Yogendrakumar Laxminarayan ... vs Dr.K.T.Masrani & Ors
2017 Latest Caselaw 7289 Bom

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                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 CIVIL APPELLATE JURISDICTION
                                WRIT PETITION NO.2118 OF 1997


         1   Yogendrakumar Laxminarayan Zaveri
         2   Bharatkumar Laxminarayan Zaveri
         3   Virendrakumar Laxminarayan Zaveri

            All of Mumbai inhabitants,
            Residing at 1, K.M. Zaveri Road,
            Mumbai - 400 004                        ....     Petitioners
                                                             (Original Plaintiffs)
                        Versus

         1   Dr. K.T. Masrani 
             having his address at Shanti 
             Apartment, Opp.: While House,
             5th Floor, Walkeshwar Road, Mumbai - 5

         2  Shri. K.B. Shah of Mumbai
            Indian Inhabitant, having their
            address at "Masrani Clinic",
            1st floor, 1, K.M. Zaveri Road,
            Mumbai - 400 004 and new
            address at Migo Lab, Dani House,
            2, V.P. Road, Ground floor,
            Next to Girgaum Post Office,
            Mumbai - 400 004

         3  Dr. Mahesh N. Mehta of Mumbai                    (W.P. stand
            Indian Inhabitant having his                     dismissed as 
            address at "Masrani Clinic", 1st floor,          against Resp.Nos.
            1, K.M. Zaveri Road,                             2 to 4 vide Court's
            Mumbai - 400 004 and new                         Order dated
            address at 54, C.P. Tank Road,                   14/1/2011).
            1st Floor, Above Bhatt Vijay Hindu Hotel,
            Mumbai - 400 004.



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         4  Rajendra Laxminarayan Zaveri
            Mumbai Inhabitant, residing at 
            1, K.M. Zaveri Road, Room No. 22,
            23 and 24, Mumbai - 400 004.                      ....    Respondents
                                                                   (Nos. 1 to 3- Ori.
                                                                    Defendants No.4
                                                                    (Ori. Plaintiff no.1)

         Mr. Y.S. Jahagirdar, Senior Advocate i/by Mr. S.S. Kanetkar a/w Tejas P. 
         Hartalkar for the Petitioners. 

         Mr.   Feroze   B.   Andhyarujina,   Senior   Advocate   i/by   Pawankumar   R. 
         Prasad, for the Respondents. 


                                            CORAM   :  G.S. KULKARNI, J.
                                            DATE     :    19 SEPTEMBER, 2017

         JUDGMENT :

1 The petitioners-landlords are before the Court in this

proceedings under Article 227 of the Constitution of India, being

aggrieved by the dismissal of their eviction suit against the respondents-

tenants, by the learned Judge of the Small Causes Court at Bombay as

confirmed by the appellate Bench of the Small Causes Court, by the

impugned judgments dated 22nd February, 1990 and 25th October, 1996

respectively. The prayer of the petitioners is interalia for setting aside

the judgments of both the courts and that the eviction suit (RAE & R

Suit No. 1461/4787 of 1983) filed by the petitioners be decreed.

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         2                 In   brief,   the   facts   can   be   summarized   thus.     The   suit 

premises, of which the petitioners are the landlords, consists of three

rooms bearing Nos. 26, 27 and 28 on first floor of the building known as

"Javeri Building", situated at K.M. Zaveri Road, Mumbai. Respondent

no.1 is the tenant of the suit premises at the monthly rent of Rs.179.44

ps. and was using the suit premises for conducting a pathology clinic

known as "Masrani Clinic". Respondent Nos.2 and 3 were inducted into

the premises by respondent no.1 who were using the suit premises in

conducting the clinic.

3 The father of the present petitioners, on 5 th October, 1973,

had initially filed an Ejectment Suit No. 1619/5653 of 1973 against

Respondent no.1 on the grounds of breach of written terms and

conditions of tenancy dated 12th March, 1969 and unlawful subletting,

and/or inducting respondent no.2 in the suit premises on leave and

licence. Further during the pendency of said ejectment suit, respondent

no.1 inducted respondent no.3 in the suit premises. This suit of the

landlords came to be compromised between the parties in terms of

consent terms dated 17th June, 1978. The basis of this compromise was

a writing dated 17th June, 1978 executed by respondent no.1 in favour

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of the petitioners father-landlord, which is referred by the parties as a

tenancy agreement/rent note or a kabuliatnama. The contents of this

letter are quite relevant and have a bearing on the present dispute

which reads thus :

"This is to record that we have mutually compromised the above suit. I, on my part have agreed to the following terms and conditions besides the compromised terms which have been agreed upon between us and which we have agreed to file and which terms and conditions together with the compromised terms shall form part of my tenancy.

1 I shall occupy the suit premises viz. two rooms on the 1 st floor of 1, K.M. Zaveri Road, Bombay 4 as a monthly tenant according to the full English Calendar month i.e. the month ending with the last day.

2 I shall pay to you or to your authorised agent the monthly rent of Rs.119.44 which is inclusive of all permitted increases upto 31.3.1978 but is exclusive of electric charges.

3 I shall also pay to you or to your authorised agent all rates, taxes, assessments, cesses, charges and other outgoings whatsoever payable for and/or in respect of the said premises from 1.4.78.

4 I shall also carry out all repairs in and to the said premises at my own costs, and if there is any leakage of water from my said room, I shall carry out the said repairs at my own costs so as to stop the leakage of water.

5 At present one K.B. Shah, a Microbiologist and Dr. Mahesh N. Mehta have been working with me in running my clinic known as "Masrani Clinic" and they will be working with me till 31 st of December, 1982 and thereafter I will not either keep them with me and/or permit them to use my said premises under any agreement or arrangement whatsoever. Further, I shall also not sublet, transfer or assign my said premises to anybody also nor will I permit any other person to use the said premises independently and/ or along with me in any capacity whatsoever.

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                           6       I shall use the said premises as a Dispensary only.
                           7       I   shall   not   make   any   alterations   and/or   additions  

structural of otherwise whatsoever without first obtaining your written permission, giving of which consent shall be in your absolute discretion.

8 I shall not do or suffer to be done any act deed or matter which would be a source of nuisance and/ or annoyance either to you and/or to other occupants of your said property.

9 I will not allow anybody except my own compounder to sleep at night in the said premises.

10 I shall not use and will not be entitled to use the staircase leading from Kumbhartukda side and also the passage to the rear of my said premises but will only use the staircase from Bhuleshwar side.

If I commit any breach of any of the terms and conditions herein contained and/ or of my any other statutory obligations for the time being in force, you and your successors shall be entitled to evict me and my heirs, executors and administrators from the said premises by giving one month's notice in writing."

(emphasis supplied)

4 Apart from the above tenancy agreement, respondent nos. 2

and 3 also executed a writing of the same date (17 th June, 1978),

interalia recording that they have no independent right whatsoever in

the suit premises and that they were running the clinic alongwith

respondent no.1. This writing on behalf of the respondent nos. 2 and 3

reads thus:

"This is to confirm that we along with Dr. K.T. Masrani are running the clinic known as "Masrani Clinic" belonging to the said Dr. K.T. Masrani. We have no independent right whatsoever in the

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said premises where the said clinic is being conducted and we shall not claim any independent right in the premises. We shall abide by your agreement of tenancy dated 17-6-1978 with the said Dr. K.T. Masrani so long as we run the said clinic. "

5 On the basis of the above clear understanding between the

parties, the ejectment suit came to be compromised between the

landlords and respondent no.1 by the following consent terms of the

same date (17/6/1978), which reads thus :

"1 The Defendant no.1 states that he is in actual occupation and possession of the suit premises and that he has not sublet and/or assigned and/or transferred the suit premises or any portion thereof to anybody also and that he will not sublet, transfer, assign the suit premises or any portion thereof nor will he allow anybody also excepting paid staff to use the said premises under any agreement whatsoever.

2 The defendant no.1 further states that the defendant no.2 and one Dr. Mahesh N. Mehta are jointly running the Dispensary in the name of Dr. Masrani Clinic.

3 The defendant no.1 hereby agrees that he will not keep the defendant no.2 and the said Dr. Mehta either as a partner and/or in any other capacity after 31.12.1983 and will not take any other person in the suit premises hereafter.

4 The defendant no.1 also agrees not to throw used bandages, urine bottles, stools etc. outside the suit premises.

5 The defendant no.1 agrees and undertakes not to use or allow to be used the staircase on the Kumbhartukda side and also the passage to the rear of the suit premises but will only use the staircase from Bhuleshwar side for the purpose of going to the suit premises.

6 The defendant no.1 admits having executed a separate agreement of tenancy besides the aforesaid terms which shall also form part of the terms of tenancy.

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                            7       The   parties   agree   to   get   the   suit   marked   settled   and  

dismissed with no order as to costs and the defendant no.1 hereby withdrawn his advocate's letter dated 10th October 1977."

6 Clause 3 of the consent terms read with Clause 5 of

Kabuliatnama, according to the petitioners had created an absolute

obligation on respondent no.1 that he will not permit respondent nos.2

and 3 as partners and/or keep them in any other capacity after 31 st

December, 1982 in the suit premises as also will not induct thereafter

any other person in the suit premises. Respondent no.1, under the said

clauses had also agreed not to sublet, transfer or assign said premises to

anybody or to permit any other person to use the said premises

independently or alongwith him in any capacity whatsoever. The

petitioners lay emphasis on the last para of the tenancy agreement

which records that if respondent no.1 commits breach of any of the

terms and conditions of the said tenancy agreement and/or of statutory

obligations for the time being in force, the landlord would become

entitled to evict respondent no.1 by giving one month's notice.

7 It is the petitioners' case that respondent no.1 acted in

complete breach of the tenancy agreement dated 17 June 1978 which

came to be confirmed by respondent no.1 in judicial proceedings before

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the Court in the consent terms executed by him in R.A.E. 1619/5653 of

1973 in as much as respondent nos. 2 and 3 continued to occupy and

not vacate the suit premises as on 31 December 1982.

8 The petitioners therefore by their advocate's letter dated 11

January 1983 addressed to respondent no. 1 recorded that respondent

no.1 had permitted respondent nos.2 and 3 to occupy the suit premises

after 31 December, 1982 and that there was a collusion between them in

permitting respondent nos.2 and 3 to enjoy the suit premises in breach

of Clause 5 of the tenancy agreement as confirmed by the Clause 3 of

the consent terms. The petitioners stated that the letter dated 27 th

December, 1982 addressed by respondent no.1 to respondent nos. 2 and

3 asking them to vacate the suit premises was sham.

9 The petitioners on the above background filed the suit in

question being R.A.E. & R. Suit No. 1461/4787 of 1983 seeking a decree

of eviction against respondent nos.1, 2 and 3 on the principal ground

that there was breach of the tenancy agreement dated 17 June 1978 as

respondent no.1 had permitted respondent nos. 2 and 3 to continue to

use the suit premises in breach of the tenancy agreement. It was the

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petitioners' case that respondent no.1 was indirectly recovering more

rent from respondent nos. 2 and 3 and therefore was profiteering by

receiving such rent and compensation and on the other hand,

respondent no.1 was paying a meagre amount to the petitioners as rent.

Accordingly the petitioners prayed for a decree of eviction against

respondent nos. 1 to 3. It is material to note the averments as made in

paragraphs 2 to 4 of the plaint of the suit in question. In these

paragraphs of the plaint, the petitioners categorically state that the

earlier suit was filed against respondent no.1 on the ground of unlawful

subletting and/or granting the suit premises on leave and licence, to

respondent no.2, who was also joined as a defendant in the said suit

(Ejectment Suit No.1619/5653 of 1973), which was compromised with

respondent no.1. In paragraph 4 of the plaint, it was averred that apart

from the consent terms, there was also a separate writing namely the

tenancy agreement/rent note executed between the petitioners' father

(landlord) and respondent no.1 as also there was a separate writing

dated 17th June, 1978 executed by respondent nos. 2 and 3. These

averments in paragraphs 2 to 4 of the plaint reads thus:

"2 On 5th October 1973, the plaintiff no.1 had filed an ejectment suit against the defendant no. 1 herein on the grounds of the breach of written terms and conditions of tenancy dated 12-3-1969 and also on the ground of unlawful subletting and/or

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giving on leave and licence basis the said premises to the 2 nd Defendant herein. In the said suit, the 2 nd defendant herein was joined as a party defendant. The plaintiffs will crave leave to refer to and rely upon the papers and proceedings of the said Ejectment Suit No. 1619/5653 of 1973.

3 During the pendency of the said ejectment suit, the 1 st defendant inducted the 3rd defendant also in the suit premises.

4 On 17th of June 1978, the 1st plaintiff and the defendants herein entered into compromise and on the same day i.e. 17 th June, 1978, consent terms between the plaintiff and the defendant no.1 herein were filed and a separate writing dated 17th of June 1978 was executed by the defendant nos.2 and 3 herein in favour of the 1st plaintiff. Hereto annexed and marked Ex.'A' colly are copy of the said consent terms and the said writing."

10 Respondent no.1 appeared in the suit and filed a written

statement. In regard to the petitioners' clear averments as made in the

plaint in paragraphs 2 to 4 as noted above, the following was the

response of respondent no.1, in the written statement.:

"With reference to paras 2 to 4 of the plaint, this defendant states that what is stated therein is substantially correct. This defendant states that this defendant had filed his written statement and he states that what is stated therein is correct. This defendant also refers to the written statement of the defendant no.2 herein filed in the said R.A.E. Suit No.1619/5653 of 1973."

The above averments, according to the petitioners would

show that there is clear admission on the part of respondent no.1 that

the petitioners were seeking a decree on the ground of unlawful

subletting, and/or letting the suit premises on leave and licence to

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respondent nos.2 and 3.

11 As seen from paragraph 5 of the written statement,

respondent no.1 disputed the tenancy agreement on the ground that it

was not properly stamped. As also on the ground that terms no. 6, 9

and 10 of the tenancy agreement were contrary and inconsistent with

the provisions of the Rent Act. In paragraph 6 of the written statement,

respondent no.1 clearly averred that respondent nos. 2 and 3 did not

have any right, title and interest in the suit premises. It was also stated

that respondent no.1 had discharged his obligations under the tenancy

agreement and/or the consent terms by calling upon respondent nos. 2

and 3 to vacate the suit premises as also by instituting L.E. Suit No.

65/70 of 1983 and L.E. Suit No. 64/70 of 1983 seeking eviction of

respondent nos.2 and 3. Respondent no.1 also pleaded a case of

collusion between respondent nos.2 and 3 and the petitioners to

contend that he was always ready and willing to abide by the terms of

the tenancy. Respondent no.1 contended that in fact on the same

allegations as made in the earlier suit (Ejectment Suit No. 1619/5653 of

1973), the petitioners had filed the suit in question, when in fact the

earlier suit was settled, out of court.

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         12              Respondent nos.2 appeared and filed his written statement 

contesting the suit, contending that the suit against him was not

maintainable, as respondent no.1 allowed him to use and occupy the

room on leave and licence, since December, 1972 for licence fees or

charges and that the said licence was valid and subsisting on 1 February,

1973 namely the deemed date as inserted in Section 15-A of the

Bombay Rent Control Act, by which the law conferred "deemed

tenancies" on licensees. It was contended that the writing dated 17

June, 1978 as executed by him in favour of the petitioners was got

executed on a mis-representation and that the consent terms and the

said writing did not represent the real intention of the parties. It was

contended that the consent terms did not take away the rights of

respondent no.2 to occupy the said premises within his independent

right as a deemed tenant.

13 Respondent no.3 also filed his written statement resisting

the claim of the petitioners. His case was similar to that of respondent

no.2 that he was occupying the suit premises initially on a leave and

licence for a licence fee or charges. He also claimed protection as a

deemed tenant under Section 15-A of the Bombay Rent Act.

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         14              However, during the pendency of the suit, on 24 April, 1985 

and on 19 November, 1987, respondent nos.2 and 3 vacated their

respective portions/rooms in the suit premises. Respondent nos. 2 and 3

filed their respective affidavits dated 7 February 1986 and 29 March

1988 stating that they have vacated the suit premises. The suit was

therefore contested by respondent no.1. The petitioners and respondent

no.1 led their evidence.

15 The learned trial Judge, on the above rival pleas,

considering the evidence on record, did not accept case of the

petitioners. The learned trial Judge interalia observed that the

occupancy of respondent nos. 2 and 3 in the suit premises by virtue of

the consent terms was legalised and acknowledged upto 31 December

1982 and as respondent no.1 had taken steps by writing letter dated 27

December 1982 to respondent nos. 2 and 3 calling upon them to vacate

the suit premises, respondent no.1 was not in breach of the tenancy

agreement. Respondent no.1, therefore cannot be held liable for

occupation of respondent nos.2 and 3 in the suit premises, after 31

December 1982. The learned Judge held that respondent nos.2 and 3

were occupying the suit premises within their independent right as

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protected tenants, being licensees as on 1 February 1973, and thus they

could not have been thrown out from the premises by respondent no.1

after 31 December, 1982. The learned trial Judge accordingly dismissed

the petitioners' suit.

16 Being dissatisfied by the judgment and order passed by the

learned trial Judge of the Small Causes Court, the petitioners filed an

Appeal No. 372 of 1990. The appellate Bench of the Small Causes Court

by the impugned judgment dated 25 October 1996 dismissed the appeal

confirming the judgment and order passed by the learned trial Judge on

the ground that it could not have been prudent for respondent no.1 to

prevent respondent nos. 2 and 3 from occupying the suit premises after

31 December, 1982 as the entry of respondent nos. 2 and 3 in the suit

premises was lawful as ackowledged by the petitioners till 31 December,

1982, and thus it cannot be said that there was a breach of the tenancy

agreement dated 17 June 1978 on the part of respondent no.1. It was

observed that it was sufficient for respondent no.1 to address a letter

dated 21 December 1982 asking them to vacate and subsequent action

of filing an ejectment suit against respondent nos.2 and 3, which

showed that proper steps were taken by respondent no.1 to prevent

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breach of the tenancy agreement and thus the petitioners were not

entitled for a decree on the breach of the tenancy agreement.

17 In the above circumstances, being aggrieved by the findings

of both the courts below, the petitioners have preferred this petition.

18 Mr. Jahagirdar, learned Senior Counsel for the petitioners,

in assailing the impugned orders would submit that the findings as

recorded by the courts below are exfacie perverse in as much as the

entry of respondent nos.2 and 3 in the suit premises was never lawful.

He submits that the courts below have completely overlooked the

voluntary writing dated 17 June, 1978 executed by respondent nos. 2

and 3, in which respondent nos. 2 and 3, in terms, admit that they were

running the clinic alongwith respondent no.1 and that they had no

independent right whatsoever in the suit premises, and that they could

not claim any independent right in the suit premises and were bound by

tenancy agreement dated 17 June, 1978 entered by respondent no.1

with the petitioners. Mr. Jahagirdar drawing the attention of the court

to paragraph 5 of the tenancy agreement/rent note dated 17 June 1978,

executed by respondent no.1 in favour of the petitioners, submits that

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the above position as taken by respondent nos. 2 and 3 finds complete

acceptance by respondent no.1 as also its solemn recognition in the

consent terms dated 17 June 1978, in paragraphs 1 to 3 and 6, to which

respondent nos.1 and 2 were the parties, so as to compromise the earlier

ejectment suit. Mr. Jahagirdar would then submit that respondent nos.2

and 3 in complete acceptance of the fact that they had no right, title or

interest of whatsoever nature, avoided the eviction decree in the earlier

suit by entering into the compromise. It is submitted that the trial Judge

could not have recorded a finding contrary to the writing dated 17 June

1978 of respondent nos. 2 and 3 on which there was no dispute and

held that their entry in the premises was lawful. Mr. Jahagirdar submits

that in fact the perversity of the courts below is of respondent nos.2 and

3 being conferred a declaration of their occupation being legal, in the

petitioners' suit without respondent nos. 2 and 3 asserting the same in

any independent proceedings against the petitioners or even for that

matter against respondent no.1. Mr. Jahagirdar submits that the writing

dated 17 June, 1978 read with tenancy agreement/ rent note, were

absolutely clear in as much as respondent nos. 2 and 3 could not have

continued to occupy the premises in collusion with respondent no.1. It

is submitted that respondent no.1 therefore cannot avoid a eviction

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decree once respondent no.1 permitted, respondent nos. 2 and 3 to

continue beyond 31 December, 1982. Mr. Jahagirdar submits that thus

the ground, which was available to the petitioners as filed in the earlier

suit merely of respondent no.1 creating third party rights in favour of

respondent nos.2 and 3 and now contrary to the tenancy agreement

dated 17 June, 1978, had again become available to the petitioner in the

suit in question, for the petitioner to seek a decree of eviction. He

submits that the findings as recorded by the courts below are exfacie

perverse being contrary to the clear evidence on record.

19 On the other hand, Mr. Feroze Andhyarujina, learned Senior

Counsel for respondent no.1 in contesting the petitioners' case submits

that there is no breach of the tenancy agreement at the hands of

respondent no.1, for that matter even the breach of the said consent

terms as filed in the earlier suit as alleged by the petitioners. He

submits that respondent nos. 2 and 3 were occupying the premises with

the knowledge and consent of the landlords and that they had become

deemed tenants as on 1 February 1973 as they were occupying the

premises as licensees of respondent no.1 and paying compensation to

him. He then submits that respondent no.1 had discharged his

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obligation under the tenancy agreement/ rent notes of taking

appropriate steps to see that respondents no.2 and 3 vacated the

premises after 31 December 1982 and further in the year 1983 eviction

suit also came to be instituted by respondent no.1 against respondent

nos. 2 and 3. It is thus submitted that there is no breach on the part of

respondent no.1 of the conditions of tenancy agreement and hence, both

the courts below have rightly taken a view that the petitioners are not

entitled for eviction decree. It is then submitted that, in fact the

petitioners are pursuing the same grounds as raised in the year 1973 in

RAE Suit No.1619/5653 of 1973 which came to be withdrawn as

compromised. The submission is that on the same grounds, the second

suit was not maintainable. Mr. Andhyarujina has drawn attention of this

court on para 20 of the judgment of the appellate Bench to point out

that the entire issue was whether merely by respondent nos.2 and 3

remaining in possession and occupation of the suit premises conferred

any legal right to the petitioners under the Rent Act to eject respondent

no.1 from the suit premises. He submits that whatever was required to

be done by respondent no.1 to seek eviction of respondent nos.2 and 3

was undertaken by him. Mr. Andhyarujina, however, at the same time

does not dispute that respondent nos.2 and 3 were inducted by

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respondent no.1. He has drawn my attention to several paras in the

written statement and the impugned judgments to support his

contention. Mr. Andhyarujina would also submit that respondent nos. 2

and 3 were occupying suit premises in their independent right as

deemed tenants as on 1 February 1973 summarizing his submission, Mr.

Andhyarujina has made following three submissions:

(i ) The entire substratum of the petitioners' case in

the suit in question collapsed on respondent nos.2

and 3 vacating the suit premises.

(ii ) Even otherwise once the consent terms came to

be entered and filed in the earlier suit instituted by

the petitioners, the allegations made in the earlier suit

of subletting did not survive and the same assertion

could not have been a cause for the subsequent suit.

(iii ) In any event, respondent no.1 had taken all the

necessary actions to seek eviction of respondent nos.2

and 3, so that they do not continue in the suit

premises after 31st December, 1982.

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                          (vi)    The   findings   as   recoded   by   the   courts   below 

cannot be said to be perverse requiring interference of

this court in this petition.

Mr. Andhyarujina has supported the above submissions

relying on the decisions in the case of State of U.P. and others V.

Maharaja Dharmander Prasad Singh etc. And Lucknow Dev.

Authority and Ors. Vs. Maharani Rajlaxmi Kumari Devi and Ors. 1,

Krishna Ram Mahale (dead) by his LRs V. Mrs. Shobha Venkat Rao 2,

and Ismail Dada Bhamani V. Bai Zuleikhabai3.

20 I have heard learned Senior Counsel for the parties. As

noted above, the facts in the case are quite peculiar. It is not in dispute

that respondent no.1 is a tenant, by virtue of the tenancy agreement

dated 12 March 1969 entered between him and father of the petitioners

as landlord. It is also not in dispute that respondent no.1 inducted

respondent nos.2 and 3 in the suit premises on the basis of leave and

licence agreement and was receiving compensation. This is clear from

the averments as made in paragraph 2 of the plaint. It is further an

admitted position that the petitioners asserted in the earlier suit (Suit 1 AIR 1989 SUPREME COURT, 997 2 AIR 1989 SUPREME COURT, 2097 3 AIR (31) 1944 BOMBAY 181

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No. 1619/5653 of 1973) that this amounted to unlawful subletting and

therefore the petitioners were entitled for a decree against respondent

no.1. It is further an admitted position that respondent no.1 in

complete acceptance and co-operation of respondent nos.2 and 3

avoided and saved a decree of eviction, by entering into a fresh tenancy

agreement/rent note dated 17 June 1978. The basis of which was

respondent nos.2 and 3 completely conceding in the writing dated 17

June 1978 of the same date being the foundation for the compromise

decree, in which they confirmed that they had no independent right

whatsoever in the suit premises and they shall not claim any

independent right in the suit premises. Respondent nos. 2 and 3 further

agreed that they would abide by the agreement of tenancy entered into

by respondent no.1 with the petitioners. It may be noted that the

obvious consequence of what was contained and reflected from the

writing dated 17 June 1978 of respondent nos.2 and 3 coupled with the

tenancy agreement/ rent note dated 17 June 1978 executed between

the petitioners and respondent no.1 and as confirmed in the consent

terms dated 17 June, 1978 compromising the suit, unequivocally would

show that respondent nos. 2 and 3 on their own assertion did not have

any independent right whatsoever in the suit premises and they could

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never claimed to do so. Further respondent nos. 2 and 3 asserted a clear

position that they were not outside the independent rent notes/tenancy

agreement executed between respondent no.1 and the petitioners.

21 When the facts were so clear as they stand and as noted

above, in my opinion, both the courts below were completely

misdirected and in an apparent perversity in holding that at the behest

of the petitioners, the entry of respondent nos. 2 and 3 was legalised

upto 31 December 1982. This finding is required to be so held being

contrary to the clear assertion of respondent nos. 2 and 3 and as

confirmed by respondent no.1. There was no occasion for the courts

below to have any confusion or any ambiguity on these clear factual

aspects, which the documents loudly and clearly reflected. I am, in fact

disturbed as to how the courts below could accept a specious plea as

raised by respondent nos.2 and 3 and probably in an apparent collusion

with respondent no.1 that respondent nos.2 and 3 were occupying the

premises in question in their own independent right, as the law

conferred a tenancy on them on 1 February 1973 and thus it had

become impossible for respondent no.1 to evict respondent nos. 2 and 3

as on 31 December 1982. Such finding is clearly perverse as it was clear

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from the earlier writing as noted above executed by respondent nos.2

and 3 which was itself after the deemed date of 1 February 1973 and

thereafter there were subsequent tenancy agreement dated 17 June

1978. Moreover it was clear that respondent nos. 2 and 3 never

asserted their plea of any deemed tenancy in the earlier proceedings.

In fact respondent nos. 2 and 3 took a position that they had no

independent right or interest. Once respondent nos. 2 and 3 themselves

asserted that they had no independent right in the suit premises, it was

certainly not proper for them to turn around subsequently and assert

that they had become tenants. It was not permissible for respondent

no.1 to assert that he was helpless to remove respondent nos.2 and 3

and further it was inappropriate for the courts below to accept such

contention that respondent nos.2 and 3 were enjoying the suit premises

in their independent right. Once respondent nos. 2 and 3 had

acquiesced and accepted the position that they had no independent right

in the suit premises and that they shall not claim to do so, it was a clear

indication that a contrary position could not have been asserted. In fact

the conduct of respondent nos.2 and 3 asserting this position amounted

to playing a fraud on the court. As a sequel to this conduct of

respondent nos.2 and 3 is the apparent breach of the tenancy agreement

Dusane 24/29 wp2118.1997

by respondent no.1 entitling the petitioner for a decree of eviction.

22 It was thus impermissible for the courts below to accord any

sanctity muchless to hold that respondent no.2 had legal rights to

occupy the suit premises after 31st December, 1982. Such sanctity as

accorded by the learned trial Judge and confirmed by the appellate

Bench was completely contrary to the clear assertion of respondent nos.

2 and 3 that they had no independent right whatsoever in the suit

premises and would not claim such legal right.

23 The cumulative effect of respondent nos.2 and 3 not

vacating the premises on 31 December 1982 definitely revived the

position as it existed, when the petitioners had filed earlier suit namely a

cause for eviction of respondent no.1 on the ground of respondent no.1

subletting the premises in favour of respondent nos. 2 and 3, who came

to be inducted by respondent no.1 under a leave and licence agreement.

Respondent no.1 was thus in breach of the terms and conditions of the

tenancy agreement/rent note, as respondent no.1 could not comply with

the terms and conditions of the said agreement, to prevent use and

occupation of the suit premises by respondent nos.2 and 3 and subsisted

a breach of the tenancy agreement. There cannot be any other reading

Dusane 25/29 wp2118.1997

of this factual position. In fact, it appears that respondent no.1 was in

apparent collusion with respondent nos.2 and 3 completely forgetting

that the legal consequence which would take place on respondent nos.2

and 3 not vacating the premises on 31 December, 1982, namely a clear

breach of the tenancy agreement leading to unlawful subletting of the

suit premises by respondent no.1. Moreover this was on account of the

fact that respondent nos. 2 and 3 at the threshold had made clear their

position, qua the petitioners, that they had no independent right nor do

they claim so in the suit premises. As noted above, on the said

background, respondent nos.2 and 3 claiming independent right was

most mischievous and such a plea could not have obliterated the legal

position which respondent nos.2 and 3 had taken, in clearly asserting

that they had no independent right.

24 It may further be observed that it cannot be accepted that

the position which respondent Nos. 2 and 3 had taken in writing dated

17 June 1978, would ceased to be of any effect or of any legal

consequences after 31/12/1982 (date by which respondent nos. 2 and 3

were to vacate the suit premises as per the compromise decree). This is

where both the courts below, in my opinion are in a patent error of law

Dusane 26/29 wp2118.1997

to accord sanctity to the stand of respondent nos.2 and 3 to grant an

unwarranted protection to respondent no.1. The grave error committed

by both the courts below is that the courts have completely overlooked

that the respondent no.1 had accepted breach of the tenancy agreement

in inducting respondent Nos.2 and 3 and avoided an eviction decree in

the earlier round of litigation by accepting that respondent nos. 2 and 3

had no independent right and that with whatever inter-se relationship

between respondent no.1 and respondent nos. 2 and 3, he would bring

about a situation that respondent Nos.2 and 3 would cease to occupy

the suit premises on/or before 31 December 1982. Thus, once

respondent no.1 could not bring about the situation as accepted by him

and agreed in the terms and conditions of the rent note/tenancy

agreement, the obvious consequences was a clear breach on the part of

respondent no.1 of the terms and conditions of the tenancy agreement

dated 17 June 1978 and on this breach suffer a decree of eviction.

25 Reliance of Mr. Andhyarujina on the decisions of the

Supreme Court in the case "State of U.P. & Ors. Vs. Maharaja

Dharmander Prasad Singh etc. and Lucknow Dev. Authority & Ors.

Vs. Maharani Rajlaxmi Kumari Devi & Ors" (supra) and in the case

Dusane 27/29 wp2118.1997

"Krishna Ram Mahale (dead) by his LRs. Vs. Mrs.Shobha Venkat Rao"

(supra) to support the proposition that respondent no.1 could not have

resumed possession from respondent nos.2 and 3 without filing

appropriate proceedings and that no methods other than the judicial

remedy could have been availed by respondent no.1 to evict respondent

nos.2 and 3 from the premises, in my opinion, would not assist

respondent no.1. There cannot be no doubt about the proposition of

law as laid down in these decisions. However, in the facts of the present

case what is pertinent is that respondent no.1 was in breach of the

tenancy agreement by inducting respondent nos.2 and 3, when

respondent no.1 had asserted that respondent nos.2 and 3 have no legal

rights to occupy the suit premises and it was only through respondent

no.1 as licensees of respondent no.1, they were occupying the suit

premises. Admittedly at the threshold the induction of respondent nos.2

and 3 was not with the consent of the petitioners. Further the breach of

the tenancy agreement had become the only issue for the court to

consider whether an eviction decree on induction of such third party in

the suit premises can be granted. Thus what ought to have been the

basic consideration for the court was not any action which respondent

no.1 could take or could have taken against respondent nos.2 and 3

Dusane 28/29 wp2118.1997

seeking vacating of the suit premises by them but the issue was the

unlawful induction of respondent nos.2 and 3 in the suit premises and

the persistence of the breach even after the period under compromise

decree had expired. In these clear facts, in my opinion, the reliance of

Mr.Andhyarujina to the decision of this Court in "Ismail Dada Bhamani

Vs. Bai Zuleikhabai" (supra) would be of no avail. There can be no

dispute on the legal proposition as the court has held in the said

decision that the notice to quit on or before a particular date on which

the tenancy expires, would be a good notice to quit. However, as

discussed above, the factual scenario is completely different in the

present case.

26 The above discussion therefore, clearly indicates that the

findings as recorded by the courts below are exfacie perverse and

deserve interference of this court in exercise of the jurisdiction of Article

227 of the Constitution of India. It is unfortunate that by such

approach, which was adopted by the courts below and in view of the

clear position on record, the petitioners were deprived of the fruits of

the decree, which they could have availed in the year 1990. In fact, it

may be observed that the suit itself is of the year 1983. The petitioners

Dusane 29/29 wp2118.1997

are prevented from lawful entitlement to the suit premises w.e.f. 31

December 1982. On the other hand respondent no.1 though was in

patent breach of the terms and conditions of the tenancy agreement is

enjoying the suit premises for a period of almost 34 years, it was thus

necessary to note the ordeal, which the petitioners have suffered.

27 In the light of the above discussion, the petition is required

to be allowed in terms of the following order:

O R D E R

(i) The impugned judgment of the learned Judge of the Small Causes

Court at Mumbai in R.A.E. and R Suit No.1461/4787 of 1983 dated 22

February 1990 and as confirmed by the impugned judgment of the

Appellate Bench of the Small Causes Court at Bombay in Appeal No.372

of 1990 dated 25 October 1996 are quashed and set aside.

(ii ) Regular Civil Suit No. 1461/4787 of 1983 stands decreed.

(iii ) Respondent no.1 is directed to handover the possession of the suit

premises to the petitioners within a period of eight weeks from today.

(iv ) The Writ Petition is allowed in the above terms with costs.

( G.S. KULKARNI, J.)