Bombay High Court
Viratna Vidyabanich vs Mohan J. Jhangiani on 8 September, 2015
Bench: M.S. Sonak
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3814 OF 1997
Viratna Vidyabanich
(since deceased by his heirs and Legal
Representatives
1A. Pornpen Sangthong and ors.) .. Petitioners
vs.
Mohan J. Jhangiani
(since deceased by his heirs and Legal
Representatives
1A. Krishna M. Jhangiani and ors.) .. Respondents
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.
CORAM : M. S. SONAK, J.
Date of Reserving the Judgment : 04 September 2015.
Date of Pronouncing the Judgment : 08 September 2015.
JUDGMENT :-
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. C-5, Block No.2, Basant Park Cooperative Housing
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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 :
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Issues:
1. Does plff. prove that the deft. remained in wilful
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
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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 statement and introduce
therein paragraphs 6-A to place on record certain subsequent events,
which might have bearing on the issue of reasonable and bonafide
requirement. Mohan Jhanginai prior to his demise has filed an
affidavit dated 16 July 2013, in the context of subsequent
developments and the same is also a part of record in the present
petition.
6] Mr. Rajesh Patil, learned counsel for the petitioners, made the
following submissions in support of the petition:
a] That in the present case, Thangyoo Vidyabanich
(original tenant) as well as his son Viratna Vidyabanich
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were the staff members or part of retinue of the
Ambassador of Thailand and therefore, in terms of Section
86(1) of the Civil Procedure Code, 1908 (CPC) the suit as
instituted was not competent, since admittedly, no consent
of Central Government certified in writing by a Secretary
to that Government had either been obtained or produced.
In this regard reliance was placed upon the decisions of
Hon'ble Apex Court in case of Veb Deutfracht Seereederei
Rostock (D.S.R. Lines A. Department of the German
Democratic Republic Vs. New Central Jute Mills
Company Limited, Calcutta1 , Mirza Ali Akbar Kashani
vs. United Arab Republic2 and of the Division Bench of
this Court in case of K.S. Dhondy vs. Her Majesty Queen
the of Netherlands & anr.3;
b] Upon demise of Thangyoo Vidyabanichon 12 May
1980, the tenancy rights in respect of suit premises,
devolved upon several legal representatives, including the
two sons Viratna, Sumitra and daughter Conchit. Only
three legal heirs were brought on record. There is dispute,
whether or not, daughter Conchit was at all served in the
1 1994 (1) SCC 282
2 1966 AIR (SC) 230
3 2013(6) Bom.C.R. 758
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proceedings. In any case, son Sumitra was never served
and finally his name was deleted from array of defendants
in the cause title. In such circumstances, Mr. Patil
submitted that there was clear non-joinder of necessary
parties. A decree of eviction against, only some of the legal
heirs, and not others, was incompetent. In this regard,
reliance was placed on the decisions of the Hon'ble Apex
Court in case of Textile Association India Bombay Unit
Vs. Balmohan Gopal Kurup4 and of the learned Single
Judge of this Court in case of B.S. Mahajan since
deceased by his heirs and legal representatives vs.
Chapsey R. Mistry5;
c] That the decree on the ground of reasonable and
bonafide requirement was vitiated by perversity. In any
case, reasonable and bonafide requirement stood eclipsed
on account of subsequent developments, i.e., sale of Flat
No. A-6 on the ground floor of Building No.2, Basant Park
to Somanis, during the pendency of the present petition;
d] That the tenant having applied for determination of
standard rent within period of one month from the date of
4 1990 (4) SCC 700
5 1988 (3) Bom.C.R. 535
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receipt of statutory notice under Section 12(2) of the Rent
Act, by legal fiction contained in Explanation-I, the tenant
ought to have been deemed to be ready and willing to pay
the standard rent. Consequently, there was no scope for
directing eviction on the ground of default in payment of
rent;
e] That in any case, the rents having been deposited
before the Trial Court, the tenant was entitled to benefit of
Section 12(3) of the Rent Act and consequently, no decree
of eviction on the grounds of default in payment of rent
could ever have been made against the tenant; and
f] That the suit premises had been let out for user as
guest house for students from Thailand. Consequently,
there was no change of user and the findings to the
contrary are vitiated by perversity.
7] Mr. Vineet B. Naik, learned senior advocate for the
respondents, submitted that the plea based upon Section 86(1) of
the CPC was never raised in the written statement filed by
Thangyoo Vidyabanich in July 1978. Such plea was very vaguely
raised by Viratna Vidyabanich in the written statement filed in
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January 1986. Both Thangyoo Vidyabanich as well as Viratna
Vidyabanich submitted to the jurisdiction of the Trial Court.
Accordingly, there was no scope to entertain the plea based upon
Section 86(1) of the CPC. In any case, Mr. Naik submitted that
neither Thangyoo Vidyabanich nor Viratna Vidyabanich were
entitled to any diplomatic immunity in absence of any general or
special order of the Central Government, in terms of Section 86(4)
(c) of the CPC. Further, Mr. Naik submitted that in the present case,
the suit premises were never taken on lease by Thangyoo
Vidyabanich or Viratna Vidyabanich and for the purposes of mission
as contemplated by Article 31(1)A of the Vienna Convention and
Diplomatic Relations, 1961. Therefore, there was no question of any
claim to diplomatic immunity qua the civil jurisdiction. For all these
reasons, Mr. Naik submitted that the plea based on Section 86 of the
CPC deserves rejection. Reliance was placed upon the decision of the
Division Bench of this Court in case of Kenya Airways vs. Jinibai B.
Heshwala6, particularly in the context of waiver.
8] Mr. Naik further submitted that the estate of Thangyoo
Vidyabanich, in the present case was sufficiently represented and the
deletion of Sumitra made no difference. Mr. Naik submitted that in
6 1998 (3) Bom.C.R. 562 (O.S)
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any case, the petitioner-Viratna Vidyabanich having deposed that he
was the one residing with Thangyoo Vidyabanich in the suit
premises at the time of Thangyoo Vidyabanich's demise in 1980 and
further that Sumitra was always reside in Thailand and Conchit in
USA, this was clearly not a case of non-joinder and necessary party.
Mr. Naik submitted that such issue was not even raised or pressed
before the Appeal Court.
9]
Mr. Naik finally submitted that there are concurrent findings
of fact recorded by the two Courts and there is no perversity
demonstrated. As such, the findings of fact ought not to be disturbed
in exercise of jurisdiction under Article 227 of the Constitution of
India. Mr. Naik countered the submission of eclipse of reasonable
and bonafide requirement by submitting that Flat No. A-6, belongs
to the plaintiff's brother's wife and the same in any case, was agreed
to be sold to the tenant occupying the same. Mr. Naik further
submitted that all the three legal representatives of the petitioner-
Viratna Vidyabanich, residing in Bangkok, Thailand and the suit
premises are locked since last several years, which fact is evident
from the certificate issued by the Society as also record of electricity
supply. For all these reasons, Mr. Naik urged that jurisdiction under
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Article 227 of the Constitution of India be not exercised in favour of
the petitioners.
10] The rival contentions now fall for my determination.
11] Section 86 of the CPC, reads thus:
86. Suits against foreign Rulers, Ambassadors and
Envoys. - (1) No foreign State may be sued in any Court
otherwise competent to try the suit except with the consent
of the Central Government certified in writing by a Secretary
to that Government:
Provided that a person may, as a tenant of immovable
property, sue without such consent as aforesaid a foreign
State from whom he holds or claims to hold the property.
(2) Such consent may be given with respect to a
specified suit or to several specified suits or with respect to
all suits of any specified class or classes, and may specify, in
the case of any suit or class of suits, the Court in which the
foreign State may be sued, but it shall not be given, unless it
appears to the Central Government that the foreign State:-
(a) has instituted a suit in the Court against the
person desiring to sue it, or
(b) by itself or another, trades within the local limits
of the jurisdiction of the Court, or
(c) is in possession of immovable property situate
within those limits and is to be sued with reference to
such property or for money charged thereon, or
(d) has expressly or impliedly waived the privilege
accorded to it by this section.
(3) Except with the consent of the Central
Government, certified in writing by a Secretary to that
Government, no decree shall be executed against the
property of any foreign State.
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(4) The preceding provisions of this section shall
apply in relation to--
(a) Any Ruler of a foreign State;
(aa) Any Ambassador or Envoy of a foreign State;
(b) Any High Commissioner of a Commonwealth
country; and
(c) Any such member of the staff of the foreign
State or the staff or retinue of the Ambassador or
Envoy of a foreign State or of the High
Commissioner of a Commonwealth country as
the Central Government may, by general or
special order, specify in this behalf, as they
apply in relation to a foreign State;
(5) The following persons shall not be arrested
under this Code, namely:--
(a) Any Ruler of a foreign State;
(b) Any Ambassador or Envoy of a foreign State;
(c) Any High Commissioner of a Commonwealth
country;
(d) Any such member of the staff of the foreign State
or the staff or retinue of the Ruler, Ambassador or
Envoy of a foreign State or of the High Commissioner
of a Commonwealth country, as the Central
Government may, by general or special order, specify
in this behalf.
(6) Where a request is made to the Central
Government for the grant of any consent referred to in sub-
section (1), the Central Government shall, before refusing to
accede to the request in whole or in part, give to the person
making the request a reasonable opportunity of being heard.
(Emphasis supplied)
12] Sub-section (1) of Section 86 of the CPC provides that no
foreign State may be sued in any Court otherwise competent to try
the suit except with the consent of the Central Government certified
in writing by a Secretary to that Government. Sub-section (2) of
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Section 86 of the CPC provides for the manner and the
circumstances in which the consent may be given by the Central
Government. Sub-section (3) of Section 86 of the CPC provides that
except with the consent of Central Government, certified in writing
by a Secretary to that Government, no decree shall be executed
against the property of any foreign State. Sub-section (4) of the
Section 86 of the CPC, which is very relevant for determination of
the issue raised in the present petition, provides that the provisions
contained in sub-sections (1)(2) and (3) of Section 86 shall apply in
relation to the following :
(a) Any Ruler of a foreign State;
(aa) Any Ambassador or Envoy of a foreign State;
(b) Any High Commissioner of a Commonwealth
country; and
(c) Any such member of the staff of the foreign
State or the staff or retinue of the Ambassador or
Envoy of a foreign State or of the High Commissioner
of a Commonwealth country as the Central
Government may, by general or special order, specify
in this behalf, as they apply in relation to a foreign
State;
13] In the present case, Thangyoo Vidyabanich in his written
statement filed in July 1978 had not raised any plea based upon
Section 86 of the CPC. In paragraph 1 of the written statement,
there was a bald statement that the suit as filed is not maintainable
and be dismissed with costs. As noted earlier, Thangyoo
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Vidyabanich died on 12 May 1980. Upon his legal heirs being
brought on record, his son Viratna filed written statement in January
1986. In this written statement, Viratna Vidyabanich, at paragraph 4
submitted that the suit as filed is not maintainable without the
consent of Central Government in writing by a Secretary to that
Government, since Thangyoo Vidyabanich (original defendant) was
the retinue of the Government of Thailand and Viratna Vidyabanich,
his son is the member of the staff of the Consulate General of
Thailand. In the course of deposition, Viratna Vidyabaich also
produced a certificate issued by Thai Government that Thangyoo
Vidyabanich was representing the Thai Government, as well as an
identity card issued by the Chief Secretary, State of Maharashtra to
the effect that Viratna Vidyabanich was a staff member of the
Consulate of Thailand. Without going into the issue as to whether
documents produced by Viratna Vidyabanich during the course of his
deposition are sufficient to establish that Thangyoo Vidyabanich and
Viratna Vidyabanich are members of the staff or retinue of the
Ambassador of Thailand or not, it is clear that the petitioners seek
diplomatic immunity on basis of the claim that his father Thangyoo
Vidyabanich and himself are persons referred to in Section 86 (4)(c)
of CPC.
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14] Section 86(4)(c) of the CPC makes reference to member of the
staff of the foreign State or the staff or retinue of the Ambassador or
Envoy of a foreign State of of the High Commissioner of a
Commonwealth country 'as the Central Government may, by general
or special order, specify in this behalf, as they apply in relation to a
foreign State' . Such italicised portion applies only to sub-clause (c)
and not to the persons referred to in sub-clauses (a), (aa) and (b) of
Section 86 (4) of the CPC. It is obvious, therefore, that the
legislature intended to treat differently persons referred to in sub-
clauses (a), (aa) and (b) on one hand and persons referred to in sub-
clause (c) on the other. The reason also appears to be obvious. When
it comes to any Ruler of foreign State, Ambassador, Envoy of a
foreign State or High Commissioner of a Commonwealth country, in
the context of their diplomatic status and position , the legislature
did not deem it fit to insist upon some general or special order from
the Central Government, for the purposes of grant of diplomatic
immunity to such persons. However, if immunity is to be claimed in
respect of member of the staff of the foreign State or staff or retinue
of the Ambassador or Envoy of a foreign State or of the High
Commissioner of a Commonwealth country, then the legislature has
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deemed it appropriate that there is some general or special order of
the Central Government to the said effect.
15] In the present case, as noted earlier, Thangyoo Vidyabanich,
in his written statement filed in July 1978 neither claimed to be a
member of the staff of foreign State of retinue of the Ambassador of
Thailand nor claimed any diplomatic immunity in the suit. His son
Viratna Vidyabanich, in addition 1986 has claimed immunity on the
basis that he is the member of the Staff of Royal Consulate of
Thailand. If this be the position, it was incumbent upon both
Thangyoo Vidyabanich and Viratna Vidyabanich to plead and
establish that the Central Government, by any general or special
order, has conferred diplomatic immunity in terms of Section 86 of
the CPC , upon them personally or at least, upon the members of the
staff of Royal Consulate of Thailand. In the absence of any such
pleadings and proof, there is really no question of claiming immunity
in terms of Section 86(1) of CPC.
16] The provisions in Section 86 of CPC are based on the principle
that the dignity and independence of the Ruler of a foreign State,
Ambassador, Envoy or High Commissioner would be endangered, if
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any, person is allowed to sue him at his pleasure and such a suit may
cause political inconvenience and complications. The immunity
under Section 86 of the CPC can be claimed by any Ruler,
Ambassador or Envoy of the foreign State, or High Commissioner of
Commonwealth Country on the basis of sovereignty of the State,
which they rule or represent. However, when it comes to extension
of such immunity to members or staff of the foreign State or the staff
or retinue of the Ambassador, Envoy or High Commissioner, there
must exist general or special order of the Central Government in this
behalf, before such immunity is claimed under Section 86(1) of the
CPC. Therefore, in the absence of any such general or special order
from Central Government, there is no question of Thangyoo
Vidyabanich or his son Viratna claiming immunity or urging that the
suit was not maintainable, in terms of Section 86(1)of the CPC.
17] The issue can be considered from yet another perspective.
Thangyoo Vidyabanich in his written statement filed in July 1978
did not seek any immunity in terms of Section 86(1) of the CPC.
Rather, Thangyoo Vidyabanich submitted to the jurisdiction of the
Civil Court. In these circumstances, it is reasonable to proceed on the
basis that Thangyoo Vidyabanich waived immunity, if any, in terms
of Section 86(1) of CPC. The Division Bench of this Court in case of
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Kenya Airways (supra) has held that it is not open to the defendants
to raise plea of want of consent under Section 86(1) of CPC after
almost sixteen years from filing of the suit and submitting to the
jurisdiction of the Court. At paragraph 15, the Division Bench
observed thus:
15. ................. In our judgment, it is not open to the
defendants to raise the plea for the first time after almost
sixteen years of the filing of the suit after submitting
themselves to the jurisdiction of the court. They have filed
their appearances and appeared in the proceedings. They
have given undertakings and made statements thereby
avoided appointment of Court Receiver. They have filed their
respective written statements wherein this plea has not been
raised. Having submitted to the jurisdiction of the Court they
would be deemed to have waived their right if any under
section 86 of the Code. They cannot, therefore, be permitted
to raise the plea in respect of maintainability of the suit
under section 86 of the Code. Present suit, thereafter, cannot
be held to be 'not maintainable' on the ground of want of
consent under Section 86 of the Code.
18] If Thangyoo Vidyabanich had waived the immunity, then
there is no question of his legal heirs insisting upon such immunity.
In any case, both Thangyoo Vidyabanich as well as his son Viratna
Vidyabanich, in absence of any general or special order of the
Central Government, cannot be regarded as persons to whom the
provisions of sub-section (1),(2) and (3) of Section 86 of CPC, can at
all apply, having regard to the provisions contained in Section 86(4)
(c) of CPC.
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19] There are at least three decisions 7, however, which have taken
the position that provisions of Section 86 are statutory, imperative,
based on public policy and therefore, they cannot be waived. The
first is the decision of Privy Council and other two decisions of the
learned Single Judge of this Court. The Division Bench of this Court,
however, in case of Kenya Airways (supra), has held that the
defendants having submitted to the jurisdiction of the Civil Court
can be said to have waived immunity under Section 86(4)(c) of the
CPC. In these circumstances, it is made clear that waiver is only, an
additional reason, in the facts and circumstances of the present case,
to reject the plea of immunity in terms of Section 86(1) of the CPC.
Primarily, the petitioners have failed to make out any case that either
the original defendant Thangyoo Vidyabanich or his son Viratna
Vidyabanich were persons entitled to immunity under Section 86(1)
of the CPC.
20] In case of Mirza Ali (supra), the defendant was a foreign State,
i.e., United Arab Republic and the second defendant was merely the
Department of the foreign State. In these circumstances, obviously
the provisions of Section 86(1) of CPC were held to be attracted.
7 Gaekwar Baroda State Railway Vs. Hafiz Habib-ul-Haq- AIR 1938 Privy Council 165, Thakore Saheb
Khanji Kashari Khanji Vs. Gulam R. Chandbhai - AIR 1955 Bombay 449 & Bai Shakri Vs.
Bapusinghji Takhatsinhji - AIR 1958 Bombay 30
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The decision is clearly distinguishable, as in case with which we are
concerned immunity is not claimed by any foreign State or its
department.
21] Similarly, in case of K.S.Dhondy (supra) , the defendant was
Her Majesty Queen of Netherlands and it is in this circumstance that
immunity under Section 86(1) of CPC was claimed and upheld. This
decision is also distinguishable, as in the facts and circumstances of
the present case, the defendant does not claim to be Ruler of any
foreign State.
22] In case of Veb Deutfracht Seereederei Rostock (D.S.R. Lines)
(supra), clear finding was entered that the appellant was a
Department of German Democratic Republic and therefore entitled
to immunity under Section 86(1) of the CPC. Again, for that matter
the defendants in that suit have not made any such claim and
therefore, the decision in case of Veb Deutfracht Seereederei Rostock
(D.S.R. Lines) (supra), is distinguishable.
23] The Trial Court in the present case has adverted to yet another
circumstance, namely that the suit premises had not been taken on
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lease by Thangyoo Vidyabanich for the purposes of Thai Consulate
or the Ambassador of Thailand, but the same were taken on lease by
said Thangyoo Vidyabanich his own purposes. This Court, in case of
Ms. Eva Drdakova, Consul General of Czech Republic and anr. vs.
M/s. Khemka Exports Private Ltd8 by reference to the provisions
contained in Article 31 of the Vienna Convention and Diplomatic
Relations, 1961 noted that even a diplomatic agent shall enjoy
immunity from the civil and administrative jurisdiction, except in
case of a real action relating to private immovable property situated
in the territory of the receiving State, unless he holds it on behalf of
the sending State for the purposes of the mission or an action
relating to any professional or commercial activity exercised by the
diplomatic agent in the receiving State outside his official functions.
Even the Hon'ble Apex Court in case of Veb Deutfracht Seereederei
Rostock (D.S.R. Lines) (supra), upon which reliance was placed by
Mr. Patil has held that the immunity and protection extended to
foreign State, on the basis of International Law should not be
stretched to a limit so that a foreign company trading between the
local limits of the jurisdiction of the court concerned, may take a
plea of Section 86 although prima facie it appears that such
company or corporation is liable to be used for any act or omission
8 CRA 262 of 2010 decided on 30/11/2011
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on their part for any breach of terms of contract entered on their
behalf. It is neither the purpose nor the scope of Section 86 to
protect such foreign trader who have committed breach of the terms
of contract causing loss and injury to the plaintiff. Again, however, it
is not necessary to pursue this point any further, as neither the
original defendant Thangyoo Vidyabanich nor his son Viratna have
established that they were persons entitled to immunity in terms of
Section 86 (4)(c) of the CPC. For all the aforesaid reaons, Mr. Patil's
first contention based upon Section 86(1) of the CPC is rejected.
24] In so far as Mr. Patil's second contention is concerned,
reference is required to be made to the deposition of Viratna
Vidyabanich. In the first place, Viratna has deposed that he was
residing with his father Thangyoo Vidyabanich in the suit premies.
Further, his elder brother Mr. Sumitra is residing in Thailand and his
sister Conchit is residing in Washington DC. USA. In terms of
Section 5(11)(c) (i) of the Rent Act, in relation to any premises let
for residence, when the tenant dies, whether the death has occurred
before or after the commencement of the Bombay Rents, Hotel and
Lodging House Rates Control (Amendment) Act, 1978, any member
of the tenant's family residing with the tenant at the time of his
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death or, in the absence of such member, any heir of the deceased
tenant, as may be decided in default of agreement by the Court, is to
be regarded as the tenant of the suit premises. In this case,
Thangyoo Vidyabanich, the original tenant expired in the year 1980.
Therefore, in terms of definition contained in Section 5(11)(c)(i) of
the Rent Act, Viratna on the basis of his own deposition became the
tenant in respect of suit premises. The impleadment of Sumitra and
Conchit, who were admittedly not residing with the original tenant
Thangyoo Vidyabanich at the time of his demise, was possibly out of
abundance of caution or at the highest, as proper parties. The
deletion of Sumitra who is admittedly, the resident of Thailand,
therefore, was by no means fatal to the prosecution of the suit.
There is, accordingly, no merit in the second contention of Mr. Patil
that the suit was infirm for non-joinder of or the deletion of the
some necessary party.
25] In case of Textile Association India Bombay Unit (supra), there
was a finding of fact that the respondent was as much a tenant as
the mother and other brother and therefore, ex-parte decree of
eviction obtained against the mother and brother, without
impleading the respondents, was illegally infirm. Similarly, in case of
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B.S. Mahajan (supra), there was a clear finding that all the legal
heirs of the deceased tenant had duly inherited the tenancy rights
and landlord, despite being made aware of this position, had failed
to implead some of the legal heirs on record. The facts and
circumstances in the two decisions, do not offer any parallel to the
facts and circumstances of the present case. In this case, based upon
the evidence of Viratna, it was Viratna, who became the tenant in
respect of suit premises, upon the demise of his father Thangyoo
Vidyabanich . In any case, there was sufficient representation,
insofar as legal representatives of Thangyoo Vidyabanich are
concerned. Accordingly, Mr. Patil's second contention with regard to
non-joinder or deletion of necessary party cannot be accepted.
26] In so far as remaining contentions of Mr. Patil are concerned,
it must be noted that there are concurrent findings of fact recorded
by the two Courts that the grounds on basis of which eviction was
applied for, have been proved on the basis of material on record. No
perversity was demonstrated in the concurrent findings of fact so
recorded. Under Article 227 of the Constitution of India, this Court
does not exercise any appellate jurisdiction. Therefore, unless it is
demonstrated that the concurrent findings of fact are perverse, there
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arises no question of any interference merely on the basis of
reappreciation of the material on record.
27] The contention that the reasonable and bonafide requirement
stood eclipsed on account of Agreement to sale Flat No.A-6 on the
ground floor of Building Basant Park by the landlord to Somanis,
cannot be accepted. The material on record, including inter alia the
clafrification in the affidavit-in-reply filed by late Mohan Jhangiani
makes it clear that said Flat No.A-6 belonged to his sister in law Mrs
Devi Jhangiani. The Somani were sitting tenants of the said flat,
except the two small rooms with kitchen in the passage which were
in occupation of late Mrs. Devi Jhangiani. Mrs. Devi Jhangiani and
her husband were looked after by Somani family and it was
therefore, their wish that said Flat No. A-6 be sold to Somanis at
reasonable price. It is in these circumstances, that Mohan Jhangiani
in his capacity as nominee sold the said Flat to Somanis who, in any
case were sitting the tenants of the substantial portion of the said
flat for last 30 years. This material, is sufficient to hold that
reasonable and bonafide requirement held as proved by the two
Courts, was not eclipsed.
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28] On the aspect of change of user, the two Courts have
concurrently held against the petitioners. No perversity in the record
of finding of such fact is demonstrated. Accordingly, there is no
reason to interfere with the such findings.
29] Although, there is some material on record to indicate that
Thangyoo Vidyabanich (tenant) had filed proceedings for
determination of standard rent, there is no material on record, at
least none was demonstrated to establish that such proceedings were
instituted within a period of one month from the date of receipt of
statutory notice under Section 12(2) of the Rent Act. Explanation-I
to Section 12 of the Rent Act provides that in any case where there is
dispute as to the amount of standard rent or permitted increase
recovereable under the Act, the tenant shall be deemed to be ready
and willing to pay such amount if, before the expiry of the period of
one month after notice referred to in sub-section (2), he makes an
application to the Court under sub-section (3) of section 11 and
thereafter pays or tenders the amount of rent or permitted increases
specified in the order made by the Court. In the absence of any
material to establish that such application under Section 11(3) of
the Rent Act was indeed made before the expiry of period of one
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month from the date of receipt of statutory notice under Section 12
(2) of the Rent Act, there is no question of the petitioner's claiming
the benefit of legal fiction contained in Explanation-I. Similarly, the
petitioners in the present case, cannot claim the benefit of the
provisions contained in Section 12(3) of the Rent Act because there
is really no material to establish that the arrears of standard rent and
permitted increases were indeed deposited in the Court on the first
day of hearing of the suit together with interest at the prescribed
rate and that such standard rent and permitted increases were
regularly paid or tendered in the Court till the suit was finally
decided. In any case, since the ground of reasonable and bonafide
requirement as well as the ground of change of user stands proved,
there is no question of interfering with the order of eviction, based
upon strained interpretation of the provisions contained in Section
12 of the Rent Act.
30] As noted earlier, Viratna died on 18 April 2015. Thereafter, the
wife Pornpen, his son Witsanu and daughter Pamela were permitted
to be brought on record without prejudice to the rights of
respondents to raise objections that such legal heirs of Viratna are
not entitled to continue with the present proceedings.
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31] In Civil Application No. 1612 of 2015, taken out by said heirs
for bringing themselves on record, there is a statement that
petitioner No.1A Pornpen and petitioner No.1B Witsanu reside in
Thailand. Petitioner No.1B Witsanu has started his own business of
Fisheries in Thailand. Petitioner No.1C Pamela works with Royal
Thai Consulate at Dubai. These statements are relevant, even
though, the petitioners, in their Civil Application have made a casual
statement that they are desirious of residing at Mumbai. These
statements are relevant because Mohan Jhangiani in his affidavit-in-
reply has made categorical statement that the suit premises are lying
vacant since the year 2000 and that neither Viratna (while he was
living) nor his wife and children have bothered to visit or enter the
suit premises. No repairs are being carried out and the closed suit
premises are a source of nuisance to the occupants in the building.
Even electricity meters have been taken away by Reliance Energy
several years ago and the Society dues are being paid by the
landlord. The affidavit also states that a Power of Attorney Holder is
pursuing the petition. There is no affidavit-in-Rejoinder filed by and
on behalf of the petitioners. The petitioners have not made out any
case warranting interference with the concurrent findings recorded
by the Courts. Further, these are additional reasons as to why
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equitable and discretionary jurisdiction under Article 227 of the
Constitution of India need not be exercised in favour of the
petitioners.
32] In view of the aforesaid discussion, there is no merit in this
petition. The same is dismissed. There shall be no order as to costs.
(M.S. SONAK, J.)
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