The
rights and liabilities of the lessor and the lessee or the landlord and the
tenant are governed by the general law of Indian Contract Act and the Transfer
of Property Act, which are the central legislations. The disputes in respect of
such rights and liabilities can be resolved by invoking ordinary civil
jurisdiction of the Civil Court under Section 9 of the Civil Procedure Code. The rent laws are
the special enactments made by the State Legislatures to provide additional
protection to the tenants by regulating the rates of rent, repairs of premises,
eviction of tenants, etc., and provide a special machinery or the forum to
decide the disputes in respect of it. The special law does not abrogate or
repeal the general law and the remedies provided therein, but it merely keeps
it in a dormant state. The landlord is not permitted to snap his relationship
with the tenant merely by his act of service of notice to quit under
Section 106 of the Transfer of
Property Act, as is permissible under the general law. In spite of service of
notice to quit, the rent law says that the tenant continues to be the tenant
enjoying the rights of a lessee and cannot be evicted unless the grounds for
eviction as are stipulated therein are made out.
IN THE HIGH COURT OF BOMBAY
Second Appeal No.
58 of 2004
Decided
On: 14.08.2014
Hon'ble
Judges/Coram:R.K. Deshpande, J.
Citation;
2014(6)ALLMR575,2014(6)ABR375
1. Regular Civil
Suit No. 657 of 1991 was filed by two brothers, namely, Anil Dhondu Shinde and
Kishore Dhondu Shinde against the original owner of the suit property, namely,
Govind Jagannath Samant, joined as the defendant No. 1. The lessee of the suit
property, Laxman Vishnu Parulekar, was joined as the defendant No. 2 along with
his wife Chhaya Laxman Parulkar as the defendant No. 3. It is was for
declaration that the defendant No. 1 has no right to obstruct the entry of
vehicles and disturb the possession of the plaintiff and also for a decree of
injunction permanently restraining the defendants from disconnecting the
electric supply and using the 10 feet road from the suit property.
2. Regular Civil
suit No. 814 of 1991 was filed by the owner of the suit property-Govind
Jagannath Samant against Laxman Vishnu Parulekar and Chhaya Laxman Parulekar,
joined as the defendant No. 1 and the defendant No. 2 respectively in the
capacity as lessees of the suit property. Anil Dhondu Shinde and Kishore Dhondu
Shinde were joined as the defendant Nos. 3 and 4 and a decree for possession of
the suit property was claimed against all the defendants on the ground that the
defendant Nos. 1 and 2 have sub-let the suit property to the defendant Nos. 3
and 4 without prior written consent of the plaintiff-landlord and have thereby
committed breach of the terms and conditions of lease, resulting into the
consequences of termination of lease by issuing a notice dated 24-5-1991 under
Section 106 of the Transfer of Property Act, 1882, duly
received by the defendants.
3. Special Civil
Suit No. 947 of 1993 was filed by two brothers Anil Dhondu Shinde and Kishore
Dhondu Shinde against the owner of the suit property-Govind Jagannath Samant, joined
as the defendant No. 2 and the lessees Laxman Vishnu Parulekar and Chhaya
Laxman Parulekar, joined as the defendant Nos. 1 and 3 respectively. It was a
suit for specific performance of the agreement to sell dated 30-11-1990 and
declaration dated 24-9-1991, said to have been executed in favour of the
plaintiffs.
4. All the three
suits were tried together by a Court of Civil Judge, Senior Division at Thane,
in exercise of its ordinary civil jurisdiction under Section 9 of the Civil Procedure Code, 1908. The parties led
common evidence and all the suits were decided by a common judgment on
30-3-2002. The Trial Court dismissed Special Civil Suit No. 947 of 1993 for
specific performance of the contract and also Regular Civil Suit no. 657 of
1991 for injunction filed by two brothers Anil Shinde and Kishore Shinde.
However, it passed a decree for delivery of possession of the suit property in
favour of the owner Govind Jagannath Samant, who was the plaintiff in Regular
Civil Suit No. 814 of 1990.
5. Anil Shinde and
Kishore Shinde, two brothers, filed three appeals, namely, Civil Appeal Nos.
160 of 2002, 161 of 2002 and 162 of 2002 challenging the judgment and decree
passed by the Trial Court in all the three suits on 30-3-2002. All these
appeals have been dismissed by the Appellate Court by its common judgment and
order dated 27-8-2003. The decision given by the Appellate Court in appeals
arising out of Special Civil Suit No. 947 of 1993 for specific performance of
the contract, and Regular Civil Suit No. 657 of 1991 for injunction-both filed
by two brothers, Anil Shinde and Kishore Shinde have attained finality. The
present second appeal challenges a decree for possession passed by the Trial
Court in Regular Civil Suit No. 814 of 1991, as has been confirmed in Civil
Appeal No. 161 of 2002 by the Appellate Court, which has dismissed the appeal.
6. On 11-2-2004,
this Court admitted the second appeal on the substantial question of law framed
in Ground No. (e) of the memo of appeal, which is reproduced below:
"(e) That
both the Lower Courts have acted against law and thereby committed an error in
giving judgment and further ought to have held that the suit of the Respondent
is not maintainable under law, as the suit is not filed under Bombay Rent
Act."
Except the
aforesaid substantial question of law, no other substantial question of law has
either been framed or has been urged by the appellants.
7. The findings of
fact recorded by the Courts below giving rise to the substantial question of
law, need to be stated. The original plaintiff is undisputedly the owner of the
suit property. By a registered agreement of lease dated 4-2-1976, the property
was leased out in favour of the defendant No. 1 Laxman Vishnu Parulekar for a
period of 98 years containing Clause (12), which is reproduced below:
"12. Not to
let out or give on licence any portion of the said building to any person,
except with the prior written consent of the lessor, which consent may be
granted in the sole discretion of the lessor."
The finding of the
Trial Court is that by agreement to sell dated 30-11-1990, the defendant Nos. 1
and 2 have agreed to transfer the suit property to the defendant Nos. 3 and 4
without any authority and they are also illegally put in possession of the suit
property. It has also been held that defendant No. 1 has sub-let or assigned
the possession of the premises in favour of the defendant Nos. 3 and 4 without
prior consent of the plaintiff. It is also a finding recorded that the
defendant No. 1 had no right to sub-let the suit premises to the defendant Nos.
3 and 4. The Appellate Court has held that the possession of the defendant Nos.
3 and 4 is that of the trespassers. It is the finding recorded that the
defendant No. 1 has committed breach of the terms and conditions of the
lease-agreement [Clause No. (12)] by handing over possession of the suit
premises to the defendant Nos. 3 and 4 and hence the plaintiff is entitled to a
decree for possession of the suit property on the basis of the termination of
lease in accordance with Section 106 of the Transfer of Property Act. These findings are
also confirmed in appeal by the Appellate Court.
8. Accepting the
aforestated findings of fact recorded by both the Courts below, Shri Gorwadkar,
the learned counsel appearing for the appellants, proceeds to develop his
argument. He submits that the lease in respect of the 'open land' is covered by
the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short, 'the
Bombay Act'), as it would be the 'premises' covered by Section 5(8) of the Bombay Act. He submits that the grounds on
which the Courts below have passed a decree for possession and maintained it,
are covered by Sections 12 and 13 of the Bombay Act. According to him, the matter is
fully governed by the Bombay Act, which confers exclusive jurisdiction upon the
Courts constituted under Section 28 of the Bombay Act. He submits that the jurisdiction
of the Court other than one referred to under Section 28 of the Bombay Act is expressly barred. According to
him, the decree in question has not been passed by a Court constituted under Section 28, but it has been passed by the Court of Civil Judge,
Senior Division, Thane, in exercise of its ordinary civil jurisdiction under
Section 9 of the Code of Civil Procedure read with
Section 24 of the Bombay Civil Courts Act, 1869. He,
therefore, submits that the decree passed being in lack of inherent
jurisdiction becomes nullity. He has relied upon the decisions of the Gujarat
High Court in Mohmad Husain Chotumiya Shaikh v. Taraben Manilal Shah, reported
in MANU/GJ/0224/1990 : (1991) 1 GLR 585; and Govindbhai Parshottamdas
Patel v. New Shorrock Mills, reported in MANU/GJ/0080/1984 : AIR 1984
Guj 182.
9. Shri Ram Apte,
the learned Senior Counsel appearing for the respondent No. 1, has invited my
attention to the stand taken by the appellants/defendant Nos. 3 and 4 in their
written statement and submits that the objection raised by the Trial Court was
regarding the pecuniary jurisdiction of the Court of Civil Judge, Senior
Division to entertain, try and decide the suit. According to him, the
jurisdictional facts, which are material to raise the question of lack of
inherent jurisdiction because of the bar created under Section 28(1)(b) of the said Act, have not been pleaded
in the written statement. He submits that even if the suit was to be tried
under Section 28(1)(b) of the Bombay Act, it would be the same
Court of Civil Judge, Senior Division, which has passed the decree in the
present suit. He submits that the forum does not change and no prejudice is
caused merely because the specific provision invoking the jurisdiction of the
said Court under Section 28(1)(b) of the Bombay Act has not been
mentioned. He has relied upon the decision of the Apex Court in Kamla Devi
Budha v. Hem Prabha Ganguli, reported in MANU/SC/0510/1989 : (1989) 3
SCC 145, for the proposition that the instant suit can be treated as one filed
under Section 28(1)(b) of the Bombay Act. Inviting my
attention to the pleadings of the defendant Nos. 1, 3 and 4, he submits that it
is a case of surrender of tenancy by the defendant No. 1, the original lessee,
and in view of the stand taken by the defendant Nos. 3 and 4, it is not a case
of claiming protection of the Bombay Act. They are held to be trespassers. Shri
Apte, the learned Senior Counsel, has relied upon the decision of the Division
Bench of this Court in Ratanlal v. Chanbasappa, reported
in MANU/MH/0030/1978 AIR 1978 Bombay 216.
10. The rights and
liabilities of the lessor and the lessee or the landlord and the tenant are
governed by the general law of Indian Contract Act and the Transfer of Property
Act, which are the central legislations. The disputes in respect of such rights
and liabilities can be resolved by invoking ordinary civil jurisdiction of the
Civil Court under Section 9 of the Civil Procedure Code. The rent laws are the
special enactments made by the State Legislatures to provide additional
protection to the tenants by regulating the rates of rent, repairs of premises,
eviction of tenants, etc., and provide a special machinery or the forum to
decide the disputes in respect of it. The special law does not abrogate or
repeal the general law and the remedies provided therein, but it merely keeps
it in a dormant state. The landlord is not permitted to snap his relationship
with the tenant merely by his act of service of notice to quit under
Section 106 of the Transfer of Property Act, as is permissible
under the general law. In spite of service of notice to quit, the rent law says
that the tenant continues to be the tenant enjoying the rights of a lessee and
cannot be evicted unless the grounds for eviction as are stipulated therein are
made out.
11. The Bombay
Rents, Hotel and Lodging House Rates Control Act, 1947 was brought into force
with effect from 19-1-1948 with a view to amend and consolidate the law
relating to the control of rents and repairs of certain premises, or rates of
hotels and lodging houses and of eviction and also to control the charges for
licence of premises, etc. It was made applicable to the Bombay area of the
State of Maharashtra. Section 3 of the said Act deals with the commencement and
duration of the Act. Sub-section (1) therein states that the Act shall come
into operation on such date as the State Government, may, by notification in
the Official Gazette, appoint in this behalf. Sub-section (2) therein states
that it shall remain in force upto and inclusive of the 31st day of March 2000
and shall then expire. Sub-section (3) therein states that Section 7 of the Bombay General Clauses Act, 1904, shall
apply upon the expiry of this Act or upon this Act or any provision thereof
ceasing to be in force in any area, as if it had then been repealed by a
Maharashtra Act. Section 6 therein deals with the applicability of the Act to
the premises let or given on licence for residence, education, business, trade
or storage in the areas specified in Schedule I under Part II of the said Act.
The definition of 'premises' under Section 5(8) includes any land not being used for agricultural
purposes.
12. The lease in
question was in respect of 'open land', which was included in the definition of
the 'premises' under Section 5(8) of the Bombay Act. The provisions of the Bombay Act
were applicable on the date of filing of the suit in question on 10-10-1991. If
the findings of fact recorded by both the Courts below are accepted, then on
the touchstone of the provisions of Sections 12, 13 and 28 of the Bombay Act, which were then in force, the
jurisdiction of the Court of Civil Judge, Senior Division at Thane, constituted
under Section 28 of the said Act, was attracted and the jurisdiction
of the Court other than it, was expressly barred. The suit in question was
entertained, tried and decided by the Civil Court in exercise of its ordinary
civil jurisdiction under Section 9 of the Civil Procedure Code. Obviously, the Court,
which decided the suit in question, suffered inherent lack of jurisdiction to
entertain such a suit, in view of the bar of jurisdiction created under
Section 28(1)(b) of the Bombay Act.
13. Once it is
held that the ordinary civil jurisdiction of the Civil Judge, Senior Division
under Section 9 of the Civil Procedure Code to entertain the suit
in question on 10-10-1991 was barred under Section 28 of the Bombay Act, the question as to whether a
decree passed by such Court on 30-3-2002, i.e. after the repeal of the Bombay
Act on 30-1-2000, can be treated as nullity, needs to be decided.
14. The
Legislature of the State has brought into force the Maharashtra Rent Control
Act, 1999 (for short, "the Maharashtra Act") with effect from
31-3-2000, on which date the notification in the Official Gazette was issued,
as required by sub-section (3) of Section 1 therein. It applies to the premises let for the
purposes of residence, education, business, trade or storage in the areas
specified in Schedule I or Schedule II in terms of sub-section (1) of
Section 2 of the said Act. Sub-section (9) of Section 7 therein deals with the definition of 'premises',
which is reproduced below:
"(9)
"premises" means any building or part of a building let or given on
licence separately (other than a farm building) including,--
(i) the gardens,
grounds, garages and out-houses, if any, appurtenant to such building or part
of a building,
(ii) any fittings
affixed to such building or part of a building for the more beneficial
enjoyment thereof, but does not include a room or other accommodation in a
hotel or lodging house."
The open land is
not covered by the definition of 'premises', reproduced above. Thus, the Act
has no applicability to the leases in respect of open lands, whether for
agricultural or non-agricultural purpose.
15. Section 58 of the Maharashtra Act dealing with repeal and
saving being relevant is reproduced below:
"58. Repeal
and saving
(1) On the
commencement of this Act, the following laws, that is to say,--
(a) the Bombay
Rents, Hotel and Lodging house Rates Control Act, 1947;
(b) The Central
Provinces and Berar Regulation of Letting of Accommodation Act, 1946 including
the Central Provinces and Berar Letting of house and Rent Control Order, 1949
and
(c) the Hyderabad
Houses (Rent, Eviction and Lease) Control Act, 1954; shall stand repealed.
(2)
Notwithstanding such repeal--
(a) all
applications, suits and other proceedings under the said Acts pending, on the
date of commencement of this Act before any Court, Controller, Competent
Authority or other office or authority shall be continued and disposed of, in
accordance with the provisions of the Acts so repealed, as if the said Acts had
continued in force and this Act had not been passed;
(b) the provisions
for appeal under the Acts so repealed shall continue in force in respect of
applications, suits and proceedings disposed of thereunder;
(c) any
appointment, rule and notification made or issued under any of the repealed
Acts and in force on the date of commencement of this Act shall, in so far as
they are not inconsistent with the provisions of this Act, be deemed to have
been made or issued under this Act and shall continue in force until it is
superseded or modified by any appointment, rule or notification made or issued
under this Act;
(d) All
prosecutions instituted under the provisions of any of the repealed Acts shall
be effective and disposed of in accordance with the law."
In view of
sub-section (1) of Section 58 above, the Bombay Act was repealed on
31-3-2000, that is the date on which the Maharashtra Act was brought into
force. Sub-section (2) of Section 58 is a saving clause, it takes care
of all such transactions, which are in respect of all such applications, suits
and other proceedings initiated under the Bombay Act and pending on the date of
repeal of the said Act. Such applications, suits or other proceedings are
required to be continued as if the Maharashtra Act had never been passed.
16. Sub-section
(3) of Section 3 of the Bombay Act states that Section 7 of the Bombay General Clauses Act, 1904 shall apply
upon the expiry of the Bombay Act as if it had not been repealed by the
Maharashtra Act. Hence, Section 7 of the Bombay General Clauses Act being relevant,
is reproduced below:
"7. Where
this Act, or any Bombay Act, or Maharashtra Act, made after the commencement of
this Act, repeals any enactment hitherto made or hereafter to be made, then
unless a different intention appears, the repeal shall not--
(a) revive
anything not in force or existing at the time at which the repeal takes effect;
or
(b) affect the
previous operation of any enactment so repealed or anything duly done or
suffered thereunder; or
(c) affect any
right, privilege, obligation or liability acquired, accrued or incurred under
any enactment so repealed; or
(d) affect any
penalty, forfeiture or punishment incurred in respect of any offence committed
against any enactment so repealed; or
(e) affect any
investigation, legal proceeding or remedy in respect of any such right,
privilege, obligation, liability, penalty, forfeiture or punishment as
aforesaid, and such investigation, legal proceedings or remedy may be
instituted, continued or enforced, and any such penalty, forfeiture or
punishment may be imposed, as if the repealing Act had not been passed."
If the repealing
enactment does not contain any saving clause or if the saving clause in the
repealing enactment is not applicable, then Section 7 of the Bombay General Clauses Act can be invoked.
Unless a different intention is expressed by repealing enactment, the repeal
shall not revive anything not in force or existing at the time on which the
repeal takes effect or affect the previous operation of any enactment so
repealed or anything duly done or suffered thereunder or affect any right,
privilege, obligation or liability acquired, accrued or incurred under any
enactment so repealed or affect any investigation, legal proceeding or remedy
in respect of any such right, privilege, obligation or liability, and such investigation,
legal proceeding or remedy may be instituted, continued or enforced as if the
repealing enactment had not been passed.
17. The effect of
repeal and saving clauses contained in the repealing Act and Section 6 of the General Clauses Act, 1897, which is in pari
materia of Section 7 of the Bombay General Clauses Act, 1904 came up for
consideration before the Apex Court in the case of Qudrat Ullah v. Municipal
Board, Bareilly, reported in MANU/SC/0418/1973 : (1974) 1 SCC 202.
The Apex Court has laid down the following principles on the question of repeal
of enactment and its effect.
(1) If the repealing
enactment makes a special provision regarding pending or past transactions, it
is this provision that will determine whether the liability arising under the
repealed enactment survives or is extinguished.
(2) In the absence
of applicability of the saving clause in the repealing statute, the result
would be that a statute is deemed not to have been on the statute book at all.
(3) Section 6 of the General Clauses Act applies generally in the
absence of a special saving provision in the repealing statute, for when there
is one then a different intention is indicated.
(4) In any case,
where a repeal is followed by a fresh legislation on the subject, the Court has
to look to the provisions of the new Act to see whether they indicate a
different intention.
(5) What is
observed by Section 6 of the General Clauses Act is-(a) previous
operation of the repealed enactment, (b) rights, privileges, obligations and
liabilities acquired, accrued or incurred under the enactment repealed, and (c)
investigations, legal proceedings and remedies in respect of any such right,
privilege, obligation or liability.
Applying the aforesaid
principles of law, the question of impact of Section 58 of the Maharashtra Act and Section 7 of the Bombay General Clauses Act on the ordinary
civil jurisdiction of the Court under Section 9 of the Civil Procedure Code will have to be
considered.
18. Sub-section
(2) of Section 58 of the Maharashtra Act makes a special provision
regarding pending and passed transactions and it is this provision that will
determine whether the liability arising under the repealed enactment survives
or extinguishes. It applies to all the applications, suits or other proceedings
instituted under the Bombay Act and pending. It does not apply to the
applications, suits or other proceedings instituted under the law other than
the Bombay Act. In the absence of applicability of sub-section (2) of
Section 58 regarding saving, the result would be that the
repealed enactment is completely obliterated from its inception as if it never
existed.
19. The suit in
question was neither entertained under any provision of the Bombay Act, nor was
instituted in the forum provided to resolve the dispute arising out of the
operation of the Bombay Act. It was instituted, tried and decided under
Section 9 of the Civil Procedure Code, which is the law other
than the Bombay Act. The provision of saving under sub-section (2) of
Section 58 of the Bombay Act would not, therefore, apply to
the suit in question. But for the provision of Section 28(1)(b) of the Bombay Act, the ordinary civil
jurisdiction under Section 9 of the Civil Procedure Code was available to
entertain, try and decide the suit in question. Once a bar under Section 28(1)(b) of the Bombay Act is lifted as a result
of repeal on 31-3-2000, the effect would be that such a bar never existed even
on the date of filing of the suit in question on 10-10-1991; as a result, it
cannot be said that the decree passed by the Trial Court in question was
without jurisdiction.
20. Clauses (a) to
(e) of Section 7 of the Bombay General Clauses Act would apply in
the absence of there being any different intention expressed under the
repealing enactment. In the present case, although the Bombay Act was
applicable to the leases in respect of open lands, the repealing Act, i.e. the Maharashtra
Act, does not apply to such leases; as a result, it is only the ordinary civil
jurisdiction of the Court under Section 9 of the Civil Procedure Code, which becomes available.
From the date of repeal of the Bombay Act on 31-3-2000, the jurisdiction under
Section 28(1)(b) of the Bombay Act ceases to be
available. Thus, the Legislature has made its intention very clear that the
clauses (a) to (e) of Section 7 of the Bombay General Clauses Act shall not apply
to any proceedings in respect of leases of open lands. In view of this, the
decree passed by the Trial Court in question is not hit by clauses (a) to (e)
of Section 7 of the Bombay General Clauses Act and it cannot be
treated as without jurisdiction and nullity.
21. In the
decision of the Apex Court in the case of Qudrat Ullah, cited supra, the impact
of Section 6 of the General Clauses Act on Section 3 of the repealed Act was considered. It was held
that the repealed Act had a limited duration of operation. Before the expiry of
the duration of the repealed Act, it was repealed. Section 3 of the repealed Act provided that no suit without
the permission of the District Magistrate could be filed in any Civil Court
against a tenant for his eviction from any accommodation except on one or more
grounds specified therein. The Apex Court has held that the survival of the
right or continuation of the operation of the Act to the proceedings is all
that is ensured and not the expansion or extension of that right. It is held
that the right is circumscribed in content to the conditions set out and
limited in duration to the period beyond which the Act does not exist. It has
been held that to hold otherwise would be to give more quantum of right to the
party than he would have enjoyed had the repeal not been made. The Apex Court
has held that the previous operation cannot be converted into sanctioning
subsequent operation.
22. As pointed out
earlier, in the present case, the Bombay Act was brought into force on
19-1-1948 and sub-section (2) of Section 3 therein stated that it shall remain in force up to
and inclusive of the 31st day of March, 2000 and shall then expire. So, upon
expiry of the Bombay Act on 31st March, 2000, the provisions of general law of
the Indian Contract Act and the Transfer of Property Act along with the
jurisdiction of the Civil Court under Section 9 of the Civil Procedure Code, come into operation
from the suspended or dormant state. To hold that the Trial Court acting under
Section 9 of the Civil Procedure Code had no jurisdiction to
pass a decree after repeal of the Bombay Act, would amount to extending the
operation of the Bombay Act beyond the date of its expiry on 31st March, 2000.
The Apex Court has held that such a course is not permissible.
23. In the
decision of the Apex Court in the case of Vishwant Kumar v. Madan Lal Sharma
and another, reported in MANU/SC/0324/2004 : (2006) 4 SCC 1, the Apex
Court considered the question of difference between the rights of a tenant
under the Rent Act and the rights of a landlord. It has been held that the
right of a statutory tenant to pay rent in exceeding the standard rent or the
right to get the standard rent fixed are the protective rights and not the
vested rights. It holds that on the other hand, the landlord has rights
recognized under the law of contract and the Transfer of Property Act and the
date on which the Rent Act was withdrawn, the suspended rights of the landlord
revive. The Apex Court took
support of the ratio of its earlier decision in Ambalal Sarabhai Enterprises
Ltd. v. Amrit Lal and Co., reported in MANU/SC/0488/2001 : (2001) 8
SCC 397, concerning the rights of landlord under Section 14(1)(b) of
the Rent Act. It was held that a ground of eviction based on illegal
sub-letting under Section 14(1)(b) of the Rent Act would not constitute
a vesting right of the landlord, but it would be a right within the meaning of
Section 6(c) of the General Clauses Act, if proceeding for eviction
is pending. It has been held that the tenant has no vested right under the Rent
Act, as the tenant has only a protective right. In the present case,
undisputedly no proceedings were instituted under the Bombay Act (repealed Act)
nor were pending on the date on which the Bombay Act was repealed.
24. In view of
above, it cannot be said that the Courts below have committed an error of law
in passing a decree for possession by holding that the suit was maintainable
invoking the ordinary civil jurisdiction of the Civil Court under Section 9 of the Civil Procedure Code, though the suit was
not filed under the Bombay Rents, Hotel and Lodging House Rates Control Act,
1947. The substantial question of law is answered accordingly.
25. There cannot
be any dispute that if a case is made out and proved under
Section 111(f) and (g) of the Transfer of Property Act regarding
implied surrender and forfeiture on the ground of tenant renouncing his
character as such by setting up a title in third person or by claiming title in
himself, the provisions of the said Act would not be attracted, as has been
held by the Division Bench of this Court in Ratanlal's case, cited supra. With
the assistance of the learned counsel appearing for the parties, I have gone
through the averments made in the plaint and the written statements of the
defendant No. 1 and the defendant Nos. 3 and 4. The case made out by the
plaintiff in the pleadings is of an unauthorized sub-letting by the defendant
No. 1 in favour of the defendant Nos. 3 and 4. The case is not made out either
of surrender of lease or forfeiture under Section 111(f) and (g) of
the Transfer of Property Act, 1882. The plaintiff has alleged breach of the
terms and conditions of the agreement. Though in para 6, the averment is that
the defendant No. 1 has, in response to the letter dated 24-5-1991, agreed to
hand over possession of the suit property, the same has not been handed over.
Unless there is evidence of handing over possession by the lessee and accepting
it by the lessor, the question of surrender of tenancy either implied or
express would not arise merely on the basis of assurance to surrender the
premises. The questions of implied surrender and forfeiture of tenancy are the
questions of fact, required to be pleaded and proved. No issue was framed by
the Trial Court and the Appellate Court has also not considered such aspect of
the matter. In view of this, no decree can be passed for possession on the
ground either of implied surrender or incurring of forfeiture by disclaimer.
The principles laid down by the Division Bench of this Court in Ratanlal's
case, cited supra, would not, therefore, apply to the facts of the present
case.
26. In view of
above, the second appeal is dismissed. No order as to costs.
27. At this stage,
the learned counsel appearing for the appellants submits that the interim
protection granted earlier by this Court be extended for a further period of
eight weeks. Shri Apte, the learned Senior Counsel appearing for the respondent
No. 1, submits that it should be subject to condition that the Receiver and the
appellants hand over the vacant possession of the suit premises to the
plaintiff after the expiry of eight weeks.
28. In view of
this, the interim protection granted by this Court is extended for a further
period of eight weeks from today, after the expiry of which the Receiver and
the appellants shall hand over the vacant possession of the suit premises to
the plaintiff, failing which the plaintiff shall be entitled to recover the
same from the Receiver and the appellants with the costs of Rs. 15,000/- per
day till the date of handing over possession. This is, of course, subject to
the further orders by the Apex Court, if any further proceedings are filed.
