Lena Pereira (Mrs. ) and others vs Mary Boracho and others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1991 Supreme(Bom) 30

IN THE HIGH COURT OF BOMBAY
B.N. Srikrishna, J.
Lena Pereira (Mrs.) and others .... Petitioners.
Versus
Mary Boracho and others.... Respondents.
Writ Petition No. 3722 of 1986, decided on 17-1-1991.
Advocates appeared :
G.R. Rege with G.S. Kalsekar, for the petitioners.
Ajit P. Shah with Smt. A.A. Agarwal, for the respondents.

Headnote:Section 13 (1) (g)-Eviction suit-Defendants taking up plea of disclaimer disputing landlords title-Plaint not amended even at appellate stage Both Courts below rejecting defence- Record finding that defendants were tenants.
       Held-Having raised plea of disclaimer, defendant tenants could not be deemed to have lost protection under Rent Act. No decree for eviction could be passed by applying principles of estoppel under Section 116 of Evidence Act on ground of raising plea of disclaimer.
       The suit for eviction under Section 13 (1) (g) of the defendants on the ground that there was disclaimer or that the tenants had disputed title of the landlord.
       Even after the defendants amended their written statement and took up the plea of disclaimer thus disputing the title of the plaintiffs as landlords, the petitioners did not amend the plaint and raise this fact as a ground for eviction. Even when the matter was carried in appeal, no amendment of the plaint was sought to incorporate such a ground for eviction. The only time his contention surfacing is in the appeal memo vide paragraphs (i), (j) and (k). The explanation of the petitioners for not raising an additional ground for eviction on the basis of the tenants disputing the landlords title is that if they had done so, the Small Causes Court would not have jurisdiction to entertain the suit and they might have been driven to the Civil Court for relief. This is hardly an explanation which can be accepted. By not doing what they ought to have done, the plaintiffs cannot get the benefit of what they had not pleaded.
       After appreciation of evidence on record, both the Courts below rejected the defence and recorded a finding that defendants having failed to prove their plea in this behalf were tenant. It was on this footing that the small Cause Court continued to have exercised jurisdiction under provisions of the Rent Act.
       Held- The defendant tenants must not be deemed to have lost the protection under Rent Act by the mere fact of having raised the plea of disclaimer and no decree forthwith for eviction can be passed on this very ground alone by applying the principle of estoppel under Section 116 of the Evidence Act.

JUDGMENT - B.N. SRIKRISHNA, J.:---This is a petition under Article 227 of the Constitution of India by the petitioners impugning the judgment of the Appeal Bench of the Small Causes Court, Bombay, dated 17th September, 1985 by which the suit of the petitioners was dismissed.

2. The facts necessary for deciding this writ petition can be summarised as under:---

The suit premises consist of one room in Flat No. 21, 3rd floor of House No. 16, Cross Building at Dock Yard Road, Bombay-10. Flat No. 21 consists of three rooms and a passage. One Francis Pereria was the original tenant of the whole flat and was in occupation of the entire premises. Francies Pereira had a son named Andrew and a daughter named Mary who was married to one Boracho. During his life time Francis transferred the tenancy of the entire flat to his son Andrew. He also permitted his daughter Mary to occupy the middle room of the flat along with the members of her family. Francis died in the year 1955. Andrew filed eviction Suit No. 1251/E/61 in the year 1961 against Mary to evict her from the middle room occupied by her and her family. This suit was compromised and a decree was passed in terms of the consent terms. By this compromise, Mary, defendant No. 1, and her husband, defendant No. 2, were accepted as sub-tenants of the room occupied by them. Andrew died in 1971. The present petitioners terminated the tenancy of Mary and her husband by notice dated 10th March, 1979 and filed R.A.E. Suit No. 5204 of 1979 for evicting Mary and her husband from the premises occupied by them. In addition to Mary and her husband, Edward and June were made formal parties presumably as they were not available at the time of filing of the suit for joining in the suit as plaintiffs. The suit for eviction was filed on the ground that the premises were reasonably and bona fide required by the landlord occupation by themselves or by any person for whose benefit the premises were held, within the meaning of section 13(1)(g) of the Bombay Rents Hotel and Lodging House Rate Control Act, 1947. The suit, as filed initially, was only on the ground falling within the meaning of section 13(1)(g). The defendants to the suit resisted the suit by denying that the premises were reasonably or bona fide required by the Landlords. Later on, during the pendency of the suit, the written statement was amended by incorporating paragraph 6-A by which it was pleaded that the defendant Nos. 1 and 2 were joint tenants along with the plaintiffs as they were the heirs and legal representatives of the deceased tenant (Francis) and residing with him at the time of his death. On this ground the defendants claimed joint tenancy and disputed the right of the plaintiffs as landlords to evict them from the premises. It is interesting to note that despite a specific plea of joint tenancy raised by the defendants by which the title of the landlords was disputed, there was no amendment made in the plaint, nor was this fact made a ground for seeking eviction of the defendants.

3. The trial Court, on the pleadings before it, raised the following issues, tried them and recording evidence and answered them as follows :

Issues Findings

1. Do plaintiffs prove that the suit

premises are reasonably and bona

fide required by the landlords for

occupation by themselves or

by any person for whose benefit

the premises are held ? ..... 1) Yes.

2. Do defendants prove that they are

the joint tenants along with the

plaintiffs and as such the suit as filed

against them is not maintainable ? ..... 2) No.

3. To whom greater hardship would

be caused ? ..... 3) To the Defts.

4. Are plaintiffs entitled to the possession

of the suit premises ? ..... 4) No.

5. What decree and what order ? ..... 5) Order as below

for following reasons.

On these finding the trial Court dismissed the plaintiffs' suit. The plaintiffs appealed against the judgment of the trial Court by the Appeal No. 616 of 1984. For the first time in their appeal memo, th

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