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IN THE HIGH COURT OF BOMBAY
Sharad Manohar, J.
Prithdayal Chetandas others.... Petitioners.
Versus
Jamnadas Ghanshamdas Tuliani another.... Respondents.
Writ Petitions Nos. 3417 3313 of 1987, decided on 20/21/22-7 and 18/29-8-1988.
Advocates appeared :
P.L. Nain, for petitioner.
G.P. Bharucha, for respondent No. 1.
C.R. Dalvi with K.Y. Mandlik, for respondents Nos. 2 to 5.
The Court had no jurisdiction for examining this controversy at all. This is so firstly because this is not a bana fide dispute. It has been held by this court repeatedly that the dispute about the standard rent contemplated by the Rent Act must be a bona fide dispute. On the face of it, this is not a bona fide dispute. Secondly, it is a rule of law well settled by now virtue of the judgment of the Supreme Court reported in AIR 1970 SC p. 2005, Harbanslal Jagmohandas and another v. Prabhudas Shivlal, that a dispute contemplated by Section 12 (3) (a) of the Rent Act must be a dispute raised within one month from the date of the Notice under Section 12 (2) of the Act. In the absence of such dispute raised within one month in the appropriate Court, the dispute has no relevance whatsoever so far as the liability of the tenant for eviction on the ground of arrears of rent for a period exceeding 6 months is concerned. Section 15 (2)- Receiver Possession-Nature of.
If any authority was necessary for this proposition, it is to be found firstly in the judgment of the Supreme Court reported in AIR 1957 Supreme Court page 314, P. Lakshmi Reddy v. L. Lakshmi Reddy. Para 6 of the judgment (at page 319) is relevant for this purpose. This is what the Supreme Court holds:-
"The learned Attorney-General urged that prior possession of the Receiver pending the suit must be treated as possession on behalf of Hanimi Reddy with the animus of claiming sole and exclusive title disclosed in this plaint. In support of this contention he relies on the well known legal principle that when a Court takes possession of properties through its Receiver such Receivers possession is that of all the parties to the action according to their titles. (See Kerr on Receiver (12th Edition page 153)."
It is worthwhile turning to kerr on Receiver, which authority is cited by the Supreme Court with approval as mentioned above. The relevant portion of the passage runs as follows:-
"Nature of receivers possession: The appointment of a receiver does not in any way affect the right to the property which he is appointed. The court takes possession by its receiver, and his possession is that of all parties to the action according to their titles: The receiver does not collect the rents and profits by virtue of any estate vested in him, but by virtue of his position as an officer of the Court appointed to collect property upon the title of the parties to the action. In appointing a receiver the Court deals with the possession only until the right is determined, if the right be dispute.
The gift of the entire discussion is that the possession of the Receiver ensures to the benefit of the party who successfully establishes its title, Dot mere possession. At times the title may be possessor title at other times it may be a title acquired by adverse possession. But the point is that it is the title which has to be established, not mere possession. The suit of defendant No. 6 in which he got a decree in his favour was a mere suit for possession not a suit on the title at all. His suit in the Small Causes Court was one on title of alleged lawful sub-tenancy. But the realised that he had no legs to stand upon in that suit and he withdraw that suit. In the subsequent suit filed by him in the city Civil Court he did not even pretend to be having any title to the property. Order 22, Rule 9 and Order 41, Rule 4-Appeal-Abatement-Death of one of appellants-Joint decree against several dependants-All defendants preferred appeal one of appellants died during pendency, of appeal - His heirs not brought on record-Held, appeal abated.
The provision relevant after the Appeal was filed was Order 22, Rule 9 and not Order 41, Rule 4. Order 41, Rule 4 applies to the stage when Appeal is to be and is filed and empowers one of the plaintiffs or defendants, in a representative capacity as it were, to file an Appeal against the entire decree in certain circumstances, But if the parties who can nominate one of them to file an appeal all by himself, do not choose to lake advantage of Order 41, Rule 4, that provision ceases to be available to them during the pendency of the Appeal so as to obviate bringing on record the heirs of one of the deceased appellants. It was held that if the heirs of one of the appellants who had died, were not brought on record, the entire Appeal would abate the provisions or Order 41, Rule 4 notwithstanding.Order 40, Rule 1- Position of receiver-Receiver is not agent of parties to lis but of the court who appointed him.
Point in this case is that, unwittingly, confusion is made between the position of a trustee and of an agent. The Receiver is the agent of the court : but so far as the successful party is concerned, be bolds the property in some kind of trust not as his agent The trustee is not the agent of the Cester qui trust. The income recovered by the Receiver will ensure to the benefit of successful party, because the successful party would be the beneficiary. But that does not mean that the Receiver would be the agent of the successful party.
SHARAD MANOHAR, J.:---These two petitions arise out of the decree for eviction passed by the Court of Small Causes in the suit for eviction filed by the landlord in these petitions (who is the common respondent in both these petitions). Writ Petition No. 3417 of 1987 is filed by Original defendants Nos. 1, 2 and 5, who are admittedly the heirs of the original tenant in respect of the suit premises in addition to original defendant No. 4. Though decree for eviction has been passed also against Original Defendant No. 4, viz. Jairamdas Chetandas, he does not figure either as petitioner or respondent in this writ petition. This fact has a bearing upon the very maintainability of this writ petition. Writ Petition No. 3313 of 1987 is filed by original defendant No. 6 who claimed and claims to be a sub tenant in respect of the suit premises as from 1-4-1967. His claim to valid sub-tenancy may perhaps have some kind of legitimacy after the advent of Maharashtra Act No. 18 of 1987, which came into force as on 1st October, 1987. But as to how he could claim a valid sub-tenancy at the time of the suit, with effect from 1-4-1967, is a closely guarded secret. I will have occasion to comment upon this position while examining the claim of the said petitioner in the said petition.
2. Very interesting question of quite some importance, relating---
(a) to the interpretation of certain provisions of the Maharashtra Act No. 18 of 1987;
(b) to the effect of section 12(3)(a), 12(3)(b) and of section 14, 15(2) of the same Act;
A-n-d
(c) to the nature of the Court's jurisdiction under Article 227 of the Constitution of India---
arise for consideration in these two writ petitions. Likewise, the question of the very maintainability of both these petitions has arisen in circumstances which are somewhat peculiar. But I do not wish to dispose of these petitions on that question alone.
3. Since both the writ petitions arise out of the suit, both of them are being disposed of by this common judgment. For the sake of convenience, the parties in the writ petitions shall be referred to with reference to their position in the array of parties in the trial Court. As stated above, the respondent is common in both the petitions. He is the owner and, as such, the landlord in respect of the suit premises which are in a building situate at Bhulabhai Desai Road, one of the most prestigious localities in the City of Bombay. There is no dispute that original defendants Nos. 1 to 5 had been the tenants in respect of the suit premises at all the relevant times. Defendant No. 6 was impleaded as a party defendant in the suit at a later stage, at the instance of the plaintiff, the contention of the plaintiff being that he was inducted on a part of the premises, viz. the Garage, by defendants Nos. 1 to 5, as a sub-tenant. As will presently pointed out, he has filed a written statement and has denied that he was an unlawful sub-tenant. However, as will be presently pointed out, he has kept an eloquent mum on the question as to how his sub-tenancy could be lawful if, on his own showing, it came into being for the first time in April 1967, at which time sub-tenancy by a tenant without the consent of the landlord was quite unlawful. However, at the hearing of these petitions he based his claim of lawful sub-tenancy only upon the provisions of Maharashtra Act No. 18 of 1987 which came into force on 1-10-1987.
4. As stated above, the suit premises are situate in one of the most prestigious localities in the city of Bombay, viz. Bhulabhai Desai Road. It is two-bed rooms Flat, together with a Garage on the ground floor and a store-room. The total area of the Flat is about 1300 sq. ft. The circumstances in which defendants Nos. 1 to 5 became tenants in respect of this Flat may be indicated here briefly.
5. The father of defendants Nos 1 to 5 was a tenant in respect of the premises in an entirely different building, but on Bhulabhai Desai Road only. The building in which those premis
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