9911796707
TMI Blog2011 (4) TMI 1552X X X X Extracts X X X X X X X X Extracts X X X X ..... filed. Later on, by an amendment M/s Wadi Bunder Cotton Press Company (hereinafter WBC Company ), the Appellant in the appeal arising from SLP (C) No. 36246 of 2010, was joined in as Defendant No. 2 as the sub-tenant under the Defendant, the Board of Trustees of the Port of Mumbai. From that stage, Mumbai Port Trust, the principal tenant and WBC Company, the sub-tenant came to be arrayed in the suit as Defendants 1 2 respectively. 3. The Plaintiff Respondent No. 1 filed a suit in the court of Small Causes at Bombay registered as RAE suit No. 83/197 of 1993, seeking inter alia a decree of eviction, against the Defendants from the suit land admeasuring about 3273.394 square yards, situated at Santacruz Estate, Mazgaon, Bombay. According to the Plaintiff-Respondent No. 1, the suit land was given to Defendant No. 1 on lease for 999 (nine hundred and ninety nine) years by the Plaintiff's predecessors-in-interest under a registered lease deed dated May 10, 1886. 1 In terms of the lease deed, Defendant No. 1, the lessee had the right to renewal but it had no right to assign the leased out land to any third party. As a matter of fact, there was an express prohibition against assignment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venant in the lease deed of May 10, 1886. In paragraph 9 of the plaint, injunction was sought against the Defendant restraining it from sub-letting and/or parting with the possession of the suit land in any manner whatsoever and in that connection it was once again stated that the Defendant had no right to assign any part of the suit land without the licence in writing of the lessors. In paragraph 12 of the plaint it was stated that the suit was for recovery of possession of the suit land to which the Bombay Act, 1947 was applicable and the claim of the Plaintiff fell within Section 28 of the Act. Hence, the court of Small Causes, Bombay, had the exclusive jurisdiction to try the suit. 5. Later on, after the sub-lessee was joined in as the second Defendant, paragraph 7A and 7B were added by an amendment in the plaint. In paragraph 7A, reiterating the earlier allegation it was said that in respect of the suit land, Defendant No. 1 had unlawfully created sub-lease in favour of Defendant No. 2 and had wrongfully inducted Defendant No. 2 into the suit land. Defendant No. 1 had thereby committed breach of the lease and had also violated the provisions of the Transfer of Property Act, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Reiterating that there was no assignment of the leasehold interest the Defendant once again denied that it had committed any breach of Clause 4 of the deed in the manner as alleged by the Plaintiff. The Defendant further stated that the plaint nowhere stated when or in whose favour the alleged breach was committed. The allegations made by the Plaintiff were imaginary and fanciful, the averments in the plaint were quite vague and devoid of particulars and did not disclose the precise breach of the lease of which it was being accused. . 7. After the impleadment of Defendant No. 2 in the suit, Defendant No. 1 filed an additional written statement. In paragraph 3 of the additional written statement, it took the plea that Defendant No. 2 was neither a necessary party nor a proper party to be joined in the suit and its addition had made the suit liable to be dismissed for misjoinder of parties. In paragraph 4, in answer to paragraph 7A of the plaint, Defendant No. 1 denied that the sub-lease in respect of the suit land was created unlawfully in favour of Defendant No. 2. It further denied that there was any breach of the lease or any violation of the provisions of the Transfer of Prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 an area of 4596.47sq.mts. (that included the suit land together with building(s) standing thereon) had been demised in its favour. The sub-lease was for the term of 20 years 8 months and 14 days commencing from June 15, 1964 with the clear acknowledgement that the sub-lessee (Defendant No. 2) was in occupation and possession of the demised property from that date. The second Defendant further stated that even before the filing of the Plaintiff's suit, Defendant No. 1 had filed L.E. C. suit No. 271/309 of 1987 seeking its eviction from the demised premises and the suit was pending before the same court, i.e. the court of Small Causes, Bombay. In paragraph 11 of the written statement, in answer to paragraph 12 of the plaint, Defendant No. 2 (quite strangely!) denied that the suit was between the landlord and tenant, relating to the possession of the suit land to which the Bombay Rent Act was applicable. 9. On the basis of the pleadings of the parties, the trial court framed as many as 12 issues and later on, 3 additional issues. But of relevance for the present are issues 4, 5 and 7 which are as under: 4. Whether the Plaintiffs prove that, the Defendants have committed breaches ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontained in clause 4 of the lease deed. The trial court also upheld the validity of the notice issued by the Plaintiff to Defendant No. 1 determining and forfeiting the lease. It further held that the transaction between the Plaintiff and Defendant No. 1 was covered by the provisions of the Transfer of Property Act and, therefore, by no stretch of imagination the suit could be said to be barred by limitation. Dealing with the question of the decree being binding on Defendant No. 2, the trial court observed that once it was held that the sub-lease created in favour of Defendant No. 2 was unlawful and illegal, the decree of eviction passed against the lessee would fully bind the sub-lessee. The trial court decreed the suit by judgment and order dated June 12, 2002. 12. Against the judgment and order passed by the trial court, both Defendant Nos. 1 and 2 filed their separate appeals (No. 741 and 742 of 2002 respectively). The appellate court formulated a number of points for its consideration of which point No. 2 related to the breach of the terms and conditions of the lease by Defendant No. 1 and point Nos. 4 and 5 related to the protection that might be available to Defendant No. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without prior permission in writing and, therefore, the Plaintiffs are entitled for a decree on the ground of breach of terms and conditions of the tenancy. In light of its findings, the appellate court dismissed both the appeals by judgment and order dated 31st March and April 1, 2004. 13. Both, Defendants 1 and 2 sought to challenge the orders passed by the Small Causes Court by filing civil revisions before the Bombay High Court. The two civil revisions were dealt with separately in the High Court. The civil revision filed by Defendant No. 1 (No. 183 of 2007) was first dismissed by a reasoned order dated April 17, 2008 and later on the civil revision filed by Defendant No. 2 (No. 21 of 2009) by order date October 29, 2010, primarily following the order passed in the case of the first Defendant. 14. In the case of the first Defendant, the High Court affirmed the findings of the courts below that the execution of the sub-lease by Defendant no 1 in favour of Defendant No. 2 without obtaining the permission in writing from the Plaintiff was in breach of Clause 4 of the lease deed. The High Court also dealt with the plea of Defendant No. 1 based on Section 114A of Transfer of Proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provision of Section 15 along with some other provisions of the Act applied to the case set up by the three parties to the suit. 16. At the material time the relationship between the landlord, tenant and sub-tenant was regulated and fully governed by the Bombay Rent Act, 1947 (which came into force on January 19, 1948 and expired on March 31, 2000 when it was replaced by the Maharashtra Rent Control Act 1999). The preamble to the Act described it as an Act to amend and consolidate the law relating to the control of rents and repairs of certain premises, of rates of hotels and lodging house and of evictions and also to control the charges for licence of premises, etc. It is undeniable that the Plaintiff is a landlord as defined in Section 5(3) and the suit land premises as defined in Section 5(8) of the Act to mean any land not being used for agricultural purposes . Section 13 of the Act had the marginal title, When landlord may recover possession and enumerated the grounds on which alone a landlord would be entitled to recover possession of any premises. One of the grounds, enumerated in Clause (e) of the section, was unlawful sub-letting by the tenant. Clause 13(1)(e) in so far ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g on licence any premises or class of premises and no such extent as may be specified in the notification. (2) The prohibition against the sub-letting of the whole or any part of the premises which have been let to any tenant, and against the assignment or transfer in any other manner of the interest of the tenant therein, contained in Sub-section (1), shall, subject to the provisions of this Sub-section be deemed to have had no effect before the 1st day of February, 1973, in any area in which this Act was in operation before such commencement; and accordingly, notwithstanding anything contained in any contract or in the judgment, decree or order a Court, any such sub-lease, assignment or transfer of any such purported sub-lease, assignment or transfer in favour of any person who has entered into possession, despite the prohibition in Sub-section (1) as purported sub-lessee, assignee or transferee and has continued in a possession on the date aforesaid shall be deemed to be valid and effectual for all purposes, and any tenant who has sub-let any premises or part thereof, assigned or transferred any interest therein, shall not be liable to eviction under Clause (e) of Sub-section (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or in the judgment, decree or order of a court a sub-lease, assignment or transfer of interest in any other manner shall be deemed to be valid if the person in whose favour transfer is made entered into possession of the demised property and continued to be in possession on February 1, 1973. It needs to be emphasised here that the second part of Section 15(2) overruled a contract by saying at the beginning, Notwithstanding any thing contained in any contract... . This means that Clause 4 of the lease deed would be ineffective and inoperative if the sub-lease made by Defendant No. 1 in favour of Defendant No. 2 otherwise conformed to the conditions laid down in Section 15(2) of Bombay Rent Act. More importantly, Section 15(1) further provided that any sub-letting, assignment or transfer of interest in any other manner made by the tenant that came within its protective ambit would save him from eviction under Section 13(1)(e). To sum up, any sub-letting, assignment, transfer of interest in any other manner or licensing made by the tenant after February 1, 1973 without there being any sanctioning clause in the contract or without the express consent of the landlord would constitute a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d style of M/s Wadi Bunder Cotton Press Co. for information and record. No building operations on the plot mentioned on the reverse should be commenced until the plans in respect thereof are previously approved by the Trustees. This permit should be produced for inspection whenever demanded by an Officer of the Port Trust. Dated 1/2/1963 Sd/- Estate Manager 22. There are receipts of the years 1963 and 1965 issued by the Mumbai Port Trust acknowledging the payment of rent from Defendant No. 2. More importantly the sub-lease deed that forms the sheet-anchor of the Plaintiff's case, though executed on June 1, 1978, was made effective retrospectively from June 15, 1964. It came to an end on February 26, 1985. 23. On the basis of the materials on record, we must accept and proceed on the basis that Defendant No. 2 was in occupation of the suit land long before February 1, 1973 and had continued to be in its possession on that date. The sub-letting by Defendant No. 1 in favour of Defendant No. 2, thus, clearly fell within the protective ambit of Section 15(2) of Bombay Rent Act. 24. Faced with this situation, Mr. Sundaram, learned senior advocate, appearing for the Plaintiff-Responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the landlord, within a month of the receipt of a notice served upon him by the landlord by post or in any other manner, a statement in writing signed by him giving full particulars of such sub-letting assignment or transfer including the rent charged or paid by him. (2) Any tenant or sub-tenant who fails to furnish such statement or intentionally furnishes a statement which is false in any material particular shall, on conviction, be punished with the fine which may extend to one thousand rupees. 28. Section 22 provided for the landlord to have full information concerning the sub-lessee/licensee who might be in occupation of the demised premises on February 1, 1973, including the rent charged from him by the tenant. The provisions of Section 22 clearly suggest that after the cut off date, i.e., February 1, 1973 there should be no material change, to the detriment of the landlord in the terms and conditions on which the sub-tenant was in possession of the demised premises on that date and in case after that date, any material change is brought about in the status of the sub-tenant, to the prejudice of the landlord that might not have the protection of Section 15(2) but may come w ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
