Supreme Court's Judgments on 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.

2. Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 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 subtenant "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 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


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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 subtenant.

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 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 successorininterest of S brought a suit in the City Civil

Court for ejectment against the defendant who was a subtenant of one of the


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blocks in the demised premises, alter giving a notice to quit. The subtenant

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

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. Cooperative

Housing Society Limited v/s D. C. Patel, reported in AIR 1953 SC 16 (Four

Judges).

3. Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 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 subtenants Case does not fall under

S.4(4)(a) Protection under Act is not available to sublessees.

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. Subsec. (4)


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(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 subsec.(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 subsec.(1) of S.4. In fact, the language of subsec.(4)(a) and

subsec.(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 belonging to a local authority under a building agreement that the sub

lessees were taken out of the exemption contained in subsec.(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 subsec. (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 subsec.(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.

4. Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947), (as


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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 subsec. (1) and not subsec. (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 subsec. (4) (a) by 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 subletting 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 subsec. (1) and not sub

sec. (4) (a), and subsec. (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 subtenants 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


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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 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).

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

6. Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947), S.5,

S.7, S.11 Standard rent Provisions pegging it down to rent paid on 191940

or first rent paid for premises let out after 191940, is said to be reasonable?


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Held. No.

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.

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

8. Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947)

Sections 5(4a) and 15A Under an agreement of lease and licence D allowed W

to occupy the shop premises in question. The agreement provided that "it shall


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remain in force for 11 months and will automatically come to an end on 313

1966 on which day W shall remove himself from the premises of his own

accord." By efflux of time the licence stood revoked on 1466 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 15A were introduced in the Bombay Rent Act by an amendment in

1973. W claimed the protection conferred on the licensee under Section 15A.

Held that W was not entitled to the protection conferred on a licensee by Section

15A 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 15A 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 15A (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

15A. 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 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


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1973 he could not take shelter under Section 15A.

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).

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


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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.


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 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).


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


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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 nonagricultural 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).


S.5(10) , S.12 and S.12(3)(a) houses and rents Fixation of standard rent

Application for fixation of rent dismissed for nonprosecution – 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 nonprosecution it could

be reasonably inferred that it was not a bona fide application at all. Where in

a case. it was admitted that 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. Nonprosecution 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


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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/ 1991975 (Guj), Reversed. Mistry

Premjibhai Vithaldas v/s Ganeshbhai Keshavji, reported in AIR 1977 SC 1707

(FB). Para Nos.10, 11 &13.


S.5(10), S.7 Whether standard rent can be altered and refixed 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.


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


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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.


S.5(11) (c) Whether the status of a member in the case of tenant copartnership

housing society is that of a tenant within the 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 Coop. Housing Society Ltd,

reported AIR 2008 SC 746, para Nos.27 & 28.


S.5(11) (c) & 28 Tenant of copartnership 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 copartnership 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 Cooperative Court.

M/s. Anita Enterprises v/s Belfer Coop. Housing Society Ltd, reported AIR

2008 SC 746, para Nos.33, 35 & 36.


S.5(11)(c)(ii) and S.15 Tenant of nonresidential 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 nonresidential premises as a tenant after the

contractual period is over cannot bequeath his right to occupy the property as


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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 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 subclause (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 subclauses (i) and(ii) of Cl.(c) of subsec.(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 subclauses. It has, therefore, to be

understood that even the extended meaning given to the expression 'tenant'

by subsec. (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 subclause(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 subcl.(ii) thereof. When the statute

has imposed such a restriction, it is not possible to say that the tenant can

bequeath the right to such tenancy in the case of premises let for business,


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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.


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 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.



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S.5(11) (c), S.15(2) tenancy Validation of subtenancies by S.15(2) Scope

Subtenancy created by subtenant Benefit of S. 15(2) if available.

19.1. Section 15(2) which raises the ban from all subletting effected before 21

51959 provided the provisions of that subsection are fulfilled relates to sub

tenancies not permitted by contract between the landlord and tenant and

which would, but for the said subs. (2), fall within the prohibition enacted in

the amended subsection (1) of S. 15.

19.2. Upon the amendment of subs. (1) of S. 15 by the Ordinance and by its

related Act, the prohibition against subletting did not operate in those cases

where the subletting 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 subtenancies. It is in this light that the scope of subs.

(2) of S. 15 has to be determined. The removal by subs. (2) of S. 15 of the

prohibition is limited only to those subtenancies which were created before

May 21, 1959. Such a limitation would be inappropriate to subtenancies

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

subtenant 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 subtenancies permitted by contract. Inasmuch as

subs. (2) of S. 15 specifically attaches the condition that the subtenant

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 subtenants, that is to say sub

tenants who were let in and given possession without any contractual right


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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 sublet 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 subtenancy M

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

could be no reason why T's subtenancy should not be regarded as a valid

subtenancy 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).


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.

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.


19

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. Jadhav v/s Nirmala Ramchandra Kore,

AIR 2000 SC 1386, para Nos.5 & 8.


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.


20


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 standard rent of a whole

was a specific amount, it stands to reason that the standard rent of a part or

subdivision 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.


21

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, 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.


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).


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, Hotel and


22

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).


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 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


23

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).


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).


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, reported in AIR 1997 SC 2510.


S.11(1)(e) Standard rent Application for fixation of Subsistence of pre


24

existing dispute is sine qua non for making application. Held. No.

28.1. There is no need for a preexisting 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 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.


S.11(4) Sick Industrial Companies (Special Provisions) Act (1 of 1986), S.22

Eviction petition for nonpayment 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. ,


25

Petitioner v. Virchandbhai B. Shah, reported in AIR 1999 SC 3839, para Nos. 9

to 11.


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 landlordplaintiff, 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 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.


26

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).


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 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. Subsection (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 subsection 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 subsection will


27

operate is when the decree for recovery of possession will have to be passed.

Thus, the language of the subsection 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.

31.3. On the termination of tenancy by efflux of time the landlord filed a suit on

2541957 for possession of the premises. By a notification issued on 168

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).


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 Sublessee 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


28

being transferred or assigned, and devolves on his death only in the manner

provided by the statute. The right of a 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.


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 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


29

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 subrule, are inapplicable.

Ramkarandas Radhavallabh v/s Bhagwandas Dwarkadas, reported in AIR

1965 SC 1144.


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 subtenant 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 subtenant 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 longer even a statutory tenant. In other words S.

14 would come into play in favour of the subtenant 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.


30

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 preexisting subtenant and the landlord.

Hiralal Vallabbram v/s Sheth Knsturbhai Lalbhai, reported in AIR 1967 SC

1853 (FB).


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.


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


31

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 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 upkeep 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.


S.12 houses and rents Houses and Rents Scope and object Section


32

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).


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 claim protection from eviction. Maganlal Chhotabhai

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

11.


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


33

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 subs. (1) where he raises a dispute about the standard rent

payable, he must make an application to the court under subs. (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 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).


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


34

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 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


35

were not passed the provisions of the 1947 Act should be made applicable. It

is with this 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.


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 10C 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 Shankar

Chittarmal Gupta v/s Smt. Gangabai Tokersey, reported in AIR 1971 SC 659.


36


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.


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.


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 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 subsections (2) and (3) of S. 11 if


37

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.


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 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).


38


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 tenant has to pay or tender in

Court to comply with the conditions of cl. (b) of subs. (3) is standard rent

and permitted increases, and the Court has under cl. (b) of subs. (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).

47. Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947) as

amended by Act 61 of 1953, S.12(3)(a) houses and rents Houses and Rents


39

Notice referred to in S.12(3)(a) refers to notice under S.13(2) Suit for

ejectment after amendment Notice served on tenantNo 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 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


40

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 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.


S.12(3)(a) (as it stood before amendment of 1963), (1) and (2) tenancy

Houses and Rents On conditions f subs. (3) (a) being satisfied, tenant by

tendering arrears of rent after expiry of one month from service of notice under

subs. (2) cannot claim any protection from eviction under subs. (1) and it is

immaterial whether tender was made before or after institution of suit In a case

falling within subs. (3) (a), tenant must be dealt with under special provisions

of subs. (3) (a) and he cannot claim any protection under general provisions of

sub s. (1).

48.1. .If the conditions of subs. (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 subs. (2), he

cannot claim the protection under subs. (1). It is immaterial whether the

tender was made before or after the institution of the suit. In a case falling

within subs. (3) (a), the tenant must be dealt with under the special

provisions of subs. (3) (a) and he cannot claim any protection from eviction

under the general provisions of subs. (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


41

to make payment thereof until the expiration of the period of one month after

notice referred to in subs. (2)", and the other conditions of subs. (3) are

satisfied. This 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).


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/ 221219670 (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


42

Appln. No. 859 of 1967, D/ 3131971 (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).


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 noncompliance. 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 1978 SC 952. Para

Nos. 6 to 8.


S.12(3)(a) eviction Eviction Readiness and willingness to pay Meaning of.


43

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.


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 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.


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.


44

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.


S.12(3)(a) ”Arrears of rent' Release of all rights, title and interest in property

in dispute in favour of coowner. 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.


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, 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


45

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 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.


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.



46

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 nonpayment 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 the ground contained in Cl. (g) of subsec. (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.


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


47

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 punctuality. Hence the tenant can be regarded as having

deposited the rent "regulary" as contemplated in cl. (b) of subsec. (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).


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. Subsection (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 subsection (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 subsection

(2). The Court was therefore bound to pass a decree for eviction. Jaywant S.


48

Kulkarni v/s Minochar Dosabhai Shroff, reported in AIR 1988 SC 1817 (FB).


S.12(3)(a) Arrears of rent Transfer of lease hold premises 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, reported in AIR 1997 SC

2437.


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 falls due. Thus, where the rent is payable by the


49

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.


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.


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 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


50

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.


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.


S.13 Companies Act (1 of 1956), S.468, S.446(3) Liquidation

proceedings"Tenancy rights" of liquidated CompanyMay not be assets for

liquidation proceedings Words and phrases "Tenancy 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.


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


51

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).


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

of eviction is can be passed?Held. Yes. Ansuyaben Kantilal Bhatt v/s Rashiklal

Manilal Shah, reported in AIR 1997 SC 2510.


(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


52

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.


S.13, S.14 Subtenant 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 Subtenant is liable to eviction

for default in payment of rent by main tenant. Held. No.

69.1. When Section 14 of the Act uses the expression "subject to the provisions

of this Act" subtenant 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 subtenant 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 subtenant 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


53

demised a parcel of land. The lease was for twentyone 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 the lessors. On the

termination of the lease either at the end of twentyone 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

nonagricultural 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


54

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 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 23548. Dr. K. A.

Dhairyawan v/s J. R. Thakur, reported in AIR 1958 SC 789 (FB).


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 coowner of hers in

another premises. Julieta Antonieta Tarcato v/s Suleiman Ismail, reported in

AIR 2007 SC (supp) 536.


S.13(1) Recovery of possession Suit by landlord Limitation Act is applicable

to such suit. Ss. 12 and 13 coexist and must be harmonised to effect purpose

and intent of legislature for purpose of eviction of tenant Suit for recovery of


55

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 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,


56

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, coexist 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.


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


57

partly for storing spare parts of the motorcycle. 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.

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


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


58

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.


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.


S.13(1)(e), S.15(2) Any subletting, 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 sublease 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 subtenant 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.


(as applied to Gujarat), S.13(1)(e) tenancy words and phrases "Has sublet"

Interpretation To deprive tenant of protection under the Act, subletting need


59

not subsist at the date of the suit. Gajanan Dattatraya v/s Sherbanu Hosang

Patel, reported in AIR 1975 SC 2156 (FB).


(as applied to Gujarat), S.13(1)(e) tenancy words and phrases "Has sublet"

Interpretation To deprive tenant of protection under the Act, subletting need

not subsist at the date of the suit.

80. The provisions of the Act indicate that a tenant is disentitled to 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 subletting 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 Swaminathan, reported in AIR 2008 SC 108. Gajanan

Dattatraya v/s Sherbanu Hosang Patel, reported in AIR 1975 SC 2156 (FB).


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


60

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 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 ,



S.13(1)(e) Eviction Subletting 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.


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 circumstances of the case. Apart from

the parents, spouse, brothers, sisters, sons and daughters, if any other relative


61

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.


S.13(1)(e), S.15(2) If there was no material change in status of subtenant 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 subtenant, whether in such

situation, execution of sublease subsequent to February 1, 1973 by tenant in

favour of subtenant would militate against protection offered by S. 15 (2) of

Act.

84.1. Held – No. Execution of such sublease 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.


S.13(1)(e) and S.15 houses and rents maxims nonobstante clause

contract special leave appeal plea estoppal waiver Houses and Rents

Nonobstante clause in S. 15 Subletting by tenant in pursuance of agreement

with landlord Tenant incurs liability to ejectment Agreement becomes illegal

Public policy Plea of waiver by landlord If available to tenant Plea of pari

delicto.

85.1. This section prohibits subletting and makes it unlawful for a tenant to

assign or to transfer his interest in the premises let to him. The nonobstante

clause would mean that even if any other law allowed subletting, e.g., S. 108


62

of the Transfer of Property Act the subletting 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).


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 appellantdefendant has not been able to successfully prove that he is

controlling the company, it was held by the appellate court that 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.


S.13(1)(e) Eviction Subletting Suit shop let out to tenant. Tenant carrying

on business in partnership with his sons. Retirement of tenantfather from firm

and it became proprietor firm leaving only son of tenant in suit shop. Whether, it


63

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 tenantfather 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 tenantfather and his

two other sons retired from the business of the partnership. Various clauses of

the new partnership deed clearly showed that after the tenantfather 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 subletting. Held, under the new partnership it was the sons of the

tenantfather 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 tenantfather would occasionally visit the shop premises does not

advance the case that he (tenantfather) 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 tenantfather 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.



64

S.13(1)(e), S.15(2) Any subletting, 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 sublease 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 subtenant 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.


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.


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


65

Mundada, reported in AIR 2003 SC 2713, para No.8.


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 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.


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.


66

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 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.


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.


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


67

completed his education, and the 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.


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.

Viceversa 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.


S.13(1)(g) Eviction Bona fide requirement For starting business Possessing

knowhow for doing business Not a requirement.

96.1. The landlord who seeks eviction of his tenant on ground of bona fide


68

requirement of starting business need not establish that he possesses the

knowhow 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 knowhow is

a precondition 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.


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, reported in AIR 1999 SC 3089, para No.10.


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


69

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.


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, reported in AIR 1998 SC 1990 (FB).


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 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


70

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 subcl. (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 1964 SC 1676 (FB).


S.13(1)(g), S.13AA tenancy Evidence Benefit under Section 13A1

Landlord, a retired army officer acquiring premises, already in possession of

tenant, after his retirement Not entitled to the benefit under S. 13AA for

recovery of the possession of premises from such tenant.

101.1. Section 13AA cannot be availed of by an exmember of the armed

forces to recover from the tenant possession of a building which he acquires

after his retirement. Section 13A1 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. 13AA 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


71

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 13AA 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. 13A1. When he had not established that he was

really in bona fide need of the disputed premises, he would not also be

entitled to benefit under S. 13 (1) (g). Mrs. Winifred Ross v/s Mrs. Ivy

Fonseca, reported in AIR 1984 SC 458.


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


72

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).


(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.

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/.391959 (Bom); AIR 1972 Bom 354 and

Civil Revn. Appln. No. 896 of 1963, D/73l967 (Guj), Approved. Bapubhai

Mohanbhai v/s Mahila Sahakari Udyog Mandir, reported in AIR 1975 SC 2128

(FB).


73


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 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 byelaw 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 subsection (1) of

S. 13 of the Bombay Rents Control Act, 1947 and the plea that no statutory


74

rule or bye law having been made under the Bombay Act, 1944 and the

Notice not 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.


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 subs. (3A).

105.1. The ground specified in Cl.(hhh) of subsection (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 subs. (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 authority, the premises are required for the

immediate purpose of demolition. M/s. Velji Lakshmi v/s M/s. Benett


75

Coleman and Com., reported AIR 1977 SC 1884. para No.30.


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 subs. (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.


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 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,


76

reported in AIR 1977 SC 1357 (FB).


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).


S.13(1)(k) eviction Eviction under Nonuser 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 nonuser 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 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


77

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 subtenant 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 superstructures on the land in

dispute was itself a user. As the super 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

subtenancy was created long before the Act came into force, there would be

no question of eviction of subtenant as the subtenancy was not illegal. Vora

Rahimbhai Haji Hasanbhai Popat v/s Vora Sunderlal Manilal, reported in AIR

1986 SC 174.



78

S.13(2) eviction tenancy 'Comparative hardship' 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 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


79

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).


S.13(2) Comparative hardship Determination Relevant factors – whether

words other 'reasonable accommodation' in Section 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, reported in AIR 2003 SC 2713, para No.11.


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


80

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

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.


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. 13AA 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. 13AA which is sufficiently plain does not warrant or invite


81

such an interpretation.

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 bypassed 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 13AA 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. 13AA. Shivram

Anand Shiroor v/s Mrs. Radhabai Shantaram Kowshik, reported in AIR 1984

SC 786 (FB).


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, reported in

AIR 1998 SC 569.


S.14 houses and rents Subtenant Who is Person entering into possession of


82

portion of demised premises only as paying guest He does not acquire status of

subtenant. Rusi Dinshawji Deboo v/s Cawasji Rustomji Patel, reported in AIR

1987 SC 1771.


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 141967 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.


S.14 and S.15(2) (as amended in Gujarat in 1959), S.28 eviction Houses and

Rents Ejectment of subtenant Suit for ejectment on ground of subletting and

arrears of rent against tenant and subtenant Suit dismissed on the score that

subtenant was protected by S. 15 Appellate Court, holding subtenant to be a

trespasser, ordering him alone to be ejectedIn 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 Sheth Knsturbhai Lalbhai, reported in AIR 1967 SC 1853

(FB).


S.14, S.15A Licensee Meaning of Licensees created whether by landlords or

tenants before 121973 and in occupation of at least single room Are entitled


83

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

protected and subsequent licences were made illegal as was done in the case

of subtenancy 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.


S.15 houses and rents Houses and Rents (Obiter) Open land let Lessee

constructing building on it Subletting of building Bar of Section 15 will


84

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 sublessee 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 landlordtenant relationship is established.

Laxmidas Morarji (D) by L.Rs. v/s Miss Behrose Darab Madan, reported in

AIR 2009 SC 2711 (FB).


S.15(2) A subsequent assignee from a sublessee is not entitled to protection

under Section 15 (2).

121.1. Section 15 (2) of the Act protects only sublease 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 subtenants of

contractual tenants. The Ordinance did not confer any protection on further

transfer or further subletting by sublessees of the contractual tenants. Jai

Singh Murarji v/s M/s. Sovani (P) Ltd., reported in AIR 1973 SC 772 (Four


85

Judges).


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. 15A. 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 sistercompany

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

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


86

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

nonrenewal of the Leave and Licence Agreement after the expiry of its period

nor it had considered the effect of Section 15 and 15A 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 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.

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


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.


S.18(1) houses and rents Interpretation of Statutes Houses and Rents

Construction of Interpretation of Statutes Penal Statutes.


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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 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).


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).


S.19(2) Interpretation of Statutes Interpretation of Statutes Houses and

Rents Relinquishment of tenancy Meaning Held, transaction amounted to


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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 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 subs. (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).


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 overpayment from any

rent payable by him to the landlord. The deduction provided is one mode of


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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. Jamnadas Harakhchand v/s

Narayanlal Bansilal, reported in AIR 1970 SC 1221.


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.


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 predecessorintitle:

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


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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

expost 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

subs. (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 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).


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.


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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. Cooperative

Housing Society Limited v/s D. C. Patel, reported in AIR 1953 SC 16 (Four

Judges).


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 subtenant to

whom the premises were illegally sublet 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

subtenant though not a necessary party to the suit is a proper party and his

joinder cannot alter the nature of the suit.

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).



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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 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).


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


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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 sublet 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 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).


S.28 houses and rents Houses and Rents Dispute between housing society

and member referred to arbitrators under Section 54, Bombay Cooperative

Societies ActHousing 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


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landlord and tenantMere 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 Cooperative

Housing Society, Ltd., reported in AIR 1967 SC 369 FB).


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 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 licensorlandlord is entitled to seek possession of the two studios

and other premises together with machinery and equipment from the


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appellantlicenseetenant. The relationship between the parties being that of

licensorlandlord and licenseetenant and the dispute between them relating

to the possession of the licenseddemised 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).


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


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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. 10,18 & 21.


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).


S.28 eviction Eviction suit Joinder of subtenant – Effect 0f.

139.1. Joinder of subtenant 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

subtenant 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,



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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).

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


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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 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


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Dayalji v/s Mohammadbhai Chandbhai, reported in AIR 1970 SC 102 (FB).

Para Nos. 7, 8 & 11.


S.29 Appeal against order of eviction Maintainability Appeal by Subtenant

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.


(as applied to Gujarat State on 31121963), 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 Subletting before 111964 Notice to terminate not given

before 111964 Suit by landlord for eviction on ground of subletting after 11

1964 Maintainable Whether S.51 Proviso (1)(ii) applies or (2) 'Privilege'

meaning. Isha Valimohamad v/s Haji Gulam Mohamad and Haji Dada Trust,


143.1. 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).

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


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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.


Bombay Land Requisition Act (33 of 1948) houses and rents Houses and Rents

The two Acts are not in pari materia.

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


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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 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).


Supreme Court's Judgments on Bombay Rent Act

Education

Transcript of Supreme Court's Judgments on Bombay Rent Act