IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5481 OF 1990 1.Seva Sadan Society, a Society registered under the Societies’ Registration Act (XXI of 1960) and having its registered office at P.Ramabai Road (Harvey Road) Gamdevi, Bombay - 400 007. 2.Mrs.I.B.Adur Hony.Secretary of the Seva Sadan Society, being Society registered under the Societies’ Registration Act (XII of 1960) having its Registered Office at P.Ramabai Road,(Harve Road),Gamdevi, Bombay 7, authorised to file this suit under the Memorandum and Rules of the Society as well as by a Resolution passed to that effect at the meeting held on 23.2.1973 of the Council of the Society, which is its Governing ...Petitioners Body. (Ori.Appellants/Plffs.) Versus 1.Mrs.Mehroo Tehmtan Jagose 2.Keki Pallonji Sidhwa - Reported to be dead Nos.1 & 2 as the Executrix and the Executor of the Will of the late Bai Dinbai Bhimjibhoy Mistry and/or in their personal capacity, both Indian Inhabitants, No.1 having her residence at "Chateau Windsor" 3rd floor, Veer Nariman Road, Bombay 20, & No.2 having his residence at "Sea Greed", N.Subhas Road, Bombay - 20. : 2 : 3.Ramesh Melaram Anand @ Melaram Kundanlal Anand, since deceased through his heirs 3(a).Mrs.Santosh Melaram Anand 3(b).Chandrashekhar Melaram Anand 3(c).Rajesh Melaram Anand 3(d).Pramod Melaram Anand 3(e).Tarun Melaram Anand All Indian Inhabitants, residing at B/2 Seva Sadan Annexe, Opp.Gamdevi Police Station, Kaslubai Navrangi Road, ...Respondents Mumbai - 400 007. (Ori.Defendants) ...... Mr.V.Y.Sanglikar with Mr.Ajit C.Shah i/b Mr.S.G.Vakil for Petitioners. Mr.P.K.Dhakephalkar, Sr.Counsel with Ms.Asha M.Bhambwani for Respondents 3(a) to 3(e). ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. AUGUST 5, 2008. AUGUST 5, 2008. AUGUST 5, 2008. P.C.: P.C.: P.C.: 1. This Writ Petition under Article 227 of the Constitution of India takes exception to the Judgment and Order passed by the Appellate Bench of Small Causes Court, Mumbai dated 31st October 1988 : 3 : in Appeal No.320 of 1984, which in turn confirms the Judgment and Order passed by the Trial Court dated 27th January 1984 in R.A.E. Suit No.591/2371 of 1973. The said Suit was filed by the Petitioners for recovery of possession of premises being Block No.B situated on the ground floor of Seva Sadan Annexe Building, P.Ramabai Road (Harvey) Road), Gamdevi, Mumbai - 400 007. Some of the admitted facts are that the Petitioners have purchased the suit building. At the relevant time, the suit premises were already occupied by one Bai Dinbai B.Mistry as tenant therein. The said Bai Dinbai was inducted by the erstwhile owner as tenant in the suit premises on monthly rent basis. She, however, died on 15th September 1971. The Defendants 1, 2 and 3 claim that said Bai Dinbai had left behind a Will. However, the Will has not been proved in evidence during the trial. The Petitioners/landlords additionally had impleaded Defendants 1, 2 and 3 in their capacity as heirs and legal representatives of deceased Bai Dinbai. According to the Petitioners, by letter dated 12th November 1971, which was addressed to Defendants 1 and 2, the tenancy was terminated. Notwithstanding : 4 : such termination of tenancy, the Defendant No.1 created licence in favour of Defendant No.4/Respondent No.3 (Ramesh Melaram Anand) ) herein. As possession of suit premises was not delivered to the Petitioners, the Petitioners instituted Suit for possession against the Defendants, praying for eviction of the tenant and persons unauthorisedly occupying the suit premises. The relief of possession was based on grounds of bonafide and reasonable requirement, subletting, non-user of the suit premises for a period of more than six months preceding the institution of the Suit by the tenant. The Trial Court as well as the Appeal Court has dismissed the Suit which concurrent view is made subject matter of challenge in the present Petition. 2. From the record, it is established that Defendants 1, 2 and 3 except filing written statement, did not participate in the trial. The Suit proceeded against the said Defendants ex-parte. It is also noticed that Defendant No.5 did not file any written statement nor appeared in the matter at any stage. The suit was contested : 5 : only by Defendant No.4/Respondent No.3 (Ramesh Melaram Anand) herein. 3. According to the Petitioners, although the view expressed by the two Courts below is a concurrent view, the same is unsustainable both on facts and in law at least on the ground of bonafide and reasonable requirement and that the tenant was not using the suit premises for more than six months preceding the date of institution of the Suit himself for the purpose for which it was let out to the tenant. 4. Insofar as the status of Defendant No.4/Respondent No.3 herein is concerned, that is on account of unlawful sub-letting by the tenant. If so, the possession of Defendant No.4/Respondent No.3 is unauthorised occupation. In that case, the Defendant No.4/Respondent No.3 herein will have to walk out along with the Defendant No.1 who has inherited the tenancy rights after the death of Bai Dinbai. : 6 : 5. The Respondent No.3 on the other hand asserts that he was in occupation of the suit premises on account of a subsisting licence as on 1st February 1973 and has acquired the status of protected licensee in terms of Section 15A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the ‘Bombay Rent Act’). If this stand of the Defendant No.4/Respondent No.3 is to be accepted, then certainly the landlords will have to establish ground for eviction against the Defendant No.4/Respondent No.3 herein which is personal to him independently. 6. From the materials on record, however, it is common ground that the Leave and Licence Agreement was executed by the Defendant No.1 in favour of Defendant No.4 on 1st December 1971 which was for a period of eleven months. Accordingly, the license period expired in November 1972. Admittedly, there is no fresh license executed between the parties. In fact, the Defendant No.1 questioned the continuance of possession by the Defendant No.4 by sending notice and also filed : 7 : Suit for eviction. The case of the Defendant No.1 in the said Suit was that the license period had already expired in November 1972 and inspite of that, the Defendant No.4 was continuing to occupy the suit premises unauthorisedly. That plea of the Defendant No.1 is conceded by the Defendant No.4 which is evidenced from the Consent Terms filed between the parties before the Trial Court in EA Suit No.45/195/E/1973 on 10th March 1977. The Respondent No.3 relying on Consent Terms, however, would contend that the Consent Terms would indicate that the decree of eviction was passed with effect from 10th March 1977 which means that the Respondent No.3 was in lawful possession of the suit premises till then. It is not possible to countenance this argument. The Consent Terms which have been executed before the Trial Court in Exhibit ‘F’ reads thus : "CONSENT TERMS WITH THE 1ST DEFENDANT (1) By consent Order against the Defendants to vacate the application premises and to pay the costs and Rs.125/- as professional costs. (2) It is further agreed between the parties that if the 1sat Defendant pays in : 8 : Court the arrears of compensation of 135/- per month, aggregating to Rs.6885/- for the period upto 28-2-1977 by monthly instalments of Rs.800/- per month by the 10th of each month,commencing from 10-3-1977 at the said rate till the aforesaid arrears are fully paid up, the execution of the Order of eviction shall be stayed permanently. In default of any five instalments by their due dates, execution of the Order of Eviction to issue without notice. (3) The 1st Defendant undertakes to this Honourable Court that in the event any permitted increases or taxes are claimed by the Landlords of the application premises from the Plaintiff in respect of the period mentioned in para 2 above or even for period prior or subsequent thereto,the 1st Defendant shall pay the same to the Plaintiff over and above the aforestated amounts and/or to the Landlords directly. (4) It is further agreed between the parties that upon full compliance of the terms herein,the First Defendant shall be entitled to get the tenancy of the application premises transferred to his name,if the landlords are agreeable to the same and to pay the rent in respect of the said premises directly to the said Landlords. (5) No order as to costs." 7. Clause (1) of the Consent Terms make it plainly clear that the decree of eviction is passed against the Respondent No.3/Defendant No.4 in the present Suit. Clause (2) of the Consent Terms, however, has kept the said decree of eviction in : 9 : abeyance subject to Defendant No.4/Respondent No.3 herein complying with the conditions specified therein. That does not mean that there is no decree of eviction passed against the Defendant No.4/Respodent No.3 herein. In fact, clause (2) clearly records that the execution of the order of eviction shall be stayed permanently. This presupposes that the order of eviction has been passed against the Respondent No.3/Defendant No.4. That recognises the fact that there was no subsisting licence in favour of Respondent No.3/ Defendant No.4 as on 1st February 1973 which is the requirement of availing of benefit of protected licensee within the meaning of Section 15A of the Bombay Rent Act. Besides, Respondent No.3 has not pleaded nor proved the factum of intention of Defendant No.4/Respondent No.3 herein and the Defendant No.1 licensor to the effect that they intended to continue and renew the license in favour of the Defendant No.4. On facts, therefore, it is more than clear that there was no subsisting licence in favour of Defendant No.4 as on 1st February 1973. If so, the Defendant No.4 will have to suffer the consequence of decree of eviction to : 10 : be passed against Defendants 1 to 3 and walk out along with them as he would be claiming only through Defendant No.1 and not in his own rights recognised by law. 8. Insofar as Defendants 1 to 3 are concerned, as aforesaid, except filing written statement they have not participated in the trial or at any stage thereafter. The Courts below have answered the ground of non-user of the suit premises by the tenant on the reasoning that on the date when Bai Dinbai died, the Defendant No.1 was not in possession of the suit premises, for which reason, cannot be blamed for non-user of the suit premises himself. That reasoning cannot be sustained in law. The fact that Defendants 1 to 3 were not in occupation of the suit premises when Bai Dinbai died on 15th September 1971 does not mean that after inheriting the property, they were free not to use the suit premises themselves for the purpose for which it was let out to the original tenant. The heirs of deceased tenant were obliged to use the suit premises after inheriting the same. The Defendants 1 to 3 having failed to : 11 : use the suit premises themselves for period of over six months preceding the date of institution of the suit have become liable to be evicted on that count within the meaning of provisions of the Bombay Rent Act. In that sense, decree of eviction against Defendants 1 to 3 on that count was inevitable. Once that view is taken, it necessarily follows that the Defendant No.4 would also suffer the consequence of the said decree along with Defendants 1 to 3 though he was put in possession by Defendant No.1 in terms of Leave and Licence Agreement dated 1st December 1971, as there was no subsisting license in favour of Defendant No.4 on 1st February 1973. 9. If the decree for eviction against Defendants 1 to 3 is to be passed on the ground referred to above, it may not be necessary to burden this Order with the ground of bonafide and reasonable requirement. Insofar as the said ground is concerned, there is ample pleading in the Plaint as filed by the Petitioners - both on the count of bonafide as well as reasonable requirement. Both the Courts below, however, have negatived that : 12 : ground on considerations which are wholly extraneous and impermissible. In fact, the real tenants Defendants No.1 to 3 having failed to challenge the evidence adduced by the Petitioners/Plaintiffs and remained absent during the trial, the finding on the issue in favour of the Plaintiffs was inevitable. As aforesaid, I am not elaborating the entire pleadings and evidence on record as requested by the Counsel for the Defendant No.4/Respondent No.3 herein who had made statement on instructions received from Mrs.Santosh Melaram Anand and Mr.Chandrashekhar Melaram Anand/Respondents 3(a) & 3(b) herein, who are personally present in Court. Suffice it to observe that even the ground of bonafide requirement and reasonable ground of the Petitioners has been established on record. I am inclined to take this view dehors the contention of the Petitioners that the Petitioner Trust is a Public Charitable Trust and was only required to prove the fact that the Petitioners need the suit premises. 10. Insofar as the issue of comparative hardship is concerned, the Petitioners have not : 13 : only pleaded material facts in that behalf but also established that position by adducing necessary evidence. The Defendants 1 to 3 as aforesaid failed to participate in the proceedings during the trial and have not adduced any evidence to substantiate their claim of greater hardship. The finding with regard to the greater hardship by the two Courts below also cannot be sustained, having regard to the pleadings and evidence produced by the Petitioners. The Courts below have adverted to comparative hardship to be caused to Defendant No.4 which is of no avail because the Defendant No.4 is in unlawful occupation of the suit premises. In that sense, even the finding on the issue of comparative hardship will have to be answered in favour of the Petitioners. 11. There is yet another ground on which eviction of the Defendants was pressed by the Petitioners. In that, the tenant has unlawfully inducted third party in the suit premises thereby subletting the suit premises. The fact that Defendant No.4 was put in possession of the suit premises pursuant the Leave and License Agreement : 14 : dated 1st December 1971 is common ground. That was done without the permission of the landlord. For the finding already recorded in the earlier part that the Defendant No.4 was not in lawful occupation of the suit premises after November 1972 and more particularly, on 1st February 1973, it necessarily follows that the Petitioners have established even the ground of unlawful subletting against Defendants 1 to 3 and become entitled for a decree of eviction on that count. 12. As requested by the Counsel for the Respondent No.3/Defendant No.4 on instructions of Mrs.Santosh Melaram Anand and Mr.Chandrashekhar Melaram Anand/Respondents 3(a) and 3(b), I am not adverting to the several decisions placed on record by both the sides nor elaborating on the pleadings and evidence on record. In fact, the Counsel for Respondent No.3/Defednant No.4 on instructions stated that the Court may not record any reasons whatsoever. Nevertheless, I thought it appropriate to broadly indicate the view that I was inclined to take for allowing the present Writ Petition, which may be useful to the parties in posterity. As : 15 : requested by the Counsel for the Respondent No.3, I proceed to pass the following operative order: ORDER (A) The Writ Petition is allowed. The Suit is decreed in favour of the Petitioners. (B) The Respondents No.3(a) to 3(e) through Counsel submit to the decree of eviction as passed in the present Writ Petition.The Respondents No.3(a) to 3(e) undertake to vacate the suit premises on or before 31st July 2010. The Respondents No.3(a) to 3(e) undertake through Counsel to file affidavit of usual undertaking of every major member in their family staying along with them in the suit premises.That be filed within three weeks from today. That assurance is accepted. (C) The Respondents No.3(a) to 3(e) shall deposit amount towards arrears of rent : 16 : rounded of to Rs.13,000/- (Rupees Thirteen Thousand) within four weeks from today. (D) The Respondents No.3(a) to 3(e) shall pay to the Petitioners sum of Rs.6,000/- (Rupees Six Thousand) per month towards future compensation amount with effect from this month payable on or before 7th September 2008 and every English Calender month thereafter till the premises are vacated. (E) In view of the above assurance given by the Respondents No.3(a) to 3(e), it is agreed that the Petitioners will not pursue any remedy against them for recovery of expenses towards repairs in relation to the suit premises. It is also agreed that the Petitioners shall not pursue any claim of mesne profits subject to above. (F) To obviate any future complications, I am in agreement with the stand taken by : 17 : the Petitioners that Court Receiver, High Court, Mumbai be appointed to take symbolic possession of the suit premises. (G) In case,the Respondents No.3(a) to 3(e) commits any one default in payment of future monthly compensation and/or the arrears of rent rounded of to Rs.13,000/- (Rupees Thirteen Thousand) as aforesaid within specified time, the Court Receiver will be free to take over possession of the suit premises, if necessary, with the help of police assistance,if required. 10. Petition disposed of on the above terms. 11. All concerned to act on an ordinary copy of this order,duly authenticated by the Office. A.M.KHANWILKAR, J.