Bombay High Court
Hiralal Ramjivan Sabu vs Bapurao Zinguji Bhoyar on 1 October, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Second Appeal No.154 of 2000
Hiralal Ramjivan Sabu,
since deceased, through his
legal representatives :
1. Smt. Sindhutai wd/o Hiralalji Saboo,
Aged about 65 years.
2. Sanjay Hiralalji Saboo,
Aged about 43 years.
3. Vinay Hiralalji Saboo,
Aged about 41 years.
4. Ajay Hiralalji Saboo,
Aged about 65 years.
All residents of Shrikrishna Peth,
Morshi 444 905, Tahsil and
District Amravati.
5. Abhay Hiralalji Saboo,
Aged about 37 years,
Occupation - Service,
Resident of Moryagiri Apartment,
Near Devang Hostel, Pimple
Nilkanth, Pune 411 027.
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All appellants through power of
attorney holder, i.e. appellant No.3
Vinay Hiralalji Saboo,
Aged about 41 years,
Shrikrishna Peth, Morshi 444 905,
Tahsil and District Amravati. ... Appellants
Versus
1. Bapurao Zinguji Bhoyar,
through his legal representatives :
1-i.
Smt. Indira wd/o Bhaurao Bhoyar,
Aged about 70 years,
R/o Main Road, Morshi,
Distt. Amravati.
2. Sharad s/o Bapurao Bhoyar (Dead),
through his legal representatives :
2-i. Smt. Kanta Sharad Bhoyar (Widow),
Aged about 34 years.
2-ii. Ku. Shamul d/o Sharad Bhoyar (Minor)
Guardian by mother,
Aged about 13 years.
2-iii. Vrushabh s/o Sharad Bhoyar (Minor),
through Guardian by mother,
Aged about 11 years.
Nos.2-i to 2-iii R/o Near Old Bus Stand,
Main Road, Morshi, Distt. Amravati.
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*3. Bharat Bapurao Bhoyar,
Aged about 45 years,
C/o Dr. Pachpore,
Main Road, Morshi,
Distt. Amravati Nirpingalai,
Tah. Morshi, Distt. Amravati.
(* Matter is abated against Respondent
No.3 vide Registrar (Judicial) Order
dated 15-10-2015).
4. Sau. Pushpa Ashokrao Dalvi,
Aged Major,
Mahesh Colony, Warud,
Tah. Warud, Distt. Amravati.
5. Lata Nitin Dalvi,
Aged Major,
R/o Mahesh Colony,
Warud, Tah. Warud,
Distt. Amravati.
6. Jyoti Subhash Dhande,
Opp. Bante Plot, Gadge Nagar,
Amravati, Tah. & Distt. Amravati.
7. Usha @ Baby Punjabrao Bhise,
Aged Major, R/o Isapur (Kh.),
Tah. Katol, Distt. Nagpur. ... Respondents
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Shri Abhay Sambre, Advocate for Appellants.
Shri V.P. Thakre, Advocate for Respondent Nos.1, 2(i), 2(iii),
4, 5 and 6.
CORAM : R.K. DESHPANDE, J.
DATE OF RESERVING THE JUDGMENT : 29-9-2016
DATE OF PRONOUNCING THE JUDGMENT : 1-10-2016
JUDGMENT :
1. The dispute in this second appeal pertains to eviction from
shop block of 15 x 20 = 300 sq.ft., situated in Ward No.17 at
Morshi. The appellant is the tenant in respect of the said shop
block. In Regular Civil Suit No.240 of 1985, the Trial Court, by its
judgment and order dated 26-2-1993, passed a decree for possession
of the suit property in favour of the respondent-plaintiff, and the
appellant-defendant is directed to deliver the possession within a
period of two months along with the amount of Rs.260/-. The Trial
Court also directed an enquiry to be made into mesne profits under
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Order XX, Rule 12 of the Code of Civil Procedure from the date of
suit, i.e. 13-9-1985, till the possession is delivered. The lower
Appellate Court has dismissed Regular Civil Appeal No.93 of 1993
by its judgment and order dated 13-3-2000. Hence, this second
appeal by the appellant-original defendant.
2. The undisputed factual position is that obtaining of
permission of the Rent Controller under Clause 13(3)(v) and (vi) of
the C.P. and Berar Letting of Houses and Rent Control Order, 1949
(for short, "the Rent Control Order") is a condition precedent for
issuance of notice to determine the tenancy under Section 106 of
the Transfer of Property Act. The permission was granted by the
Rent Controller to the plaintiff to determine the tenancy on
19-8-1977. The plaintiff issued notice dated 13-7-1978 under
Section 106 of the Transfer of Property Act determining the
tenancy of the defendant with effect from 7-8-1978 and thereafter
Regular Civil Suit No.77 of 1978 was filed on 4-11-1978 for
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eviction and possession. During the pendency of the suit, the grant
of permission by the Rent Controller on 19-8-1977 was the
subject-matter of challenge in separate proceedings in appeal, writ
petition, and ultimately before the Apex Court.
3. The plaintiff withdrew Regular Civil Suit No.77 of 1978 on
3-7-1985 without any condition. After challenge to the permission
granted by the Rent Controller attained the finality, a fresh notice
was issued by the plaintiff under Section 106 of the Transfer of
Property Act on 31-5-1985 (Exhibit 67), which was served upon
the defendant on 7-8-1985. It is on the basis of this notice that
Regular Civil Suit No.240 of 1985 was filed, in which the decree
under challenge was passed.
4. The Courts below have held that the plaintiff has
established that a permission for determination of the tenancy has
been granted by the competent authority in Revenue Case
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No.2/71(20)/75/76, and the plaintiff has established the
determination of tenancy by issuing valid notice under Section 106
of the Transfer of Property Act, 1882 on 31-8-1985. The defendant
resisted the suit on the grounds that earlier the plaintiff had issued
notice determining tenancy on 31-7-1978 by issuing notice under
Section 106 of the Transfer of Property Act, that Regular Civil Suit
No.77 of 1978 was filed, which was unconditionally withdrawn, as
a result of which, the permission granted by the Rent Controller on
19-8-1977, on the basis of which quit notice was issued on
13-7-1978 stood exhausted, and that there was a waiver of tenancy
by the plaintiff. The lower Appellate Court held that from the
pleadings of the defendant, it can be said that the earlier quit notice
dated 13-7-1978 was not valid inasmuch as it had terminated the
tenancy on the expiry on 7-8-1978, and the suit suffered from the
formal defect. The Trial Court recorded the finding that issuance of
notice and filing of civil suit and withdrawing the same is the choice
of the plaintiff and it does not amount to waiver.
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5. On 24-7-2000, this Court admitted the second appeal and
formulated the following two substantial questions of law :
1. Whether both the Courts below were right in holding
that the notice to quit dated 8-1-1985 issued by the
respondent has validly terminated the tenancy even though
the same notice has been issued by the respondent without
obtaining permission of the Rent Controller?, and
2. Whether the learned Additional District Judge was
right in recording a finding in para 14 to the effect that the
tenancy of the defendant commences from the first day of
English calender month and expired on the last date of
respective month, without there being any evidence on that
point from the side of the respondent-plaintiff, and whether
in the absence of such an evidence, the decree for
possession can be passed?
This Court has stayed the execution of the decree.
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6. Shri Sambre, the learned counsel appearing for the
appellant-tenant (defendant), has urged, relying upon the decision
of the Division Bench of this Court in the case of Chaturbhuj
Sitaram v. Manijibai Hirachand and another, reported in
AIR 1959 Bombay 292, that withdrawal of the earlier suit amounts
to waiver of the first notice issued under Section 106 of the
Transfer of Property Act and hence without obtaining a fresh
permission of the Rent Controller, as required by Clause 13(3) of
the Rent Control Order, the second suit on the basis of subsequent
notice issued under Section 106 of the Transfer of Property Act,
was not maintainable. He submits that the permission granted
stood exhausted and the notice to determine the tenancy stood
waived. He has further relied upon the provision of Order XXIII,
Rules 1, 2, 3 and 4 of the Code of Civil Procedure to urge that
withdrawal of first suit without obtaining leave of the Court
amounts to abandonment of claim, and, therefore, the second suit
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was completely barred by the provision of law.
7. I have gone through the decision of the Division Bench of
this Court in Chaturbhuj Sitaram's case, cited supra. In order to
attract the ratio of the said decision, what is required to be
established is that after issuance of notice to quit under Section 106
of the Transfer of Property Act, the landlord intended to
re-establish the relationship as "the landlord and the tenant" by
accepting the monthly rent. In the absence of there being any
evidence of acceptance of rent for a period after service of notice
upon the tenant, the question of waiver of notice would not arise.
8. Coming to the question of abandonment of the claim made
in the earlier suit, which was withdrawn unconditionally,
Shri Sambre for the appellant-tenant (defendant), has invited my
attention to Rule 4 of Order XXIII of the Code of Civil Procedure,
which is reproduced below :
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"Order XXIII - Withdrawal and Adjustment of Suits.-
(4) Where the plaintiff,--
(a) abandons any suit or part of claim under
sub-rule (1), or
(b) withdraws from a suit or part of a claim without the
permission referred to in sub-rule (3),
he shall be liable for such costs as the Court may award
and shall be precluded from instituting any fresh suit in
respect of such subject-matter or such part of the claim."
It is urged by Shri Sambre that the earlier civil suit was filed on the
basis of the same permission granted by the Rent Controller on
19-8-1977, which was exhausted by filing Regular Civil Suit No.77
of 1978. He submits that the subject-matter of the earlier civil suit
is the same property, which is the subject-matter of the suit in
question, and hence a prohibition created in Rule 4 of Order XXIII
of the Code of Civil Procedure, reproduced above, will come into
operation.
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9. Apparently, the cause of action for filing Regular Civil Suit
No.77 of 1978 was the notice issued on 13-7-1978 under
Section 106 of the Transfer of Property Act. The Courts below
have found that the earlier suit suffered from the formal defect in
the notice, as the determination of tenancy should have been by the
end of monthly tenancy. The Courts below have held that the
filing of subsequent suit was, therefore, permissible. Be that as it
may, in the decision of the Apex Court in the case of Vallabh Das
v. Dr. Madanlal and others, reported in AIR 1970 SC 987, the
Apex Court has held that the expression "subject-matter" employed
under Order XXIII, Rule 1 of the Code of Civil Procedure does not
mean the property, but it has a reference to a right in the property
which the plaintiff seeks to enforce, and the expression includes the
cause of action and the relief claimed. In the said decision, it is
further held that unless the cause of action and the relief claimed in
the second suit are the same as in the first suit, it cannot be said that
the subject-matter of the second suit is the same as that in the
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previous suit. The cause of action in the present suit, as is apparent
from the reading of the plaint, is the issuance of notice under
Section 106 of the Transfer of Property Act on 31-8-1985, whereas
in the earlier suit, it was the notice dated 13-7-1978, which was the
cause of action shown. In view of this, it cannot be said that the
bar under Rule 4 of Order XXIII of the Code of Civil Procedure
operated in the present case to entertain, try and decide the suit in
question.
10. Undisputedly, the permission granted by the Rent
Controller on 19-8-1977 was the subject-matter of appeal and
thereafter in writ petition and before the Apex Court. The
permission has been upheld ultimately by dismissing the S.L.P. by
the Apex Court. The permission granted by the Rent Controller
was not exhausted either by passing a decree or refusing to pass a
decree for eviction and possession on the basis of notice
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determining tenancy under Section 106 of the Transfer of Property
Act and, therefore, no fresh permission from the Rent Controller
was required for institution of the suit in question. The substantial
question of law at serial No.1 is, therefore, answered accordingly.
11. As to the substantial question of law at serial No.2, no
arguments are advanced by Shri Sambre for the appellant-tenant,
except those, which have been dealt with in earlier paras. The said
substantial question of law also, therefore, does not arise.
12. In the result, the second appeal is dismissed. No order as to
costs.
JUDGE.
Later on :
At the request of the learned counsel for the appellant, the
interim order passed by this Court shall stand extended for a further
period of six weeks, after expiry of which, the same shall stand
automatically vacated without reference to the Court.
JUDGE.
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Lanjewar
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