1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5389 OF 1996 Pratapsingh Sethi .. Petitioner versus Manorama Madhavrao Jagtap (deceased) by her legal representatives: Udaykumar Madhavrao Jagtap & Ors Respondents Mr.S.G.Deshmukh for the petitioner. Mr.Abhay Patki for respondent No.1. CORAM : A.S.OKA, J. DATE : 5th May 2010. JUDGMENT: . The petitioner who is the 2nd defendant has filed the present petition under Article 227 of the Constitution of India. The 1st respondent is the original plaintiff and the 2nd respondent is the original 1st defendant. The 1st respondent filed a suit for possession against the 2nd respondent in respect of the ground floor of the bungalow bearing No.6/611 known as “Jagtap Bungalow” at Datta Pada, Kaneri Road, Borivali (East), Mumbai. The said ground floor is hereinafter referred to as “the suit premises”. A notice was issued by the 1st respondent to the 2nd respondent alleging that the 2nd respondent was in arrears of rent for the period between October 1968 to June 1969. The suit was filed on the grounds of bonafide requirement and acquisition of suitable residence by the 2nd respondent. A decree for 2 possession was also claimed on the ground of arrears of rent and on the ground of unauthorised additions and alterations of permanent nature allegedly carried out by the 2nd respondent in the suit premises. During the pendency of the suit, the present petitioner made an application praying that he may be impleaded as 2nd defendant to the suit. In the said suit he stated that the 2nd respondent who was his brother left the suit premises for the good in the year 1969 and the 2nd respondent handed over possession of the suit premises to the petitioner since then as his sub-tenant. It was alleged that the rent in respect of the suit premises was being paid by the petitioner to the 2nd respondent. On the basis of the said application, the petitioner was impleaded as 2nd defendant to the suit filed by the 1st respondent. 2. The 2nd respondent filed the written statement. He stated that he was a monthly tenant in respect of the suit premises and the standard rent in respect of the suit premises was Rs.90/- per month. The 2nd respondent denied the allegation that he was in arrears of rent for more than six months. By filing additional written statement the 2nd respondent dealt with the ground of bonafide requirement, acquisition of suitable residence and carrying out additions and alterations. The said three grounds were denied by the 2nd respondent. There was another additional written statement filed by the 2nd respondent in which it was contended that after the demise of the original plaintiff, the bonafide need has come to an end. In paragraph 4 of the said written statement it was contended that the petitioner who was the brother of 3 the 2nd respondent was residing in the suit premises from the inception and the petitioner was a joint tenant along with the 2nd respondent. The petitioner filed written statement contending that he was put in exclusive possession of the suit premises by the 2nd respondent some time in July 1969 and since then he has been in exclusive use and possession of the suit premises. He stated that monthly rent in respect of the suit premises was and is being paid by him to the 2nd respondent. Various other contentions in the plaint were denied by the petitioner. 3. The parties adduced evidence. The ground of bonafide need was not pressed by the 1st respondent. The trial Court held that the 2nd respondent- tenant was in arrears of rent for a period of more than six months and he failed and neglected to pay the amount within a period of one month from the date of service of notice of demand. The trial Court held that the 2nd respondent has acquired a suitable accommodation. The ground of carrying out alterations and additions was not pressed. The learned trial Judge held that the petitioner failed to establish that he was a lawful sub-tenant of the 2nd respondent. The learned Judge held that it was not the case of the petitioner that he was a licensee in respect of the suit premises and therefore he is not entitled to protection. An appeal against the decree of possession was preferred only by the petitioner. The Appellate Court, on the basis of the submissions made by the parties, framed only one point for determination. The said point was whether the petitioner is entitled to 4 protection of the amended provisions of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as the said Act) either as a sub-tenant or a deemed tenant. The finding of the said question was recorded against the petitioner and the appeal was dismissed. Being aggrieved by the judgment and decree of both the Courts below, the present petitioner has preferred the present writ petition under Article 227 of the Constitution of India. 4. The learned counsel appearing for the petitioner submitted that to the knowledge of the 1st respondent the petitioner was in exclusive possession of the suit premises from the year 1969. He relied upon the consent terms filed in the suit between the 2nd respondent and the petitioner. He relied upon the letter dated 23rd July 1969 sent by the advocate for the 2nd respondent to the advocate for the petitioner. The learned counsel submitted that the said letter shows that even assuming without admitting that the 2nd respondent unlawfully transferred the tenancy to the petitioner, in view of 1987 amendment to the said Act of 1947, the petitioner being in possession on 1st February 1973 will be a protected sub-tenant. He submitted that the case made out by the 2nd respondent was that he along with 1st respondent were joint tenants in respect of the suit premises. He submitted that the notice of demand was not issued to the petitioner. The learned counsel relied upon amendment made to sub-section 3 of section 12 in the year 1987 and submitted that on 6th July 1988 the petitioner applied for permission to pay 5 interest and costs as per amended section 12(3) and made a compliance. He, therefore, submitted that decree could not have been passed on the ground of arrears of rent. Inviting my attention to the decree passed by the trial Court he submitted that assuming that the case made out by the 1st Respondent was correct, in a suit under section 28 of the said Act no decree could have been passed against the petitioner. He pointed out that there is no decree passed on the ground of unauthorised transfer or subletting as against the 2nd respondent. 5. The learned counsel appearing for the petitioner invited my attention to the judgment of the trial Court and submitted that no decree on the ground of acquisition of suitable accommodation could have been passed against the petitioner as he has not acquired any premises. He pointed out that on the ground of arrears of rent no decree could have been passed in as much as a notice of demand under section 12(2) of the said Act was not served to the petitioner. He submitted that there is a clear finding recorded by the learned trial Judge in paragraph 17 of the judgment that the petitioner was a joint tenant along with the 1st respondent and that the said finding has not been upset by the Appellate Court. Lastly, he reiterated that as the 1st respondent has failed to set out any ground of eviction against the petitioner, no decree could have been passed against the petitioner and at highest, a decree could have been passed only against the 2nd respondent. He submitted that on the basis of decree which might have been passed 6 against the 2nd respondent, the petitioner cannot be dispossessed. The learned counsel appearing for the 1st respondent supported the impugned judgments and decrees. None appears for the legal representatives of the 2nd respondent. 5. I have given careful consideration to the submissions. As stated earlier, according to the 1st respondent, the 2nd respondent was the tenant in respect of the suit premises. Though a decree was prayed for on several grounds, the ground of arrears of rent, acquisition of suitable residence and bonafide requirement were pressed and the other grounds were not pressed. An application was made by the petitioner himself for impleading him as a party defendant to the suit filed by the 1st respondent. It will be necessary to note the relevant averments made by the petitioner himself in the said application. In paragraph 1 of the said application, the petitioner has stated thus: “... I was residing in the said Jagtap Bungalow with my brother who is the defendant in this suit. My said brother Pritamsingh Seti left the said premises for good in the year 1969 handing over to me the entire ground floor of Jagtap Bungalow as his sub-tenant since then. I am in exclusive possession thereof as a protected sub-tenant with my family. The rent of the said premises was being paid by me to my brother Pritamsingh, the defendant in the suit, since he was the tenant, I have paid the rent to the said Pritamsingh, the defendant 7 upto date.” In paragraph 3 of his application , the petitioner has alleged thus: “... There was some litigation between myself and my brother, the defendant abovenamed, and all the litigations ended prior to 1969 and my brother Pritamsingh, the defendant abovenamed, left the suit premises for good and acquired suitable residence elsewhere in Roshan Nagar at Borivali (East) handing over the exclusive possession of the entire suit premises viz the ground floor of Jagtap Bungalow to me as his sub-tenant.” 6. In paragraph 4 of the said application the petitioner proceeded to state that he has become a tenant in respect of suit premises or a deemed tenant. He specifically contended that he was entitled to protection of the said Act as he was in exclusive possession of the suit premises on 1st February 1973. Thus, the specific case of the petitioner made at the earliest in point of time was that he was a sub-tenant in respect of suit premises inducted by the 2nd respondent in the year 1969. In the said application, the petitioner relied upon the consent terms filed in the suit filed by him against the 2nd respondent. The said consent terms filed on 14th October 1967 provide that the 2nd respondent will occupy room Nos.2 and 3 out the suit premises and room Nos.4 and 5 will be occupied by the petitioner. The passage in the suit premises was also divided and a portion was allowed to 8 be occupied by the petitioner. It was stated that the other portion of the passage and room No.1 out of the suit premises will be in possession of the 2nd respondent. 7. It will be interesting to note the case made out by the petitioner in his written statement to the suit. In the written statement, in paragraph 2 the petitioner stated thus: “2) This defendant submits that he was put in exclusive possession of the suit premises by defendant No.1 in or about July 1969 and defendant No.1 went to reside at Moti Nagar, Chanavarkar Lane, Borivali (West). Since then this defendant is in exclusive use, occupation and possession of the suit premises and the monthly rents in respect of the suit premises was and is being paid by this defendant to defendant No.1.” 8. The factual statement made in paragraph 2 of the written statement was reiterated in paragraph 7 thereof. In paragraph 10, the petitioner came out with a case that he was a deemed tenant of the 1st respondent in respect of the suit premises. Apart from consent terms there is one more piece of documentary evidence placed on record. The said document is letter dated 23rd July 1969 sent by the advocate for 2nd respondent to the advocate for the petitioner. In the said letter the advocate for 2nd respondent 9 stated that the 2nd respondent was a tenant in respect of the suit premises and that the petitioner had no right, title and interest in the suit premises. The letter further records that taking into consideration the relationship between the 2nd respondent and the petitioner, the 2nd respondent was handing over possession of the suit premises to the petitioner. It was further stated that the 2nd respondent had given up his rights in the suit premises and the petitioner was at liberty to get rent bills in respect of the suit premises transferred in his favour from the 1st respondent. 9. The 1st respondent examined himself. In the cross-examination, he admitted that the petitioner was already in occupation of part of the suit premises in the year 1969. The 2nd respondent deposed before the Court. He stated that the petitioner was his real brother and there was a litigation between he himself and the petitioner. He stated that the suit premises was divided into two portions between he himself and the petitioner. He stated that in the year 1967, he shifted to his own premises in Moti Nagar at Goregaon in Mumbai and that in the year 1969 ,all cases pending between them were settled. He relied upon letter dated 23rd July 1969 sent by his advocate to the advocate for the petitioner along with which the key of the suit premises was handed over to the petitioner. In the cross-examination, in response to a question asked by the advocate for the 1st respondent, the 2nd respondent stated that prior to 1969, the arrangement between him and the petitioner was that the petitioner used to pay half of the rent to him. He 10 stated that the rent was being paid by both of them i.e sometimes by him and sometimes by the petitioner, but the receipts were issued in his name. In the cross-examination he stated that he had no documentary evidence to show that he along with his brother and members of that family constituted a joint family from the year 1954-55. He admitted that he had no documentary evidence to show that the rent was being jointly paid by him and the petitioner. 10. The petitioner stepped into witness box. In the examination-in-chief, the petitioner stated that from the year 1967 he was having separate ration card and prior to that there was a joint ration card of he himself along with the 2nd respondent. He stated that after the 2nd respondent left the premises in 1967, he got the ration card in his name. He stated that when the 2nd respondent left the suit premises, he had put locks on two rooms in the suit premises which were in his possession. He stated that the keys of the locks were handed over to his advocate by the advocate for 2nd respondent along with letter dated 23rd July 1969. As far as payment of rent is concerned, in the examination-in-chief the petitioner stated thus: “ The rent receipt of the suit premises was in the name of the defendant No.1. I myself and the defendant No.1 used to pay ½ shares. Till 1970 the defendant No.1 used to pay rent. I used to contribute ½ share. After 1970 I started depositing rent in the Court. I 11 produce installment receipts. I say I was depositing rent in Court on behalf of the defendant No.1. .... ” 11. In the cross-examination he admitted the correctness of what is stated in the consent terms in the suit filed between he himself and the 2nd respondent. He stated in the cross-examination that after 1969 he started paying rent in respect of the suit premises. 12. Thus, in the application for impleading himself as a party defendant, filed by the petitioner on 7th January 1991, the petitioner came out with a case that he was residing in the suit premises along with the 2nd respondent who left the said premises for good in 1969. His specific case in the application was that since then he was in exclusive possession of the suit premises as a protected sub-tenant. The specific case made out was that he was paying the rent in respect of the suit premises to the 2nd respondent as the 2nd respondent was the tenant. In the last paragraph of the application he has stated that he was a deemed tenant being in exclusive possession of the suit premises on 1st February 1973. In the cross-examination of the 1st respondent, a suggestion was given that the petitioner was already occupying a part of the premises in the year 1969. As far as the 2nd respondent is concerned, he came out with a case that at the time of getting out of the suit premises his family consisted of he himself, the petitioner and their respective wives and children. In the examination-in-chief, the 2nd 12 respondent came out with a case that when there was litigation between he himself and the petitioner, the suit premises were divided into two portions and one was occupied by him and the other one was occupied by the petitioner. He stated that he along with the petitioner were jointly paying the rent after 1969. In the cross-examination he came out with a case that even prior to 1969, one half of the amount of the agreed rent was being paid by the petitioner to him. 13. In the examination-in-chief, the petitioner made a departure from what he stated in the written statement. He stated that since rent receipts in respect of the suit premises was in the name of the 2nd respondent, he himself and the 2nd respondent used to contribute to the rent in equal shares. He stated that till 1970 the 2nd respondent used to pay rent and he used to contribute his one half share to the 2nd respondent. He stated that he was he was depositing the rent in the Court on behalf of the 2nd respondent. 14. By way of application for intervention, the petitioner came to the Court with a specific case that till the year 1969 he was residing in the suit premises along with his brother who left the suit premises for good in the year 1969 and handed over to him possession of the suit premises as a sub- tenant. The specific case is that entire rent in respect of suit premises was being paid by the petitioner to the 2nd respondent since he was the tenant. He stated that in the year 1969 the dispute between he himself and 2nd 13 respondent ended and the 2nd respondent left the suit premises for good and acquired a suitable residence elsewhere in Mumbai. The specific stand taken is that at that time the 2nd respondent placed the petitioner in exclusive possession of the suit premises as a sub-tenant. Thus, the specific case in the application was that he has become sub-tenant from the year 1969 and that he was protected under the said Act. As stated earlier, in the written statement filed by the petitioner, the petitioner came out with a case that since July 1969 when the 2nd respondent left the suit premises he was in exclusive possession of the suit premises and that the monthly rent in respect of suit premises was and is being paid by the petitioner to the 2nd respondent. It must be stated here that the consent terms filed in the suit between the petitioner and the 2nd respondent on 14th October 1967 show that the suit premises was divided between the two brothers in the year 1967. In fact, clause 7 thereof provides that the petitioner will pay a sum of Rs.75 /- per month to the 2nd respondent for use and occupation of a part of the premises. 15. In his evidence, the 2nd respondent stated that he shifted from the suit premises in the year 1967. However, in the cross-examination he came out with a new case that till the year 1969 one half of the rent in respect of the suit premises was being paid by the petitioner. The case made out by the petitioner in the written statement is that since 1969 he was paying the entire monthly rent in respect of the suit premises to the 2nd respondent. The 2nd 14 respondent in the cross-examination further stated that after 1969 the rent was being deposited in the Court by the petitioner. 16. Surprisingly in his examination-in-chief, the petitioner came out with the case that he was residing in the suit premises along with the 2nd respondent from the year 1954. Further part of the examination-in-chief he stated that he himself and the 1st respondent used to pay one half portion of the rent. Such contention is not raised in the application for impleadment. This is completely contrary to the stand taken in the written statement by the petitioner that from the year 1969 he was paying entire rent in respect of the suit premises to the 2nd respondent. He specifically stated in the examination-in-chief itself that till the year 1970, the 2nd respondent used to pay rent and he used to contribute one half share. He stated that only after 1970 he started depositing the rent in the Court and that he was depositing the rent on behalf of the 2nd respondent. Thus, he made complete departure from case made out in the written statement that from 1969 onwards he was paying entire rent amount to the 1st respondent. He came out with a case that till the year 1970 he used to contribute only one half share in the rent to the 2nd respondent. Thus, statement in the examination-in-chief militates against the case made out by the petitioner that in July 1969 he was inducted as a sub-tenant by the 2nd respondent in respect of the suit premises. If that case was true, there was no reason for the petitioner to pay only one half share in the rent to the 2nd respondent till the year 1970. It 15 must be noted that the petitioner is the real brother of the 2nd respondent and that he claimed to be residing with the 2nd respondent in the suit premises as a member of his family. 17. Reliance was placed by the petitioner on letter dated 23rd July 1969 sent by the advocate for 2nd respondent to the petitioner. All that is stated in the said letter is that a possession of the part of the suit premises with the 2nd respondent was being handed over to the petitioner. The learned trial Judge has considered all the aspects and disbelieved the case of the petitioner on the ground that he could not establish his case that the entire rent in respect of suit premises was being paid from the year 1969 by him to the 2nd respondent and on the contrary noted the specific case of the petitioner that till the year 1970 he was paying one half share of the rent amount to the 2nd respondent and in fact the 2nd respondent also came out with a case that they were sharing the rent. The specific case made out by the petitioner is that he was staying in the suit premises along with the 2nd respondent from 1954. According to the case of the petitioner he continued to pay only one half of the rent in respect of the suit premises to the 2nd respondent till the year 1970. All this completely destroys the story of the petitioner that he was inducted in suit premises as sub-tenant in the year 1969. If that was true, the petitioner and the 2nd respondent would not have continued to share the rent till the year 1970. The petitioner has not made out a case that he was a licensee of