1 CRA 336-09 JUDGMENT
Anand
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.336 OF 2009
1. M/s.A.P.Hordiwala & Co. ..Applicants
a registered Partnership Firm
at No.24, 2nd Pasta Lane, Colaba,
Mumbai 400 005.
2. Mrs. Viloo S. Billimoria
3. Sorabjee N. Billimoria
(since deceased)
4.
Ardeshir S. Billimoria,
2, 3 and 4 being partners
of Applicant No.1
residing at Cumballa Crest,
42-A, Pedder Road,
Bombay 400 026.
presently residing at
501, Neel Sagar,
28th Road, T.P.S.3
Bandra (West)
Mumbai 400 050.
V/s.
1. Dr.Rustam J. Patel ..Respondents
2. Ms.Homai Nadir Mody
3. Ms. Navaz Vahadur Mody
4. Diniyar M. Gamadia
5. Miss. Dilbur Rustom Patel
6. Mrs. Feroja Adi Cooper
7. Sam Panek Golla
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All Trustees of Seth F.M.Patel
Agiary Charity Trust, having
their office at 24-26,
Dalal Street, Fort,
Mumbai 400 001.
Mr.Chirag Balsara i/b.M/s.Maneksha & Sethna,
Advocate, for the Applicants
Mr.R.A.Mirza, Advocate, for the Respondents
CORAM : R.C.CHAVAN, J.
JUDGMENT RESERVED ON : 4TH AUGUST, 2010
JUDGMENT PRONOUNCED ON : 31ST AUGUST, 2010
JUDGMENT
. This Revision Application is directed
against Judgment of the Appellate Bench of the
Court of Small Causes upholding the decree of
ejectment of the Applicants passed by the
learned Trial Judge in RAE Suit No.1298 of
1968.
2. According to the parties, on 24th
September, 1856 one Framjee Nusserwanjee
leased out with effect from 1st January, 1855
to one Cammoo Yacoob a 100 x 30 yards piece of
land presumably with a godown bearing No.28 at
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Colaba, Mumbai for a period of 99 years. The
Lease Deed also gave an option to said Cammoo
Yacoob to seek renewal of lease for a further
period of 99 years. It is not in dispute that
the Plaintiff trust are successors in
interest of said Framjee Nusserwanjee and the
interest of Cammoo Yacoob fell upon Cammoo
Yacoob Charitable Trust. The original
Defendant Nos.1 to 7 were the trustees of the
said Cammoo Yacoob Charitable Trust.
3. The Plaintiffs claimed that the lease
of Cammoo Yacoob Charitable Trust expired on
1st January, 1954. Yet the lessees continued
to possess the property. By notice dated 5th
October, 1960, the lessors terminated the
tenancy, if any, of the lessees, that is,
Cammoo Yacoob Charitable Trust and by notice
dated 20th June, 1966 called upon the tenants
to vacate the premises. It was also alleged
that the tenants had committed breach of terms
of the lease by replacing some doors, roofs,
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plastering of walls and flooring etc. By
notice dated 23rd December, 1967 the lessors
called upon the tenants to rectify the
breaches. The lessors also alleged the
tenants were in arrears of rent and permitted
increases and therefore, by the Suit filed in
the year 1968, sought ejectment of the
tenants, that is, Cammoo Yacoob Charitable
Trust.
4. By an amendment, the landlords also
alleged that Cammoo Yacoob Charitable Trust
had unlawfully sublet the premises to the
present Applicants with effect from 25th March,
1994 and therefore, sought their ejectment.
5. A similar Suit was filed against
Cammoo Yacoob Charitable Trust for another
plot of land bearing No.27.
6. By Written Statement, the present
Applicants, that is, the Defendant Nos.8 to 11
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in the Suit, claimed to have been in exclusive
and an interrupted possession of the premises
since 1953 and therefore, claimed protection
under the Bombay Rent Act.
7. The learned Trial Judge decided both
the Suits filed by the landlords by a common
Judgment. As far as the present Applicants
are concerned, the learned Trial Judge held
that the unlawful subletting to the present
Applicants was proved and therefore, held that
the landlords were entitled to recover
possession of the suit premises. Both the
Cammoo Yacoob Charitable Trust and the sub-
tenants, that is, the present Applicants’
appealed and these Appeals were decided by the
Appellate Bench by a common Judgment which is
impugned in this Revision Application by the
Applicants alone. Cammoo Yacoob Charitable
Trust or its trustees, who were the original
Defendant Nos.1 to 6 have not questioned the
said Judgment.
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8. I have heard the learned Counsel for
the parties and also have gone through their
written submissions, in order to find out if
the Courts below have erred in recording
findings which were untenable or perverse or
if they had committed any illegality by
looking into inadmissible evidence or refusing
to look into admissible evidence. In the
absence
of any material to show that not the
Respondents herein, but some one else, were
the successors in interest of the original
lessors, the applicants’ challenge to their
capacity to sue the applicants and the
original lessors was rightly repelled by the
Courts below. Incidently, the original
lessees, that is the trustees of Cammoo Yacoob
Charitable Trust, had accepted the Respondents
as landlords in respect of the property.
Though, Lease Deed dated 24th September, 1856
would have enabled Cammoo Yacoob Charitable
Trust to seek renewal and though the trustees
claimed that there were negotiations between
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the trustees and the landlords. There is
nothing on record to show that the lease was
renewed for a further period of 99 years or
that the landlords had agreed to the
continuation of Cammoo Yacoob Charitable Trust
as tenants. The Respondents had specifically
issued notice to the lessees on 5th October,
1960 terminating the lease and on 20th June,
1966 calling upon them to vacate the premises.
Thus, it is clear that the possession of
lessees after the expiry of lease on 1st
January, 1954 was only as statutory tenants.
In any case, after service of notice dated 5th
October, 1960 their status as statutory
tenants could not be in any doubt.
9. It is the applicants’ case that the
applicants were inducted in the premises much
prior to 1954. They seemed to take such a
plea as the lease expired on 1st January, 1954
but significantly they have not pleaded the
date prior to 1st January, 1954 on which they
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were inducted as sub-tenants.
10. The Applicants have relied on letters
filed at Exhibit H with the Revision
Application. They are letters from Advocate
of Cammoo Yacoob Charitable Trust and
Municipal Corporation about godown No.24 over
premises Nos.24-26 in 2nd Pasta Lane, Colaba
written between 13th April, 1955 and 8th August,
1970. As rightly submitted by the learned
Counsel for the Respondents, this may at best
show that the Applicants were using the godown
for storing wares and would not establish the
case of a sub-tenancy created before 1st
January, 1954. For proving such sub-tenancy,
better evidence in the form of rent notes or
receipts of payment of rent was required to be
tendered.
11. Copies of rent receipts which are
sought to be produced at Exhibit K with the
Revision Application are of the years 1980-81
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that is after the suit was filed in the year
1968. The learned Counsel for the Respondents
also submitted, and rightly in my view, that
the receipts do not show that they pertain to
the suit properties. Thus, they can not have
any bearing on the fortunes of the parties.
12. The applicants point out that in the
application made to the Sales Tax Authorities
on 23rd May, 1957 and a Certificate issued by
the authorities on 1st July, 1957, there is a
reference to the warehouses used by the
Applicants and it includes an entry Cammoo
Yacoob Charity, 2nd Pasta Lane, Colaba . Using
a warehousing facility or a godown cannot be
equated to taking it on rent as a tenant or
sub-tenant, unless it shows that the godown or
the warehouse was taken in its entirety on
rent. Therefore, merely because such a go
down was included in the list of warehouses
provided to the Sales Tax Authorities, it does
not become a property leased to the
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JUDGMENT
Applicants.
13. At the cost of repetition it has to be
observed that the best evidence would have
been some rent note or rent receipts of the
year prior to 1st January, 1954 or at least
before the suit was filed and in any case,
prior to 1st
ig February, 1973. This is not
forthcoming.
14. The learned Counsel for the applicants
may be right in contending that the
respondents have not proved their case that
the applicants came over the suit property
only on 25th March, 1994. The respondents seem
to have so concluded on the basis of an entry
in the register of firms showing that the
applicants had indicated their new place of
business as 24 2nd Pasta Lane, Colaba with
effect from 25th March, 1994.
15. In fact, the evidence of P.W.1
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JUDGMENT
Mr.Batliwala would show that Defendant No.7,
that is, Marblewala, and not the present
applicant was in possession since 1975 and
that the applicants came in possession of the
property in April, 1992, contradicting the
plea that the Applicants came to possess the
premises on 25th March, 1994. The applicants’
witness too had no personal knowledge about
the events prior to 1988. He deposed about
the facts in issue only by reference to
record. If that be so, there ought to have
been some documentary evidence to show that
the applicants were in exclusive possession of
the premises prior to 1st February, 1973, if
not prior to 1st January, 1954. The learned
Counsel for the Respondents pointed out that
the Applicants’ witness Ardeshir S. Billimoria
had stated in cross examination that it was
correct that they were availing warehousing
facilities provided by Cammoo Yacoob
Charitable Trust from time to time, ruling out
the case of subletting.
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JUDGMENT
16. Thus, it can not be said that the
Courts below erred in concluding that the
applicants had not proved subletting before 1st
February, 1973. First, there is absolutely
nothing to show that the Applicants were
inducted as sub-tenants prior to 1st January,
1954, presuming that such sub-tenancy could be
created without
ig the landlord’s permission.
After the expiry of the lease, the lessee
became a tenant holding over. After
termination of tenancy by notice dated 5th
October, 1960, as statutory tenant, the
lessees could not have sub-let the premises.
Therefore, subletting, if any, would be
unlawful and would not attract any protection
of the Rent Act. Only lawful sub-tenants
inducted before 1st February, 1973, would get
the benefit of Section 14(1) of the Bombay
Rent Act, and that too, after the interest of
the tenant is determined. It is settled
position of law that in respect of premises to
which Rent Act applies, the interest of the
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JUDGMENT
tenant in the premises is determined only when
a decree is passed and not by mere issuance of
notice to quit. Therefore, howsoever viewed
the Applicant cannot escape ejectment on the
ground of subletting as also on the ground of
the failure of the lessee to keep the premises
in tenantable repair. On the second ground,
apart from the fact that the lessee has not
questioned the decree, the letters of the year
1955-57, on which the applicant places
reliance for showing his possession, would
point to the neglect in keeping the premises
in tenantable repair.
17. In view of this Civil Revision
Application has no merit and it is accordingly
dismissed.
(R.C.CHAVAN, J.)
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