M.I. Quereshi S/O Yasin Mohammad vs Khatoonbi Wd/O M.A. Qadar And Ors.
2004 Latest Caselaw 312 Bom

JUDGMENT

S.T. Kharche, J.

1. By invoking the jurisdiction of this Court under Section 100 of the Code of Civil Procedure, this second appeal is directed against the judgment and decree dated 21-4-1990 passed by the 7th Additional district Judge in Regular Civil Appeal No. 677 of 1986 whereby the appeal is allowed and the judgment and decree dated 30-9-1986 passed by the learned Joint Civil Judge, Senior Division in Special Civil Suit No. 158 of 1984 directing the deceased respondent (whose legal representatives are brought on record during the pendency of the appeal) to deliver possession is set aside.

Relevant facts are as under :

2. The appellant is original plaintiff No. 2 and he and respondent No. 7 who is original plaintiff No. 1 instituted the suit for possession and also for recovery of license fee in respect of the suit house bearing Corporation No. 257, situated at Sadar Bazaar, Nagpur. The contention of the plaintiff was that they had purchased the suit house from one Dinanath Sharma for Rs. 16,000/- by registered sale deed dated 1-9-1970. The possession of the suit house was delivered to them by their vendor and the possession was continued with them till the year 1973. In the month of March, 1973 the plaintiffs were required to go to Junardeo to look after their business. The deceased defendant is a relative of the plaintiff and therefore, on his request he was allowed to occupy the suit house as a licensee and to look after the maintenance of the house in a proper manner. In the year 1978 request was made to the deceased defendant to vacate the suit house, but in vain. Thereafter notice dated 25-1-1980 was served and the license was revoked. He was called upon to vacate the suit premises and put the plaintiff in possession of the same on paying license fees @ Rs. 150/- per month from 10-2-1977 to 10-2-1980 amounting to Rs. 5,400/-. Since there was no compliance of the notice, the plaintiffs were constrained to file the suit for possession and also for recovery of the license fees. The defendant combated the contentions of the plaintiffs in his written statement and contended that he himself had purchased the suit house in the name of plaintiff No. 1 as Benamidar by virtue of the registered sale deed dated 1-9-1970 and basically the transaction between the vendor and the defendant was Benami transaction. The defendant claimed title to the suit house by virtue of the sale deed and contended that he was in peaceful possession of the suit house since prior to the purchase of the same from Dinanth Sharma. The defendant specifically denied that he was inducted in the suit premises as a licensee. He also subsequently amended the written statement during the pendency of the appeal. The amendment in the written statement was in consequence of the amendment in the C. P. and Berar Letting of Premises and Rent Control Order, 1949 (for short the Rent Control Order), because as per the said amendment, licensee is also included in the definition of the term "tenant". The appellate Court allowed the amendment application and the defendant contended that the suit for eviction of the defendant is not maintainable, unless the permission is obtained from the Rent Controller for determination of the tenancy in accordance with the provisions of the Rent Control Order.

3. The trial Court framed several issues and came to the conclusion that the plaintiffs are the owner of the suit house and the defendant was occupying the suit house as a licensee. The trial Court therefore held that the license has been properly revoked by notice dated 25-1-1980 and that the plaintiffs are entitled for possession of the suit house and also for the money decree of Rs. 5,400/- towards the license fees. The trial Court negatived the contention of the defendant that he became the owner of the suit house by purchasing the same in the name of the plaintiff and it was a Benami transaction. Consistent with these findings the trial Court decreed the suit. The defendant being aggrieved by the judgment and decree passed by the trial Court, carried appeal to the District Court. The learned 7th Additional District Judge considered the contentions canvassed by the learned counsel and also law position and recorded finding that the appeal was a continuation of the suit and that the provision of Clause 13(A) of the Rent Control Order would be applicable to the present proceedings and in that view of the matter, written permission from the Rent Controller to revoke the license was necessary. Consequently the appellate Court allowed the appeal and set aside the judgment and decree for eviction passed by the trial Court. This order is challenged in the present second appeal.

4. Mr. Kaptan, the learned counsel for the appellant-plaintiff contended that the trial Court has misconstrued the relevant provisions of the Rent Control Order and in particular the definition of the word, "Premises" and Clause 13(A) of the Rent Control Order. He contended that the definition of the house appearing in Clause 2(3) of the Rent Control Order has been substituted by the word, "premises" in Clause 2(4)(A). However, the definition of the "tenant" appearing in Clause 2(5) of the Rent Control Order has not been amended at all and the tenant means any person by whom or on whose account rent is payable for a house and includes a sub-tenant and a person continuing in possession after the term of his tenancy has expired. He contented that the definition of the word "tenant" does not include "licensee" and unless a person claims to be a tenant of the suit premises, the provisions of the Rent Control Order would not be applicable. He contended that even the amended provisions of Clause 13(A) would not be applicable to the suit premises. He contended that the defendant has claimed his title to the suit premises on the allegation that the sale transaction was Benami and therefore, permission of the Rent Controller for issuance of quit notice would not be necessary. He contended that even if the defendant is held to be the tenant, the suit for ejectment after giving notice of forfeiture of tenancy is maintainable without the permission of the Rent Controller and therefore, according to Mr. Kaptan, the impugned order passed by the appellate Court cannot be sustained in law and is liable to be set aside and the judgment and decree passed by the trial Court deserves to be restored. In support of these submissions he relied on Division Bench decision of this Court in the case of Ashwinikumar v. Gangadhar, 1990 Mh.L.J. 18 and also Single Bench decision of this Court in the case of Nababkhan v. Jamrubi, 1992 Mh.L.J, 260.

5. Mr. Kaptan further contended that the defendant has taken inconsistent plea in the written statement. The defendant claimed title to the suit premises on the contentions that he purchased the suit house by virtue of the sale deed dated 1-9-1970 in the name of the plaintiff and the latter was Benamidar. tie further contended that by way of amendment the defendant has taken a plea that the suit for eviction against him would not be maintainable without the permission of the rent Controller after the amendment was introduced by way of Clause 4(A) of sub-clause (2) in the definition of "premises". He further contended that the defendant cannot approbate and reprobate and the inconsistent pleas raised by the defendant would operate as an estoppel. In support of these submissions he relied on the decision of the Supreme Court in the case of I. T. Commissioner v. Firm MUAR, and the Single Bench decision of this Court in the case of Rukhma v. Chand Gonda, .

6. Mr. Bhattad, the learned counsel for the defendant contended that the defendant has given up the plea that the sale deed dated 1-9-1970 obtained from Dinanath Sharma was a Benami transaction because of the decision of the Supreme Court in the case of Mithilesh Kumari v. Prem Behari Khare, wherein it was held that the subsequent event could be taken note of by Appellate Court and the provisions of Benami Transactions (Prohibition) Act (45 of 1988) being retroactive in operation, the suit could not be decreed. Mr. Bhattad further pointed out that this decision of the Supreme Court has been subsequently overruled by the decision of the larger Bench of the Supreme Court in the case of R. Rajgopal v. Padmini, 1995(1) Mh.L.J. 544 wherein it was held that Benami transaction (Prohibition) Act prohibits Benami transaction and destroys rights flowing from such transactions as existing earlier and the Act is not declaratory but in substance it is prohibitory in nature and it creates substantive rights in favour of benamidars and destroys substantive rights of real owners who are parties to such transactions and for whom new liabilities are created by the Act.

7. Mr. Bhattad further contended that the amendment introduced by way of Section 13(A) has been introduced in the Rent Control Order and therefore, the licensee has became tenant for all the purposes and therefore, the suit for eviction does not lie unless the permission is obtained from the Rent Controller in accordance with the provisions of the Rent Control Order. He contended that the amendment in the written statement was allowed by the appellate Court and the appeal would be a continuation of the suit. He also pointed out that the amendment introduced in the written statement relates back to the date of filing of the written statement and in such circumstances, the appellate Court was justified in considering the contentions of the defendant that the suit was not maintainable without the permission of the Rent Controller. He contended that the plaintiff did not challenge the order of the appellate Court by which the amendment in the written statement was allowed and the defendant is entitled to take up even inconsistent pleas in the written statement and there is no question of any approbate or reprobate by the defendant introducing contrary plea in the written statement. He contended that in such circumstances the impugned order passed by the appellate Court is perfectly legal and valid and no interference into the same is warranted. In support of these submissions he relied on the decision of the Supreme Court in the case of Lakshmi Narayan Guin v. Niranjan Modak, AIR 1985 SC III. He also placed reliance on the decision of the Supreme Court in the case of Dilip v. Mohd. Azizul Haq, (2002)3 SCC 607 and also on the decision of the Supreme Court in the case of Firm Srinivas Ram v. Mahabir Prasad, .

8. This Court has given thoughtful consideration to the contentions canvassed by the learned counsel for the parties. It is not in dispute that the original owner of the suit house was one Mr. Dlnanath Sharma. The plaintiff No. 1 purchased the suit house from him and thereafter the plaintiff No. 2 purchased the said house from plaintiff No. 1 by virtue of the registered sale deed dated 1-9-1970. It is also not in dispute that the defendant was allowed to occupy the suit house some time in the year 1973. Though the defendant had set up his title to the premises by contending that the sale deed was in the nature of Benami transaction, that plea has been given up by him during the tendency of the appeal before the appellate Court in view of the decision of the Supreme Court in the case of Mithilish Kumari and Anr. v. Prem Behari Khare, . The crucial question, therefore, that arises for determination in this second appeal is whether the permission of the Rent Controller for issuance of quite notice was necessary for institution of the suit for eviction of the defendant. Clause 4(A) in Clause 2 of the Rent Control Order has been inserted vide notification/order No. BRA-1086/462/D-XII, dated 27-6-1989 and as per this amendment in the Rent Control Order, "Premises" means,-

(a) any land not being used for agricultural purposes.

(b) any building or part of a building (other than a farm building) let or given on license for residence or for the purpose of practicing any profession or carrying on any occupation therein and includes,-

(i) the garden grounds, garages and outhouses, if any, apartment to such building or part of a building;

(ii) any furniture supplied by the landlord for use in such building or part of the building; and

(iii) any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof;

but does not include a room or other accommodation in a hotel or lodging house.

9. Sub-clause (5) of Clause 2 defines "tenant" and the "tenant" means any person by whom or on whose account rent is payable for a house and includes a sub-tenant and a person continuing in possession after the term of his tenancy has expired."

10. Section 13-A contemplates that no decree for eviction shall be passed in a suit or proceeding filed and pending against the tenant in any Court or before any Authority unless the landlord produces a written permission of the Controller as required by sub-clause (1) of Clause 13 and this clause is inserted by Notification/Order No. BRA-1086/462/D-XII, dated 26-10-1989.

11. Simple reading of the aforesaid provisions of law it would reveal that a suit for eviction of the tenant is not maintainable unless the permission of the Rent Controller is obtained for issuance of quit notice. In the case of Askwini kumar Govardhandas Gandhi v. Gangadhar Dattatraya Gadgil, 1990 Mh.L.J. 18, the Division Bench of this Court held that; where the tenant renounces his character as such by setting up title in third person or by claiming title in himself as mentioned in Section 111(g) of the Transfer of Property Act, permission under Clause 13 of the C. P. and Berar Letting of Houses and Rent Control Order is not necessary for giving notice determining the lease as contemplated by clause (g) of Section 111 of the Transfer of Property Act. A suit therefore for ejectment of such tenant without obtaining the permission, of the Controller is maintainable.

12. In the case of Nababkhan Abdullakhan and Anr. v. Jamrubi w/o Abdullakhan, 1992 Mh.L.J. 260, this Court held that; "An owner of the house sought eviction of a licensee occupying the premises who did not vacate in spite of revocation of licence. The defendant denied plaintiff's title and claimed ownership in himself. The trial Court upheld the claim of the plaintiff and granted the decree of possession. The appeal came to be dismissed by the District Court. However, in Second Appeal by the defendant who was bound by the finding that he was a licensee it was contended that in view of the amendments to C. P. and Berar Letting of Houses and Rent Control Order, 1949 on 27th June 1989 and 26th October, 1989, the plaintiff would not be entitled to claim the decree of eviction. Reliance was placed on Clause 13A which was inserted by the amendment dated 26th October, 1989. In the circumstance, it was held that under Clause 2(5) of the Rent Control Order as amended tenant means any person by whom or on whose account rent is payable for premises and includes a sub-tenant and person continuing in possession after the term of his tenancy has expired. Category of mere licensees by whom the rent is not payable would not fall within the expression "tenant" and the expression "landlord" which has to be construed in a similar manner would include a person who is receiving or is entitled to receive the rent of a premises, etc. Inasmuch as the defendant was not paying any rent, he was not entitled to claim protection either of Clause 13(1) or Clause 13-A of the Rent Control Order. It was not necessary, therefore, for the plaintiff to obtain permission of Rent Controller as required by Clause 13(1).

13. In the present case the plaintiff had issued notice for revocation of licence on 25-1-1980 and the cause of action to file the suit is stated to have occurred on 10-2-1987. It is not disputed that the defendant has paid the municipal taxes and therefore, the trial Court was of the opinion that no decree for recovery of licence fees can be passed and the taxes paid on behalf of the plaintiff were to be treated as licence fees and it is therefore clear that the defendant who had not been paying any rent, would not be in a position to claim the protection under Clause 13-A of the Rent Control Order and it was not therefore necessary for the plaintiff to obtain the permission of the Rent Controller. The Single Bench decision of this Court in the case of Nababkhan v. Jamrubi (cited supra) is clearly applicable to the facts and circumstances of the present case wherein it has been held that under Clause 2(5) of the Rent Control Order as amended tenant means any person by whom or on whose account rent is payable for premises and includes a sub-tenant and person continuing in possession after the term of his tenancy has expired. Category of mere licensees by whom the rent is not payable would not fall within the expression "tenant" and the expression "landlord" which has to be construed in a similar manner would include a person who is receiving or is entitled to receive the rent of a premises, etc. Inasmuch as the defendant was not paying any rent, he was not entitled to claim protection and consequently there was no necessity for obtaining the permission of the Rent Controller as is required by the provisions of the Rent Control Order.

14. Thus, having considered the rival submissions in the present case, it is quite obvious that the appellate Court has committed an error in reaching the conclusion that the permission of the Rent Controller was necessary before institution of the suit for eviction and that the suit was not maintainable. In such a situation the impugned order passed by the appellate Court cannot be sustained in law and consequently, the appeal deserves to be allowed. In the result, this appeal is allowed and the impugned order passed by the appellate Court is set aside and that of the trial Court is restored. In the circumstances, there shall be no order as to cost.