1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2286 OF 1993 WRIT PETITION NO.2286 OF 1993 WRIT PETITION NO.2286 OF 1993 Shri Subhash Janardhan Kulkarni Aged 38 years, Occ.: Advocate of Sangli, Resident near S.T. Stand, Radhakrishna Vasahat, Sangli. ..Petitioner. (orig.Plaintiff.) V/s. Smt.Rajashree w/o Avinash Pardeshi, Aged 36 years, Occ: Household duty, Resident of 151, Shivaji Nagar, Near Ram Mandir, Joshi Wada, Sangli. ..Respondent. (orig.Defendant) WITH WITH WITH WRIT PETITION NO.761 OF 2009 WRIT PETITION NO.761 OF 2009 WRIT PETITION NO.761 OF 2009 Smt.Rajashree w/o Avinash Pardeshi, Aged 36 years, Occ: Household duty, Resident of 151, Shivaji Nagar, Near Ram Mandir, Joshi Wada, Sangli. ..Petitioner. (orig.Defendant) V/s. Shri Subhash Janardhan Kulkarni Aged 38 years, Occ.: Advocate of Sangli, Resident near S.T. Stand, Radhakrishna Vasahat, Sangli. ..Respondent. (orig.Plaintiff.) Mr.V.B.Naik for Petitioner in WP 2286/93 and for Respondent in WP 761/09. Mr.S.G.Deshmukh for Respondent in WP 2286/93 and for Petitioner in WP 761/09. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : JANUARY 15, 2009. DATE : JANUARY 15, 2009. DATE : JANUARY 15, 2009. 2 JUDGMENT : JUDGMENT : JUDGMENT : 1. Both these cross Petitions by the landlord and the tenant are disposed of by this common Judgement. 2. The suit property consists of four rooms on the ground floor of building situated at Shivaji Nagar, Sangli. It is stated that originally Satyabhama Vithal Joshi was the owner of the building in which the suit property is situated. The said Satyabhamabai by registered Gift deed bequeathed the entire property being C.S.No.151 and the building standing thereon in favour of Sadashiv Joshi, Jaydev Joshi and Smt. Sarala Yeshwant Joshi. Nonetheless Satyabhamabai alongwith Sadashiv, Jaydev and Sarala sent legal notice on 21st November, 1977 to the Respondent Rajashree Pardeshi, who is the tenant in the suit property. The said communication clearly informs the tenant that the ownership stands transferred in the names of Sadashiv, Jaydev and Sarala in view of the registered Gift deed executed by Satyabhamabai and that the tenant was obliged to pay rent in respect of suit property to them. It is also noted in this communication that the Respondent 3 tenant was monthly tenant in relation to the suit property on monthly rent of Rs.165/- plus Rs.50/- and was in default for several years. It is then noted that the outstanding amount payable by the tenant was Rs.1,345/-. In addition, the tenant was liable to pay towards water and electricity charges. The amount payable under that head however, is not specified and left blank. The communication calls upon the tenant to pay the outstanding dues within 15 days from the receipt of the said legal notice and also to vacate the suit premises as tenancy stands terminated with effect from 31st December, 1977. This communication was duly served on the tenant, who sent reply on 13th December, 1977. In her reply the tenant asserted that one Abasaheb Joshi(Krishnaji Vithal Joshi) was looking after the property and was paid amount towards rent from time to time up to end of May, 1977 and he has issued receipts for that purpose. The tenant denied the fact that she was in arrears in the sum of Rs.1,345/- as alleged by the landlords. The tenant also denied that she was in arrears in respect of water and electricity charges. The tenant also asserted that the additional rent demanded of Rs.50/- is excessive and illegal. It is then stated that the tenant was ready and willing to pay the amount towards standard rent in respect of 4 suit property and that she was in fact paying the same to Abasaheb Joshi. However, the said Abasaheb Joshi was now refusing to accept the same. In view of this development, the tenant would be resorting to appropriate legal action. It is further stated in the reply that the tenant was unaware about any Gift deed or transfer of property in the name of above said Sadashiv, Jaydev and Sarla. The tenant asserted that the demand made in the legal notice by the alleged owners was illegal and false. Therefore, tenancy cannot be terminated on that basis. It is further stated that although the relationship of landlord and tenant would exist, it may be clarified as to who would be entitled to receive rent. Significantly, besides sending above reply the tenant proceeded to file standard rent application on 20th December, 1977, which was later on numbered as Application No.7 of 1978. In the said application, the tenant has asserted that the rent was initially Rs.50/- and later on increased to Rs.90/-, Rs.115/- and eventually Rs.215/-. That increase was excessive and illegal. According to the tenant the standard rent of suit property ought to be Rs.50/- per month. It is not necessary to elaborate on other matters stated in the standard rent application. The other relevant fact asserted therein which requires to be 5 noted is that the tenant was not in a position to discern as to who should be paid monthly rent in relation to the suit premises. In view of the confusion the tenant sought following direction in the said application. (1) to fix standard rent of the suit property. (2) it be clarified as to the rent should be paid to whom ? Although the said standard rent application was filed, no application was moved by the tenant for fixing interim rent nor any amount was deposited by the tenant in the said proceeding. As a result, second legal notice was issued by Sadashiv Joshi, Jaydev Joshi and Sarla Joshi dated 26th April, 1979 reiterating the position stated in the earlier legal notice. It is stated that tenant has committed default since June, 1977 and called upon the tenant to pay the said amount to one of them to Smt.Sarala forthwith and also vacate the suit premises as the tenancy was already terminated in terms of legal notice dated 21st November, 1977 on or before 31st May, 1979. What is relevant to notice is that the 6 second legal notice dated 26th April, 1979 makes express reference to the first legal notice dated 21st November, 1977 and also reiterates the position stated therein and once again calls upon the tenant to pay the outstanding dues in respect of suit premises, which were not paid since June, 1977 and also to hand over vacant possession thereof soonafter 31st May, 1979. Even this notice has been duly received by the tenant, which fact is reinforced from the reply given by the tenant on 21st May, 1979. 3. Once again the tenant reiterated the same position, as asserted in the earlier reply. In addition, it is stated that the tenant had paid Rs.19,000/- towards earnest money for purchasing the suit property and was occupying the same as part performance of the said agreement. With regard to the liability to pay amount towards standard rent, it is stated that since there was no direction issued by the concerned Court to pay interim standard rent amount, question of paying any amount or depositing any amount in court did not arise. In substance, the Tenant refuted the claim of the owners not only regarding demand made towards arrears of rent but also to hand over vacant and peaceful possession. Although the above said two legal notices were 7 issued, the owners did not institute any suit for possession. However, suit for possession has been instituted in respect of the suit property against the tenant by one Subhash J. Kulkarni. The said Subhash J.Kulkarni has filed suit for possession in the capacity of Court Receiver. He has been appointed as Court Receiver in Suit filed by Sadashiv, Jaydev and Sarla against five tenants being RCS No.174 of 1980. Here it may be relevant to refer to the said proceedings only to indicate as to the background in which the Plaintiff Subhash Kulkarni instituted suit against the tenants for possession on the ground of default on the basis of legal notice referred to above in respect of the owners of the property. The said suit being RCS No.174 of 1980 is filed by the persons who claim to have become owners on account of the Registered Gift Deed. It is stated by them that the property C.S.No.151 is being waisted and damaged. It is stated that as the Plaintiffs were residents of Mumbai, behind their back, the Defendant Nos. 3 to 5 in the said suit, namely, Krishna Joshi, Makarand Joshi and Arvind Joshi, forcibly entered into tenements on the ground floor and later on inducted Defendant No.1 Shailaja Dhamke and Defendant No.2 Madhuri Dhamake illegally and without the knowledge or permission of the owners. 8 The owners have also asserted in the said suit that they apprehended that the Defendant Nos. 3 to 5 would create obstruction in the peaceful enjoyment of the property bearing CS No.151. On this assertion the owners prayed for following relief in the said suit: (a) Defendants be directed to hand over possession of the property described in paragraph-1 of the plaint. (b) Defendant Nos. 1 and 2 be ordered to pay damages in respect of suit premises occupied by them of monthly amount of Rs.1350/-. (c) The Defendant Nos. 1 and 2 be ordered to pay mesne profit in respect of premises occupied by them at the rate of Rs.150/- per month till handing possession thereof. (d) The Defendant Nos. 3,4 and 5 be restrained from interfering with the possession and or obstructing possession of the Plaintiffs/owners in relation to the CS No.151 in any manner(Permanent injunction). In the said suit, Application was moved for appointment of Court Receiver at the instance of Defendant No.3. The Court appointed the said Defendant No.3 as the Court Receiver. However, later on the owners moved the Court for changing the Court Receiver on the allegation that the Defendant No.3 had not discharged his duties properly as Court Receiver. That Application was contested and was 9 granted. Eventually the Plaintiff in the present proceedings S.J.Kulkarni came to be appointed as Court Receiver. Later on, the newly appointed Court Receiver was permitted to institute the present suit against the tenant for possession on the ground of default on the basis of legal notice sent to her by the owners. It is in this backdrop the present Plaintiff S.J.Kulkarni instituted suit being RCS No.491 of 1984 against the tenant for possession of the suit premises. 4. The present suit came to be filed on 29th September, 1984. However, one development which took place before the institution of the present suit needs to be adverted to. In that, on 8th September, 1983, the tenant moved the Court where standard rent application was pending and requested the Court to allow her to withdraw the standard rent application being Mis. Application No.7 OF 1978 on the assertion that the Court Receiver has been appointed in respect of the suit property. As is noted earlier, one of the grievance made in the standard rent application as well as in the reply sent to the suit notice on behalf of the tenant was that it was not clear to the tenant as to rent should be paid to whom. Obviously, after appointment of Court Receiver, since there was 10 no doubt, the tenant was well-advised to withdraw the standard rent application. At her instance, the standard rent application stood disposed of on 8th September, 1983. What is relevant to note further is that during pendency of the said standard rent application, the tenant had moved the application for fixing interim standard rent. On the said Application, on 19th January, 1983, the interim standard rent was fixed at Rs.200/- per month. Significantly, inspite of the said order the tenant did not bother to pay the arrears since June, 1977 at the said rate nor made any attempt to deposit future rent after January, 1983. Similarly, even after withdrawal of standard rent application on 8th September, 1983-on the ground that now Receiver has been appointed in respect of suit property-no payment has been made by the tenant towards arrears to the Court Receiver either in full or in part. It is not the case of the tenant that such attempt was made and the Court Receiver refused to accept rent. Obviously, since no rent was paid by the tenant, the Court Receiver with a view to protect the property, which was subject matter of suit No.174 of 1980, sought direction of the said Court to permit him to file the present suit against the tenant and it is in that background present suit for eviction has been 11 filed by the Plaintiff Subhash J. Kulkarni-Court Receiver. 5. In the plaint as filed by the Court Receiver which was registered as RCS No.491 of 1984, the background in which he was appointed as Court Receiver is mentioned. It is asserted that he has been appointed as Court Receiver and has been permitted by the Court in RCS No.174 of 1980 to institute the present suit. Reference is then made to the legal notice sent on 21st November, 1977 as well as the second legal notice dated 26th April, 1979. It is stated that the tenant was a monthly tenant. Further, the Agreed rent payable in respect of suit property was Rs.215/- per month. That the tenant remained in arrears since June, 1977 and inspite of the demand notice, she has not bothered to pay the arrears so far. Accordingly, it was prayed that decree of possession be passed on the ground of willful default committed by the tenant and the tenant be directed to pay amount of Rs.9244.80ps towards arrears of rent which were legally recoverable as per the provisions of limitation Act. The computation of that amount can be discerned from paragraph-6 of the plaint. 12 6. The suit was contested by the tenant. In the Written Statement it is asserted that there was no relationship of landlord and tenant between the Plaintiff and the defendants. As such, the suit cannot proceed. The tenant has asserted that the Plaintiff was not appointed as Court Receiver in respect of suit property possessed by the tenant; also for that reason, the present suit cannot proceed. It is then stated that the Plaintiff has failed to produce permission given by the Court for institution of the suit. On merits, it is stated that although the tenant was aware about the ownership, however, was not clear about the landlord’s right as to who was the landlord in respect of the suit property. It is stated that standard rent application instituted by the tenant after receipt of first legal notice was withdrawn as there was technical defect therein and it was not a dishonest application. In paragraph-7 of the Written Statement, it is stated that the tenant was paying rent to Krishnaji Joshi and has not committed any default. In paragraph-10 it is stated that the present suit could not proceed as no prior legal notice was given by the present Plaintiff/Court Receiver. 13 7. Both sides examined one witness each. Plaintiff examined one of the owner, Jaydev Vithal Joshi. The tenant examined her husband. In the evidence of the Plaintiff’s witness, it is asserted that he alongwith others became co-owners on the basis of a Gift Deed. Thereafter, notice of demand regarding arrears of rent was issued to the tenant, which was duly replied by the tenant but the amount demanded therein remained unpaid. He has also referred to the second legal notice and also spoke about the break up of the amount which was payable by the defendant tenant in respect of the suit property. It is stated that inspite of two legal notices, neither the amount was paid nor the possession of the premises was handed over nor any amount was deposited in Court till date. He has specifically stated that the Plaintiff has been appointed as Receiver by the Court for the suit property i.e. whole property including the suit premises and has taken permission of the Court to file the present suit. The relevant applications and orders passed have been produced by him, which have been exhibited. The Plaintiff’s witness has been cross examined at length. 8. Insofar as the defendant’s witness is concerned, he has admitted in his examination in 14 chief that the rent in respect of suit premises was Rs.215/- per month. He has stated that when the tenant took premises there was electricity and water charges in it and it was agreed that the light and electricity charges are included in the rent. He has then stated that the standard rent application was filed. Further, after the death of Satyabhamabai, Krishnaji and his sons, Jaydev, Sadashiv and daughter Sarala started claiming rent. As there was no clarity as to whom rent should be paid, the standard rent application was filed by the tenant. He has then stated that Jaydev, Sadashiv and Sarala agreed to sell the property to the tenant. He has, however, candidly accepted that the said suit for specific performance filed by the tenant has been dismissed, which decree has been confirmed by the High Court. Further, he stated that he would prefer appeal before the Supreme Court. In his evidence for the first time, he has stated that he withdrew the standard rent application on account of institution of specific performance suit. He has further stated that he was ready and willing to pay the rent to the landlord and did not admit the arrears claimed by the Receiver. Indeed, in the evidence, he has asserted that the Receiver has never collected rent from the tenant nor has the tenant paid any rent to the 15 Receiver. He further stated that no notice has been received from the Plaintiff(Court Receiver). In the cross-examination, the Defendant’s witness has conceded that he did not know if injunction was claimed in RCS No.174 of 1980 for the whole of C.S.No.151. He has admitted that Court Receiver was appointed as per Exh. 62. He has also admitted in the cross-examination that standard rent application was withdrawn as property went in possession of the Court Receiver. He has also admitted that in the standard rent proceeding, direction was issued by the Court to deposit rent at the rate of Rs.200/- p.m. within 15 days from the date of the order. He has admitted that he has not paid the amount to the owners or the Court Receiver nor deposited any amount in Court as per the said order. When he was called upon to produce rent receipts, he expressed his inability but at the same time admitted that in recitals thereof it is mentioned that the net rent was Rs.215/-. He has admitted that he was required to pay Rs.40-45/- p.m. for electricity charges and Rs.25-30/- towards water charges. 9. The Trial Court on analysing the oral as well as documentary evidence, which has come on record, proceeded to answer the issues. The first issue 16 dealt with by the Trial Court is whether the Plaintiff was the Court Receiver of the suit property. This issue has been answered keeping in mind the contents of the averments in RCS No.174 of 1980 as a whole and not limited to the description of property in paragraph-1 thereof. The Trial Court adverted to paragraph-2 of the said plaint which gives the description of whole of the CS No.151. Reference is also made to paragraph-3 where it is stated that even though the Plaintiffs are owners of CS No.151, the tenant obstructed their enjoyment of the property. Reliance is also placed on contents of paragraph-8 of the plaint which categorically mentions that the defendants should not obstruct enjoyment of whole CS No.151. At the end, the Trial Court has referred to the prayer clause 19 whereby relief of perpetual injunction is claimed against the Defendant Nos. 3,4 and 5 to restrain them from obstructing the Plaintiffs’ enjoyment in CS No.151. On analysing the plaint as a whole, the Trial Court opined that the subject matter of the suit (RCS No.174 of 1980) was whole of CS No.151. Besides referring to the plaint, the Trial Court has adverted to the application Exh.70 filed in the said suit for appointment of Court Receiver. The said application was rejected. In appeal being Misc Civil Appeal 17 No.82 of 1981, the order to appoint Court Receiver came to be passed. The said Judgment is Exh.61. Reading the Judgment as a whole the Trial Court proceeded to opine that the Receiver was appointed by the said order for the whole of CS No.151, which can be discerned from the reasons given by the Appellate Court at different places. The Trial Court has also adverted to say given by Jaydev and others (Exh.62) for appointment of Receiver, wherein it is categorically mentioned that it is just and appropriate to appoint Receiver in respect of whole of CS No.151 for proper management of that property. On analysing the above material, the contentious issue was answered against the Defendant and in favour of the Plaintiff. 10. The Court then proceeded to examine the issue as to whether the Plaintiff has obtained permission from the Court to file the present suit. For answering this issue, the Trial Court has referred to Exh.28-which is certified copy of the application given by the Receiver in RCS No.174 of 1980 dated 29th September, 1984 and the order passed thereon. The application clearly records that permission for institution of the present suit against the tenant on the ground of default and possession was sought. 18 That request was accepted and permission was granted to the Receiver. In view of this documentary evidence, even that issue was answered against the tenant and in favour of the Plaintiff. 11. The Trial Court then went on to answer Issue No.6 as to whether the suit under Rent Act was bad in law. At the outset, it is recorded that no arguments were advanced in relation to the said issue on behalf of the tenant. Nevertheless, the Court observed that the Receiver was covered by the expansive definition of landlord under section 5(3) of the Bombay Rent Act. There was relationship of landlord and tenant between the Plaintiff and Defendant. It went on to observe that the Receiver was entitled to institute suit for possession on the ground of default committed by the tenant for a period of more than six months and moreso, the tenant was not ready and willing to pay rent. Accordingly, even that plea of the Defendant has been negatived. 12. The Trial Court then proceeded to examine the issue as to whether the description of the suit property was correct. Even that issue has been answered in the affirmative and against the defendant on the finding that there was no serious dispute 19 about the description. 13. Thereafter, the Trial Court proceeded to consider other contentious issue as to whether the Plaintiff has proved that the Defendant has committed default in non-payment of rent for more than six months. Relying on the evidence of Jaydev Vithal Joshi(Exh.21), wherein he has deposed that the agreed rent in respect of the suit property was Rs.215/- p.m. and that the tenancy begins on the first date of the British Calender month and terminates at the end of the month and that the defendant did not pay the rent from June, 1977; coupled with the fact that the demand notice was issued on November 21, 1977(Exh.22) and that the tenant received the said notice and also gave reply on 31st December, 1977 but failed and neglected to pay the arrears as claimed. Taking all these aspects into account, the Court proceeded to hold that Jaydev and others were claiming rent on the basis of Gift Deed. Besides, the said communication clearly informs the tenant as to who was the landlord and the rent should be paid to