Case: Commodore B.Y. Wad Vs. Rallis India Limited

Briefly stated the facts are asappellant is the landlord of a flat in "Oyster Apartments" Pilot Bunder Road, Coloba, Mumbai 400005. The appellant was a naval officer and as such was being posted to various places in India. Therefore, the appellant, by an agreement dated 21.2.1969 gave the said flat on leave and licence to the 1st respondentcompany. Clause 5 (c) and (f) are relevant for our purpose. They read as(c) To use and occupy the said premises as residence only for their officers and employees and for no other purpose. The licensees have however informed the licensor that the said premises shall in the first instance be occupied by Dr. Surinder P.S. Pruthi one of the licensees officers. (f) Not to allow any person other than their officers or employees to use and occupy the said premises or any partThe said Dr. Surinder PS Pruthi is the 2nd respondent in civil appeal no. 594/ 2000.(3) The appellant retired from naval services some time in 1970. Thereafter a fresh leave and licence agreement datedwas entered into. The said agreement also contain similar clauses.(4) The Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the Act) was amended on 1Section 15 A was inserted in the Act. By virtue of section 15 A all persons in occupation as licensees onbecame deemed tenants. By virtue of this provision the 1stbecame a deemed tenant of the appellant. In December, 1974 the 2nd respondent retired. He, therefore seized to be in service of the 1st2nd respondent sought to tender rent to the appellant. Appellant refused to accept rent from the 2nd respondent.(5) On 11the 2nd respondent filed suit no. 214/75 seeking a declaration that he is tenant of the appellant in the said flat. The appellant by a notice datedaddressed to the 1st respondentcompany claimed arrears of rent as well as possession of the flat. The 1st respondentcompany, by its reply datedcontended that they had already informed the appellant that 2nd respondent had ceased to be an employee of the company by the end of 1974 and that thereafter they had no further interest in the said flat or in retaining possession of the said flat. The 1stclaimed that they were not liable to pay any rent w.e.f.The appellant, therefore, filed suit no. 134/76 for eviction. The said suit was under section 12(2) of the Act. i.e. on the ground of non payment of the rent by the 1st respondent as well as under section 13 A 1 of the Act, i.e. seeking recovery on the ground that the appellant was a member of the armed forces who had retired. The 1stfiled written statements in both the suits. In the suit filed by the appellant the 1st respondent averred asdefendant no. 1 states that they had paid the rent in respect of the suit premises upto 31st December, 1974. The 1st defendant states that the 2nd defendant ceased to be in the employ of the 1 st defendant fromIn or about July 1974, the 1st defendant had informed the plaintiff that the defendant no. 2 would cease to be in their employment at the end of the year 1974 and requested the plaintiff to enter into a direct agreement with this defendant in respect of the suit premises and negotiations were going on between the plaintiff and defendant no. 2 in respect of the said flat. The 1st defendant states that they had made clear to the plaintiff that they would not be liable for the rent of the suit flat from 1st January 1975 and requested the plaintiff to collect the same from the 2nd defendant. The 1st defendant understand that the 2nd defendant had paid rent from 1 st January 1975 to 30th April, 1975 to the plaintiff.""....The plaintiff by his letter dated 27th March, 1975 wanted the 1st defendant to record that the agreement dated 3rd January 1972 stood terminated and that the 1st defendants have no claim no the suit premises and that the 2nd defendant had left their service and therefore they were unable to hand over the flat to him. The 1 st defendants state that they had made it clear to the plaintiff that they were not interested in the flat or in retaining possession thereof nor were they liable to pay compensation from 1st JanuarySimilar averments were made by the 1st respondent in the written statement filed by them in the 2nd respondents suit. Thus the 1st respondent was admitting that they were no longer interested in the flat or in retaining possession of the flat.(8) Both the suits were tried together. The trial court held that the 2nd respondent had failed to prove any relationship of landlord and tenant between him and the appellant. In view of this finding and in view of the admission, in the written statement, by the 1sta decree for eviction should have been passed. Instead by a common judgment the trial court proceeded to dismiss both the suits.(9) The appellant and 2nd respondent filed appeals against this judgment. In this appeal the appellant sought to amend the plaint by taking a plea that a decree should be passed in their favour in view of the admission made by the 1st respondent in the written statement. That amendment application was rejected by order datedThereafter, by two separate judgments datedboth the appeals were dismissed. As against this dismissal both parties filed writ petitions before the High Court. The writ petition filed by the appellant challenged not only the order datedbut also the order datedThe High Court has, by the impugned judgment, dismissed both the writ petitions. While dismissing the writ petitions the High Court confirmed the finding of the lower courts that the 2nd respondent had failed to make out a case that he was a tenant of the appellant. The High Court still dismissed the writ petition of the appellant on the ground that the 2nd respondent was a trespasser and therefore the remedy of the appellant was to file a suit in a civil court. The High Court held that the small causes court would not have the jurisdiction to entertain such a suit.

Reasoning:
(10) In our view, the law is well settled by authorities of this Court. In the case of Srinivas Ram Kumar v. Mahabir Prasad and Ors., it has been held that even though the plaintiff may not have claimed relief on a particular ground or may have claimed relief on a different ground, if in the written statement a case is set up by the defendant then on the basis of such written statement a decree can be granted to theThus the law is clear. On the basis of the admission, by the 1st respondentcompany that they were no longer interested in the said flat and were not interested in retaining possession of the said flat a decree could and should have been passed. To be remembered that all courts have held that the 2nd respondent was not a tenant of the appellant. It was held that 2nd respondent was merely a trespasser, the appellant was entitled to a decree for eviction even against the 2nd respondent. Merely because the 2nd respondent was a party to the eviction suit did not alter the nature of the suit. The suit remained an eviction suit between a landlord, viz, the appellant and a tenant, viz, the 1st respondent. In the suit the 2nd respondent was a proper party. The courts below were therefore wrong in dismissing the appellants suit. The High Court was wrong in not entertaining the writ petition of the appellant.(13) We see no substance in civil appeal no. 595 of 2000. We agree with the concurrent finding of fact that the 2nd respondent has failed to prove that he was the tenant of the appellant.