bombay rent act

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Judgments of Hon'ble

Supreme Court on Bombay

Rents, Hotel and Lodging

House Rates Control Act,

1947.

Compiled by H. S. Mulia.

Supreme Court Judgments on Bombay Rents, Hotel and Lodging House

Rates Control Act, 1947

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1.Bombay Rents, Hotel and Lodging House Rates Control Act (57 of

1947), S.1 - Cantonments (Extension of Rent Control Laws)

Amendment Act (22 of 1972), S.3 and Civil P.C. (5 of 1908), S.11 -

Matter heard and finally decided - Question of law relating to

jurisdiction of Court (in this case, relating to applicability of Bombay

Rent Law to Kirkee Cantonment) - Erroneous decision - Decision does

not operate as res judicate.

1.1. Where the executing Court had refused to exercise jurisdiction

and to execute the decree on the ground that the decree was a

nullity as the Bombay Rents, Hotel and Lodging House Rates

Control Act, 1947, had no application to buildings in Cantonment

areas, that defect having been removed and all decrees obtained

on the basis that the Bombay rent law applied to the Kirkee

Cantonment area having been validated by Act 22 of 1972, it

cannot be said that the earlier decision holding that the decree was

a nullity operated as res judicata. - Jai Singh Jairam Tyagi v/s

Maman Chand Ratilal Agarwal, reported in AIR 1980 SC 1201.


1947), S.4 and S.28 - Transfer of Property Act (4 of 1882) , S.105 ,

S.108 - Houses and Rents - Premises belonging to Government or a

local authority- Act does not apply even as between lessee of such

premises and his sub-tenant -"Belonging to" -Meaning of.

2.1. The first part of S.4(1) Provides that the Act shall not apply to

any premises belonging to Government or a Local authority. The Supreme Court Judgments on Bombay Rents, Hotel and Lodging House


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Legislature did not by the first part intend to exempt the

relationship of landlord and tenant but intended to confer on the

premises itself an immunity from the operation of the Act.

2.2. It is not correct to say that the immunity given by the first part

should be held to be available only to the Government or a local

authority to which the premises belong. If that were the intention,

then the Legislature would have used phraseology similar to what it

did in the second part, namely, it would have expressly made the

Act inapplicable "as against the Government or a local authority".

This it did not do and the only inference that can be drawn from

this circumstance is that this departure was made deliberately with

a view to exempt the premises itself. Therefore, the first part of the

section should be so construed as to exempt the premises from the

operation of the Act, not only as between the Government or a

local authority on the one hand and its lessee on the other, but also

as between that lessee and his sub-tenant.

2.3. A plot of land belonging to the Board of Trustees for the

improvement of City of Bombay was put to auction on certain terms

and conditions for the purpose of granting a building lease. One S

who was the highest bidder signed the memorandum of agreement

incorporating the conditions upon which the auction was held. By

cl. 7 of these conditions, S agreed, within the time specified therein

to build and complete at his own cost of not less than Rs. 50,000 a

building of particular specification. Clause 18 of the conditions

provided that immediately after the completion of the building

within the time specified the Trustees shall grant to S or his

nominee a lease of the said plot with buildings thereon for the term



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of 999 years from the date of the auction at an yearly rent

calculated in accordance with the accepted bidding for the plot.

The Trustees, pursuant to the said agreement and in consideration

of the monies which had been expended in the erection of the

buildings and of the rent and the covenants thereinafter reserved

and contained, (see para 3 of the judgment) demised unto the

lessee all that piece of land together with the buildings erected

thereon to hold the same for 999 years. In 1948 the successor-in-

interest of S brought a suit in the City Civil Court for ejectment

against the defendant who was a sub-tenant of one of the blocks in

the demised premises, alter giving a notice to quit. The sub-tenant

claimed protection under Bombay Act 57 of 1947 and that under S.

28 of that Act the Court had no jurisdiction to entertain the suit:

2.4. Held in the facts and circumstances, the demised premises

including the building belonged to the Board which was a local

authority and therefore were outside the operation at the Act in

view of S. 4 (1). The fact that the lessee incurred expenses in

putting up the building was precisely the consideration for the

lessor granting him a lease for 999 years not only of the building

but of the land as well at what may be a cheap rent which the

lessor may not have otherwise agreed to do. By the agreement the

building became part of the land and the property of the lessor and

the lessee took a lease on that footing. The lessee or a person

claiming title through him could not now be heard to say that the

building did not belong to the lessor. Forfeiture does not, for the

first time, give title to the lessor. On forfeiture he has all along been

his own property. The interest of the lessor in the demised premises



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could not possibly be described as a contingent interest which

would become vested on the expiry or sooner determination of the

lease. The City Civil Court had, therefore, jurisdiction to entertain

the suit.- Messrs. Bhatia. Co-operative Housing- Society Limited v/s

D. C. Patel, reported in AIR 1953 SC 16 (Four Judges).


1947), S.4(1) and S.(4)(a) - lease - tenancy - Exemption from

operation of Act - Premises-belonging to Govt. or Local Authority -

Premises belonging to Port Trust taken on lease - Lessee letting out

premises to sub-tenants - Case does not fall under S.4(4)(a) -

Protection under Act is not available to sub-lessees.

3.1. S.4(1) makes it clear that the provisions of the Bombay Rent Act

are not applicable to premises belonging to the Govt. or a local

authority. Sub-sec. (4)(a) of S.4 which was added in 1953 only takes

out from the scope of the exemption conferred by S.4(1) "a building

erected on any land held by any person from the Government or a

local authority under an agreement, lease, licence or other grant,

although having regard to the provisions of such agreement, lease,

licence or grant the building so erected may belong or continue to

belong to the Government or the local authority, as the case may

be". In fact, a plain reading of the provisions of sub-sec.(4)(a) in the

context clearly shows that there is no intention therein to take out a

building put up by the Government or a local authority from the

scope of the exemption conferred by sub-sec.(1) of S.4. In fact, the

language of sub-sec.(4)(a) and sub-sec.(1) of S.4 of the Bombay

Rent Act read together suggests that it was only in respect of a

building put up by the lessee on the Government land or land



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belonging to a local authority under a building agreement that the

sub-lessees were taken out of the exemption contained in sub-sec.

(1) of S.4 and allowed the benefit of the provisions of the Bombay

Rent Act. It is significant that the exemption granted under the

earlier part of sub-sec. (1) of S.4 is in respect of the premises and

not in respect of the relationship. In order to confer the protection

of the provisions of the Bombay Rent Act to the sub-lessees

occupying the premises in any building erected on Government

land or on land belonging to a local authority irrespective of the

question who has put up the building as against the lessees of the

land but without affecting the immunity conferred to the

Government or local authorities as contemplated by sub-sec.(1) of

S.4 of the Bombay Rent Act, the Court would have practically

rewritten the provisions of S.4 and it is not open to the Court to do

that. It is for the legislature to do that. - Nagji Vallabhji and Com.

v/s Meghji Vijpar Meghji Vijpar, reported in AIR 1988 SC 1313, para

Nos. 9 & 13.


1947), (as amended by Bombay Act 4 of 1953) S.4(1) and S.4(4)(a) -

houses and rents - amendment - lease - Houses and Rents - Scope

and applicability - Effect of amendment - Suit for vacant possession of

site granted by Port Trust Authorities with buildings on it - Suit is

governed by S. 4 sub-sec. (1) and not sub-sec. (4) (a) - Suit filed in

City Civil Court is competent - Lessee unable to evict sub- tenants and

deliver vacant possession in view of prohibitions contained in the Act -

Not Sufficient to defeat right of Port Trust Authorities.

4.1. The amendment of S. 4 by the addition of sub-sec. (4) (a) by



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Bombay Act 4 of 1953, was enacted to cut down by a definition the

operation of the words "any premises belonging to the Government

or a local authority by excluding only buildings which were

occupied by sub tenants even though the buildings belonged to the

Government or continued to belong to it. Clause (b) of sub-sec. (4)

excluded also S. 15, which prohibited sub-letting by a tenant. That,

however, was limited to the case of buildings only, and did not

apply to the case of land. In this situation, any action by the

Government or the local authority in respect of land falls to be

governed by sub-sec. (1) and not sub sec. (4) (a), and sub-sec. (1)

puts the case in relation to land entirely out of the Rent Control Act.

The net result, therefore, is that if Government or a local authority

wants to evict a person from the land, the provisions of the Rent

Control Act do not come in the way. For the same reason, the suit

for ejectment does not have to be filed in the court of Small

Causes, as required by the Rent Control Act but in the City Civil

Court.

4.2. Where under a lease of land with buildings on it, granted by the

Bombay Port Trust Authorities, the lessee is entitled to remove the

buildings on the site within one month after eviction, the

circumstance that the lease cannot evict his sub-tenants on

account of the protection granted to them under the Rent Control

Act, so as to remove the building in exercise of the right conferred

on him, is unfortunate but does not service to entitle him to defeat

the rights of the Port Trust Authorities. They are only claiming

vacant possession of the site, and under the agreement, if the

lessee does not remove the buildings within one month, then they



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would be entitled to take possession of the land with the buildings,

whatever might be the rights of the sub- tenants. - Kanji Manji v/s

The Trustees of the Port of Bombay, reported in AIR 1963 SC 486

(FB).


1947), S.5, S.6, S.11 - words and phrases - houses and rents - Houses

and Rents - Premises - Meaning of - Material date for ascertaining

whether plot is premises is date of letting and not date of application

for fixation of standard rent.

5.1. Before the tenant could maintain an application for fixation of

standard rent under S. 11 she had to establish that the plot of land

leased was premises within the meaning of S. 5 (8) and that it was

let for residence, education, business, trade or storage. Reading S.

5 (8) with S. 6 (1), it is manifest that Part II of the Act can apply in

areas specified in Sch II to lands (not being used for agricultural

purpose) let for residence, education, business, trade or storage.

The material date for ascertaining whether the plot is 'premises' for

purposes of S. 6 is the date of letting and not the date on which the

application for fixation of standard rent is made by the tenant or

the landlord. Where the plot was assessed for agricultural purposes

on the date of the lease it could not be regarded as premises

inviting the application of Part II. - Mst. Subhadra v/s Narsaji

Chenaji Marwadi, reported in AIR 1966 SC 806 (Four Judges).


1947), S.5, S.7, S.11 - Standard rent - Provisions pegging it down to

rent paid on 1-9-1940 or first rent paid for premises let out after 1-9-

1940, is said to be reasonable? - Held. No.



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6.1. In so far as social legislation, like the Rent Control Act is

concerned, the law must strike a balance between rival interests

and it should try to be just to all. The law ought not to be unjust to

one and give a disproportionate benefit or protection to another

section of the society. When there is shortage of accommodation it

is desirable, may necessary that some protection should be given

to the tenants in order to ensure that they are not exploited. At the

same time such a law has to be revised periodically so as to ensure

that a disproportionately larger benefit than the one which was

intended is not given to the tenants. - Malpe Vishwanath Acharya

v/s State of Maharashtra, reported in AIR 1998 SC 602 (FB), para

28.


1947), S.5(3), S.13(1),- Eviction - Expression 'Landlord' - Includes

usufructuary mortgagee of tenanted premises and, therefore, he can

evict tenant on ground of nuisance.- Narpatchand A. Bhandari v/s

Shantilal Moolshankar Jani, reported in AIR 1993 SC 1712.

7.1. Bombay Rents, Hotel and Lodging House Rates Control Act (57 of

1947), S.13(1)(c) - Eviction - Ground - Nuisance or annoyance by

tenant - Tenant of a unit (flat) in multi-tenanted premises and

putting up textile printing mill on common terrace and running it at

night and using water from common overhead tank. Also Removed

aerials, antenna of other tenants. Whether such act of tenant

constitute acts of nuisance or annoyance. -Held. Yes.- Narpatchand

A. Bhandari v/s Shantilal Moolshankar Jani, reported in AIR 1993 SC

1712.




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1947) - Sections 5(4a) and 15-A - Under an agreement of lease and

licence D allowed W to occupy the shop premises in question. The

agreement provided that "it shall remain in force for 11 months and

will automatically come to an end on 31-3-1966 on which day W shall

remove himself from the premises of his own accord." By efflux of

time the licence stood revoked on 1-4-66 but W did not vacate and

remove himself from the premises as per the term of the agreement.

In spite of being asked by D to do so W did not pay any heed. Hence D

took recourse to Section 41. Defence of W that he was a tenant under

the Bombay Rent Act (1947) was rejected. During pendency of the

proceedings Sections 5 (4a) and 15-A were introduced in the Bombay

Rent Act by an amendment in 1973. W claimed the protection

conferred on the licensee under Section 15-A. - Held that W was not

entitled to the protection conferred on a licensee by Section 15-A of

the Bombay Rent Act. D was entitled to an order for possession under

Section 43.

8.1. In order to get the advantage of Section 15-A of the Bombay

Rent Act, the occupant must be in occupation of the premises as a

licensee as defined in Section 5(4A) on the 1st of February, 1973. If

he be such a licensee, the non obstante clause of Section 15-A (1)

gives him the status and protection of a tenant in spite of there

being anything to the contrary in any other law or in any contract.

In other words, even as against the express terms of the subsisting

contract of licence the licensee would enjoy the benefits of Section

15-A. But if he is not a licensee under a subsisting agreement on

the 1st of February 1973, then he does not get the advantage of

the amended provision of the Bombay Rent Act. A person



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continuing in possession of the premises after termination,

withdrawal or revocation of the licence continues to occupy it as a

trespasser or as a person who has no semblance of any right to

continue in occupation of the premises. Such a person by no stretch

of imagination can be called a licensee. If, therefore, W was not a

licensee under a subsisting agreement in occupation of the

premises on the 1st of February 1973 he could not take shelter

under Section 15-A.

8.2. It is wholly wrong to say that if a licensor filed an application

under Section 41 of the S.C.C. Act instead of filing a regular civil

suit he by implication treated the occupant of the premises against

whom the S.C.C. application was filed as a subsisting licensee.

8.3. There was nothing to show in the records of this case that D had

ever accepted any money either in or outside court from W after

31st of March, 1966 by way of any rent of the licenced premises. A

person continuing in occupation of such premises after revocation

of the licence is still liable to pay compensation or damages for

their use and occupation. If at any time such compensation had

been paid or accepted it could not undo the effect of the revocation

of the licence. - D. H. Maniar v/s Waman Laxman Kudav, reported

in AIR 1976 SC 2340 (FB).


1947), S.5(4A) , S.5(6A) - Paying guest or licensee - Licensee becomes

paying guest if licensor resides in same premises and for that licensor

need not reside in same room in which licensee resides. Moreover

residence of licensor in remaining part of premises need not be

physical residence. Dejure control over remaining premises would be



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sufficient.

9.1. All that is required to make a licensee answer the description of

a paying guest is that the licensor also resides in the premises of

which a part is in the possession of the paying guest and it is not

required that the licensor should physically reside in the same room

as the paying guest. The words in which the licensor resides qualify

the words 'premises' which immediately precede the said words

and are not intended to qualify 'part of the premises'. It is also not

necessary that the licensor must be using the remaining part of the

premises for actual residence. The position of a 'paying guest' is

similar to the position of a 'lodger' in England. If the part is in the

use of the 'lodger' and the owner retains the control of the whole

house, that is sufficient. Surendra Kumar Jain v/s Royce Pereira,

reported in AIR 1998 SC 394, para Nos.14 to 16.

10. Bombay Rents, Hotel and Lodging House Rates Control Act (57 of

1947), S.5(7), S.7, S.10AA.

10.1. Amount of educational cess is recoverable by the landlord

from the tenant under S. 10AA of the Rent Act.. Section 7 of the

Rent Act does not prohibit the recovery of the increase to which

landlord may be entitled under the provisions of the Act in addition

to the standard rent. Sections 5(7), 9, 10 and 10AA of the Rent Act

indicate that permitted increase becomes part of the rent. The

building can well be said to be reasonably expected to be let at the

figure arrived at by adding the permitted increase to the standard

rent. The valuation has therefore, to be arrived at after taking into

account the amount of educational cess levied by the Corporation.

Even if it leads to some kind of inconvenience of variation in



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valuation at frequent intervals that can be no consideration for not

giving full effect and meaning to the provisions of the Act of 1888

and the Rent Act. - Bombay Municipal Corporation , Appellant v.

The Life Insurance Corporation of India, Bombay, reported in AIR

1970 SC 1584 (FB).


1947), S.5(8) - 'Premises' - Lease of land having no building thereon,

for making construction for installing machines. Building constructed

on that land and machinery also installed. Whether same can be

termed as 'premises' under Rent Act?- Held. Yes.

11.1. So far the facts of the present case are concerned, the

lease had been granted to the Binny Company for installing ginning

and processing machines and admittedly a building was

constructed in which ginning and processing machines were

installed and godown was also constructed. Once a piece of land

which was agricultural in nature is put to non-agricultural use, it

shall be covered by the definition of 'premises' under Section 5(8)

of the Bombay Rent Act. - Nalanikant Ramadas, Gujjar v/s Tulasibai,

reported in AIR 1997 SC 404 (Five Judges).


1947), S.5(10) , S.12 and S.12(3)(a) - houses and rents - Fixation of

standard rent - Application for fixation of rent dismissed for non-

prosecution – Effect of.

12.1. Where a tenant does not prosecute an application for

fixation of standard rent and deliberately permits it to be dismissed

for non-prosecution it could be reasonably inferred that it was not a

bona fide application at all. Where in a case. it was admitted that



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the agreed rent was Rs. 30/- p. m.,. that would be the "standard

rent" as defined by Section 5 (10) of the Act. That was the rate at

which rent was payable. Non-prosecution of the application for

standard rent indicated that there was no real dispute regarding

the standard rent or permitted increases. In such a case, if the

provisions of Section 12 (3) (a) are not shown to be complied with,

the Court is bound to pass a decree for eviction.

12.2. The statutory protection can only be given in accordance

with the terms on which it is permissible. The Act certainly does not

confer a power upon the Court to excuse a violation of the

provisions of the Act by making wrong assumptions or on

compassionate grounds. The Court could not, therefore, exercise

what would be, in effect, a power to condone infringement of the

provisions of the Act.

12.3. A fixation of standard rent can only take place by means of

the specified procedure provided for it. In the case in question the

High Court seems to have accepted the erroneous view that

standard rent was actually fixed by the appellate Court for the first

time whereas what had happened was that the application for

fixation of standard rent had been dismissed for non-prosecution.

This was not "fixation" of standard rent. Hence, no question of

giving time to pay up arrears after a "fixation" of standard rent

arose in the case C.R. Appl. No. 67 of 1973, D/- 19-9-1975 (Guj),

Reversed.- Mistry Premjibhai Vithaldas v/s Ganeshbhai Keshavji,

reported in AIR 1977 SC 1707 (FB). Para Nos.10, 11 &13.


1947), S.5(10), S.7 - Whether standard rent can be altered and re-



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fixed if there is any structural alteration or change in the amenities?

Held- No.

13.1. Section 11(a) is intended to enable the Court, upon an

application in any suit or proceeding, to modify the standard rent as

a result of structural alteration or change in the amenities involving

further capital investment of the owner. However, demolition of a

building is not one such contingency contemplated by S. 11(a) of

the Act. - Municipal Corporation of Greater Mumbai v/s Kamla Mills

Ltd. Reported in AIR 2003 SC 2998, para No.36.


1947), S.5(11)(b) - lease - Lease of certain watan land by father of A

to R for storing timber - Death of father of A - R continued to be

tenants within S. 5 (11) - Determination of lease consequent on death

of father of A, not material.

14.1. Section 5 (11) (b) is clear that any person remaining, after

the determination of the lease, in possession, with or without the

assent of the landlord is also a tenant for the purposes of the Act.

The learned counsel argued that the determination of the lease

contemplated by Section 5 (11) (b) was determination by an act of

the landlord and not determination by the operation of the law. We

do not see any justification for so confining the meaning to be

given to the expression 'the determination of the lease' in Section 5

(11) of the Act. - Tavangowda Tamangowda Patil v/s Yellappa

Krishna Muchandni, reported in AIR 1980 SC 590.


1947), S.5(11) (c) - Whether the status of a member in the case of

tenant co-partnership housing society is that of a tenant within the



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meaning of S. 5(11) of the Rent Act 1947? Held- No.

15.1. As there is no relationship of landlord and tenant between

the Society and the member. - M/s. Anita Enterprises v/s Belfer Co-

op. Housing Society Ltd, reported AIR 2008 SC 746, para Nos.27 &

28.


1947), S.5(11) (c) & 28- Tenant of co-partnership housing society

inducting third person in his allotted accommodation. Whether such

transfer establishes relationship of landlord and tenant, between

member and third person?- Held- No.

16.1. Further held that The question regarding legality or

otherwise of the creation of tenancy right by the member of tenant

co-partnership society which amounts to transfer of interest of a

member in the property of the Society, can be decided by raising a

dispute before the Co-operative Court.- M/s. Anita Enterprises v/s

Belfer Co-op. Housing Society Ltd, reported AIR 2008 SC 746, para

Nos.33, 35 & 36.


1947), S.5(11)(c)(ii) and S.15 - Tenant of non-residential premises

continuing in occupation after contractual period is over - He cannot

bequeath his right of occupation by will in favour of person who was

not member of his family carrying on business at time of his death.

17.1. A person occupying a non-residential premises as a tenant

after the contractual period is over cannot bequeath his right to

occupy the property as a tenant under a Will in favour of a legatee

who is not a member of his family carrying on business, trade or

storage with him in the said premises at the time of his death



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under S. 5(11)(c)(ii) of the Act. There is no justification to saddle

the landlord with the liability to treat a stranger who is not referred

to in sub-clause (ii) of S. 5(11)(c) of the Act as a tenant on the basis

of a bequest made under a Will by the tenant.

17.2. It is significant that both sub-clauses (i) and(ii) of Cl.(c) of

sub-sec.(11) of S. 5 of the Act which deal with the devolution of the

right to tenancy on the death of a tenant in respect of residential

premises and premises let for business, trade or storage

respectively do not provide that the said right of tenancy can

devolve by means of testamentary disposition on a legatee who is

not referred to in the respective sub-clauses. It has, therefore, to be

understood that even the extended meaning given to the

expression 'tenant' by sub-sec. (11) of S. 5 of the Act does not

authorise the disposition of the right to the tenancy of the premises

governed by the Act under a Will. Ordinarily it is only an interest

that can be inherited that can be bequeathed. But the heritability of

a tenancy after the determination of the lease, which is protected

by the Act is restricted in the case of residential premises only to

the members of the tenant's family mentioned in sub-clause(i) of

Cl.(c) of S. 5(11) of the Act and in the case of premises let for

business, trade or usage to members belonging to the family of the

tenant carrying on business, trade or storage with the tenant in the

premises at the time of the death of the tenant as may continue

after his death to carry on the business, trade or storage as the

case may be in the said premises and as may be decided in default

of the agreement by the Court as provided in sub-cl.(ii) thereof.

When the statute has imposed such a restriction, it is not possible



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to say that the tenant can bequeath the right to such tenancy in

the case of premises let for business, trade or storage in favour of a

person not possessing the qualification referred to in S. 5(11)(c)(ii)

of the Act. It can also be seen that the words 'to assign or transfer

in any other manner his interest therein ' in S. 15(1) of the Act had

the effect of prohibiting the disposition of the tenancy right by a will

in the absence of a contract to the contrary.

17.3. Further, when the Legislature has restricted the right to the

tenancy of the premises let out for business, trade or storage to

any member of a tenant's family carrying on business, trade or

storage with the tenant at the time of his death it is not open to the

Court by judicial construction to extend the said right to persons

who are not members of the tenant's family who claim under

testamentary succession.

17.4. Bombay Rents, Hotel and Lodging House Rates Control Act

(57 of 1947), S.5(11) - Statutory tenancy - Whether statutory

tenancy which is personal to the tenant cannot be bequeathed at

all under a Will in favour of anybody. - Question left open. -

Bhavarlal Labhchand Shah v/s Kanaiyalal Nathalal Intawala,

reported in AIR 1986 SC 600.


1947), S.5(11)(c) - "Tenant" - Provision applies only to residential

premises and not to business premises - Tenant of business premises -

Member of his family cannot get protection under section. - Ganpat

Ladha v/s Sashikant Vishnu Shinde, reported in AIR 1978 Sc 955 (FB)

18.1. This ratio is overruled by Smt. Gian Devi Anand , Appellant

v. Jeevan Kumar, reported in Smt. Gian Devi Anand v/s Jeevan



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Kumar, reported in AIR 1985 SC 796 (Five Judges), wherein it is held

that Statutory tenancy in respect of commercial premises is

heritable and heirs of statutory tenant are entitled to same

protection against eviction as afforded to tenant under Act.


1947), S.5(11) (c), S.15(2) - tenancy - Validation of sub-tenancies by

S.15(2) - Scope - Sub-tenancy created by sub-tenant - Benefit of S.

15(2) if available.

19.1. Section 15(2) which raises the ban from all sub-letting

effected before 21-5-1959 provided the provisions of that sub-

section are fulfilled relates to sub-tenancies not permitted by

contract between the landlord and tenant and which would, but for

the said sub-s. (2), fall within the prohibition enacted in the

amended sub-section (1) of S. 15.

19.2. Upon the amendment of sub-s. (1) of S. 15 by the

Ordinance and by its related Act, the prohibition against sub-letting

did not operate in those cases where the sub-letting was permitted

by contract between the landlord and tenant. In all such cases, if

the landlord had permitted the tenant under a contract between

them to sublet the premises, no question would arise of a need to

validate those sub-tenancies. It is in this light that the scope of sub-

s. (2) of S. 15 has to be determined. The removal by sub-s. (2) of S.

15 of the prohibition is limited only to those sub-tenancies which

were created before May 21, 1959. Such a limitation would be

inappropriate to sub-tenancies permitted by contract which could

be created regardless of whether they were brought into existence

before May 21, 1959 or after that date. Also, the sub-tenancies



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covered by sub-s(2) of S. 15 would be regarded as valid only if the

sub-tenant had entered into possession before May 21, 1959 and

was continued in possession on that date. Such a requirement

would be wholly inconsistent in the case of sub-tenancies permitted

by contract. Inasmuch as sub-s. (2) of S. 15 specifically attaches

the condition that the sub-tenant should have been in possession

before the commencement of the Ordinance and should have

continued in possession on that date, it is apparent that such a

provision could be related only to illegal sub-tenants, that is to say

sub-tenants who were let in and given possession without any

contractual right conferred by the landlord on the tenant to do so.

19.3. When the partnership firm G, the tenant of the entire

building, had sublet a portion of a shop on the ground floor to M,

who sub-let it further to one T in the year 1952 and it was admitted

by the firm 'G' that 'M' was a lawful sub-tenant then in view of S.

5(15)(a), in respect of the further sub-tenancy M could be described

as tenant and 'T' as his sub-tenant. And if that is so, there could be

no reason why T's sub-tenancy should not be regarded as a valid

sub-tenancy inasmuch as it was created before May 21, 1959 and

he had entered into possession of the premises before that date

and was continuing in possession on that date. - Tota Singh v/s M/s.

Gold Field Leather Works, Bombay, reported in AIR 1985 SC 507

(FB).


1947), S.5(11) (c), S.13(1)(1) - Sons of tenant building a house,

whether tenant can be evicted on ground that she had acquired

alternative accommodation? - Held. No.-



21

20.1. On sons of tenant, who is their mother, building a house

the landlord cannot seek eviction of tenant on grounds having

acquired alternate accommodation. From the scheme of the

provision it is discernible that it is only when the tenant gets a right

to reside in a house other than the demised premises on the

happening of any one of the three alternatives mentioned therein,

namely, either by building or by acquiring vacant possession of or

by allotment of a house, that the landlord can seek recovery of

possession of the demised premises from the tenant. That apart,

even if the tenant first respondent and her sons, respondents 2 and

3, were let into possession of the suit premises about 30 years

before the institution of the suit but the first respondent alone was

the tenant and respondents 2 and 3 were there as members of her

family, they were, therefore, not tenants of the suit premises. The

definition of 'tenant' is too exhaustive to include any member of the

family residing with him. Such members of his family who were

residing with the tenant at the time of his death, or in their absence

any heir of the deceased tenant, as may be decided in default of

agreement by the Court, would become tenant only on his death.

The concurrent findings of the Courts below are that son,

respondents 2 and 3 built the house for which the first respondent

tenant did not contribute any money; she did not shift her

residence to the said house though she was visiting that house off

and on. Inasmuch as the first respondent tenant did not built any

house and respondents 2 and 3 are not the tenants, the first of the

three alternatives, referred to in S. 13(1) is not available to the

landlord to seek eviction of the first respondent tenant. - Anandi D.



22

Jadhav v/s Nirmala Ramchandra Kore, AIR 2000 SC 1386, para

Nos.5 & 8.


1947), S.5(11)(c) - Original tenant having two sons. On death of

original tenant rent bills were issued in name of his elder son and on

death of elder son rent bills were issued in name of his widow. No

division of premises and rent was not being paid separately by

younger son. Members of family of original tenant succeeded to

tenancy together. Suit filed for eviction. Widow of elder son impleaded

as tenant represented all tenants. Whether the decree passed in suit

for eviction is binding on all members of family covered by tenancy?-

Held. Yes.

21.1. Younger son claiming to be member of family residing with

original tenant at time of his death cannot resist execution of

decree. Moreso, when younger son was not residing in premises

with family of elder son. Therefore, there was no necessity to

implead appellant younger son as necessary party to suit for

eviction. - Ashok Chintaman Juker v/s Kishore Pandurang Mantri,

reported in AIR 2001 SC2251.


1947), S.5(18)(b), S.11(1)(c) - houses and rents - Fixation of standard

rent - Principle of apportionment - Applicability - Apportionment - What

is - How it has to be applied.

22.1. The principle of apportionment is not alien to the spirit and

scheme of the Act. It is applicable to the fixation of standard rent.

22.2. Apportionment - or equal distribution of the burden of rent

on every portion - is a rule of justice and good sense. If the



23

standard rent of a whole was a specific amount, it stands to reason

that the standard rent of a part or sub-division of that whole should

not ordinarily exceed that amount. Therefore, if the court feels that

for securing the ends of justice and giving effect to the provisions

and policy of the Act, it is reasonably necessary and feasible to

work out the standard rent by apportionment, it can legitimately do

so. This principle, however, is applicable where on the basic date,

that portion of which the standard rent is to be determined, had not

been let separately as one unit, but the whole, of which it is a part,

had been let on that date. Apportionment postulates that on

account of its having been let on the basic date, the whole had

acquired a standard rent which has to be allocated to smaller units

subsequently carved out of it.

22.3. True, that unlike the English Rent Control Act of 1920 or the

later English Acts, the (Bombay) Act does not expressly speak of

apportionment. But the language of its relevant provisions is elastic

enough to permit the fixation of standard rent on apportionment

basis. Section 11(1) gives a discretion to the Court to fix such

amount as standard rent as it "deems just", though in exercising

this discretion the Court has to pay due regard to (i) the provisions

of the Act and (ii) the circumstances of the case, and it is not to be

rigidly and indiscriminately applied.

22.4. Thus, if after the material date, the landlord had made

investments and improvements in the premises, it will be just and

reasonable to take that factor also into account and to give him a

fair return on such investments. Further, the Court must consider

other relevant circumstances, such as "size, accessibility, aspect,



24

and other physical advantages" enjoyed by the tenant of the

premises. Where after the basic date, the premises completely

change their identity, apportionment as a method of determining

just standard rent, loses its efficacy and may be abandoned

altogether. - Raja Bahadur Motilal Bombay Mills Ltd. v/s M/s.

Govind Ram Brothers (P) Ltd., reported in AIR 1974 SC 1708.


1947), S.6 - houses and rents - Houses and Rents - Premises let for

residence or business - Open land let for constructing building on it

intended to be used for residence or business is letting for residence

or for business.

23.1. Open land as it is, can be used for residence and can be

'premises let for residence' within the meaning of S. 6.

23.2. When open land is being leased not to be used for

residence or business in its condition of open land but to be used

for the purpose of residence or business after constructing

buildings thereon, the letting of the open land can still be called to

be letting for residence or business. - Mrs. Dossibai N. B.

Jeejeebhoy v/s Khemchand Gorumal, reported in AIR 1966 SC 1939

(FB).

24. Bombay Rents, Hotel and Lodging House Rates Control Act (57

of 1947), S.6 - houses and rents - Houses and Rents - Suit for

possession of land used for agricultural purposes - Court exercising

power under Act has no jurisdiction to entertain suit - Crucial date for

determining whether land is used for agricultural purposes is date on

which right conferred by Act is sought to be exercised.

24.1. The expression ''premises" in S. 5(8) of the Bombay Rents,



25

Hotel and Lodging House Rates (Control) Act 57 of 1947 does not

include premises used for agricultural purposes. By S. 6 of that Act

the provisions of Part II which relate to conditions in which orders in

ejectment may be made against tenants and other related matters

apply to premises let for education, business, trade or storage. It is

plain that the Court exercising power under Bombay Rents, Hotel

and Lodging House Rates (Control) Act, 1947, has no jurisdiction to

entertain a suit for possession of land used for agricultural

purposes. Again in ascertaining whether the land demised is used

for agricultural purposes, the crucial date is the date on which the

right conferred by the Act is sought to be exercised. Ratio laid down

in the case of Mst. Subhandra v. Narsaji Chenaji Marwadi, reported

in AIR 1966 SC 806 is followed. - Vasudev Dhanjibhai Modi v/s

Rajabhai Abdul Rehman, reported in AIR 1970 SC 1475 (FB).


1947), S.6(1) - houses and rents - Houses and Rents - Construction -

Lease of open land in suburban area of Bombay for constructing

"buildings of every description howsoever" - Lease is not for any of the

purposes set out in S. 6 (1).

25.1. Where a lease of open land situated in the Bombay

Suburban District was made for constructing "buildings of every

description howsoever" from time to time, the purpose for which

the land was demised clearly was for constructing buildings of any

description and not for constructing buildings for residence,

education, business, trade or storage. The land thus demised,

though 'premises' within the meaning of S. 5 (8), was not 'premises'

within the meaning of S. 6 (1), and therefore, S. 18 (1) did not



26

apply, ratio laid down in case of Mrs. Dossibai N. B Jeejeebhoy v/s

Khemchand Gorumal, reported in AIR 1966 SC 1939, Disting.

25.2. Properly construed, S. 6(1) must mean that in order that

Part II may apply the premises in question must be let out for the

purposes of residence etc. The application of that part cannot have

been intended to depend upon what a lessee may do or may not

do.

25.3. The fact that the lease permitted the lessees to take

construction loans from prospective tenants of the buildings to be

constructed by the lessees does not affect the purpose for which

the land was leased. - Osman Fakir Mohammed Divecha , Appellant

v. Ali Akbar Javed Sadakya, reported in AIR 1970 SC 1893 (FB).


1947), S.6 - Premises, let for education - Protection from eviction by

educational institutions - Premises let out on rent to club - Club

activities not showing the premises were let for education - Benefit of

Act cannot be claimed by club.

26.1. Where the premises were let out on rent to a club and the

activities of the Club were more in the nature of cultural activities

or recreational activities, inasmuch as they related fraternising

among the members by playing indoor or outdoor games or

otherwise, such activities cannot lead the conclusion that the

premises were let for purposes of education and consequently the

club was not entitled to the protection of the Act. - Haji Ismail Valid

Mohmad v/s Sports Club in the name of Union Sports Club,

reported in AIR 1992 SC 1855 (FB).




27

1947), S.11 - Default in payment of rent - Composite tenancy - Under

contract, property tax along with monthly rent is required to be paid

by tenant. Whether default in payment of rent at end of every

succeeding month does not convert monthly tenancy into yearly one.

- Held. No. - Ansuyaben Kantilal Bhatt v/s Rashiklal Manilal Shah,



1947), S.11(1)(e) - Standard rent - Application for fixation of -

Subsistence of pre-existing dispute is sine qua non for making

application.- Held. No.

28.1. There is no need for a pre-existing dispute to subsist before

invoking the jurisdiction of the Court under Section 11(1)(e) of the

Act. Filing an application for determination of the standard rent

itself is a dispute entitling the tenant to take the benefit of Section

12(3)(a). The dispute may arise in diverse forms.- Devkaran Nenshi

Tanna v/s Manharlal Nenshi, reported in AIR 1994 SC 2747, para

No.6.

28.2. Further held in para No.8 that :- Where the order fixing

standard rent was passed on basis of compromise reached between

the parties and it was clear from the order that the Court did not

apply its mind to the factum whether the terms agreed by the

parties are just and reasonable and whether it would be the

standard rent consistent with the provision of the Act, the tenant

would not be precluded from making an application for fixation of

standard rent again when the notice was issued by the landlord

demanding payment of the arrears of the standard rent. The Act is

a welfare legislation and parties cannot contract out of the statute



28

and the seal of approval of the Court does not super add its

sanctity, nor receive its legality or validity or sanctity without due

adjudication. The order should disclose the application of Court's

mind to the facts and then to the determination of the standard

rent on the basis of the terms, other evidence or records and the

consent of the parties is consistent with the Act and should record

its satisfaction.


1947), S.11(4) - Sick Industrial Companies (Special Provisions) Act (1

of 1986), S.22 - Eviction petition for non-payment of rent. Whether

same is maintainable against sick company? Held. Yes.

29.1. - Order under S. 11(4) of Rent Act can also be passed and

S. 22 of 1985 Act does not prevent such proceedings.- Gujarat

Steel Tube Co. Ltd. , Petitioner v. Virchandbhai B. Shah, reported in

AIR 1999 SC 3839, para Nos. 9 to 11.


1947), S.11(4) - houses and rents - Order to deposit arrears of rent -

Order directing that in default of deposit defences were to be struck

off – Validity.

30.1. On an application under S. 11 (4) by the landlord-plaintiff, a

notice was issued to the defendants and an order was made

requiring the defendants to deposit arrears of rent within a

stipulated period and to continue to deposit monthly rent. It was

further ordered that in default of the deposit the defences of the

defendants were to be struck off and the suit should be placed for

ex parte orders on the date fixed.

30.2. Held, the learned Judge of the High Court was wholly in



29

error in holding that because of the form of the order (inasmuch as

it used the words "defences to be struck off"). it was illegal and

without jurisdiction. Moreover, the order itself did not order the

defences to be struck off, it only fixed the date for striking out the

defences. So, till the expiry of the period given by that order for the

deposit of money, the question of striking out the defence did not

arise nor was it in fact struck out. Further, it is Sec. 11(4) and not

Section 12(3) (b) that would apply.

30.3. The phrase "defence struck off" or "defence struck out" is

not unknown in the sphere of law. Indeed it finds a place in Order

11 , Rule 21, C. P. C. The phrase is more advantageous to the

defendant, Even when a defence is struck off the defendant is

entitled to appear, cross- examine the plaintiff's witnesses and

submit that even on the basis of the evidence on behalf of the

plaintiff a decree cannot be passed against him, whereas if it is

ordered in accordance with Section 11 (4) trial he shall not be

entitled to appear in or defend the suit except with the leave of the

Court he is placed at a greater disadvantage. The use of the phrase

does not in any way affect the substance of the order. What the law

contemplates is not adoption or use of a formula; it looks at the

substance. - M/s. Paradise Industrial Corpn. , Appellants v. M/s. Kiln

Plastics Products, reported in AIR 1976 SC 309 (FB).


1947), S.12(1) - Houses and Rents - Termination of tenancy - Suit for

possession by landlord - Extension of part II of Act containing S. 12 to

area pending suit - Applicability of S. 12(1) to suit - Date from which it

applies - Right of landlord to get possession - "Landlord shall not be



30

entitled to recovery of possession" - Court cannot give decree for

possession.

31.1. Section 12(1) contained in Part II of Bombay Rents, Hotel

and Lodging House Rates Control Act, 1947 enacts a rule of

decision, and it says that a landlord is not entitled to possession if

the tenant pays or shows his readiness and willingness to pay

standard rent and to observe the other conditions of the tenancy.

The word tenant is defined in the Act to include not only a tenant,

whose tenancy subsists but also any person remaining, after the

determination of the lease, in possession with or without the assent

of the landlord. Thus, a statutory tenant is within the rule enacted

by S. 12(1) and entitled to its protection.

31.2. Sub-section (1) of section 12 contained in Part II of the Act

applies from the date on which Part II of the Act is extended to the

particular area by a notification issued under S. 6. The sub-section

says that a landlord shall not be entitled to the recovery of

possession of any premises so long as the tenant pays or is ready

and willing to pay the standard rent, etc. and observes and

performs the other conditions of the tenancy. In other words, no

decree can be passed granting possession to the landlord, if the

tenant fulfills the conditions above mentioned. The point of time

when the sub-section will operate is when the decree for recovery

of possession will have to be passed. Thus, the language of the

sub-section applies equally to suits pending when Part II comes into

force and those to be filed subsequently. The contention that the

operation of S. 12(1) is limited to suits filed after the Act comes into

force in a particular area cannot be accepted.



31

31.3. On the termination of tenancy by efflux of time the landlord

filed a suit on 25-4-1957 for possession of the premises. By a

notification issued on 16-8-1958, Part II of the Bombay Rents, Hotel

and Lodging, House Rates Control Act, 1947 was applied to the

area wherein the premises were situated. The tenant, having lost in

the trial Court and in the High Court on the ground that S. 12 of the

Act was prospective and did not apply to pending cases, appealed

to the S. C. - Shah Bhojraj Kuverji Oil Mills and Ginning Factory v/s

Subhash Chandra Yograj Sinha, reported in AIR 1961 SC 1596 (Five

judges).


1947), S.12(1), S.13, S.14, S.15 - houses and rents - Houses and Rents

- Person remaining in possession after determination of tenancy -

Becomes statutory tenant - He can remain in possession but cannot

enforce terms of original tenancy - Sub-lessee from a statutory tenant

under the Act acquires no right of tenant.

32.1. A person remaining in occupation of the premises let to him

after the determination of or expiry of the period of the tenancy is

commonly, though in law not accurately, called a statutory tenant.

Such a person is not a tenant at all, he has no estate or interest in

the premises occupied by him. He has merely the protection ofthe

statute in that he cannot be turned out so long as he pays, the

standard rent and permitted increases, if any, and performs the

other conditions of the tenancy. His right to remain in possession

after the determination of the contractual tenancy is personal.. it is

not capable of being transferred or assigned, and devolves on his

death only in the manner provided by the statute. The right of a



32

lessee from a landlord on the other hand is an estate or interest in

the premises and in the absence of a contract to the contrary is

transferable and the premises may be sublet by him. But with the

determination of the lease, unless the tenant acquires the right of a

tenant holding over, by acceptance of rent or by assent to his

continuing in possession by the landlord, the terms and conditions

of the lease are extinguished, and the rights of such a person

remaining in possession are governed by the statute alone. Section

12(1) of the Act 57 of 1947 merely recognises his right to remain in

possession so long as he pays or is ready and willing to pay the

standard rent and permitted increases and performs the other

conditions of the tenancy, but not the right to enforce the terms

and conditions of the original tenancy after it is determined.

Assuming that the tenant was entitled to sublet the premises under

the terms of the lease he could not, relying upon S. 12(1), exercise

the right to sublet granted under the lease after he became a

statutory tenant. - Anand Nivas Private Ltd. v/s Anandji Kalyanji's

Pedhi, reported in AIR 1965 SC 414 (FB).

32.2. Above referred ratio is distinguish in Damadilal and others,

Appellants v. Parashram, reported in AIR 1976 SC 2229 (FB) and

overruled in Om Wati Gaur v/s Jitendra Kumar, reported in AIR 2003

SC 229.


1947), S.12, S.13 - Civil P.C. (5 of 1908) , O.37 , R.2 (Bombay) - houses

and rents - Houses and Rents - R. 8 of the Rules made under the Act is

not ultra vires - Exercise of discretion under O. 37 R. 2 - Extent of.

33.1. Rule 8 of the Rules made under the Bombay Rents, Hotel



33

and Lodging House Rates (Control) Act, which provides that its

under the Act may be instituted in accordance with the procedure

laid down in O. 37 is not ultra vires and void. It is fallacious to

contend that under provisions of the Act the landlord is not entitled

to a decree as a matter of right; the Court has to consider the

position of the tenant and has a discretion to pass or not to pass a

decree and therefore to a suit governed by the Act the provisions of

O. 37 R. 2 C. P. C. (Bombay), which makes it incumbent on the

Court to pass a decree in circumstances coming within that sub-

rule, are inapplicable. - Ramkarandas Radhavallabh v/s

Bhagwandas Dwarkadas, reported in AIR 1965 SC 1144.


1947), S.12, S.13, S.14 - houses and rents - Houses and Rents - Scope

- Expression "is determined for any reason", meaning of - Interest of

tenant when comes to an end.

34.1. It is not correct to say that as soon as a notice determining

a contractual tenancy is given, the sub-tenant of the contractual

tenant who was there from before has to be deemed A tenant

under S. 14 from the date the notice expires.

34.2. The words "is determined for any reason" in the context of

the Act mean that where the interest of a tenant comes to an end

completely, the pre-existing sub-tenant may, if the conditions of S.

14 are satisfied, be deemed to be a tenant of the landlord.

34.3. The interest of a tenant who for purposes of S. 14 is a

contractual tenant comes to an end completely only when he is not

only no longer a contractual tenant but also when he has lost the

right to remain in possession which S. 12 has given to him and is no



34

longer even a statutory tenant. In other words S. 14 would come

into play in favour of the sub-tenant only after the tenancy of the

contractual tenants has been determined by notice and the

contractual tenant has been ordered to be ejected under S. 28 on

any of the grounds in S. 12 or S. 13. Till that event happens or till

he gives up the tenancy himself the interest of a tenant who may

be a contractual tenant, for purposes of S. 14, cannot be said to

have determined i.e. come to an end completely in order to give

rise to a tenancy between the pre-existing sub-tenant and the

landlord.- Hiralal Vallabbram v/s Sheth Knsturbhai Lalbhai, reported

in AIR 1967 SC 1853 (FB).


1947), S.12- Whether the plea that arrears prior to transfer of

disputed property could not be recovered as arrears of rent, the same

being a 'debt due', is sustainable?- Held. No.

35.1. As per the proviso to Section 109 of the Transfer of Property

Act the transferee is not entitled to arrears of rent due before the

transfer unless there is a contract to the contrary and, therefore,

the correct position of law is that a transferee is not entitled to

recover the arrears as rent for the property on transfer unless the

right to recover the arrears is also transferred. If right to recover

the arrears is assigned, then the transferee/landlord can recover

those arrears as rent and if not paid maintain a petition for eviction

under the rent laws for those arrears as well. - Sheikh Noor v/s

Sheikh G. S. Ibrahim, reported in AIR 2003 SC 4163, para Nos.10 &

18.




35

1947), S.12(1) - eviction - Suit for eviction on ground of breach of term

of lease - Whether under relevant clause duty to carry out repairs was

that of tenant or landlord – Interpretation.

36.1. Where the lessee covenants with lessor under the terms of

lease that he will keep the premises in as good condition as the

same were then in (reasonable wear and tear, and destruction or

damage by fire, riots, insurrection, at of God or tempest excepted)

and (except as aforesaid) deliver them up at the determination of

the tenancy to the lessor, it cannot be said that the term merely

amounts to a covenant for careful and reasonable use of the

property on the part of the tenant and nothing more. The clause,

imposes upon the tenant two obligations namely (a) to keep the

property in repair from time to time during the term and (b) to

restore it in repair, i. e. in the same good condition as he received

it, at the end of the term.

36.2. A covenant of this type contained in a lease has always

been construed by judicial decisions as casting a duty on the

tenant to prevent permissive waste by carrying out such repairs as

are necessary to keep and maintain the property in good condition

and tenantable repair during the whole term and restore it to the

lessor in the same condition at the end of the term.

36.3. Section 23 (1) of the Bombay Rent Act, 1947 would not be

attracted for under that provision the duty to keep the premises in

good and tenantable repair is cast on the landlord in the absence of

an agreement to the contrary by the tenant. Moreover, such a term

in the lease would clearly be consistent with the provisions of the

said Act. In these circumstances, if a finding of fact has been



36

recorded by the lower Courts on evidence that the deterioration

and damage caused to the suit property was not on account of

natural or reasonable wear and tear but was due to the negligence

in the up-keep and maintenance of the property on the part of the

tenant the tenant must be held to have committed a breach of the

term of the lease and the landlord would be entitled to recover

possession of the property from the tenant under the latter part of

S. 12 (1) of the Bombay Rent Act, 1947. - Merwanji Nanabhoy

Merchant v/s Union of India, reported in AIR 1979 SC 1309 (FB).

Para Nos. 7 & 8.


1947), S.12 - houses and rents - Houses and Rents - Scope and object

- Section - operates against landlord only after contractual tenancy is

determined in accordance with S. 111 T. P. Act - Suit for recovery of

possession under S. 12 - Nat maintainable unless tenancy is

determined and notice under S. 12 (2) is served. - Bhaiya Punjalal

Bhagwanddin v/s Dave Bhagwatprasad Prabhuprasad, reported in AIR

1963 SC 120 (FB).

37.1. Above referred ratio is impliedly overruled in the case of V.

Dhanapal Chettiar v/s Yesodai Ammal, reported in AIR 1979 SC

1745 (Seven Judges).


1947), S.12(1) and S.12(3)(b) - houses and rents - eviction - tenancy

- Houses and Rents - Suit by landlord against eviction of tenant -

Tenant in arrears of rent - During pendency of suit, tenant not paying

standard rent, nor was he ready or willing to pay - Instead, he claimed

that he was not liable to pay any amount - Tenant, held could not



37

claim protection from eviction. - Maganlal Chhotabhai Desai v/s

Chandrakant Motilal, reported in AIR 1969 SC 37 (FB). Para Nos. 10 &

11.


1947), S.12(1), S.12(3)(b) and S.11(3) - houses and rents - eviction -

Houses and Rents - Suit for eviction of tenant on ground of arrears for

a period of more than six months - Tenant though raising dispute as to

standard rent, making no application under S. 11 (3) - Cannot claim

protection under S. 12 (1) by merely offering to pay or even paying all

arrears due when court is about to pass decree - Tenant failing to pay

or deposit in court regularly amount of standard rent due after first

hearing, cannot get protection of S 12 (3) (b).

39.1. Where a suit for eviction is filed on the ground that the

tenant was in arrears for a period of more than 6 months and the

tenant although raising a dispute as to the standard rent or

permitted increases recoverable under the Act, makes no

application in terms of S. 11 (3) he cannot claim the protection of S.

12 (1) by merely offering to pay or even paying all arrears due from

him when the court is about to pass a decree against him. To be

within the protection of sub-s. (1) where he raises a dispute about

the standard rent payable, he must make an application to the

court under sub-s. (3) of S. 11 and thereafter pay or tender the

amount rent and permitted increases, if any, specified in the order

made by the Court. If he does not approach the court under S. 11

(3), it is not open to him thereafter to claim the protection of S. 12

(1).

39.2. Further, to be within the protection of S. 12 (3) (b) the



38

tenant must not only pay all the arrears due from him on the first

day of hearing of the suit, but he must thereafter continue to pay or

tender in court regularly the rent and the permitted increases till

the suit is finally decided. Therefore where after the first hearing of

the suit the tenant failed to pay or deposit in court regularly the

amount of standard rent which became due after that date and the

rent remained unpaid when the suit was disposed of, there was

default on the part of the tenant and he could not get the

protection of S. 12 (3) (b). - Shah Dhansukhlal Chhaganlal v/s

Dalichand Virchand Shroff, reported in AIR 1968 SC 1109 (FB).


1947), S.12(1), S.50 - houses and rents - appeal - Ejectment suit

under T.P. Act - Appeal therefrom pending when Act applied - Tenant

cannot get benefit of S.12 irrespective of S.50 - Section 50 is special

provision dealing with pending matters and it overrides general

provisions of S.12.

40.1. The proviso to S. 50 read with the separate paragraph

added thereto is an independent provision enacting a substantive

law of its own by way of providing for special savings. It has not

been added merely with a view to qualify or to create an exception

to what is contained in the main provision of S.50. That being the

true nature and scope of the proviso to S. 50, an appeal which

arose out of a decree passed in a ejectment suit filed under the

Transfer of Property Act and which was pending when Part II of the

Act was made applicable to area in which the suit property was

situate would be directly covered by the proviso read with the

separate paragraph added thereto and would be liable to be



39

decided and disposed of as if the Act had not been passed, that is

to say, had to be disposed of in accordance with the law that was

then applicable to it.

40.2. Either under the proviso as it originally stood or under the

new separate paragraph enacted by way of an amendment the

legislative intent was and is quite clear that only suits and original

proceedings between a landlord and a tenant which were pending

on the relevant date are required to be decided and disposed of by

applying the provisions of the 1947 Act while execution

proceedings and appeals arising out of decrees or orders passed

before the coming into operation of the 1947 Act are denied the

benefits of the provisions of the Act and have been directed to be

decided and disposed of as if this Act had not been passed, that is

to say, such execution proceedings and appeals would be

continued to be governed by and shall be disposed of in

accordance with the law that was then applicable to them. In other

words, it is clear that the proviso was and has been enacted to

provide for special savings which suggests that it has not been

introduced merely with a view to qualify or create exceptions to

what is contained in the substantive part of S.50. Secondly, the

Legislature while framing the 1947 Act was enacting certain

provisions for the benefit of tenants which conferred larger benefits

on them than were in fact conferred by the earlier enactments

which were repealed and therefore, the legislature thought it

advisable that in regard to pending suits and original proceedings

also in which the decrees and orders were not passed the

provisions of the 1947 Act should be made applicable. It is with this



40

intention that the proviso to S.50 has been enacted in the manner

it has been done. - Motiram Ghelabhai v/s Jagan Nagar, reported in

AIR 1985 SC 709.


1947), S.12(2) - houses and rents - Houses and Rents - Demand notice

is not invalid merely because it does not give breakup of the sum

which was claimed as due per month.

41.1. Thus where the tenant is in doubt or requires clarification in

respect of the sum which is claimed per month in the notice as due

it was held that he should have called for information on those

points from the landlord especially when he was sending replies

through a lawyer to the notices issued by the landlord. The mere

statement by the tenant in his reply to the notice that the claim

was excessive was not enough. It was clear from his conduct that

he was fully aware that the amount represented the standard rent

with the permitted increases under the Act. Under such

circumstances it cannot be held that there vas dispute between the

landlord and tenant regarding the amount of standard rent or

permitted increases so as to attract Section 12 (3) (b).

41.2. There is nothing in the Act necessitating landlord to give

first a notice under Section 10 or Section 10-C for permitted

increases and then a further notice under Section 12. It is enough

that the landlord charges the tenant a higher rate and makes a

demand at that rate. The date from which the demand would be

effective would not be the date of intimation". Thus it could not be

said that the question of tenant's being in default should have been

considered only for the period subsequent to that date. - Gauri



41

Shankar Chittarmal Gupta v/s Smt. Gangabai Tokersey, reported in

AIR 1971 SC 659.


of 1947), S.12(2) - Termination of tenancy - Notice to tenant - Service

of - Presumption as to - Notice to be sent as per provisions of S. 106 of

T.P. Act - Tenant, a Company - Notice sent by registered post in the

name of Company - Partner admitting that notice was sent on correct

address - Service of notice is fully in accordance with S. 106. - Kulkarni

Patterns Pvt. Ltd. v/s Vasant Baburao Ashtekar, reported in AIR 1992

SC 1097.


1947), S.12(2) - Termination of tenancy - Notice to tenant - Service of -

Presumption as to - Notice to be sent as per provisions of S. 106 of T.P.

Act - Tenant, a Company - Notice sent by registered post in the name

of Company - Partner admitting that notice was sent on correct

address - Service of notice is fully in accordance with S. 106. - Kulkarni

Patterns Pvt. Ltd. v/s Vasant Baburao Ashtekar, reported in AIR 1992

SC 1097.


1947), S.12(2) , S.11 , S.10 - Whether it is open for tenant to raise

dispute regarding the permitted increases during pendency of eviction

petition – Held. No.

44.1. Under S. 10 the tenant is bound to pay to the landlord the

increase in rate, cess charges, tax, land assessment, ground rent or

any other levy. The amount of increase, the tenant is bound to pay,

has to be in the same proportion as the rent payable by him bears

to the total amount of such rate, cess, charges, tax, land



42

assessment, ground rent or any other levy. Section 11 gives the

Court the power to fix the standard rent and/or the amount of the

permitted increases. It has to be noted that under S. 11(1) the

Court may fix the standard rent either upon an application made to

it for that purpose or in any suit or proceeding. Thus the dispute

regarding standard rent need not necessarily be by way of an

application. However, under sub-sections (2) and (3) of S. 11 if

there is any dispute between the landlord and the tenant regarding

the amount of permitted increases, it can be decided by the Court

only on an application made by the tenant who has received a

notice from his landlord. Thus in a suit for ejectment it would not be

open for the tenant to raise a dispute regarding the permitted

increases. If on receipt of a notice the tenant has either not paid

the amount of the permitted increase and not raised a dispute by

filing an application then, by virtue of Sections 12(2) and (3), the

landlord would be entitled to a decree for eviction. - Laxman Jiwaba

Baherwade v/s Bapurao Dodappa Tandale AIR 2002 SC 3266, para

No.6.


1947), S.12(3) , Cl.(a) and Cl.(b) - houses and rents - Houses and

Rents - Dispute about amount of standard rent - Final order of

standard rent by Small Cause Court Tenant and landlord both

questioning amount of standard rent by revision petitions - Dispute

cannot be said to have come to end - Case will be governed not by Cl.

(a) but by Cl. (b).

45.1. Eviction under Cl. (a) is made to depend upon several

conditions. One such condition is that there should be no dispute



43

regarding the amount of standard rent. Clause (b) comprehends all

cases other than those falling within Cl. (a) and a case in which

there is a dispute about the standard rent must obviously fall not in

Cl. (a) but in Cl. (b).

45.2. Where, though the final order of standard rent is passed by

the Court of Small Causes, neither the landlord nor the tenant

accepts the determination, but each side questions the amount by

filing revision petitions, particularly the landlord files one revision

after another to get the amount increased, it would be strange for

him to claim that there was no dispute subsisting. The case will be

governed not by Cl. (a) but by Cl. (b). - Jashwantrai Malukchand v/s

Anandilal Bapalal, reported in AIR 1965 SC 1419 (FB).


1947), S.12(3)(a) - eviction - Houses and Rents - "May'' in expression

"Court may pass a decree for eviction'' has a mandatory content -

Court is bound to pass decree in ejectment if conditions of the clause

are fulfilled.

46.1. The clause deals with cases not falling within cl. (3) (a) i.e.

cases (i) in which rent is not payable by the month, (ii) in which

there is a dispute regarding the standard rent and permitted

increases, (iii) in which rent is not due for six months or more. In

these cases the tenant may claim protection by paying of or

tendering in Court on the first day of the hearing of the suit or such

other date as the Court may fix the standard rent and permitted

increases and continuing to pay or tender in Court regularly such

rent and permitted increases till the suit is finally decided and also

by paying costs of the suit as directed by the Court. What the



44

tenant has to pay or tender in Court to comply with the conditions

of cl. (b) of sub-s. (3) is standard rent and permitted increases, and

the Court has under cl. (b) of sub-s. (1) merely the power to fix the

date of payment or tender, and not the rate at which the standard

rent is to be paid. Power to fix the standard rent of premises is

exercisable under S. 11 (1) alone. To bring his claim within S. 12 (3)

(b) the tenant must pay or tender the standard rent and permitted

increases on or before the first day of hearing, or on or before such

other date as the Court fixes, and also costs of the suit as may be

directed by the Court. It may be noticed that the statute imposes

upon the tenant obligation to pay or deposit the amount of costs if

the Court so directs, and not otherwise. - Vora Abbasbhai

Alimahomed v/s Jaji Gulamnabi Haji Safibhai, reported in AIR 1964

SC 1341 (FB).


1947) as amended by Act 61 of 1953, S.12(3)(a) - houses and rents -

Houses and Rents - Notice referred to in S.12(3)(a) refers to notice

under S.13(2) - Suit for ejectment after amendment - Notice served on

tenant-No payment of arrears of rent made -Decree for ejectment

must be passed.

47.1. What S.12(3)(a) requires is that in cases where there is no

dispute between the landlord and the tenant regarding the amount

of standard rent or permitted increases, if the landlord is able to

show that the tenant is in arrears for a period of six months or more

and the said arrears continued in spite of the fact that a notice was

served on him before the institution of the suit and no payment

was made within a month thereafter, the landlord is entitle to get a



45

decree for ejectment against the tenant. It is true that S. 12 (3) (a)

refers to a notice, but in terms, it refers to a notice served by the

landlord as required by Section 12 (2). Section 12 (2) never

required the landlord to state to the tenant what the consequences

would he if the tenant neglected to pay the arrears demanded from

him/her by the notice. Therefore, if the notice served by the

landlord on the tenant prior to the institution of the suit is in order

and it is shown that the arrears have not been paid as required,

then S. 12 (2) has been complied with, and it is on that footing that

the case between the parties has to be tried under S. 12 (3) (a). If

notice has been served as required by S. 12 (2) and the tenant is

shown to have neglected to comply with the notice until the

expiration of one month thereafter, S. 12 (2) satisfied and S. 12 (3)

(a) comes into operation.

47.2. Provisions of S. 12 (3) (a) do not confer any vested right as

such on the tenant. What S. 12 (3) (a) provided was that a decree

shall not be passed in favour of the landlord in case the tenant pays

or tenders in Court the standard rent at the hearing of the suit. This

provision cannot prima facie be said to confer any right or vested

right on the tenant. But even if the tenant had a vested right to pay

the money in Court at the hearing of the suit, that consideration

cannot alter the plain effect of the words used in S. 12 (3) (a).

Where the suit was filed after the amended section came into force.

clearly the amended provision applies to the suit and governs the

decision of the dispute between the Parties. If that is so the plain

meaning of S. 12 (3) (a) is that if a notice is served on the tenant

and he has not made the payment as required within the time



46

specified in S.12 (3) (a), the Court is bound to pass a decree for

eviction against the tenant. Vasumatiben Gaurishankar Bhatt v/s

Naviram Manchharam Vora, reported in AIR 1967 SC 405.


1947), S.12(3)(a) (as it stood before amendment of 1963), (1) and (2)

- tenancy - Houses and Rents - On conditions f sub-s. (3) (a) being

satisfied, tenant by tendering arrears of rent after expiry of one month

from service of notice under sub-s. (2) cannot claim any protection

from eviction under sub-s. (1) and it is immaterial whether tender was

made before or after institution of suit - In a case falling within sub-s.

(3) (a), tenant must be dealt with under special provisions of sub-s. (3)

(a) and he cannot claim any protection under general provisions of

sub -s. (1).

48.1. .If the conditions of sub-s. (3) (a) are satisfied, the tenant

cannot claim any protection from eviction under the Act. By

tendering the arrears of rent after the expiry of one mouth from the

service of the notice under sub-s. (2), he cannot claim the

protection under sub-s. (1). It is immaterial whether the tender was

made before or after the institution of the suit. In a case falling

within sub-s. (3) (a), the tenant must be dealt with under the

special provisions of sub-s. (3) (a) and he cannot claim any

protection from eviction under the general provisions of sub-s. (1).

48.2. The landlord is vested with the right to recover possession

of the premises if the rent is in arrears for a period of six months or

more "the tenant neglects to make payment thereof until the

expiration of the period of one month after notice referred to in

sub-s. (2)", and the other conditions of sub-s. (3) are satisfied. This



47

right cannot be defeated by showing that the tenant was ready and

willing to pay the arrears of rent after the default, but before the

institution of the suit. In effect, the appellant asks us to rewrite the

sections and to substitute in it the following conditions: ''the tenant

neglects to make payment thereof until the date of the institution

of the suit.'' It is not possible to rewrite the section in the manner

suggested by the appellant. - Mrs. Manorama S. Masurekar v/s Mrs.

Dhanlaxmi G. Shah, reported in AIR 1967 SC 1078 (FB).


1947), S.12(3)(a) and S.12(3)(b) and S.11(3) and S.11(4) - houses and

rents - tenancy - Notice of termination of tenancy on ground of arrears

of rent - Dispute as to standard rent has to be raised latest before

expiry of one month after service of notice.

49.1. In order to avoid the operation of S 12. (3) (a) of the Act the

dispute in regard to standard rent or permitted increases must be

raised at the latest before the expiry of one month from the date of

service of notice under Section 12 (2) of the Act and it is not

enough to raise a dispute for the first time in written statement. AIR

1964 Guj 9 and (1966) 7 Guj LR 945, Approved. AIR 1964 Guj 9 held

not overruled by 1964 SC 1341; C. R. A. No. 1353 of AIR 1970, D/-

22-12-19670 (Guj), Affirmed. (Paras 19 , 20 , 21 , 22)

49.2. The view that disputing within one month of the service of

the notice terminating the tenancy is one mode of raising a dispute

and there is another mode of raising the dispute at any stage of the

suit nullifies the provisions contained in Section 12 and Explanation

thereto and confers a right on the tenant where the legislation does

not contemplate such a right Spl. civil Appln. No. 859 of 1967, D/-



48

31-3-1971 (Bom), Reversed.

49.3. The provisions in Section 11 (3) of the Act deal with orders

which may be passed by the Court during the pendency of the

application disputing the rent. Provisions in Section 11 (4) of the Act

deal with orders which may be passed consequent upon dispute as

to rent. It is only when an application disputing rent is made within

the time contemplated by Explanation I to Sec. 12 of the Act that

the provisions in subsections (3) and (4) of Section 11 are

attracted.- Harbanslal Jagmohandas v/s Prabhudas Shivlal, reported

in AIR 1976 SC 2005 (FB).


of 1947), S.12(3)(b) - Eviction suit under Rent Control Act -

Compromise decree - Decree not in violation of Act - Decree is valid.

50.1. Where an eviction suit under the Bombay Rents, Hotel and

Lodging House Rates Control Act, 1947, was disposed of on

compromise between the parties, the tenant having either

expressly or impliedly suffered a decree for eviction as being liable

to be evicted in accordance with S. 12 (3) (b) of the Act. and there

was abundant intrinsic material in the compromise itself to indicate

that the decree passed upon its basis was not in violation of the Act

but was in accordance with it, the compromise decree was not a

nullity and could be executed on non-compliance. While recording

the compromise under Order XXIII Rule 3 of the Code, it is not

necessary for the Court to say in express terms in the order that it

was satisfied that the compromise was a lawful one. It will be

presumed to have done so, unless the contrary is shown. -

Suleman Noormohamed v/s Umarbhai Janubhai, reported in AIR



49

1978 SC 952. Para Nos. 6 to 8.


1947), S.12(3)(a) - eviction - Eviction - Readiness and willingness to

pay - Meaning of.

51.1. The readiness and the willingness of the tenant to pay

could be found only if he had complied with the provisions of the

Act. The Act does not cover the case of a person who is unable to

pay owing to want of means but is otherwise "ready and willing".

Such a case is no doubt a hard one, but, unfortunately, it does not

enable Courts to make a special law for such hard cases which fall

outside the statutory protection. - Mistry Premjibhai Vithaldas v/s

Ganeshbhai Keshavji, reported in AIR 1977 SC 1707 (FB). Para

No.14.


1947), S.12(3)(a) and Explanation 3 (as inserted in 1975 in

Maharastra) - Water charges paid by tenant - Right to adjust it against

rent by tenant – this benefit was introduced in 1975, whether tenant

can claim such benefit in pending eviction proceedings?- Held- Yes.

52.1. In 1975 Explanation 3 to S.12 was introduced giving right to

the tenant to adjust water charges paid by him against rent. The

plea of adjustment in the light of the provisions introduced by Act

No. LI of 1975 was pressed before he Appellate Court by bringing to

its notice the decrees passed in the summary suits filed by the

Tenants' Association against the landlords. The plea appeal

however was dismissed. In appeal before Supreme Court the

tenant-appellants submitted that the benefit of the amended

provisions of law which were brought in force and became available



50

for the benefit of the tenants during the pendency of the cases

should not have been denied to the tenants. The question that

arises is whether Act No. LI of 1975 insofar as it amends S. 12 of

Act No. 57 of 1947 can be said to be retrospective in operation. -

Ramji Purshottam v/s Laxmanbhai D. Kurlawala, reported in AIR

2004 SC 4010.


1947), S.12(3) (as substituted vide Maharahstra Act 18 of 1987) -

Whether the first date of hearing can be stretched beyond date before

issues are framed in suit – Held. No.

53.1. Words 'such other date as Court may fix' occurring in S.

12(3), do not include date fixed by appellate Court in terms of S.

107 of Civil P.C. and if Tenant fails to deposit arrears of rent before

trial Court on the first date of hearing, tenant Cannot take

advantage of S. 12(3) at appellate stage. - Vasant Ganesh Damle

v/s Shrikant Trimbak Datar, reported in AIR 2002 SC 1237.


1947), S.12(3)(a) -”Arrears of rent' - Release of all rights, title and

interest in property in dispute in favour of co-owner. Assignment of

rent mentioned in deed. Assignee not entitled to rent before

assignment. Rent due before assignment could not constitute arrears

of rent and it was merely actionable claim. - N. M. Engineer v/s

Narendra Singh Virdi, reported in AIR 1995 SC 448.


1947), S.12(3)(a) , S.12(3)(b) , S.11(3) -Eviction - Tenant disputing

increase in standard rent and permitted increases claimed in notice

but paid all arrears in Court within one month from date of notice and,



51

thereafter, continued to deposit rent regularly. Whether in such

situation, an application under S. 11(3) for fixation of standard rent

need to be filed within one month from receipt of notice.?- Held. No.

55.1. The Act prescribes issuance of a notice determining the

tenancy for failure on the part of the tenant to pay the arrears of

standard rent or permitted increases for six months and more and

for delivery of possession. In case the tenant disputes the standard

rent or permitted increases claimed in the notice, the tenant is

enjoined under S. 12(3)(a) to dispute the correctness thereof and to

plead prevailing one by issuing reply notice within one month from

the date of its receipt. In that situation it is manifest that the

landlord elected his statutory right to determine the tenancy on

account of arrears for a period of six months or more. The landlord

put the tenant on notice of his negligence and to make payment

thereof within one month from the date of the receipt of the notice

and on disputation is enjoined to seek remedy under S. 11(3) for

determination of the standard rent or permitted increases. If he

fails to dispute and omits to pay the arrears within one month from

the date of the receipt of the notice, he became liable to be evicted

under S. 12 (3)(a) of the Act. Admittedly the statute does not

prescribe any period of limitation u/S. 11(3) to lay the application

for fixation of standard rent or permitted increases. Therefore the

application under S. 11(3) for fixation of standard rent within one

month from the date of the receipt of the notice. But expeditious

action is called for to prove the bona fides of the tenants disputing

the right of the landlord in the claim of standard rent or permitted

increases. Therefore, where the tenant has paid all the arrears on



52

the first day of the appearance has been continuing to deposit the

rent regularly, he did not commit any default to pay the rent and he

is entitled to benefit of S. 12(3)(b) and merely because the tenant

did not file application under S. 11(3) for fixation of standard rent

within one month from receipt of notice, he cannot be held liable to

be evicted. - Ibrahim Abdulrahim Shaikh v/s Krishnamorari Sripatlal

Agarwal, reported in AIR 1994 SC 1609, para Nos. 3 & 4.


1947), S.12(3)(a) - Suit for eviction - Claim for permitted increases.

Rent would not cease to be payable every month on ground that

permitted increases were payable on year to year basis by landlord to

authorities especially when claim for permitted increases was for

period of about 3 years. - Chase Bright Steel Limited v/s Shantaram

Shankar Saswant, reported in AIR 1994 SC 2114.


1947), S.12 (3) (a) and 13 (1) (g) - Where a suit for eviction was filed

under Bombay Rent Act on the ground contained in Ss. 12(3)(a) and

13(1)(g), i.e. on the ground of non-payment of rent and on the ground

of bona fide personal requirement and in the terms of compromise on

which decree for eviction was passed there was an implied admission

by the tenant of the grounds contained in S. 12(3)(a) as well as S.

13(1)(g), the decree passed can be said to be a nullity and not

executable. - Held. No.

57.1. Further held that in a suit for eviction on the ground of

bona fide personal requirement the landlord is not supposed to

have pleaded his own comparative hardship in the plaint itself. S.

13(2) comes into play at the stage when the Court is satisfied that



53

the ground contained in Cl. (g) of sub-sec. (1) of S. 13 has been

made out. It is at that stage that the Court has to examine the

question of comparative hardship. It is thus not necessary to plead

in the plaint itself. Often the parties at the stage of recording of

evidence of bona fide personal requirement also lead evidence as

to the comparative hardship of the landlord or the tenant. But such

averments are not required to be pleaded in the plaint itself to give

cause of action to the landlord to enable him to file a suit for

eviction of the tenant on the ground of his bona fide personal

requirement.- Hiralal Moolchand Doshi , Appellant v. Barot Raman

Lal Ranchhoddas, reported in AIR 1993 SC 1449.


1947), S.12(3)(b) - eviction - Suit for eviction - Arrears of rent -

Protection from eviction on deposit arrears of rent "regularly" in Court

- Expression "regularly" does not mean with exact or mathematical

punctuality.

58.1. To take advantage of protection from eviction under S.

12(3) (b) of the Act it cannot be said that exact or mathematical

punctuality was required in the deposit of rent by a tenant. In the

present case, the tenant had been depositing the rents in Court for

two or three months at a time. There were a few defaults

committed by the tenant in the sense that in respect of the first

month to which the deposit relates, there was some delay

amounting to from two or three days upto a maximum of 23 days.

But, on the other hand, the rent for most of the months had been

deposited in advance. In these circumstances, the rent could be

said to have been deposited by the tenant with reasonable



54

punctuality. Hence the tenant can be regarded as having deposited

the rent "regulary" as contemplated in cl. (b) of sub-sec. (3) of S. 12

of the Act so as to claim protection from eviction. - Mohan Laxman

Hede , Appellant v. Noormohamed Adam Shaikh, reported in AIR

1988 SC 1111 (FB).


1947), S.12(3) - Eviction - Arrears of rent - Tenant neglecting to make

payment until the expiration of period of one months notice under S.

12(2) - Court can pass the decree for eviction.

59.1. Sub-section (3)(a) of Section 12 categorically provided that

where the rent was payable by the month and there was no dispute

regarding the amount of standard rent or permitted increases, if

such rent or increases were in arrears for a period of six months or

more and the tenant neglected to make payment thereof until the

expiration of the period of one month after notice referred to in

sub-section (2), the Court shall pass a decree for eviction in any

such suit for recovery of possession. In the instant case the rent

was payable month by month. There was no dispute regarding the

amount of standard rent or permitted increases. Such rent or

increases were in arrears for a period of six months or more. The

tenant has neglected to make payment until the expiration of the

period of one month after notice referred to in sub-section (2). The

Court was therefore bound to pass a decree for eviction. Jaywant S.

Kulkarni v/s Minochar Dosabhai Shroff, reported in AIR 1988 SC

1817 (FB).


1947), S.12(3)(a) - Arrears of rent - Transfer of lease hold premises -



55

Rent sent to persons named in letter by landlord to tenant directing

him to pay rent to those persons. Refusal of 'rent' by them. Notice by

advocate on behalf of purchaser landlord after two years of transfer to

tenant demanding arrears of rent. Notice stating that rent be sent to

purchaser landlord meaning thereby that advocate was not authorised

to receive rent - Tenant however, instead of taking risk as in previous

case sending rent to advocate. Whether in such circumstances same

can be termed as legal tender of amount of arrears of rent. -held. Yes.-

Mahendra Raghunathdas Gupta v/s Vishwanath Bhikaji Mogul,



1947), S.12(3)(b) - houses and rents - Payment of rent and permitted

increases 'regularly' during pendency of suit or appeal - Term

'regularly' is mandatory and not directory - In case of monthly tenancy

Court has no discretion to treat payments made at irregular intervals

as sufficient compliance with Cl.(b).

61.1. The above enunciation, clarifies beyond doubt that the

provisions of clause (b) of Section 12 (3) are mandatory, and must

be strictly complied with by the tenant during the pendency of the

suit or appeal if the landlord's claim for eviction on the ground of

default in payment of rent is to be defeated. The word "regularly" in

clause (b) of Section 12 (3) has a significance of its own. It enjoins a

payment or tender characterised by reasonable punctuality, that is

to say, one made at regular times or intervals. The regularity

contemplated may not be a punctuality, of clock like precision and

exactitude, but it must reasonably conform with substantial

proximity to the sequence of times or intervals at which the rent



56

falls due. Thus, where the rent is payable by the month, the tenant

must, if he wants to avail of the benefit of the latter part of cl. (b),

tender or pay it every month as it falls due, or at his discretion in

advance. If he persistently defaults during the pendency of the suit

or appeal in paying the rent, such as where he pays it at irregular

intervals of 2 or 3 or 4 months - as is the case before us - the Court

has no discretion to treat what were manifestly irregular payments,

as substantial compliance with the mandate of this clause

irrespective of the fact that by the time the judgment was

pronounced all the arrears had been cleared by the tenant. -

Mranalini B. Shah v/s Bapalal Mohanlal Shah, reported in AIR 1980

SC 954.


1947), S.12(3)(b) -Eviction - Validity - Part of land demised for keeping

or grazing cattle. Rent note containing the term, stating that tenant

has measured land and he will not use land lying beyond said limits

and he will put up wire fencing demarcating demised land. Term

constitutes condition of tenancy and not personal obligation of tenant.

It is an obligation on him cast in his capacity as tenant. Tenant

committing breach of term and encroaching upon adjacent land of

landlord – Whether he is liable for eviction.- Held. Yes. - Patel

Chandulal Trikamlal v/s Rabri Prabhat Harji, reported in AIR 1996 Sc

532.


1947), S.12(3)(b) - houses and rents - Tenant not observing conditions

of the section - Not entitled to its protection.

63.1. When the tenant does not fulfill the conditions as required



57

under S. 12 (3) (b), he cannot claim protection under Section 12 (3)

(b). The conditions specified in S. 12 (3) (b) will have to be strictly

observed by the tenant if he wants to avail himself of the benefits

provided under the section. The persistent default of the tenant on

various occasions and his clear statement that he was not in a

position to pay the arrears, would exclude any relief under S. 12 (3)

(b). AIR 1978 SC 955, Rel. on. - Jamnadas Dharamdas v/s Dr. J.

Joseph Farrei, reported in AIR 1980 SC 1605 (FB), para Nos. 11 &

12.


1947), S.13 - Is it open to a Court to take into consideration any

subsequent event while dealing with the matters relating to

relationship of landlord and tenant governed by law?- Held. Yes.

64.1. It is open to a Court to take into consideration any

subsequent event while dealing with the matters relating to

relationship of landlord and tenant governed by law enacted in that

regard for passing the appropriate orders. Hence, when the tenant

took possession of accommodation acquired by him during the

pendency of the suit filed by the landlord and therefore in law the

tenant had acquired vacant accommodation, the tenant made

himself liable to be evicted from the premises. - Vishwasrao

Dadasaheb v/s Shankarrao D. Kalyankar,reported in AIR 2000 SC

3613, para No.2.


1947), S.13- Companies Act (1 of 1956), S.468, S.446(3)- Liquidation

proceedings-"Tenancy rights" of liquidated Company-May not be

assets for liquidation proceedings - Words and phrases -"Tenancy



58

rights" of liquidated Company may not be termed as assets for

liquidation proceedings but in tenanted premises of liquidated

Company, Liquidator is entitled to plead that he requires the premises

for storing books and taking steps for revival of liquidated Company

and they can be factors relevant for liquidator's continued possession.

- Smt. Nirmala R. Bafna/Kershi Shivax Cambatta v/s Khandesh

Spinning and Weaving Mills Co. Ltd., reported in AIR 1993 SC 1380

(FB), para Nos. 18 to 23.


1947), S.13 - eviction - Death of tenant - Widow and two sons left

behind - Suit filed by landlord for eviction on ground of bona fide

requirement and default in payment of rent - One of sons (respondent)

of tenant not impleaded - Ex parte decree passed in favour of landlord

- Ex parte decree obtained against mother and brother is not binding

against respondent - Decree cannot be kept alive against two other

tenants - Possession could not be given to respondent exclusively - Ex

parte decree set aside with direction to implead respondent as party

to suit. - Textile Association (India) Bombay Unit v/s Balmohan Gopal

Kurup, reported in AIR 1990 SC 2053 (FB).


1947), S.13 - Eviction suit - Bona fide requirement of building for

personal occupation. Petition came up for hearing after lapse of 31

years from date of filing of suit. Landlord 54 years of age then by now

87 years. Four unmarried daughters already been married. Need of

landlord to set up business cannot be said to be subsisting. His son

who was 24 years of age going to retire after four and half years. On

his filing petition and satisfying need for setting up his business, order



59

of eviction is can be passed?-Held. Yes. - Ansuyaben Kantilal Bhatt v/s

Rashiklal Manilal Shah, reported in AIR 1997 SC 2510.


1947) (as amended in 1973), S.13, S.15 - Bombay Rents, Hotel and

Lodging House Rates Control Act (57 of 1947) (as amended in 1973),

S.13, S.15.

68.1. Where the liquidator of the Company, on its being wound

up, took the possession of the premises of the company and

subsequently by the order of the High Court entered into a

caretaker's agreement with 'X', and gave possession of the

premises to him on compensation and on terms and conditions set

out in the agreement, though the business of the Company came to

a standstill, the moment it was ordered to be wound up, and it was

not the Liquidator's case that he was carrying on business of the

Company with the permission of the Court under sec. 457, the High

Court could not authorise the liquidator to enter into such an

agreement and therefore the order of the High Court was liable to

be set aside as it was wholly impermissible under the Rent Act. The

possession of the premises ordered to be handed over to the

landlord. - Ravindra Ishwardas Sethna v/s Official Liquidator, High

Court, Bombay, reported in AIR 1983 SC 1061.


1947), S.13, S.14 - Sub-tenant inducted into premises before 1973

and, therefore, he became direct tenant from date of determination of

tenancy of main tenant. Sub-tenant being in lawful possession,

whether such Sub-tenant is liable to eviction for default in payment of

rent by main tenant. - Held. No.



60

69.1. When Section 14 of the Act uses the expression "subject to

the provisions of this Act" sub-tenant be deemed to become tenant

on same terms and conditions as he would have held from tenant if

tenancy had continued, it does not merely mean that sub-tenant

would become subject to the provisions of the Act after he becomes

direct tenant under the landlord on the determination of the

tenancy of the main tenant. What this expression means is that a

sub-tenant cannot become a direct tenant in all circumstances, i.e.,

on all grounds of eviction against the main tenant but that would

depend upon the nature of the ground of eviction as may be

advanced and proved by the landlord. - Anandram Chandanmal

Munot v/s Bansilal Chunilal Kabra, reported in AIR 2002 SC 288,

para No.21.

70. Bombay Rents, Hotel and Lodging House Rates control Act (57 of

1947), S.13 - Transfer of Property Act (4 of 1882) , S.108(h)- houses

and rents - lease - Houses and Rents - Lease of land - Construction of

building by lessee - Rights of lesser.

70.1. On May 23, 1927, the appellants as trustees of the

Mankeshwar Temple, executed a registered lease, in favour of the

respondent, whereby they demised a parcel of land. The lease was

for twenty-one years. The rent reserved was Rs. 50 per month.

Under the terms of the lease the lessee had to construct within six

months from the date of the lease a double storied building

consisting of shops on the ground floor and residential rooms on

the upper floor. The construction had to be to the satisfaction of the

lessors engineers. The building had to be insured in the joint names

of the lessors and the lessee with an insurance firm approved by



61

the lessors. On the termination of the lease either at the end of

twenty-one years or earlier, the lessee was to surrender and yield

up the demised premises including the building with its fixtures and

appurtenances to the lessors without any compensation for the

same. On May 14, 1948, shortly before the lease was to expire, the

appellants gave notice to the respondent to deliver possession of

the demised premises and the building on the expiry of the lease,

that is to say, on May 22, 1948.

70.2. Held that the period of the lease having expired and the

respondent having been given notice to quit, he was bound to

vacate the demised premises unless he was protected by the

provisions of Act 57 of 1947. Land used for non-agricultural

purposes is "premises" under the Act. Although the period of the

lease had expired the respondent continued to remain in

possession without the assent of the lessors. Under the Act he

would, therefore, be tenant of the land within the meaning of that

expression as defined in the Act. So far as the land demised by the

lease was concerned the respondent could not be evicted so long

as he complied with the provisions of the Act and the lessors, as

landlords, were unable to resort to any of the provisions of S. 13 of

the Act to evict the respondent from the land,. Although under S.

108 of the T. P. Act the lessee had the right to remove the building

by the contract he had agreed to hand over the same to the lessors

without the right to receive compensation at the end of the lease,

the matter being entirely one of contract between the parties. Such

a contract, however, did not transfer the ownership in the building

to the lessors while the lease subsisted. The provisions of the Act



62

do not provide for the continuation of a lease beyond the specified

period stated therein. All that the Act does is to give to the person

who continues to remain in possession of the land, although the

period of the lease had come to an end. The status of a statutory

tenant. The appellants were entitled to a declaration that the

building constructed on the land demised under the lease,

belonged to the Mankeshwar Temple Trust and the said trust was

entitled to recover all the rents and profits from the same and the

respondent had no right, titled and interest therein since the

expiration of the said lease. The respondent was directed to tender

an account of the rents received by him from the tenants of the

building from 23-5-48. - Dr. K. A. Dhairyawan v/s J. R. Thakur,



1947), S.13(1) - If the other members of the family no longer required

the premises, the requirement of the landlady is said to be survived. -

Held. No.

71.1. Landlady has every right to occupy her own premises and

she could not be told that she should share accommodation with

her brother in another apartment and one cannot compel the

owner of the premises which exclusively belongs to her to share

accommodation with a co-owner of hers in another premises.-

Julieta Antonieta Tarcato v/s Suleiman Ismail, reported in AIR 2007

SC (supp) 536.


1947), S.13(1)- Recovery of possession - Suit by landlord - Limitation

Act is applicable to such suit. Ss. 12 and 13 co-exist and must be



63

harmonised to effect purpose and intent of legislature for purpose of

eviction of tenant - Suit for recovery of possession by landlord -

Limitation - Art. 67 and not Art. 113 of Limitation Act 1963 would be

applicable.

72.1. It cannot be said that for any suit by a landlord against a

tenant for recovery of possession under the Rent Act, the Limitation

Act is inherently inapplicable. Recovery of possession is by a suit

and there is no section in the scheme of the Limitation Act to

indicate that Limitation Act was inherently inapplicable. In the

scheme of the Rent Act or in the various contingencies

contemplated under the Rent Act, there is nothing to indicate or

warrant that there would be no limitation of any period. Art. 67,

Limitation Act, indicates that time begins to run only when the

tenancy is determined. It comprehends suit by a landlord and deals

with right to recover possession from the tenant. Therefore, it deals

with landlord and tenant. Thus it cannot be said that limitation was

inapplicable to ejectment. Section 12(1) clothed a tenant with the

cloak of statutory protection against eviction so long as he

performs the conditions of tenancy. S. 13 provides that

notwithstanding that protection the landlord can sue for eviction

provided he established any one of the circumstances set out in

that section. It was impossible to say that it was only when

circumstances set out in S. 13 arose that a landlord could evict and

that eviction on the ground of the failure to perform the conditions

of tenancy would not deprive the tenant of the protection under S.

12(1), Rent Act. Such a reading would be contrary to the whole

scheme underlying the objects of the two sections. Such legal



64

position is not against the trend of the principle behind rent

legislation. It affords protection to the tenant inasmuch as it says

that it was only on the fulfillment of the condition stipulated in the

two sections and on satisfaction of the contingencies mentioned in

S. 12 which would deprive the tenant of the protection that the

tenant can be evicted. If that is so then on the strict grammatical

meaning, Art. 67, Limitation Act, 1963, would be applicable to the

suit by the landlord against the tenant to recover possession. In the

instant case the suit was filed because the tenancy was determined

by the combined effect of the operation of Ss. 12 and 13, Rent Act.

Thus at the most it would be within Art. 66, Limitation Act, if it was

held that forfeiture has been incurred by the tenant in view of the

breach of the conditions mentioned in S. 13, Rent Act, and on lifting

of the embargo against eviction of tenant in terms of S. 12 of the

Act. That being so, either of the two, Art. 66 or Art. 67 would be

applicable to the facts of the case; there is no scope of the

application of Art. 113, Limitation Act, in any view of the matter. Ss.

12 and 13, Bombay Rent Act, co-exist and must be harmonised to

effect the purpose and intent of the legislature for the purpose of

eviction of the tenant. In that view of the matter Art. 113,

Limitation Art, has no scope of application. Only one article for

recovery of possession is reserved under the Limitation Act by a

landlord from a tenant, that is Art. 139 of the Limitation Act, 1908.

This article is the exact predecessor of Art. 67. - Smt. Shakuntala

S. Tiwari v/s Hem Chand M. Singhania, reported in AIR 1987 SC

1823.




65

1947), S.13(1)(a) - Eviction - Change of user - Premises consisting of

three rooms, two rooms on front side were let out for commercial

purpose and third room at back side was let out for residential

purpose. Tenant however, using the two front rooms for residence and

third back side room for business. Does it amount to change of user.-

Held. No.

73.1. One of the three grounds on which the Courts below

recorded the finding in favour of the appellants is change of user of

the suit premises by the respondents. It has already been noticed

above that the front rooms, which were let out for business

purposes, were being used for residential purposes and the rear

room which was let out for residential purposes, was being used

partly for storing spare parts of the motor-cycle. This finding was

relying on the judgment of this Court in Gurdial Batra v. Raj Kumar

Jain, (1989) 3 SCC 441 : (AIR 1989 SC 1841) wherein it was held

that the premises let out for running a cycle and rickshaw repair

shop was also being used for selling television sets. The Court held

that it did not amount to change of user. The view taken by the

High Court is supported by the decisions of this Court in Sant Ram

v. Rajinder Lal, (1979) 2 SCC 274 : (AIR 1979 SC 1601) and Kisan

Dayanu Mano v. Vithal Vishnu Mohandalo, 1990 (Supp) SCC 654. -

Mohan Amba Prasad Agnihotri v/s Bhaskar Balwant Aher, reported

in AIR 2000 SC 931, para No.6.


1947) , S.13(1)(a) - Eviction - Bona fide requirement - Landlady

requiring premises to set up one of her sons in (Kirana) grossery

business which was their family business. Son was unemployed at



66

time of filing suit but subsequently started work of construction

contractor. Whether taking up contractor's business in meanwhile,

militate against his intention to start family business- Held No.

74.1. He cannot be expected to remain unemployed till suit is

finally decided and his taking up contractor's business in

meanwhile, does not militate against his intention to start family

business and such requirement also cannot be termed as mala fide

on ground that son in question could have joined his mother or

brother who were already carrying on grossery business. - Smt.

Ramkubai v/s Hajarimal Dhokalchand Chandak, reported in AIR

1999 SC 3089, para Nos.11, 15 &16.


1947), S.13(1)(a) - eviction - Eviction for change of user - Uses of

premises by lessee contemplated by agreement for a specific business

- Use of land for purpose (business) in addition to the one

contemplated under the lease agreement - Plea of lessee that lease

being for carrying on business any business could be carried on by

him - Negatived by High Court - Supreme Court declined to interfere.-

Dashrath Baburao Sangale and others, Appellants v. Kashinath

Bhaskar Data, reported in AIR SC 1993 SC 2646.


1947), S.13(i)(a) - Eviction suit - Bona fide requirement - Landlord

coming into possession of alternative accommodation during

pendency of appeal - Same has to be considered in deciding bona fide

requirement of landlord - Subsequent events can be considered by

Court. - Gulabbai v/s Nalin Narsi Vohra, reported in AIR 1991 SC 1760.




67

1947), S.13(1)(e), S.15(2)- Any sub-letting, assignment, transfer of

interest in any other manner or licensing made by the tenant, after

February 1, 1973 without there being any sanctioning clause in the

contractor or without the express consent of the landlord would

constitute a ground for eviction under Section 13(1) (e) of the Act? -

Held- No.

77.1. Where the defendant tenant made a sub-lease and parted

with the possession of the suit land in favour of the second

defendant and the sub-tenant came in possession of the suit land

before February 1, 1973 and continued to be in its possession on

that date, such subletting by defendant in favour of second

defendant would fall within protective ambit of S.15(2) of Bombay

Rent Act and therefore sub-tenant would not be liable to be

evicted.- Board of Trustees of the Port of Mumbai v/s M/s. Byramjee

Jeejeebhoy Pvt. Ltd., reported in AIR 2011 SC 1793, para Nos.19, 20

& 23.


1947), (as applied to Gujarat), S.13(1)(e) - tenancy - words and

phrases - "Has sublet" - Interpretation - To deprive tenant of protection

under the Act, sub-letting need not subsist at the date of the suit. -

Gajanan Dattatraya v/s Sherbanu Hosang Patel, reported in AIR 1975

SC 2156 (FB).


1947), (as applied to Gujarat), S.13(1)(e) - tenancy - words and

phrases - "Has sublet" - Interpretation - To deprive tenant of protection

under the Act, sub-letting need not subsist at the date of the suit.

80. The provisions of the Act indicate that a tenant is disentitled to



68

any protection under the Act if he is within the mischief of the

provisions of Section 13(1)(e), namely, that he has sublet. The

language is that if the tenant has sublet, the protection ceases. It

cannot be contended that the sub-letting must continue at the date of

the suit for passing the decree for eviction. The tenant's liability to

eviction arises once the fact of unlawful subletting is proved at the

date of the notice. (1969) 10 Guj LR 837 Approved and followed in

Carona Ltd. v. M/s. Parvathy Swami-nathan, reported in AIR 2008 SC

108. - Gajanan Dattatraya v/s Sherbanu Hosang Patel, reported in AIR

1975 SC 2156 (FB).


1947), S.13(1)(e) - houses and rents - Subletting - Business of

partnership firm carried on in premises of which one partner was

tenant - There is no subletting.

81.1. It is well settled that if there was a partnership firm of

which tenant of the premises in which the business of the firm was

carried on was a partner, the fact of carrying on of the partnership

in the premises would not amount to subletting leading to the

forfeiture of the tenancy. Section 6 reiterates that in determining

whether a group of persons is or is not a firm, or whether a person

is or is not a partner in a firm, regard shall be had to the relation

between the parties, as shown by all relevant facts taken together.

The following important elements must be there in order to

establish partnership : (1) there must be an agreement entered into

by all parties concerned, (2) the agreement must be to share profits

of business, and (3) the business must be carried on by all or any of

the persons concerned acting for all. Where a partner brought in as



69

his asset, tenancy in the premises in which the partnership

business was to be carried on the fact that the partner in question

was to share the profits only and was to get a fixed percentage of

the profits or the further fact that the said partner was not to

operate the bank accounts, there being nothing intrinsically wrong

in law from constituting a partnership in the manner it was done it

could not be said that no genuine partnership had come into

existence. - Girdharbhai v/s Saiyed Mohmad Mirasaheb Kadri ,



1947), S.13(1)(e) - Eviction - Sub-letting - Original tenant of premises

is no more and Landlord is doubtful and unable to spell out heirs of

deceased tenant. Daughter of tenant moved an application for joining

her as party on the ground that she is the daughter of tenant and

leaving it to Court to decide who is real heir of original tenant.

Rejection of suit on ground that since landlord has not recognized

daughter of original tenant as his tenant there could not be sub-

letting, whether such order is sustainable?- Held. No.

82.1. Virendra Kashinath Ravat v/s Vinayak N. Joshi, reported in

AIR 1999 SC 162.


1947), S.13(1)(e) - Cousin of tenant's husband not residing in

premises with tenant, from commencement of tenancy and having

separate business of himself, whether, he Can be held to be member

of tenant's 'family'? - Held. No.

83.1. The question as to whether a person is a member of the

family of the tenant must be decided on the facts and



70

circumstances of the case. Apart from the parents, spouse,

brothers, sisters, sons and daughters, if any other relative claims to

be a member of the tenant's family, some more evidence is

necessary to prove that they have always resided together as

members of one family over a period of time. The mere fact that a

relative has chosen to reside with the tenant for the sake of

convenience, will not make him a member of the family of the

tenant in the context of rent control legislation. - Kailasbhai

Shukaram Tiwari v. Jostna Laxmidas Pujara, reported in AIR 2006 SC

741.


1947), S.13(1)(e), S.15(2) - If there was no material change in status

of sub-tenant in terms and conditions on which it was in possession of

suit land on February 1, 1973 or in inter se relationship between

tenant and sub-tenant, whether in such situation, execution of sub-

lease subsequent to February 1, 1973 by tenant in favour of sub-

tenant would militate against protection offered by S. 15 (2) of Act.

84.1. Held – No. Execution of such sub-lease would not constitute

a ground for eviction of tenant in terms of S. 13(1)(e) of Act.- Board

of Trustees of the Port of Mumbai v/s M/s. Byramjee Jeejeebhoy Pvt.

Ltd., reported in AIR 2011 SC 1793, para No.28.


1947), S.13(1)(e) and S.15 - houses and rents - maxims - non-

obstante clause - contract - special leave appeal - plea - estoppal -

waiver - Houses and Rents - Non-obstante clause in S. 15 - Sub-letting

by tenant in pursuance of agreement with landlord - Tenant incurs

liability to ejectment - Agreement becomes illegal - Public policy - Plea



71

of waiver by landlord - If available to tenant - Plea of pari delicto.

85.1. This section prohibits sub-letting and makes it unlawful for

a tenant to assign or to transfer his interest in the premises let to

him. The non-obstante clause would mean that even if any other

law allowed sub-letting, e.g., S. 108 of the Transfer of Property Act

the sub-letting would, because of S. 15, be unlawful. This would

apply to contracts also as all contracts would fall under the

provisions of the law relating to contracts i.e. Contract Act. An

agreement contrary to the provisions of that section (S. 15) would

be unenforceable as being in contravention of the express provision

of the Act which prohibits it. It is not permissible to any person to

rely upon a contract the making of which the law prohibits. (S. 23 of

the Contract Act.) - Waman Shriniwas Kini v/s Ratilal Bhagwandas

and Com., reported in AIR 1959 SC 689 (FB).


1947), S.13(1)(e) - Tenant was initially running a proprietary concern

but later on he registered private Company to run his business.

Whether merely by holding a large number of shares in such Company

would be sufficient to prove that such person is actually controlling

and managing the business himself. - Held- No.

86.1. It is held that - the theory of lifting the corporate veil has

been accepted in certain circumstances which have already been

referred by this Court in a series of decisions. However, so far as

this case is concerned, as per the finding of fact recorded by the

appellate court as well as by the High Court that the appellant-

defendant has not been able to successfully prove that he is

controlling the company, it was held by the appellate court that



72

merely by holding a large number of shares is not sufficient but

something more is required to prove that he is actually controlling

and managing the business himself. - Santosh Ajit Sachdeva v/s

Anoopi Shahani, reported in AIR 2007 SC 3231, para No.8.


1947), S.13(1)(e) - Eviction - Sub-letting - Suit shop let out to tenant.

Tenant carrying on business in partnership with his sons. Retirement

of tenant-father from firm and it became proprietor firm leaving only

son of tenant in suit shop. Whether, it amounts to subletting? - Held.

Yes.

87.1. The premises in question is a shop. It was let out to the

tenant. The tenant entered into a partnership with his four sons for

carrying on the business of sale of medicines in the suit premises

and a partnership deed was executed between them. The

partnership was at will and under Cl. (7) thereof, it was provided

that "only the tenant-father will be the exclusive proprietor and

owner of the goodwill of the business, place of the business and all

other rights of the business". Subsequently a new partnership deed

between two sons of the tenant was executed and in terms thereof

the tenant-father and his two other sons retired from the business

of the partnership. Various clauses of the new partnership deed

clearly showed that after the tenant-father retired from the earlier

partnership he was to have no concern, right, title or interest in the

new partnership which was now carrying on business in the suit

premises, though in the same name. The rent was also paid by one

of the two partners of the new partnership. The landlord filed a suit

for eviction on ground of sub-letting. Held, under the new



73

partnership it was the sons of the tenant-father who were in

complete control of the suit premises and were exercising exclusive

possession for the same to the exclusion of the tenant-father. That

tenant-father would occasionally visit the shop premises does not

advance the case that he (tenant-father) could exercise his rights

over the shop premises. He had handed over the shop premises to

his sons who were exercising their independent right over the same

and conducting their business thereat. The tenant-father had

completely divested himself of the suit premises as well as the

business. The landlord was therefore entitled to a decree of

eviction. - Mohammedkasam Haji Gulambhai v/s Bakerali Fatehali,

reported in AIR 1998 SC 1324, para Nos. 13 & 14.


1947), S.13(1)(e), S.15(2)- Any sub-letting, assignment, transfer of

interest in any other manner or licensing made by the tenant, after

February 1, 1973 without there being any sanctioning clause in the

contractor or without the express consent of the landlord would

constitute a ground for eviction under Section 13(1) (e) of the Act? -

Held- No.

88.1. Where the defendant tenant made a sub-lease and parted

with the possession of the suit land in favour of the second

defendant and the sub-tenant came in possession of the suit land

before February 1, 1973 and continued to be in its possession on

that date, such subletting by defendant in favour of second

defendant would fall within protective ambit of S.15(2) of Bombay

Rent Act and therefore sub-tenant would not be liable to be

evicted.- Board of Trustees of the Port of Mumbai v/s M/s. Byramjee



74

Jeejeebhoy Pvt. Ltd., reported in AIR 2011 SC 1793, para Nos.19, 20

& 23.


1947), S.13(1)(g) - Eviction - Reasonable and bona fide requirement. It

means some thing more than desire but not dire necessary.-

Raghunath G. Panhale v/s M/s. Chaganlal Sundarji and Com., reported

in AIR 1999 SC 3864, para Nos.4 & 6.


1947), S.13(1)(g), S.13(2) - Even if the ground for eviction is made out

under Section 13 (1)(g), then also decree of eviction can be refused, if

finding of comparative hardship goes against landlord?- Held- Yes.

90.1. Eviction can be refused if finding of comparative hardship

goes against landlord and further held that burden to prove bona

fide requirement is of landlord and burden to prove comparative

hardship is on tenant and it is also held that for proof of bona fide

requirement, degree of necessity is not relevant but for

comparative hardship, degree of necessity assumes significance. -

Badrinarayan Chunilal Bhutada v/s Govindram Ramgopal Mundada,

reported in AIR 2003 SC 2713, para No.8.


of 1947), S.13(1)(g) - eviction - Landlord a partner in a firm -

Requirement of landlord for bona fide occupation for use by firm -

Death of landlord - New firm constituted with some outsiders as

partners - Requirement of landlord for use of himself enures to his

family members - But held, it did not enure to new firm. -

91.1. In the case of an eviction suit on the ground that the

landlord requires the premises for occupation as a residence for



75

himself and members of his family, after the death of landlord right

to sue survives to the members of the deceased landlord's family.

The requirement of occupation of family members of the landlord

cannot be said to be the requirement of landlord himself and does

not therefore cease on his death. After the death of original

landlord, the senior member of his family takes his place and is well

competent to continue the suit for eviction for his occupation and

the occupation of other members of his family.

91.2. In case however, where the landlord who is a partner in a

firm requires the premises reasonably and bona fide for occupation

for himself for the use of the firm and when on the landlord's death

a new firm is constituted with some outsiders as partners, the

requirement of such deceased landlord cannot be said to be

requirement of the partners. - Shantilal Thakordas v/s Chimanlal

Maganlal Telwala, reported in AIR 1976 SC 2358 (FB).

91.3. Phool Rani v/s Naubat Rai Ahluwalia, reported in AIR 1973

SC 2110 is overruled.


1947), S.13(1)(g) - eviction - Reasonable and bona fide requirement -

Juridical possession of other premises by landlord - If can be

considered in determining need of landlord.

92.1. For the purpose of determining whether the requirement of

the landlord for the premises in question is reasonable and bona

fide, what is necessary to be considered is not whether the landlord

is juridically in possession of other premises, but whether they were

available to him for occupation so that he cannot be said to need

the premises in question. If a person is in occupation of the other



76

premises on leave and licence, they are obviously not available to

the landlord for occupation and cannot be taken into account for

negativing the need of the landlord for the premises in question. -

Phiroze Bamanji Desai v/s Chandrakant M. Patel, reported in AIR

1974 SC 1059.


1947), S.13(1)(g) - Word 'himself' occurring under Section 13 (1) (g)

can be read as himself and members of his family dependant upon

him? Held. Yes.

93.1. Family of landlord being joint Hindu Family, requirement of

landlord to settle his younger brothers in business in demised

premises, can be held is bona fide. - Dwarkaprasad v/s Niranjan,

AIR 2003 SC 2024.


1947), S.13(1)(g) , S.13(1)(k) - Eviction suit - Ground, bona fide

requirement for landlord's son to start business. Tenant running

grocery business in suit shop and another shop, owned by landlord

falling vacant. Landlord's son not occupying it because he was still to

complete his education and not ready to start business. Concurrent

finding of fact that need of landlord is bona fide and decree of eviction

passed and confirmed. Reversal of, by High Court on the ground that

landlord had not occupied the other shop when it fell vacant, whether

sustainable? - Held. Not.

94.1. From the above evidence of the landlord's son Madhukar it

is clear that by 1976 the said Madhukar had not completed his

eduction and was not ripe enough to start a business. It was only in

1979 that the said Madhukar completed his education, and the



77

landlord thought of making Madhukar to start a business in the suit

shop and gave a notice for eviction and filed the present suit in

1979. Therefore, it is clear that the assumption of the High Court

that the landlord could have given the shop which fell vacant in

1976 to his son Madhukar is contrary to the evidence placed on

record. - Smt. Savitrabai Bhausaheb Kevate v/s Raichand Dhanraj

Lunja, reported in AIR 1999 SC 602, para No.9.


1947), S.13(1)(g) - Eviction - Ground - "Reasonably and bona fide

required by landlord" - Means really genuine requirement from any

reasonable standard but not on standard of dire need.

95.1. The grounds mentioned in clause (g) of Section 13(1) is

couched in a language to provide emphasis to the genuineness of

the requirement of the landlord by using the words "reasonably and

bona fide required by the landlord". In fact both terms (reasonably

and bona fide) are complimentary to each other in the context, for,

any unreasonable requirement is not bona fide. Vice-versa can also

be spelt that if the requirement has to be bona fide it must

necessarily be reasonable also. But when the legislature employed

the two terms together the message to be gathered is that the

requirement must be really genuine from any reasonable standard.

All the same, genuineness of the requirement is not to be tested on

a par with dire need of a landlord because the latter is a much

greater need. - Dattatraya Laxman Kamble v/s Abdul Rasul Moulali

Kotkune, reported in AIR 1999 SC 2226, para No.6.


1947), S.13(1)(g)- Eviction - Bona fide requirement - For starting



78

business - Possessing know-how for doing business - Not a

requirement. -

96.1. The landlord who seeks eviction of his tenant on ground of

bona fide requirement of starting business need not establish that

he possesses the know-how necessary for doing the business. If a

person wants to start new business of his own it may be to his own

advantage if he acquires experience in that line. But to say that any

venture of a person in the business field without acquiring past

experience reflects lack of his bonafides is a fallacious and

unpragmatic approach. Many a business have flourished in this

country by leaps and bounds which were started by novice in the

field; and many other business ventures have gone haywire despite

vast experience to the credit of the prepounders. The view that

acquisition of sufficient know-how is a pre-condition for even

proposing to start any business, if gains approval as a proposition

of law, is likely to shatter the initiative of young talents and deter

new entrepreneurs from entering any field of business or

commercial activity. Experience can be earned even while the

business is in progress. It is too pedantic a norm to be formulated

that "no experience no venture". Dattatraya Laxman Kamble v/s

Abdul Rasul Moulali Kotkune, reported in AIR 1999 SC 2226, para

Nos.11 & 12.


1947), S.13(1)(g) - Eviction - Bona fide requirement - Proof - Not

essential that landlord must enter witness box to support his case -

Bona fide requirement is not a fact which could be established only by

landlord.- Smt. Ramkubai v/s Hajarimal Dhokalchand Chandak,



79



1947), S.13(1)(g) - Bona fide requirement - Determination of -

Considerations thereof - Possession of premises as licensee can be

termed as suitable alternative accommodation – Held. No.

98.1. Possession of premises as licensee cannot be considered

as suitable alternative accommodation. Thus where in a suit for

eviction filed on ground of bona fide requirement of landlady the

husband of the landlady was in possession of an other flat as

licensee, it would not disentitle the landlady from getting decree of

eviction. - Mrs. Meenal Eknath Kshirsagar v/s M/s. Traders and

Agencies, reported in AIR 1997 SC 57.


1947), S.13(1)(g) - Eviction - Bona fide required - Landlady living with

her husband, grown up sons and grandchild in one bedroom

apartment. Need of landlady for more accommodation under such

circumstances can be said to be unreasonable. Held. No.

99.1. Denial of eviction to her by Court on ground that her eldest

son was having a flat of his own is improper when there was no

evidence to show that her son was actually in possession of said

accommodation. - Mrs. Rena Drego , Appellant v. Lalchand Soni,



1947), S.13(1)(g) , S.13(1)(hh) - eviction - Houses and Rents - Landlord

bona fide needing premises for his occupation - S. 13 (1) (g) applies -

His wanting to demolish and rebuild it before occupation does not

make it fall under cl. (hh) - Occupation under cl. (g) includes



80

occupation for demolition to make it fit for residence.

100.1. The contention that cl. (g) will apply only when the landlord

bona fide needs to occupy the premises without making any

alteration in them, i. e. to occupy the identical building which the

tenant occupies, is not correct. There is no jurisdiction to give such

a narrow construction either to the word 'premises' or to the word

'occupies' in cl. (g) of S. 13

100.2. The provisions of cl. (hh) cannot possibly apply to the case

where a landlord reasonably and bona fide requires the premises

for his own occupation even if he had to demolish premises and to

erect a new building on them. The provisions of cl. (hh) apply to

cases where the landlord does not require the premises for his own

occupation but requires them for erecting a new building which is

to be let out to tenants.

100.3. It is therefore clear that once the landlord established that

he bona fide requires the premises for his occupation, he is entitled

to recover possession of it from tenant in view of the provisions of

sub-cl. (g) of S. 13 (1) irrespective of the fact whether he would

occupy the premises without making any alteration to them or after

making the necessary alterations.

100.4. Occupation of the premises in cl. (g) does not necessarily

refer to occupation as residence. The owner can occupy a place by

making use of it in any manner. In a case like the present, if the

landlords on getting possession start their work of demolition within

the prescribed period, they would have occupied the premises in

order to erect a building fit for their occupation. - Ramniklal

Pitambardas Mehta v/s Indradaman Amratlal Sheth, reported in AIR



81

1964 SC 1676 (FB).


1947), S.13(1)(g), S.13AA - tenancy - Evidence - Benefit under Section

13-A1 - Landlord, a retired army officer acquiring premises, already in

possession of tenant, after his retirement - Not entitled to the benefit

under S. 13-AA for recovery of the possession of premises from such

tenant.

101.1. Section 13-AA cannot be availed of by an ex-member of the

armed forces to recover from the tenant possession of a building

which he acquires after his retirement. Section 13-A1 cannot be

liberally interpreted to cover all retired members of the Armed

Forces irrespective of the fact whether they where landlords while

they were in service or not, as such a liberal interpretation of S. 13-

AA is likely to expose it to a successful challenge on the basis of

Art. 14 of the Constitution. Thus it has to be read down as

conferring benefit only on those members of the Armed Forces who

were the landlords of the premises in question while they were in

service even thought they may avail of it after their retirement.

101.2. Section 13-AA did not also govern the case of a person who

had retired long back from the Armed Forces and was gainfully

employed elsewhere and while so employed had let out his

premises with open eyes. Where the retired Army Officer, who had

become the landlord of the dispute premises, already in possession

of the tenant, by way of gift after his retirement , had filed a suit for

eviction of such tenant, he would not be entitled to the benefit of S.

13-A1. When he had not established that he was really in bona fide

need of the disputed premises, he would not also be entitled to



82

benefit under S. 13 (1) (g). - Mrs. Winifred Ross v/s Mrs. Ivy

Fonseca, reported in AIR 1984 SC 458.


1947), S.13(1)(g) and S.13(i), S.17(1) - houses and rents - Houses and

Rents - Recovery of possession by landlord - Stipulation in S. 17 (1)

regarding period of one month for occupation - Applies both to decree

passed under S. 13 (1) (g) as well as to those passed under S. 13 (1)

(i).

102.1. When S. 17(1) refers to the requirement that the premises

must be occupied by the landlord, the occupation intended by the

provision is different from possession, because the first clause of S.

17(1) makes a clear distinction between occupation and delivery of

possession. The effect of this clause is that when a landlord who

has obtained a decree for possession executes the decree and

obtains possession of the premises in question he must occupy

them within a period of one month from the date he recovers

possession. The first clause of S. 17 (1) deals with decrees passed

under S. 13 (1) (g) and (i) and on a fair and reasonable construction

of that clause it is clear that the requirement as to the period of

one month applies as much to the case of occupation as to the

case of erection of the work contemplated by clauses of S. 13 (1)

(g) and (i), respectively. - Krishanlal Ishwarlal Desai v/s Bai Vijkor,

reported in AIR 1967 SC 375 (Five Judges).


1947) (as applicable to Gujarat) S.13(1)(g) and S.25 - tenancy -

Reasonableness of landlord's requirements to be judged in the light of

Section 25.



83

103.1. In view of the wording of the non obstante clause of Section

13 (1), the provisions of that section must have priority over the

rest of the Act, except for what is contained in Section 15. But

conceding to Section 13(1) its rightful precedence and granting

that it stands supreme except for Section 15, according to its own

terms the Court has to be satisfied that the requirement of the

landlord is reasonable. A requirement which runs in the teeth of

Section 25 and which, if established may throw the landlord open

to the risk of a prosecution cannot be called reasonable.

103.2. Whether the requirement of the landlord is reasonable or

not is to be judged from all the facts and circumstances of the case

and a highly relevant circumstance bearing on the reasonableness

of the landlord's requirement is that the purpose for which the

possession is sought is a purpose for which the premises cannot be

used save on pain of penal consequences. Courts ought not to

construe a statute in a manner which will encourage the breach of

any of its provisions and, most certainly, a decree ought not to be

passed which if honoured will attract penal consequences. - 1974

Guj LR 560, Reversed; Civil Revn. Appln. No. 2172 of 1957, D/-.3-9-

1959 (Bom); AIR 1972 Bom 354 and Civil Revn. Appln. No. 896 of

1963, D/-7-3-l967 (Guj), Approved. - Bapubhai Mohanbhai v/s

Mahila Sahakari Udyog Mandir, reported in AIR 1975 SC 2128 (FB).


1947), S.13(1)(hhh) - Eviction for purpose of demolition ordered by

Local Authority - Municipal Commissioner granting permission to raise

temporary structure under City of Bombay (Building Works Restriction)

Act ( 18 of 1944), subject to condition that the same would be pulled



84

down whenever required to give effect to any improvement Scheme -

Notice of demolition issued after expiry of Act of 1944 - Held, notice

was an 'order' within the meaning of Clause (hhh) Effect of expiration

of a temporary Act stated.

104.1. Though no statutory rule or bye-law was made under the

Bombay Act, 1944, the Municipal Commissioner had plenary power

under Section 3 of the Act to authorise by means of a written

permission the construction of any building or structure in the area

described in the Schedule to the Act subject to such conditions, if

any, as he might have thought fit to specify in the permission. In

the instant case the permission having been granted subject to the

express condition that the plaintiff shall pull down or remove the

temporary structure in question whenever called upon to do so and

the same having been annexed to and made to go with the

ownership of the structure in respect whereof, it was granted by

virtue of S. 8 of the Bombay Act, 1944. it could be enforced by the

Municipal Commissioner under Regulation Nos. 36 and 38 of the

special Regulations made by the Arbitrator which became a part

and parcel of the Bombay Town Planning Act, 1954 by virtue of Sec.

51 (3) of the Act as also under Sec. 55(1) (a) read with Rule 28

made under Section 87 of the Act.

104.2. Thus the direction in the notice for demolition of the

premises in question which clearly had its genesis in the aforesaid

statutory provisions did constitute an order within the meaning of

Clause (hhh) of sub-section (1) of S. 13 of the Bombay Rents

Control Act, 1947 and the plea that no statutory rule or bye law

having been made under the Bombay Act, 1944 and the Notice not



85

being based on any statutory power exercisable by the

Commissioner did not constitute such an order was wholly

untenable. - M/s. Velji Lakshmi v/s M/s. Benett Coleman and Com.,

reported AIR 1977 SC 1884. para Nos.28 &29.


1947), S.13(1)(hh) and Cl.(hhh) - houses and rents - Difference

between Cl. (hh) and Cl. (hhh) - Requirements of Clause (hhh) -

Whether subject to conditions embodied in sub-s. (3A).

105.1. The ground specified in Cl.(hhh) of sub-section (1) of S. 13

of the Bombay Rents Control Act, 1947 does not stand on the same

footing as the ground specified in its preceding clause viz. Clause

(hh). Whereas Clause (hh) which appears to have been enacted

with a view to provide better and more housing accommodation in

the interest of the public relates to a landlord's bona fide intention

to demolish the building of his own volition and to erect a new

building in its place, clause (hhh) which was inserted by Bombay

Act 61 of 1953 inter alia to prevent a landlord or a tenant from

impeding the town improvement or town planning scheme which is

presumed to be in public interest relates to compulsory demolition

ordered by a local or competent authority. It is because of this

difference that the ground specified in Cl. (hhh) is not subject to the

conditions and restrictions embodied in sub-s. (3A) of S. 13 and

Sections 17A, 17B and 17C of the Bombay Rents Control Act, 1947.

It is sufficient to satisfy the requirement of the ground specified in

this clause that the order of demolition is issued by the local or

competent authority in exercise of the powers vested in it and the

order discloses that in the opinion of the local or competent



86

authority, the premises are required for the immediate purpose of

demolition. - M/s. Velji Lakshmi v/s M/s. Benett Coleman and Com.,

reported AIR 1977 SC 1884. para No.30.


1947), S.13(1) (hhh) - eviction - Eviction on ground of premises being

required for immediate purpose of demolition - Whether it is the Local

Authority and not the landlord who has power to evict tenant under

Clause (hhh).

106.1. It is the landlord and not the Local Authority who has the

power to evict the tenant on the ground specified in Cl. (hhh) of

sub-s. (1) of Section 13 of the Bombay Rents Control Act. 1947. The

submission that it is the local authority who has the power to evict

the tenant overlooks the provisions of S. 507 of the Bombay

Municipal Corporation Act. 1888 whereunder the landlord can get

an order against the tenant to allow him (the landlord) reasonable

facilities to enter the leased premises in order to enable him to

comply with the notice issue by the Municipal Commissioner. - M/s.

Velji Lakshmi v/s M/s. Benett Coleman and Com., reported AIR 1977

SC 1884. para No.33.


1947), S.13(1)(i) - houses and rents - Misery due to scarcity of

accommodation - Consideration - Humanist approach on guidelines

set out in S. 13 (1) (i) – Permissibility.

107.1. Where in a suit, under S. 13 (1) (i) of the Act, for eviction

from suit premises consisting of three rooms which were let out to

1st appellant, the eldest of three brothers, for benefit of joint

family, the concurrent findings of Courts below were that the new



87

house built by 1st appellant was his own and not that of joint family

and that the suit lease was for benefit of joint family, Supreme

Court, in appeal under Article 136, making a humanist approach

adopted a course of 'live and let live' and directed the tenant, in

the interest of justice, to surrender half of the portion after getting

it partitioned into equal halves. - Jivram Ranchhoddas Thakkar v/s

Tulshiram Ratanchand Mantri, reported in AIR 1977 SC 1357 (FB).


1947), S.13(1)(i) - lease - houses and rents - Houses and Rents -

Applicability - Lease of open land - Tenant at his own cost building

shed of corrugated iron sheets on portion of land before execution of

rent note - Condition in rent note that structure was to be removed by

tenant on termination of tenancy - Held, tenancy was in respect of

open land only and hence S. 13 (1)(i) was applicable. -Krishnapasuba

Rao Kundapur v/s Dattatraya Krishnaji Karani, reported in AIR 1966 SC

1024 (FB).


1947), S.13(1)(k) - eviction - Eviction under - Non-user of premises for

purpose, for which they were let out, for period of more than six

months prior to date of suit without reasonable cause - Tenant would

be liable for eviction.

109.1. All that S.13(1)(k)contemplates is that the premises had

not been used for the purpose for which they were let out for a

continuous period of six months immediately preceding the date of

suit without reasonable cause. It does not say that mere non-user

of the premises will make him liable for eviction. The scheme of the

Act as it appears from the preamble is to consolidate the law



88

relating to the control of rents and repairs of certain premises, of

rates of hotels and lodging houses and of evictions. The control had

to be brought in because of the scarcity of accommodation in the

cities. If this was the preamble of the Act it cannot be said that a

tenant may take a premises on rent and keep it locked for years

together without using it in the absence of any reasonable cause.

The intendment of the legislature could be carried out only when

the premises is used and not kept vacant for years together.

109.2. The plaintiff had purchased a plot under a registered sale

deed. The tenant who was occupying the said plot had accepted

the plaintiff as owner under a registered rent note. The rent note

provided that the said premises shall not be let out to anyone else,

and that on the expiry of the period of five years the tenant shall

remove the constructions made by him at his own expense and

hand over to the plaintiff the premises in the condition in which it

was let out. Subsequently the tenant had sublet a portion of the

said premises to the sub-tenant contrary to the terms of the rent

note. On expiry of period of lease contemplated by rent note the

plaintiff had filed a suit for eviction of the tenant. It was alleged by

the plaintiff that the premises in question had not been used by the

tenant for a period of more than six months prior to the date of the

suit without reasonable cause and, therefore, he was liable to

eviction under S. 13(1)(k). The plaintiff had also established the

purpose for which the premises had been let out to the tenant.

109.3. Held, that the tenant was liable to be evicted under S.

13(1)(k). It was not proper to say that the construction of super-

structures on the land in dispute was itself a user. As the super



89

structures had already been built before the tenant took the land

from the plaintiff under rent note. The stipulation in the rent note

that "even if we use or do not use or keep the said property closed

we the tenants are bound to pay the rent as stated above." Only

talks of the liability of the tenant to pay the rent even if he does not

use the property and keeps it closed. This,however, does not mean

that the tenant can keep the premises closed without using it for

years together before the suit. Since, the sub-tenancy was created

long before the Act came into force, there would be no question of

eviction of sub-tenant as the sub-tenancy was not illegal. - Vora

Rahimbhai Haji Hasanbhai Popat v/s Vora Sunderlal Manilal,



1947), S.13(2) - eviction - tenancy - 'Comparative hard-ship' - Tenant

an aged and infirm person inducting stranger in demised premises -

Necessity of landlord, a displaced person, proved - Held, eviction order

would not cause hardship to tenant.

110.1. Landlord, a merchant, was a displaced person from Africa

who was carrying on business in Kampala in Uganda. Due to

political upheaval in that country in 1964 he along with his family,

migrated to India and began living in a rented house in Rajkot

where he also owned a building. He filed a suit for eviction from the

said building which consisted of a shop on the ground floor on the

ground that he reasonably and bona fide required the suit premises

for starting his business. The tenant who was aged and infirm was

not in actual possession of the suit premises but had inducted one

stranger as his licensee who was in occupation thereof and was



90

paying him an amount by way of maintenance. The licensee owned

a separate shop of his own from where he was carrying on his

business and had taken the suit premises from the tenant for using

it as a godown. Landlord had been carrying on business in Kampala

for over 30 years.

110.2. He had gone back to Uganda for winding up his business

there. The tenant died during the pendency of appeal to Supreme

Court.

110.3. Held, that the tenant was aged and infirm and had inducted

a stranger as his licensee under an arrangement who was paying a

fixed amount to him by way of maintenance did not imply that the

passing of a decree under Sec. 13 (1) (g) would cause greater

hardship to the tenant than to the landlord. The fact that the

landlord had gone back to Uganda for winding up his business was

indicative of his intention to start his business from the suit

premises and to settle in India. Further, old age and infirmity could

not be relevant considerations in judging the issue of greater

hardship under Section 13 (2) when the tenant was not carrying on

the business himself from the suit premises and had parted with

possession in favour of a stranger. Furthermore, the tenant having

died during the pendency of appeal to the Supreme Court the

question of greater hardship under Section 13 (2) did not arise. -

Bhaichand Ratanshi v/s Laxmishanker Tribhovan, reported in AIR

1981 SC 1690 (FB).


1947), S.13(2) - Comparative hardship - Determination - Relevant

factors – whether words other 'reasonable accommodation' in Section



91

13(2) mean accommodation as suitable as suit accommodation.- Held.

No.

111.1. The Act does not lay down any guidelines or relevant

factors based whereon the question of comparative hardship is to

be decided. A slight indication is given in the first para of S. 13 (2)

that regard must be had to (i) all the circumstances of the case, (ii)

including the question whether other reasonable accommodation is

available for the landlord or the tenant. The expression 'other

reasonable accommodation' as employed here does not mean an

accommodation suitable in all respects as the suit accommodation

is. The legislature has chosen it appropriate to leave the

determination of issue on sound discretion of the Court. -

Badrinarayan Chunilal Bhutada v/s Govindram Ramgopal Mundada,



1947) S.13(3)(a) – S.29 - Is it open for the appellate or the revisional

Court to stay the execution of the order or the decree on terms,

including a direction to pay monthly rent at a rate higher than the

contractual rent?- Held- Yes.

112.1. Held that in fixing the amount subject to payment of which

the execution of the order/decree is stayed, the Court would

exercise restraint and would not fix any excessive, fanciful or

punitive amount. Further, if the tenant's appeal/revision is allowed

and the eviction decree is set aside, naturally, the status quo ante

would be restored and the tenant would be entitled to get back all

the amounts that he was made to pay in excess of the contractual

rent. That being the position, the amount fixed by the Court over



92

and above the contractual monthly rent, ordinarily, should not be

directed to be paid to the landlord during the pendency of the

appeal/revision. The deposited amount, along with the accrued

interest, should only be paid after the final disposal to either side

depending upon the result of the case. In case for some reason the

Court finds it just and expedient that the amount fixed by it should

go to the landlord even while the matter is pending, it must be

careful to direct payment to the landlord on terms so that in case

the final decision goes in favour of the tenant the payment should

be made to him without any undue delay or complications. - State

of Maharashtra v/s M/s. Super Max International Pvt. Ltd., reported

in AIR 2010 722, para Nos.46 to 48.


1947), S.13AA - Remedy under, available to a member or retired

member of Armed Forces to recover possession of premises - Not

restricted to cases where he had himself let out the premises when he

was member of Armed Forces.

113.1. It is impossible on the plain language of S. 13-AA to further

read down the provision as enabling a member or a retired member

of the armed forces to recover possession of the premises only if he

had himself originally let out the premises when he was a member

of the armed forces and not if the tenancy had commenced before

he became the landlord of the premises either by inheritance,

partition, or any other mode of transfer of property. To place such

an interpretation would be to virtually rewrite the provision. The

language of S. 13-AA which is sufficiently plain does not warrant or

invite such an interpretation.



93

113.2. It is true that the Act is a welfare legislation designed

among other matters, to protect tenants from harassment and

unreasonable eviction by landlords and it should, therefore, be

interpreted in a broad and liberal spirit so as to further and not to

constrain the object of the Act. It is also true that the exclusionary

provisions in the Act should be construed strictly so as to give a

wide amplitude to the principal object of the legislation and to

prevent its evasion on deceptive grounds. But this does not mean

that the intention of the legislature, expressed with sufficient

vocabular clarity or gathered by reference to permissible sources,

may be by-passed to accommodate individual versions of what may

appear reasonable. Notwithstanding the expressed legislative bias

in favour of the tenant, the legislature itself made a serious

departure in Section 13-AA from the general rule so as to lean in

favour of landlords who are or were members of the armed

services, and who because of the exigencies of their service were

not able to occupy their own premises during the course of their

services. The intention of the legislature is expressed with sufficient

clarity by the language of S. 13-AA. - Shivram Anand Shiroor v/s

Mrs. Radhabai Shantaram Kowshik, reported in AIR 1984 SC 786

(FB).


1947), S.13AA - Eviction - Special provision for members of armed

forces - Certificate of authorised officer produced by member of

armed force. Whether Court cann go beyond it. Held. No.

114.1. Miss Kanta Udharam Jagasia , Appellant v. C. K. S. Rao,




94


1947), S.14 - houses and rents - Sub-tenant - Who is - Person entering

into possession of portion of demised premises only as paying guest -

He does not acquire status of sub-tenant. - Rusi Dinshawji Deboo v/s

Cawasji Rustomji Patel, reported in AIR 1987 SC 1771.


1947), S.14(2) (as inserted by Maharashtra Act 17 of 1973), S.15A -

eviction - Statutory tenant - Leave and licence agreement between

tenant of suit premises and licensee entered on 1-4-1967 - Clauses of

agreement stating that licensee was permitted to use and occupy

premises exclusively - Interim injunction against tenant from inducting

third party in suit premises, obtained by landlord subsequent to date

of leave and licence agreement - Licensee occupying premises later -

Licensee is nevertheless statutory tenant - O.21, R.102 Civil P.C. not

applicable. - Bhailal Hukamchand Shah v/s Narandas Shamji, reported

in AIR 1989 SC 2193.


1947), S.14 and S.15(2) (as amended in Gujarat in 1959), S.28 -

eviction - Houses and Rents - Ejectment of sub-tenant - Suit for

ejectment on ground of sub-letting and arrears of rent against tenant

and sub-tenant - Suit dismissed on the score that sub-tenant was

protected by S. 15 - Appellate Court, holding sub-tenant to be a

trespasser, ordering him alone to be ejected-In revision High Court

confirming order of ejectment on ground of arrears of rent - Propriety

of appellate Court's order - Appellate Court on its finding that

appellant was a trespasser had no jurisdiction to decide the appeal -

Order of eviction was, therefore, bad in law. - Hiralal Vallabbram v/s



95

Sheth Knsturbhai Lalbhai, reported in AIR 1967 SC 1853 (FB).


1947), S.14, S.15A - Licensee - Meaning of - Licensees created

whether by landlords or tenants before 1-2-1973 and in occupation of

at least single room - Are entitled to be tenants - Specific term for

creating licence whether exists or not in original agreement is

immaterial.

118.1. All licensees created by landlords or by the tenant before

1st February, 1973 and who were in actual occupation of a

premises which was not less than a room as licensees on 1st

February, 1973 be the licensees of the landlord or tenant and

whether there be any term in the original agreement for tenancy

permitting creation of such tenancy or licences or not they would

become tenant and enjoy the rights granted under the Act specially

those mentioned in S. 14(2) of the Act. Until a decree of eviction is

passed against the tenant, the tenant can create a licence and

where the licence was created before 1st February, 1973, the

licensee must, by the express terms of Section 15A of the Act,

continue to be a tenant of the landlord in respect of the premises in

question. A tenant protected by a statute is entitled to create a

licence. The licence is not an interest in property. It is purely a

personal right. The various amendments in the Act introduced

simultaneously with S. 15A and the Aims and Objects indicate that

the entire scheme of those amendments was to protect licensees. It

cannot, therefore, be said that the scheme of the Act is intended to

protect only the licensees of the tenant. On the contrary all

licensees who were there on 1st February, 1973 were to be



96

protected and subsequent licences were made illegal as was done

in the case of sub-tenancy from 1959. It was an attempt to protect

very large number of legitimate persons in occupation and also to

eliminate future mischief.- Chandavarkar Sita Ratna Rao v/s

Ashalata S. Guram, reported in AIR 1987 SC 117.


1947), S.15 - houses and rents - Houses and Rents - (Obiter) - Open

land let - Lessee constructing building on it - Sub-letting of building -

Bar of Section 15 will operate only in the way of letting out the land of

which lease had been taken, but will not stand in the way of letting

the building constructed on the land. - Mrs. Dossibai N. B. Jeejeebhoy

v/s Khemchand Gorumal, reported in AIR 1966 SC 1939 (FB).

120. Section 15(2) is sufficiently wide to include even an oral

arrangement pursuant to which sub-lessee might enter upon land and

continue in its possession?- Held – Yes. Board of Trustees of the Port of

Mumbai v/s M/s. Byramjee Jeejeebhoy Pvt. Ltd., reported in AIR 2011

SC 1793, para No.25.

120.1. In the light of the principles stated by this Court in Om

Prakash Gupta's case (1964) 1 SCC 259, the inevitable conclusion is

that Small Causes Court at Bombay had no jurisdiction to entertain

the suit filed by the owners of the suit premises and in view of

Section 28 of the Act, the Court of Small Causes, Bombay, will have

jurisdiction and suit for eviction is only maintainable provided that

a landlord-tenant relationship is established. - Laxmidas Morarji (D)

by L.Rs. v/s Miss Behrose Darab Madan, reported in AIR 2009 SC

2711 (FB).




97

1947), S.15(2) - A subsequent assignee from a sub-lessee is not

entitled to protection under Section 15 (2).

121.1. Section 15 (2) of the Act protects only sub-lease or

assignment or transfer by the tenant but does not protect

subsequent assignments or transfers by assignees or transferees.

The word 'tenant' in Section 15 of the Act means the contractual

tenant and not the statutory tenant. The legislature by the

Ordinance of 1959 intended to confer protection on sub-tenants of

contractual tenants. The Ordinance did not confer any protection

on further transfer or further sub-letting by sub-lessees of the

contractual tenants. - Jai Singh Murarji v/s M/s. Sovani (P) Ltd.,

reported in AIR 1973 SC 772 (Four Judges).


1947), S.15A - Deemed tenant - Court receiver taking symbolic

possession of property which was in occupation of licensee company

which was deemed tenant by virtue of S. 15-A. Subsequent

amalgamation of tenant company with other company - Sister

company of same group coming in possession of premises in question

after amalgamation scheme was approved by High Court and

Chamber summons was taken out by owners of premises on ground

that sister-company which subsequently came in possession of

premises was in unauthorised occupation being inducted without

leave of Court. Order rejecting chamber summons on ground that

dispute could not be resolved in summary proceedings and Court

Receiver had to adopt procedure under Rent Act, is sustainable in

eyes of law? - Held- No.

122.1. It would not be correct to read ratio laid down in the case of



98

Anthony C. Leo v. Nandlal Bal Krishnan, (1996) 11 SCC 376 : (1996

AIR SCW 4338 : AIR 1997 SC 173) to mean that if the trespasser or

any person who obtains the possession after the Receiver took over

symbolic possession or actual possession of the property and if

such person pleads that he is a tenant the only remedy for the

Court Receiver is to approach the Rent Court under the Bombay

Rent Act. For instance, a person who is put in possession as an

agent of the Receiver inducts a stranger and if such a third person

claims a tenancy the question is whether Receiver should be

directed to adopt the proceedings under the Bombay Rent Act for

appropriate declaration and reliefs. If such a course is required to

follow, in our opinion, the very object of Order XL, Rules 1 and 3 of

the Code of Civil Procedure would be defeated. The High Court in

our opinion has totally misread and misinterpreted the ratio of

Anthony C. Leo's case (supra). We must, however, make it clear

that we are not laying down a broad proposition that in every case

the Receiver can resort to the summary proceeding of this nature.

The question would have to be decided by the Court with reference

to the pleadings of the parties and the proof thereof. On perusal of

the judgment of the High Court we find that the High Court has not

considered various rival contentions raised by the parties in their

pleadings. The High Court has also not considered the effect of non-

renewal of the Leave and Licence Agreement after the expiry of its

period nor it had considered the effect of Section 15 and 15-A of

the Bombay Rent Act. The High Court has also not considered what

would be the effect of changes in the composition of Suhrid Geigy

Trading Limited after the Receiver took the symbolic possession. All



99

these various factual and legal contentions will have to be

considered bearing in mind the provisions of the Bombay Rent Act

as well as Companies Act. - Usha Harshadkumar Dalal v/s M/s. ORG

Systems, reported in AIR 2000 SC 2719, para No.14.


1947) , S.15A - license - Protected licensee - Who can be - Statutory

tenant under Rent Act has no transferable interest and, therefore,

cannot create licence. Licensee from statutory tenant cannot

therefore get protection under S. 15A.- S. J. Pande v/s P. K.

Balakrishnan, reported in AIR 1993 SC 2132.


of 1947), S.15A - eviction - Eviction - Licensees becoming deemed

tenant under S.15A - Can only be evicted in accordance with

provisions of Act - Cannot be evicted under S.41 of Presidency Small

Cause Courts Act. - Mani Nariman Daruwala and Bharucha v/s Phiroz

N. Bhatena, reported in AIR 1991 SC 1494.


1947), S.18(1) - houses and rents - Interpretation of Statutes - Houses

and Rents - Construction of - Interpretation of Statutes - Penal

Statutes.

125.1. The provisions of S. 18(1) of Bombay Act 57 of 1947 are

penal in nature and it is a well settled rule of construction of penal

statutes that if two possible and reasonable constructions can be

put upon a penal provision, the Court must lean towards that

construction which exempts the subject from penalty rather than

the one which imposes penalty. It is not competent to the Court to

stretch the meaning of an expression used by the Legislature in



100

order to carry out the intention of the Legislature. - Tolaram

Relumal and another, Appellants v. The State of Bombay, reported

in AIR 1954 SC 496 (Five Judges).


1947), S.19(1) - Transfer of Property Act (4 of 1882) , S.108(j) -

Houses and Rents - Relinquishment and assignment of tenancy –

Distinction.

126.1. The distinction between an assignment on the one hand

and relinquishment or surrender on the other is too plain to be

ignored. In the case of an assignment, the assignor continues to be

liable to the landlord for the performance of his obligations under

the tenancy and this liability is contractual while the assignee

becomes liable by reason of privity of estate the consent of the

landlord to an assignment is not necessary, in the absence of a

contract of local usage to the contrary. But in the case of

relinquishment, it cannot be a unilateral transaction; it can only be

in favour of the lessor by mutual agreement between them. The

relinquishment of possession must be to the lessor or one who

holds his interest. In fact, a surrender or relinquishment terminates

the lessee's rights and lets in the lessor. - W. H. King v/s Republic of

India, reported in AIR 1952 SC 156 (Five Judges).


1947), S.19(2) - Interpretation of Statutes- Interpretation of Statutes -

Houses and Rents - Relinquishment of tenancy - Meaning - Held,

transaction amounted to assignment - Conviction set aside.

127.1. As the statute creates an offence and imposes a penalty of

fine and imprisonment, the words of the section must be strictly



101

construed in favour of the subject. The Court is not concerned so

much with what might possibly have been intended as with what

has been actually said in and by the language employed.

127.2. A received Rs. 29,000 from B and in return handed over the

vacant possession of his flat to B under a written document which

stated : "I hereby hand over vacant possession of my flat no .. etc.,

to Mr. . . . . from this day onward and that I have no claim

whatsoever over this flat and Mr. . . . . will pay the rent directly to

the landlord." On being prosecuted under S. 19 (2) of the Bombay

Act :

127.3. Held, that the document did not evidence any

'relinquishment of tenancy of the premises' with S. 19 (1) of the Act

and hence could not be convicted under sub-s. (2).

127.4. Further that the transaction merely amounted to an

assignment of tenancy which, though declared unlawful under S. 15

was not made an offence by the Act. - W. H. King v/s Republic of

India, reported in AIR 1952 SC 156 (Five Judges).


1947), S.20 - houses and rents - Houses and Rents - Right of tenant to

recover overpaid rent either by deduction or by separate suit - Must

be exercised within six months.

128.1. Section 20 gives the tenant a general right of recovery of

the over-paid rent within six months of the date of payment.

Without prejudice to any other mode of recovery, the tenant may

deduct the over-payment from any rent payable by him to the

landlord. The deduction provided is one mode of recovery. If the

amount is incapable of recovery because of the bar of limitation, it



102

cannot be recovered by deduction. In other words the right of

recovery by deduction is barred at the same time as the right of

recovery by suit. If the tenant seeks recovery of the overpaid

amount he must bring the suit or make the deduction within six

months. - Jamnadas Harakhchand v/s Narayanlal Bansilal,



of 1947), S.20 - houses and rents - Houses and Rents – Scope.

129.1. Section 20 gives the tenant a general right of recovery of

the overpaid rent within six months from the date of payment.

Without prejudice to any other mode of recovery, he may deduct

the overpayment from any rent payable by him to the landlord.

Deduction is one mode of recovery. If the amount is incapable of

recovery because of the bar of limitation, it cannot be recovered by

deduction. In other words, the right of recovery by deduction is

barred at the same time as the right of recovery by suit. If the

tenant seeks recovery of the overpaid amount he must bring the

suit or make the deduction within six months. - Maganlal

Chhotabhai Desai v/s Chandrakant Motilal, reported in AIR 1969 SC

37 (FB). Para No.7.


1947), S.24 - houses and rents - Houses and Rents - Withholding of

essential supply.

130.1. The supply of tap water is an essential supply. Where the

supply of municipal water had been cut off by the Municipality as a

result of the default in payment of municipal dues, by the

appellant's predecessor-in-title:



103

130.2. Held, that the appellant was not to blame for the default in

payment of municipal dues, but it was open to him to pay the dues

and have the water connection restored. He might not have been

directly responsible for the cutting off the supply of municipal

water, but it was within his power to get the supply restored by the

Municipality on payment of prescribed fee. Hence, in so far as the

appellant omitting to do so, such an omission was attributable to

him within the meaning of explanation II which was inserted into

the Act in 1953. Therefore the appellant was continuing to withhold

an essential supply within the meaning of S. 24, as it stood in 1953.

130.3. Section 24 makes it essential that the particular essential

supply should have been available for the use of the tenant at

some time when the Act was in force. If, on the other hand, the

section were construed in the sense that the supply should have

been "enjoyed" at some time in the remote past, that is, before the

Act was enforced, the act of the landlord, when it was committed,

might not have been penal ; but the same act would become penal

on the coming into effect of the Act. In that sense, it would amount

to ex-post facto legislation, and such could not have been the

intention of the Legislature an intention which would come within

the prohibition of Art. 20 (1) of the Constitution. It would be

straining the language of the section to say that "enjoyed" should

mean "had the right to enjoy". That this was not the intention of the

Legislature, becomes clear on an examination of the terms of sub-s.

(3) of that section. It speaks of "the tenant has been in enjoyment

of the essential supply or service and that it was cut off or withheld

by the landlord", which imports recent "enjoyment" until the supply



104

was cut off, and not, "enjoyment" in the remote past. The

provisions of S. 24 have to be construed as a whole, in order to find

out the true intention of the Legislature. - Kanaiyalal Chandulal

Monim v/s Indumati T. Potdar, reported in AIR 1958 SC 444 (FB).


1947), S.28 - Civil P.C. (5 of 1908) , S.9 - Civil Court - inherent powers

- Power of Civil Court to decide question to its own jurisdiction.

131.1. A Civil Court has inherent power to decide the question of

its own jurisdiction, although, as a result of its enquiry, it may turn

out that it has no jurisdiction over the suit. Thus, a City Civil Court

has jurisdiction to decide whether it has jurisdiction to entertain a

suit for possession of premises brought by a landlord against a

tenant in view of S. 28, Bombay Rents, Hotels and Lodging House

Rates control Act. - Messrs. Bhatia. Co-operative Housing- Society

Limited v/s D. C. Patel, reported in AIR 1953 SC 16 (Four Judges).


of 1947), S.28 - Civil P.C. (5 of 1908) , O.1 , R.10 - houses and rents -

Small Causes Court - Houses and Rents - Jurisdiction of Small Cause

Court.

132.1. Where a landlord brings a suit for possession and rent

against his tenant after giving a notice to quit and also impleads

therein a sub-tenant to whom the premises were illegally sub-let by

the tenant the suit would never the less be one between a landlord

and tenant within the meaning of S. 28 and the Small Cause Court

would have jurisdiction to entertain the suit. The sub-tenant though

not a necessary party to the suit is a proper party and his joinder

cannot alter the nature of the suit.



105

132.2. "Any claim or question" in S. 28 need not necessarily be

one between a landlord and a tenant. In any case, once there is a

suit between a landlord and a tenant relating to the recovery of

rent or possession of the premises the Small Cause Court acquires

the jurisdiction not only to entertain that suit but also "to deal with

any claim or question arising out of the Act or any of its provisions"

which may properly be raised in such a suit. - Messrs, Importers

and Manufactures Ltd. v/s Pheroze Framroze Taraporewala, reported

in AIR 1953 SC 73 (FB).


1947), S.28 - houses and rents - Houses and Rents – Scope.

133.1. The provisions of S. 28 cover a case where in a suit one

party alleges that he is the landlord and denies that the other is his

tenant or vice versa and the relief asked for in the suit is in the

nature of a claim which arises out of the Act or any of its provisions.

On a proper interpretation of the provisions of S. 28 the suit

contemplated in that section is not only a suit between a landlord

and a tenant in which that relationship is admitted but also a suit in

which it is claimed that the relationship of a landlord and a tenant

within the meaning of the Act subsists between the parties. The

Courts which have jurisdiction to entertain and try such a suit are

the courts specified in S. 28 and no other. Where the plaint in the

suit admits that the defendants were landlords of the premises at

various stages and the plaintiffs were their tenants, the suit is

essentially a suit between a landlord and a tenant. The suit does

not cease to be a suit between a landlord and a tenant merely

because the defendants denied the claim of the plaintiffs. Whether



106

the plaintiffs are the tenants would be a claim or question arising

out of the Act or any of its provisions which has to be dealt with by

the court trying the suit. - Babulal Bhuramal and another,

Appellants v. Nandram Shivram, reported in AIR 1958 SC 677 (FB).


1947), S.28(1), S.29A - houses and rents - Houses and Rents - Bombay

City Civil Court, jurisdiction of - Scope and effect of S. 28 (1) - Suit by

licenser against licensee for reliefs based on termination of licence -

Defence raising question as to existence of relationship of landlord

and tenant - Suit not within exclusive jurisdiction of Court of Small

Causes but can be entertained by Bombay City Civil Court.

134.1. The plaintiff instituted a suit in the City Civil Court, Bombay,

asking for a declaration that the defendants were not entitled to

enter into or remain in possession of a certain shop in Greater

Bombay and for a permanent injunction restraining them from

entering the shop. The allegations on which the claim to these

reliefs was based were that the defendants had been granted a

licence to use the shop of which the plaintiffs were the tenants

under the owner and that defendants were wrongfully continuing

there in spite of the termination of the licence and were thereby

preventing the plaintiffs from carrying on their business in the shop.

The defence to the suit was that the relationship between the

parties was not that of licenser and licensee but that the shop had

in fact been sub-let to them and that the agreement between the

parties had been given the form of a licence only as a cloak to

protect the plaintiffs from ejectment under the Act by its landlord

on the ground of unlawful subletting. The defendants contended



107

that as they were really tenants, their landlords plaintiffs were not

entitled to remove them from possession in view of the provisions

of the Act :

134.2. Held that S. 28 (1) of the Act was not attracted and the suit

was not within the exclusive jurisdiction of the Court of Small

Causes. The City Civil Court, Bombay, therefore, had jurisdiction to

entertain the suit.- Raizada Topandas v/s M/s. Gorakhram

Gokalchand, reported in AIR 1964 SC 1348 (FB).


1947), S.28 - houses and rents - Houses and Rents - Dispute between

housing society and member referred to arbitrators under Section 54,

Bombay Co-operative Societies Act-Housing society claiming

declaration that opposite party has ceased to be member and for

order for delivery of vacant possession of premises belonging to it on

the ground that he had made persistent defaults in payment of loan -

No allegation made by Society of the existence of the relationship of

landlord and tenant-Mere fact that the opposite party raised such a

plea before the committee of arbitrators will not attract the operation

of S. 28 of the Act and oust the jurisdiction of arbitrators to grant relief

of possession. - Vasudev Gopalkrishna Tambwekar v/s Board of

Liquidators, Happy Home Co-operative Housing Society, Ltd., reported

in AIR 1967 SC 369 FB).


1947), S.28(1) - Arbitration agreements regulated by Bombay Rent Act

- Dispute as to possession of premises - Court of Small Causes alone

and not arbitrator has jurisdiction.

136.1. Public policy requires that contracts to the contrary which



108

nullify the rights conferred on tenants by the Act cannot be

permitted. Therefore, public policy requires that parties cannot also

be permitted to contract out of the legislative mandate which

requires certain kind of disputes to be settled by special Courts

constituted by the Act. Thus, arbitration agreements between

parties whose rights are regulated by the Bombay Rent Act cannot

be recognised by a Court of law. So the question whether there is

relationship of landlord and tenant between the parties or such

other jurisdictional questions may have to be determined by the

Court where it falls for determination - be it the Court of Small

Causes or the ordinary Civil Court. If the jurisdictional question is

decided in favour of the Court of exclusive jurisdiction the suit or

proceeding before the ordinary Civil Court must cease to the extent

its jurisdiction is ousted.

136.2. Both by reason of S. 28 of the Bombay Rent Act and by

reason of the broader considerations of public policy, the Court of

Small Causes has and the Arbitrator has not the jurisdiction to

decide the question whether the respondent licensor-landlord is

entitled to seek possession of the two studios and other premises

together with machinery and equipment from the appellant-

licensee-tenant. The relationship between the parties being that of

licensor-landlord and licensee-tenant and the dispute between

them relating to the possession of the licensed-demised premises,

there is no help from the conclusion that the Court of Small Causes

alone has the jurisdiction and the Arbitrator has none to adjudicate

upon the dispute between the parties. - Natraj Studios (P) Ltd v/s

Navrang Studios, reported in AIR 1981 SC 537 (FB).



109


1947), S.28 - houses and rents - Jurisdiction of Court of Small Causes -

Composite relief for possession of land and of superstructure thereon -

Entire suit cannot be rejected - Court can grant relief regarding

possession of land.

137.1. The jurisdiction conferred by S. 28 enables the Court to try

any suit between the landlord and the tenant relating to recovery of

possession of the premises. The premises was the plots of land only

and not the superstructure. The plaintiff/landlord of the land was

entitled to claim the relief for possession of his land and in effect

the decree for possession of the land would mean that the land

should be delivered to him without the structure. The jurisdiction of

the Small Cause Court to grant an effective decree for possession

of the land could not be denied. Though the plaintiff had sought

two reliefs one under the Bombay Rent Act and another under the

Contract, the entire plaint could not be rejected. So far as the relief

of possession of the premises, i.e. the land was concerned, it was

exclusively within the jurisdiction of the Small Cause Court. In

asking for the relief for possession of the land, the plaintiff was

entitled to incidental and consequential reliefs such as for

effectively taking possession of the plot without the structures. The

prayer in the plaint asking for possession of the land including the

structures would not take the suit out of the competence of the

Small Cause Court. In asking for relief as to possession of the land,

he was entitled to ask for the demolition of the structures and for

grant of vacant possession of the plots.- Jamnadas Dharamdas v/s

Dr. J. Joseph Farrei, reported in AIR 1980 SC 1605 (FB), para Nos.



110

10,18 & 21.


1947), S.28 - eviction - Existence of one of the statutory grounds

mentioned in Ss. 12 and 13 is a sine qua non for assign a decree for

eviction.

138.1. The Rent Court under the Act is not competent to pass a

decree for possession either in invitum or with the consent of the

parties on a ground which is dehors the Act or ultra vires the Act. A

prohibitory mandate to the Rent Court that it shall not travel

beyond the statutory grounds mentioned in Sections 12 and 13,

and to the parties that they shall not contract out of those statutory

grounds in inherent in the public policy built into the statute. 12 Guj

L.R. 1012, Approved. (1921) 2 K.B. 291, Rel. on. (Paras 16 , 17 , 18)

138.2. The mere fact that O.23 R.3 of C.P.C. is applicable to the

proceedings in a suit under the Bombay Rent Act, does not remove

that prohibition on the Rent Court or empower into make a decree

for eviction dehors the statute. - Nagindas Ramdas v/s Dalpatram

locharam, reported in AIR 1974 SC 471 (FB).


1947), S.28 - eviction - Eviction suit - Joinder of sub-tenant – Effect 0f.

139.1. Joinder of sub-tenant in a suit for eviction does not make it

any the less a suit between landlord and tenant. Hence it cannot be

said that so far as sub-tenant is concerned the suit is one as

against a trespasser and so the Court has no jurisdiction to

entertain it. AIR 1953 SC 73, Relied on. AIR 1967 SC 1853, Dist.-

Thakker Keshavalal Mohanlal v/s Parekh Amrutlal Harilal, reported

in AIR 1973 SC 1099.



111


1947), S.28(1) - Small Cause Court - Houses and Rents - Exclusive

jurisdiction of Small Cause Court - Relationship of landlord and tenant

between parties in respect of every matter covered by Section 28 (1)

not necessary.

140.1. Houses and Rents - Registered agreement embodying deed

of charge for construction loan executed by defendants in favour of

plaintiff - Deed complying with all the requirements of Section 18

(3) Defendants failing to let out promises after completion to the

plaintiff in spite of provisions to that effect in deed of charge - Suit

by plaintiff for enforcing charge for recovery of loan - Held, that suit

related to "claims or questions arising out of this Act or any of its

provisions "within Section 28 (1) and, therefore, Special Court

under Section 28 alone had jurisdiction - Rights of plaintiff flowed

from the Act and not from the contract, namely, deed of charge. -

Sushila Kashinath Dhonde v/s Harilal Govindji Bhogani, reported in

AIR 1971 SC 1495 (FB).


of 1947, S.28 , S.11 , S.49(2)(iii) - Bombay Rents, Hotel and Lodging

House Rates Control Rules (1948) , Chap.IV , R.5 , R.6 - tenancy -

Houses and Rents - Small Cause Court, at Ahmedabad exercising

jurisdiction in the matter of fixation of standard rent, under Bombay

Act - Municipal taxes payable by tent due and deposited into Court by

order of Court - Landlord not to withdraw - Distress warrant in respect

of taxes can be issued on application by landlord under S. 53

Presidency Small Cause Courts Act.

141.1. The Court of Small Causes Ahmedabad, during the



112

pendency of proceeding before it determining the standard rent of

the premises in exercise of the power under S. 11 of the Bombay

Act, has jurisdiction to issue a distress warrant under S. 53 of the

Presidency Small Cause Courts Act read with R. 5 of the rules

framed under S. 49 of the Bombay Act, for recovery of the amount

due as municipal taxes payable by the tenant as part of rent and

which has been deposited in Court.

141.2. By the enactment of the Ahmedabad City Courts Act, 1961,

the proceedings before the Court of Small Causes at Ahmedabad

were governed by that Act and by virtue of the amendment made

in Section 28 of Bombay Act 57 of 1947 it became a Court of

exclusive jurisdiction to try suits, proceedings, claims and questions

arising under that Act. Being a Court governed by the Presidency

Small Cause Courts Act, the Ahmedabad Court of Small Causes was

competent to exercise, subject to the Ahmedabad City Courts Act,

all the powers which a Presidency Small Cause Court may exercise.

Power to issue a distress warrant being expressly conferred by

Section 53 of the Presidency Small Cause Courts Act upon the

Courts governed by it, the Court of Small Causes, Ahmedabad, was

competent to exercise that power.

141.3. Rule 5 was framed under the Bombay Act 57 of 1947 in

exercise of the authority conferred by Section 49(2) (iii). After the

enactment of the Ahmedabad City Courts Act, 1961 Rule 5 as

originally framed by the Government of Bombay continued in force

by virtue of Section 87 of the Bombay Reorganization Act 11 of

1960, and applied to the Ahmedabad Small Cause Court. When

Rule 5 was framed under Bombay Act 57 of 1947 it was not ultra



113

vires and it has also not become ultra vires after the enactment of

the Ahmedabad City Courts Act in its application to the city of

Ahmedabad.

141.4. The amount of municipal taxes was due and it was payable

by he tenants and though deposited in Court in proceeding for

fixation of standard rent, it could not be withdrawn by the Landlord.

The municipal taxes were, therefore in arrears and a distress

warrant could be applied for by the Landlord under S. 53 of the

Presidency Small Cause Courts Act. - Khemchand Dayalji v/s

Mohammadbhai Chandbhai, reported in AIR 1970 SC 102 (FB). Para

Nos. 7, 8 & 11.


1947), S.29 - Appeal against order of eviction - Maintainability -

Appeal by Sub-tenant - Tenants not impleaded - Appeal is defective

and not maintainable on that score. - Arjun Khiamal Makhijani v/s

Jamnadas Tuliani, reported in AIR 1989 SC 1599.


1947) (as applied to Gujarat State on 31-12-1963), S.51 , Proviso (1)

(ii) and Proviso (2) - Saurashtra Rent Control Act (22 of 1951) , S.13(1)

(e) and S.15 - eviction - words and phrases - Sub-letting before 1-1-

1964 - Notice to terminate not given before 1-1-1964 - Suit by landlord

for eviction on ground of sub-letting after 1-1-1964 - Maintainable -

Whether S.51 Proviso (1)(ii) applies or (2) - 'Privilege' meaning. - Isha

Valimohamad v/s Haji Gulam Mohamad and Haji Dada Trust, reported

in AIR 1974 SC 2061.

143.1. Above referred ratio is impliedly overruled in the case of V.

Dhanapal Chettiar v/s Yesodai Ammal, reported in AIR 1979 SC



114

1745 (Seven Judges). Wherein it is held that :- In order to get a

decree or order for eviction against a tenant under any State Rent

Control Act it is not necessary to give notice under Section 106 T. P.

Act. Determination of a lease in accordance with the Transfer of

Property Act is unnecessary and a mere surplusage because the

landlord cannot get eviction of the tenant even after such

determination. The tenant continues to be so even thereafter. That

being so, making out a case under the Rent Act for eviction of the

tenant by itself is sufficient and it is not obligatory to found the

proceeding on the basis of the determination of the lease by issue

of notice in accordance with Section 106 of the T. P. Act. On the

question of requirement of such a notice under S.106 T. P. Act the

difference in the language of various State Rent Acts does not bring

about any distinction. It is not correct to say that S. 106 of the T. P.

Act merely providing for termination of a lease either by the lessor

or the lessee by giving the requisite notice is an extra protection

against eviction. The purpose of this provision is merely to

terminate the contract which the overriding Rent Acts do not permit

to be terminated. Even if the lease is determined by forfeiture

under the Transfer of Property Act the tenant continues to be a

tenant, that is to say, there is no forfeiture in the eye of law. The

tenant becomes liable to be evicted and forfeiture comes into play

only if he has incurred the liability to be evicted under the State

Rent Act, not otherwise.


1947), - Bombay Land Requisition Act (33 of 1948) - houses and rents

- Houses and Rents - The two Acts are not in pari materia.



115

144.1. The Rent Act was enacted for the purpose of amending and

consolidating the law relating to the control of rents and repairs of

certain premises, of rates of hotels and lodging houses and of

evictions. A perusal of the various provisions will clearly show that

the Rent Act deals substantially, with the relationship of landlord

and tenant, in the matter of eviction, payment of rent, increase of

rent under certain circumstance and the circumstances under

which the landlord can get possession of the property.

144.2. The Requisition Act was passed to provide for the

requisition of land, for the continuance of requisition of land and for

certain other purposes. The various provisions, in this Act, relate to

the circumstances under which requisition of land can be made, for

a public purpose, and the procedure to be adopted for the same, as

well as the payment of compensation. It will, therefore, be seen

that this Act deals with a matter, so totally different from that dealt

with by the Rent Act. There is absolutely no similarity between the

two enactments, and it cannot be held that the Requisition Act

relates to the same person or thing, or to the same class of persons

or things as the Rent Act. Hence the two Acts cannot be considered

to be in pari materia.

144.3. Section 15 of the Rent Act, cannot be read into any part of

the Requisition Act, much less with S. 6 of the latter Act. Under S. 6

of the Requisition Act, notwithstanding the fact that an assignment

of tenancy rights may have been made, which is permissible under

the Rent Act, such an assignment can be deemed to create a

vacancy of the premises, so as to give jurisdiction to the State

Government to requisition the same. There is no question of the



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Legislature, having given something to the assignee of tenancy,

under the Rent Act, by permitting an assignment, under S. 15 and

taking it away by requisitioning the premises, under S. 6 of the

Requisition Act. Therefore, the transfer or assignment of tenancy

rights, contemplated under Expl. (a) to S. 6 of the Requisition Act

cannot be understood in a limited manner. They deal with all

assignments and not only prohibited assignments under the Rent

Act. - M/s. Shah and Co. Bombay , Petitioner v. State of

Maharashtra, reported in AIR 1967 SC 1877 (Five Judges).



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