P.N.P. Nair, Manager Of Vijay ... vs The Board Of Trustees Of The Port Of ...
2002 Latest Caselaw 923 Bom

JUDGMENT

J.G. Chitre, J.

1. The appellants who were original obstructionists Nos. 1, 2 and 3 in Obstructionist Notice No. 17 of 89 connected with Eviction Application No. 79/351 of 75 are hereby invoking the jurisdiction and authority of the High Court in view of Articles 226 and 227 of the Constitution of India for assailing the judgment and order passed by Small Cause Court in EA No. 79/351 of 75 and Appeal No. 109 of 1993 - Obstructionist Notice No. 17 of 89, for quashing those orders, the result of which was the eviction of the petitioners from plot of land bearing Old RR No. 1520, Gamadia Road, Elphinstone Estate, Bombay. As per the case of the Board of Trustees of the Port of Bombay (hereinafter referred to as Post Trust for convenience) they own the said plot which was given to Lakhamashi Ghelabhai initially on a lease in 1941. The said lease expired by efflux of time. However, LRs of Lakhamashi Ghelabhai remained in possession of the said property. Their predecessors in title had constructed a godown which was in occupation and use of the heirs of Lakhamashi Ghelabhai till notice of eviction was issued to them dated 3.4.1974. A request therein was made to those LRs, namely, Ratanben, Vasanbhai, Mulchandabhai, Dhanjibai, Virendrabhai and Premji Ghelabhai claiming the possession of the said plot as well as the said godown. Those LRs did not reply to the said notice and, therefore, the Port Trust was constrained to file the eviction application in Small Cause Court in view of provisions of Section 41 of the Presidency Small Causes Courts Act, 1882 (hereinafter referred to as the Act for convenience). The evidence was adduced by the Port Trust. The learned Judge of Small Causes Court passed the order in favour of the Port Trust directing that the above mentioned persons be evicted from the premises. The said order was put to execution.

2. When the said order was being executed, the obstructionists, the present petitioners, resisted the said execution and did not hand over the vacant possession of the premises. They moved Obstructionist Notice No. 17 of 1989 which was decided against them by the Single Bench of Small Causes Court. They preferred the appeal against that before the Division Bench of Small Causes Court bearing Appeal No. 109 of 1993. It was also dismissed. Therefore this writ petition.

3. Number of points have been urged before this Court for justifying the contentions of rival parties by their counsel and that needs churning of the entire controversy and the points revolving around the said controversy. It was argued on behalf of the obstructionists, the present petitioners, that the Port Trust adopted a fraudulent attitude for the purposes of keeping in dark the petitioners and evicting them by taking the help of provisions of Section 41 of the Act. It was countered by the Port Trust by submitting that the obstructionists, the present petitioners, cannot go beyond the said order which assumes the form of a decree when that was put to execution and, therefore, the question whether the present petitioners should have been impleaded as parties in the said petition for eviction or whether a notice should have been issued against them requesting them to hand over the possession arise for adjudication. It was also the point for debate as to when the present petitioners were in possession of the said premises. Whether they were in possession of the said premises prior to quit notice sent to the heirs of Lakhamashi Ghelabhai, whether they were in possession of the premises after the quite notice was issued but before the suit was filed (eviction petition was filed). Prima facie it appears that both the sides are having some infirmities, may be on account of negligence, may be on account of the smartness shown in the battle of litigation tantamounting to shrewdness. That necessitates a consideration whether these stances adopted by the rival litigants were the mistakes or callousness, negligence or malafide tricks played for defeating the cause of the opponents and maligning the fair play in the trial. Therefore, the chronological mentioning of the incidents undisputed will have to be mentioned for the purpose of unfolding the core of the controversy or core of the points in debate or core of the points which need a careful consideration for the purpose of meeting the ends of administration of justice in accordance with law.

1) The present petitioners aver that they are occupying the premises in question since 4.1.74 or in any case since November 1974. The averment of the occupation of the petitioners since 4.1.74 has been denied by the Port Trust. According to them, they might have been in possession of the suit premises after April 1974, when the quit - request notice was sent to heirs of Lakhamsi Gelabhai.

2) The suit - petition was filed by Port Trust in the Court of Small Causes at Bombay on 25.11.75 (the Port Trust contended that the presentation of the plaint was on 26-11-75).

3) On 22/2/1989 the Port Trust tried to execute the said order and present petitioners obstructed in the execution thereof.

4) On 8.3.89 the Port Trust took out Obstructionist Notice No. 17 of 1989 to remove the obstruction. It was made absolute on 1.2.1993.

5) On 9-2-1990 the present petitioners filed their affidavit-in-reply to the said obstructionist notice No. 17 of 1989, inter alia, claiming that they had obstructed in their own right and were protected under the provisions of the Bombay Rent Act. (The plea of Bombay Rent Act was dismissed by the Small Causes Court single bench as well as the Division Bench).

6) After the said notice was made absolute by the Single Judge Bench of Small Causes Court, the present petitioners filed Appeal No. 109 of 1993 before the Appellate Bench of Small Causes Court, Bombay against the said order which was dated 1.2.1993. The said appellate court by its judgment and order dated 23.7.98 confirmed the judgment and order passed by the Single Bench.

7) The heirs of Lakhamashi Ghelabhai filed Civil Revision Application No. 492 of 1980 in the High Court which was dismissed and the order - decree passed by the Small Causes Court in Eviction Petition was confirmed.

4. Keeping in view this chronology of the events, the contentions raised by the parties, it would be necessary to find out whether the petitioners were in possession of the premises in question prior to the said quit notice sent to Lakhamashi Ghelabhai or their heirs. Shri Umesh Shetty, counsel appearing for the Port Trust, submitted that the Petitioners were never in possession of the premises in question prior to the quit notice. Shri Dhond has submitted that they were so and has made a reference to the judgment of the Division Bench of Small Causes Court. The said Court has considered this aspect in paragraph No. 14 of its judgment. It pointed out that the witnesses were examined by the present petitioners i.e. Administrative Manager and Director of the company have stated that the petitioners were in possession of the premises in question since 4.1.174. The Court has come to the conclusion that the said contention has been corroborated by the evidence. It firstly pointed out that the Court summons was issued in Misc. Notice No. 1009 of 1974 in R.A.E. Suit No. 51/217 of 1973 which positively showed that the Petitioners were in possession of the premises in question. It pointed out that they were in possession of the premises in question since 1.4.1974 and that also to the knowledge of the Port Trust. As it has pointed out in paragraph No. 18 internal page No. 15 that this fact has been revealed by the correspondence between the Port Trust and the LRs of Lakhamashi Ghelabhai because there was a proposal of paying such assignee, (present petitioners) the compensation in respect of the said premises from the tenant. Apart from that, the present petitioners dealt with transport business. They must have been using heavy vehicles for the purpose of transport business and that must have been surely noticed by the staff members of Port Trust. Port Trust is a big authority having so many staff members. Therefore, such transport business could not have been carried in a concealed way. Keeping in view the normal human experience staff members must have intimated about the fact of plying of heavy vehicles in said transport business in the area under the control of Port Trust to their immediate superiors. If the Port Trust is denying that, two inferences arise, (i) that they did not have any control over the staff members and the staff members are not dutiful or (ii) that the contention raised by the Port Trust is palpably false. That leads to the next aspect of the case and that deals with very important point which points towards important aspect as to why no request - quite notice was sent to the present petitioners when the possession was sought from the LRs of Lakhamashi Ghelabhai. It is very difficult to understand as to why Lakhamashi Ghelabhai's heirs were permitted to remain on the said premises and why attempts were not made to evict them. In the meanwhile if the petitioners have come in picture, the Port Trust Authority and their staff members have to either thank themselves or blame themselves. This aspect is touching more important and more damaging point to the Port Trust and that is long delay in between issuing the quit notice to heirs of Lakhamashi Ghelabhai and filing the petition - suit for evicting them. The said notice was issued to them in the month of April and the suit - petition was filed in the month of November 1975. What the Port Trust Authority was doing in between is a big matter to be probed. When a landlord by his negligence or casual behaviour permits a tenant to linger on the premises, he has to either blame himself or thank himself. Such sort of delay would definitely weigh in judging the important aspects of the case. More particularly in summary suits.

5. The procedure for trying petition-suit has been provided by Sections 41 to 49. But so far as jurisdiction of the Small Cause Court is concerned and the way in which the Small Cause Court is required to decide suits, Chapter IV will have to be considered. Section 19A, Section 20 provide the provisions of law for dealing with return of plaint and trying the suits beyond pecuniary limits of jurisdiction by consent of the parties. Section 24 provides that no written statement is permitted except in cases of set-off. Section 94 of the Act provides that no suit would lie upon the decree of Small Causes Court.

6. Thus, keeping in view the stricter provisions of law, speedy procedure laid down, more power vested in Small Causes Court to decide such suits as early as possible, the Small Causes Court is bound to be more careful, dutiful, strict and vigilant in seeing that the party filing the petition or suit before it comes with the clean hands and offers all necessary averments for getting an order or a decree from it. Section 41 requires that the tenancy has to be determined or the permission has to be withdrawn and such occupant is to be requested to hand over the delivery of the premises and whenever such request is turned out, the person sending such notice- request gets entitled to file a petition or suit is Small Causes Court. It is pertinent to note ad verbatim the relevant provisions of Section 41 which read thus:-

"When any person has had possession of any immovable property situate within the local limits of the Small Cause Courts jurisdiction and of which the annual value at a rack-rent does not exceed two thousand rupees, as the tenant, or by permission, or another person, or of some person through whom such other person claims.

and such tenancy or permission has determined or been withdrawn,

and such tenant or occupier or any person holding under or by assignment from him (hereinafter called the occupant) refuses to deliver up such property in compliance with a request made to him in this behalf by such other person.

Such other person (hereinafter called the applicant) may apply to the Small Cause Court for a summons against the occupant, calling upon him to show cause, on a day therein appointed, why he should not be compelled to deliver up the property".

7. Therefore, when a petition-suit has been filed in view of provisions of Section 41 it becomes the duty of such applicant or suiter to make a request to such tenant, occupant or another person or some person through whom such other person has claimed the possession and has to make the averments in such petition or suit that all concerned persons against whom such order or decree has been sought have been requested to deliver the possession. Only when he complies with such obligations, it would be permissible for him to seek such an order or decree from the Small Cause Court.

8. Here, the meaning of "occupant" has been put to debate by the counsel appearing for the parties in this case. Shri Dhond has placed reliance on the judgment of the Single Bench of this Court in the matter of Civil Revision Application No. 580 of 1970 The Trustees of the Port of Bombay v. Nemidas Devji and Ors. So also, on the judgment of Single Bench of this Court in the matter of Sitaram Sudama More and Ors. v. Board of Trustees of Bombay, reported in 1993 Mh.L.J. page 770. Shri Shetty has placed reliance on the judgment of the Supreme Court in the matter of Burmah Shell Oil Distributing now known as Bharat Petroleum Corporation Ltd., v. Khaja Midhat Noor and Ors., as well as on the judgment of Calcutta High Court Division Bench in the matter of Gangaram Dhar v. Santosh Kumar Mitra, reported in A.I.R. (36) 1949 Calcutta 248.

9. In the judgment of the Trustees of the Port of Bombay v. Nemidas Devji and Ors. (supra), the Single Bench of this Court concluded that it is necessary to make such a request to the person in occupation. After considering the submission made on behalf of the Port Trust that such occupier may be the person getting the compensation from such a tenant and, therefore, the person claiming the possession need not bother about such sub-tenant or an assignee who may be in actual possession of the premises. The same sort of submissions have been advanced in this case also from the side of Bombay Port Trust. In the said context it was also submitted that the word "him" can have reference only to a tenant and cannot have reference to a person holding under or by assignment from him (tenant). It was also argued on behalf of the Bombay Port Trust in that context that the landlord may or may not join the sub-tenant at all and may proceed against the tenant alone and an application under Section 41 can be granted if the requirements against the tenant are satisfied. It was argued that the position cannot be worse for a landlord merely because he makes the sub-tenant a party to the proceedings. The Single Bench of the Bombay High Court turned down this submission by saying that "it was very difficult to agree with Mr. Daji, the counsel, appearing for the Bombay Port Trust" in the said case.

10. The Single Bench held that once the petitioner in that case elected to obtain relief against said opponents 4 and 5 also, not under the ordinary procedure in the ordinary Court, but under the summary procedure prescribed in Chapter VII of the Act, has strictly to follow the provisions of that Chapter, including those of paragraph 3 of Section 41, ad if he had not followed them, he must take the consequences of not following that procedure. It pointed out that to avoid such consequences, it is not permissible to him to urge how would he have been worse off, if he had not proceeded against the said opponents 4 and 5 at all. It pointed out that if the petitioner had simply proceeded against opponents 1 to 3 under Section 41, there was no difficulty. But he wanted to proceed against opponents 4 and 5 also and that was for the obvious reason that they are the persons in actual possession of the premises and if the petitioner were to obtain an order for possession only against opponents 1 to 3 and were to execute it against the, there was bound to be obstruction from opponents 4 and 5 and it was with a view to avoid that obstruction that they were made parties to the application under Section 41. It is true that in that judgment the Single Bench opined that such an applicant is entitled to make request to the tenant only but as pointed out in last portion of paragraph No. 41, the said petitioner would be facing difficulty in executing the said order or decree and he has to face it and cannot avoid it. The conclusion of the said judgment is that such request has to be made to the person in actual possession of the property. In last portion of paragraph 44 the natural difficulties which would come in the way of execution have been pointed out by the Single Bench. This Court will have to take into consideration it while dealing with the submissions advanced on behalf of the litigants in this petition.

11. In Sitaram Sudama More case (supra) it has been pointed out by the Single Bench of this Court that in that case the tenant assigned his tenancy rights in favour of two persons who were in possession. Notice to deliver possession under Section 41 of the Presidency Small Cause Courts Act was issued only to the tenant. Ejectment application, however, was filed against the tenant as well as the assignees who alone were in possession. In that case, it was held by the Single Bench that the requirement of Section 41 as it stood before amendment was that possession had to be demanded from the occupier also and on his refusal to deliver possession, Section 41 stood attracted. It pointed out in the said case that as there was no demand regarding delivery of possession from the assignees who were the occupants, the question of delivery of possession did not arise and there was no cause of action. Accordingly, the order of delivery of possession passed against assignees by Small Cause Court was set aside.

12. In the matter of Burmah Shell Oil Distributing now known as Bharat Petroleum Corporation Ltd., (supra), the Supreme Court was dealing with a lease deed which was executed with a permission to sub-lease the same. The lease was not for agricultural purposes and it was for a term of 10 years. The lease period expired on 16-1-1968 and after that period the sub-lessee continued to pay the rent which was being accepted continuously from month to month by the lessor. A notice was issued by the lessor to the lessee terminating the lease and for giving vacant possession of the land by 15-1-1973 and also removal of building etc. by 16-1-1973. In that context, in those facts and circumstances, the Supreme Court had made the observations which have been attempted to be utilised by the counsel for the Port Trust herein in this case. The said ratio is not applicable so far as facts and circumstances of the present case are concerned.

13. The same is the case in respect of the judgment of the Division Bench of the Calcutta High Court in the matter of Gangaram Dhar v. Santosh Kumar Mitra, (supra). In that case the sub-tenant had applied under Section 47 of the Act for stay of the proceedings and it was contended on behalf of the landlord that Section 47 would not come in application and would not come to the help of said sub-tenant who was not a party to the proceedings for the recovery of possession and in that context the Division Bench of the Calcutta High Court expressed its opinion as to what "occupant" means. In that judgment the Calcutta High Court Division Bench expressed its opinion that the word "occupant" in Section 47 has the same meaning which it has in the last part of Section 41, Section 42 and Section 48, namely, the person who has refused to deliver up possession when requested to do so was made and who has been made opponent in proceedings under Section 41. To give the term wide meaning would be to allow a person not party to a proceeding to move to have it stayed. In that context the Calcutta High Court Division Bench has expressed its opinion. I is not applicable to this case because in this case leave aside making the person party, the Port Trust has not even requested him to hand over the possession. In that case, it was not like the present case that such occupant had come in possession of the premises in question prior to issuance of such a request-quit notice. There was no inordinate delay in filing the petition or suit after such prayer-quit notice was issued. In that case, said person in occupation had moved an application before the Small Causes Court for staying the proceedings. The observations of the Court are to be considered by keeping pace with the context and they are to be understood in the context in which they have been expressed. No pick and choose policy can be adopted.

14. The texts of the provisions of sections are to be followed while moving an application in view of provisions of Section 41. They have to be understood. Putting such an order - decree to execution - procedure to be adopted has to be understood and more particularly rule of natural justice has to be kept in view and has to be understood properly keeping in view the speedy procedure which has been prescribed for dealing with the summary suits. Limited opportunity which has been provided for the defendant to put his side before the Court has to be considered. It is never to be forgotten that even in summary suit, the Small Cause Court - the Court is obliged to follow the provisions of law in true sense of administration of justice and while doing so the rule of natural justice has to be given due importance and has to be respected. It is to be noted that the Court is obliged to see that suits are forbidden for challenging the orders - decrees of Small Causes Court and very little scope is given for assailing such orders and decrees. Strictness of procedure and speedy disposal in summary suit makes it necessary that suitor has to give sufficient opportunity to defendant keeping in view rule of natural justice.

15. It is pertinent to note here at this juncture that it has been provided in Section 41 of the Act itself that whenever such an application has been preferred, a Small Causes Court is obliged to call upon the person to show cause, on a day therein appointed in the summons to show cause as to why he should not be compelled to deliver the property. It means that even in summary suits, which are to be dealt with in view of provisions of Chapter VII of the Act, the person who has refused to hand over delivery of the immovable property to the landlord is entitled to get the opportunity of showing cause. It is intended to allow him to put forth the grounds on which he has refused such a request or refuses to comply with such request. After he puts forth such grounds, the Small Cause Court would be considering it and would be adjudicating on such petition-suit preferred by the landlord. If the Court is satisfied that there are good grounds for compelling such person to hand over the possession to the landlord, it will do so. If there are no such grounds, such petition or suit is likely to be dismissed. It does not mean by any means that whenever such petition-suit has been presented, it would be allowed automatically and without judicial scrutiny. If the landlord does not make a request to the person who is in peaceful possession of the property to hand over the possession to the landlord by making such a request, how such person is to be compelled to hand over possession of such immovable property to such a landlord?. It is a matter of common experience that such a person has to be requested and thereafter if he refuses, the grounds are to be understood for such refusal and thereafter there has to be a process of adjudication. None can be deprived of the property without following due process of law and whenever such landlord does not implead the person who is in peaceful physical possession of immovable property, how he is entitled to get an order or decree from any Court including Small Cause Court?. The Small Cause Court is also bound by law to administer the justice in summary suit and to decide the summary suit. The summary suits never mean that the person is not to be afforded the opportunity of being heard before passing a decree against him. If a landlord follows the unscrupulous method of not impleading such a person as a party in such petition or suit, he has to face the natural consequences of it which would most probably come in the way of obstruction to the execution of such order or decree. Here the word "occupant" has to be understood in proper context. Not only that, the entire section has to be read as a whole and the sense indicated by it has to be understood which from all corners heralds that a person against whom such an order or decree is sought has to be given an opportunity of being heard and such an order or decree has to be passed keeping in view at least the rule of natural justice. He has to be requested to hand over the possession and in case of refusal he also has to be impleaded as party along with original tenant.

16. The Small Causes Court and the appellate Small Causes Court have ignored this important aspect of the matter though the appellate Court has recorded a finding that the petitioners were in possession of the property in question prior to the said quit notice - (notice of request was issued to the LRs. of Lakhamashi Ghelabhai). Both the Courts did not notice that there was a possibility of collusion between the landlord and tenant or lessee for ousting such assignee or sub-tenant by not impleading him as a party. After evicting him, again there would be renewal of such lease or licence, as the case may be. True, a landlord may find it embarrassing to admit the status of such sub-tenant or assignee and to give him a status and recognition but in the arena of legal battles there cannot be go-by to provisions of law and rule of natural justice. In such cases the landlord has to come with the clean breast and fully expanded chest before the Court by making necessary averments which are truthful. Landlord has to aver boldly that property is in possession of an assignee. By making such averments, such landlord may seek a relief as indicated by provisions of Section 41 and then he may put a justification to his cause by saying that such assignee or sub-tenant has been inducted in the property by tenant or lessee without his knowledge, permission and for frustrating the agreement in question. Who prevents him? In such cases, his cause would be justified because he is coming with clean hands and fully expanded chest with straightforward approach. As a person who is to be evicted would be getting an opportunity of being heard, such order would be sound from all corners and from all angles.

17. In the present case, the petitioners were in occupation as admitted by the appellate Court of Small Causes from January 1974 but they were not requested to hand over the possession of concerned property. The LRs of Lakhamashi Ghelabhai were served with such notice and thereafter the petitioners suit has been filed in the month of November, 1975. There was absolutely, abnormal delay. Such delay keeps it open to drew an inference that it was deliberately caused delay for making the allegation that in between the tenant inducted the sub-tenant or lessee inducted sub-lessee.

18. Besides this aspect of this case, it's facts and circumstances would be showing total indolence, negligence on the part of the Board of Trustees and all concerned staff members working under them. The powers are not properly delegated and no system of ratification of the acts of such delegated officers is followed. It has to be kept in mind that law does not help the indolents. Why a person should suffer on account of such delay when he is to be evicted from the possession of the immovable property? Why the Small Cause Court should not consider it to be a ground for dismissing the petition or suit filed for evicting such a person summarily. Normally, an argument is advanced that such property is a public property. Their funds are public funds. If it is true then the persons who are entrusted with such property and funds should be diligent and should see that no funds are wasted, and the employees of such public instituting should not act prejudicial to the interest of public at large. The trustees of the Port Trust are entrusted with national property to be protected and they are entrusted with the obligation of protecting it. Therefore, there should not have been such delay. This important aspect of the matter has been ignored by the Single Bench of Small Causes Court and thereafter the appellate Court. The Appellate Court forgot that after their decision the person aggrieved has got no remedy except filing of the writ petition and exactly in the present case the petitioners have done in and, therefore, this court would be examining important facets of this case very carefully for the purpose of coming to the conclusion whether appropriate writ needs to be granted in favour of the petitioners for the purposes of correcting the errors committed by subordinate authority.

19. In view of that this Court is considering that when the Act bars filing of the suit challenging such order, a limited scope is given to such aggrieved person for challenging the said order in execution and when that is so, if two courts below ignore important facets of the matter - the act of seeking relief of eviction against the petitioners without sending them the request notice asking them to hand over the possession of immovable property and further adding to it by not impleading them as party in the petition or the suit. None can be deprived of the property without following the due process of law and this is a case in which it is heralded that there has been a miscarriage of justice in ignoring the lawful rights of the petitioners of not being heard before passing such an order or decree.

20. Therefore, this Court comes to a conclusion that whenever the person in physical possession of immovable property is to be evicted, a notice has to be sent to him by Small Cause Court for the purpose of giving him an opportunity of being heard. After he shows the cause, there would be adjudication whether his possession is rightful or whether his possession is unlawful, whether he is to be evicted from the property or not. But when this process is not followed, such order becomes not only improper and incorrect but illegal also. This view taken by this Bench is fortified by the judgments of two single Benches of Bombay High Court in this context. This Court does not agree with respect with the view expressed by the Division Bench of the Calcutta High Court because the observations are made in different context and they are not relevant to the case before this Court.

21. The order which is improper, illegal, cannot be permitted to survive for a moment and, therefore, it has to be quashed by issuing the writ of certiorari and it is being quashed. However, it is made clear that the Port Trust is entitled to issue a fresh request notice - quit notice to the petitioners as well as to the LRs. of Lakhamashi Ghelabhai for initiating a proceedings against them in view of provisions of Section 41 of the Act if they so desire.

22. Thus, the petition stands allowed with costs. Order-decree passed by the Single Bench of Small Causes Court stands set aside by issuing the writ of certiorari in favour of the petitioners.

23. Parties to act on an ordinary copy of this order duly authenticated by the Private Secretary of this Court.

24. Issuance of certified copy expedited.