Lsp v. Sou. Kusum Gajanan Pawar

(defendant no.3) principally, place, submitted directly plaintiff receipts issued. It asserted petitioner (defendant no.3) a transferee/assignee running business tenant within meaning Section 5(11)(aa) However, notice demand was addressed Act. petitioner (defendant no.3). The demand notice Exhibit 59 addressed defendant nos. 1 & 2 a no.3). thereof marked petitioner (defendant It contended forwarding demand notice sufficient compliance mandatory requirement issuance demand notice against petitioner (defendant no.3) transferee/assignee respect running business conducted premises relevant time. The petitioner (defendant no.3) asserted running business a partnership petitioner-defendant no.3 partner. The partner Shri Wagh, though a necessary impleaded, suffered party, non-joinder of necessary party. Broadly, on the above stand the defendants contested the suit. 5

4. The parties adduced oral as well as documentary evidence support respective stand. analysing evidence record, Court, place, non-joinder another Partner petitioner (defendant no.3), On partnership purchased running business conducted premises, militate against respondent no.1 (plaintiff). The Court answered erection permanent structure premises against plaintiff favour defendants finding plaintiffs failed establish allegation. Even ground unlawful subletting answered against plaintiff favour defendants. Court defendants 1& The 2 (respondents 2&3 herein) transferred interest running business conducted premises favour defendant no.3 permissible within provisions Section 15 Bombay Rent Act Government notification 24/9/1948. answered against defendants ground arrears rent. The Court demand notice 22/10/1982 Exhibit 59 The served defendants inspite notice defendants failed neglected amount demanded therein dispute regarding standard filing application before Rent Court 6 behalf within receipt demand notice. On this finding the trial Court answered the ground of arrears of rent against the defendants.

5. In so far as the grievance of the petitioner (defendant no.3) demand notice issued petitioner, Court observed notice forwarded petitioner inspite notice, petitioner failed arrears within statutory period suffer consequence eviction ground default. The Court plaintiff blamed reason plaintiff status defendant no.3 relation premises defendants written-statement. In words, proceeded intimation received petitioner (defendant no.3) notice 22/10/1982 (Exhibit 59) sufficient proceed Court against petitioner (defendant no.3). Accordingly, Court decreed favour plaintiff and ordered the defendants to deliver vacant possession of the suit premises to the plaintiff.

6. Against the said decree the petitioner (defendant no.3) carried matter appeal before 7 District Court Civil Appeal No. 880/1987. On hand, respondent no.1 (plaintiff) objections challenging opinion Court unlawful subletting illegal erection permanent structure premises. The Appellate Court pleased dispose appeal objections together common judgment decree 19/7/1991. The Appellate Court confirmed finding recorded Court singular preferred and, therefore, dismissed appeal petitioner (defendant no.3) objections respondent (plaintiff). Against decision present petition defendant no.3 only. objection petition plaintiff in relation to the other two grounds of eviction, which has been answered against him. no.1 No

7. In the present petition, defendant no.3 has primarily assailed concurrent Courts relation ground arrears decree possession premises passed against well. More similar argument canvassed before Court assail the correctness of the view taken by the two Courts below on the said issue. 8

8. Having considered the rival submissions I would straightway observe findings recorded Courts against defendants 1 & 2 respect ground arrears concerned, unexceptionable. In that, Courts issued concurrently demand notice plaintiff 22/10/1982 Exhibit 59 served defendants. Inspite service demand notice defendants 1 & 2 (tenants) bother amount demanded notice application fixation standard within a period thereof receipt thereof. The inevitable consequence eviction tenants ground of arrears of rent within the meaning of Section 12(3)(a) of the Act.

9. 1 & challenged As aforesaid, the decree passed against defendants 2 ground arrears defendants. However,the question whether decree petitioner (defendant no.3) suffer consequence eviction. Indeed, plaintiff approached Court assertion defendant no.3 a person claiming through defendants 1 & 2, tenants. If accepted, necessarily follow defendant no.3 decree 9 passed against defendant nos. 1 &

2. However, defendant no.3 defendants 1 & 2 transferred stock-in-trade running business alongwith goodwill thereof favour partnership partner. Both Courts accepted defendant no.3. It Courts transfer/assignment a running business permitted provisions Section Rent Act applied relevant time. reason, defendant no.3 cannot labelled 15 For trespasser unlawful subtenant, acquired status a tenant within meaning Section 5(11)(aa) Act. This finding rendered Courts context unlawful subtenant allowed become petition objection plaintiff present petition question correctness thereof. Considering finding, a decree eviction passed against head-tenant difference. For, decree affect transferee/assignee who, law, a deemed direct tenant landlord. It determination relationship defendant landlord, question evicting no.3 transferee/assignee arise. Indeed, Courts 10 concurrently petitioner (defendant no.3) concerned, established record demand notice 22/10/1982 Exhibit 59 "forwarded" him. neglected demanded fixation thereof. petitioner (defendant no.3) received Further, inspite receipt demand notice, petitioner (defendant no.3) failed amount towards arrears notice application standard within receipt The proved notice forwarded petitioner (defendant no.3) received by the petitioner (defendant no.3) cannot be over turned by this Court.

10. The question is: whether merely because copy of demand notice, addressed defendant nos. & 2, "forwarded" defendant no.3, fulfils 1 mandatory requirement service a demand notice defendant no.3 within meaning Section 12(2) Act. By now, established position that, unless a notice writing demand standard permitted increases served tenant 106 Transfer manner provided Section Property Act 1882, recovery possession maintained landlord against tenant. The defendants 1 & 2 In 11 served demand notice avail, situation present case. law, nos. defendant no.3 become direct tenant plaintiff Section 5(11)(aa) Act, determination tenancy defendant 1

2. On acquiring status plaintiff obliged defendant no. 3 a notice writing demand standard permitted increases manner provided Section 12(2) Act. It dispute demand notice 22/10/1982 Exhibit 59 addressed defendants 1 & 2 notice mentioned marked defendant no.3 (i.e. C.C. information). There a marked difference between requirement sending a demand notice-which necessarily required a person merely forwarding a addressed communication. The latter, nature apprising recipient communication (i.e. On issuance a notice addressee defendant nos. 1 & 2) sender (plaintiff). hand, requirement sending addressing a notice writing demand tenant, postulates putting notice non-payment permitted increases due, "calling pay" forthwith. In words, tenant happens 12 assignee, possession premises rights account a assignment allegedly arrears rent, a demand notice Section 12(2) well. In absence a notice assignee, question instituting ejectment against ground arrears 12(2) all. In that, Section a statutory institution against tenant a demand notice issued served manner provided therein. The assignee become contents demand notice original tenants extricate landlord obligation address a demand notice assignee, proceed against assignee alongwith head-tenant ejectment premises ground arrears rent. The plaintiff defendant no.3 (petitioner) transferee/assignee premises lawful matter further. The requirement Section 12(2) a formality. It a mandatory provision compliance obligation, action tenant ground arrears accrue landlord. Non-compliance mandatory requirement manner result dismissal 13 action-as placed sub-section (2) Section 12 Act lifted. A priori, though respondent no.1 (plaintiff) succeeded getting ejectment decree against defendants 1 & 2-the tenants, decree (in ground default) against assignee (defendant no.3) unless lawful demand notice addressed transferee/assignee (defendant no.3) inspite notice failed outstanding amount demanded notice application fixation standard within a period of one month from the date of service of the notice.

11. To get over this position, Counsel for the respondent (plaintiff) submit respondent entitled support decree passed Courts persuading Court transfer favour petitioner (defendant no.3) a lawful transfer assignment. It argued submission accepted, necessarily follow petitioner (defendant no.3) decree possession passed against defendant nos. 1 &

2. However, confronted position respondent no.1 bothered challenge concurrent opinion recorded 14 Courts unlawful subletting reason cannot allowed a across bar, Counsel respondent no.1 submit without filing objection matter challenging opinion recorded Lower Appellate Court rejecting objection, respondent no.1 support decree possession assailing finding Courts ground unlawful subletting analogy provisions Order 41 Rule 22(1) CPC. According him, already answered latest decisions High Court M/s.M/s.M/s. Musaji Musaji Musaji Mohamadali Mohamadali Mohamadali Master Master Master & & & anr. anr. anr. v/s. v/s. v/s. Mr. Mr. Mr. Gulamali Gulamali Gulamali Dadabhai Dadabhai Dadabhai Amreliwala Amreliwala Amreliwala (deceased (deceased (deceased through through through LRs) LRs) LRs) ors.ors.ors. reported reported reported 2005 2005 2005 (2) (2) (2) All All All MR MR MR

320. 320 320 In judgment, single Judge High Court & & & procedure provided CPC followed relation filing prosecuting petition Article 227 Constitution, keeping purport Section 141 CPC. In words, filing objection appeal wholly unnecessary challenge adverse finding. Learned Counsel placed reliance decision Apex Court Surya Dev Surya Dev Surya Dev Rai Rai Rai v/s. v/s. v/s. Chander Chander Chander Rai Rai Rai & & & ors. ors. ors. reported reported reported (2003) (2003) (2003) 6 6 6 Supreme Supreme Supreme Ram Ram Ram Court Court Court CasesCasesCases 675 675 675 generally considered plenitude Court exercising jurisdiction 15 Article 227 Constitution India. According respondent no.1, entitled challenge finding relation ground subletting support decree eviction ground though Courts answered against him. In alternative, unlawful submitted respondent no.1 (plaintiff) challenge adverse finding recorded Courts unlawful subletting support decree passed ground arrears rent, without asking a decree ground unlawful subletting, respondent no. 1 succeed persuading Court concurrent findings recorded Courts issue. According Counsel respondent no.1 result confirming decree ground arrears adopting different reasons facts. approach Court established Learned Counsel placed reliance decision State State State A.P. A.P. A.P. v/s. v/s. v/s. Hanumantha Hanumantha Hanumantha Rao Rao Rao (dead (dead (dead through through through LRs) LRs) LRs) & & & anr. anr. anr. reported reported reported (2003) (2003) (2003) 10 10 10 SCC SCC SCC 121 121 121 generally observed remedy petition against decision subordinate Court, Tribunal Authority against "decision making process". It further "decision making process", Court, Tribunal authority deciding P.V. P.V. P.V. 16 ignored evidence thereby arrived erroneous conclusion misconstrued provisions relevant Act misunderstood jurisdiction, Constitutional High Court Articles 226 & 227 invoked errors prevent injustice complaining. On assumption Court no.1 consider challenge finding unlawful subletting, Counsel respondent contended Court enquire whether evidence produced defendants establish factum transfer assignment respect a concern stock-in-trade goodwill thereof. It argued recently Court Dattatray Dattatray Dattatray Dagdoba Dagdoba Dagdoba Dhole Dhole Dhole v/s. v/s. v/s. Shaikh Shaikh Shaikh Javed Javed Javed Husen Husen Husen Hajrat Hajrat Hajrat decided March 6, 2009 Writ Writ Writ Petition Petition Petition No. No. No. occasion consider efficacy document executed 1/4/1980 between defendants 1 & defendant no.3 other. Court cannot 2 This against a person thereto. It argued excluded consideration, contemporaneous evidence produced defendants establish transfer respect a running business alongwith stock-in-trade goodwill a 17 concern. It argued establishing transfer/assignment a running concern alongwith stock-in-trade goodwill thereof person (in defendants) asserts position. On arguments contended respondent no.1 entitled support decree possession passed against defendants including petitioner (defendant no.3) ground unlawful subletting ground arrears reversing finding recorded relation the ground of unlawful subletting by the two Courts below.

12. The above argument has been justly countered by the Counsel petitioner. The petitioner rightly pressed service exposition Apex Court Puran Puran Puran Singh Singh Singh & & & ors. ors. ors. v/s. v/s. v/s. State State State Punjab Punjab Punjab & & & ors. ors. ors. 1996 19961996 (2) (2) (2) SCC SCC SCC 205 205 205 question whether provisions Code Civil Procedure govern proceedings Articles 226 & 227 Constitution. While dealing aspect Apex Court plainly observed because explanation, occurring Section 141 Code, proceedings Article 226 Constitution excluded. Hence, question making applicable procedure Code proceedings. The Court observe procedure prescribed 18 respect a suit, if were applicable proceedings frustrate exercise extraordinary powers High Court Articles 226 & 227 Constitution India. The Court concluded procedure provided Code regard applicable proceedings Court jurisdiction, explanation Section 141 Code procedure include proceedings Article 226 Constitution. The Court a question proceedings Article 226 Constitution excluded expression "proceedings" occurring Section 141 Code virtue explanation, Section 141 Code procedure provided Code applicable proceeding Article 226 Constitution? The Court observed High Court should procedure granting reliefs persons concerned. The High Court expected procedure reasonable expeditious useful purpose served limiting power of High Court by procedural provisions prescribed in the Code.

13. Assuming it is open to respondent no.1 to challenge 19 adverse finding conclusion reached relation ground unlawful subletting, parameters permit a challenge consonance dictum Apex Court Banarsi & Banarsi & Banarsi & ors. ors. ors. v/s v/s v/s Ram Ram Ram reported reported reported (2003) (2003) (2003) 9 9 9 SCC SCC SCC

606. 606. 606. The Apex Court observed Court Appeal circumscribed provisions Order 41 C.P.C. Phal Phal Phal exercised portion decree appealed against portion decree liable interfered Appellate Court inseparably connected portion appealed against untouched reasons latter portion untouched either injustice result and/or inconsistent decrees follow. The exercise subject atleast limitations: firstly, cannot exercised prejudice disadvantage a person a before Court. Secondly, cannot revived; thirdly, decree essentially objected a appealed against permitted to achieve a finality cannot be reversed to the advantage of such party.

14. In the present case, the third situation contemplated Apex Court clearly attracted. In 20 that, respondent no.1, adverse opinion Court respect unlawful subletting, consciously objection decree possession assailed defendant no.3 before Appellate Court. The objection dismissed Appellate Court. Respondent No. 1 challenge decision objection substantive petition matter filing formal objection receipt notice admission present petition. In words, respondent no.1 failed appeal against decree object thereto permitted achieve finality. Such cannot reverse finding recorded Courts advantage support decree for eviction passed on the ground of arrears of rent.

15. Besides, in para-15 of the same decision, the Apex Court observed reliefs prayed refused granted former inseparably connected necessarily depending appeal against latter, former relief cannot granted favour respondent Appellate Court exercising Rule 33 Order

41. The present arises possession 21 respondent no.1 (plaintiff) ground available provisions Bombay Rent Act. Each ground independent mutually exclusive. In that, relief possession respect ground independent. It a different matter a landlord succeed ground common decree possession passed Rent Court. Nevertheless, a decree deemed a separate decree passed Rent Court relation separate ground separable unconnected (e.g., ground Thus no.1 arrears ground unlawful subletting). understood, imperative respondent challenge refusal ground unlawful subletting petition atleast objection; having failed cannot ground petition tenant to question the validity of decree for possession on the ground of arrears of rent.

16. Reliance has been rightly placed by the Counsel for petitioner decision Apex Court T.Laksmipathi T.Laksmipathi T.Laksmipathi & & & ors. ors. ors. v/s. v/s. v/s. P.Nithyananda P.Nithyananda P.Nithyananda Reddy Reddy Reddy & & & reported reported reported 2003 2003 2003 5 5 5 SCC SCC SCC

150. 150. 150. In case, ors. ors. ors. Court before High Court challenge finding available grounds eviction arrived Courts below. In that, 22 Court observed result finding available grounds eviction achieved finality immuned challenge before Apex Court. Applying analogy, argument respondent no.1 calling Court examine correctness adverse finding recorded Courts on the issue of unlawful subletting cannot be countenanced.

17. Even if this Court were to entertain the grievance respondent no.1, established position High Court exercise jurisdiction Article 227 Constitution jurisdiction. The Apex Court Appellate Court Bathuthmal Bathuthmal Bathuthmal Raichand Raichand Raichand Oswal Oswal Oswal v/s.Laxmibai v/s.Laxmibai v/s.Laxmibai R. R. R. Tarta Tarta Tarta reported reported reported (1975) (1975) (1975) III SCC SCC SCC 858 858 858 observed High Court exercising jurisdiction Article 227 interfere findings recorded subordinate Court Tribunal. Its function limited seeing subordinate Court Tribunal functions within limits authority. It cannot correct errors examining evidence reappreciate it. The jurisdiction cannot exercised a appeal disguise. The Apex Court observe fact, though apparent record, cannot 23 corrected certiorari, should follow a fortiori subject correction High Court exercise jurisdiction Article

227. It further observed superintendence Article 227 cannot invoked correct superior Court in exercise of its statutory power as a Court of appeal.

18. Keeping in mind the scope of interference in exercise jurisdiction Article 227 Court examine correctness opinion recorded Courts ground no.1 unlawful subletting matter further respondent no.1. Indeed, respondent justified relying latest decision Court Dattatray Dagdoba Dhole (supra). However,in situation present case, concluded Courts relation ground unlawful subletting a possible unexceptionable. Both Courts concurrently reason disbelieve defendants defendant nos. & 2 transferred running business favour 1 defendant no.3. The argument respondent no.1 business standstill position executed negatived 24 Courts finding respondent no.1 pleadings. It plaintiff document relied defendants a document a transfer a running business. On hand, Courts concurrently transfer a running business position admitted plaintiff record. The plaintiff’s witness no.1 Ashok Pawar conceded cross-examination 1980 defendant nos. 1 & carrying business premises. 2 The business transferred 1/4/1980 a registered Exhibit

66. The noticed Courts deed, obligation defendant no.3 inform plaintiff transaction. However, defendant no.3 failed so. Morever, respect premises offered April 1980 original tenants-defendants 1 &

2. Those difference concurrent findings reached Courts below, Courts plaintiff admitted transfer place, a running business defendants 1 &

2. That finding of fact cannot be overturned in exercise of writ jurisdiction.

19. Taking any view of the matter, therefore, I have no 25 hesitation concluding possession against petitioner (defendant no.3) ground arrears proceeded absence issuance a demand notice against him. In matter, although decree confirmed against defendants 1 & 2, overturned petitioner (defendant no.3) concerned. In above, necessary burden judgment raised before Appellate Court present account non-joinder necessary (i.e. partner petitioner (defendant no.3) in the partnership firm which took over the running business of defendants 1 & 2).

20. Accordingly, this writ petition succeeds. The impugned judgment decree passed Appellate Court Court extent passed against petitioner (defendant no.3); and instead the suit is dismissed only as against petitioner (defendant no.3) with no order as to costs. [A.M.KHANWILKAR,J.] [A.M.KHANWILKAR,J.] [A.M.KHANWILKAR,J.]