T. Raghavan Nair vs Brij Mohan P. Sethi And Ors.
2003 Latest Caselaw 58 Bom

JUDGMENT

A.M. Khanwilkar, J.

1. This writ petition under Article 227 of the Constitution of India challenges the Judgmetns and order passed by the Small Causes Court at Bombay dated 13.6.1986 in Appeal No. 524 of 1984. In Paragraph 16 and 17 of the impugned Judgment the Appellate Court has reproduced all the relevant facts that have given rise to the filing of the present petition. It is therefore, not necessary for me to burden this Judgment with all those dates so as to avoid prolixity. Suffice it to point out that, the original Respondent No.2 was inducted as tenant in the suit premises being shop premises, situated at Plot No. 28, B-1 Block, Jawahar Nagar, S.V. Road, Goregaon, in the year 1970 by t he Respondent No.1-landlord. The said Respondent No.2 in turn, inducted the Petitioner herein in the said premises some time on 6.1.1971, pursuant to the agreement dated 6.1.1971. The period under the said agreement was limited. In the circumstances, second agreement was executed between the Respondent No. 2 and the Petitioner herein on 6.11.1971, purported to be licence which was to enure for a period of 11 months from that date. To put it differently the licence was to expire in October, 1972. Notwithstanding the said period of licence expired,the Petitioner continued to remain in occupation of the suit premises and more particularly on the relevant date i.e. 1.2.1973. It is stated that the Respondent No.1 landlord, however, by a written notice terminated the tenancy in favour of the Respondent No.2 on 8.11.1972; but admittedly no consequential action was taken by the Respondent No.1 against the Respondent No.2 immediately thereafter. Be that as it may, the Petitioner continued to remain in occupation of the suit premises on the relevant date i.e. 1.2.1973 and even thereafter. It then transpired that the Respondent No.2 executed an agreement in favour of Shri. T. Bhaskar-the brother of the Petitioner herein purporting to be a licence in his favour in respect of the suit premises, which was already occupied by the Petitioner. The petitioner apprehend some foul play and therefore preferred suit before the Rent Court in the year 1973 for declaration and relief against the Respondent No.2 who was his immediate licensor. The Petitioner also persuaded the Rent Court to issue injunction against the Respondent No.2 from dispossessing the Petitioner. However, that injunction was later on vacated on 13.7.1973. Against that decision, matter was carried in appeal and upto this court by way of Writ Petition. But, all those proceedings were decided against the Petitioner. As a consequence, the Petitioner lost possession of the suit premises sometime in 1975. The Petitioner therefore, filed another suit for declaration, while the abovesaid suit for declaration filed by the Petitioner was still pending. Later on the first suit came to be dismissed on 13.1.1976; whereas, the second suit filed by the Petitioner was allowed in his favour on 24.3.1976 when the Rent Court declared the Petitioner as a protected licensee in respect of the suit premises and directed restoration of possession of the suit premises. It is relevant to note that in this suit, the Respondent No.2 alone was made party. Against that decision, the Respondent No. 2 carried the matter in appeal but the same was rejected. It is seen from the record that, after declaration and order of possession was passed by the Rent Court in favour of the Petitioner, the possession of the suit premises came to be restored to the Petitioner and the Petitioner started occupying the suit premises thereafter till he came to be dispossessed in the execution of the decree which has been passed in favour of the Respondent No. 1 an against Respondent No. 2. I shall make reference to those proceedings a little later. In other words, it is pertinent to note that the record clearly establishes that the petitioner was in possession of the suit premises on 1.2.1973 which is the relevant date and was also no possession of the suit premises till he came to be dispossessed by the Respondent No. 1 during the execution of decree passed in his favour on 25.11.1982. As mentioned earlier, the Respondent No. 1-landlord had filed suit only against the Respondent No. 2 for possession of the suit premises on the stated ground that the Respondent No. 2 was a defaulter before instituting the said suit as per Section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred as the "said Act"). The Respondent No. 1 had issued demand notice on 8.4.1977 to the Respondent No. 2. The Respondent No. 2 responded to the said notice pointing out that he was in financial difficulties. Since, the Respondent No. 2 did not comply with the demand notice, the Respondent No. 1 instituted suit for possession in respect of the suit premises against the Respondent No. 2. It is stated that when the Petitioner learnt about the institution of the said proceeding against the Respondent No. 2, he immediately filed application for impleading him as party Defendant in the said suit contending that he was the protected licensee in respect of the suit premises. That application was however, rejected on 2.6.1978. Thereafter, the said suit proceeded only against the Respondent No. 2, and eventually by an exparte Judgment and Decree dated 2.7.1978 was allowed on the ground of default under Section 12(3)(a) of the Act. That decree was put in execution by the Respondent No. 1. The Executing Court issued possession warrant in favour of the Respondent No. 1, pursuant to which steps were taken to take over the possession of the suit premises. It has come on record that on 25.11.1982 the Respondent No. 1 succeeded in taking possession of the suit premises in execution of the said possession warrant. Immediately thereafter, the Petitioner who claims that he had right, title and interest in the suit premises, and has been wrongfully dispossessed by Respondent No. 1 in the execution of the decree against the Respondent No. 2, filed application purported to be under the provisions of Order 21 Rule 99 of the Code of Civil Procedure. It is stated in the

surreptitiously took over possession of the suit premises behind his back and while he was away. It is stated that the Respondent No. 1 was fully aware that the Petitioner was in possession of the suit premises and yet the execution of the decree is shown to have been completed without notice to him. In this backdrop, application under Order 21 Rule 99 of the Code came to be filed by the Petitioner. That application was resisted by the Respondent No. 1 by filing reply affidavit. In substance, the stand taken on behalf of the Respondent No. 1 is that the Petitioner had no concern with the suit premises. Besides, the Petitioner had no subsisting licence in respect of the suit premises on 1.2.1973. It is stated that the Respondent No. 1 had terminated the tenancy on 8.11.1972 and, therefore, the Respondents No. 2 had no authority to create any right in favour of the Petitioner. That the Petitioner was not a protected licensee. The Court of first instance examined the questions raised by the parties as it was obliged to consider by virtue of Rule 101 of Order 21 of the Code. While answering the said questions, the Court has positively concluded that the petitioner was occupying the suit premises at the relevant time not as "licensee" but as "unlawful sub-tenant". The Court has clearly found that the Petitioner was in possession of the suit premises on 1.2.1973, but the status of the Petitioner has been held to be that of "unlawful sub-tenant". This conclusion can be discerned from the discussion in Para 28 of the Judgment of the Court of first instance. Having taken that vie,w the court proceeded to reject the application preferred by the Petitioner for restoration of possession of the suit premises. Being dissatisfied, the Petitioner carried the matter in appeal being Appeal No. 524 of 1982. The Appellate Bench examined the rival contentions and found that since the tenancy in favour of Respondent No. 2 came to be terminated on account of notice dated 8.11.1972, the Respondent No. 2 had no authority to create any licence in favour of other person. The Appellate Court further found that in any case, no further licence was created in favour of the Petitioner herein by the Respondent No. 2, after the term stipulated in the second agreement dated 6.11.1971 which came to an end in October, 1972. The Court, therefore, found that there was no subsisting licence in favour of the Petitioner on 1.2.1973. In other words, the Appellate Court found that the Petitioner was not a protected licensee within the meaning of Section 15A of the Act, however, proceeded to affirm the finding and conclusion reached by the Court of first instance that the Petitioner was occupying the suit premises as a "sub-tenant". This conclusion can be discerned from Para 33 of the impugned Judgment. Accordingly, even the Appellate Court has taken the view that the Petitioner was unlawful sub tenant in the suit premises and was in possession thereof on 1.2.1973. Accordingly, the appeal preferred by the Petitioner came to be dismissed. It is against this decision, the present writ petition under Article 227 has been filed.

2. Mr. Sawant appearing for the Petitioner contends that it is established from the record that the Petitioner was in possession of the suit premises on 1.2.1973 and the possession was lawful. He contends that if the Petitioner was in possession of the suit premises on 1.2.1973, the fact that agreement dated 6.11.1971 came to an end to October, 1972 would make no difference; but in such a case the Petitioner was entitled to claim that the licence in his favour was tacitly continued by the Respondent No. 2. He, therefore, contends that there was a subsisting licence in favour of the Petitioner on 1.2.1973, on account of which the Petitioner became protected licensee within the meaning of Section 15A of the Act; and by virtue of Section-14(2) of the Act, the Petitioner would become the direct tenant of the Respondent No. 1 after the decree of possession has been passed against the Respondent No. 2. In this view of the matter, the petitioner could not have been dispossessed from the suit premises in purported execution of the decree which is passed against the head tenant namely-Respondent No. 2.

3. On the other hand, Mr. Sharma for the Respondent No. 1 contends that there was no subsisting licence in favour of the Petitioner on the relevant date i.e. 1.2.1973. He submits that the tenancy in favour of Respondent No. 2 was determined by notice dated 8.11.1972 and therefore, the Respondent No. 2 had no authority to create any licence in favour of the Petitioner. He further submits that the Petitioner could not claim to be a protected licensee within the meaning of Section 15A of the Act. He further submits that the petitioner has been held to be unlawful sub-tenant and the said finding of fact cannot be interfered in exercise of writ jurisdiction. He further submits that, in the fact situation of the present case, it is not possible to even suggest that there was any subsisting licence in favour of the Petitioner merely because the Petitioner remained in possession of the suit premises on 1.2.1973 and no further licence was executed in his favour. He submits that the Respondent No. 2 has stated on affidavit before the lower court that he did not receive any compensation from the Petitioner after October, 1972. He, therefore, submits that no fault can be found with the conclusion reached by the two courts below in dismissing the application under the provisions of Order 21 Rule 99 of the Code.

4. Before I proceed to consider the rival submissions, it is relevant to point out that the Petition filed application being Civil Application No. 1171/1989 in the present writ petition for impleading Shri. Mukesh P. Gandhi as Respondent No. 5 in the present writ petition on the ground that the said person was found to be in possession of the suit premises having been inducted by the Respondent No. 1 after the Petitioner lost possession in the execution of decree on 25.11.1982. Rule was issued on the said application, which has been duly served on the concerned Respondents including the proposed Respondent No. 5. Inspite of service, none appeared for any other Respondents except for the Respondent No. 1. This Court on 16.12.2000 had ordered that the said application will be considered at the time of final hearing of the writ petition. Accordingly, the said application is placed for hearing and is being disposed of alongwith this writ petition.

5. On analyzing the evidence on record and in particular the findings of facts of the two courts below, the fact situation that emerges is that the Petitioner was undisputedly in possession of the suit premises on 1.2.1973. Further, he is found to be in possession even on the day when the decree was executed on 25.11.1982. In other words, the Petitioner is found to be in possession of the suit premises on the relevant dates. The Court of first instance has positively found that the Petitioner was occupying the suit premises on those dates, albeit as "unlawful sub tenant". Even the Appellate Court has held that the possession of the Petitioner was in the capacity as "sub tenant". In that sense, both the Courts below have concurrently found that the Petitioner was occupying the suit premises on the relevant date as "sub tenant". If that is so, it will not be necessary for this court to examine any other aspect, except to note that by virtue of Amendment of 1987, such sub-tenancy or purported sublease assignment or transfer in favour of any person despite the prohibition in the Act, have been validated. This legal position is no more res-integra. This court in the case of Lakhichand Punamchand Marwadi deceased by his heirs Sou. Pramilabai Punamchandji Ladha etc. and Ors. v. Thakursheth Lalsaheb Tokeram has held that the effect of the various amendments made by the Amending Act of 1987 was to legalize all sub-tenancies which had been created against the prohibition before 1.2.1973. This view has been taken by the Division Bench of this court in the case of Prabhulal v. Bastiram in Writ Petition No. 1464 of 1981 decided on 11.9.1989. The leaned single Judge in the above said reported decision, has in fact followed the said view of the Division Bench of this Court to hold that the provisions of the Amending Act of 1987 leaves no one in doubt that notwithstanding the fact that the cause of action has arisen on any day, all sub-tenancies created despite the prohibition before 1.2.1973 stood legalized. The ratio of this decision would squarely apply to the fact situation of the present case-as two courts below have concurrently found that the Petitioner was an "unlawful sub tenant" inducted prior to 1.2.1973 and was occupying the suit premises on that date. It is not in dispute that this finding recorded by the courts below has not been assailed. Whereas, the case of Respondent No. 1 was that the Petitioner was unlawful sub tenant in the suit premises and, therefore, not protected. However, the said finding being one of fact, it will not be open for this court, in exercise of writ jurisdiction under Article 227 of the Constitution of India to interfere with the same for finding of fact recorded by the court below is binding on the High Court while exercising writ jurisdiction. It will be apposite to advert to yet another decision of this court in L.I.C. of India, Bombay v. Horological Trades and Agencies as reported in 1992 Mah.L.J. 461. It is held that irrespective of the termination of tenancy by notice to quit to the tenant, a person (obstructionist) inducted by such a tenant prior to 1.2.1973 could validly obstruct the execution of decree intended against the tenant, by virtue of the amended provisions of the Act. A fortiori, the Petitioner is protected by virtue of Sub-section (2) of Section 15 of the Act as amended and, as the Respondent No. 1-landlord has succeeded in determining the tenancy of the Respondent No. 2, in respect of the suit premises, who was the direct tenant, by virtue of Sub-section (1) of Section 14 of the Act, the petitioner would automatically become the direct tenant of the Respondent No. 1-landlord on the same terms and conditions as he would have held from the tenant if the tenancy had continued.

6. In this view of the matter, it will not be necessary for me to go into any other aspect of the matter though the courts below have addressed to various other contentions between the parties. Even if this court were to examine the correctness of the view taken by the Appellate Court, I have no hesitation in observing that the Appellate Court has committed manifest error in concluding that the Respondent No. 2 had no authority to create any right in favour of the Petitioner on account of the fact that his tenancy was determined by virtue of notice issued by the Respondent No. 1 on 8.11.1972. The legal position in this respect has been answered by the Apex Court in the case of Kalyanji Gangadhar Bhagat v. Virji Bharmal and Anr. reported in 1995 Bombay Rent Cases 219. The question that was considered by the Apex Court in the said case was whether a Contractual tenant alone can assign or transfer his interest in the demised property and such a right of assignment or transfer is not available to the statutory tenant? Applying the ratio of that decision, even if the Respondent No. 1 had determined the tenancy of Respondent No. 2 by issuance of notice dated 8.11.1972, the Respondent No. 2 would remain as statutory tenant and was competent to transfer his interest therein. Such sub-tenancy or licence created by such a statutory tenant before 1.2.1973 would have the same effect as if created by a contractual tenant, by operation of law. The Appellate Court has then went on to hold that the licence in favour of the Petitioner was not subsisting on 1.2.1973 and that it was a conducting agreement. However, as observed earlier, since both the Courts below have concurrently found that that the Petitioner was a "sub tenant" in the suit premises, then, obviously, by virtue of the amended provisions of the Bombay Rent Act, he would be squarely protected and, therefore, cannot be could not have been dispossessed on the basis of decree passed in favour of the landlord Respondent No. 1 and only against the head tenant-Respondent No. 2 herein. Understood thus, the Petitioner was legitimately entitled to claim restoration of possession by invoking the provisions of Order 21 Rule 99 of the Code.

7. The next question that arises is whether in absence of Mr. Mukesh Gandhi who has been inducted in the suit premises by the Respondent No. 1, after dispossessing the Petitioner herein, the Court can proceed to finally dispose of this petition and allow the application filed by the Petitioner under Order 21 Rule 99 of the Code in toto. I find no hesitation in doing so. In the first place, the said Mukesh Gandhi has been duly served with the notice of this court but has not chosen to appear. Besides, in view of the mandate contained in Order 21, if the Court is of the view that a person other than the Judgment Debtor has been wrongly dispossessed from the suit premises by the holder of a decree during the course of execution of decree and such person succeeds in establishing his independent right, title or interest in the suit premises such as in the present case, then the court is obliged to direct delivery of possession of the suit premises to that person and if required by directing the Decree holder or any other person who is found to be in possession of the suit premises.

8. In the circumstances, the Judgment and order passed by the two courts below is set aside and instead the application preferred by the Petitioner under Order 21 Rule 99 of the Code, being Misc. Notice No. 1125/1982 in R.A.E. Suit No. 800/4712 of 1977, is allowed. Petition succeeds in the above terms. No costs.

9. In view of the above order, Civil Application No. 1171 of 1989 is disposed of.

10. At this stage, Mr. Sharma prays that this order passed should not be given effect to for a period of 6 weeks to enable the Respondent No. 1 to carry the matter in appeal before the Apex Court, if so advised. In the peculiar facts and circumstances of this case, this request is allowed. The Petitioner shall not give effect to the present order for a period of six weeks from today.

C.C. expedited.