TaxTMI 
TaxTMI 
2020 (4) TMI 919
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.... the Bharat Petroleum Corporation. Shri V. A. Thorat i/b M. M. Sathaye - Sr. Advocate for the R-1A, 1B, 1D, 1F, 2A to 2C, 3, 4A to 4D in both applications. JUDGMENT I. Introduction: The owners want to recover leased property: a piece of vacant land. They file a suit for ejectment on various grounds. All the way up to High Court, they lose the suit. After the unsuccessful first round litigation, within three months- but twenty years after their first suit-the owners issue a quit notice and, again, file the second ejectment suit. Among the many grounds, the principal are rent default and bona fide requirement. 2. The trial Court decrees the suit. The tenant and the subtenant file two appeals; both dismissed, they file Civil Revision Applications. In these CRAs they raise the following issues: (a) The tenants do admit there accumulated certain rent arrears when the first-round eviction proceedings were pending. But does their recovery in the second suit stand barred by res judicata and Section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 ("the Bombay Rent Act")? (b) Can the revisional Court reappreciate evidence on the rent d....
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....rounds. Aggrieved, the Owners filed Civil Appeal No. 265 of 1985 but without success; the appeal was dismissed in July 1986. Further, aggrieved, the Owners filed Writ Petition No.4985 of 1986. Yet again, they failed. This Court dismissed the Writ Petition on 09.02.1998. (d) Present Proceedings: 7. In less than three months, that is on 01.05.1998, the Owners issued a "notice for possession" to the Corporation. Later, they filed RCS No.149 of 1998. This time the Owners sought the Corporation's eviction on the grounds of bona fide requirement, arrears of rent, and permanent construction on the suit premises. To this suit, the Owners added the Firm and its partners as the other defendants. Admitting no privity contract, the Owners, however, maintained that the Firm is an illegal sublessee. 8. As the Owners were successful in the suit, the Corporation and the Firm unsuccessfully challenged the decree, dt.29.09.2005, in the first Appeal, and eventually filed these CRAs. In fact, the Corporation first filed Second Appeal No.329 of 2014. When this Court, through its Order, dt.27.04.2016, held that the second appeal was not maintainable, it has filed CRA No.562 of 2018. 9. In th....
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....[2005 (2) Bom CR 672], Smt. Surajbai Kevalchand Dhadiwal v. Sadashiv Sawalaram Gaikwad [2010 (2) RCR 319], Shri Bhaskar Bhagwant Shinde v. Vasudha Madhukar Kadam [2005 (4) Bom CR 532], and Waman Deoram Sonawane v. Shri Ganesh Mandir [(1984) Bom LR 40]. (b) The Firm: 16. Shri Shriram S. Kulkarni, the learned counsel for the Firm, has first drawn my attention to, what he calls, the subsequent developments. Thus, on the question of the later developments, he has submitted that pending appeal, in 2009 a statutory development took place. The Government brought out a regulation and enforced a policy decision: properties being used as fuel retail-outlets should not be permitted to have any change of user. Then, in tune with that policy, even BMC has issued statutory directions. This measure, Shri Kulkarni stresses, is under Section 154 (1), read with Section 37 (1), of the Maharashtra Regional and Town Planning Act, 1966. 17. To elaborate, Shri Kulkarni has contended that now, in view of the statutory change, the whole edifice of bona fide requirement the Owners have set up must collapse. Once the Owners are not going to get any permission to raise structures over the leased land....
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....eding the landlord cannot seek the tenant's eviction. It must be based, here, on the default committed only after the first-round eviction proceedings have concluded. 23. So, Shri Kulkarni contends that the Corporation's alleged default when the first round of litigation was pending cannot be made a ground in the next round of litigation. Eventually, Shri Kulkarni has contended that the very suit is not maintainable. According to him, the defendants in the suit did take this plea but to no avail. To support his contention, he has drawn my attention to para 3A of the written statement. He has relied on Bharat Petroleum Corporation Ltd., v. Cricket Club of India Ltd [decided on 5th October 2010]. (c) Respondents-Owners: 24. In response, Shri V. A. Thorat, the learned Senior Counsel, instructed by Shri M. M. Sathaye, has straightaway drawn my attention to the table which has been exhibited at Exh.-'K', which has been relied on by the Courts below. It is quite clear that the Corporation has repeatedly defaulted on its paying the rent. Shri Thorat has submitted that pending the Suit and the Appeal, the Corporation was regular. And thereafter after disposal of the appeal by the ....
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....of interest; rather they have a common cause. 28. In CRA No.561 of 2018, the Firm and its two partners are the applicants. The rest of the parties, including the Corporation, are the respondents. The Firm traces its rights through the Corporation, the original tenant. For this reason, it seems, the Firm has neither filed any written statement nor led any evidence. It hitches its fortunes to the Corporation. So, we will consider the case in the perspective of the Corporation. And, ironically, the Firm has led the longest argument sans pleadings or evidence, though. Besides the Corporation's pleas, I will consider the Firm's assertions only on questions of law, if any. But before we undertake any discussion, we should set the adjudicatory bounds for we are in a revision under Section 115 of CPC. (a) The Scope of High Court's Revisional Jurisdiction: 29. In Raja Lakshmi Dyeing Works v. Rangaswamy Chettiar [(1980) 4 SCC 259], the Supreme Court has considered Tamil Nadu's rent control legislation. It has the same statutory framework as Maharashtra has. After distinguishing the appellate and revisional jurisdictions, Raja Lakshmi Dyeing Works has held that the conferment of revi....
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....ll the attributes and characteristics of an appeal and disturb a concurrent finding of fact properly arrived at." 33. Again, drawing parallels-rather emphasizing the differences-between a revision and an appeal, the Supreme Court in Manick Chandra Nandy v. Debdas Nandy [(1986) 1 SCC 512] has held that in the exercise of its revisional jurisdiction, the High Court is not entitled to re-examine or re-assess the evidence on record and substitute its own findings on facts for those of the subordinate court. 34. In Gurbachan Singh v. Saliabi alias Bibijan [1995 Supp (4) SCC 438], the Supreme Court has held that bona fide requirement is a question of fact. So is comparative hardship. These questions have to be decided on the basis of evidence on record. Appreciation of evidence is not the task of the High Court in exercise of its revisional power. Then, on the facts of that case, Gurbachan Singh has held that the High Court was wrong in reappreciating the evidence and reversing the conclusions concurrently reached by the courts below. 35. Once the High Court has agreed with the findings given by the courts below, it is not necessary for it, according to Asram Motors v. Bina Kuma....
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.... raised? No (6) Is there any change of user? No (7) Is the impugned judgment justified? Yes 41. In these CRAs, the parties have focussed on the issues of wilful default on rent payment and bona fide requirement, with all their concomitant concerns. Keeping in view the scope of revision vis-à-vis the concurrent findings, first, we will take up the question whether the Corporation has defaulted on paying the rent regularly. Indeed, it is a question of fact. And that is out of adjudicatory bounds, so to speak. Yet, we will examine the issue in the perspective of perversity or lack of evidence. (e) Arrears of Rent: 42. To begin with, the issue of rent arrears has two aspects: the default before the ejectment suit was filed and the default pending that ejectment suit. In this regard, the Corporation has relied on Waman Deoram Sonawane. In that case, the decree was solely based on the tenant's default in paying the education cess. This Court considered Section 12 of Bombay Rent Act before its amendment in 1987 and has held that the landlord could take advantage of Section 12(3)(b) of the Act even when strictly Section 12(3)(a) of the Act was unavailable for....
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....as been barred by res judicata. I reckon what applies, if ever, here is Order 2, Rule 2 of CPC. And the provision reads: 2. Suit to include the whole claim.-(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish and portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim. -Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs.-A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. 49. The illustration exemplifies what amounts to relinquishment of part of claim. A lets a house to B at a yearly rent of Rs.1,200. The rent for the whole of the years 1905, 1906 and 1907 is due and unpaid. A sues B in 1908 only for the....
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....ct the suit outcome. For that, either party to the suit should bring to the court's notice those later developments. For that even the amended Order 6, Rule 17 of CPC provides. Otherwise, the court itself, in the interest of justice and to avoid multiplicity of proceedings, may take note of those developments. But law does not compel a person to invariably bring on record all the later developments through amendment. If the later developments provide an independent cause of action, the party's right to a fresh legal remedy remains intact. This proposition applies with more rigour if the cause of action is recurring. 55. Indeed, default in rent remittance provides recurring cause of action. Every successive default provides an independent cause of action. Later developments may affect that cause of action if they are duly brought on record; otherwise, they provide further independent cause of action. Even the doctrine of lis pendens does not defeat the suitor's independent right to sue. It is only a matter of prudence and convenience that all the related facts are brought under one umbrella of adjudication. More particularly, if the cause of action is recurring, each instance of ....
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.... Subsection (3). They provided for three contingencies. According to Bhaskar Bhagwant, in all the three contingencies, if the tenant did not pay or deposit in Court the arrears of rent in one month from the date of service of notice of demand or did not raise any dispute of standard rent in one month of service of notice of demand, by filing application under Section 11, the court must pass a decree for eviction. 60. Eventually, Bhaskar Bhagwant has held that a tenant who does not avail himself of benefit under Section 12(3) cannot get that benefit at the appellate stage by contending that appeal is continuation of a suit. Nor can the tenant, conversely, stop depositing arrears in the Appellate Court by contending that he was obliged to pay arrears only in the trial Court. Then, Bhaskar Bhagwant has stressed that the tenant cannot be heard saying that for his default in paying the rent pending the ejectment suit, the landlord should file a fresh suit. "The tenant would in effect be contending that the Appellate Court is powerless to deal with such a tenant. Such can never be the intention of the legislature." No Supreme Court decision has even remotely suggested that defaulting ....
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....of the Bombay Rent Act. According to them, the property, when let out, was open land. But the adjudication took place under Section 13 (1) (g) rather than Section 13 (1) (i) of the Act. 65. Let us examine Section 13 of the Bombay Rent Act. To the extent relevant, it reads: Section 13 - When landlord may recover possession (1) Notwithstanding anything contained in this Act but subject to the provisions of sections 15 and 15A, a landlord shall be entitled to recover possession of any premises if the Court is satisifed- (a) . . . (b) . . . (c) . . . (d) . . . (e) . . . (f) . . . (g) that the premises are reasonably and bona fide required by the landlord for occupation by himself or by any person for whose benefit the premises are held8[or where the landlord is a trustee of a public charitable trust that the premises are required for occupation for the purposes of the trust; or] (h) . . . (hh) . . . (hhh) . . . (i) that where the premises are land, such land is reasonably and bona fide required by the landlord for the erection of a new building; or . . . (2) ....
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....es falling under section 13(1)(i), comparative hardship was required to be examined by the Court, it would certainly have added clause 13(1)(i) in clause 13(2)." 70. In Surajbai, after the suit plot was let out, the tenant built a structure on it. After the original tenant's death, the owner sued the tenant's successors for eviction. He invoked Section 13(1)(i) of the Bombay Rent Act. The owner wanted the suit plot for erecting a new building. The suit was decreed by the trial Court, but that decree was reversed in Appeal. Later, the owner obtained building permission, terminated the lease and filed a fresh suit. 71. The second suit, filed under Section 13(1)(i) of the Bombay Rent Act, was on the same grounds of eviction. The suit was dismissed. In appeal, it was reversed; eviction ordered. Taken before this Court in a writ petition, the case presented two questions: Does the case fall under section 13(1)(g) of the Bombay Rent Act? If so, are the issues of hardship and bona fide need as required under Section 13(2) must be considered? After considering a catena of case law, Surajbai has held that even in a suit invoking section 13(1)(i) of the Bombay Rent Act, the landlord ha....
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....pondent issued quit notice under Section 106 of the Transfer of Property Act to the applicant. Later, he sued the applicant for eviction. He filed the suit under Section 41 of the Presidency Small Causes Court Act, 1882. On contest, the Small Cause Court decreed the suit. In appeal, it was confirmed. 76. The applicant took the matter to this Court as a Civil Revision Application. The applicant brought to this Court's notice a statutory change: Under Section 154 of the Maharashtra Regional and Town Planning Act, 1966, the State Government directed the Municipal Corporations in the State not to permit the change of use of the properties being used as fuel filling stations. So the applicant contended that even if the respondent recovered the leased property, he could not use it for any purposes other than for setting up a filling station. According to the applicant, this subsequent material change goes to the root of the matter. 77. This Court, then, has held that the respondent's effort to evict the applicant are legal, and "there is no challenge on that aspect." In the absence of any protection under the Maharashtra Rent Control Act, the decree for possession must follow. On t....