clause cannot be read as if the requirement was for the personal benefit of the landlord alone and that it had nothing to do with the erection of a new building on the land. It is true that the requirement must be reasonable and bonafide. However these two expressions do not make the requirement a personal requirement. The reasonableness or the bona fides of the requirements is not left to the subjective determination of the landlord. The same has to be objectively determined by the Court Even assuming that the clause means that the requirement is a personal one I have no doubt whatsoever that the requirement is not of such a nature that the right to recover possession of the demised premises cannot be transferred to another individual or cannot be inherited by the legal representative of the landlord after his death after the landlord has established his right to recover such possession by obtaining a decree for such possession. Under the circumstances I do not see anything in the first part of sub Section (1) or In Clause (i) thereof which would compel me to hold that the decree passed under that clause is a personal decree and that such as a decree is incapable of being transferred to or inherited by others.

3. Mr. Desai however very strongly relies upon a decision of the Madras High Court reported in Dr. Muhammad Ibrahim v. Rahiman Khan and Ors. (1947) 2 Madras Law Journal 419 which was a decision under a provision similar to the one contained in Clause (g) of Sub-section (1) of Section 13 of the Act. In that clause also the same expressions reasonably and bonafide are to be found. In the above case Mr. Justice Tyagrajan held that an order of the Rent Controller directing the tenant to put the landlord in possession of his house on the ground that the landlord desired to occupy the house himself is one for the personal benefit of the landlord and is not capable of being executed after the death of the landlord at the instance of his legal representatives. I am unable to follow this decision as good authority. I am unable to do so because there is a judgment of Chagla C.J. in Civil Revision Application No. 822 of 1951 decided on 15 of July 1952 in which an identical question was decided quite in the opposite way. In that case also the question arose as to whether a decree under Clause (g) of Sub-section (1) of Section 13 could be executed after the death of the plaintiff and a contention similar to the one advanced in the present case and the one which was upheld by the Madras High Court was negatived in the following way:.Once a decree is passed the cause of action is merged in the decree and in law the legal representative of the deceased decree-holder is entitled to execute the decree even though the decree might have been personal to the plaintiff. The legal representative does not execute the decree in his own right but in the right of the estate which he represents That to my mind is an elementary proposition and the Rent Act does not in any way alter that elementary proposition....

It may be argued that having regard to the facts obtaining in that case the aforesaid observations were obiter. The learned Chief Justice in a previous part of his judgment construed the decree to be in favour of both the deceased plaintiff and the plaintiff No. 2. It may be said that having regard to that conclusion the aforesaid observations were made on an assumption which it was not necessary for the learned Judge to make. Even so in my judgment the reasons which the learned Chief Justice has given in support of the view are cogent reasons and preferable to the reasons given by the learned Judge of the Madras High Court.

4. In my judgment the real question is whether the right given to a and lord to recover possession of the property is or is not a transferable right. If the right is transferable then unless there is anything to contrary in the Act or in any other law the decree can be transferred and can be executed by the transferee in the same manner as the decree holder himself can do so. I have already considered the arguments advanced by Mr. Desai in support of his contention that the provisions of Sub-section (1) of Section 13 aforesaid negative such a right. Except those arguments no other argument was advanced by Mr. Desai to suggest why a decree holders right to transfer his right to recover possession cannot be transferred. Under the circumstances in my judgment there is no substance in the first contention of Mr. Desai and the same was rightly negatived by the learned first appellate Judge.

5. The second contention in my opinion is nothing but a rehash of the first contention. In further support of that contention Mr. Desai drew my attention to Section 17 and specially the provisions of Sub-section (2) of the Act. The contention was that if the transferee of a landlord was given the right to execute the decree for possession then the protection given to the tenant under the provisions of Section 17 would be negatived. I am unable to agree with the submission I see nothing in the language of Sub-section (2) which would deprive the tenant of the benefit conferred by the Legislature upon him by that section. That section states in specific terms that in the contingencies mentioned therein if the landlord happens not to commence the erection of the new building or if he relets the property then the Court is entitled to pass an order for re-delivery of the formerly demised premises to the tenant. The word landlord has been defined in the Act and the definition shows that it includes a person who has a title to recover the rent in respect of the premises In view of this definition it is clear that by virtues of the subsequent transfer the transferee becomes the landlord and as such the transferee would be included in the term landlord used in Section 17. But even if a different view on this subject were to be entertained there cannot be any doubt that in case the original landlord does not abide by the terms of the section then a right to recover possession thereof would accrue to the tenant and that right can be enforced not only against the former landlord but his successor-in-title. But Mr. Desai contended that in such a contingency the transferee of the landlord will not be subject to the criminal responsibility mentioned in Sub-section (2). It is not necessary for me to examine the validity of this contention. In my judgment even if such a result does follow it cannot in any way affect the question which has got to be determined in the present case and for the reasons which I have already given the right to recover under the decree the possession of the property is one which is transferable and that the fact that the opponent No. 1 because of lack of funds did not erect the residential building does not exhaust the decree and therefore in my judgment the revision petition must fail and must be dismissed with costs. Rule discharged with costs.


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