[1.0] Present Civil Revision Application under Section 29(2) of the Bombay Rent Act has been preferred by the petitioner herein – original defendant to quash and set aside the impugned judgment and decree dated 15.02.1990 passed by the learned trial Court – learned 3rd Joint Civil Judge (Junior Division), Ahmedabad (Rural) in Regular Civil Suit No.311 of 1986 by which the learned trial Court has decreed the said suit by passing eviction decree against the defendants on the ground of arrears of rent. [2.0] Facts leading to the present Civil Revision Application in nutshell are as under:
[2.1] That the original plaintiffs gave on lease the suit property at the monthly rent of Rs.1500 to the original defendant No.1 M/s. KaisereHind Insurance Company Ltd. by executing the lease deed which was between the plaintiffs and defendant No.1 only. It appears that under the lease deed it was specifically provided that as defendant No.1 tenant is an insurance company, they can hand over the possession/lease of the property to his clients and can recover the appropriate compensation from them. It appears that therefore under the said lease deed the possession of the suit land was handed over by defendant No.1 to defendant No.2 herein (petitioner herein). It appears that defendant No.1 – tenant was in arrears of rent of more than six months i.e. Rs.67,250/ upto 31.08.1985 and there were various purchases of the lease and/or terms of the tenancy. Respondent No.2 herein – landlord issued/served a statutory notice upon the defendants inclusive of the petitioner as required under Section 12(2) of the Bombay Rent Act by notice dated 03.09.1985 and terminated the tenancies and called upon the respondent No.1 herein – original defendant No.1 – tenant to hand over the vacant and peaceful possession of the said premises and also called upon the original defendant No.1 – tenant to pay the arrears of rent of Rs.67,250/. That despite the service of notice, original defendant No.1 – tenant neither deposited/paid the arrears of rent handed over the possession of the suit premises to the plaintiffs – landlord, the original plaintiffs – landlord instituted Civil Suit No.311 of 1986 before the learned trial Court – learned Civil Judge (Junior Division), Ahmedabad (Rural) for recovery of the possession/eviction decree on the ground of arrears of rent for more than six months; on the ground of subletting by defendant No.1 in favour of defendant No.2 (petitioner herein) and on the ground of making permanent construction – breach of tenancy and also for recovery of the arrears of rent. That the suit was resisted by defendant No.1 denying the allegations in the plaint. It was submitted that as defendant No.1 using the suit property, the plaintiff is not entitled to the eviction decree. It was also the case on behalf of defendant No.1 that there is no sub letting in favour of defendant No.2 as alleged. It was the specific case on behalf of defendant No.1 – tenant that defendant No.2 and its other clients are permitted to use some portion of the suit premises as permissible under the lease agreement. At this stage it is required to be noted that original defendant No.2 – petitioner herein did not file any written statement. That thereafter the learned trial Court framed issues at Exh.11. On appreciation of evidence the learned trial Court held that defendant No.1 – tenant is in arrears of rent for more than six months and therefore, the plaintiffs are entitled to eviction decree on the ground of arrears of rent. Considering the condition in lease agreement permitting defendant No.1 – tenant to use the suit property by other persons – clients of defendant No.1 tenant, the learned trial Court held the issue with respect to subletting against the plaintiffs by observing that by permitting the defendant No.2 to use some portion of the suit premises by defendant No.1 tenant it cannot be said that defendant No.1 has sublet the suit premises to defendant No.2. Consequently the learned trial Court decreed the suit on the ground of arrears of rent and directed the defendants to hand over the peaceful and vacant possession of the suit premises to the plaintiffs – landlords. The learned trial Court also passed an order directing defendant No.1 – tenant to pay the arrears of rent i.e. Rs.77,750/ to the plaintiffs.
[2.2] Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned 3rd Joint Civil Judge (Junior Division), Ahmedabad (Rural) dated 15.02.1990 in Civil Suit No.311 of 1986 decreeing the said suit and passing eviction decree on the ground of arrears of rent for more than six months, both defendant Nos.1 and 2 preferred joint Regular Civil Appeal No.37 of 1990 before the District Court, Ahmedabad (Rural) and the learned Appellate Court – learned 3rd Joint District Judge, Ahmedabad (Rural), at Mirzapur by impugned judgment and order dated 30.07.1994 has dismissed the said appeal by confirming the judgment and decree passed by the learned trial Court. It appears that being aggrieved and dissatisfied with the impugned judgment and order passed by the learned Appellate Court as well as the judgment and decree passed by the learned trial Court in passing the eviction decree, original defendant No.1 tenant preferred a separate Civil Revision Application No.328 of 1995 before this Court. Being aggrieved and dissatisfied with the aforesaid judgment and order passed by the learned Appellate Court, original defendant No.2 – petitioner herein has preferred the present Civil Revision Application. It appears that during the pendency of the Civil Revision Application No.328 of 1995, original defendant No.1 – tenant and the original landlords entered into a settlement / compromise under which original defendant No.1 – tenant waived its right as a tenant in respect of the suit property and agreed to hand over the peaceful and vacant possession of the suit property to the original owner – landlord and the original plaintiff – respondent No.2 – landlord agreed to waive its claim to the arrears of rent payable by original defendant No.1. That on the basis of the said settlement, original defendant No.1 withdrew the aforesaid Civil Revision Application No.328 of 1995 and the learned Single Judge disposed of the said Civil Revision Application in terms of the settlement. Therefore, the present Civil Revision Application which has been filed by original defendant No.2 against the impugned judgment and order passed by the learned Appellate Court dismissing the said Appeal confirming the judgment and decree passed by the learned trial Court is required to be heard by this Court. Therefore, the present Civil Revision Application is by original defendant No.2 and as such original defendant No.1 – tenant has accepted the judgment and decree passed by the learned trial Court confirmed by the learned Appellate Court.
[3.0] Shri K.D. Vakharia, learned Senior Advocate has appeared on behalf of the petitioner herein – original defendant No.2. Shri Vakharia, learned counsel has vehemently submitted that both the Courts below have materially erred in passing the eviction decree against the petitioner herein original defendant No.2 on the ground of arrears of rent for more than six months. It is submitted that as such no statutory notice as required under Section 12(2) of the Bombay Rent Act has been served upon the petitioner – original defendant No.2 and therefore, no eviction decree can be passed against the petitioner under Section 12(3) of the Bombay Rent Act i.e. on the ground of arrears of rent. It is submitted that even under the statutory notice dated 03.09.1985 only, defendant No.1 was called upon to pay the arrears of rent and his tenancy was terminated on the ground of arrears of rent as well as on other grounds and original defendant No.1 was called upon to pay the arrears of rent and therefore, no eviction decree can be passed against the petitioner – original defendant No.1 on the ground of arrears of rent.
[3.1] Shri Vakharia, learned counsel has also submitted relying upon Section 5(11)(c) of the Bombay Rent Act that even petitioner – original defendant No.2 can be said to be the tenant of the suit premises as the rent was paid by defendant No.2 and/or defendant No.2 was paying the rent for and on behalf of defendant No.2 and therefore, the petitioner herein – original defendant No.2 was the tenant of the suit premises unless and until a statutory notice under Section 12(2) of the Bombay Rent Act has been served and/or the petitioner is called upon to pay the arrears of rent, no eviction decree can be passed against the petitioner on the ground of arrears of rent. No other submissions have been made even whether the learned trial Court was justified in passing the decree under Section 12(3)(b) of the Bombay Rent Act except the above submissions. Shri Vakharia, learned counsel appearing on behalf of defendant No.2 has submitted that in view of the settlement between original plaintiffs – landlords and original defendant No.1 as recorded in Civil Revision Application No.328 of 1995 when the plaintiffs waived the arrears of rent from defendant No.1 – tenant in that case no eviction decree can be passed against the petitioner on the ground of arrears of rent.
Making above submissions, it is requested to allow the present Civil Revision Application.
[4.0] Present Civil Revision Application is opposed by Shri Suthar, learned advocate appearing for Shri N.K. Majmudar, learned advocate appearing on behalf of the original plaintiffs. It is submitted that as such defendant No.2 was never the tenant of the suit premises and he was claiming the possession through defendant No.1 – tenant and therefore, there was no question of serving any notice under Section 12(2) of the Bombay Rent Act upon defendant No.2. It is submitted that as such defendant No.1 – tenant was allowed to use the suit property by its clients, under the lease agreement itself and therefore, clients of defendant No.1 who were permitted to use some portion of the suit property cannot be said to be the tenants and only defendant No.1 can be said to be the tenant. It is further submitted that even nothing has come on record that defendant No.1 was paying the rent on behalf of defendant No.2 and/or its other clients. It is submitted that even nothing has come on record that defendant No.2 has paid rent to the plaintiffs. It is submitted that the lease agreement was only in favour of defendant No.1 and when defendant No.1 – tenant was found to be in arrears of rent for more than six months, no illegality has been committed by the learned trial Court in passing the eviction decree under Section 12(3) of the Bombay Rent Act i.e. on the ground of arrears of rent and as the defendant No.2 was also found to be in possession of the suit property / some of the suit properties he was joined as a party for effective relief and to avoid any further multiplicity of proceedings and therefore, no illegality has been committed by the learned trial Court in directing the petitioner herein – original defendant No.2 also along with the defendant No.1 – tenant who hand over the peaceful and vacant possession of the plaintiffs. It is submitted that as such even defendant No.2 did not file any written statement and even contest the suit.
Making above submissions, it is requested to dismiss the present Civil Revision Application.
[5.0] Heard learned advocates appearing for respective parties at length. At the outset it is required to be noted that under the lease agreement the suit property in question has been let to the defendant No.1 only. The lease agreement is in favour of defendant No.1 only therefore, defendant No.1 only is the tenant of the suit premises. However, under the lease agreement, original defendant No.1 – tenant was allowed to use the suit property by its clients and that is why defendant No.2 was permitted to use the suit land by defendant No.1 as client of defendant No.1. When it was found that original defendant No.1 tenant has committed the breach of tenancy and was in arrears of rent for more than six months, the plaintiffs served and issued a notice under Section 12(2) of the Bombay Rent Act upon the defendants inclusive of the petitioner – original defendant No.2 and one another terminating the tenancy and called upon them to hand over the peaceful and vacant possession to the plaintiffs and called upon original defendant No.1 tenant to pay the arrears of rent. As defendant No.1 only was the tenant and defendant No.2 who was permitted to use some portion of the suit property under the lease agreement was never considered to be the tenant, rightly the plaintiffs did not call upon other persons inclusive of the petitioner to pay the arrears of rent as required under Section 12(2) of the Bombay Rent Act. Under the circumstances, when the petitioner herein – original defendant No.2 was never the tenant of the suit premises and was permitted to use the suit premises by original defendant No.1 – tenant under the lease agreement, nonissuance of the statutory notice under Section 12(2) of the Bombay Rent Act and/or by not calling upon him to pay the arrears of rent by the plaintiffs – landlords the judgment and decree passed by the learned trial Court passing the eviction decree on the ground of arrears of rent against defendant No.1 cannot be said to be illegal. It is required to be noted that as such the decree for eviction on the ground of arrears of rent has been passed against defendant No.1 however, as the petitioner herein – original defendant No.2 who was claiming the possession through defendant No.1 has permitted user under the lease agreement was also found to be in possession, the learned trial Court has rightly directed all the defendants inclusive of the petitioner to hand over the peaceful and vacant possession of the suit premises to the plaintiffs.
[5.1] Now, so far as the contention on behalf of the petitioner – original defendant No.2 relying upon Section 5(11)(c) of the Bombay Rent Act that the petitioner can be said to be the tenant is concerned, the same has no substance. Nothing is on record that defendant No.1 was paying the rent on behalf of the petitioner herein – original defendant No.2, as stated herein above, under the lease deed / agreement which is between plaintiff and original defendant No.1 only. Nothing is on record that even defendant No.2 was paying the rent directly to the plaintiffs and the plaintiff accepted defendant No.2 as tenant. Under the circumstances, the contention on behalf of the petitioner – original defendant No.2 that he was the tenant of the suit premises cannot be accepted. Now, so far as the contention on behalf of the petitioner – original defendant No.2 that in view of the settlement entered into between the original plaintiffs and the original defendant No.1 has produced and recorded in Civil Revision Application No.328 of 1995 under which the original plaintiffs – landlord waived to recover the arrears of rent from defendant No.1 and therefore, no decree can be passed against the petitioner – original defendant No.2 on the ground of arrears of rent is concerned, the same has also no substance. It is required to be noted that as such the eviction decree on the ground of arrears of rent has been passed against defendant No.1 and even the decree for arrears of rent was passed against defendant No.1 only as he was the tenant. Therefore, merely because the plaintiff agreed to waive the right to recover the arrears of rent from defendant No.1 that tenant as the defendant No.1 accepted the judgment and decree passed by both the Courts below and waived his tenancy rights, it cannot be said that no decree can be passed against the petitioner – original defendant No.2. As stated hereinabove, as the petitioner herein – original defendant No.2 was found to be in possession and he was joined as defendant for effective decree and the relief of getting back the possession merely because there is a settlement between the original plaintiffs – landlord and defendant No.1 – tenant, it cannot be said that the petitioner is not required to hand over the possession to the plaintiffs – landlord. As stated herein above, even the petitioner herein – original defendant No.2 did not even contest the suit and did not file the written statement.
[5.2] Considering the aforesaid facts and circumstances, it cannot be said that the learned trial Court has committed any error and/or illegality in directing the petitioner herein – original defendant No.1 to hand over the peaceful and vacant possession of the suit premises to the plaintiff – original landlord and confirmed by the learned Appellate Court which calls for interference of this Court in exercise of powers under Section 29(2) of the Bombay Rent Act.
[6.0] In view of the above and for the reasons stated above, present Civil Revision Application fails and the same deserves to be dismissed and is, accordingly, dismissed. Rule discharged. Ad interim relief, if any, stands vacated forthwith. No costs.
(M.R. Shah, J.) menon