Usha Harshadkumar Dalal vs Manibhai Jhaverbhai Patel and others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1997 Supreme(Bom) 124

IN THE HIGH COURT OF BOMBAY
A.P. Shah, J.
Usha Harshadkumar Dalal ..... Plaintiff.
Versus
Manibhai Jhaverbhai Patel others ...... Respondents.
Chamber Summons No. 323 of 1996 in Suit No. 120 of 1978 , decided on 10-3-1997.
Advocates appeared :
R.A. Kapadia with Chirag Balsara i/b Kanga Co., for the plaintiff
Dhimant Malvi of Eastley Lam Co., for defendant Nos. 1, 3 to 6, 9, 10 12.
Milind Sathe with C.D. Patel i/b Harish Joshi Co., for defendant Nos. 2, 7, 8, 11 and 13 to 26.
D.D. Madon i/b Mulls Mulla, for respondent Nos. 1 and 2.
K.J. Presswala i/b Mulla Mulla, for respondent No. 3.

Headnote:Section 28-See Civil Procedure Code. Order XL. Rule 1(2).
       Order XL, Rules 1 and 3 Chamber summons taken out by defendant to hand over possession of premises-Receiver taking only formal possession and actual possession-The matter Is to be resolved before the appropriate forum under Section 28 of the Rent Act Present chamber summon Is not maintainable-The proper course Is to file a suit In a Small Cases Court.
       Order XL, Rule 1(2)-Bombay Rents Hotel and Lodging House Rates Control Act (57 of 1947), Section 28-Appolntment of receiver In suit for partition and separate possession-Possession taken by plaintiff after appointment If receives-Issuance of chamber summons for eviction of sub-tenant-Recourse of proper proceeding If not followed order of eviction-Illegal-issuance of chamber summons quashed being non-presentation In proper forum i.e. Small Cause Court under Section 28.- The Court becomes custodia legis of the properties in suit in respect of which Receiver is appointed. Such de jure possession of the Court through its Receiver, however, does not bring above vesting of the properties in the Receiver or in the Court free from encumbrances even pendente lite. Despite appointment of a Receiver rights and obligations of third parties in respect of properties in custodia legis remain unaffected. Where a Receiver appointed by the Court is in actual physical possession of a property, no one, whoever he may be, can disturb the possession of the Receiver and the Court may hold such person who disturbs the Receiver possession as guilty for committing contempt of Court. A man who thinks he has a right paramount to that of Receiver must, before he takes any step of his own motion apply to the Court for leave to assert his right. Grant of leave in such case is the rule and refusal to grant leave is exception.
       If a tenant resorts to un-authorised and illegal activity in respect of tenanted premises when such premises is in custodia legis. for prevention of such illegal and un-authorised activities not consistent with any right flowing from the incidence of the his tenancy, it may not be necessary to institute a suit for preventing the tenant from such illegal activities, but the Court. being apprised by the receiver of such illegal activities of a tenant, thereby obstructing the Courts overall supervision and concern for preserving or maintaining the property in custodia legis, will be within its right to pass suitable order or direction against the tenant for prevention of illegal and un-authorised activities after giving the tenant reasonable opportunity to place his defences against allegation of unlawful and illegal activity.
       This Court has appointed Receiver in 1978 for the limited purpose of collecting rent and other income from the property and disbursing the municipal taxes and other outgoings. In pursuance of this order the Receiver has taken only formal possession and is recovering rent and other income and also discharging the taxes and other liabilities in respect of the properties. There is no dispute that the respondent No. 1 is a tenant of the 6th floor premises. The respondent No. 1 is not a party to the suit. During the pendency of the suit the respondent No. 1 is reconstituted as the respondent No. 2 and according to the respondents from 1989 the company is conducting a business centre in the premises. According to the respondent Nos. 1 and 2 this is a perfectly legitimate activity and no provision of the Rent Act breached by them. On the other hand the defendants and. the plaintiff claim that this is a subletting and in any event it amounts to unlawful transfer of the tenancy lights within the meaning of Section 13(1)(c). In such a situation prior leave of the Court is necessary other• wise it would amount to interfering with the possession of the Court. If stern action is not taken in such cases the very object of preservation of the property would be frustrated as at the conclusion of the litigation the parties would be deprived of its light even if the suit is decreed. Undoubtedly under Section 15 of the Bombay Rent Act creation of sub• lease is prohibited. Section. 13(1)(e) then provides a ground for eviction if the tenant has unlawfully transferred assigned or sub let the premises. But the Rent Act also provides a machinery for adjudication of the inter se dispute between the landlord and the tenant. The tenant is not liable to be evicted unless a ground under the Act is established before the appropriate forum. In the present case which arose in the City of Bombay the appropriate forum is the Small Causes Court. The position is not changed merely because the Court has appointed a Receiver in respect of the property for overall supervision of the property. There is a serious dispute between the parties whether conducting of business centre would amount to subletting in the facts and circumstances of the case. The respondents say that the respondent No.2 is merely running a business centre where the respondent No. 3 is recipient of certain services. The possession continues and is with the respondent No.2 and. therefore any question of sub lease or transfer of tenancy rights will not arise. On the other hand the landlords claim that the so-called business centre is a sham and bogus agreement and the real intention is to create a sub-lease. This controversy will have to be resolved before the appropriate forum under Section 28 of the Rent Act. The said section confers exclusive jurisdiction on the Small Causes Court. In these circumstances it would not be proper for this Court to determine the dispute in a chamber summons. Moreover, any finding recorded by this Court in the behalf would directly affect the tenants right under the Bombay Rent Act. Such a finding would certainly entail eviction of the tenant. Therefore, the proper course is to me a suit in the Small Causes Court.

JUDGMENT - A.P. SHAH, J. :---This chamber summons is taken out by the defendant Nos. 2, 7, 8, 11 and 13 to 26 to direct the respondent Nos. 1 to 3 to handover possession of the premises in their occupation on the 6th floor of the building known as "Shreeniketan", situate at Dr. Annie Besant Road, Worli, Mumbai, on the ground that the respondent No. 1 has created illegal sub-tenancies in favour of the respondent Nos. 2 and 3. In the alternative the said defendants are claiming for a direction to the Receiver to forcibly dispossess the respondents from the said 6th floor premises, if necessary, with the help of the police. The facts leading to this chamber summons are few and may be shortly stated :

2.The present suit is for partition and possession of the property bearing plot No. F in Shiv Sagar Estate along with the building 'Shreeniketan' standing on the said plot. By order dated 13th February, 1978 passed in Notice of Motion No. 115 of 1978, the Court Receiver, High Court, Bombay was appointed Receiver of the said property with powers to collect the rent, manage the properties, to make all legal disbursement such as Municipal taxes and other outgoings. On 24th July, 1978, by consent of all parties in the suit, the aforesaid order was confirmed and the notice of motion was disposed of. Pursuant to the order passed by this Court, the Court Receiver, High Court, Bombay, has taken formal possession of the property and is collecting rent and other income from the said property and has been making disbursement such as Municipal taxes, water charges, electricity charges and other outgoings. It is a common ground that prior to the appointment of the Court Receiver, the respondent No. 1 Dolphin Fisheries Private Limited was in occupation of the premises on the 6th floor as a tenant.

3.Now the present chamber summons has been filed by the plaintiff alleging inter alia that the respondent No. 1 has illegally sub-let the 6th floor premises by inducting Dolphin Fisheries and Trading Private Limited, who are conducting a business centre in the premises and the respondent No. 3 Megha Visa Engineering and Petrochemicals Limited is allowed to occupy the premises without any leave or order of this Court. In a further affidavit filed on 19th February, 1997, it is alleged by the plaintiff that the 3rd respondent Megha Visa Engineering and Petrochemicals Limited has been illegally inducted after the appointment of the Court Receiver and this is tantamount to interfering with the possession of this Court and the course of justice. The plaintiff has therefore prayed that the respondent Nos. 1 and 2 as well as the respondent No. 3 should be evicted from the premises.

4.In their affidavit in reply the respondents have pointed out that the respondent Nos. 1 and 2 are not separate entities but are one and the common concern. The original name of the company was Dolphin Fisheries Private Limited. Now the name of the company has been changed to Dolphin Fisheries and Trading Private Limited on 19th November, 1984. Thus there is no sub-letting or parting with possession by the respondent No. 1 in favour of the respondent No. 2. The respondents have stated in their affidavit that the 2nd respondent has been running the business centre in the premises since 1987 and an agreement was entered into between the parties on 8th June, 1989. The respondent No. 2 agreed to render to the respondent No. 3 i.e., Megha Visa Engineering and Petrochemicals Limited office facilities, amenities, finances and services as stated in the agreement for a period of two years from 1st September, 1989 on the terms and conditions mentioned in the said agreement. The respondent No. 2 has merely granted certain facilities and amenities to the 3rd respondent for a limited period of time. Under the original agreement the period fixed was two years. It was renewed from time to time. Finally under agreement dated 27th September, 1995 the business centre arrangement has been a

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