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2015 Supreme(Bom) 1376
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
M. S. SONAK, J.
Viratna Vidyabanich - Petitioners
Versus
Mohan J. Jhangiani - Respondents
Writ Petition No. 3814 of 1997
Decided On : 08-09-2015
Advocate Appeared:
Mr. Rajesh Patil for the Petitioners
Mr. Vineet B. Naik, Sr. Advocate a/w. Sagar A. Rane i/b Mr. Kalpesh Joshi for the Respondent
The main legal point established in the judgment is that the original tenant and his son were not entitled to diplomatic immunity under Section 86(1) of the CPC, and the suit was not infirm for non-joinder of necessary parties. The Court also found that the reasonable and bonafide requirement was not eclipsed and that there was no change of user. The Court further held that the petitioners failed to establish their entitlement to the benefit of legal provisions related to the determination of standard rent and deposit of rents.
Headnote:
Thangyoo Vidyabanich - Eviction Suit - Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Section 86(1) of the Civil Procedure Code, 1908 - Section 12(2) and 12(3) of the Rent Act
Fact of the Case:
The petition challenges the eviction judgments and decrees ordering the eviction of the tenants from the suit premises on the grounds of default in payment of rents, change of user, and reasonable and bonafide requirement. The original tenant, Thangyoo Vidyabanich, passed away during the pendency of the suit, and his legal representatives were brought on record. The Trial Court framed several issues, including default in payment of rents, change of user, and reasonable and bonafide requirement. The Trial Court decreed the landlord's suit, and the Appeal Court dismissed the appeal. The petitioners raised various contentions, including lack of consent from the Central Government for the suit, non-joinder of necessary parties, and perversity in the decree on the ground of reasonable and bonafide requirement.
Finding of the Court:
The Court rejected the contentions raised by the petitioners, including the lack of consent from the Central Government, non-joinder of necessary parties, and perversity in the decree on the ground of reasonable and bonafide requirement. The Court held that the original tenant and his son were not entitled to diplomatic immunity under Section 86(1) of the CPC. The Court also found that the suit was not infirm for non-joinder of necessary parties and that there was no perversity in the concurrent findings of fact recorded by the two Courts. The Court further held that the reasonable and bonafide requirement was not eclipsed and that there was no change of user. The Court also found that the petitioners failed to establish their entitlement to the benefit of legal provisions related to the determination of standard rent and deposit of rents. The Court dismissed the petition with no order as to costs.
Issues: The issues included lack of consent from the Central Government for the suit, non-joinder of necessary parties, perversity in the decree on the ground of reasonable and bonafide requirement, and entitlement to the benefit of legal provisions related to the determination of standard rent and deposit of rents.
Ratio Decidendi: The Court held that the original tenant and his son were not entitled to diplomatic immunity under Section 86(1) of the CPC. The Court also found that the suit was not infirm for non-joinder of necessary parties and that there was no perversity in the concurrent findings of fact recorded by the two Courts. The Court further held that the reasonable and bonafide requirement was not eclipsed and that there was no change of user. The Court also found that the petitioners failed to establish their entitlement to the benefit of legal provisions related to the determination of standard rent and deposit of rents.
Final Decision: The Court dismissed the petition with no order as to costs.
1] This petition questions the judgments and decrees dated 25 January 1990 and 27 June 1997, made by the Trial Court and the Appeal Court ordering the eviction of the petitioners (tenants) from the suit premises inter alia, on the ground of default in payment of rents, change of user and reasonable and bonafide requirement.
2] Some time in the year 1969, predecessor-in-title of the respondents (landlord) inducted Thangyoo Vidyabanich, predecessor-in-title of the petitioners (tenant), as the tenant in respect of Flat No.C5, Block No.2, Basant Park Cooperative Housing Society, Chembur, Bombay-400 071 (suit premises). The landlord-Mohan Jhangiani by notice dated 28 April 1977, alleged default in payment of rents, demanded arrears and terminated tenancy. The landlord, thereafter instituted R.A.E. & R. suit No. 938/5489 of 1977 in the Court of Small Causes at Bombay (Trial Court) seeking recovery of possession, inter alia, on the ground of default in payment of rents, change of user and reasonable and bonafide requirement. All these are grounds available to a landlord to seek eviction of a tenant under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 ('Rent Act'). Thangyoo Vidyabanich filed written statement in July 1978, denying the allegations in the plaint. Thangyoo Vidyabanich expired on 12 May 1980, during pendency of the suit. Upon his demise, his two sons Viratna Vidyabanich and Sumitra Vidyabanich and daughter Conchit Vidyabanich were brought on record, as his legal representatives. The record indicates that since there was some difficulty in service of notice upon son Sumitra, his name was deleted from the array of defendants.
3] Based upon the pleadings of parties, the Trial Court framed the following issues :
Issues:
1. Does plff. prove that the deft. remained in willful arrears of compensation of the suit premises for more than six month next before the suit
2. Does plff. further prove that the deft. changed the User of the suit premises from residence to business ?
3. Does he further prove that he requires the suit premises for his personal, bonafide and reasonable use and occupation ?
4. What is due to the plff. from the defendant towards the arrears of compensation ?
5. Is the suit as framed and filed maintainable ?
6. Does Deft. prove that he paid the compensation till March, 1967 and the agreed amount of monthly rent of the suit premises was fixed at 150/?
7. Does deft. further prove that the suit premises were initially given to him by the plff. for the purpose of running a guest house for the students coming from abroad ?
8. In plff. entitled to vacant and peaceful possession of the suit premises from the deft. ?
8a. Whether this Court has jurisdiction to entertain and try the present suit ?
8b. Whether the deft. No.1 proves that the suit of the plaintiff is hit by sec.86 of the C.P.C. as contended in para 5 of the W.S. ?
8c. Whether the deft. Nos. proves that the suit is bad for non-joinder of necessary parties as contended in para 5 of the Additional W.S. ?
8d. Whether the deft. No.1 further proves that the suit notice is not valid one ?
8e. What should be the standard rent of the suit premises ?
9. What order ?
4] The evidence was led by both parties. Mohan Jhangiani as plaintiff and Viratna Vidyabanich, son of Thangyoo Vidyabanich as defendant examined themselves. The Trial Court by judgment and decree dated 25 January 1990 decreed the landlord's suit. Appeal No. 208 of 1990 instituted by Viratna Vidyabanich was dismissed by the Division Bench of the Small Causes Court (Appeal Court) on 27 June 1997. Hence, present petition by Viratna Vidyabanich.
5] During pendency of this petition, the respondent Mohan Jhangiani (original plaintiff) expired and his legal representatives have been brought on record. Similarly, the petitioner-Viratna Vidyabanich also expired and his legal representatives have been brought on record. The petitioner, by order dated 21 February 2012 was granted leave to amend the written
