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2010 Supreme(Bom) 1277
High Court of Judicature at Bombay
R.C. CHAVAN
Da'Cunha Associates Private Limited
Versus
Dilip Jhangiani & Others
CIVIL REVISION APPLICATION NO.583 OF 2008 WITH CIVIL APPLICATION NO.217 OF 2010
Decided on : 08-09-2010
Amit Mehta i/b. M/s. Mahimtura & Co., Advocates.
For the Respondents:R1 to R4, V.A.Thorat with P.S.Dani, Karim Vakil, A. Dasgupta, Vaibhav Sugadare, Ravi Kadam, Ms Kusum Mourya i/b. Basant Tilokani & Co., Advocates, R5, S.V.Borkar with V.V. Warerkar i/b. Warerkar and Warerkar, Advocates.
Headnote:Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 - Sections 4 and 14-Maharashtra Rent Control Act, 1999, Section 3(1)(b)-Decree of eviction-Exclusion from protection under Act-Applicability of-Exclusion of protection applies to "premises" tenanted to respondent 5/Public Sector Corporation-Not just to ’relationship’ of landlord with tenant/Public Sector Corporation-Decree of eviction liable to be upheld.-Secondly, need of going to object of legislation for the purpose of interpretation of a clause would arise only if there is any ambiguity. In Bhatia Co-operative Housing Society Ltd., the Supreme Court has clearly demonstrated that had the Legislature so desired it could have phrased the clause differently. While enacting Section 3(1)(b) of the Maharashtra Rent Control Act, 1999, the law makers had the benefit of Judgment in Bhatia Co-operative Housing Society Ltd. rendered years ago. It will have to be presumed that the Legislature still chose the same expression for carving out an exclusion because it intended to exclude "premises" and not relationship or an entity. It is settled canon of interpretation the same expression used at different places in the same piece of legislation must be given the same meaning wherever it is used. Accepting the argument of the senior counsel for the applicant would lead to an anomalous situation of the same expression being interpreted differently in two clauses of one sub-section. Therefore, howsoever inconvenient the interpretation might be for the applicant, it has to be held that the exclusion from protection applies to the premises tenanted by respondent No. 5 and not just to the relationship of respondent No. 1 with respondent No. 5.
Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 - Section 13-Suit for eviction-Insufficient identification of suit premises-Licenser of Office No. 9 and Office No. 10 different-Applicant induced as licensee in both premises at different points of time by different licensors-Applicant merged said two premises himself without consent-Suit for eviction filed only for Office No. 9-Applicant’s argument as to identification of property liable to rejected-Decree of eviction liable to be upheld.-The question is not and cannot be as to how the premises appear now-or even after the applicant acquired licences in respect of office premises Nos. 9 and 10. It is not even the applicant’s case that office premises Nos. 9 and 10 were both let to one tenant who inducted applicant as licensee. While respondent No. 5’s predecessor was tenant in respect of suit premises. Office No. 10 was let out to Indian Cotton Mills Federation, who inducted the applicant. Thus, the premises were, when the applicant came to possess them, different. His licensors have not merged into one entity. He is not paying licence fees for both the office premises to respondent No. 5. In these circumstances, it is cheeky of the applicant to cash on his own sin of merging the two premises-which itself is thoroughly impermissible, without the consent of parties concerned-and then to seek to take advantage of such merger. If he has obliterated the distinctive feature which separate the two office spaces, he must suffer consequences of slicing off the suit premises-which will split his office. It is unfortunate that such a plea was raised, without remembering that licence in respect of the two premises are from two different entities, taken at two different points time. Therefore, all the contentions raised in its behalf would have to be rejected.
Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 - Section 14-Maharashtra Rent Control Act, 1999, Section 25-Transfer of Property Act, 1882, Section 111(c)- Eviction-Decree of-Ejectment of tenant on non-personal ground and concerns with premises-Landlord can sue tenant and sub-tenant together-Decree of eviction passed against tenant alongwith applicant sub-tenant deserves to be upheld.-There can be no doubt that in view of provision of Section 14 of the Bombay Rent Act, (corresponding to Section 25 of the Maharashtra Rent Control Act, 1999) upon determination of interest of a tenant in the premises, a sub-tenant would become direct tenant of the landlord-but only in certain circumstances and not always. As held in Anandram’s case 2000(1) All MR 335 (SC) by the Supreme Court (approving a paragraph from Judgment of the High Court), if ejectment is sought on grounds which are not personal to the tenant, but which concern the premises themselves, a landlord can sue for ejectment of tenant and sub-tenant together, as the landlord has done in the present case. Since protection of Rent Act does not apply to the premises, the relationship will be governed by provisions of Transfer of Property Act and under Section 111(c), termination of tenancy brings about termination of sub-tenancy as well and therefore the decree for applicant’s ejectment cannot be faulted.
Civil Procedure Code, 1908 - Order VII, Rule 3-Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947, Section 13-Pleadings-Suit for eviction-Failure of plaintiff to give description of property-Affidavit of plaintiff about description of premises treated as pleadings-Defendant-licensee put to notice-He cross-examined Architect of landlord-Tendered evidence of his own Architect who too was cross-examined-Objection valid only to protract proceedings-Plaintiff’s affidavit rightly treated as pleading.-There can be no doubt that an objection to evidence illegally admitted would be raised in a revision. But it is unfortunate that the applicant seeks to raise a technical objection in the context of what has been elaborated in the preceding paragraph. Pleadings are intended to put parties to a notice as to what case is being put up, to avoid parties being taken by surprise. Ideally, the landlord ought to have raised the pleas in the plaint in the plaint or could have raised them by appropriate amendment. But this is a mere irregularity and not an illegality, since applicant was not only put to sufficient notice but had cross-examined landlord’s architect and tendered his own architect’s evidence, who too was cross-examined on behalf of adversaries The grievance of the applicant is that since affidavit dated 4th September, 2004 filed by plaintiff was treated as pleading, he could not be cross-examined.
First, it is not in dispute that plaintiff is a subsequent purchaser who could say about the situation of office Nos. 9 and 10 on seeing them, just as anyone else could do Therefore, his word on the subject would not be of any special value. And the parties had examined two experts who gave contradictory conclusions on the question. Therefore, it seems that the objection is really being raised only to protract the proceedings and has no substance.
This Civil Revision Application is directed against Judgment and Order passed by the Appellate Bench of Court of Small Causes reversing Judgment of the Trial Judge dismissing landlord's suit and granting decree of applicant's ejectment.
2. Facts which arematerial for deciding this Civil Revision Application are as under:-
The Respondent Nos.1 to 4 (original Plaintiffs) are the owners of the property known as “Elysium Mansion”, 7, Walton Road, Colaba, Mumbai - 400 005. Premises known as Office No.9 on the West wing of 4th floor of said building admeasuring 970 square feet are the subject matter of these proceedings. They were let out to Sterling General Insurance Company Limited. On 18th June, 1969 said Sterling General Insurance Company Limited gave these premises on licence to the present applicant. On 30th October, 1969, the applicant claims to have acquired from Indian Cotton Mills Federation a licence in respect of even the remaining 508 square feet of the West wing on the 4th floor known as Office No.10 (not a subject matter of these proceedings) and thus occupies in all 1475 square feet area on the West wing, which, according to Applicant, constitutes one premises.
3. Respondent No.5 (original Defendant No.1) - Oriental Insurance Company Limited is successor of Sterling General Insurance Company Limited and is a Public Sector Corporation having a paid up share capital of more than Rs.100,00,000/-, and therefore in view of provisions of Section 3 of the Maharashtra Rent Control Act, 1999 (hereinafter referred to as 'Maharashtra Rent Act') does not have the protection of the Rent Act.
4. The Plaintiffs, therefore, filed a suit before the Court of Small Causes for ejectment of Applicant, who was in occupation, and the Defendant No.5 -Oriental Insurance Company Limited, the tenant, from premises known as Office No.9. The learned Trial Judge upheld the Applicant's contention that since applicant was not shown to be an entity excluded from protection of the Rent Act, a decree could not be passed against it, and dismissed the suit. The Appellate Bench reversed this by its impugned Judgment.
5. I have heard the learned Senior Counsel for Applicant as well as the Respondent Nos.1 to 4 -the landlords. The decree is assailed on three counts : first, that the decree is in- executable, as it is in respect of property which is not sufficiently identifiable; secondly, the pleas in plaint were not sufficiently clear on identification of suit premises & the Plaintiff's affidavit dated 4th September, 2004 was construed as a pleading without affording to applicant an opportunity to cross examine the deponent; and lastly and most importantly, that the Appellate Bench erred in holding that Applicant did not have the protection of Rent Act, misconstruing the provisions of Section 3 of the Maharashtra Rent Control Act, 1999. The learned Senior Counsel for the Applicants submitted that even if Respondent No.5, the original tenant, is held to have no protection of the Rent Act, since applicant was a licensee, who was deemed to be tenant under Section 15A of the Bombay Rents, Hotel And Lodging House Rates Control Act, 1947 (hereinafter referred to as 'Bombay Rent Act') upon termination of his tenancy, he would become direct tenant of the landlord under Section 14 of the Bombay Rent Act. Once the applicant is held to be the tenant of the landlord, since applicant is not excluded from protection of the Maharashtra Rent Act by operation of Section 3 of the Maharashtra Rent Act, applicant's ejectment would have to be sought only by invoking provisions of the Maharashtra Rent Act.
6. The learned Counsel for both the parties relied on a number of Judgments in support of their respective contentions.
7. First, I would deal with the contention that a decree could not be passed because the premises are not sufficiently identifiable. For this purpose the learned Senior Counsel for the Applicant relied on Judgment in NAHAR SINGH Versus HARNAK SIN
