Gordhandas Lalchand vs Kubchand Tirthdas Tailor & others

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2004 Supreme(Bom) 888

IN THE HIGH COURT OF BOMBAY
Daga V.C., J.
Gordhandas Lalchand .... Petitioner.
Versus
Kubchand Tirthdas Tailor others.... Respondents.
Writ Petition No. 4323 of 1999, decided on 29-6-2004.
Advocates appeared :
A.J. Rana with Neeta Parikh, for petitioner.
Niranjan Pandit with Ram V. Singh, for respondents.

Headnote:Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 13(1) and 25 - Execution of decree for possession. - Where during pendency of execution proceedings, statutes amended with retrospective effect, decree of possession becomes unexecutable. - The first point having answered against the petitioner and in favour of respondent Nos. 4 and 5, it is really not necessary to go into legality and validity of the decree under execution. Assuming for the sake of argument that the decree is a legal and valid decree obtained and the same can be validly executed by initiating execution proceedings, but during the pendency of execution proceeding statute having been amended with retrospective effect the decree has become unexecutable. The decree even if legal, cannot be allowed to be executed in view of the retrospective amendment to the Bombay Rent Act. The executing Court can always take into account such change in law during the pendency of the execution proceedings so long as judgment debtor is in possession of the property which is a subject matter of decree. All questions, which can be gone into in a suit can also be gone into in the said proceedings. It is open to an obstructionist in proceedings started under Order XXI, Rule 97 to raise a contention that decree being a nullity is not liable to be executed. This is so despite the fact that he cannot establish his independent right to possession. Matter can be investigated under Order XXI, Rule 101, Mani Nariman v. Phiroz, 1991 Mh LJ 376.
Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Section 13-A(2) - Eviction of licensee. - Absence of written agreement regarding lease and licence by itself would not defeat application filed by landlord under Section 13-A(2) of Act for eviction of tenant. - The applicant-landlord filed an application under Section 13-A(2) of the Bombay Rent Act, for eviction of the petitioner licensee claiming that suit premises were given on lease and licence basis by oral agreement for 11 months. Even in the absence of a written agreement, the relationship of licensor and licensee can be decided on the basis of the conduct of the respective parties and absence of such a written agreement by itself would not defeat the application filed under Section 13- A(2) of the Bombay Rent Act.
Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Section 15-A - Entitlement to protection under Section 15-A of Act. - Where on date of filing of suit for possession of premises, sub-tenants were in actual possession and occupation of suit premises therefore sub-tenant entitled to claim protection of Section 15-A of Act. - The case of the plaintiffs was that the suit premises were sub-let by creating unlawful assignment in favour of the defendant Nos. 2 and 3 on 25.2.1965 when the property was conveyed to the defendant Nos. 2 and 3 and that they were allowed to claim to be assignees of the rights of defendant No. 1 (tenant). There is no dispute that the defendant Nos. 2 and 3 were and are in actual possession of the suit premises since. Therefore, the defendant Nos. 2 and 3 shall be entitled to claim protection under Section 15(2) which became effective from 1.2.1973. AIR 1990 SC 2053; AIR 1976 SC 2229 - Referred. 1991 (1) Mh LJ 34 : 1990 (3) BCR 511 - Relief on.

JUDGMENT - DAGA V.C., J.: - This petition challenges the order dated 23-2-1999 passed by the Appellate Bench of the Small Causes Court, Mumbai, whereby the appeal preferred by the respondent Nos. 4 and 5 obstructionists came to be allowed and the obstructionists notice came to be set aside.

THE FACTS :

The facts giving rise to the present petition in nutshell are as under:

2. The petitioner is the owner of a property known as "Sudama House" situated at Kandivali, Mumbai. Respondent No. 1 was his monthly tenant occupying a portion of an otla (i.e. verandah admeasuring (6 x 3') by the side of shop No. 6 located in the said 'Sudama House'.

3. The respondent No. 1 was carrying on his tailoring business from the said Otla (hereinafter referred to as "the suit premises") provided with electricity supply. He had paid rent till May, 1964. He, thereafter, failed and neglected to pay any rent. Respondent No. 1 left Mumbai and went to Godhara (Gujarat), his native place sometime in the year 1963. He, while leaving Mumbai, assigned his tenancy rights in favour of respondent Nos. 2 and 3 and put them in possession of the suit premises. Since rent was not paid for several months and respondent Nos. 2 and 3 were inducted illegally as sub-tenants, petitioner terminated tenancy of respondent No. 1 by notice dated 18-1-1965 issued under section 106 of the Transfer of Property Act. The first notice could not be served on respondent No. 1 at Mumbai since he had moved to Godhara. However, another notice sent to respondent No. 1 was duly received by him. Notices were also served on respondent Nos. 2 and 3. None of the notices was complied with by the tenant as such eviction suit bearing RAE Suit No. 1239 of 1966 came to be filed against all the respondents on 25-2-1966. Respondent No. 2 died on 2-11-1965. His heirs were not brought on record. A joint written statement was filed by respondent Nos. 1 and 3. In the said written statement it was contended that defendant No. 1 had transferred his business of selling books in favour of respondent Nos. 2 and 3 as a going concern under a deed of assignment dated 25-2-1965 as such they were protected under section 15 of the Bombay Rent Act.

4. With the above pleadings on record, issues were framed and suit was posted for trial. Original plaintiff-landlord herein led his evidence in consonance with his plaint pleadings. The respondent No. 1 did not enter the witness box. However, respondent No. 3 in his evidence stated that he was doing business of selling books jointly with respondent No. 1.

5. The learned Judge of the Small Causes Court by his judgment and order 27-8-1971, decreed the suit, inter alia; holding that the theory of assignment introduced in defence was an afterthought and that assignment deed was bogus. Respondent No. 3 did not prefer any appeal against the said judgment, though respondent No. 1 filed an appeal which was dismissed on 26-3-1981.

6. The petitioner initiated execution proceedings. He tried to execute the decree against the respondent Nos. 4 and 5 herein; who claimed to be in possession being son and grand-son, the legal heirs of the original respondent No. 2, who died on 2-11-1966. They obstructed the warrant of possession and claimed to be in possession of the suit premises.

7. The petitioner took out Obstructionist Notice bearing B.N. No. 177/1981, against respondent Nos. 4 and 5 for removal of obstruction caused by them. The said notice was made absolute by the executing Court by an order dated 24/31-1-1995 and obstruction was ordered to be removed. Respondent Nos. 4 and 5 preferred appeal being Appeal No. 84 of 1995, which was allowed by the Appellate Bench of the Small Causes Court by an order dated 23-2-1999, holding that (a) suit against defendant No. 2 had abated (b) the findings were given by the trial Court regarding validity of deed of assignment holding that it was not binding on respondent No. 2 as the suit qua him had abated (c) the decree passed against respondent Nos. 1

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2004 Supreme(Bom) 888

IN THE HIGH COURT OF BOMBAYDaga V.C., J.Gordhandas Lalchand .... Petitioner.VersusKubchand Tirthdas Tailor others.... Respondents.Writ Petition No. 4323 of 1999, decided on 29-6-2004.Advocates appeared :A.J. Rana with Neeta Parikh, for petitioner.Niranjan Pandit with Ram V. Singh, for respondents.

Cases Referred (3)

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