Bombay High Court
Rajendra Bansilal Chaudhari And ... vs Lilakant Madku Chaudhari And ... on 3 November, 2023
Bench: S. G. Mehare
2023:BHC-AUG:23822
CRA-201-16.odt
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO.201 OF 2016
1. Shri. Rajendra Bansilal Chaudhari
Age : 45 year, Occ. : Business,
R/o. : Nandurbar,
Tq. & Dist. Nandurbar
[Near Tailik Mangal Karyalaya]
2. Shri. Sunil Kantilal Chaudhari
Age : 42 years, Occ. : Business,
Tq. & Dist. Nandurbar.
[Om Medical, Near Bank of India] ...Petitioners
Versus
1. Shri. Lilakant Madku Chaudhari
Age : 45 years, Occ. : Service,
R/o. : Nandurbar,
Tq. & Dist. Nandurbar.
[Near Tailik Mangal Karyalaya]
2. Deelip Daulat Chaudhari
Age : 42 years, Occ. : Business,
R/o. : Nandurbar (Bhat Galli),
Tq. & Dist. Nandurbar.
3. Chandrashekhar Namdeo Chaudhari
Age : 35 years, Occ. : Business,
R/o. : Nandurbar (Bhat Galli),
Tq. & Dist. Nandurbar
4. Smt. Rupabai Chhagan Chaudhari
Deceased, hence deleted in Trial Court. ...Respondents
Mr. Subodh P. Wani a/w Mr. Rudhir S. Wani, Advocate for petitioners;
Mr. A. S. Abhyankar a/w Mr. Navin S. Shah h/f Mr. S.V. Natu,
Advocate for the respondents.
CORAM : S.G. MEHARE, J.
RESERVED ON : 29.08.2023
PRONOUNCED ON: 03.11.2023
CRA-201-16.odt
JUDGMENT :-
1. Rule. Rule made returnable forthwith. Heard finally
with the consent of the parties.
2. The landlords have impugned the judgment and decree
of the learned First Appellate Court, passed in Civil Appeal No.24 of
2007, dated 15.06.2016.
3. The facts giving rise to the dispute were that the suit
premises was used to run a hotel. The landlord purchased the suit
premises (20x20) ft with tenant Sukhalal (for short, the tenant). He
had been the tenant since 1975. The tenant was unmarried. The
respondent nos.1 to 3 are the sons of three sisters of the tenant, and
the deceased respondent No. 4 was his mother. It was a specific case
of the landlords that after purchasing the suit premises, they and the
earlier landlord met the tenant and told him that the plaintiffs had
purchased the suit premises. The suit premises was kept unused from
1994. The tenant was of their caste, his physical condition was
deteriorating, and he was living there alone. Hence, the landlord did
not ask him to vacate the suit premises. In his last days, he was
staying alone in the suit premises. After his death, respondent nos. 1
to 3 started cleaning the suit premises and had held the possession.
4. The landlords filed a suit against them and the mother of
the tenant for eviction for their bona fide need and nonuser by the
tenant. The respondent no.4 (dead), though the mother of the tenant,
CRA-201-16.odt
did not acquire the tenancy rights. After the death of the tenant, the
tenancy was automatically ceased. Respondents nos. 1 to 3 were the
trespassers.
5. The respondents appeared through counsel. However, the
record reveals that only respondent nos. 2 and 4 contested the suit.
Their main defence was that respondent No. 4 was the mother of the
tenant, and respondent no.2 was running the hotel with the tenant.
Hence, they inherited the tenancy. The landlords denied the landlord-
tenant relationship. Therefore, the Rent Court had no jurisdiction to
try the suit.
6. During the pendency of the suit, respondent no.4, the
mother of the tenant, died. However, her legal heirs were not
brought. The suit against her was abated, but respondent No. 2 stuck
up to his defence that since he was running the hotel with the tenant,
he acquired the tenancy. He has protection under Bombay Rents,
Hotel and Lodging House Rates Control Act, 1947 ("Act of 1947", for
short).
7. The learned Trial Court, appreciating the evidence, held
respondent No.2, a statutory tenant, as the tenant's successor and
decreed the suit. The respondents had preferred the appeal before the
District Judge ("the First appellate Court", for short). The first
appellate Court held that the plaintiffs, though, joined respondents as
a party to the suit, the suit essentially was filed against the mother of
CRA-201-16.odt
the tenant. Hence, the suit was maintainable. The first appellate
Court further held that the suit abated as the legal heirs of respondent
no.4, who were statutory tenant, were not brought and allowed the
appeal.
8. The landlords, against the judgment of the first appellate
Court, approached this Court in a Revision. This Court concurred
with the judgment of the first Appellate Court. The landlords went in
appeal before the Hon'ble Supreme Court. The Hon'ble Supreme
Court remitted the case back to the learned first appellate Court.
9. The learned First Appellate Court, after the remand, had
framed the following two points for determination;
(i) Whether the suit was maintainable before Rent Court?
(ii) Whether the judgment and decree passed by the trial Court
needs interference?
10. The learned first appellate Court held that the plaintiffs
were not considering any defendants as their tenants. The learned
first Appellate Court, relying on the ratio laid in the case of Laxmidas
Morarji (D) By Lrs v Miss Bhorse Darab Madan 2009 SAR (Civil)
1030, held that it would have to be held that the trial Court was not
justified in entertaining the suit under Bombay Rent Act. The ratio
laid down in the case Babulal Bhuramal and Another v Nandram
Shivram and Others 1959 SCR 367: AIR 1958 SC 677 relied by the
landlords was held not applicable. The learned first appellate Court
CRA-201-16.odt
also held that, admittedly, at the time of the death of the tenant, his
mother, defendant No.4, was alive who, according to the Hindu
Succession Act, was the class I heir; thus, if at all, the tenancy was to
be devolved upon according to succession. However, after the death
of his mother, she was simply deleted. In the absence of the heirs of
the mother of the deceased tenant on record, the trial court was not
justified in recognizing defendant No. 2 as a tenant of the suit
premises and proceeded to adjudicate upon grounds on which the
eviction was sought and allowed the appeal.
11. The tenor of the arguments of the learned counsel for the
petitioners is that the learned first appellate Court did not understand
the directions of the Hon'ble Supreme Court in proper perception. The
issue of maintainability of the suit was finally decided in the Supreme
Court. Hence, it need not be considered again. The Supreme Court's
order is clear in words and easy to understand. The first appellate
Court ought to have framed the points in dispute on facts for
determination. However, the appeal was decided on the law point of
maintainability of the suit.
12. The learned counsel for the landlords, in his notes of
written arguments, has submitted that the ratio laid down in the case
of Laxmidas V Miss Bhorse cannot be followed in this case as the
Hon'ble Supreme Court in the present case is in relation to the very
issues involved in the matter. The difference between the Judgments
CRA-201-16.odt
of the Supreme Court is - one is the precedent while the other is
judgment in the present matter itself, giving directions to the first
appellate Court for hearing the first appeal on merits. Thus, the
directions of the Supreme Court in this case were rather binding than
the judgment of the case of Laxmidas. The suit premises was in
possession of Suklal till his death as a tenant. Hence, after his demise,
who succeeds to the tenancy rights are defined under Section 5(11)
(C) of the Act of 1947. Section 28 of the said Act lays down that any
question arising out of the rent statute can only be determined by the
Courts established under the Rent Statute. In sum and substance, his
arguments were that when the suit was filed, the landlord-tenant
relationship existed, and the dispute arose out of such relationship.
Hence, though respondent Nos.1 to 3 trespassed the suit premises,
they would be evicted under the Act of 1947.
13. The learned counsel for the petitioners has relied on the
following case laws;
1. Babulal Bhuramal and Another Vs. Nandram Shivram and
Others, AIR 1958 SC 677.
2. Jivatsingh Dhansinghani Vs. Padma Hemandas and others,
2004 (1) Mh.L.J. 672.
3. Kailasbhai Tiwari Vs. Jostna Laxmidas Pujara and another,
2006 (1) Mh.L.J. 791.
CRA-201-16.odt
4. Sudha Sumant Barve Vs. Ranjana Ramesh Padhye, 2013
(4) Mh.L.J. 735.
14. Per contra, the learned counsel for the respondents
vehemently argued that even if, as per the directions of the Hon'ble
Supreme Court the suit is to be decided on merits if the law doesn't
confer jurisdiction on Rent Court as per the Judgment of three Judges
Bench reported in the case of Laxmidas Morarji (D) By Lrs V Miss
Behrose Darab Madan 2009 SAR (Civil) 1030 , then District Court was
bound to consider this basic issue of jurisdiction which could not be
conferred by mere remand observation.
15. Learned counsel for respondents reiterated the
arguments that he had advanced before the Trial Court and the First
Appellate Court in the first round of litigation. He has vehemently
argued that the jurisdiction of the Court is tested on the pleadings and
not the defence.
16. He has stated that when the plaintiffs/landlords did not
admit the respondents as the tenants and inheritance of the tenancy
right, the Rent Court has no jurisdiction. He has relied on the same
case laws he had referred to before the learned Trial Court and the
First Appellate Court. The tenor of his argument was that since the
Court had no jurisdiction, the learned First Appellate Court had
correctly not considered the other factual aspects. The Court, under
the Act of 1947, had no inherent jurisdiction, therefore, the other
CRA-201-16.odt
issues have automatically become redundant, and no findings on
those points were required.
17. It has also been argued by the learned counsel for the
respondents that from the order of the Hon'ble Supreme Court, it
appears that the facts were not properly placed before the Court.
Therefore, the observations recorded by the Hon'ble Supreme Court
regarding the landlord-tenant relationship and the status of the
defendants/so-called possessors cannot be termed as landlord-tenant
relationship subsists. However, one way or the other, the learned First
Appellate Court has touched the root question of the jurisdiction of
the Court under the Rent Act. Finally, he submitted that in the given
facts and circumstances of the case, the Rent Court has no jurisdiction
to pass the eviction decree under the Act of 1947 against respondent
Nos.1 to 3. Therefore, there is no substance in the petition. Hence, it
is liable to be dismissed.
18. Learned counsel for the respondents has relied on the
following case laws:
1. Laxmidas Morarji (D) by Lrs. Vs. Miss Behrose Darab
Madan, 2009 SAR (Civil) 1030.
2. Raghuram Rao and others Vs. Eric P. Mathias and others,
AIR 2002 SC 797.
3. Raizada Topandas and another Vs. M/s. Gorakhram
Gokalchand, AIR 1964 SC 1348.
4. Sarfarzali Nawabali Mirza Vs. Miss Maneck G. Burjorji,
Vol.LXXVIII, Bom. L.R. 704.
CRA-201-16.odt
5. Dadu Dayalu Mahasabha, Jaipur (Trust) Vs. Mahant Ram
Niwas and another, 2008 SAR (Civil) 468.
7. Vasudev Gopalkrishna Tambwekar Vs. Board of Liquidator,
1964 Mh.L.J. 410.
8. Hiralal Vallabhram Vs. Sheth Kasturbhai Lalbhai and
others, AIR 1967 SC 1853.
9. Rafiuddin Nuruddin Musalman Vs. Abduyl Karim Abdul
Reheman and others, 2005 (4) Mh.L.J. 646.
10. Laxmikant Revchand Bhojwani and another Vs.
Pratapsingh Mohansingh Pardeshi, 1995 (2) Mh.L.J. 579.
11. Vinayak Balkrishna Samant and others Vs. Mahanagar
Telephone Nigam Ltd., 1996 (1) Mh.L.J. 511.
12. Jasraj Lalaji Oswal Vs. Raziya Mehboob Patel and another,
2020 (5) Mh.L.J 681.
13. Rajendra Bansilal Chaudhari and another V Lilakant
Madku Chaudhary and others Civil Revision Application
No. 43 of 2012 decided by this Bench on 28.11.2013 ( The
earlier revision between the same parties)
19. The Hon'ble Supreme Court, by order dated February 25,
2015, passed in Civil Appeal No(s).2449 of 2015 (Arising out of S.L.P.
(C) No.6753 of 2014) has observed thus;
"The appellants may be alleging that they are trespassers
but the respondents' case is that they are co-tenant along
with Suklal, therefore, the proceedings, insofar as
defendant nos.1 to 3 are in possession is maintainable.
The finding recorded by the first appellate court that the
suit proceedings are abated for non-impleadment of the
daughters of Rupabai is wholly erroneous in law,
therefore, the said finding concurred with by the High
CRA-201-16.odt
Court in the revisional jurisdiction in the impugned
judgment and decree is also bad in law. Hence, the
impugned judgments and decrees of the First Appellate
Court as also the High Court are liable to be set aside.
Accordingly, we set aside the same and remit the matter
to the First Appellate Court to examine the case of the
parties on merits after affording an opportunity of hearing
to the parties and pass appropriate order in the case with
reference to the pleadings and issues that would arise for
its consideration on the basis of the pleadings and
evidence on record."
On the aforesaid finding, the Hon'ble Supreme Court
remitted the matter to the First Appellate Court to decide on
merits.
20. Before dwelling upon the interpretation of the order of
remand of the Hon'ble Supreme Court, it would be better to discuss
what was challenged before this Court under Revision in the earlier
round of litigation. The findings of the first appellate Court in the
earlier round of litigation about the jurisdiction under the Act of 1947
were against the respondents, but they did not impugn it. The
landlord's appeal was dismissed on the sole ground that the suit was
abated.
21. The plain reading of the Hon'ble Supreme Court's order is
explicit that the order of remand was in the context of the facts. In
the earlier round of litigation, the first appellate Court had considered
CRA-201-16.odt
that the suit was maintainable. However, the legal heirs of the mother,
who died during pendency of the suit, were not brought on record.
Hence, the suit was abated. Reading the order of the Hon'ble
Supreme Court, in the context of the order of the first appellate Court
in the earlier round of the litigation, the Judgment and decree of the
first appellate Court was set aside only on the findings on the
abatement of the suit for non-impleadment of the daughters of the
mother as legal heirs. Hence, it can safely be said that the issue of
bringing legal heirs of respondent No. 4, mother, had attained finality.
22. The questions whether the Rent Court had jurisdiction
under the Act of 1947 and whether the respondents, in view of their
plea of inheritance, were entitled to the protection under the Act of
1947 were directed to be determined afresh. Hence, it cannot be said
the learned first appellate Court had incorrectly framed the points for
determination on the jurisdiction of the Rent Court.
23. The learned first appellate Court had determined the
jurisdiction of the Rent Court relying on the case of Laxmidas as
against the ratio laid in the case of Babulal Bhuramal (supra). Before
discussing the ratios laid in the above cases, it would be profitable to
discuss Section 28 of the Act of 1947. The Section opens with the
non-obstante clause that bars the jurisdiction of the Civil Court about
the dispute between the landlord and tenant relating to the recovery
of rent and possession of any premises to which the Act of 1947
CRA-201-16.odt
applies. Its plain reading reflects that all the issues relating to the
dispute between landlord and tenant shall be dealt with only by the
Courts as listed in the body of that Section. It also indicates that on
the day of filing a suit under the said Act, the landlord-tenant
relationship must subsist.
24. In its wisdom, the Legislature took care of protecting the
tenancy rights of the legal heirs of the tenant in the case of the
tenant's death. The inheritance of the tenancy has been defined under
respective State Legislation. Section 5 (11) (C) of the Act of 1947 is
relevant to this case. The unmarried tenant had no male descendants
after his death, except his mother. She was his sole legal heir.
Admittedly, the suit premises was used for the business. Hence,
Section 5 (11) (C) (ii) would apply, which reads thus;
"(ii) in relation to any premises let for the purpose of
education, business, trade or storage, when the tenant dies,
whether the death has occurred before or after the
commencement of the said Act, any member of the tenant's
family using the premises for the purposes of education or
carrying on business, trade or storage in the premises, with
the tenant at the time of his 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."
25. Admittedly, the respondents nos.1 to 3 were the sons of
the three daughters of respondent no.4.
CRA-201-16.odt
26. The core question that falls for consideration is who was
entitled to inherit the tenancy after Sukalal.
27. Respondent No.2 claimed that he and the deceased
respondent No.4 were doing the hotel business with the deceased
tenant. He did not claim that he is a class I legal heir. Therefore, the
term "any member of the tenant's family using the premises" as
incorporated in clause (ii) of sub-clause (c) of sub-section (11) of
Section 5 of the Act of 1947 would attract.
28. The Bombay High Court, in the case of Jaysen Jayant
Rele and Ors v Shantaram Ganpat Gujar and Ors AIR 2002 Bombay
462, had occasion to deal with a similar issue. Some relevant
paragraphs have been reproduced here;
"13. It is very pertinent to note that in spite of the catena
of judgments interpreting and construing the words
"member of a family of the tenant and a family", the
legislature has not budged from its position and has not
moved to amend Section 5(11)(c) of the Act to reflect the
precis of the judicial pronouncements in the Act in any
manner. Section 5(11)(c) has remained as it is, though
the Act has undergone surgery by way of amendments on
a number of occasions at the hands of the Legislature to
meet off-arising problematic situations. It is far more
pertinent to note that even in the present Maharashtra
Rents Act, which has replaced the earlier Bombay Rents
Act the Legislature has not taken cognizance of the
interpretation of the words in Section 5(11)(c) and the
CRA-201-16.odt
Legislature has not enlarged the words "family and the
member of a family". It would have been very easy for the
Legislature to have removed all the doubts and difficulties
which have created innumerable disputes giving rise to
innumerable judgments by replacing the words "any
member of the tenant's family" by "any person..... residing
with the tenant at the time of his death." The Legislature
has not enlarged the term used in the original Sub-section
5(11)(c) i.e. "any member of the tenant's family". The
Legislature could have deleted the aforesaid words and
could have put only one word "person" in place of
"member of the tenant's family" to resolve all the so called
construction and interpretation difficulties. The intention
of the Legislature therefore is absolutely clear to retain the
present construction in the Sub-section 5(11)(c) in the
form in existence i.e. "any member of the tenant's family".
It did not and it does not intend to give a wider meaning
to the concept of family to include even a stranger as a
member of the family. The Legislature did not and does
not intend to depart from the ordinary meaning of the
word "family" as understood in common parlance. We
understand a family as consisting of father, mother, sons,
daughters, sisters and all such blood relations and other
relations arising from lawful marriages in the family. We
don't include in the concept of family anyone who is not
related by blood and that is the whole purpose and
intention of the Legislature not to remove the word
"family" from the said provision. If it wanted to enlarge
the meaning of the family it would have expressly said so.
The Legislature wants to protect only the members of the
family, who are bound by the blood relations and never
CRA-201-16.odt
any stranger however near he or she might be and
however thick the love and affection bonds might exists.
In my opinion the Legislature has not given any
importance to such emotional and sentimental ideas in the
Rent Control Act, which regulates relationship between
the landlord and the tenant. It is enacted to protect the
tenants and their families and not to create any rights in
favour of strangers who have no blood relations with the
tenant or his family. The Legislature never intended to
wide open the umbrella of the Rent Act to give protection
to everyone who would claim to be a member of the
tenant's family on one or the other ground of love and
affection or close friendship or father like and son-like or
such relationship. A tenant cannot be heard to say that the
person residing with him is like his father or like his son or
like his daughter or brother. There is no place for the
words "like" or "as". The Act protects only those who
were really blood relations of the tenant. The Legislature
has not allowed any provision in respect of the
relationship. The present protection is to the tenant and
his family members with whom he has blood relations.
The Legislature has been reasonable and moderate to
grant protection to the tenant and extend the protection to
the members of the family in the ordinary parlance as
commonly understood in the society. The Legislature is
fully conscious of the fact that it cannot fly at tangent to
give protection to all such occupants of the tenanted
premises at the cost of the landlord and the valuable
property rights of the owners of the premises. The
landlord rents out his premises to a tenant on certain
terms and conditions which the tenant must observe and if
CRA-201-16.odt
such terms and conditions are observed by the tenant the
landlord cannot evict him at his sweet will and in
contravention of the provisions of the Rent Act. The Act
protects the tenants at the same time controls the property
rights of the landlords by imposing reasonable restrictions
on them within the four corners of the Act. The rights of
the landlords are not given a complete go by and are not
extinguished altogether. If the Legislature intended that a
tenant and all those who claim through him should be
granted protection from eviction at any cost that would
result in total extinguishment of the rights of the landlords
and that would mean that the landlord has to write-off his
property forever, as the tenants and all such strangers who
would claim to be the members of their families talking
love and affection would have grabbed the property
forever and the same would be bequeathed for such love
and affection at the cost of the landlord.
15. The universal epigrammatical adage of "Vasudhaiv
Kutumbkamb" was and is not unknown to the Legislature.
The whole world is my family is the eternal message given
by the age old sages. The Legislature however has not
adopted or borrowed the said concept of family to include
everyone in its compass. It has in my opinion rightly
restricted to the commonly known and plainly understood
concept of family. Though there is no definition of a
family in the Rent Act, the Legislature has explained in
Section 6 of the Maharashtra Co-operative Societies Act,
1960 who is a member of a family. For the purposes of
this Section and the explanation under Section 8 a
member of a family means a wife, husband, father,
mother, son or unmarried daughter. The context in which
CRA-201-16.odt
the aforesaid explanation is given is a membership of a
Co-operative Housing Society to hold a flat or tenement in
such a society. The Legislature has indicated that by a
member of a family it contemplates only blood relations
and no strangers are included as a member of a family. It
cannot be contemplated that the legislative intention
would take radical departure from one Act to another Act
In respect of the terms which are normally used and
understood in society without making it explicitly clear.
16. In a judgment of the Supreme Court given under the
Uttar Pradesh Urban Building (Regulation of Letting, Rent
and Eviction) Act, 1972, in the case of Mohd. Azeem v.
District Judge, Aligarh (1985) 2 SCC 550: AIR 1985 SC
1118). The Legislature has wisely defined a family as
under (at page 1119 of AIR) :
"Family in relation to a landlord or tenant of a
building, means : "his or her - (i) spouse, (ii) male lineal
descendants, (iii) such parents, grandparents and any
unmarried or widowed or divorced or judicially separated
daughter or daughter of a male lineal descendant, as may
have been normally residing with him or her, and
includes, in relation to a landlord, any female having a
legal right of residence in that building".
In my humble opinion the Legislature has clearly
indicated what is meant by a family in the scheme of Rent
Control and Eviction. There is no place for a stranger in
the said definition. In a similar situation under the Delhi
Control Act, 1958 a family is defined as spouse, son,
daughter, parents, daughter-in-law. In paragraph 17 of the
judgment in the case of Baldev Sahal Bangla v. R. C.
Bhasin, (1982) 2 SCC 210 : (AIR 1982 SC 1091) the
CRA-201-16.odt
Supreme Court has summarised what would consist
family, as under (at page 1093 of AIR) :
17. A conspectus of the connotation of the term 'family'
which emerges from a reference to the aforesaid
dictionaries clearly shows that the word 'family' has to be
given not a restricted but a wider meaning so as to include
not only the head of the family but all members or
descendants from the common ancestors who are actually
living with the same head. More particularly, in our
country, blood relations do not evaporate merely because
a member of the family - the father, the brother or the son
- Leaves his household and goes out for some time.
Furthermore, in our opinion, the legislature has advisedly
used the term that any member of the family residing
therein for a period of six months immediately before the
date of the filing of the action would be treated as a
tenant. The stress is not so much on the actual presence of
the tenant as on the fact that the members of the family
actually live and reside in the tenanted premises. In fact, it
seems to us that clause (d) of the proviso to Section 14(1)
of the Act is a special concession given to the landlord to
obtain possession only where the tenanted premises have
been completely vacated by the tenant if he ceased to
exercise any control over the property either through
himself or through his blood-relations.
The Supreme Court has considered in the context of
the aforesaid Rent Act definitions of family given in
different Dictionaries the Supreme Court has specifically
observed the real interpretation of a family and that is the
national heritage. It is very significant to note that under
the emphasis given by the Supreme Court to blood
CRA-201-16.odt
relations to construe a family. By construing the term
family widely the Supreme Court has not included within
the family those who do not have blood relations. Blood is
the limit to consider a family relationship."
29. The right to succeed the commercial tenancy would crop
up when the person claiming protection under clause(ii) was using
the premises for the purpose it was let.
30. The landlord had a case that the suit premises was rented
to the deceased tenant to run a hotel. In his last days, he was residing
there in the hotel due to his deteriorating health. Respondent nos 2
and 4 had a case that the suit premises was rented for running a hotel
and ancillary residence. Respondent no.2 deposed that during the
death of Sukhlal, respondent No. 4 was in the suit premises, and he
was doing business with him. He did not depose that respondent no.4
was using the suit premises to run the hotel. Respondent no.2, in
cross-examination, admitted that, for the last 12 years, he was
running a pan shop near the suit premises. He had a tea shop. Its
name was Samrat hotel, which was similar to the name of the hotel of
the deceased tenant. He admitted that Sukhlal was a convict of the
murder and released from jail around in the year 1995 or 1996. In
1994, the deceased tenant had surrendered his hotel shop licence to
the Municipal Council and his hotel business was closed. Thereafter,
the deceased tenant did not renew his shop licence. There was no
electric supply in the hotel and water tap of the said hotel was also
CRA-201-16.odt
disconnected two years back. He also admitted that respondent no.4
had given her house situated in Bhate Galli to her daughter Basantibai
as she was looking after her. For the last twenty years, respondent
no.4 and her daughter Basantibai had been residing in the house at
Bhate Galli. He admitted that respondent No. 4 died in the said
house. Respondent No.4 was his grandmother, and he was the son of
Basantibai. Respondent No. 4 died on 06.02.2000.
31. From the above evidence, it is evident that the suit premises
was not used from 1994. The deceased tenant was a convict for 14
years, and he was released from jail around in the year 1995 or 1996.
This evidence proves that respondent no.4 was never in the suit
premises with the deceased tenant, and respondent no.2 had no
occasion to help or run the hotel in the suit premises with the
deceased tenant. Both contesting respondents claimed protection
under the first part of clause (ii) of sub-section 11 (c) of Section 5 of
the Act of 1947. On reading the above evidence, it cannot be believed
that they acquired statutory tenancy in the suit premises and entitled
to the protection under the first part of Section 5 (11) (c)(ii) of the
Act of 1947. Otherwise, respondent no.2 did not fall in the definition
of 'family member of the deceased tenant'; he does not deserve
protection under the Act of 1947. The landlords proved that he was a
trespasser with other respondents.
CRA-201-16.odt
32. Respondent No. 4 had also claimed protection under the
second part of clause (ii) of sub-section 11 (c) of Section 5 of the Act
of 1947. A member of the family of the deceased tenant if proves
using the suit premises for the business or other commercial purpose
when the tenant dies, such a family member debars the other
successor covered under the Succession Act. The question is, when
such a family member fails to prove the protection under the first part
of the said clause, can he claim the protection under the second part
also?
33. The evidence was in the line that respondent No.4 was
residing with the deceased tenant. She did not claim that she was
using the suit premises for running the hotel. She was the sole legal
heir of the deceased tenant. The recent photograph of the suit
premises placed on record shows that the suit premises has been
completely collapsed. In the circumstances she can succeed the
tenancy, is doubtful. In the order of remand reproduced above, the
Hon'ble Supreme Court clearly mandated that the suit in her absence
is maintainable. Hence, it needs no more discussion.
34. In the case Vasant Pratap Pandit and another vs. Dr.
Anant Trimbak Sabnis and others, 1995(2) Bom C.R. 388 , the object
of extending the protection to the person in Section 5(11)(c) of the
Rent Act 1947 has been explained, and held as under:-
CRA-201-16.odt
"From a plain reading of Section 5(11)(c)(i) it is obvious
that the legislative prescription is first to give protection to
members of the family of the tenant residing with him at
the time of his death. The basis for such prescription
seems to be that when a tenant is in occupation of
premises the tenancy is taken by him not only for his own
benefit but also for the benefit of the members of the
family residing with him. Therefore, when the tenant dies,
protection should be extended to the members of the
family who were participants in the benefit of the tenancy
and for whose needs as well the tenancy was originally
taken by the tenant. The legislature has, irrespective of the
fact whether such members are 'heirs' in the strict sense of
the term or not, given them the first priority to be treated
as tenants. It is only when such members of the family are
not there, the 'heirs' will be entitled to be treated as
tenants as decided, in default of agreement, by the court.
In other words, all the heirs are liable to be excluded if
any other member of the family was staying with the
tenant at the time of his death."
35. The purpose, in short, was that the person residing with
the deceased tenant in case of residential premises and the person
using the premises for the purpose it was let should not lose the roof
and the source income from the premises for his livelihood.
36. Considering the object of protection under the Act of
1947, it must be established that persons entitled to the protection in
the case of commercial tenancy were dependent on the tenant, and
the tenant was living only on the source of income from using the
CRA-201-16.odt
rented premises. The successor should also depend on the income
form the business run in the rented premises. The successor must
also be able and interested in using the premises for the business if it
was rented for it. If it is not so, the object may change its perception.
If the successor was otherwise living on the income of his other heir,
then the situation must change. It is evident that respondent no.4 had
transferred her self-acquired property in her life to her one daughter,
who was the mother of respondent no.2. It is also evident that till her
last breath, she was living in her house with her daughter. From these
facts, a safe inference could be drawn that she was never dependent
on the income of the deceased tenant, who was earning from the
hotel run in the suit premises. The use of the commercial premises for
the purpose for which it was rented is the primary requirement to
extend the protection under the above section. Therefore, this Court is
of the view that if the protection was granted to respondent no.4, no
purpose would be served.
37. Let's now deal with the issue of jurisdiction of the Rent
Court under Section 28 of the Act of 1947.
38. The learned counsel for respondents nos. 1 to 3 has
raised a strong objection that since the landlords did not admit
respondents No.1 to 3 as tenants, the Rent Court has no jurisdiction.
Respondent No.2 and the mother of the deceased tenant had filed a
joint written statement. Their defence is reiterated for dealing with
CRA-201-16.odt
the issue of jurisdiction. It was pleaded that defendant no.4, the
mother of the tenant being his successor and respondent no.2 as heir
were doing the hotel business with the deceased and respondent no.2
is his legal heir. After the death of the tenant, respondent no.2 and
the deceased mother acquired the tenancy right. They were in actual
and physical possession of the suit premises. Hence, they cannot be
evicted without following due procedure of law. The plaintiffs were
trying to acquire the possession without filing an application under
the Act of 1947. The landlord-tenant relationship does not subsist.
Hence, the suit is not maintainable under the Act of 1947. Therefore,
the Court had no jurisdiction.
39. Per contra, the learned counsel for the landlord argued
that respondents Nos. 1 to 3 were not the legal heirs of the deceased
tenant. However, they were the trespassers. Respondent no.4 was
alive at the time of filing the suit as a legal heir of the deceased
tenant. Hence, the landlord-tenant relationship subsisted at the time
of the cause of action, and the dispute arose from that relationship.
Thus, the suit was to be filed in the Rent Court and not the other.
However, the learned first appellate Court erroneously held that the
Rent Court had no jurisdiction.
40. He relied on the case of Babulal Bhuramal (cited supra)
in which, in Para 7, it has been observed that
CRA-201-16.odt
"7. In a suit for recovery of rent where admittedly one
party is the landlord and the other the tenant, Section 28 of
the Act explicitly confers on courts specified therein
jurisdiction to entertain and try the suit and expressly
prohibits any other court exercising jurisdiction with respect
thereto. Similarly, in a suit relating to possession of premises
where the relationship of landlord and tenant admittedly
subsists between the parties, jurisdiction to entertain and try
such a suit is in the courts specified in Section 28 and no
other. All applications made under the Act are also to be
entertained and disposed of by the courts specified in
Section 28 and no other. In all such suits or proceedings the
courts specified in Section 28 also have the jurisdiction to
decide all claims or questions arising out of the Act or any of
its provisions. The words employed in Section 28 make this
quite clear. Do the provisions of Section 28 cover a case
where in a suit one party alleges that he is the landlord and
denies that the other is his tenant or vice versa and the relief
asked for in the suit is in the nature of a claim which arises
out of the Act or any of its provisions? The answer must be
in the affirmative on a reasonable interpretation of Section
28. Suit No. 483/4400 of the Court of Small Causes,
Bombay was admittedly by a landlord. Eviction of the tenant
and those to whom he had sublet the premises was sought
on the ground that the latter were trespassers and the
former was not entitled to remain in possession, that is to
say, that none of the defendants to that suit were protected
from eviction by any of the provisions of the Act. The suit, in
substance, was a denial of the right of the defendants as
tenants. The claim of the defendants was that they were
protected by the provisions of the Act. In such a suit the
CRA-201-16.odt
claim of the defendants was one which arose out of the Act
or any of its provisions and only the courts specified in
Section 28 and no other could deal with it and decide the
issue."
41. To counter the above case law, the learned counsel for
respondents relied on the case of Laxmidas Morarji (cited supra) and
argued that the landlord-tenant relationship was denied in the said
case. Hence, it was held that the Rent Court had no jurisdiction to
entertain a suit of the landlord. He further argued that the learned
First Appellate Court, considering the ratio laid down by the Hon'ble
Supreme Court, took a correct view that in such a suit by the
landlord, the Rent Court cannot pass any decree against the alleged
trespassers and only the original Civil Court has jurisdiction to
entertain the suit.
42. The facts of Lamidas's case were that one Salehbhai, the
owner of the suit premises, had rented it to one Dosabai. Dhanbai
Batliwala was residing with her brother in the suit premises. After the
death of the original tenant, Dhanbai became the tenant of the suit
premises by virtue of Section 5(11)(c)(i) of the Bombay Rent Control
Act. She expired in the year 1963, but by way of her Will dated 24
April 1959, she appointed the trustees and executors of her Will. In
1965, the landlord had sent the notice to the trustees to handover the
vacant possession of the suit premises. Since the trustees failed to
vacate the suit premises, the suit for recovery of possession was filed
CRA-201-16.odt
before the Court of Small Causes in Bombay. In the said suit,
defendant No.5 was arrayed by way of caution and was not accepted
as a tenant. An objection was taken that the Small Causes Court had
no jurisdiction to entertain the suit since the landlord of the premises
has not accepted her as a tenant of the suit premises; she has been
adopted as a daughter of the deceased tenant, and the deceased
tenant had bequeathed the tenancy rights. She was the daughter of
the sister of the tenant and was residing with the deceased tenant.
Under this premise, it has been held that the Rent Court had no
jurisdiction.
43. In reply, the learned counsel for the landlord argued that
each case has its facts and circumstances. Hence, while applying the
ratio laid down in a case, a doctrine of ratio decidendi is the test.
44. To bolster his arguments, he relied on the case of Sudha
Suman (cited supra). He argued that the facts of Laxmidas' case were
altogether different from the case of Babulal Bhuramal (cited supra).
The facts of the case of Babulal were similar to the case at hand.
Hence, the ratio laid down in that case would apply by following the
rule of ratio decidendi.
45. The ratio decidendi is a point in a case that determines
the judgment or the principle that the case establishes. In other
words, the ratio decidendi is a legal rule derived from and consistent
with those parts of legal reasoning within a judgment on which the
CRA-201-16.odt
outcome of the case depends. It is normally used to refer to some
binding rule found in a decided case which later Court cannot
generally question. The facts of the two cases cannot be similar, and
therefore, the observations pertinent to the facts cannot be binding in
the other cases, though similar laws are attracted, the reasons for
arriving at a decision are binding. The principle on which the earlier
case was decided is binding. The meaning of ' ratio decidendi' is the
reason for deciding.
46. In the case of Sudha (cited supra), the observations as
regards ratio decidendi in the case of Regional Manager and another
v Pawan Kumar Dubey (1976) 3 SCC 334 were considered, which
read thus;
"It is the rule deducible from the application of law to the
facts and circumstances of a case which constitutes its
ratio decidendi and not some conclusion based upon facts
which may appear to be similar. One additional or
different fact can make a world of difference between
conclusions in two cases even when the same principles
are applied in each case to similar facts."
47. Based on the above findings, it has been observed that
one additional or different fact can make a world of difference
between conclusions in two cases, even when the same principles are
applied in each case to similar facts.
CRA-201-16.odt
48. Evaluating the facts of Laxmidas Morarji and Babulal
Bhurmal cases for ratio decidendi, there was a vast difference in the
facts. In Laxmidas, a tenancy was transferred to a trust by the tenant
by Will and in the case of Babulal, the original tenant had inducted a
sub-tenant and the sub-tenant was added as a trespasser. In the facts
of Babulal's case, it has been held that the suit is governed under
Section 28 of the Act of 1947. In the case of Jivatsingh relied upon by
the learned counsel for the landlord, Bombay High Court referring to
the case of Importers and Manufacturers Ltd vs Phiroze Framaroz
Taraporwala, 1952 (55) BLR 271 Supreme Court, has held that a
Bench of three Judges, held that the claim or question as to the
respective rights of the plaintiffs and the second defendant (sub-
tenant) raised in the plaint certainly arose out of the Act and the
language of section 28 appeared wide enough to cover the same.
49. In the case at hand, the plaintiffs had a case that
respondents nos. 1 to 3 were the trespassers; however, respondent
no.5, being legal heir, was entitled to succeed the tenancy.
50. The Act of 1947 has provided that the tenancy is
transferable by succession. Therefore, the landlord-tenant relationship
does not cease merely on the death of the tenant. However, it must
be accepted that the landlord-tenant relationship subsists even after
the death of the tenant, and the claim and question as to the
respective rights between the landlord and respondent No. 5 arose
CRA-201-16.odt
out of the Act of 1947 and was covered under section 28 of the said
Act. Firstly, the cause of action to recover the possession arose against
respondent No.5. Hence, the suit was correctly filed under the Act of
1947, and the other respondents trespassed the suit land; hence, they
were the necessary parties to the suit for eviction.
51. In view of the facts of the instant case, the Court is of the
view that the ratio laid down in the case of Babulal is applicable and
not the case of Laxmidas. The other case laws relied upon by the
respective counsels are on different facts. Hence, those are not
discussed to maintain brevity.
52. A landlord has been running pillar-to-post for the last
twenty-five years to recover the possession of a small piece of plot
measuring about 400 sq. ft. No specific oral evidence was required to
determine the questions as mostly the facts were admitted, and legal
objections were raised. This was a second round of litigation. This
Court has considered all the aspects involved in the case as they were
based on the legal issues and decided it finally in the revision as, in
any case, respondents No.1 to 3 have no merits. Sending the
landlords again to the Civil Court, as argued by the learned counsel
for the respondents, would be unjust to a landlord. There must be a
full stop somewhere to such litigations.
CRA-201-16.odt
53. For the reasons mentioned above, the impugned
judgment and decree of the learned first appellate Court warrants
interference. Hence, the following order :-
ORDER
(i) The civil revision application is allowed.
(ii) The impugned judgment and decree of the learned First
Appellate Court is quashed and set aside, and the judgment
and decree of the learned trial Court is restored.
(iii) The respondent nos. 1 to 3 shall vacate the suit premises and
hand over its peaceful and vacant possession to the plaintiffs
within four months from today.
(iv) No order as to costs.
(v) Rule made absolute in the above terms.
(S.G. Mehare)
JUDGE
Later on :
54. The learned counsel for the respondents pray to stay the
effect of this order. The Court has considered the condition of the suit
premises which is completely collapsed. It is a small piece of 400 sq.
ft. land. In the facts and circumstances, it would be unjustifiable to
ask the landlord to wait again from enjoying the fruits of the decree.
CRA-201-16.odt
There appears no merit in the submissions. Hence, the request to stay
the effect of this order is declined.
(S.G. Mehare)
JUDGE
Mujaheed//
