Sharad Manohar, J.
1. These two petitions arise out of the decree for eviction passed by the Court of Small Causes in the suit for eviction filed by the landlord in these petitions (who is the common respondent in both these petitions). Writ Petition No. 3417 of 1987 is filed by Original defendants Nos. 1, 2 and 5, who are admittedly the heirs of the original tenant in respect of the suit premises in addition to original defendant No. 4. Though decree for eviction has been passed also against Original Defendant No. 4, viz. Jairamdas Chetandas, he does not figure either as petitioner or respondent in this writ petition. This fact has a bearing upon the very maintainability of this writ petition. Writ Petition No. 3313 of 1987 is filed by original defendant No. 6 who claimed and claims to be a sub tenant in respect of the suit premises as from 1-4-1967. His claim to valid sub-tenancy may perhaps have some kind of legitimacy after the advent of Maharashtra Act No. 18 of 1987, which came into force as on 1st October, 1987. But as to how he could claim a valid sub-tenancy at the time of the suit, with effect from 1-4-1967, is a closely guarded secret. I will have occasion to comment upon this position while examining the claim of the said petitioner in the said petition.
2. Very interesting question of quite some importance, relating---
(a) to the interpretation of certain provisions of the Maharashtra Act No. 18 of 1987;
(b) to the effect of section 12(3)(a), 12(3)(b) and of section 14, & 15(2) of the same Act;
(c) to the nature of the Court's jurisdiction under Article 227 of the Constitution of India---
arise for consideration in these two writ petitions. Likewise, the question of the very maintainability of both these petitions has arisen in circumstances which are somewhat peculiar. But I do not wish to dispose of these petitions on that question alone.
3. Since both the writ petitions arise out of the suit, both of them are being disposed of by this common judgment. For the sake of convenience, the parties in the writ petitions shall be referred to with reference to their position in the array of parties in the trial Court. As stated above, the respondent is common in both the petitions. He is the owner and, as such, the landlord in respect of the suit premises which are in a building situate at Bhulabhai Desai Road, one of the most prestigious localities in the City of Bombay. There is no dispute that original defendants Nos. 1 to 5 had been the tenants in respect of the suit premises at all the relevant times. Defendant No. 6 was impleaded as a party defendant in the suit at a later stage, at the instance of the plaintiff, the contention of the plaintiff being that he was inducted on a part of the premises, viz. the Garage, by defendants Nos. 1 to 5, as a sub-tenant. As will presently pointed out, he has filed a written statement and has denied that he was an unlawful sub-tenant. However, as will be presently pointed out, he has kept an eloquent mum on the question as to how his sub-tenancy could be lawful if, on his own showing, it came into being for the first time in April 1967, at which time sub-tenancy by a tenant without the consent of the landlord was quite unlawful. However, at the hearing of these petitions he based his claim of lawful sub-tenancy only upon the provisions of Maharashtra Act No. 18 of 1987 which came into force on 1-10-1987.
4. As stated above, the suit premises are situate in one of the most prestigious localities in the city of Bombay, viz. Bhulabhai Desai Road. It is two-bed rooms Flat, together with a Garage on the ground floor and a store-room. The total area of the Flat is about 1300 sq. ft. The circumstances in which defendants Nos. 1 to 5 became tenants in respect of this Flat may be indicated here briefly.
5. The father of defendants Nos 1 to 5 was a tenant in respect of the premises in an entirely different building, but on Bhulabhai Desai Road only. The building in which those premises were situate was known as "Vaikunth" and it was owned by one Kalyanji. The monthly rental of the flat in that building, taken on lease by the defendant's father was Rs. 54/- only. In 1951 Kalyanji sold the building to Ghanshyam & Co. He wanted possession of the Flat in the said building on the ground that he desired pulling down of the old building and to construct in its place three new buildings. The purchaser wanted possession of the building for demolition and for construction of new buildings on the land in question and he filed a suit against the tenants of the said building. The father of present defendants Nos. 1 to 5, who was a party to that suit, died during the pendency of the suit and his heirs, present defendants Nos 1 to 5, were brought on record as heirs of the deceased. After some proceedings, on 13-1-1955, a settlement was arrived at between the plaintiffs in that suit on the one hand and the present defendants Nos. 1 to 5, on the other, in pursuance of which settlement old premises were given up by present defendants Nos 1 to 5 and to them were let out the present suit premises at the rate of Rs. 132/- per month. The suit premises included a Garage on the ground floor as also a store room on the ground floor.
It needs to be mentioned as a matter of common admission that the suit premises consist of the residential premises admeasuring 1100 sq. ft. situate on the 1st Floor of the building and the Garage and the storeroom on the ground floor of the building and, what is more important, that the tenancy is a conjoint tenancy in respect of these premises, on the 1st floor and on the ground floor, meaning thereby that there is no separate rent receipt issued by the plaintiff for the premises on the ground floor and for the residential part of the premises on the 1st floor. The letting is a one unified letting. This aspect of the matter has got some bearing while considering whether the alleged sub-tenant, original defendant No. 6, could claim a valid sub-tenancy in respect of a portion of the suit premises by trying to rely on the provisions of the Amending Act No. 18 of 1987.
It may be mentioned here that on 21-10-1962, the present plaintiff who is the assignee or the successor in title of Ghanshyam, recognised the tenancy of defendants Nos. 1 to 5, who are admittedly the heirs of the original tenant.
6. Now comes one of the most crucial events. On 1-4-1967 an agreement is alleged to have been arrived at between defendants Nos. 1 to 5 on the one hand and defendant No. 6 on the other, on the basis of which, contends defendant No. 6, he was inducted in the Garage on the ground floor of the suit premises by defendants Nos. 1 to 5. The case of defendant No. 6 is although a document, Exh. 14, was executed by him in that behalf and although the said document states in so many words that the transaction was one of leave & licence, still, in reality, it was nothing less than an agreement of tenancy. Defendant No. 6 has not come out with any pleading stating as to how he could set up the claim of valid sub-tenancy as late as in the year 1967 when sub-tenancy without the consent of the landlord was specifically prohibited. In the written statement, not as much as a whisper was uttered by defendant No. 6 saying that defendant no. 6 had secured sub-tenancy from defendants Nos. 1 to 5 with the consent of the landlord in question. The fact, however, remains that almost immediately thereafter he did start claiming sub-tenancy in respect of that portion of the suit premises and that too with effect from 1-4-1967.
On 8-4-1967 the plaintiff issued a Notice to defendants Nos. 1 to 5 as also to defendant No. 6 :
(a) terminating their tenancy on the ground of default under section 3(a) of the Bombay Rent Act, stating in the Notice that defendants Nos. 1 & 2 were guilty of violation of law in that they not paid 13 months, rent;
(b) that the defendant had changed the user of portion of the suit premises.
There was no reply received to this Notice.
On 18-6-1967 the instant suit was filed by the plaintiff against defendants Nos. 1 to 5 for possession of the suit premises on the ground:---
(i) of default in payment of rent for the period exceeding 6 months and of not paying the same within the time mandated by law;
(ii) that the plaintiff had used the place for the purpose other than the one for which it was let out.
7. We are not required to go to some collateral proceeding:---
(a) In September 1967 Suit No. 687/5123 of 1967 was filed by present defendant No. 6 against defendants Nos. 1 to 5. His contention was that by virtue of the Agreement dated 1-4-1967, he had got from defendants Nos. 1 to 5 the room described as Garage on the ground floor, which was let out by the landlords, admittedly, as sub tenant and that he was inducted into possession of the same by the said defendants as a sub-tenant. In the said suit, it appears, he also applied for injunction restraining defendants Nos. 1 to 5 from dispossessing him without the process of law. The present plaintiff had not been impleaded in the suit.
(b) In the proceedings that followed, evidence was led by defendant No. 6. But from the evidence (produced in the form of Affidavits the learned Judge was satisfied that the plaintiff in that suit (present defendant No. 6) was not in possession of the premises, which were the subject matter of the suit, at all. Moreover, he was not even satisfied that the plaintiff in that suit ( present defendant No. 6) was a lawful sub-tenant of the suit premises. The learned Judge was not at all satisfied that there existed any sub tenancy at all. It appears that the learned Judge was therefore, totally dis-inclined to grant any injunction in favour of defendant No. 6 to operate against present defendants Nos. 1 to 5 restraining them from taking possession of the garage from him.
(c) However, present defendant No. 6 fought shy of taking a decision against him in invitum. In fact, as observed by the learned Judge in the speaking order passed by him in those proceeding, (which is exhibited as Exh. 10 in the instant proceedings) a specific statement was made on behalf of the plaintiff in the suit (present defendant No. 6) to the effect that said plaintiff was not in possession of the suit premises claimed by him at all. In fact the learned Advocate, who made that confession and admission on behalf of his client, went to the extent of withdrawing the suit on that account. The suit was therefore allowed to be withdrawn by the learned Judge and, as such, was dismissed by him by his order dated 3-12-1968 (Exhibit 10 in the present proceedings).
(d) But present defendant No. 6 who could have no right as a lawful sub-tenant did not stop there. He filed Suit No. 6501 of 1967 in the Bombay City Civil Court for possession of the self-same premises, viz. the Garage. His contention was that by an Agreement dated 1-4-1967 the said Garage, which is a part & parcel of the premises which are the subject matter of the present suit, was given into possession by present defendants Nos. 1 to 5 as their sub-tenants. For this purpose, he relied upon a document, which purports to be just a letter addressed by defendant No. 6 to one Daulat, who is the son of present defendant No. 1. I will have occasion to refer to the contents of this letter while considering whether the transaction set up by defendant No. 6 could ever be described as one giving rise to his sub-tenancy. At this stage, it is enough to state that there is nothing in the document which can spell, even remotely, anything like sub-tenancy in respect of the garage by defendants Nos. 1 to 5 to defendant No. 6. But the contention of defendant No. 6 (the plaintiff in the suit) was that it was on the basis of this Agreement that he had entered into possession of the said garage and that he was in possession of the same for some time and that he was illegally dispossessed of the same by defendants Nos. 1 to 5 within 6 months before the date of the suit.
(e) Present defendants Nos 1 to 5 totally denied this allegation and contended that the plaintiff in that suit was never inducted into possession by defendants Nos. 1 to 5. Their further contention was that some kind of transaction was entered into between present defendant No. 6 on the one hand and Daulatram, son of present defendant No. 1, on the other, who had no authority whatsoever to sub-let the garage to defendant No. 6 or even to give to him on leave & licence the said garage of any purpose whatsoever.
(f) In that suit, which was obviously not a suit on title but was simply a suit for recovery of possession under section 6 of the Specific Relief Act a Receiver came to be appointed by the Court in respect of the said Garage. But what is significant to note is that even though the Receiver took possession of the Garage, as per the directions of the Court defendant No. 6 as plaintiff in that suit was not in possession of the same in any capacity, whether as Receiver's agent or otherwise. This position continued during the pendency of that suit. The garage remained under the lock & key of the Receiver, right till the year 1974. The Receiver was appointed by the Court's order dated 20-10-1967. The suit under section 6 of the Specific Relief Act was decided by the Court on 24-10-1974. The Court held that the plaintiff in that suit (present defendant No. 6) had been inducted in the suit premises by present defendants Nos. 1 to 5 or by someone or the other and that he was in possession of the same for some time and, further, that he was dis-possessed by present defendants Nos. 1 to 5 within a period of 6 months before the date of that suit. A decree for possession was, therefore, passed in favour of the present defendant No. 6 against present defendants Nos. 1 to 5 by that Court and it was at the time of the passing of this decree that the said Court passed a further order that the Receiver should hand over possession of the premises claimed by the plaintiff in that suit (to present defendant No. 6) as his agent. Presumably, the order was passed with a view to give opportunity to present defendants Nos. 1 to 5 (defendants in that suit) to approach this Court to have suitable interlocutory relief regarding possession of the Garage.
(g) Present defendants Nos. 1 to 5 did file a Civil Revision Application against that decree (obviously because no Appeal lay against the decree). It was C.R.A. No. 382 of 1974. It appears that Rule was issued in that Revision Application and present defendant No. 6 continued to be in occupation of the suit premises as the Receiver's agent.
8. It was only at this time that the present plaintiff became aware of the nature of claim made by present defendant No. 6 against present defendants Nos. 1 to 5. He therefore made an application in the present suit for amendment of the plaint with a view to incorporate the plea that present defendants No. 1 to 5 were liable for eviction also on the ground that they had unlawfully sublet a part of the premises viz. the Garage, to defendant No. 6. The plaintiff also applied for impleading defendant No. 6 as a party-defendant to the suit. This amendment was granted by the Court and the plaint was allowed to be amended so as to contain the additional ground for eviction, viz. the unlawful sub-letting of the garage by defendants Nos. 1 to 5 to defendant No. 6. Present defendant No. 6 was impleaded as such in the suit by virtue of the Order dated 21-3-1975 granting the said amendment. Upon the amendment of the plain, written statement was amended by defendants Nos. 1 to 5 and by the amended Written Statement they denied the creation of any sub-tenancy by them in favour of defendant No. 6. Present defendant No. 6, who was added as a party defendant in the suit also filed his written statement. His answer to the plaintiff a plea of unlawful sub-tenancy created by defendants Nos. 1 to 5 in his favour is, however, extremely laconic. He has has not explained as to by what right he has come on the scene. He has persisted at all times with the contention that he has possession of the garage, which is a part of the suit premises, but when the plaintiff asserted in the plaint that he had been inducted upon those premises by defendants Nos. 1 to 5 with the help of unlawful sub-tenancy in his favour, he blankly denied that there was any unlawful sub-tenancy in respect of the same.
This may mean one of the three things:---
(a) that he was not a sub-tenant but was a licensee ; or
(b) that he was not an unlawful sub-tenant but was a lawful sub-tenant; or
(c) that he was neither a licensee nor a sub-tenant.
If his plea was that he was not a sub-tenant at all, he had no leg to stand upon in these proceedings to defend the plaintiff's suit for possession, which is filed in 1967, long before 1-2-1973 on which date certain subsisting licensees became protected licensees. If, on the other hand, his contention was that his sub-tenancy was not unlawful, but was lawful, it was incumbent upon him to state as to in what manner and in what circumstances his sub-tenancy assumes the character of lawful sub-tenancy. There is absolutely no dispute from any quarters that from 21-5-1939 till 1st October, 1987 every sub-tenancy in respect of every premises was a blatantly unlawful sub-tenancy unless the landlord had consented to the creation of sub-tenancy by the tenant. It was not even the plea of defendant No. 6 anywhere in the Written Statement that the plaintiff in that suit had given consent to defendants Nos. 1 to 5 for the creation of sub-tenancy in his favour. In fact I may point out at this stage itself that not a shred of evidence is led by this defendant No. 6 to prove anything even resembling a consent ever given by the present plaintiff to present defendants Nos. 1 to 5 create a sub-tenancy in favour of defendant No. 6 in respect of the garage in question and not even any pretext was evinced by Mr. Nain to raise or substantiate any such plea.
The other possibility was that according to defendant No. 6 he was a licensee in respect of the suit premises. But I may mention here that not only in the trial Court but even before me the plea of defendant No. 6 being a mere licenses has not been agitated at all. On the other hand, it has been the vehement assertion of Mr. Nain, the learned Counsel for defendant No. 6, before me, that defendant No. 6 was not a licensee but was a sub-tenant in respect of the suit premises. Therefore, it followed that the denial voiced by defendant No. 6 in the Written Statement was a meaningless denial.
9. On these pleadings, issues were framed by the learned Judge and the parties went to trial. The grounds for eviction of defendant Nos. 1 to 5 were :---
(i) default in the payment of rent for a period exceeding 6 months;
(ii) creation of unlawful sub-tenancy in favour of defendant No. 6;
(iii) change of user in respect of the suit premises.
Issues were framed to cover the above questions. But there was also the issue framed on the question whether the rent of Rs. 137 -60 claimed by the plaintiff from defendants Nos. 1 to 5 by a Notice dated 8-4-1967 (Exhibit 13) was not the demand for payment of standard rent. Contention in that behalf was that the amount of standard rent fixed at Rs. 132/- per month, which was done by way of compromise dated 13-01-1959 in the Small Causes Court itself, was excessive and that the standard rent could not exceed Rs. 100/- p.m. In this connection, what is noteworthy is that the legality of the demand for the additional amount of Rs. 5.60 was not challenged in the lower Court. The thrust of the dispute was that the amount of Rs. 132/- fixed as standard rent by the settlement dated 13-1-1959 was excessive and that instead of Rs. 132/-, Rs. 100/- should have been fixed as standard rent in those proceedings. In fact it was conceded before the trial Court and was not disputed in the lower Appellate Court at all that the demand for the additional amount of Rs. 5.60 was valid demand for permitted increases payable per month. I am making this observation with full awareness of one of the arguments strenuously advanced by Mr. Dalvi, the learned Counsel for defendants Nos. 1 to 5 before me, viz. , that there was no concession so far the monthly payability of that amount of permitted increase of Rs. 5.60 was concerned. As will be presently pointed out, this plea is not available for a learned Counsel at all for being agitated in this Court in the context of the pleas, evidence and concession set up and made out in the lower Courts. But at this stage, it is enough stating that there was an issue framed in the trial Court on the question as to whether Rs. 37.60 was the standard rent payable per month.
10. Sitting in the writ jurisdiction as I am, it is really un-necessary for me to set out the evidence led by the plaintiff. But having regard to the nature of the arguments advanced before me, it is worthwhile setting out, though very briefly, the nature of the evidence led by defendants Nos. 1 to 5 toward off a decree of eviction against them. It went without, saying that so far as the question of default on the part of defendants Nos. 1 to 5 in payment of rent was concerned, the onus lay exclusively upon defendants No. 1 to 5 to prove that they had paid the rent or had offered the payment of rent, which was in arrears for the period of 13 months. It may be stated here that after the filing of the suit , on the very first date of hearing of the suit, defendants Nos. 1 to 5 had deposited in the Court the entire arrears of rent in the Court computed at the rate of Rs. 137.60 p.m. Moreover, they have gone on depositing or paying rent at the rate of Rs. 137.60 p.m. continuously thereafter. But the fact remains that the question before the Court was as to whether they had committed default before the filing of the suit. The plaintiffs' allegation was that they were in arrears of 13 months of rent. The defendants came out in their written statement with a plea that they offered the rent, but it was not accepted by the plaintiff. The onus, therefore, lay upon them to prove that they had offered the rent but that it was not accepted by the plaintiff.
It may be stated without the slightest hesitation that defendants Nos. 1 to 5 have failed in proving even the alleged offer. But the matter did not rest there. Even assuming that the plaintiff was foolhardy enough not to accept rent even though it was offered by the defendant, the question did remain as to why the defendant did not pay rent even within the statutory period of (30 days ?) provided for by section 12(2) of the Rent Act. which is more or less in locus poenitantiae given by the statute to recalcitrant tenant. No evidence was led by defendants Nos. 1 to 5 explaining their defaults of payment of rent even within 2 months after the plaintiff's notice under section 12(2) dated 8-4-1967 (Exhibit 13 in these proceedings).
11. The only way in which defendants Nos. 1 to 5 could wriggle out of decree for eviction, therefore, was to prove that the notice given by the plaintiff under section 12(2) of the Rent Act, dated 8-4-1967 (Exhibit 13) was not in compliance with the requirements of law. Presumably, the attempt of defendants Nos. 1 to 5 was to show that the Notice made a demand of an amount in excess of the standard rent payable by the defendants. This they could do by stating that the standard rent fixed by settlement between the parties in the Rent Court was of Rs. 132/- per month, whereas the demand was for payment of arrears at the rate of Rs. 137.60 p.m. It could have been stated by them that the demand for this additional amount was uncalled for in the eyes of law. What is significant is that this is not the plea taken by the defendants at all. It is neither their plea that Rs. 5.60 was not the amount of permitted increases authorised by law, nor was it their contention that this amount of Rs. 5.60 was not payable by them as permitted increases per month. On that point relating to the permitted increases, quantum-wise and period-wise, the defendants did not raise any dispute at all. The dispute raised by them was that the standard rent which was fixed by the settlement at Rs. 132/- was not the standard rent, but that the standard rent should have been nothing more than Rs. 100/- per month. In other words, according to them, the standard rent payable by them per month, together with the permitted increases payable per month, should not have exceeded Rs. 100/- plus Rs. 5.60, that is to say Rs. 105.60 in the aggregate. This particular position has got great bearing upon the particular plea that is urged by Mr. Dalvi before me in support of the petitioner's case.
12. Since this is the only point urged by Mr. Dalvi (by placing reliance upon the judgment of the learned Single Judge of this Court, which will be presently referred to). It is worthwhile re-stating the factual position.
Admittedly defendants Nos. 1 to 5 were in arrears of rent for a period of 13 months on the dated 8-4-1967 when the Notice of termination of tenancy. Exh. 13, was given by the plaintiff to defendants Nos. 1 to 5. Clause (a) of the Notice is extremely significant. In the said Clause (a) It is stated that the defendants were in arrears for 13 months from March 1966 to March 1967 in respect of the premises, consisting of Flat No. 2, a Garage and a store-room on the ground floor of the building occupied by the tenant as the landlord's monthly tenant at the rate of Rs. 137.60 per month. As needs to be stated repeatedly, there was no dispute in the lower Court and there is no dispute whatsoever in this Court now, that the additional amount of Rs. 5.60 represented the permitted increases. Admittedly, the rent was Rs. 132/- per month. One significant position is that this was not only the contractual rent but also the standard rent. Said Clause (a) in the Notice, Exh. 13, states in so many words that Rs. 137.60 was the rent payable by the tenant per month. This obviously means that according to the landlord even this amount of Rs. 5.60 which represents the permitted increases, was an amount of permitted increases payable per month. The entire calculation of arrears of rent inclusive of permitted increases is made at the rate of Rs. 137.60. The aggregate arrears of Rs. 1788.80 is obviously arrived at by multiplication of Rs. 137.60 which was the aggregate amount payable per month by 13 which was the number of months of the arrears of rent. This means that the landlords had asserted that not only that Rs. 132/- was the rent payable per month, but even the permitted increases of Rs. 5.60 were payable per month. The entire amount of rent and permitted increases, totalling to Rs. 137.60 is, thus, claimed to be the rent payable per month.
To this notice, no reply has been given by defendants Nos. 1 to 5 at all. This point has the relevance of its own. But they did not stop there. In their Written Statement, the fact that permitted increases of Rs. 5-60 were payable is not disputed and, what is more important, the fact that the amount of Rs. 5-60 is payable per month is not disputed. I may state at the cost of repetition that the dispute was as regards the legality of the amount of Rs. 132/- as standard rent, not of Rs 5-60 being permitted increases payable per month.
13. The Court went into the question whether the amount of Rs. 132/- payable by the defendants Nos. 1 to 5 to the plaintiff was standard rent or not.
In my opinion, in the first place, the Court had no jurisdiction for examining this controversy at all. This is so firstly because this is not a bona fide dispute. It has been held by this Court repeatedly that the dispute about the standard tent contemplated by the Rent Act must be a bona fide dispute. On the face of it, this is not a bona fide dispute. Secondly, it is a rule of law well settled by now by virtue of the judgment of the Supreme Court
Harbanslal Jagmohandas and another v. Prabhudas Shivlal, that a dispute contemplated by section 12(3)(a) of the Act must be a dispute raised within one month from the date of the Notice under section 12(2) of the Act. In the absence of such dispute raised within one month in the appropriate Court, the dispute has no relevance whatsoever so far as the liability of the tenant for eviction on the ground of arrears of rent for period exceeding 6 months is concerned.
Moreover, thirdly, it has been held by Court finally in 1979 Maharashtra Law Journal, Page 717, Mohanlal Bapubhai Shah v. Anant Ramchandra Rediz, that the standard rent can be fixed by the Rent Court by consent of the parties. There is no dispute that the amount of Rs. 132/-, which was the rent payable by defendants Nos. 1 to 5 to the plaintiff, was the amount fixed as standard, rent in the Consent Decree dated 13-1-1959 (Exh. 4) passed by the Court, which was a Rent Court only ; not the ordinary Civil Court. The position, therefore, is that the standard rent was already fixed by a valid and lawful decree between the parties passed by a competent Court as early as on 13-1-1959. The Court was alive to this position and still the Court framed an issue embarking upon the enquiry whether the amount of Rs. 132/- payable as rent per month by defendant Nos. 1 to 5 to the plaintiff was the standard rent or not. (Even this issue and its discussion by the lower Court shows that dispute about permitted increases of Rs. 5.60 p.m. there existed none. Really speaking, in the eyes of law, that part of the evidence and that part of the examination of the controversy can even be ignored by this Court, because the amount of standard rent of Rs. 132/- was already fixed by the Court as early as on 13-1-1959.
14. But the further point, in the second place, is that even after re-examining the entire question the Court did hold that the original standard rent of Rs. 132/- was a perfectly reasonable rent and as such was the standard rent for the premises in question. A stated above, there was no dispute relating to the question of the quantum of permitted increases. In fact, specific observations are made by the learned trial Judge in Para 10 of his Judgment as follows:---
"The consent terms also show that Ghanshyam & Co., and defendants Nos. 1 to 5 had agreed not dispute this standard rent and go to the Court for fixation of standard rent any time after the consent terms. Thereafter there were permitted increases and rent at the time of filing of the suit was Rs. 137.60. There is no dispute that from 1959 to 1967 there were permitted increase of Rs. 5.60 after the date of the consent terms."
The further discussion in para 10 and next Paras 11 and 12 leaves no room for doubt that the dispute was confined to the question as to whether Rs. 132/- was the amount rightly fixed by the parties in 1959 as the standard rent or whether it should be of the lower figure of Rs. 100/- The discussion leaves no room for doubt that the correctness of the quantum of permitted increases viz. Rs. 5.60, was not in dispute at all in the trial Court. Since the factum of arrears was not in dispute, decree for eviction on that ground was inescapable. The trial Court did pass such a decree. However, the Court passed the eviction decree against all the defendants also on the ground of unlawful sub-tenancy in respect of the garage, allegedly created by defendants Nos. 1 to 5 in favour of defendant No. 6 This is what the trial Court did because of the plaintiff's allegations in the amended plaint, virtually by disregarding the protestation of defendants Nos. 1 to 5. The decree for eviction was, thus, passed by the trial Court against all the defendants on both the grounds mentioned above.
15. Against the decree of the trial Court, which is dated 30-3-1976. Appeal was filled by defendants Nos. 1 to 5 on 29-6-1976. It may be mentioned here that original defendant No. 2 had died during the pendancy of this suit. But he left no other heirs behind him, excepting defendants Nos. 1, 3, 4, and 5, who were already on record. Hence, there was no question of the Appeal being abated. The suit proceeded after his name was deleted from the array of parties.
But during the pendency of the Appeal filed by defendants Nos. 1 to 6. Jairamdas, defendant no. 4, died on 1-7-1976. He left behind his heirs, but none of them was brought on record by the appellant.
Likewise, defendant No. 6 preferred a separate Appeal against the decree. The Appeal was filed on 10th June, 1976. But right from the time he was inducted into a portion of the suit premises, viz. the garage, strange doings he has been indulging in. His dispute was not only with the plaintiff/landlord but also with his own (alleged) landlords, defendants Nos. 1 to 5. In the Memo of Appeal, he has specifically contended that he was a protected licensee of defendants Nos. 1 to 5. This means that according to him, on 1-2-1973 he was a licensee of defendants Nos. 1 to 5. This implies that his was never the plea of lawful sub tenancy. Evidently he tried to take advantage of the ordinance which came into force on 1-2-1973, by virtue of which licensees as on that date of the tenants (as distinguished from sub-tenants of the tenants) were given protection and were given the status of deemed tenants or protected licensees. Clause 15 of his Memo of Appeal in the lower Appellate Court states as follows:---
"That learned trial judge ought to have held that as such he continues as a Protected licensee in terms of amendments of the Bombay Rent Act in 1973."
It leaves no room for doubt that he was claiming right not only against the plaintiff, but also against defendants Nos. 1 to 5, the right of a licensee and of deemed tenant as again defendant Nos. 1 to 5. Defendants Nos. 1 to 5 on the other hand were crying hoarse that they had no jural relation with defendant No. 6 and that he was a rank trespasser upon the premises which were held by them as tenants. In spite of this res against defendants No 1 to 5, defendants No. 6 did not make them parties in the Appeal against the decree for eviction in the Appeal, only the plaintiff was made a party.
A question, therefore does arise as to whether the Appeal filed by defendants Nos. 1 to 5 had not abated and, further, whether the Appeal of defendant No. 6, was competent at all. The answer to these questions have an important bearing upon the very maintainability of these two writ petitions.
16. Let me revert back to the question of the nature of dispute relating to the standard rent. The point to be noted is that even in their Appeal the correctness of the quantum of permitted increases, viz. Rs. 5.60 per month, was not disputed by defendants Nos. 1 to 5 at all. I have gone through the Memo of Appeal filed by the said defendants in the lower Court and I find that the Memo of Appeal does not disclose the agitation of any controversy relating to the quantum of permitted increases at all.
Likewise, one can go even through the writ petition filed in this Court, from left to right and from top to bottom, but not even any whisper of dispute on this point can be noticed in any of the averments in the petition. In fact Mr. Dalvi was fair enough to state before the Court in so many words that so far as the quantum of permitted increases, viz. Rs. 5-60 per month was concerned, there was a specific concession by the learned Advocated for defendants Nos. 1 to 5 in the trial Court and that no dispute about that position was ever raised by these defendants in any of the Appeals at any time. In fact he checked up the position from the record and stated that he cannot dispute the correctness of the quantum of permitted increases beings Rs. 5-60.
17. The caveat that was put by the learned Counsel was, however, quite ingenious. His contention is that the concession in the lower Court related to the quantum of permitted increases, not to the period over which the amount of Rs. 5-60 was payable. He has a particular reason for making this submission and I will come to the purpose of the argument presently. But here it may be stated that even so far as this point is concerned, the learned Counsel is not right on fact. I have mentioned the position resulting from the Notice, Exhibit 13, dated 8-4-1967. I have also pointed out that there was no reply to the notice. I have referred to the Written Statement and the nature of the dispute raised by the defendants. All these give rise to the only inference. viz. that the concession related to the quantum of permitted increases payable per month.
As a matter of fact when demand was made for the arrears of 13 months at the rate of 5-6- per month as permitted increases (which was implicit in the demand both in the notice and in the Plaint), it followed that the assertion was that the amount of Rs. 5-60 was claimed as permitted increases per month. There is no denial about this position in the Written Statement. No issue has been invited on this point. Mrs. Bharucha submitted that not only in the City Civil Court and in the Original Side of this Court, but even in the Court of Small Causes the practice is that issues are first of all submitted by the defendant to the Court and they are settled by the Court later on after discussion with all the parties. This would mean that the issues are submitted by defendants Nos. 1 to 5 themselves. But even assuming that the issues wee submitted not by defendants Nos. 1 to 5 in the first instance, the fact remains that there is no grievance whatsoever by any of the defendants about the correctness of the issues framed by the trial Court and, what is more significant, that no issue is invited by the defendants on the question whether the quantum of Rs. 5-60 as permitted increases was the quantum payable per month or otherwise. Each of the parties proceeded on the assumption that the total rent recoverable by the landlord was Rs. 132/- as original standard rent payable per month and Rs. 5-60 as permitted increases payable per month.
18. The relevance of this entire discussion arises on account of the reliance placed by Mr. Dalvi upon the judgment of a learned Single Judge of this Court (S.K. Desai, J) reported in 1986 (2) Rent Control Journal, page 133, Awabal Muncharji Cama and others v. M. N. Kaka. In that case a suit was filed by the landlord for eviction of the tenant alleging that the defendant/tenant was in arrears of rent for a period exceeding 6 months. He gave notice of termination of tenancy. The tenant did not pay arrears within one month of the receipt of the Notice, but paid the entire arrears on the very date of hearing. The consolidated claim made in respect of the rent was Rs. 35950, consisting of Rs. 350/- being the monthly rent and Rs. 9.50 alleged to be receivable on account of State Education Case. Since the total demand included the rent as well as permitted increases in the form of Education Cess, the Court had to consider whether Rs. 9.50, which was payable as permitted increases on account of the Education Cess, was payable per month. This was so because section 12(3)(a) of the Rent Act as it then stood, postulated mandatory decree for eviction in the cases where rent was in arrears for a period exceeding 6 months. Thus, if by virtue of the agreement between the parties, rent was payable per annum or was payable every quarter of the year or even if it was payable every week, still the provisions of section 12(3)(a) of the Act did not come into play and automatically the case fell under section 12(3)(b). While deciding the writ petition, the learned Judge has taken the view that permitted increases form part of the rent payable per month. He has also noticed that Education Cess as such was not payable per month. When Education Cess is claimed by the landlord from the tenant, it would form a part of the aggregate rent. It appears from the decision of the learned Judge that unless there was an agreement between the landlord and tenant for payment of education cess per month and unless such monthly payment of education cess was included in the other portion of the monthly rent, the case of the landlord would not fall under section 12(3)(a) at all. Mr. Dalvi pointed out that this was not the view taken by the Appellate Court in its judgment against which the writ petition filed by the landlord. The Appeal Court had dismissed the landlord's suit probably on some different ground. In the writ petition filed by the landlord this contention was agitated on behalf of the tenant with a view to ex ricate out of the provisions of section 12(3)(a) of the Act. The petitioner/landlord on the other hand relied upon the above mentioned authority in Harbenslal's case, . The contention of the Respondent/tenant was accepted by S.K. Desai, J., holding that the education cess which was the permitted increases formed part of the rent and since there was no agreement between the landlord and the tenant for payment of education cess per month, the case was taken out of the purview of section 12(3)(a) of the Act. According to the learned Judge, the entire amount of rent plus permitted increases must be payable per month and since there was nothing to show that by virtue of an agreement between the landlord and tenant the permitted increases were payable per month, it followed that it was payable according to the provisions of the Maharashtra Education Cess Act, under which the education cess is not payable by the landlord to the authority concerned per month at all. It was on this ground viz. that the education cess formed part of the rent and that the eduction cess was not payable per month by the landlord and on the ground that there was no agreement between the landlord and tenant to pay a portion of the education cess per month along with rent, making the entire aggregated a monthly liability, the case was held to have been extricated out of the purview of section 12(3) of the Act.
19. In my opinion, the reliance upon this Authority is quite mis placed. In the present case, it has never been anybody's contention that the amount of Rs. 5.60 payable per month represented education cases. All that we find in this case is that there were permitted increases payable per month and that the quantum of the payment was admittedly Rs. 5.60 per month. This is borne out by the entire conduct and pleadings of the parties. The agreement between the parties is a monthly liability is implicit and it is borne out by the notice of termination. Exhibit 13, given by the landlord as also by his averment in the plaint which has not been denied. The implicit agreement is that Rs. 5.60 is the permitted increases payable per month. If this is the position, than the judgment delivered by S.K. Desai, J. ceases to have relevance so far as the facts of the present case are concerned.
There is no other point urged by Mr. Dalvi so far as the decree on the ground of arrears of rent as per section 12(3)(a) of the Rent Act is concerned. The decree on this ground must, therefore, stand.
20. Mr. Dalvi also questioned the correctness and the legality of the decree passed by the lower Court on the ground of unlawful subletting by defendants Nos. 1 to 5 to defendant No. 6 of a portion of the suit premises, viz. the garage on the ground floor.
So far as this finding of both the Courts below is concerned, I am inclined to agree with Mr. Dalvi when he contends that no sub tenancy was ever purported to be created by defendants Nos. 1 to 5 in favour of defendants No. 6. In this connection, he pointed out, in the first place, that no evidence is led by defendant No. 6 to prove that all the defendants No. 1 to 5 were parties to the agreement between Daulatram, son of defendant No. 1, and defendant No. 6 to induct him in possession of the garage in question for a period of 6 months. The factual position in this behalf, which is not seriously disputed, is that some kind of an agreement took place between Daulatram, son of defendant No. 1, on the one hand and defendant No. 6 on the other, which is evidenced by a letter written by defendant No. 6 addressed to Daulatram. The letter is produced at Exhibit 14 which shows that there was an agreement between Daulatram and defendant No. 6. It is worthwhile having a took at the agreement as whole. Hence, a copy of the same is annexed as an Appendix to this judgement. Even a superficial glance at the Agreement shows that it was an agreement relating to some kind of business dealings and/or partnership between Daulatram on the one hand and defendant No. 6 on the other. The agreement is for just a short period of 6 months from April 1967 to September 1967. It is stated to be a temporary arrangement in the nature of temporary use given to defendant No. 6 of the garage for period not exceeding months. The letter shows that defendant No. 6 is expected to make other suitable arrangement for that purpose within that period. It is specifically stated there that for use of the garage defendant No. 6 would pay Rs. 100/- per month. It is not stated as to whom the compensation would be paid. But on the reading of the agreement as a whole, no room is left for doubt that the garage is regarded by defendant No. 6 to be belonging to Daulatram, which meant that defendant No. 6 was to give Rs. 100/- to Daulatram.
Point is that in this entire transaction defendant Nos. 1 to 5 do not come into picture at all. It is not at all proved that Daulatram was acting as an agent of defendant Nos. 1 to 5. It is true that Daulatram is the son of defendant No. 1 and as such it may be also possible that Daulatram was having access to the garage and was using the garage as a member of the family of defendants Nos. 1 to 5. But that would not mean that he would have the authority of all defendant Nos. 1 to 5 to give use of the garage to the 3rd party.
Even the subsequent events corroborate this very position. Almost immediately after defendant No. 6 started occupying the garage for the purpose of his business, which appears to be in partnership with Daulatram, defendants Nos. 1 to 5 objected to this arrangement and it is the grievance of defendant No. 6 himself that Daulatram called upon defendant No. 6 to remove himself from the garage. Nay, it is further grievance that he was dispossessed either by Daulatram or by defendants Nos. 1 to 5 of the garage, which was the reason which propelled him to file a thoroughly frivolous suit (suit No. 687.5123.1967) in the court of Small Causes in September 1967, for injunction restraining defendants Nos. 1 to 5 from interfering with his possession of the suit premises, viz the garage which he claimed to be in occupation of as a lawful sub-tenant of defendants Nos. 1 to 5.
21. Now it is elementary knowledge that in the year 1967 sub-tenancy was a matter of total prohibition in law unless the landlord had consented to the same. But it was nobody's case, at any time, that the plaintiff had consented to the creation of the sub-tenancy. The judgment given by the learned Judge of the Small Causes Court makes this position clear. The contention that he was a lawful sub-tenant was specifically negatived by the learned Judge who decided the interim application of the defendant for interlocutory injunction. That Court went even a step further and held that on the date of the application defendant No. 6 (plaintiff in that suit) was not even in possession of the garage. In fact it was recorded by the Court as an admission by the Advocate for the plaintiff in that suit that he was not in possession of the garage. It follows that the suit filed by defendant No. 6 in the Small Causes Court for injunction was the most misconceived suit apart from being a fraudulent suit, claiming relief on a basis which was prohibited by law.
The subsequent suit filed by him in the city Civil Court was not based upon title at all. It was a suit under section 6 of the Special Relief Act. The plea was of unlawful dispossession ; but there was not even a pretext that the said defendant's earlier possession stemmed from based on any right or interest in property. Defendant No. 6's right to be in lawful possession of the premises in question on the basis of any right flowing under the Rent Act did not arise at all in that suit.
22. Moreover, in these matters the Courts have got to be realistic. While examining the question whether a particular transaction was of sub-tenancy of leave & licence, the crucial test is the intention of the parties. But the intention has to be gathered primarily from the language employed in the document which evidences or bring about the transaction. If the language is unequivocal, the Court are not required to go about scrounging for circumstances which falsify the intendment expressed by the language.
But even that apart, the point is that the intention, in the first place, has got to be the bilateral intention, not unilateral ; that is to say of both the parties, the person giving possession and of the person taking possession of the premises. It cannot be the intention of only one of the parties. For instance, if an owner of a premises lets another person into possession of the premises for a monthly consideration and executes a document of leave and licence in that behalf, it will be useless for the person described in the document as a licensee to contend that his intention was to take a sub-tenancy. The intention of creation of sub-tenancy must be present in the minds both, of the giver and of the taker. The taker might "intend" to have even the moon. He may "intend" having even the gift of the premises. The giver, one may be sure, would never intend giving such a thing a hence a gift it would never be. Likewise, the taker might want a lease of it. If the giver did not intend giving of lease, the taker could never get a lease. In the matter of intention, there has got to be mutuality. It should be the intention of both the parties, not only of one of the parties to the transaction.
Nextly, the courts must be realistic also of the facts that the intention mist be of normal, prudent human being's conduction themselves in a business like manner. It is a matter of common knowledge that when a thing is to be sold, the seller wants the maximum price, whereas the buyer would pay only the minimum. In this conflict of opposing desires, a transaction is struck for a price agreeable to both the sides. The intention, therefore, must be the intention of a person conducting himself in a business like manner and in a prudent manner.
23. Point is that normally speaking no person in possession of any premises and having domain over the premises would like to induct any other person into possession of the same as a tenant unless the other person gives to him highest of the consideration that is receivable under the law. An owner of a premises would never like to give to any person tenancy in respect of the premises if the advantages that he gets from giving the premises on leave and licence far exceed the advantages that he would get by giving it on tenancy. Now, it is common knowledge that if a person is given possession of premises as a tenant , the landlord cannot get anything more than the standard rent ; he cannot get anything by way of advance payment or deposit. Further, he will be subject to all the requirements of maintenance and repairs of the premises. He is prohibited from taking anything more than 3 months' rent in advance as deposit. Moreover, there is a veritable embargo of the landlord's right to get back possession from the person who is inducted as a tenant. All these advantages are or were done away with, if the transaction was of leave and licence and not of tenancy. Against the licensee, suit for possession could be filed at any time after the period of licence was over. Moreover, there was no limit to the amount of compensation that could be taken from the licensee without eye-brows being raised by any Court Further, beyond what was stipulated in the agreement, no liability would exist upon the over/lincensor to maintain premises in good repairs and certainly not to the extent to which he would be required to maintain them if the party of the 2nd Part was a tenant and not a mere licensee. Moreover, he could file a suit for possession of the premises at any time after the termination of agreement and if it was proved that the transaction was of licence, the suit would have no defence.
Now the question is as to which sensible or prudent person would in such circumstances, choose and intend giving a lease and not a licence when he knew that giving of licence would be much more beneficial to him than giving of a lease. I repeat, the party of the second part will not be happy about this. His intention would be to take a lease from the party of the 1st part. But the point is that the party of the 1st part will not be agreeable to that and will not entertain the intention of giving a lease, unless there was some special consideration and reason which actuated him to give lease to the party of the 2nd part rather than a licence.
It may by that in some cases there may exist special reasons for the owner of the premises to create a lease in favour of the party of the 2nd part, but special reasons will have to be pleaded and proved by the party of the 2nd Part. As a matter of normal rule the intention of the owner of the premises would be to create a licence, rather than a lease, in favour of the party of the 2nd Part.
24. Moreover, this would be particularly so when the party of the 1st Part is a tenant governed by the Rent Act and not the owner of the same. This is so because under the Rent Act giving sub-tenancy is a taboo unless you have the consent of the landlord you cannot create a sub tenancy. The creation of sub-tenancy is illegal and in addition to that it would give a cause of action to the head-landlord to evict both the tenant and the sub-tenant, if he finds that the tenant had the audacity to sub-let the premises without his consent. It follows, therefore, when it is the case of a tenant giving possession of the premises or of a part of the same to a 3rd person, the tenant as such will never intend creating a sub-tenancy, but will be prepared to give the premises to the 3rd party only on leave and licence.
This is the view taken by this Court in many other matters and nothing in evidence produced by the parties in this case requires me to change this view.
25. It is true that in the instant case the landlord, viz. the plaintiff had pleaded that what was given by defendants Nos. 1 to 5 to defendant No. 6 was sub-tenancy Mr. Nain argued that if the plaintiff pleaded sub-tenancy, it would not be open for me to hold that it was a leave and licence, because that was nobody's case. The first answer to this plea is that defendants Nos. 1 to 5 had not admitted this position. An issue therefore, arose and defendants Nos. 1 to 5 have led evidence in support of their plea. The lower Court had no jurisdiction to ignore that evidence.
26. The second answer is that if the landlord/plaintiff pleaded defendant Nos. 6's sub-tenancy, defendant No. 6 himself had denied it. No doubt his denial is laconic and evasive. All that he did was to deny that unlawful sub-tenancy was created in his favour. But he did not come out with the plea that a sub-tenancy was enacted in his favour. Plaintiff could not have known the exact relationship between defendants Nos. 1 to 5 on the one hand and defendant No. 6 on the other. Defendant No. 6 had filed a suit in the Small Causes Court against defendants Nos. 1 to 5 contending that he was a sub-tenant in respect of the suit premises. Probably that was the reason why the plaintiff chose to amend the plaint and taken an additional ground for eviction of defendants Nos. 1 to 5, viz. that they had unlawfuly sub-let a part of the premises to defendant No. 6. Doing so was to their benefit at that time and that is why they pleaded sub-tenancy being created by defendant No. 6. So far as defendant No. 6 was concerned, he could not have pleaded leave and licence because the document itself showed that the leave and licence was for the period of 6 months only. By the time the suit came to be filed by the plaintiff against defendants Nos. 1 to 5, that period was already over. Taking the plea of mere licence in his favour would not in any way help defendant No. 6 at all. That was probably the reason why he did not agitate the plea of leave and licence, but resorted to the device of evasive denial or rather the laconic denial. The question is whether these pleas of the plaintiff and defendant No. 6 are binding upon defendants Nos. 1 to 5. In my opinion, they will not, in my opinion, there existed enough documentary and circumstantial evidence on record showing in the first instance that there existed no relationship between defendants Nos. 1 to 5 on the one hand and defendant No. 6 on the other, because the concerned transaction, if at all, was between the son of defendant No. 1, Daulatram, on the one hand, and defendant No. 6, on the other and not between defendant Nos. 1 to 5 on the one hand and defendant No. 6 on the other. But assuming that there existed any such transaction amongst these defendants, the transaction was, on the face of it, one of leave and licence. The contention that defendant No. 6 was put in exclusive possession is neither here nor there, because it is now well settled that though exclusive possession is an important test for deciding whether the transaction is one of leave and licence or one of lease, it is not the sole test. There are cases where exclusive possession is given by the tenant to a 3rd party and still the 3rd party is not identified by the Courts to be a sub-tenant. In my opinion, this is one such case and the evidence on record leaves no room for doubt in this behalf.
27. It was argued before me that this was a concurrent finding of fact recorded by both the Courts below and that I should not interfere with the same.
In my opinion, the view expressed by both the courts below that defendant No. 6 was only a sub-tenant is recorded without examination of the pros and cons of the case. The ponderous circumstantial evidence on record favouring the case of defendant Nos. 1 to 5 showing that defendant No. 6 was not a tenant is something to which mind is not applied by either of the courts. If this is the position, this Court has not only the jurisdiction, but is in fact under an obligation to have a second look at such a finding. In my opinion, therefore, the decree passed against defendants Nos. 1 to 5 on the ground of unlawful sub-letting cannot stand.
However, I am alive to the fact that this would not have any effect upon the ultimate decree passed by the Court.
28. But Mrs. Bharucha was right in contending that if the premises were given into possession by defendants Nos. 1 to 5 to defendant No. 6 and if he was allowed to use the garage for some other business, then this would amount to a change of user by defendants Nos. 1 to 5. I make it clear that I am not recording the finding that this change of user by defendant No. 6 was with the consent of defendants Nos. 1 to 5. But the point is that if it is required to be held that the garage was being used by defendant no. 6 with the consent of defendant Nos. 1to 5, then the act of defendant No. 6 certainly amounts to a change of user, which gives a valid ground to the plaintiff for eviction of defendants Nos. 1 to 5. I do not see how it can he held in that case that the premises was not changed by defendant No. 6 with the permission of defendants Nos. 1 to 5 if it is held that defendant No. 6 was the sub-tenant of defendants Nos. 1 to 5. The two findings cannot be reconciled with each other. If defendant No. 6 was not the sub-tenant of defendants Nos. 1 to 5 and if they had not inducted him on the premises, then they would not be guilty of change of user, because the user made by defendant No. 6 subsequently was not with their consent, but was made in spite of their opposition. But it is not possible to have both the findings together, viz. that defendant No. 6 was a sub-tenant, but at the same time defendant No. 6 had not change the user of the garage or had not suffered defendant No. 6 to change the user of the garage. The fact that defendant No. 6 is not using the garage as a garage is an admitted fact. The fact that he is using the same for some other purpose is an admitted fact. The change of use is, therefore, a matter of inescapable inference. If a decree is passed on the ground of sub-letting, a decree against them also on the ground of change of user becomes inescapable.
29. The 2nd argument of Mr. Dalvi was based upon the provisions of sections 11 and 25 of the Maharashtra Act No. 18 of 1987. Since the question is of crucial character, it is worthwhile setting out the relevant provisions, viz. sections 11, 15 and 25 of the said Maharashtra Act No. 18 of 1987. The text of those two sections is set out in Appendix-2 appended to this judgment. It will be clear from the same that section 11 purports, more or less, to do away with the distinction between section 12(3)(a) and section 12(3)(b) and it enjoins a duty upon the Court to grant relief to the erring tenant, who commits default in the payment of rent even for the period exceeding 6 months. The section provides that if the rent is paid by the defaulting tenant on the first day of hearing of the suit, the relief against his eviction shall be granted by the Court. The only limitation upon the Court's power to grant such relief is that no such relief can be granted in two previous suits when the tenant has already received such benefit of such relief.
Relying upon this section, Mr. Dalvi contends that defendants Nos. 1 to 5 had in fact paid the entire arrears of rent on the very first date of hearing of the suit and that they had gone on depositing the monthly rent in the Court punctually and dutifully thereafter. According to him, therefore, the provisions of section 11, which do away with the distinction of sections 12(3)(a) and 12(3)(b) of the Rent Act and which gives the tenant the relief, must apply to the facts of the case and hence the decree passed by the lower Court against defendants Nos. 1 to 5 on the ground of arrears of rent cannot be sustained.
Mr. Dalvi might have been right on this point if the position was that section 11 of the Maharashtra Act, which brings about the above mentioned position was of a retrospective character. In this connection, it is to be borne in mind that the decree for eviction was already passed by the lower Courts on 5-6-1987. The Maharashtra Act No. 18 of 1987 came into force on 1st October, 1987. If the provisions of section 11 of the Amending Act (Maharashtra Act No. 18 of 1987) has a retrospective effect, then probably Mr. Dalvi would have been right. But, in the first instance, at least prima facie, it does appear that the provisions of section 11 of the Amending Act (No. 18 of 1987) have no retrospective effect The indication of this position is to be had from the fact that the amended section 13 purports to give relief to the tenant only if on the 1st date of hearing the entire arrears of rent are paid by the tenant alongwith interest. Now, for the purpose of the interpretation of statutory provision, the facts of the case to which the provision is allowed to apply are not relevant. The statutory provisions are, from the very nature of things, of an all pervasive character. It may be true that in the instant case the defendants Nos. 1 to 5 had deposited the entire arreasrs in the Court on the very first date of hearing. But, in the first place, there are cases where the defendants had not deposited such arrears on the first date of hearing because the law, as it then stood, did not give them any relief merely because the arrears were deposited in the Court on the very first date of hearing. The fact that present defendants Nos. 1 to 5 had deposited all the rents in the Court on the very first date of hearing is a matter of accident. That fact cannot be used for the interpretation of section 11 of the amending statute. Point is that if the statute requires a tenant to deposit the entire arrears in the Court on the very first date of hearing in order to qualify himself for relief against forfeiture, then the amendment which brings about this result cannot be said to be retrospective, because this right given to the erring defendants would be in most of the cases subject to an impossibility, in that he will be expected to do something in the retrospective.
This is precisely the view taken by my learned Judge, Justice Jahagirdar, in Writ Petition No. 5141 of 1987, decided on 11th July, 1988, Piroja M. Mehta v. Dr. Hambai
Jamshedji Came. With respect, I am in complete agreement with the judgment.
30. Moreover, even on the facts Mr. Dalvi's point will fail. His plea is the he has fulfilled the condition as per the amended statute by depositing all the arrears of rent in the Court on the very first date of hearing. But what he has lost sight of is the payment of interest on all the arrears of rent on the first date of hearing. This too is the condition precedent for the relief and admittedly the defendants could not have and have not deposited that amount of interest in the Court. Section 11 of the Amending Act No. 18 of 1987 cannot, therefore, be availed of by defendants Nos. 1 to 5 for bringing their case within the four corners of the amending statute.
31. But there is yet another reason why Mr. Dalvi's submission in this respect cannot be accepted and that is to be found in the provisions of section 25 of the Amending Act, viz. Maharashtra Act No 18 of 1987. The verbatim text of the section is set out in Appendix 2 attached to this judgment. However, I am examining this position emanating from this section 25 while I examine the petition field by defendant No. 6. After hearing that petition I have come to the conclusion that said section 25 does not contemplate a power to the High Court in exercise of its writ jurisdiction under Articles 226 and 227 of the Constitution of India to interfere with the decree of eviction already passed by the lower Court before the advent of the Amending Act on 1-10-1987.
32. But there is another hurdule in the way of the present petitioners, defendants Nos. 1 to 5. As stated earlier, defendant No 4 died after the Appeal was filed by defendants Nos. 1, 3, 4 & 5 on 29-6-1976 (he died either on 1-7-1976 or 31-7-1976, but it is common that he died in July 1976).
Point is that though a decree was passed against defendant No. 4 in the trial Court jointly with defendants Nos. 1, 3, & 5 and even though he was one of the appellants before the Appellate Bench, his heirs were not brought on record by the petitioners. So far as plaintiff was concerned, he understandably contends that he was not aware of the death of defendant No. 4, Jairamdas, until a statement to that effect was made by the petitioners, defendants Nos. 1,3 and 5, in their present petition. Question is whether the Appeal did not abate and, if it abated, whether any relief can given to the petitioners in Writ Petition No. 3417 of 1987. A number of authorities have been cited by Mrs. Bharucha in support of her contention that the Appeal filed by these petitioners in the lower Appellate Court had wholly abated, the fact that it was dismissed by the Appeal Court thereafter on merits does not change the situation viz. that it had already abated. The plea, therefore, is that the petitioners are not entitled to get any relief vis-a-vis the eviction decree from this Court, because the Writ Petition is itself incompetent ab initio.
33. Quite a few judgments have been relied upon by Mrs. Bharucha on this point. But I will refer to only a few.
In Rameshwar Prasad and others v. Shambehari Lal
Jagannath and another, one of the several appellants, against whom a decree was passed jointly, died. His heirs were not brought on record in the Appeal. The question was whether the entire Appeal had abated. Plea was urged on behalf of the appellants that under Order 41, Rule 4 it was open for the various defendants against whom the decree was passed to entrust the work of filing of the Appeal to one of them and that if they did so, it was not necessary that the other should be jointed as appellants. The Supreme Court held that the provision relevant after the appeal was filed was Order 22, Rule 9 and not Order 41, Rule 4. Order 41, Rule 4 applies to the stage when Appeal is to be and is filed and empowers one of the plaintiffs or defendants, in a representative capacity as it were, to file an Appeal against the entire decree in certain circumstances. But if the parties who can nominate one of them to file an Appeal all by himself, do not choose to take advantage of Order 41, Rule 4, that provision ceases to be available to them during the pendency of the Appeal so as to obviate bringing on record the heirs of one of the deceased appellants. It was held that if the heirs of one of the appellants, who had died, were not brought on record, the entire Appeal would abate, the provisions of Order 41, Rule 4 notwithstanding.
In Ram Sarup v. Munshi and others, the position was that the properties in respect of which respondents Nos. 1 to 4 had instituted a suit, claiming a right of per-emption, had been sold to the Appellants by a Deed dated April 25, 1957 for a consideration, half of which was paid by Appellants Nos. 1 & 2. It was not a case of purchase of separated items of property, but was a case of joint purchase Against these vendees, a decree for pre emption was obtained by the pre-emptor. The vendees filed an Appeal against the per emption decree. One of these appellants-vendees died during the pendency of that Appeal, but his legal representatives were not brought on record. In this content, it was held that the entire Appeal had abated, because where a decree is a joint one and a part of the decree has become final by reason of abatement, the entire Appeal must be held to have abated. In A.I.R. 1947, Bombay, page 118, Reshmabai and others v. Sona Puna Patil and another, it is held by S.K. Desai, J., as follows:---
"If the decree is joint and indivisible the Court cannot proceed with the appeal and reverse the decree which would mean a reverse only as far as the second respondent is concerned since the appeal has been declared to have been abated as far as the deceased respondent is concerned. This cannot be done inasmuch as doing so would amount to bringing on record two inconsistent decrees. In case the appeal were to be proceeded with and allowed, the declaration and order for possession obtained by deceased respondent will stand and will enure to the benefit of his heirs whereas the second respondent who has the same right as deceased and stood in the same position would be held not be entitled to the same declaration nor to an order for possession."
For taking this view, the learned Judge has relied upon the decision of the Supreme Court in Nathu Ram's case, .
I may observe that these authorities do appear to be clinching the issue. The sum total of the principle laid down in the authorities is that when a joint decree is passed against several defendants, all of whom file an Appeal to the Appellate Court, and when one of the Appellants dies during the pendency of the Appeal, it is imperative that his heirs are brought on record by the remaining appellants or, else, the Appeal will abate as a whole. That being the principle, the Appeal of defendants Nos. 1, 3, 4, & 5 did stand abated. If this is so, the present writ petition is an exercise in futility and would deserve dismissal on the point itself.
34. Mr. Dalvi has next to no answer to these authorities. But a very neat and ingenious advice is given by him to his clients and I quite appreciate the same. The widow of defendant No. 4 has filed an Affidavit stating that defendants Nos. 1 to 5 always regarded Atmaram (original defendant No. 2) to be the tenant of the suit premises. She stated that even her husband, Jairamdas, was treating him as tentant of the suit premises. She has stated that after her husband's death, she herself has been also treating Atmaram (Original defendant No. 2) as tenant of the suit premises and that she herself did not claim any interest therein She has stated that because she did not want to be formally brought on record as legal representative of her husband, Jairamdas. What is more important, she has stated further that she has shifted permanently from the suit premises and was residing at 21, Neela Akash, T. P. S. III, 15th Road, Bandra, Bombay-400 050. Her evident case is that her husband and herself have relinquished or released all the right, title and interest in the suit premises in favour of the eldest brother of her husband.
One the basis of this Affidavit, it is urged by Mr. Dalvi that it was open for one of the legal representatives of the deceased defendant to relinquish his right, title and interest in the suit premises in favour of the co-tenants and if that was done the question of bringing the heirs of the deceased/co tenant on record in appeal could not arise.
Mrs. Bharucha contended that such statements made across the bar or incorporated in the Affidavit filed in this Court at this stage would not change the position that the Appeal had abated. According to her, the interest of defendant No. 4, Jairamdas, in the tenancy right regarding the suit premises could not be released or relinquished without a registered documents. Further, according to her, even if it could be released pr relinquished without such registered document, that had to be done before the Appeal had abated ; not after its abatement and that too at such a late stage.
35. There is quite some substance in what is stated by Mrs. Bharucha. But at the same time I must observe that the point raised by Mr. Dalvi and the factual position brought by him to the notice of the Court is not devoid of some legal significance and relevance. In these circumstances, I would rather nor like to decide the question whether the Appeal in the lower Court filed by the present petitioner had abated or not, particularly because this Writ Petition is being dismissed on merits. I assume that it had not abated. This, however, does not change the position that the eviction decree passed against the present petitioner, on account of the default on the part of defendant Nos. 1 to 5 in payment of rent, cannot be interfered with in this petition.
The result is that Writ Petition No. 3417 of 1987 fails and the same is hereby dismissed. The Rule stands discharged. However, in the circumstances of the case, there shall be no order as to costs.
36. This brings me to the examination of arguments advanced by Mr. Nain in support of Writ Petition No. 3313 of 1987.
The relevant facts for the purpose of both the petitions in general are already set out above. But it is worthwhile setting out the facts relevant exclusively for the purpose of examining the case of this petition. He claims to have entered into agreement with Daulatram, son of defendant No. 1, for permission to use the premises, viz. the garage on the ground floor, temporarily for a period of 6 months from 1-4-1967 to 30-9-1967. According to him, he was dispossessed by defendants Nos. 1 to 5 from the said garage on 12-9-1967. This information you get from the Written Statement of defendant No. 6 in these proceedings in September 1967 he filed Suit No. 687/5123/1967 against defendants Nos. 1 to 5 for a declaration that he was a lawful sub-tenant of the said defendants and for injunction restraining them from interfering with his possession of the suit premises, viz. the garage. As to by what process of law he became the lawful sub-tenant is a mystery. But the facts remains that he did want to sell that idea to the Small Causes Court. He also filed an application for injunction, pending the hearing of the suit restraining defendant Nos. 1 to 5 from dispossessing him or form interfering with his possession. That application was rejected by the learned trial Judge on 6-10-1967. A copy of the speaking order passed by the learned Judge in that behalf is on record (Exhibit 10). From that order, it can be clearly seen that the learned Judge had no doubt whatsoever that no valid and lawful sub-tenancy could be claimed by the plaintiff in that suit (defendant No. 6) at all.
But over and above this, a statement was made on behalf of the plaintiff in that suit (present defendant No. 6) that he was not in possession of the suit premises viz. the garage, on the date of the suit. This statement was recorded by the learned Judge and hence the application was dismissed by him as being withdrawn on 6-10-1967. The suit itself was ultimately dismissed by him on 3-12-1968. But immediately after the dismissal of the suit in the Court of Small Causes, this defendant who had not a title of title to the suit premises rushed to the City Civil Court and filed Suit No 6501 of 1967 for possession of the suit premises, viz. the garage. But significantly enough, this suit was not on title, but was under section 6 of the Specific Relief Act. I am a little unhappy that in that suit the Court was persuaded to pass an order appointing Receiver of the suit premises viz. the garage on 20-10-1967. The reason why I say so is that the learned Judge should have seen that even assuming that the defendant (Plaintiff in that suit) was inducted into possession of the suit premises by defendant Nos. 1 to 5, the document upon which be relied clearly showed that this was at the most a licence and just & temporary arrangement which was the off-shoot of some partnership transaction between Daulatram on the one hand and the plaintiff in that suit on the other. The period of licence was already over. It might be that ultimately the Court would be able to pass a decree for restoration of possession even if the period of licence was over. I do not wish to express any opinion on that point and in this judgement and I keep my fingers crossed on that point. But the point is that the equitable remedy of appointment of Receiver, at any rate, should not have been made available to a person who had become a trespasser at any rate after 30th September, 1967, because his licence had already come to an end by that time. The fact, however, remains that a Receiver was appointed by the Court. But the further point is that the possession of the garage was not restored to present defendant No. 6 even as the Receiver's agent. The garage remained under the lock & key of the Receiver. It was the Receiver who was in possession of the garage pursuant to the order of appointment of the Receiver dated 20-10-1967 and this position continued right till January 1974. On 24-1-1974 the suit of defendant No. 6 (Plaintiff in that suit) under section 6 of the Specific Relief Act was decreed by the City Civil Court and it was at this time that the court passed an order directing the Receiver to hand over possession of the garage to present defendant No. 6 (plaintiff in that suit) as the receiver's agent.
Civil Revision application No. 382 of 1974 was filed by present defendant Nos. 1 to 5 against the said decree. In that Revision application, it appears, the arrangement of appointment of present defendant No 6 as the Receiver's agent continued. The Revision Application was dismissed on 10-11-1976 by this Court presumably on the ground that no jurisdictional error was pointed out. But the Court was aware of the fact that the decree of the trial Court under section 6 of the Specific Relief Act is not, from the very nature of things, a final decree because it is subject to a suit, if any, that may be filed by the unsuccessful party on title. This Court therefore, continued the Receiver evidently with a view to give opportunity to the petitioners in the Revision Application (present defendants Nos. 1 to 5) to file a suit on title to the appropriate Court and to obtain suitable order as regards the possession of the garage. Accordingly present defendants Nos. 1 to 5 did file Suit No. 7567 of 1976 in the Bombay city Civil Court on 22-12-1976, just within a month from the date of dismissal of the Civil Revision Application, for a declaration that present defendant No. 6 was a rank trespasser in the premises mentioned in that suit, viz. the garage. In that suit, a Notice of Motion was taken out by present defendants Nos. 1 to 5 (plaintiffs in that suit) for appropriate interlocutory relief and in that Notice of Motion the Receiver, who was in possession, was ordered to be continued and present defendant No. 6, who was in possession as the Receiver's agent, was allowed to continue as such.
Thus, we find that from 20.10-1967 till 24-10-1974 it was the Receiver who was in exclusive possession of the portion of the suit premises viz. the garage, and as from 24-1-1974 till this date of possession is with present defendant No. 6, but only as the Receiver's agent.
It is in the context of these admitted facts that the effect of section 15(2) of the Bombay Rent Act read with section 25 of the Maharashtra Act No. 18 of 1987 is required to be examined.
37. Mr. Nain, the learned Counsel appearing for this defendant, had made no bones of the fact that had Maharashtra Act No. 18 of 1987 not been brought on the statute book, this defendant No. 6 would not have had a leg to stand on in a Court of law to defend this suit or to pursue this writ petition. The lower Courts have held that his claim to be in possession as a lawful sub tenant is a totally unjustified and baseless claim not warranted by any provision of law. An airy statement was made that he had got into possession with the consent of the landlord, that is to say, of the plaintiff in these proceedings. But their exists not a shred of justification for this contention. This was not the contention raised by this defendant at any time earlier. You do not find any basis for the same in the Written Statement of defendant No.6. I called upon Mr. Nain to show even one place in the Written Statement where defendant No.6 had contended that he was in possession of the suit premises as a sub-tenant with the consent of the landlord viz. the plaintiff. The plaintiff has averred by his amended plaint that this defendant was an unlawful transferee or a sub lessee of defendants Nos. 1 to 5. All that has been laconically stated by this defendant as a reply to this averment is a blank and innocent denial; nothing beyond that. The plea that his sub-tenancy was lawful could be justified only with the help of the averment that the sub tenancy was something which consented to by the landlord. This would be the most crucial part of the defence of this defendant if he wanted to establish the lawful character of his possession. It is a matter of elementary understanding that mere possession of a person claiming to be a sub-tenant does not confer any title upon him of a lawful sub-tenant. In the context of the provisions of the Rent Act, as it then stood, he had to plead & prove in the Court that the position of sub-tenancy became lawful, because of the consent received by him or by defendant Nos. 1 to 5 for creation of sub-tenancy. The Averment of consent by the landlord to such tenancy was therefore the most crucial pre-requisite and if such a pre-requisite is not pleaded in the Written Statement, the person claiming lawful tenancy is out of Court. Defendant No. 6 has not pleaded it; he should not have allowed to lead any evidence to prove it, because he has not pleaded it.
The further point is that defendant No.6 has in fact led no evidence, of any positive character, to prove such consent. All that is done is that an airy suggestion was made to the plaintiff 's witness in cross examination that consent was given to the sub tenancy being created by defendants Nos. 1 to 5. Naturally, this suggestion was stoutly denied by the witness. But this defendant did nothing further thereafter. The plea of consent was manifestly a false plea, thrown in the air with a view to throw dust in the eyes of the Court; nothing short of that. In fact Mr. Nain himself was candid enough to state before the Court that lawful character of sub-tenancy could not be asserted by him and that no arguments would be possible in support of such asertion at any time before 1-10-1987. The magic of this date 1-10-1987 will be mentioned presently.
38. The magic of this date lies in the fact that it was with effect from this date, 1-10-1987, that the above mentioned Maharashtra Act No. 18 of 1987 came into force. The provisions of the said Act, which are relevant for the purpose of this judgment, has already been set out in Appendix-2 annexed to this judgement. Section 15(2) is the main section which has been relied upon by Mr. Nain. According to him, as per that sub-section a retrospective protection is given to unlawful sub-tenants who continue to be in possession as such unlawful tenants in respect of the suit premises on 1-2-1973.
The plea is simple. Similar exercise was resorted to by the legislature on 21-5-1959 when sub-tenancies which were illegal till that date was retrospectively validated by the Bombay Legislature with the help of an ordinance of that date, which was subsequently incorporated in the statute. The plea is that, likewise, the present Maharashtra Act No. 18 of 1987 purports to invest the unlawful sub-tenancies with retrospective validity with effect from 1-2-1973 if these unlawful sub-tenants were in possession of the premises in question as such sub-tenants on that particular date. Mr. Nain's contention is that this defendant was in possession till 12th September 1967 that; thereafter Receiver has been in possession from 20-10-1967 till 24-1-1974. According to him, Receiver's possession was his possession and that thereafter this defendant has himself been in possession of the garage as Receiver's agent till this date. He was thus in continuous possession from 20-10-1967, thus goes the argument, till this date and hence all the requirements of section 15(2) of the Rent Act must be deemed to have been complied with by him and that his position of a rank trespasser till 1-10-1987 has now beet converted into a delightful legality as from that date.
39. I am afraid too spacious a claim this is. The fallacies in the argument of Mr. Nain are quite a few. In the first place, he has to satisfy the Court that said section 15(2) of the Bombay Rent Act, as it nowstands, is available for Mr. Nain. Secondly, he has to show that defendant No 6 was in possession of the suit premises in his capacity as an unlawful sub-tenant as on 1-2-1973.
I have no hesitation in holding that he has not succeeded in establishing either.
40. To consider the question whether section 15(2) is available for him, we have to first examine the provisions of section 25 of the Act. Said section 25 states that nothing contained in the principal Act as amended by Maharashtra Act No. 18 of 1987 shall be deemed to authorise the re-opening of suit or proceeding for eviction of any person, if such proceedings had been finally disposed of before the commencement of the said Amending Act (Maharashtra Act No. 18 of 1987). I have mentioned above that the suit was decreed by the trial Court as early as on 30th March, 1976. An Appeal filed by defendant No. 6 against the same was dismissed by the Appeal Court on 5th June, 1987. No doubt the present writ petition was filed by present defendant No. 6 on 2nd July, 1987 before the Amending Act came into force But the question is whether the present writ petition can be considered and construed to be the continuation of the same proceedings as a continuation of the suit. If this writ petition is not the continuation of the Appeal proceedings, then it has got to be held that the suit under Appeal has already been finally disposed of before the commencement of the Act as early as on 5-6-1987. The proceedings which are already disposed of just cannot be re-opened merely because the Amending Act has been brought on the statute book. This is the plain provision and reading of said section 25.
41. The argument both of Mr. Nain & Dalvi was that if any Appeal or proceedings is pending in relation to the suit or proceeding, then there is no finality attached to the decree for possession. In support of this contention, some observations made by me in an earlier judgment Geeta Govind Sawant Desai and others v
Dr. Nandkumar Anandrao Patkar, have been relied upon. The observations are to the effect that the proceeding contemplated by the explanation attached to section 25 of the said Amending Act does not contemplate execution proceedings, but it contemplated proceedings such as those started by Revision Application or by writ petition. Relying upon this judgment, it is contended that the writ petition is a continuation of the proceedings in the suit and Appeal and that therefore, there is no finality attached to the decree by the lower Appellate Court.
If this observation in the judgment is correct, much could be said to be in favour of present defendant No. 6. But after examining the entire case law on this point and after examining every aspect of the matter, I am satisfied that the observation was not quite a correct observation. No doubt the proceedings contemplated by the explanation to said section 25 include the proceedings under section 115 of the Civil Procedure Code, that is to say the revisional proceedings instituted in this Court. This is by now the settled rule of procedural law that the Appeal is the continuation of the suit. It is also held that revisional proceeding is, in essence, an appellate proceeding and hence even a Revision Application can be considered to be a continuation of the suit of Appeal. But there is no earlier decision holding that a writ Petition is the continuation of the proceedings against which the writ petition is instituted. At least my attention was not invited to any authority taking any such view positively. The observations made by me in the above judgment were not the result of something emanating from a studied arguments on the part of either of the Counsel addressing the Court. The case was of a most extreme character where the tenant who had lost possession was trying to open the entire proceedings of the suit by raising the question for the first time in the execution proceedings. For the purpose of including the execution proceedings in the equivocal word "proceeding" used by the said explanation, attempt was made to broad-base the word "proceeding". This Court held that once the decree was passed, the suit stood disposed of. This Court was of the view that the question of the decree could not be agitated in the execution proceedings, because the suit already stood disposed of. It was in this context that the ambit of the word "proceeding" was ought to be illustrated. It does appear that while making inclusion of the writ proceedings in the proceedings contemplated by said explanation, the Court had erred on the side of over-statement. I have no doubt that the decision as such stands good. But for the reasons, which will be presently mentioned it cannot be held that the word "proceeding" employed by the explanation takes in its fold even the writ proceedings.
42. My attention has not been invited by either of the Counsel any other authority which takes a positive view that a writ petition in which rule has been granted by the Court results in continuation of the proceedings against which the writ petition is filed. In the instant case, the present writ petition No. 3313 of 1987 purports to have been filed both under Articles 226 and 227 of the Constitution of India. I may mention at this stage itself that there was no dispute before me about the proposition that jurisdiction under Article 226 is not the continuation of the proceedings in the lower Appellate Court It has been held by the Supreme Court, time & again, that a Petition under Article 226 is an original proceeding and that it does not partake the character of an appellate proceeding. A revision Application is held to be an appellate proceeding and that is why it constitutes a continuation as an Appeal against which the revision application is filed. The revision petitioner under Article 226 on the other hand is not such continuation because it is an original proceeding by universal recognition. If any authority was necessary for this purpose, it can be readily found in the judgement of the Supreme Court in the case of Umaji Keshao Meshram and others v. Smt. Radhikabai and another, . It has been held there that the jurisdiction of the Court under Article 226 of the Constitution is an original jurisdiction and that the proceedings is an original proceeding. It is un-necessary to cite any further authorities on this point, because neither Mr. Naidu not Mr. Dalvi disputed the correctness of this proposition. Moreover, a large number of authorities on this point have been discussed by the Supreme Court in the above mentioned case of Umaji v. Radhikaba itself.
43. The question, however, is whether this Petition under Article 227 would be the continuation of the appellate proceedings in the lower Court, against which the petition is filed. I may mention here that so far as the writ petition by defendants Nos. 1 to 5 is concerned, it is only under Article 227 of the Constitution of India and not under Article 226. I has not add that even if it was under both the Articles, still the ratio of the above mentioned Supreme Court Judgement (vide Para 106 of the judgement of Madon, J.) leaves no room for doubt that the Court would consider the position on the basis that the petition was filled under Article 227 and the attempt to file it also under Article 226 would be ignored.
Question then is whether this Court's jurisdiction under Article 227 of the Constitution spells continuation of the proceedings in the lower Court, against which the writ jurisdiction under Article 227 is invoked. In this connection, Mrs. Bharucha invited my attention to the judgement of the Supreme Court Mohd.
Yunus v. Mohd. Mustaqim and others. There the Supreme Court has held that this Court's jurisdiction under Article 227 is a supervisory jurisdiction which is not the same thing as appellate or revisional jurisdiction.
In my opinion, in order that these proceedings should be regarded as continuation of the lower Court's proceedings, it must be shown either an appellated or revisional proceeding and must not be what can be called an "independent proceeding". For example, after a decree for eviction a tenant may file a suit for setting aside the decree on the ground that the decree was obtained by fraud. The ultimate decree in this second suit may have vital effect upon the eviction decree. But, on that account, the sub sequent suit does not become continuation of the first suit. It will not be a continuation because it is an independent proceeding. Likewise, a writ petition, whether under Article 227 will not be a continuation because it is merely a supervisory proceeding. In the above mentioned judgement , the Supreme Court has unequivocally observed that
the jurisdiction is not of the Appellate Court, meaning thereby that it is not an appellate or revisional proceeding. What follows is that it is an independent kind of proceeding. It may or may not be an original proceeding. But it is certainly not an appellate or revisional proceeding. The rule that an appeal is a continuation of the suit cannot, therefore, be pushed to the extent of regarding a proceeding under Article 227 to be having the same character as a revisional proceeding with a view to treat it as a continuation of the lower Court's proceeding. It may be that it is not an original proceeding as such, but not happens to be a revisional proceeding. It will have, therefore, to be held that it is a 3rd kind of proceeding of an independent character.
44. There is another reasons why it can be said that the writ petition whether under Articles 226 or 227 is not taken in its fold by the expression "proceeding" employed by said section 25. An Appeal or a Revision Application is subject to some certain period of limitation. As is well known, a Writ Petition is not subject to any such constraint. It may be entertained, in a fit case, even after years. If, therefore, a writ petition is regarded as the continuation of the appeal in which impugned order or decree is passed, there will exist no proceeding which can be regarded as a "disposed of " proceeding and in that event entire section 25 of the Act will become devoid of any purpose.
This position is very much accentuated by the explanation to said section 25. The explanation speaks of pendency of Appeal or proceeding; but while doing so, it gives an indication as to what kind of "proceeding" is contemplated by said section 25 for making it a continuation of the lower Court's proceeding. It states that if the period of limitation for institution the proceeding is not over, the proceeding is deemed to be "pending". This clearly implies that the "proceeding" must be one which is subject to the law of limitation. This means that a writ petition which is not subject to limitation is not a "proceeding" within the contemplation of said section 25 as one way which is continuation of the suit.
45. Mr. Dalvi tried to rely upon the judgment of the Supreme Court reported in 72, Bombay Law Reporter, page 179, Shankar Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat, in support of the contention that a proceeding under Article 227 was an appellate proceeding, In that case a Revision Application was filed against a decree in a suit for eviction. The Revision Application was dismissed by the High Court. After the dismissal, a writ petition was sought to be filed under Article 227 against a self-same decree against which the revision application was filed. When this writ petition was not entertained by this Court, an Appeal was filed in the Supreme Court and while dealing with the Appeal the Supreme Court observed that a writ petition and a Revision Application were the two modes for invoking this Court's jurisdiction for correcting the orders or decrees passed in the lower Court's proceedings. The Supreme Court held that once the order refusing to give any relief was passed in the Revision Application, there was a merger of the order of the inferior Court into that of the High Court and, hence, that a writ petition for correcting the same order of high Court would not lie.
This decision is sought to be relied upon in support of the plea that a revisional jurisdiction and the jurisdiction under Article 226 are co-extensive and are of an appellate nature. I am afraid I cannot accept this submission. What the Supreme Court was dealing with in the above case was the nature of the revisional jurisdiction. The observation made by the Supreme Court is that a revisional jurisdiction is in exercise of its appellate jurisdiction. The Supreme Court did not hold that this Court's jurisdiction under Article 227 was an appellate jurisdiction. No doubt the Supreme Court held that the errors committed by the lower Court could be corrected by this Court, in a given case, by exercise of either of the jurisdictions, but by this Supreme Court did not connote that the jurisdiction under Article 227 was an appellate jurisdiction. Such a view is a fry cry from what is actually held by the Supreme Court.
46. It may be that for administrative purposes, the petition under Article 227 is entertained by this Court on its appellate side. But that does not make it less of any independent proceeding and does not make it a continuation of the appellate or original proceeding in the lower Court.
47. The real question is whether the proceedings in the lower Court stood disposed of or not. In my view, the proceeding was disposed of , but since this Court is entitled to have a look at the correctness of the order in the proceedings in its jurisdiction of superintendence, the ultimate order that would be passed by the Court in its writ jurisdiction would have the effect of opening and disposing of the proceeding. It will have that power under Article 227 as also under Article 226 and it will exercise that power in appropriate cases. But in essence, what it does is that it opens the disposed of matter and corrects the order passed therein and passes an appropriate order thereafter. The proceeding is not a continuations it is an independent proceeding.
48. Mr. Nain tried to persuade me to take the view that writ jurisdiction is the continuation of the lower Court's proceeding by relying upon the fact that this Court calls for the record & proceeding and then passes the order as it found fit and proper. According to Mr. Nain the essential feature of the appellate jurisdiction is its power to call for the record of the lower Court's proceedings and to verify the correctness of the same. According to him, in every petition under Article 227 a prayer is made to call for the record & proceedings of the lower Court and to quash the order by which the petitioner is aggrieved. According to the learned Counsel, this is what is done precisely in a revision application as also in an Appeal and, therefore, the proceedings under Article 227 must be an appellate proceeding.
Some such argument was advanced also by Mr. Dalvi by placing reliance upon 72 Bombay Law Reporter, page 179 Shankar Ramchandra Abhyankar v. Kishnaji Dattatraya Bapat, wherein it is stated that the essential features of the Appellate Court is that there is a Superior Court or Higher Court having power to have a second look at the order passed by the inferior or subordinate Court.
49. I plainly fail to see how this can be regarded as a test for determining whether Article 227 is an independent proceeding or not. The mere fact that the record & proceedings can be sent for by the High Court does not imply that the proceeding is only an appellate proceeding and a proceeding of no other kind. I put it to Mr. Nain that even in proceedings under Article 226 the Court sends for the record and proceedings. When, for instance a Writ of Certiorari is asked for against the judgment or order of the lower Court, the Court does, quite usually, send for the record in question. That fact does not make the jurisdiction under Article 226 an appellate proceeding. In fact there are quite a few cases where the order is set aside in appeal without even calling for the record because the Appeal Court sees that the order is unsustainable ex-facie. Similarly you find that an independent Court exercising its original jurisdiction in a suit can send for record and proceedings in another suit and decide whether the decree passed by the Court in another suit was obtained, say by fraud or by any other irregularity. The fact that Court can call for the record and does call for the record in the other suit does not mean that the 2nd Court calling for the record is an Appellate Court. The test for the calling of record, to my mind, is an irrelevant test.
Likewise, the arguments advanced by Mr. Dalvi by placing reliance upon the judgment of the Supreme Court in 72, Bombay Law Reporter, page 179 is of no avail. In the case with which the Supreme Court was concerned, argument was advanced that the revisional jurisdiction is a part and parcel of the appellate jurisdiction. In that connection, the Supreme Court referred to Story on Constitution of United States, Vol. 2, Art. 1761, wherein it is stated that the essential criterion of appellate jurisdiction is that it revises and corrects the proceedings in a cause already instituted and does not create that cause. It is further stated there that the appellate jurisdiction may be exercised in a variety of forms and indeed, in any form in which the legislature may, choose to prescribe. But the point is that in that case the Supreme Court was dealing with the distinction as also the semblance between an appellate and revisional jurisdiction. The Court was not concerned with the distinction between the appellate and revisional jurisdiction on the one hand and the writ jurisdiction of this Court under Article 227 of the Constitution of India on the other. I am, therefore, unable, to accept the submission that the present writ proceedings are the continuation of the proceedings in which the impugned decree is passed by the lower Court.
50. But even if I am wrong on this point, there are four further hurdles in the way of Mr. Nain.
(a) The first hurdle is that this petitioner is taking an impermissible sommersault in relation to a plea of fact and that too only at the time of the final arguments in this Court;
(b) The second hurdle is that he was not at all in possession of any portion of the suit premises, viz. the garage, on 1-2-1973, which is the crucial date envisaged by section 15(2) of the Rent Act, as now stands;
(c) There is yet another third hurdle on which this defendant's case must stumble and fall, viz. that his Appeal to the Appellate Bench of Small Causes Court itself was quite non-maintainable mainly because of the role of a Smart Aleck that he tried playing; the Appeal was as good or as bad as not having been filed at all. If, in the eyes of law, no appeal was filed by defendant No. 6 against the eviction decree, this Writ Petition by him is quite untenable;
(d) The fourth hurdle is that the writ petition of defendant No. 6 is so very full of false statements in the nature of suggestio falsi and of omissions of statements of material facts, amounting to suppression veri, that the petition deserves to be dismissed on that ground itself.
51. Let me start with 1st hurdle, which he just cannot surmount in spite of his capability of and dexterity in gymnastics. As mentioned above, in reply to the plaintiff's averment in the plaint that he was an unlawful sub-tenant of defendant Nos. 1 to 5, all that he came out with as a defence was a laconic denial. He just denied that he was an unlawful sub-tenant. Apart from being a meaningless defence, this was a manifestly evasive defence. It might either mean that he was in possession not as an unlawful sub-tenant, but-
(a) as a lawful sub-tenant of defendants Nos. 1 to 5;
(b) as a mere licensee of those defendants.
Neither of the pleas would be conducive to any advantage or protection for him. If he pleaded lawful sub tenancy in his own favour, he would be hard put to plead and prove consent of the plaintiff landlord. The plea of the landlord's consent could not lie unless he himself did as the celebrated English Judge said: Not that this defendant was incapable of deviation from truth! As will be presently pointed out, while dealing with his hurdle, No. 4, he has spared no efforts in exhibiting his dextirity in the matter of tampering with the truth, employing in good measure elements of suggestio falsi and supperssio veri. Why, even in this Court he has practised his hand at it ! I will point that our presently. Points to be noted at this stage are that:-
(i) consent of the landlord/plaintiff as a foundation for the plea of lawful sub-tenancy was not pleaded at all, but
(ii) what is equally important, the very plea of lawful sub-tenancy was just not taken. As pointed out above, no such unequivocal plea can be spelt out from the kind of evasive denial penned by this defendant in this Written Statement.
But if from the vague & evasive denial a plead of licence was to be spelt out, it was bound to be a futile plea as regards suits pending on 1-2-1973. A licensee had no protection till 1-2-1973 and on that date the suit was already pending against defendants Nos. 1 to 5. Moreover, if he pleaded licence on the basis of the agreement evidenced by the latter in question, the licence, on his own showing came to an end on 1-10-1967 by efflux of time, if not earlier, by the other acts & conduct of the parties. On 1-2-1973, therefore, he was just a rank trespasser on the premises.
But the further significant point is that even the plea that he was a protected licensee was never taken by the defendant in the trial Court. Not that it would be tenable if it was taken for the very simple reason that if he was a licensee as from 1-4-1967 by virtue of the letter that is relied upon, the period of licence had come to an end by the end of 30th September 1967, by efflux of time, as mentioned in the letter itself. This means that even if he was in possession of the garage on 1-2-1973, he could get no protection as a "protected licensee" under section 15(2) of the Rent Act, as it stood on that date. But the further point is that, in fact, he was not in possession even on 30-9-1967. On his own showing, he was dis-possessed and was never put back into possession till the year 1974 and that too as a Receiver's agent. He was not a licensee in possession on 1-2-1973 at all. Hence, the ordinance that came into force as from that date giving protection to certain licensees was of no avail for him. But the point is that the plea of protected licensee was not even taken by him in the trial Court.
In fact this was the position asserted by Mr. Nain emphatically in his strenuous arguments in this Court in support of his contention is defendant was an unlawful sub-tenant as on 1-2-1973. He was at pains to bring about fitment of defendant No. 6's case in the protection extended to unlawful sub-tenants by the amending Maharashtra Act No. 18 of 1987. For that purpose, he waxed eloquent for good portion of the day (I mean no disrespect and no offence to the learned Counsel) with the contention that it was nobody's case that defendant No. 6 was a licensee of defendants Nos. 1 to 5. He pointed out that according to the plaintiff, defendant No. 6 was an unlawful sub tenant and that according to defendants Nos. 1 to 5 he was a trespasser and usurper. I asked him as to what his own case in the trial Court was ; answer to which, initially, was an eloquent reticence ! Later on, with quite some hesitation, he stated that he was a lawful sub-tenant; when asked as to by what process his sub-tenancy partook the character of lawfulness in the year 1967, there was a replay of reticence ! but at the end of the tell tale mum he came out with the evidently half-hearted plea that some questions were asked to the plaintiff in cross-examination suggestive of consent by the plaintiff to defendant No. 6's sub-tenancy. When asked as to how such suggestions could be made to the plaintiff when no foundation for the same was laid in the Written Statement, another edition of silence followed and when asked as to whether there was any basis for the plea of consent in any part of the written statement, the silence became permanent. But all the same, the Counsel continued to harp upon the assertion that at no time was the case of licence by defendants Nos. 1 to 5 to defendant No. 6 was even asserted by any of the parties including defendant No. 6.
It is on this backdrop that we may just turn to Ground No. 15 in the Memo of defendant No. 6's Appeal to the lower Court (see Para 15 supra) It asserts that defendant No. 6 was a protected licensee! The obvious implication of this is that, according to him, he was originally a licensee, pure & simple ! If that is the position, then his present plea of sub-tenancy results in shambles and no protection emanating from any part of the amending Maharashtra Act No. 18 of 1987 can reach him however long the law's arms might be.
52. Better I summarise this point:---
Defendant No. 6 could not have pleaded unlawful sub-tenancy as defence to the plaintiff's suit. He could not plead lawful sub-tenancy, because it had no basis in the form of the landlord's consent. That is why he resorted to the evasive denial. But he made his position clear in the Memo of Appeal in the lower Court by claiming the status of a protected license, implicit in which submission is the plea that he was a licensee before 1-2-1973. In his arguments before this Court, the only plea urged with a view to resist the eviction decree is of validation of unlawful sub tenancies by Maharashtra Act No. 18 of 1987. This is nothing but wriggling and sommersaults. Such wriggling & sommersaults prove gymnastic skill in this case, not any basis for availing of the protection extended to genuine claimants by Maharashtra Act No. 18 of 1987. No positive plea of sub-tenancy, whether lawful or unlawful, was raised by defendant No. 6 in the trial Court. Specific plea of protected licensee was taken while getting the Appeal admitted in the Appeal Court. This means that contrary plea of sub-tenancy, which had no basis any way, was, thus, given up.
It was during the arguments in support of the Writ Petition that once again, a sommersault to the plea of sub-tenancy was executed, this time of unlawful sub-tenancy evidently for securing fitment in Maharashtra Act, No. 10 of 1987.
High Court's writ jurisdiction is not meant for such dishonest wrigglers & jugglers. This is apart from the position that even on pleadings & evidence (discussed in para 51 of this Judgement) the plea of sub-tenancy is untenable.
53. This brings me to the petitioner's 2nd unsurmountable hurdle. I have set out the chronology of facts above and the chronology clearly shows that on 1-2-1973 present defendant No. 6 was not at all in possession of the garage. The possession of the garage was at that time with the Receiver, it was under his lock & key. It was only later on, after the order of the city civil Court dated 24-1-1974 that the present defendant No. 6 came to be in possession of the garage as the Receiver's agent. It is not disputed before me that his possession merely from 24-1-1974 would be of no use for him in order to avail of the extended protection given by the 1987 amendment. On his own showing, he was dispossessed on 12-9-67. It is not disputed that the position that is relevant is the one dated 1-2-1973 and both Mr. Dalvi as well as Mrs. Bharucha submitted, with quite some force, that on that date or rather any time from 12th September, 1967 till that date, 24-1-1974, the defendant could not claim to be in possession of the suit premises. According to them, the Receiver's possession would not be the possession of defendant No. 6 but Mr. Nain strenuously argued that in every case when the Receiver has been put in possession by the order of the Court, the possession of the Receiver is, in the eyes of law, that of and on behalf of the party which succeeds ultimately in the proceeding in which the Receiver is appointed. According to him, in a sense, the Receiver is the agent of the successful party for being in possession of the property in question and the possession of the Receiver must be deemed to be that of the successful party at all the time when the Receiver is in possession.
54. The my mind, this is too spacious a proposition for acceptance, My attention has not been invited to any well considered Authority or to any Authority for the matter of that in which it is held that the Receiver is the agent of the party which succeeds ultimately. It may be that the income that the Receiver receives from the property may ultimately go to the party which succeeds in the proceedings. But that is a far cry from saying that the Receiver is the agent of that successful party during the litigation. A few authorities have been cited by Mr. Nain in support of his proposition that the Receiver's possession must be deemed to be that of the successful party. Curiously enough, there exists a direct Supreme Court authority which deals with this question to quite a substantial extent. Mr. Nain ultimately referred to that authority. But instead of going through that Authority directly, he tried to rely upon some earlier Authority of other Court which, according to him, supported the proposition that the Receiver's possession was, in the ultimate analysis, the possession of the successful party. It is only after I examined the Supreme Court judgment that I realised the reason why Mr.. Nai did not rely upon the Supreme Court Authority in the first instance. In ,
P.Laksmi Reddy v. L.Lakshmi Reddy, which is the said authority referred to by Mr. Nain, it was specifically held that the Receiver is an officer of the Court and is not a particular agent of any party to the suit.
The facts of that case in fact illustrates that proposition that the Receiver's possession cannot be said to be the constructive proposition of the ultimately successful party. In that case the property belonged to one V'. On V's death, one of his heirs 'H' filed a suit in 1927 for possession of the suit properties against a 3rd party in possession A Receiver was appointed during the pendency of the suit and the properties remained in the Receiver's possession. 'H' obtained a decree for possession in his favour and ultimately got into actual possession in 1930. He continued in possession till 1936 when he died. The defendant thereafter came into possession of all the properties as H's heirs. The plaintiff filed a suit for recovery of possession of that self-same property from the defendants, who claimed to be the heir of 'H'. That suit was filed by the plaintiff on title against the defendant. As a defence to the suit, the defendant contended that he had acquired title to the property by adverse possession Admittedly 'H' had not been in possession of the property before 1930. The suit was filed by the plaintiff in 1941 ; obviously the period for prescription was not complete. But the defendant contended that the Receiver had been appointed by the Court in the suit filed by 'H' from the year 1927. According to the defendant, Receiver's possession must be considered to be that of 'H', who was the successful party and tacking that possession to that of 'H' and subsequently that of the defendant , the adverse possession for a period exceeding 12 years was alleged to have been complete.
This argument was specifically negatived by the Supreme Court. The Supreme Court held that the Receiver's possession of the property from 1927 to 1930 was not in his capacity as an agent of 'H'. The Supreme Court held that the Receiver was the agent of the Court, not of the plaintiff 'H' in that suit. It is, thus, seen that the authority is squarely against the proposition that is sought to be formulated and advanced by Mr. Nain. A few observations in the judgment are sought to be thrown about to conted that according to the Supreme Court the Receiver's possession is the possession of the successful party's agent. In my opinion, every observation in the judgment has to be read in the appropriate context. What the Supreme Court held was that the benefit of possession would be available to the successful party after the suit is decided. But that did not mean that the successful party was the principal and the Receiver was the agent of that principal. If this was not so, it is difficult to see as to how the Receiver's agent could not be tacked to that of 'H' if the Receiver was H's agent.
55. Point in this case is that, unwittingly, confusion is made between the position of a trustee and of an agent. The Receiver is the agent of the Court; but so far as the successful party is concerned, he holds the property in some kind of trust ; not as his agent. The trustee is not the agent of the Cester qui trust. The income recovered by the Receiver will enure to the benefit of the successful party, because the successful party would be the beneficiary. But that does not mean that the Receiver would be the agent of the successful party. The authority referred to by Mr. Nain, with patent and understandable hesitation, far from helping the case of defendant No. 6, goes a long way to prove that the Receiver's possession as on 1-2-1973 was not that of defendant No. 6 at all.
56. The same position emerges from the Judgment of the Supreme Court Everest Coal Company Pvt. Ltd. v. State
of Bihar and other, reliance upon which was placed by Mr. Dalvi. The question arose in that case was whether the Court appointing a Receiver to take charge of the properties can grant leave to continue a suit against the Receiver when the 3rd party wants to prosecute such action initiated without such permission. In substance, the question related to the guidelines for grant of such leave. But while examining the question, the Court observed as follows:---
"When a Court puts a Receiver in possession of property, the property comes under Court custody, the Receiver being merely an officer or agent of the Court. Any obstruction or interference with the Court's possession sounds in contempt of that Court Any legal action in respect of that property is in a sense such an interference and invites the contempt penalty of likely invalidation of the suit or other proceedings. But, if either before starting the action or during its continuance, the party takes the leave of the Court, the sin is absolved and the proceeding may continue to a conclusion on the merits. In the ordinary course, no Court is so prestige conscious that it will stand in the way of a legitimate legal proceeding for redressal or relief against its Receiver unless the action is totally meritless, frivolous or vexatious or otherwise vitated by any sinister factor".
57. What does this exposition of law indicate ? It indicates nothing else, but that the Receiver is not the agent of the party at all, whether successful or otherwise. Agency exists ; but between the Court and the Receiver, not between the successful party and the Receiver. The Receiver remains in possession as an agent of the Court and in that capacity the Receiver is also in the position analogous to that of the trustee towards the party succeeding ultimately. But that does not mean that he is the agent of such party.
58. But the further point is that the Receiver holds for the benefit of the party which succeeds ultimately. Normally, in a suit, such as the one on title, when rights of the parties are decided finally, the decree of the Court will itself bring about the finality. The succeeding party proves its title and that is the reason why it becomes entitled to the benefit received by the Receiver from the property kept in its custody. But the two fold point is that, in the first instance, in such a case, there is a finality to the decree and it is only after the decree becomes final that the question stands crystalised as to for whose benefit the Receiver had been holding the property in this possession. In the instant case, the suit was under section 6 of the Specific Relief Act. All that the Court has decided is as to who was in possession in 1967. The Court has not adjudicated upon the rights of the parties at all. In fact there is an under current in our procedural law, though, in my opinion, of limited strength, that the Court is bound to hand over possession back even to a trespasser, if the trespasser, who has been in proven and uninterrupted (settled) possession for a sustained period, has been dispossessed otherwise than in due course of law. His possession may turn out not to be rightful possession. Still, the Court comes to his help to restore him back to possession. This is because the Court does not go into the question of title at all in view of said section 6 of the Specific Relief Act.
The question, then, is whether the decree of possession in such a suit under section 6 can be said to be partaking the character of a proceeding which has attained finality. In all such suits the unsuccessful party has always the option to institute proceedings in the Civil Court by filing a suit on title to establish his claim over the property. If and when such suit is instituted, the fact that in the earlier suit under section 6 of the Specific Relief Act decree was passed in favour of the defendant/successful party is found to be of no relevance except perhaps on the question as to who was in possession at that particular time (if such question is relevant in the succeeding suit). The remedy of appointment of a Receiver is an equitable remedy and the equity contemplates that the Receiver shall remain in possession of the property for the benefit of the party who proves his title to the property.
59. Now, let us see the chronology of events. The decree under section 6 was passed by the Court and the Receiver was directed to appoint defendant No 6 as his agent on 24-1-1974. This order was continued during the pendency of the Revision Application pending in this High Court Even after the Revision Application was decided, this arrangement was continued and it continues during the entire pendency of the suit filed by defendants Nos. 1 to 5 against defendant No. 6 on title in the Bombay City Civil Court Defendant No.6 therefore cannot be said to have been declared finally by a Competent Court to be the successful party at all. That question is hanging fire in the City Civil Court in Civil Suit No. 7567 of 1976, in which declaration is asked for that defendant No.6 is none but a rank trespasser. I may mention here that if the amending Act No. 18 of 1987 had not been brought on the statue book with effect from 1-10-1987, the suit had no defence. (I do not suggest that any valid and lawful defence exists, in the context of the facts of this case. But that is a different point). It was only because of the law's delay that the suit has remained hanging fire in the Court for a full period of 11 years, if not more. The normal rule that delay defeats equity is made to capsize and turn-turtle and what we find is that a person who had not a shred of equity in his favour has been given the benefit of delay. To some extent this may be inevitable. But the point is that in view of this discussion it has got to be held that defendant No. 6 is not finally of ultimately declared to be successful party. The further point is that his title is not held established at all and if at all the Receiver's possession is to enure to the benefit of the successful party, it must be the party who is successful in establishing the title ; nothing less than that.
60. If any authority was necessary for this proposition, it is to be found firstly in the judgment of the Supreme Court P. Lakshmi Reddy v. L. Lakshmi Reddy, Para 6 of the Judgment (at page 319) is relevant for this purpose. This is what the Supreme Court holds:---
"The learned Attorney-General urged that prior possession of the Receiver pending the suit must be treated as possession on behalf of Hanimi Reddy with the animus of claiming sole and exclusive title disclosed in this plaint. In support of this contention he relies on the well known legal principle that when a Court takes possession of properties through its Receiver such Receiver's possession is that of all the parties to the action according to their titles. (See Kerr on Receivers (12th Edition) page 153)".
It is worthwhile turning to Kerr on Receiver, which authority is cited by the Supreme Court with approval as mentioned above, The relevant portion of the passage runs as follows:---
"Nature of Receiver's possession : The appointment of a Receiver does not in any way affect the right to the property over which he is appointed. The Court takes possession by its Receiver, and his possession is that of all parties to the action according to their title : the Receiver does not collect the rents and profits by virtue of any estate vested in him, but by virtue of his position as an officer of the Court appointed to collect property upon the title of the parties to the action. In appointing a Receiver the Court deals with the possession only until the right is determined, if the right be in dispute: ........."
The gist of the entire discussion is that the possession of the Receiver enures to the benefit of the party who successfully establishes its title, not mere possession. At times the title may be possessory title; at other times it may be a title acquired by adverse possession. But the point is that it is the title which has to be established, not mere possession. The suit of defendant No. 6 in which he got a decree in his favour was a mere suit for possession ; not a suit on title at all. His suit in the Small Causes Court was one on title of alleged lawful sub-tenancy. But he realised that he had no legs to stand upon in that suit and he withdraw that suit. In the subsequent suit filed by him in the City Civil Court he did not even pretend to be having any title to the property.
61. The third hurdle is equally formidable. It also throws light upon the role of Smart Aleck that this defendant has been playing throughout there proceedings.
The eviction decree was passed by the trial Court on the 30th March, 1976. Appeal was filed by defendant No. 6 against the decree in June 1976. A copy of the Memo of Appeal has not been annexed to this petition. Even this fact has got its own significance. The first significance is that in that Appeal, only the plaintiff was impleaded as respondent. Defendants Nos. 1 to 5 who were bitterly contesting his claim of lawful occupation of the garage were not impleaded in any capacity in his Appeal whatsoever. Question then is whether that Appeal was competent and maintainable at all. The further significance is that when the Appeal was dismissed by the Appeal Bench, the present Writ Petition is filed. In the Writ Petition, however, all defendants Nos. 1 to 5 have been impleaded and that is done in spite of the fact that none of the defendants was impleaded by him as respondents in his Appeal before the lower Appellate Court. Not only that; the second significance is that defendant No. 6 fully knew or must be knowing that defendant No. 4 was already dead during the pendancy of the Appeal itself. Still, instead of bringing his heirs on record, a Writ Petition is filed against the dead defendant No. 4.
I will first deal with the question whether the Appeal in the lower Court was maintainable at all. If it was not, then, in the eyes of law, no appeal was filed at all and if against the eviction decree no appeal was filed, the present writ petition is evidently not maintainable.
Next, I will consider the motive behind impleading defendants Nos. 1 to 5 as respondents in this Writ Petition of defendant No. 6.
62. There should be no difficulty in deciding whether defendants Nos. 1 to 5 were the necessary parties to the Appeal of defendant No. 6, or not. The dispute which is the subject matter of this litigation is not the dispute between the plaintiff and defendants Nos. 1 to 5, simpliciter. It is a tripartite dispute. There is as much res between the plaintiff and defendants Nos. 1 to 5 as exists between defendants No. 1 to 5 and 6. Plea of the plaintiff is that defendant No. 6 was sub tenant of defendants Nos. 1 to 5. Defendants Nos. 1 to 5 stated that he has not even been their licensee, let alone their sub-tenant. The document relied upon by defendant No. 6 was one of licence. The trial Court held that he was an unlawful sub-tenant. Defendant No. 6 filed appeal against that decree and set out ground No. 15 in the Memo of Appeal stating that he was a protected licensee of defendants Nos. 1 to 5 meaning thereby that he was a licensee before 1st February, 1976. Issues, thus, arose not only between the plaintiff and defendants Nos. 1 to 5 or between the plaintiff and defendant No. 6, but between defendants Nos. 1 to 5 on the one hand and defendant No. 6 on the other. Since it was a contention of defendant No. 6 in his Appeal that he was a protected licensee of defendant Nos. 1 to 5, which fact was emphatically denied by defendants Nos.1 to 5, the question could not be decided by the trial Court behind the back of defendant Nos. 1 to 5. Prima facia, therefore, the Appeal without impleading all the necessary parties was incompetent and not maintainable.
Mr. Nain's answer to this plea was firstly, that defendant No. 6 wanted no relief against defendants Nos. 1 to 5 and hence, they were not necessary parties in his application. Secondly, he contended that Appeal by defendants Nos. 1 to 5 was heard along with the appeal of defendant No. 6.
63. The first plea of Mr. Nain needs just to be stated to be rejected. There existed very much of res between defendants Nos. 1 to 5 on the one hand and defendant No. 6 on the other. As stated above, this was a tripartite dispute. In the appeal contention was that defendant No. 6 was the protected licensee of defendants Nos. 1 to 5. If he could persuade the appeal Court to accept that plea behind the back of defendants Nos. 1 to 5, he would be deemed to have taken a decision against them without their being heard on that plea. If not directly, he was claiming relief against defendants Nos. 1 to 5 indirectly. Moreover, just as in the trial Court, defendant No. 6 was a necessary party if the plaintiff were to take a decree against him, similarly in the Appeal, it was necessary for defendant No. 6 to implead defendants Nos. 1 to 5 as respondents if we wanted to have a decision to the effect that he was a protected licensee or a lawful sub-tenant particularly when they were strenuously resisting that contention in various Courts.
64. So far as the second plea is concerned, the fact that the two Appeals were heard together will not make defendant No. 6's Appeal maintainable if it was not maintainable ab initio and if the Appeal was not maintainable at all or was not legally competent at all, it would not become competent merely because defendants Nos. 1 to 5 were resisting the claim of the plaintiff in their own Appeal. It would be a different position if all defendants Nos. 1 to 5, on the one hand, and defendant No. 6, on the other hand, had made common cause against the plaintiff on all the points and if there existed no res in between defendants Nos. 1 to 5, on the one hand, and defendant No. 6, on the other. In that event, the fact that both the Appeals were heard together might cure the defect of non-joinder of defendants Nos. 1 to 5 in the Appeal of defendant No. 6. But when the Appeal of defendant No. 6 is filed against defendants Nos. 1 to 5, the appeal is hopelessly not maintainable if they are not made parties to that suit.
Moreover, even in the appeal of defendants Nos. 1 to 5, heirs of defendant No. 4 were not brought on record. This means that all of defendants Nos. 1 to 5 were not parties to the Appeal of defendant No.
6. I am alive to the fact in the Writ Petition of the defendants, I have kept the point open. Point here is entirely different. The point is that the necessary parties have not been impleaded at all. It must be held that defendant No. 6's Appeal was not competent at all.
65. The fact that this defendant did not implead defendants Nos. 1 to 5 in his Appeal in the lower Court as party-respondents has another significance. I have mentioned above that in this Writ Petition all of defendants Nos. 1 to 5 were made parties. It defies understanding as to how they become necessary parties in the Writ Petition if they were not necessary parties in the lower Appeal Court. The further significant fact is that the Memo of Appeal in the Lower Court is not produced before this Court at all . That Memo was brought to the notice of the Court by Mrs. Bharucha. All this throws light upon the machiavellian manner in which these proceedings are conducted by defendant No. 6. He has been playing fast and loose with the Court. At every stage he has been trying to play the role of the Smart Aleck. He has been changing his stance and stand like the proverbial chameleon changing the spots on his hide.
66. This bring me to the last hurdle in the way of defendant No. 6 viz. the utter mala fide character revealed by this Writ Petition While examining hurdle Nos. 2 & 3, I have made observations in this behalf which show that the conduct of this petitioner disentitles him to get any equitable relief at the hands of the Court exercising this writ jurisdiction.
A perusals of this Writ Petition shows various positions of suggetio falsi and suppresion veri. In paragraph 2 of his petition he had stated that he has been in possession of the garage ever since the year 1967 and that he was carrying on business there in the name & style of M/s. Moonlight Electric and Radio Engineering Service. The letter that he relies upon shows that is was a partnership. This fact is just suppressed but the important fact is that admittedly he was not in possession at least from 12th September, 1967 till 4th January, 1974. No doubt, he has stated in paragraph 3 that he was dispossessed by defendants Nos. 1 to 5 in September 1967; but in that paragraph he referred only to Civil Suit No. 6505 of 1967 filed by him in the City Civil Court. He has not referred to his suit in the Small Causes Court filed by him on his imaginary title of sub-tenancy. He has suppressed the entire fact relating to the filing of the suit and the circumstances in which the Small Causes Court suit was withdrawn by him. Further, a blatant mis-statement of false statement is made in paragraph 3 of the petition that as per the decree passed by the City Civil Court in Suit No. 6505 of 1967 he was held to be in lawful possession of the garage from which he was dispossessed by force by defendants Nos. 1 to 5. As is seen above, the question whether he was in possession lawfully or not was not considered by this Court. The suit was under section 6 of the Specific Relief Act in which, even according to that Court, question of lawfulness of the possession was immaterial I may state here that the question whether he was in lawful possession of the premises or not has not been decided in favour of this defendant No. 6 by any Court. Even then, this false statement is made by the petitioner as mentioned above.
In the same paragraph there is a further mis-statement that this Court upheld the lawful character of this defendant's possession in the Civil Revision Application filed by defendants Nos. 1 to 5 against the decree for possession passed by the trial Court. This Court had done nothing of that kind. All that this Court held in that Revision Application is that while holding that defendant No. 6 was in possession of the suit premises till 12th September, 1967, no jurisdictional error was committed by the trial Court. Neither the correctness of the findings nor the lawful character of this defendant's possession was adjudicated upon by this Court in the said Revision Application. Still, a false statement to that effect finds place in Paragraph 3 of the writ petition.
Further, we find in ground No. (c) in Para 8 of the petition that this defendant (No. 6) was inducted in the suit premises with the consent and knowledge of the present plaintiff. This is a deliberate false statement. Not as much as one word was whispered or murmured by Mr. Nain to contend that the plaintiff had ever given his consent to the sub-tenancy of defendant No. 6 by defendants Nos. 1 to 5. There is not as much as one word stated in the Written Statement of respondent No. 6 that any sub-tenancy was created by defendants Nos. 1 to 5 with the consent of the plaintiff. The statement made in Clause (c) is an egregious falsehood.
67. This entire conduct of the petitioner is of the reprehensible character. He has been cheating every one, left and right. He has taken the Courts also for a joy-ride. He could not defend his possession in the trial Court. In the suit, he did never take the plea of protected licensee, did never take the plea of sub-tenancy, lawful or unlawful took a somersault in the Appeal Court and contended that he was a protected licensee and got the Appeal admitted with the assertion of such falsehood and, to crown all this, he has made so many mis-statements and false statements in this Court as are referred to above. Certainly, such conduct would wholly disentitle him to obtain relief from this Court in its writ jurisdiction either under Article 226 or Article 227 of the Constitution of India.
68. While dealing with this question, I have not referred to the legal position relating to the protection given by Maharashtra Act No. 17 of 1973 which came into force on 1-2-1973. During this entire discussion, I have only made cursory reference to the legal position of the effect of the ordinance amending section 15(2) of the Rent Act mainly because defendant No. 6 has specifically contended in this Court that he was never a licensee. Just to complete the statement of legal position, I may refer to two judgments of the Supreme Court which have taken the view expressed by me above viz. that the licensees whose licences were terminated and against whom suit for possession was pending in the Court are not entitled to get protection under section 15(2) of the Rent Act as it stood on 1st February 1973. The first authority is the Judgment of the Supreme Court in the case of D.H. Maniar v. Waman Laxman Kudav, 78, Bombay Law Reporter page 533 and the second authority is the Judgement of the Supreme Court in Arun Kumar Sah v. Md. Bashir Ahmed and another, 1982(2) All India Rent Control Journal, page 123. In both these authorities, it is held that the licensees whose licences stood revoked or whose licences stood terminated by the efflux of time are not entitled to the protection of section 15(2) of the Rent Act as it stood on 1st February, 1973 and that the suits filed by the licensors against such licensees pending on the said date are not affected by the said amendment dated 1 February, 1973.
It follows that defendant No. 6 was not in possession on 1-2-1973 at all ; neither as licensee, nor as sub-tenant, lawful or unlawful. Whether section 25 should be construed to mean that it envisages the writ proceeding as continuation of the Appeal or whether it should be construed otherwise is immaterial for this discussion because on the plain reading of section 15(2) of the Rent Act as it now stands and in the context of the admitted facts of the case, it must be held that defendant No. 6 is not entitled to any protection from or under any statutes, whether under the Rent Act, as it originally stood, or under the Rent Act, as it is amended by Maharashtra Act No. 18 of 1987.
69. Mr. Nain argued that there does exist some equity in favour of this petitioner, defendant No. 6.
Obviously, he was scrounging for some equity and after that exercise of scrounging he placed before the Court certain aspects which, according to him, spell equity in favour of defendant No. 6.
Firstly, he contended that the law was in his favour, I fail to see to how it is a question of equity. If law was in his favour, he would succeed on that ground itself. Scrounging for equity was not necessary.
Secondly, he contended that defendant No. 6 was in possession since 1967 and that, hence, his possession should be protected.
This is a strange argument. Probably the Counsel's belief is that just as an illegal possession for a period exceeding 12 years converts the illegal character of the possession into a legal title, likewise the sustained illegality committed by defendant No. 6 of sticking fast to premises, of which he has not a title of title, over a period exceeding nearly 10 years amounts to a conduct of equity on his part.
The other arguments advanced by Mr. Nain are already dealt with, although he repeated them also in this context.
70. I may also mention here that I have gone through the Writ Petition and find that none of the points pleaded in the writ petition was urged by Mr. Nain at the time of hearing at all. Thus, it was not urged that the Receiver was a necessary party, not even pretence to contend that there was any lawful sub-tenancy by virtue of alleged consent of the landlord. So far as the plea of protected licensee taken in the Memo of Appeal in the lower Court was concerned. It was specifically jettisoned evidently with a view to make way for reliance upon Maharashtra Act No. 18 of 1987.
71. For all these reasons, even this Petition must fail.
The rule earlier issued is discharged.
However, in this case, the petitioner shall have to pay the costs of the respondent. I have not granted the costs in favour of the petitioner in the petition filed by defendants Nos. 1 to 5 because I was of the view that this was an unfortunate case for them. It is true that they had taken misleading pleas of offer of rent, before the suit. But the point is that immediately after the suit was filed, right from the first date of hearing, they have gone on paying rent regularly in the Court and I am told across the bar that even the additional permitted increases are being paid by them. I make it clear that if I were to have jurisdiction to grant any relief, I would have seriously considered that question. It is only because section 11 of the Amending Act is not given retrospective effect and it is only because a mistake was committed by them by not paying the rent within one month from the date of the notice that they are required to suffer this grave consequence of being uprooted from the premises where they have been staying for nearly 40 years. The costs are denied to the landlord not because of any fault on his part, but because of the sympathy that defendants Nos. 1 to 5 are entitled to have from this Court.
But the case of defendant No. 6 is entirely different. That is the case of a thoroughly dishonest person, who has played fraud upon defendants Nos. 1 to 5 as well as upon the plaintiff and also by abusing the process of the Court for sticking fast to the possession of a portion of the premises which possession was in fact blatantly unlawful, in any event from 30-9-1967. The petitioner in this petition shall, therefore, pay the costs of the petition to both the contesting set of respondents.
The rule stands discharged.
72. Mr. Dalvi applies for time to vacate. He asks for a time of 18 months to vacate. He is prepared to give the requisite undertaking and is prepared to file the necessary declaration, which is being referred to presently.
Mrs. Bharucha opposes this application.
However, in the circumstances of the case, I am inclined to give one year's time to the petitioner in Writ Petition No. 3417 of 1987 to vacate the portion of the suit premises at present in their occupation.
Hence, it is ordered as follows :
The decree for eviction against defendants Nos. 1 to 5 shall not be executed so far as the premises in their possession are concerned till 21st July, 1989. However, this is subject to the following condition:---
1. Original Defendants Nos. 2, 3 & 5, who are the petitioners in this petition, shall make a declaration on affidavit that no person other than themselves, the members of their family, that is to say their wives, and children are residing in or using the suit premises, excluding the garage.
2. The widow of original defendant No. 4 has already filed an affidavit stating that she has no right, title & interest in any part of the suit premises and that she is not staying in the suit premises.
3. She will file a further Affidavit that even her minor son who is the only other heir of deceased defendant No. 4 has relinquish all his right, title & interest in the suit premises and that he is not staying in the suit premises. The affidavits which will contain the above declaration shall also contain an undertaking of each of the Affidavits that they shall hand over peaceful possession of the suit premises on or before 23rd July, 1989 unless they obtain suitable order to the contrary from the Supreme Court.
Mr. Dalvi makes a statement before the Court that Smt. Savitribai Chetandas, petitioner No. 3, has been married and is not residing in the suit premises. However, he further states that, all the same, her affidavit shall be filed in support of the undertaking in question.
The Affidavit shall also contain a further undertaking that the petitioners shall not induct any other person in the suit premises.
The undertaking and the affidavit shall be filed within 2 weeks from today.