Back
SUPREME COURT OF INDIA
C.A. VAIDIALINGAM AND K.K. MATHEW, JJ.
Bhawanji Lakhamshi and others, Appellants
Versus
Himatlal Jamnadas Dani and others, Respondents.
Civil Appeal No. 1546 of 1969, D/- 14-12-1971.
Advocates appeared
Mr. V. M. Tarkunde, Sr. Advocate, (M/s. S. K. Dholakia and S. K. Bagga, Advocates, with him), for Appellants Nos. 1 and 3, Mr. S. K. Bagga, Advocate for Appellant No.2, Mr. D. V. Patel, Sr. Advocate, (Mr. A. G. Parikh, Advocate and Mr. B. R. Agarwala, Advocate of M/s. Gagrat and Co. with him), for Respondents.
Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 - Sections 3,4,116 and 106 - Constitution Of India,1950 - Article 227 -Suit for Possession land - Quashing of Order - Leases were for a period of ten years and in respect of first plot rent payable was Rupees a month - In both leases there was an option clause which entitled lessees to surrender leased property by - Lessees surrendered two plots other than plot with which Court are concerned in pursuance of option clause with result that lease in respect of first plot continued - Died but before his death he had made a gift of leased property in favour of three respondents - Lease in respect of plot in question here determined by efflux of time - But lessees continued to remain in possession paying rent at rate of Rupees per month - Whether appellants were holding over under Section 116 of Transfer of Property Act - Whether conduct justifies such an inference must always depend upon facts of each case - Whether after expiration of contractual tenancy mere fact of landlord receiving rent for dwelling house from tenant affords any evidence that landlord had entered on a new contractual tenancy to take place of tenancy which had expired - Whether at time of expiry of lease or thereafter six months notice to lessee was necessary whether tenant was entitled to notice provided under lease - Whether conditions for application of Section 116 of Transfer of Property Act are fulfilled - Whether tenancy created by holding over was for manufacturing purpose and therefore landlord was bound to give six months notice for determination of tenancy by holding over does not arise for consideration - Held, Court that where a contractual tenancy to which rent control legislation applied had expired by efflux of time or by determination by notice to quit and tenant continued in possession of premises acceptance of rent from tenant by landlord after expiration or determination of contractual tenancy will not afford ground for holding that landlord had assented to a new contractual tenancy - Court have already whole basis of Section 116 of Transfer of Property Act is that in case of normal tenancy, a landlord is entitled where he does not accept rent after notice to quit to file a suit in ejectment and obtain a decree for possession and so his acceptance of rent is an unequivocal act referable only to his desire to assent to tenant continuing in possession - That is not so where Rent Act exists and if tenant says that landlord accepted rent not as statutory tenant but only as legal rent indicating his assent to tenant s continuing in possession it is for tenant to establish it - Court therefore come to conclusion that there was no holding over by appellants and if that be so question whether tenancy created by holding over was for manufacturing purpose and therefore landlord was bound to give six months notice for determination of tenancy by holding over does not arise for consideration - Appeal dismissed
Judgment
MATHEW, J.:- This is an appeal, by special leave, from the judgment of the High Court of Bombay dismissing a petition filed under Article 227 of the Constitution praying for issue of an appropriate writ or order quashing the order dated 28-2-1968 passed by the Full Bench. Small Causes Court Bombay, in appeal No. 95 of 1963 from the order dated 21-2-1963 passed by the Judges, Small Causes Court, Bombay, in R.A.F. Suit No. 9293 of 1959.
2. In this appeal we are concerned with a plot of land admeasuring 2108 square yards in Survey No. 171, Hissa No.7, at Ghatkopar. This plot belonged to one Jamnadas Chhotalal Dani. On 15-11-1948, Jamnadas executed two leases in favour of one Bhawanji Lakhamsi and Maojibhai Jethabhai, defendants 1 and 2. The subject matter of the first lease was two plots, the one referred to above and another in the same area measuring 805 square years. The subject matter of the second lease was a third plot in the same area.
3. The leases were for a period of ten years and in respect of the first plot, the rent payable was Rupees 75/- a month. In both the leases there was an option clause which entitled the lessees to surrender the leased property by 30-9-1953. The lessees surrendered the two plots, other than the plot with which we are concerned, in pursuance of the option clause, on 15-1-1951, with the result that the lease in respect of the first plot continued. Jamnadas died on 14-8-1951, but before his death he had made a gift of the leased property in favour of the three respondents. The lease in respect of the plot in question here determined by efflux of time on 30-9-1958. But the lessees continued to remain in possession paying rent at the rate of Rupees 75/- per month.
4. On 7-8-1959, the lessors gave notice purporting to terminate the tenancy by the end of September, 1959. They stated in the notice that the lessees had sublet the premises and that the lessors required the plot for the purpose of putting up constructions on it. Since the lessees did not vacate the premises, the lessors filed the suit on 22-10-1959 in the Small Causes Court of Bombay.
5. The lessees contended that they did not sub-let the premises and that the lessors did not bona fide require the premises for the purpose of construction. They also contended that by the acceptance of rent by the lessors after the termination of the tenancy by efflux of time, a fresh tenancy was created, that the original lease was granted for erecting a saw mill - a manufacturing purpose - and so the lease created by holding over was, by implication, also for a manufacturing purpose, and therefore, lessees were entitled to six months notice expiring with the end of the year of the tenancy, and that the tenancy created by holding over was not validly determined by one month s notice.
6. The trial Court held that there was no clear evidence of the sub-letting of the premises, but that the plaintiff required the plot bona fide for constructing a new building within the meaning of Clause (i) of sub-section (1) of Section 13 of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947, hereinafter called the Act. The Court also held that the tenancy terminated by efflux of time, but that the lessees continued in possession by virtue of the immunity from eviction conferred by the Act and so, they were not holding over within the meaning of Section 116 of the Transfer of Property Act, notwithstanding the fact that rent was accepted by the lessors from month to month after 30-9-1958, and that it was not necessary to give the lessees six months notice expiring with the end of the year of the tenancy, for terminating that tenancy. In appeal, the Full Bench of the Small Causes Court confirmed the decree of the trial Court, it was to quash this decree that the petition under Article 227 was filed before the High Court.
7. Before the High Court, the main contention of the appellants was that, since a fresh tenancy by holding over was created by the acc
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
