Bombay High Court
Ratnamala Mohan Aklujkar vs Smt. Sushila Nirmalkumar Rungta ... on 29 November, 2023
2023:BHC-AS:35299
5-WP-1725-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL WRIT PETITION NO. 1725 OF 2023
Ratnamala Mohan Aklujkar
of Mumbai, Indian Inhabitant,
Age : 42 years, Occu : not known,
R/o. Room No.14, 3rd Floor, Bhagwan
Bhavan, 15/37, Dadi Santok Lane,
Chira Bazar, Mumbai - 400002 ...Applicant
(Defendant)
Versus
1. Smt. Sushila Nirmalkumar Rungta,
(Deleted since Deceased) Thr. LRs.
1(a). Nirajkumar Nirmalkumar Rungta,
Aged about 41 years
1(b). Bharti Saraf,
Aged about 45 years,
Both are R/o. 88-A, Rungta House,
Rungta Lane, Nepeansea
Digitally signed
SUNNY by SUNNY
ANKUSHRAO
ANKUSHRAO THOTE
Mumbai - 400006 ...Respondent
THOTE Date: 2023.11.29
17:10:31 +0530 (Original Plaintiff)
____________________________________
Mr. Chandrakant Chavan for the Petitioner.
Mr. Swanand Ganoo a/w Mr. Jeetendra Mishra i/by Ms. Neeta
Solanki for the Respondent.
____________________________________
CORAM : RAJESH S. PATIL, J.
RESERVED ON : 11 OCTOBER, 2023
PRONOUNCED ON : 29 NOVEMBER, 2023
1
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JUDGMENT :
1. This Writ Petition is filed under Article 227 of the
Constitution of India, challenges the Judgment and Order dated 20
December, 2022 passed by the Appellate Bench of the Court of
Small Causes at Bombay in Appeal No.258 of 2021, which had
quashed and set aside the Order dated 1 September, 2021 passed
by the Single Judge of the Court of Small Causes.
2. The Petitioner is the Original tenant in an Eviction Suit
and the Respondents are the Legal Heirs of Original landlord.
3. The landlord filed a Eviction Suit under Section 16(1)(a)
and (b) of the Maharashtra Rent Control Act, 1999, being R.A.E.
Suit No.251/365 of 2010, before the Court of Small Causes at
Bombay.
4. Defendant/tenant after being served with the writ of
summons appeared in the matter and filed her Written Statement,
thereby denying the contentions of the Plaintiff. Soon thereafter,
issues were framed and evidence of the parties was recorded.
5. On 18 March, 2021, the Defendant/tenant filed an
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Application (Exh.52) for rejection of Plaint. On the ground that
Plaintiff by way of conveyance dated 18 September, 2019 sold the
building in which the Suit Premises existed to Mrs. Mamta Anil
Jain and Mr. Anil Jain. Therefore, since the Plaintiff ceased to be
the owner/the relationship of landlord and tenant came to an end,
hence the cause of action does not survive and as such the Suit is
not maintainable and it is barred under the provisions of CPC. As a
consequence, the Suit filed by the Plaintiff be dismissed or the
Plaint be rejected.
6. The Plaintiff filed their reply to the said Application. So
also the Defendant filed rejoinder to the reply of the Plaintiff.
7. The Single Judge of the Court of Small Causes at Bombay
thereafter heard both the parties and by its Judgment and Order
dated 1 September, 2021 allowed the Application of the
Defendant, thereby rejecting the Plaint and dismissing the Suit.
8. Being aggrieved by the rejection of the Suit, the Plaintiff
filed an Appeal bearing No.258 of 2021 before the Appellate Bench
of the Court of Small Causes at Bombay. The Appellant Bench
heard both the sides and by its Judgment and Order dated 20
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December, 2022 allowed the Appeal of the Plaintiff thereby setting
aside the Judgment and Order dated 1 September, 2021 passed in
R.A.E. Suit No.251/365 of 2010.
9. Being dissatisfied with the Judgment and Order dated 20
December, 2022, the Defendant filed the present Writ Petition
challenging the impugned Judgment and Order passed by the
Appellate Bench of the Court of Small Causes at Bombay on 20
December, 2022.
SUBMISSIONS :
10. Mr. Chandrakant Chavan made his submissions on behalf
of the Petitioner/tenant.
10.1. Mr. Chavan submitted that the Appellate Bench of Small
Causes Court erred in setting aside a well reasoned Order passed
by the Single Judge of the Court of Small Causes.
10.2. Mr. Chavan further submitted that the Appellate Bench
erred in not considering the fact that the Trial Court has exercised
its jurisdiction under Section 151 of CPC and therefore, the
Appellate Bench ought not to have disturbed discretionary Order
passed by the Trial Judge.
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10.3. Mr. Chavan further submitted that the Appellate Bench
erred in not considering the provisions of Order I, Rule 10 and
Order VII, Rule 11, as well as Order XXII, Rule 10 of CPC in proper
perspective.
10.4. Mr. Chavan submitted that the provisions of Section 33 of
Maharashtra Rent Control Act and Section 41 of the Presidency
Small Causes Court Act, were not considered in proper perspective.
10.5. Mr. Chavan further submitted that once it was admitted
that the Suit Premises has been sold by the Plaintiff to a third party
on 18 September, 2019, the relationship of landlord and tenant
between the parties comes to an end and hence, there does not
exist any cause of action against the Defendant. In fact the Court
of Small Causes lost its jurisdiction to decide and entertain the
Suit.
10.6. Mr. Chavan relied upon the following Judgments to
buttress his submissions :
i. Laxmidas Moraji (Dead) by L.Rs. V/s. Behrose Darab
Mandan1
ii. Pukhraj Jain V/s. Mrs. Padma Kashyap and another2
1 2010(1) Bom.C.R. 452
2 AIR 1990 SC 1133
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iii. Shantilal Thakordas and others V/s. Chimanlal
Maganlal Telwala3
iv. Om Prakash Gupta V/s. Ratan Singh & Anr.4
v. S.P. Chengalvaraya Naidu (Dead) by L.Rs. V/s.
Jagannath (Dead) by L.Rs. & Others5
vi. Shipping Corporation of India Ltd. V/s. Machado
Brothers and Others6
vii. Ranjit Singh V/s. K.K. Sikand & Another7
11. On the other hand Mr. Swanand Ganoo appeared on
behalf of the Respondent/Original Plaintiff and made his
submissions:
11.1. Mr. Ganoo submitted that the Appellate Bench has
considered the correct position in law and has passed the
impugned Judgment and Order thereby quashing and setting aside
the Judgment of Single Judge of Small Causes Court.
11.2. Mr. Ganoo submitted that the Suit for Eviction was filed
on the grounds of tenant committing an act contrary to the
provisions of Clause (O) of Section 108 of Transfer of Property Act
and on the ground of erection of permanent structure on the
3 AIR 1976 SC 2358
4 1962 SCR 259
5 AIR 1994 SC 853
6 AIR 2004 SC 2093
7 1996 A I HC 754
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premises without landlord's consent. He further submitted that
eviction was not on the ground of bona fide requirement,
therefore, the Suit could never come to an end, just because there
is a change in the ownership of the Suit Premises.
11.3. Mr. Ganoo submitted that the cause of action for filing a
Suit does not come to an end by change of ownership in an
Eviction Suit.
11.4. Mr. Ganoo further submitted that Deed of Conveyance
specifically mentioned about the pendency of Suit and the said
aspect has to be considered during the Trial and not in a summary
manner. He further submitted that non obtaining leave of the
Court cannot be fatal to the Suit, as per the provisions of Order
XXII, Rule 10 of CPC.
11.5. Mr. Ganoo further submitted that the law on the issue is
quite settled by the Supreme Court in various decisions.
11.6. Mr. Ganoo laid emphasis on the Judgment of
Dhurandhar Prasad Singh V/s. Jai Prakash University and
Others8 and the Judgment of Supreme Court in Sharadamma
8 (2001) 6 SCC 534
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V/s. Mohammed Pyarejan (Dead) through L.Rs. And others9.
11.7. Mr. Ganoo further submitted that the Judgment of the
Dhurandhar Prasad Singh (supra), was not properly considered by
the Trial Court. However, the Appellate Court has considered the
same in correct manner and accordingly the Appeal was allowed.
11.8. Mr. Ganoo submitted that there is no infirmity in the
impugned Judgment and hence, no interference is called for.
ANALYSIS & CONCLUSION :
12. The Defendant had filed an Application (Exh.52) for
rejection of the Plaint, contending therein that the Plaintiff sold
the Suit Premises to one Mrs. Mamta Anil Jain and Mr. Anil Jain by
Deed of Conveyance dated 18 September, 2019, which fact came
to the knowledge of Defendant around December, 2020.
Consequently by her letter dated 13 January, 2021, Defendant sent
rent to the new owners i.e. Mrs. Mamta Anil Jain and Mr. Anil
Jain, however, the new owners refused to accept the rent on the
ground that the Eviction Suit was pending against the Defendant,
and accordingly returned back the cheque to the Defendant.
9 (2016) 1 SCC 730
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13. The said Application of the Defendant for rejection of the
Plaint was allowed by the Trial Court, and accordingly Plaint was
rejected and the Suit was dismissed with a finding that no leave
was obtained and further relationship of landlord and tenant had
come to an end. However, the Appellate Bench of Small Causes
Court at Bombay allowed the Appeal and restored the Suit back to
the file on the basis of finding that the Application (Exh.52) filed
by the Defendant for rejection of the Plaint is not based on any of
the grounds as mentioned in the provisions of Order VII, Rule 11
of the C.P.C. Further it was held that there cannot be dismissal of
the Suit on account of failure of assignee to file an Application to
continue the proceedings, he can continue the proceedings for the
benefit of assignee. It was also held that the Trial Court did not
take into consideration the Judgment of Supreme Court in
Dhurandhar Prasad Singh (supra).
14. There is no dispute that the Plaintiff during the
pendency of the Suit by way of conveyance dated 18 September,
2019, sold the Suit Premises to Mrs. Mamta Anil Jain and Mr. Anil
Jain. The Defendant is aware of this happening as they had sent
Rent to the new owners. However, new owners (Mrs. Mamta Anil
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Jain and Mr. Anil Jain) did not accept the Rent sent by letter dated
13 January, 2021, by the Defendant, as the Suit for Eviction was
pending against the Defendant. For this reason, it can be
concluded that the new owners (Mrs. Mamta Anil Jain and Mr.
Anil Jain) were aware about the pendency of Eviction Suit.
15. It will be important to consider the provisions of Order
XXII, Rule 10 of the CPC, which reads thus :-
10. Procedure in case of assignment before final
order in suit. -(1) In other cases of an assignment, creation or
devolution of any interest during the pendency of a suit, the suit
may, by leave of the Court, be continued by or against the
person to or upon whom such interest has come or devolved.
(2) The attachment of a decree pending an appeal
therefrom shall be deemed to be an interest entitling the person
who procured such attachment to the benefit of sub-rule(1).
16. The said Rule 10 of Order XXII does not provide for
rejection of the Plaint or for dismissal of the Suit. Only because the
assignee did not file an Application seeking leave of the Court to
continue with the Suit; the Suit is not supposed to be dismissed.
This according to me cannot be the interpretation of the provisions
of Order XXII, Rule 10 of the CPC.
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17. The Supreme Court in the case of Dhurandhar Prasad
Singh (supra), has held that the legislature has not prescribed in
case where Rule 10 applies, any procedure; like Rules 3, 4 and 10
of Order XXII of the CPC, which prescribes that in the event of
failure to apply for leave of the Court to continue the proceedings
by or against the person upon whom interest has devolved during
the pendency of a Suit, this shows that the legislature was
conscious of this eventuality and has not prescribed that failure
would entail dismissal of the Suit as it intended that the
proceedings would continue by or against the original party
although he ceased to have any interest. Paragraph No.6 of the
said Judgment reads as under :-
"6. In order to appreciate the points involved, it would
be necessary to refer to the provisions of Order 22 of the Code,
Rules 3 and 4 whereof prescribe procedure in case of
devolution of interest on the death of a party to a suit. Under
these Rules, if a party dies and right to sue survives, the court
on an application made in that behalf is required to substitute
legal representatives of the deceased party for proceeding with
a suit but if such an application is not filed within the time
prescribed by law, the suit shall abate so far as the deceased
party is concerned. Rule 7 deals with the case of creation of an
interest in a husband on marriage and Rule 8 deals with the
case of assignment on the insolvency of a plaintiff. Rule 10
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provides for cases of assignment, creation and devolution of
interest during the pendency of a suit other than those referred
to in the foregoing Rules and is based on the principle that the
trial of a suit cannot be brought to an end merely because the
interest of a party in the subject-matter of the suit has devolved
upon another during its pendency but such a suit may be
continued with the leave of the court by or against the person
upon whom such interest has devolved. But, if no such step is
taken, the suit may be continued with the original party and
the person upon whom the interest has devolved will be bound
by and can have the benefit of the decree, as the case may be,
unless it is shown in a properly constituted proceeding that the
original party being no longer Interested in the proceeding did
not vigorously prosecute or colluded with the adversary
resulting in decision adverse to the party upon whom the
interest had devolved. The legislature while enacting Rules 3, 4
and 10 has made a clear-cut distinction. In cases covered by
Rules 3 and 4, If right to sue survives and no application for
bringing the legal representatives of a deceased party is filed
within the time prescribed, there is automatic abatement of the
suit and procedure has been prescribed for setting aside
abatement under Rule 9 on the grounds postulated therein. In
cases covered by Rule 10, the legislature has not prescribed any
such procedure in the event of failure to apply for leave of the
court to continue the proceeding by or against the person upon
whom interest has devolved during the pendency of a suit
which shows that the legislature was conscious of this
eventuality and yet has not prescribed that failure would entail
dismissal of the suit as it was Intended that the proceeding
would continue by or against the original party although he
ceased to have any Interest in the subject of dispute in the
event of failure to apply for leave to continue by or against the
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person upon whom the Interest has devolved for bringing him
on the record."
[emphasis supplied]
18. The Supreme Court in the Judgment of Sharadamma
(Supra), has held that there cannot be dismissal of the Suit on
account of failure of filing an Application to continue the
proceedings. It would open to the assignor to continue the
proceedings for the benefit of assignee. Paragraph No.5 of the said
Judgment reads as under :-
"5. A bare reading of the provisions of Order 22 Rule 10
makes it clear that the legislature has not envisaged the penalty
of dismissal of the suit or appeal on account of failure of the
assignee to move an application for impleadment and to
continue the proceedings. Thus, there cannot be dismissal of the
suit or appeal, as the case may be, on account of failure of
assignee to file an application to continue the proceedings. It
would be open to the assignor to continue the proceedings
notwithstanding the fact that he ceased to have any Interest in
the subject-matter of dispute. He can continue the proceedings
for the benefit of assignee."
[emphasis supplied]
19. In the present proceedings the Suit was filed on the
grounds as contemplated under Section 16(1)(a) and (b). It would
have been totally different case if the Suit was filed under Section
16(1)(g)- ground of bona fide requirement. Since the need would
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have ended if the landlord has sold the Suit Premises during the
pendency of the eviction proceedings.
20. The Petitioner's counsel has relied upon few Judgments in
support of his contentions. The first Judgment of Laxmidas Moraji
(Supra), the facts were whether a notice for eviction is necessary
when the ground for eviction was of arrears of rent, to a person
who accordingly to landlord is not a tenant. The tenant had
prepared her last 'Will' appointing trustees. The Suit was dismissed
by Small Causes Court so also, by Appellate Bench and by High
Court. Further even Supreme Court upheld the Order. Therefore,
the facts were quite different therefore, the findings to this
Judgment has no relevance to the present proceedings.
20.1. In Pukhraj Jain (Supra), the Supreme Court held that the
term landlord would include his legal representative. It held that
legal representative of landlord can initiate and continue
proceedings for recovery of possession. According to me even this
Judgment does not help the Petitioner.
20.2. In Shantilal Thakordas (Supra), the proceedings were
filed under Section 13(1)(g) of the Bombay Rent Act, therefore,
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the same cannot be compared with the present proceedings, which
is under Section 16(1)(a) and (b) of the Maharashtra Rent Control
Act.
20.3. In Om Prakash Gupta (Supra), the ground for eviction
was again of bona fide requirement of the landlord, therefore, the
same cannot be compared with the present proceedings.
20.4. In S.P. Chengalvaraya Naidu (Supra), it was a case of a
fraud by litigant of obtaining a preliminary decree for partition of
property. Therefore, the facts in the Judgment were quite different.
20.5. In Shipping Corporation of India Ltd. (Supra), the facts
pertain to service of an employee. The counsel for the Petitioner
did not show any relevance of Service Law proceedings with the
present Rent Act proceedings.
20.6. Ranjit Singh (Supra), Judgment pertains to Single Judge
of Punjab and Haryana High Court. The Suit on the ground of
arrears of rent under the East Punjab Urban Rent Restriction Act,
1949 was dismissed. The Advocate for the Petitioner has not
shown any identical provisions of East Punjab Urban Rent
Restriction Act, 1949 and the Maharashtra Rent Control Act, 1999.
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20.7. Hence, none of the Judgments mentioned above are of
any help to the Petitioner.
21. I am of a view that it would always be open for the
Original Plaintiff/erstwhile owner to continue with the
proceedings, for the benefit of the new owner, when the new
owner is aware about the pendency of the Eviction Suit.
22. As a sequel to the above discussion, in my opinion, there
is no merit in the Writ Petition, and the same is accordingly
dismissed. No costs.
(RAJESH S. PATIL, J.)
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