Bombay High Court
Shaikh Zaffar Abid Mohd. Hussain And ... vs Iftekar Ahmed Razzaui Ehtesham Ahmed ... on 29 November, 2023
Author: S.G. Mehare
Bench: S.G. Mehare
2023:BHC-AUG:25019
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(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO.273 OF 2013
1. Shaikh Zaffar Abid s/o. Mohd. Hussain
Age : 53 years, Occu : Business,
2. Shaikh Afzal s/o. Mohd. Hussain
Age : 50 years, Occu : Business,
3. Abdul Latif s/o. Mohd. Hussain
Age : Major, Occu : Business,
4. Abdul Khaleel s/o. Mohd. Hussain
Age : 53 years, Occu : Business,
All R/o. Municipal House Old No.3-81-42,
New 1-27-34, Manzoorpura,
Aurangabad. ...Applicants
Versus
Ifteqar Ahmed s/o. Ehtesham Ahmed Razzaqui
Age : 54 years, Occu : Business,
R/o. Manzoorpura, Aurangabad. ...Respondent
Mr. Hrishikesh A. Joshi, Advocate for Applicants;
Mr. Namit Sunil Muthiyan, Advocate for the Respondent.
CORAM : S.G. MEHARE, J.
RESERVED ON : 26.09.2023
PRONOUNCED ON : 29.11.2023
JUDGMENT :
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1. The applicants who were the original defendants had
preferred this revision against the judgments and decrees of the
eviction of the suit shop, passed by the learned Civil Judge Junior
Division, Aurangabad, in Rent Suit No.13 of 2005 dated 16.09.2011
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and the judgment confirmed by the learned Principal District Judge,
Aurangabad in Rent Appeal No.17 of 2011, dated 08.10.2013.
2. Applicants nos. 1 and 2 will be referred to as 'tenants',
applicants nos.3 and 4 will be referred to as "sub-tenants", and the
respondent will be referred to as 'landlord'.
3. A few material facts to adjudicate the dispute were that
the landlord had filed a suit for eviction against the tenants and sub-
tenants. The tenants and the sub-tenants are the real brothers. The
suit shop was situated at Manzoorpura, Aurangabad, bearing
Municipal House No. 1-27-34 (New) and 3-81-42. Syed Ehtesham
Ahmed Razzaqui was the original landlord. He rented the suit shop
to the tenants to run a business. They were running the workshop in
the suit shop. The present respondent/landlord was one of the legal
heirs of the original landlord. After the demise of the original
landlord, the present landlord claimed that the tenants were paying
him rent. Hence, he is the landlord as defined under the Maharashtra
Rent Control Act, 1999 ("M.R.C. Act" for short). Therefore, the other
legal heirs of Ehtesham were not necessary parties to the suit.
Initially, it was projected that sub-tenants were the tenants'
employees. However, on making detailed enquiries, the landlord
learnt that the tenants had sublet the suit shop. Both tenants had
separated their business at another place for the last 20-25 years.
They do not have control over the business run in the suit shop.
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Hence, he claimed the eviction under Section 16 (1) (e) Clause (ii) of
the M.R.C. Act.
4. Before filing the suit under the M.R.C. Act, the eviction
proceeding was also filed before the Rent Controller in the year 1999
under the Hyderabad Houses (Rent, Eviction and Lease) Control Act,
1954. While the suit under M.R.C. Act was pending, he withdrew the
said proceeding.
5. The tenants and sub-tenants resisted the suit by a joint
written statement. They came with a case that the original landlord
had rented out the suit shop to their father. He was running the
workshop under the name and style of 'Pune Engineering Works'. The
tenants, as alleged by the landlord, were never his tenants. They did
not have any lease agreement with the original landlord. They have
inherited the tenancy from their father. Hence, they are protected
under sub-clause (ii) of Section 7(15) Clause (c) of the M.R.C. Act.
They did not illegally induct their brothers as sub-tenants. All of them
were running the business jointly. The shop establishment
registration stands in the name of tenant no.1. He is paying the
electricity charges regularly. They have opposed the eviction on the
ground that the legal heirs of the original landlord - Ehtesham have
not been arraigned as parties to the suit. Therefore, the suit is bad for
non-joinder of necessary parties. There was no subletting. The
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landlord has no right to claim the eviction. He is not entitled to seek
eviction.
6. Heard the respective counsels at length.
7. The following points fall for consideration :
(i) Is the plaintiff a landlord?
(ii) Were all the legal heirs of the deceased landlord -
Ehtesham, the necessary parties to the suit?
(iii) Does Rule 4 of Order XXIII of the Civil Procedure Code
bars the subsequent suit before the Civil Court under the
M.R.C. Act?
(iv) Did the defendants inherit the tenancy after the death of
their father?
(vi) Should the sub-tenant enter the witness box?
8. Both Courts held that the plaintiff was the landlord and
the applicants nos.1 and 2 tenants in the suit shop, and they had
illegally sub-let suit shop to applicants nos. 3 and 4. It was also held
that the earlier proceeding before the Rent Controller under the Rent
Control Act, 1954 does not bar the subsequent suit under the M.R.C.
Act. It has also been held that defendants nos.3 and 4 were inducted
as sub-tenants illegally without the permission of the landlord.
9. Learned counsel for the tenants and sub-tenants has
vehemently argued that a similar ground of subletting was raised
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before the Rent Controller, and the said proceeding was pending
when the suit was filed. The Court should not have proceeded with
the subsequent suit in such a situation. The Court did not frame the
specific issue of the tenability of the suit. The Court also did not
consider the admission of the plaintiff given in another Rent Suit
No.29 of 2005 filed against one tenant Aboodin, and another that he
did not claim that the said shop belongs to him and stated that the
said shop belongs to his brother and his brother executed the power
of attorney in his favour to file the suit. After bringing this material
fact regarding his status, the learned Court of first instance illegally
allowed the landlord to amend the plaint that the plaintiff is a
landlord. The statement of the plaintiff in cross-examination in
another rent case regarding the brother and General Power of
Attorney by the brother of the premises was given in confusion and
without proper understanding the question put to him. Such
amendment was washing the material admissions affecting the locus
of the plaintiff. These aspects have not been considered correctly. He
would submit that sub-section 2(a) of Section 58 of the M.R.C. Act
provides that all applications, suits and other proceedings under the
said Acts, pending, on the date of commencement of the M.R.C. Act
before any Court, Controller, Competent Authority or other office or
authority shall be continued and disposed of, in accordance with the
provisions of the Acts so repealed, as if the said Acts had continued in
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force and this Act had not been passed. He wanted to argue that the
proceedings pending in Rent Control or other Courts under the
Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 were
saved. Therefore, their proceedings ought to have been continued or
should have been withdrawn, obtaining the leave of the Rent
Controller to seek the remedies under the Maharashtra Rent Control
Act.
10. He also argued that before the First Appellate Court, the
plaintiff did not rely upon the alleged lease agreement (Exhibit-40).
Therefore, it ought to have been considered that the suit shop was
leased to their father, and they have inherited the same. Even
otherwise, the lease agreement Exhibit-40 was invalid as defendant
no.2 was minor at the time of execution of the so-called lease deed.
Since the plaintiff realized the mistake, he did not rely upon the lease
deed dated 01.01.1978. The adverse inference ought to have been
drawn against the plaintiff that defendants nos.1 and 2 were not
tenants, but all the defendants had acquired the tenancy as the legal
heirs of their deceased father. He also argued that in the absence of
Exhibit 40, the case ought to have been weighed on the
preponderance of probabilities. All the defendants, brothers, were
running the business jointly in the suit shop at the time of the death
of their father. Hence, it could be said that the plaintiff proved that
defendants nos.3 and 4 were illegally inducted as sub-tenants. He
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would rely on the case of Jagan Nath (Deceased) through, Lrs. Vs.
Chander Bhan and others, A.I.R. 1988 SC 1362, and further argue
that assuming the case of the plaintiff that defendants nos.1 and 2
were the tenants unless it is proved that they had parted with the
possession of the suit premises, it cannot be said that it was a
subletting.
11. Per contra, learned counsel for the landlord submits that
defendant no.1 accepted that he was paying rent to the plaintiff for
the last 7-8 years. He being one of the legal heirs of the original
landlord is entitled to receive the rent for himself and on behalf of
other legal heirs. Therefore, he was the landlord, as defined under
Section 7(15) of the M.R.C. Act. The defendants utterly failed to
prove that their father was the tenant in the suit shop. No evidence
has been produced that after the death of their father, they were
jointly running the business in the suit shop. On the contrary, it is
evident that defendant nos.1 and 2 are running their separate
business at another place and have no control over the business run in
the suit shop. Evaluating the evidence, both Courts have correctly
concluded that defendants nos.1 and 2, who were the tenants, parted
with the possession of the suit premises and have control over the
business run in the suit shop. They have completely divested from the
suit premises. He would submit that the proceeding pending before
the Rent Controller was withdrawn after filing the present suit.
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Hence, Order XXIII of the Civil Procedure Code would not bar the
present suit. To bolster his arguments, he relied on the case of
Vimlesh Kumari Kulshrestha Vs. Sambhajirao and Another in Appeal
(Civil) No.2976 of 2004 dated 05.02.2008 and the judgment of this
Court in Civil Revision Application No.465 of 2007 (Mr. Dattatray
Sadashiv Damle Vs. Vinayak Ramkrishna Vaidya) dated October 18,
2007. He would also argue that the earlier proceeding was
withdrawn before its adjudication; hence, there was no bar to file the
present suit under the new Act. There was absolutely no bar to file a
similar suit under the new Act. Therefore, both Courts correctly
entertained the suit. In both suits, the causes of action were different.
Therefore, the suit was well maintained. Both Courts have correctly
appreciated the evidence. There is nothing to interfere with the
impugned judgment and decree.
12. In reply, learned counsel for the applicants submitted that
the effect of the repeal of the Act should be read with Section 6 of the
General Clauses Act. In both cases, the causes of action were the
same. Therefore, this suit was barred under Order II Rule 2 of the
Civil Procedure Code.
13. It is not disputed that the father of the plaintiff was the
owner of the suit premises. Undisputedly, he is one of the legal heirs
of the original landlord and the other legal heirs were not impleaded
in the suit. The landlord claimed that tenant no.1 has been paying
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him for the last seven to eight years; hence, he is a landlord and
entitled to file a suit for eviction against the tenants and sub-tenant.
14. The term 'landlord' has been defined in Section 7(15) of
the M.R.C. Act. It provides that a person receiving or entitled to the
rent is a landlord. This term has been interpreted in various judicial
pronouncements. The definition is not restricted to the ownership of
the property. Therefore, if the tenant is inducted by a person to whom
the tenant has been paying the rent for a long period, he will be the
'landlord' within the meaning and definition, irrespective of whether
he is the owner or a person deriving a title from the owner and he
will be entitled to maintain an action for eviction. It is evident that
defendant no.1 admitted that he has been paying the rent to the
plaintiff for about 7-8 years. He never complained that he was not
authorized or entitled to receive the rent. The person claiming the
landlord does not need to strictly prove that he is the owner. The
landlord/plaintiff has proved that he has been receiving rent from the
tenant. Considering the definition of the landlord in various judicial
pronouncements and peculiarly in the facts that defendant no.1 was
paying the rent to him for the last 7-8 years, the Court has no
hesitation in holding that the plaintiff was the landlord and, hence,
entitled to file the eviction suit against the tenant under the grounds
provided under Section 16 of the M.R.C. Act.
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15. It has been vehemently argued by the learned counsel for
the tenants/defendants that earlier, in another suit, there was an
admission that the brother of the plaintiff had an interest in the
properties belonging to their father. It is evident that the interests of
all the legal heirs in the suit premises were admitted. However, the
question is whether such admission disentitles the landlord from filing
a suit for eviction without joining other legal heirs of the original
landlord - Ehtesham.
16. The tenants and sub-tenants did not deny that the
plaintiff was one of the legal heirs of the original landlord. Once it is
established that the plaintiff is a landlord and entitled to receive the
rent, and a person deriving the title from the original landlord, he is
entitled to file the eviction proceedings. In such a situation, it would
be difficult to accept the arguments of the learned counsel for the
tenants and sub-tenants that the suit is bad for non-joinder of legal
heirs of the original landlord.
17. It has been vehemently argued that two simultaneous
proceedings would not lie against similar parties. It is not in dispute
that prior to this suit, a proceeding for eviction on the same ground
was pending before the Rent Controller under the Rent Control Act,
1954. However, during the pendency of that proceeding, the M.R.C.
Act came into force. The landlord filed the eviction suit on the same
grounds under the M.R.C. Act without disclosing the pendency of the
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proceedings before the Rent Controller. However, it is admitted that
after filing this suit, the said rent control proceeding was withdrawn.
No doubt, the proceedings under the old Act were saved under
Section 58 of the M.R.C. Act.
18. Learned counsel for the landlord has vehemently argued
that the withdrawal of the earlier proceeding after filing the present
suit would not bar the plaintiff from filing the present suit as provided
under Order XXIII Rule 1 of the Civil Procedure Code. He relied on
the case of Vimlesh Kumari (cited supra) in which the Hon'ble
Supreme Court held that, admittedly, the second suit was filed before
filing the application for withdrawal of the first suit. The first suit was
withdrawn as an objection had been taken by the appellant in regard
to payment of the proper court fee. We, therefore, are of the opinion
that Order XXIII Rule 1 of the Code was not applicable to the facts
and circumstances of the present case. In the case of Dattatray Damle
(cited supra), this Court reiterated a similar view on the withdrawal
of the earlier suit after filing the subsequent suit. It has been held that
in terms, this rule does not apply where the subsequent suit has
already been instituted, and the two suits have been pending
simultaneously. It has been further held that this is not to say that
several suits may be instituted by a plaintiff on the same subject
matter with impunity. If they are, their continuance would be subject
to the provisions of Order II Rule 2, Sections 10, and 11 of the Code
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of Civil Procedure, depending on the stage of the suits. However, a
subsequent suit is not liable to be dismissed even if it does not
disclose that an earlier suit was instituted, if the earlier suit has been
withdrawn.
19. The ratio laid down in the above cases is squarely
applicable to the case at hand. However, the objection was raised, but
the defendants did not apply for the stay of the subsequent suit under
Section 10 of the Civil Procedure Code. The suit proceeded ahead. In
view of the fact that during the pendency of the eviction proceeding
before the Rent Controller, the new Rent Control Act was enacted,
the landlord preferred to withdraw the earlier suit filed under the
Rent Control Act, 1954 and filed a fresh suit under the new Act, the
Court is of the view that there shall be no bar to file such a fresh suit
under Order II Rule 2 of the Civil Procedure Code. As has been
observed by this Court in the case of Dattatray Damle (cited supra),
the continuance of the earlier suit would be subject to the provisions
of Order II Rule 2, sections 10 and 11 of the Code of Civil Procedure
depending on the stage of the suits. The stage of the earlier suit was
important. None of the sides argued about the stage of the earlier
proceeding before the Rent Controller when the present suit was filed.
In the absence of any such material, it is presumed that the said
proceeding was not concluded finally. Hence, it could also not be said
that such a subsequent suit was hit by Section 11 of the Civil
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Procedure Code. Therefore, it could not be said that only for filing
the suit during the pendency of the proceeding before the Rent
Controller on similar grounds, the suit of the landlord was not bad.
20. The landlord's learned counsel has vehemently argued
that the sub-tenant should have entered the witness box to prove that
there was no sub-tenancy.
21. The M.R.C. Act prohibits illegal sub-tenancy and is not
allowed unless the landlord consents. The landlord admitted the
applicants nos.1 and 2. They allegedly violated the terms of the lease.
So, the dispute was between the landlord and tenant, not the sub-
tenant. The defendants had a case that they inherited the tenancy
after the death of their father. They did not admit that there was any
sub-tenancy. The burden was on the plaintiff to prove that the tenants
had illegally inducted the sub-tenants and parted with the possession
of the suit shop. Considering the common defence of the defendants,
the Court believes that it was not essential for the sub-tenant to enter
the witness box.
22. The tenants and the sub-tenants had a specific case that
their father was the tenant of the original landlord. The lease deed
Exhibit-40 was pressed into service to prove that tenants nos.1 and 2
were the tenants of the original landlord. However, during the appeal,
the landlord did not press into service the said lease agreement. The
First Appellate Court has specifically observed in its judgment that the
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landlord did not rely upon the lease deed Exhibit-40. It is also evident
that at the time of the alleged lease deed, defendant no.2 was minor.
The document was read in the open Court by a lawyer who knew
Urdu language, and its translation was confirmed. A separate order
was passed to that effect. The burden was on the tenants and sub-
tenants to prove that they had inherited the tenancy after the death of
their father. It was the burden on them to prove that the landlord-
tenant relationship was created between their father and the original
landlord. However, no evidence has been placed on record to prima
facie believe that their father was running the business in the suit
shop. Under Section 7(15) sub-clause (ii) of the M.R.C. Act, after the
demise of the tenant, any member of the tenant's family was using the
premises in case of tenancy for commercial purposes, such a family
member is a tenant, in the absence of such member, the legal
representatives of the deceased is a tenant. The burden was on the
defendants to establish that at the time of the death of their father,
they were using the premises for running the business in the suit
shop. However, they did not produce any cogent and reliable evidence
to believe that they were using the suit premises at the time of the
death of their father. In the light of the evidence on record, the Court
concludes that the tenants and sub-tenants failed to establish that
they inherited the tenancy on the death of their father.
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23. It was not disputed that the shop establishment
certificate stands in the name of tenant no.1. The electric connection
also stands in his name. They have had other shops at different places
for the last 20-25 years, which is also not disputed. The landlord
admitted that tenants were running the business jointly. On the basis
of these facts and the admission of tenant no.1 that sub-tenants
purchased the raw material in their name, the landlord claimed that
the suit shop was sublet to them.
24. The initial burden of proving an unlawful sub-letting lies
on the landlord. Once the landlord shows that a third person is in
occupation and the tenant himself is not in the premises, the burden
of proving the nature of the occupation of the third person shifts on
the tenant. The Hon'ble Supreme Court in the case of Shri Dipak
Banerjee V Smt Lilabati Chakroborty, AIR (1987) SC 2055 , has held
that in order to prove the tenancy or the sub-tenancy, two ingredients
had to be proved,viz. (i) the tenant or sub-tenant must have exclusive
right of possession or interest in the premises or part of the premises
in question, and (ii) that right must be in lieu of some payment of
rent or compensation.
25. As per the case of Gopal Saran Vs. Satyanarayana, AIR
(1988) SC 1141, sub-letting means the transfer of an exclusive right
to enjoy a part of the property in favour of a third party for
consideration. In the case of Shalimar Tar Products Vs. H.C. Sharma
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and Ors, AIR (1989) SC 145, the Hon'ble Supreme Court held that
mere act of letting other persons into possession by the tenant and
permitting them to use premises for their own purposes will not
amount to sub-letting so long as the tenants retain legal possession
and control to exclude others.
26. The Bombay High Court in the case of Parvatibai @
Hansabai Narayan Sawant (Since deceased through LRs.) Vs. Subash
Vishwanath Todankar and Ors, 2011 (4) All MR 180, in paragraph
no.8 it has been observed that it has been consistently held by this
Court and by the Apex Court that for the purpose of establishing the
ground of subletting, it is not sufficient to prove mere occupation of
the premises by the third party. It has been held that the landlord has
to establish that the possession was delivered to the sub-tenant and
the tenant was receiving some compensation from the sub-tenant.
27. Learned counsel for the applicants also relied on the case
of Jagan Nath (cited supra), in which it has been held that it is well
settled that parting with possession meant giving possession to
persons other than those to whom possession had been given by the
lease and the parting with possession must have been by the tenant.
User by other person is not parting with possession so long as the
tenant retains the legal possession himself, or in other words, there
must be vesting of possession by the tenant in another person by
divesting himself not only of physical possession but also of the right
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of possession. So long as the tenant retains the right to possession,
there is no parting with possession in terms of clause (b) of section
14(1) of the Delhi Rent Control Act. Further, it has been observed that
where the tenanted premises were residential cum commercial and
the tenant was carrying on the business with his sons, and the family
was a joint Hindu family, it was difficult to presume that the tenant
had parted with possession legally to attract the mischief of S.14(1)
(b) of the Act. Even though the tenant had retired from the business
and his sons had been looking after the business, it could not be said
that the tenant had divested himself of the legal right to be in
possession.
28. The evidence of tenant no.1 was that after the demise of
their father, all of them were doing business jointly in the suit
premises. It was brought in his cross-examination that the shop
licence and electricity bills was in his name. A separate admission that
the sub-tenants do the business in the suit premises was also brought
in his cross-examination. The rule is that evidence is to be read as a
whole. Only some part of the evidence could not be picked and
chosen. However, taking the benefit of his admission that sub-tenants
run the business in the suit shop and tenants also run the business at
another place, the landlord claimed that he had proved that the suit
shop was sub-let to the sub-tenant.
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29. The Courts have to appreciate the admissions in
reference to the facts. The tenants and sub-tenants essentially had a
defence that their father was the tenant, and on his demise, they
inherited the tenancy. Hence, all brothers were running the business
jointly for 20-25 years. Reading the admissions which the landlord
wish to make its capital, the Court is of the view that such admissions
do not prove that the tenants have parted the possession with sub-
tenants and they had no control over the business run in the suit
shop.
30. Barely having the other shops in the names of the tenants
is insufficient to draw the inference that they had parted the
possession of the suit shop. Opening another business or a similar
business may be an expansion of the business. This Court is not
satisfied that the landlord has established that the tenants had sub-let
the suit shop to the sub-tenants, who are their real brothers. The
landlord did not whisper that the tenants were receiving the rent or
compensation from the sub-tenants. Waiving the reliance on the rent
agreement during the appeal creates doubt about the relationship
between the landlord and tenant.
31. The learned counsel for the landlord argued that the
parties are Muslim. The jointness in property is foreign to Muslim
law. Therefore, the defence of the tenants and the sub-tenants that
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they acquired the tenancy on the demise of their father has no legal
force.
32. It was a case between landlord and tenant. Such disputes
are handled under the M.R.C. Act. The term "landlord" and "tenant"
have been defined in the M.R.C. Act. Both these definitions departed
the personal laws of the landlord and tenant. Therefore, there is no
force in the arguments of the learned counsel for the landlord that the
parties being Muslim cannot claim joint rights in the tenancy on the
demise of their father, who was the original tenant.
33. Considering the facts and the law, this Court is of the
view that both Courts have incorrectly held that the landlord had
established that tenants nos.1 and 2 have parted with the possession
of the suit shop and had no control over the business run in the suit
shop and they have illegally inducted the sub-tenants nos.3 and 4 as
sub-tenant.
34. In view of the above discussion, the points fallen for
consideration are answered that the plaintiff was a landlord. The suit
is not bad for non-joinder of legal heirs of the original landlord as a
party to the suit. The subsequent suit filed before the Civil Court
under the M.R.C. Act is not barred under Order II Rule 2 of the C.P.C.
as the earlier proceeding was withdrawn before its conclusion. In
view of the ratio laid down in the case of Vimalesh Kumari and
Dattatray Damle (cited supra), withdrawal of earlier proceeding after
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filing the present suit is not barred under Order XXIII Rule 4 of the
Civil Procedure Code. The landlord failed to establish that tenants
nos.1 and 2 illegally inducted tenants nos.3 and 4 as sub-tenants. The
sub-tenants were not needed to enter the witness box.
35. In view of the discussion on facts and law and going
through the impugned judgments and decrees, the Court is of the
view that both Courts erred in holding that the landlord had
established that tenants nos.1 and 2 illegally sublet the suit shop to
the sub-tenants nos.3 and 4. Hence, both judgments are liable to be
quashed and set aside. Thus, the Court passes the following order :
ORDER
(I) The civil revision application is allowed.
(II) The suit for eviction filed by the plaintiff stands dismissed.
(III) No order as to costs.
(IV) R and P be returned to the Court of the first instance.
(V) Rule is made absolute in above terms.
(S.G. MEHARE, J.)
Mujaheed//
Signed by: Syed Mujaheed Naseer
Designation: PA To Honourable Judge
Date: 30/11/2023 15:01:38
