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1980 Supreme(Goa) 8
Goa High Court
K. M. MISHRA, ADDL, J.C.
Pelajia Araujo and another - Appellant
Versus
Monica Purificacao de Souza - Respondents
First Appeal No. 92 of 1977
Decided On : 23 June 1980
Manuel Nazare, for Appellants; V.M. Patkar, for Respondent.
In the absence of any contrary provision in the Rent Act, the statutory tenants have interest in the premises which is heritable and assignable.
Headnote:
RENT ACT - TENANCY RIGHT - HERITABILITY - GOA, DAMAN AND DIU (BUILDINGS, LEASE RENT AND EVICTION) CONTROL ACT, 1968 - SECTION 2(I) - MADHYA PRADESH ACCOMMODATION CONTROL ACT, 1961 - SECTION 14 - INTERPRETATION - EFFECT ON COURT'S DECISION - CIVIL COURT JURISDICTION - EVICTION SUIT - MAINTAINABILITY.
Fact of the Case:
Plaintiff filed a suit for eviction of defendants from a house, claiming that the tenancy right acquired by the deceased tenant was not heritable under the Rent Act and hence the defendants had no right to resist eviction. The defendants contended that the tenancy right was heritable and that they were protected from eviction under the Rent Act.
Finding of the Court:
The court held that the tenancy right acquired by the deceased tenant was heritable under the Rent Act, as the definition of tenant in the Act treated at par a contractual as well as a statutory tenant and the Act was silent about heritability and assignability of statutory tenancy. The court relied on the Supreme Court decision in Damadilal v. Parashram, which held that in the absence of any contrary provision in the Rent Act, the statutory tenants have interest in the premises which is heritable and assignable.
Issues: 1. Whether the tenancy right acquired by the deceased tenant was heritable under the Rent Act? 2. Whether the defendants had a right to resist eviction?
Ratio Decidendi: The court held that the tenancy right acquired by the deceased tenant was heritable under the Rent Act, as the definition of tenant in the Act treated at par a contractual as well as a statutory tenant and the Act was silent about heritability and assignability of statutory tenancy. The court relied on the Supreme Court decision in Damadilal v. Parashram, which held that in the absence of any contrary provision in the Rent Act, the statutory tenants have interest in the premises which is heritable and assignable.
Final Decision: The court allowed the appeal, set aside the judgment and decree passed by the trial court, and held that the suit filed for the eviction of the appellants was not maintainable in the Civil Court.
2. It is not in dispute that the plaintiff had entered into a contract with the husband of the first defendant sometime on 29-11-19 in respect of occupation of the house in question. This lease of the house was being successively renewed up to the date of the enforcement of the Goa, Daman and Diu (Buildings, Lease Rent and Eviction) Control Act, 1968, for short, to be called "the Rent Act". The husband of the first defendant died on 7-12-1974. On the ground that under the Rent Act after the death of the tenant no right survives in favour of the legal representatives (defendant No. 2) of the deceased tenants, the plaintiff served the notice dated 16-12-1974 on defendant No.1 to vacate the house. The defendant No.1 instead of vacating the house however remitted the rent by M. O. but it was refused by the plaintiff. Thereupon the plaintiff filed the suit for relief of eviction of the defendant from the suit-house as earlier said. In the suit Rs. 4,750/- were claimed as mesne profits.
3. The suit was contested on two grounds :-
(1) The tenancy right which Thomas Elias Julio Araujo has acquired devolved on his heirs, the same being heritable within the meaning of the Rent Act. They thus being tenants in occupation of the suit premises were not liable for eviction and the suit in the Civil Court for their eviction was not maintainable too.
(2) Alternatively if for any reason the defendants could not be treated as tenants, they should be considered as mundkars in view of Section 2(p) of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975, for short, to be called "the Mundkars Act" in which case also the Civil Court would have no jurisdiction. The right to the plaintiff to claim mesne profits was also disputed.
4. The learned trial Court having found that tenancy right acquired by Thomas Araujo not being heritable, the defendants had no right to resist eviction and consequently decreed the suit, directing the eviction of the defendants postponing grant of the relief of mesne profits to be determined upon an inquiry to be conducted under Order 20, Rr.12(b) and 2 of the C.P.C. In coming to hold that tenancy right is not heritable under the Rent Act the learned trial Court has mainly relied upon Anand Niwas v. Anandji Kalyanji Pedhi, AIR 1965 SC 414 and J.C. Chatterji v. Shri Krishna Tandon, AIR 1972 SC 2526. The case of Damadilal v. Parashram, (1976) 4 SCC 855: (AIR 1976 SC 2229) relied upon by the defendants has been distinguished.
5. The short point that falls for determination in this First Civil Appeal is whether the decision of the learned trial Judge decreeing the plaintiffs suit for eviction of the defendants is legal and proper so as to be maintained.
6. Mr. Nazare, learned advocate appearing for the appellant has contended that the learned trial Judge has failed to notice the significance of the decision of
the Supreme Court rendered in "Damadilal v. Parashram" (AIR 1976 SC 2229) (supra). According to him the aforesaid decision is significant for two reasons: Firstly, the Supreme Court has categorically held that the concept of statutory tenancy is different in English Law and is not applicable in India. Secondly, without following its earlier decisions, the Supreme Court has for the first time held that in the absence of any contrary provision in the Rent Act, the statutory tenants have interest in the premises which is heritable and assignable. In this territory the Rent Act has been suitably amended (with effect from 9-5-1978) recognising the legal representatives of the statutory tenants. The learned trial Judge has failed to consider these aspects.
7. As against the above submission, Mr. V.M. Patkar, learned advocate appearing for the respondent, has su
