1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.221 OF 2009 Kamal Pictures .... Applicants Vs. Jehangir P. Lentin (since deceased) & Ors. .... Respondents S/Shri P.K. Dhakephalkar, Senior Advocate i/b N. Dinarkar Rao for the Applicants. Shri V.A. Thorat, Senior Advocate i/b M/s. P.K. Shroff & Co. for Respondent No.6. CORAM: R.C. CHAVAN, J. DATED: JUNE 17, 2010 P.C: 1. This revision is directed against the dismissal of the applicants' appeal by the Appellate Bench of the Court of Small Causes, Mumbai, whereby it maintained the decree for the appellants' ejectment passed by the learned Judge of the Court of Small Cause. 2. The suit property belonged to a Trust of which original plaintiff Nos.1 to 4 were 2 the trustees. For one or the other reason, plaintiff Nos.1 to 4 ceased to have interest as trustees and the property came to be transferred to original plaintiff No.5, as she was the beneficiary under the Trust. The applicants were the tenant in respect of the suit property. Since the applicants remained in arrears of rent for over six months amounting to Rs.1,742.10, by notice dated 15-10-1983 the then landlords terminated the tenancy of the applicants and called upon them to vacate the premises. When the suit for ejectment of the applicants under Section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter called as "the Bombay Rent Act") was filed, the applicants continued to be in arrears of rent. 3. The plaintiffs had also sought ejectment of the applicants on the ground that the applicants had caused nuisance and annoyance to the neighbours, as also that they had indulged in acts of waste contrary to the provisions of Section 108(o) of the Transfer of Property Act. 4. After considering the written statement of the applicants and the evidence 3 tendered by the parties, the learned Judge of the Court of Small Causes held by his Judgment dated 7-4-2005 that the applicants were liable to handover the possession of the premises and decreed the suit. While doing so, he observed, in para 37 of the Judgment, that the cause of action did not survive to plaintiff No.6, who was a transferee of the premises during the pendency of the suit, i.e., on 16-6-2000. It cannot be disputed that the conveyance in favour of plaintiff No.6 does not provide for transfer of rights to plaintiff No.6 to recover arrears of rent till the date of transfer. 5. Aggrieved by the decree, the applicants preferred an appeal before the Appellate Bench of the Court of Small Causes, which Bench, by its Judgment dated 13-3-2009, upheld the decree passed in the suit and dismissed the appeal. While doing so, the Court also observed in paragraphs 21 and 22 of the Judgment that plaintiff Nos.6(a) and 6(b) {since plaintiff No.6 died in the meantime and plaintiff Nos.6(a) and (b) were brought as his legal representatives} were entitled to decree of eviction and possession. Aggrieved thereby, the applicants have preferred this revision application. 4 6. I have heard the learned counsel for the applicants as well as respondent No.6. The learned counsel for the applicants submitted that neither the Sale Deed dated 15-10-1987 in favour of plaintiff No.5 nor the Sale Deed dated 16-6-2000 in favour of plaintiff No.6 enabled the transferee to recover the arrears of rent. He submitted that if these plaintiffs were not entitled to recover the arrears of rent, it would follow that they were also not entitled to a decree of ejectment on the ground of default in the payment of rent. The learned counsel also submitted that it was not open to the Appellate Bench of the Court of Small Causes to vary or alter the decree passed by the learned trial Judge, without there being any cross-appeal or cross-objection on the part of plaintiff No.6. Therefore, he submitted that this revision application should be admitted and heard. 7. I have carefully considered his contentions. First, it is to be noted that the decree passed by the learned Judge is not in favour of plaintiff Nos.1 to 5 alone. The operative part of the order reads thus: "ORDER 5 Suit is decreed with cost. The Defendants are hereby ordered to hand over vacant and peaceful possession of the suit premises viz., 2nd floor, Rembrandt, 20 Pali Hill, Bandra, Bombay 400 050 within six months from the date of this order. Inquiry of mesne profit under O.20 r.12 shall be commence from the date of filing of the suit till hand overing the possession of the suit premises. Decree be drawn up accordingly." 8. The learned counsel for the applicants submitted that this operative order has to be read in the context of the observations of the learned Judge in preceding paragraphs and, therefore, invited my attention to the observations in paragraphs 32 and 37 of the Judgment. As rightly pointed out by the learned counsel for respondent No.6, what can be questioned is, not the reasons, but, the decree and, therefore, what had been observed by the learned Judge in the preceding paragraphs, leading to the passage of the decree, does not amount to a decree. They are mere observations and causation which appealed to the mind of the 6 learned Judge. In my view, this contention of the learned counsel for respondent No.6 is unexceptionable. 9. The learned counsel for the applicants submitted that without filing any cross-appeal or cross-objections, the respondent could not have been granted a review of the decree in favour of plaintiff No.6 by the Appellate Bench. He submitted that the observations of the Appellate Bench amount to alteration of the decree. As already observed, the decree which has been reproduced in the preceding paragraphs is not in favour of plaintiff Nos.1 to 5 alone. It is also not that the predecessor-in-title of plaintiff No.6 had ceased to prosecute the lis. Therefore, the argument, that there is an alteration in the decree, has to be rejected. Also, it is worthy of note that the Appellate Bench has merely dismissed the appeal and has not added a line or effected any alteration in the order passed by the learned trial Judge. The observations of the Appellate Bench disapproving causation adopted by the learned trial Judge cannot amount to a decree and, therefore, these observations cannot be assailed alleging that thereby the decree is altered without a cross-objection or cross- 7 appeal being filed. 10. A reference to Rule 22, Order 41 of the Civil Procedure Code would show that it is always open to a respondent to state that the finding against him by the Court below in respect of any issue ought to have been in his favour without raising a cross-objection. Therefore, all that the Appellate Bench had done was to set right the conclusion. As rightly pointed out by the learned counsel for respondent No.6, in fact there was no issue which led to passage of the decree which had been answered by the trial Judge against the plaintiffs and which the Appellate Bench answered in favour of the plaintiffs. Thus the applicants cannot contend that the Appellate Bench was lacking the power to correct the reasons recorded by the learned trial Judge, since they did not result in alteration in the decree passed. 11. The learned counsel for the applicants next submitted that the learned Judges of both the Courts below should have seen that the transferee had not been given the right to recover rent in arrears under the Deeds of Assignments and, therefore, if he did not have 8 the power to recover the rent in arrears, he would also lack the power to seek possession on the ground of default in payment of rent. For this purpose, he placed reliance on a Judgment of the Supreme Court in Sheikh Noor and another v. Sheikh G.S. Ibrahim (dead) by LRs., reported in AIR 2003 SC 4163. The learned counsel submitted that after considering several Judgments the Court came to the conclusion that the transferee is not entitled to arrears unless there is a contract to the contrary and, therefore, a transferee would not be entitled to a decree of ejectment. Such does not appear to be ratio of this Judgment. First, in that case the decree against the tenant had been maintained right upto the High Court and the tenant had preferred appeals before the Supreme Court, which were dismissed by the Supreme Court, holding that there was no merit therein. Secondly, the facts in that case were altogether different. In the case at hand it is not that the landlord had sought only recovery of rent in arrears under Section 12 of the Bombay Rent Act but had also communicated that on failure to pay the rent in arrears, the tenant's ejectment would be sought, before transferring the premises. In the case before the Supreme Court, after the transfer, the 9 transferee had issued a notice to the tenants calling upon them to pay the rent due for the tenements in their occupation. In the context of these facts, the Supreme Court held that unless there is an assignment, the transferee- landlord would not have the right to recover the rent in arrears. There is no whisper in the Judgment about the right to recover possession on the basis of default in payment of arrears of rent which had occurred before transfer and in respect of which transferor had already initiated action which was only continued by transferees along with transferor. 12. The learned counsel for the applicant/tenant placed reliance on a Judgment of the Supreme Court in Ramchandra Narsey and Co. v. Wamanrao V. Shenoy, reported in 1969 R.C.R. page 398. In that case, the argument was that since there was an assignment in respect of arrears of rent in favour of the transferee, the rent in arrears ceased to have the character of rent and become a debt in the eyes of law and, therefore, such a transferee could not maintain a suit for ejectment. This argument was rejected by the Supreme Court. 13. In Radhabai Bapurao Shelar v. Trimbak 10 Madhavrao Shirole and others, reported in 1981 Mh.L.J. Page 967, a Division Bench of this Court was considering the question whether right of recovery of possession under sub- sections (a) and (b) of Section 13(1) of the Bombay Rent Act could be exercised by the successor-in-title, either by operation of law or by the Act of parties, and it was held that such right is not restricted only to the person who was the landlord on the date of commission of breach, but is available even to the transferee. The learned counsel for the applicants also submitted that this Judgment was given in the context of ejectment sought under two clauses of Section 13 and, therefore, may not have bearing on the issue at hand. He submitted that the question which has been squarely raised in the present case is, whether in the absence of assignment of right to recover rent in arrears, a transferee of the original landlord would be entitled to a decree of ejectment in the suit which had been filed by the original landlord. 14. In my view, this question does not really pose any difficulty. If certain rights have crystallized in the landlord on account of default in payment of rent committed by the 11 tenant before a suit was instituted, the subsequent transfers of the property inter vivos or otherwise would not affect the fortunes of the parties. The applicants had incurred the liability of ejectment the moment they committed default in payment of rent of more than six months in arrears and failed to pay the same, in spite of receipt of notice which had been issued by the original landlords, who had then filed the suit. The subsequent transferees merely prosecuted and continued the lis along with transferors. 15. One must not forget that matters remain pending in hierarchy of Courts for years together. Life does not remain still. Therefore, ordinarily Courts would have to decide the lis on the basis of situation as it existed when the suit was filed. In this case, the suit has been filed in the Court of Small Causes way back in the year 1984 i.e., 26 years ago. If the Courts were to say that in spite of default committed by the tenant before the suit was filed, the tenant would be protected because there had been a change of the landlord on account of demise or transfers, it would be a travesty of justice. Ordinarily, a lis has to be decided on the basis of the situation as it 12 prevailed when the suit was instituted, disregarding the subsequent changes. The only exception which has been recognised by Courts is a situation where passage of decree becomes incongruous or comes in conflict with the fact situation which had changed. Thus, the Courts have held only in the cases of ejectment sought on the ground of bona fide need that if subsequent events make the decree unnecessary, the Courts would not grant such decrees. Only in these cases it has been held that the cause of action on the basis of which ejectment is sought must be shown to survive till the lis is decided by the highest Court. 16. Even if this test is applied to the present suit, it would be seen that the cause of action, namely, that the applicant had remained in arrears of rent for over six months and had not cared to pay the same, in spite of demand, within the stipulated period still survives and death of original landlords or transfer of the property by them has not brought about any change in the default committed by the applicant. In view of this, there is no warrant for interference in exercise of revisional jurisdiction in the concurrent findings of the Courts below. The 13 revision application is, therefore, dismissed. 17. At the request of the learned counsel for the applicants, the decree may not be put to execution for a period of ten weeks on the applicants filing an undertaking on oath that the applicants will not part with the possession of the property or create any third party interest. (R.C. CHAVAN, J.)