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2009 Supreme(Bom) 1433
IN THE HIGH COURT OF BOMBAY
(Smt. Nishita Mhatre, J)
VIRENDRA DHIRUBHAI SHAH and others Applicants.
Versus
NATWAR PAREKH Respondent.
Civil Rev. Appln. No. 232 of 2008
Decided on 3-11-2009. (Bombay)
Advocate Appeared
For applicants: N B. Shah
For respondent: O. K. Shaikh
Headnote:Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 12(2) and 15-A - Eviction of tenant - Suit for - Tenant-defendant-1 inducted defendant-2 in suit premises in 1965 - Unlawful subletting alleged by landlord-plaintiff - Rent paid by defendant-2 to landlord directly - Receipts issued in name of defendant-1 - Suit dismissed by trial Court - Appellate Court reversed findings with regard to service of notice under Section 12(2) of Act - Civil Revision Against - Held - Licensees, in occupation of premises prior to 1973 entitled to protection under Section 15-A of Act in view of amendment brought in effect from 1.2.1973 - Defendant-2, applicants inducted into premises by defendant-1 (original tenant) in 1965 - Notice under Section 12(2) of Act served on defendant-1 and not on defendant-2, applicants - Appellate Court committed an error in concluding appellants not tenants - Impugned order set aside - Civil Revision application allowed. - On a perusal of the evidence it is apparent that the suit premises were let out by the landlord to Madhuben prior to 1965. There is evidence on record to indicate that Dhirubhai was inducted into the premises by Madhuben. In fact, she had pleaded so before the City Civil Court in her plaint. Thus, the defendants were in occupation of the suit premises. Undisputedly, unauthorised and unlawful subletting of premises would entail eviction from the landlord under Section 13(1)(e). However, all licensees who were in occupation of premises prior to 1973 were entitled to protection in view of the amendment which was brought into effect from 1st February 1973. The term "licensee" has been defined in the Rent Act under Section 5(4-A) and includes any person in occupation of premises given for a licence fee or a charge. Section 15-A provides thus :
"15-A. Application fees. - An application for recovery of possession of premises to be made by the landlord to the Competent Authority under Part 11-A shall be affixed with a Court Fee Stamp of "one hundred rupees". This rule shall be, and shall be deemed always to have been, inserted."
Thus, any person who was a licensee on or before 1.2.1973 is protected under the provisions of Section 15-A. The rent was being paid by Dhirubhai directly to the landlord and the latter had accepted the same without demur. In such a case, the applicants would be entitled to protection under Section 15-A of the Act.
Apart from this, the notice admittedly was served to Madhuben and not on the applicants herein. Therefore, it could not be said that the applicants had committed a breach in payment of rent. There is evidence on record to indicate that the landlord had stopped accepting rent from them from 1989 although he had accepted it from 1965. No suit for recovery of possession can be instituted by a landlord on the ground of non payment of rent unless a notice under Section 12(2) has been issued and served on the tenant as required under Section 106 of the Transfer of Property Act, 1882. Admittedly, the notice has not been served on the applicant and therefore, the Civil Revision Application must be allowed. The Appellate Court has committed an error in concluding that the applicants are not tenants in the suit premises and, therefore, the order impugned in this Civil Revision Application is set aside.
The Civil Revision Application has been preferred against the judgment and order of the appellate bench of the Small Causes Court in Appeal No. 414 of 2003. By this order, the Small Causes Court has decreed • the suit filed by Respondent No. 1 on the ground that the defendants before the court were in default of payment of rent and also on the ground that the applicant herein was in unlawful occupation of the suit premises being a flat in Parekh building in Sion, Mumbai.
2. The respondent landlord filed a Suit bearing RAE Suit No. 923/2487 of 1991 before the Small Causes Court, Mumbai against one Madhuben Pravinchandra Shah i.e. Defendant No. 1 and the father of the Applicants i.e. Defendant No.2. Madhuben was the sister-in-law of Defendant No.2. It appears that the suit premises had initially been let out to Madhuben by the landlord. In 1965, she inducted Dhirubhai i.e. Defendant No. 2 into the suit premises. It appears that Madhuben later left for Secunderabad since her husband had set up a business in that place. Thus, from 1965 she was not staying in the suit premises. The rent was being paid by Dhirubhai to the landlord directly. However, the rent receipts were issued in the name of Madhuben.
3. Madhuben had filed a suit against Dhirubhai in the City Civil Court, being Short Causes Suit No. 9824 of 1988. This suit was filed for an injunction to restrain Dhirubhai from disturbing her lawful possession of the suit premises. It appears that Dhirubhai then filed his written statement and a counter-claim in which it was contended that he had been residing in the premises since 1965 with his immediate family and that therefore he was entitled to exclusive possession of the suit premises. He therefore prayed for an injunction against Madhuben, permanently restraining her from claiming any right, title or interest in the suit premises. This suit was compromised and consent terms were recorded before the City Civil Court. These consent terms were submitted in Court on 10-10-2001.
Under these terms, Madhuben agreed that she had not paid any rent to the landlord in respect of the suit premises since 1965 and it was the defendants in that suit who were bound and liable to pay the same. She also acknowledged that the defendants had paid rent to the landlord by issuing cheques. The plaintiff Madhuben, therefore, abandoned her right to the said property and agreed that it would be in the sole and exclusive possession of the defendants i.e. the applicants herein.
4. The present suit before the City Civil Court was filed in 1991 by the landlord against both Madhuben as well as Dhirubhai. Madhuben did not contest the suit. Dhirubhai, and after his death his heirs, filed pleadings in the trial Court contesting the claim made by the plaintiff. The applicants contended that they were inducted into the suit premises as relatives of Madhuben. It was contended that they were in permissive possession of the suit premises. It was also pleaded that "the original defendant was the lawful sub-tenant of the suit premises under the provisions of the Bombay Rent Control Act as amended in 1987".
5. Evidence was led before the trial Court by the landlord to prove his case of unlawful subletting, default in payment of rent and arrears of rent, unauthorized construction and bona fide requirement of the suit premises. One of the applicants who is the daughter of the original defendant No.2 i.e. Dhirbubhai led evidence on behalf of the defendants.
6. The trial Court by its order dated 31-10-2002 held that the plaintiff had failed to prove that the defendant refused or neglected to pay the arrears of rent for more than six months. It was further held that the plaintiff had failed to prove that the defendant had been duly served with the demand notice under section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act 1947 (for short, 'Bombay Rent Act') and therefore the case of the plaintiff that the defendant was a defaulter had not been esta
