2020 (4) TMI 919 - HC - Indian Laws

Suit for ejectment - recovery of rent arrears in the second suit is barred by res judicata and Section 12 of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 - Scope of High Court s Revisional Jurisdiction - State Government s prohibition on the change of user of lands affects the owners right to recover possession or not - comparative hardship in the recovery of open land under Section 12 (1) (i) of the Bombay Rent Act which does not require such consideration invalidates the adjudication or not - Back to Brass tacks - Arrears of Rent - Scope of Section 12 of the Bombay Rent Act - Rent and Recurring Cause of Action - Default Pending the Present Ejectment Proceedings - Bona fide Requirement - Prohibition on the Change of User. Scope of High Court s Revisional Jurisdiction - HELD THAT - In Gurbachan Singh v. Saliabi alias Bibijan 1992 (11) TMI 297 - SUPREME COURT the Supreme Court has held that bona fide requirement is a question of fact. So is comparative hardship. These questions have to be decided on the basis of evidence on record. Appreciation of evidence is not the task of the High Court in exercise of its revisional power. Then on the facts of that case Gurbachan Singh has held that the High Court was wrong in reappreciating the evidence and reversing the conclusions concurrently reached by the courts below. Once the High Court has agreed with the findings given by the courts below it is not necessary for it to go into details of the correctness of the findings of fact act as a second court of first appeal and set down in the judgment detailed reasons for agreeing with those findings. Back to Brass tacks - HELD THAT - The facts are not in dispute. Beginning in 1977 the Owners sued the Corporation for ejectment. In that first round they lost up to this Court. This Court dismissed their WP No.4985 of 1986 on 9th February 1998. Soon thereafter on 1st May 1998 in three months the Owners sent a fresh notice for possession. That notice has led to the second round of eviction proceedings - the Owners maintained that the Corporation defaulted on paying the rent. According to them by the time they sent the quit notice the Corporation owed them Rs.43, 500/- as rent arrears besides Rs.10, 690/- as N.A. Taxes. Thus the eviction was on the grounds of bona fide requirement and rent default. Arrears of Rent - HELD THAT - To begin with the issue of rent arrears has two aspects the default before the ejectment suit was filed and the default pending that ejectment suit. In this regard the Corporation has relied on Waman Deoram Sonawane 1983 (9) TMI 335 - BOMBAY HIGH COURT . In that case the decree was solely based on the tenant s default in paying the education cess. This Court considered Section 12 of Bombay Rent Act before its amendment in 1987 and has held that the landlord could take advantage of Section 12(3)(b) of the Act even when strictly Section 12(3)(a) of the Act was unavailable for him. Waman Deoram Sonawane does not help the Corporation for both the facts and the law as it was existing then were different. Scope of Section 12 of the Bombay Rent Act - HELD THAT - Section 12 is couched in a negative command the owner cannot press the cause of default of rent payment if the tenant pays or is ready and willing to pay the standard rent and permitted increases. That is what sub-section (1) declares. Once the owner issues quit notice to the tenant on the grounds of nonpayment of rent he cannot sue the tenant until the expiration of one month next after notice. This is the first tier of protection for the tenant - Under sub-section (3) of Section 12 on the first day of hearing of the suit or by the date as the Court may fix if the tenant pays in Court the standard rent and permitted increases together with simple interest at nine per cent per annum he avoids eviction. But it is subject to another condition Pending the suit too the tenant should continue to pay regularly the standard rent and permitted increases till the suit is finally decided. Rent and Recurring Cause of Action - HELD THAT - The Owners have not lost their right to sue the Corporation and the Firm merely because the default occurred when another suit was pending. Pithily put if there is no completed cause of action there is no right for the party to sue. If the completed cause of action has many aspects or facets but the party sues only on a few the rest remain relinquished or abandoned. But on a completed cause of action if a party sues and pending those proceedings there is temporally speaking recurrence of the same cause of action it provides an independent cause of action. All these rights to sue are subject to one obvious limitation The Statute of Limitation. Default Pending the Present Ejectment Proceedings - HELD THAT - With the doctrine of merger in play the trial Court s judgment no longer exists. But its reasoning accepted by the Appellate Court commends attention. In paras 10 and 11 the trial Court examined the material on record and concluded that the Corporation committed default pending the present ejectment proceedings too. It is a question of fact and a matter of record. And the Appellate Court in considering the first point has affirmed it. Thus it stands concluded that the Corporation has committed default both before the Owner could file the suit and pending the suit as well. Under Section 12(3) of the Bombay Rent Act after receiving notice the course available to the tenants was to invoke Section 11(3) of the Act for fixation of standard rent or to apply under Section 11(1) before the notice was received. None of these actions were resorted to. Even for depositing the rent amount in the court if the tenant so wanted he should move a petition so that the court could fix a date for deposit. But merely the tenant s depositing the rental amount suo motu would not suffice for the court to hold that the obligation for payment of rent was duly discharged. The Courts below have concurrently held that the Corporation has failed to discharge its burden. The material it has placed before the Court could not clinch the issue that it has paid the rent regularly. So on a question of fact whether the rent remittance has been regular this Court has refused to reappreciate evidence and upset the concurrent findings. Bona fide Requirement - HELD THAT - The Appellate Court as well as the trial Court have considered the Owner s reasonable bona fide need elaborately. They have concluded that the Owners needed the whole extent for their personal use to cater to the increasing needs of their growing family. In addition the Courts have also considered the relative hardship. Perhaps that consideration of relative hardship may be extraneous or unnecessary. But it does not vitiate the outcome. It proves fatal if something essential has not been considered; it only proves redundant if something extraneous is considered besides the essential having already been considered. As rightly contended by the Owners the Courts put heavier onus on them; they were asked to meet an extra criterion the comparative hardship which is not required under Section 13 (1) (i). If at all anyone has been prejudiced it must be the Owners not the Corporation. Prohibition on the Change of User - HELD THAT - The applicant brought to this Court s notice a statutory change Under Section 154 of the Maharashtra Regional and Town Planning Act 1966 the State Government directed the Municipal Corporations in the State not to permit the change of use of the properties being used as fuel filling stations. So the applicant contended that even if the respondent recovered the leased property he could not use it for any purposes other than for setting up a filling station. According to the applicant this subsequent material change goes to the root of the matter - This Court then has held that the respondent s effort to evict the applicant are legal and there is no challenge on that aspect. In the absence of any protection under the Maharashtra Rent Control Act the decree for possession must follow. On the issue of change of use it has held that the direction issued by the State Government will not affect the merits of the decree for eviction. The result of the said direction is that as and when the Respondent seeks permission to redevelop the suit property in question the Mumbai Municipal Corporation will not be entitled to permit change of present user of the property. But it has nothing to do with the decree for eviction. Conclusion - i) Each default in rent payment constitutes a recurring cause of action allowing for new suits. ii) The revisional court s jurisdiction does not extend to reassessing evidence without evidence of perversity. iii) Statutory prohibitions on change of user do not affect existing eviction decrees. iv) Consideration of comparative hardship in cases of vacant land under Section 13(1)(i) is not required but does not invalidate judgments if done. The Civil Revision Applications dismissed.

Summary

I. ISSUES PRESENTED and CONSIDERED

The judgment addresses several core legal issues:

(a) Whether the recovery of rent arrears in the second suit is barred by res judicata and Section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.

(b) Whether the revisional Court can reappreciate evidence regarding rent default and bona fide requirement.

(c) Whether the State Government's prohibition on the change of user of lands affects the owners' right to recover possession.

(d) Whether considering comparative hardship in the recovery of open land under Section 12 (1) (i) of the Bombay Rent Act, which does not require such consideration, invalidates the adjudication.

II. ISSUE-WISE DETAILED ANALYSIS

(a) Recovery of Rent Arrears and Res Judicata:

Relevant Legal Framework and Precedents:

The Court examined the application of Section 12 of the Bombay Rent Act, which provides protections to tenants against eviction for non-payment of rent if they comply with certain conditions. The principle of res judicata and Order 2, Rule 2 of CPC were also considered.

Court's Interpretation and Reasoning:

The Court noted that the Corporation admitted rent arrears during the first litigation but argued that the claim could not be revived in the second suit. The Court disagreed, emphasizing that each default in rent payment constitutes a recurring cause of action, allowing the owners to file a new suit for subsequent defaults.

Key Evidence and Findings:

The Court found that the Corporation defaulted on rent payments both before and during the current ejectment proceedings.

Application of Law to Facts:

The Court concluded that the owners' claim for rent arrears was not barred by res judicata, as the defaults provided independent causes of action.

Treatment of Competing Arguments:

The Court rejected the Corporation's reliance on precedents that did not align with the facts and legal context of the current case.

Conclusions:

The owners' claim for rent arrears was valid, and the Corporation's arguments were dismissed.

(b) Revisional Court's Scope in Reappreciating Evidence:

Relevant Legal Framework and Precedents:

The Court referenced Supreme Court rulings limiting the revisional court's power to reassess evidence unless there is perversity or lack of evidence.

Court's Interpretation and Reasoning:

The Court emphasized that its revisional jurisdiction under Section 115 of CPC does not allow it to reappreciate evidence or disturb concurrent findings of fact.

Key Evidence and Findings:

The Court found no perversity or lack of evidence in the lower courts' findings.

Application of Law to Facts:

The Court upheld the lower courts' findings on rent default and bona fide requirement.

Treatment of Competing Arguments:

Arguments for reappreciating evidence were dismissed as they did not meet the threshold for revisional intervention.

Conclusions:

The Court refused to reappreciate evidence and upheld the lower courts' conclusions.

(c) Prohibition on Change of User:

Relevant Legal Framework and Precedents:

The Court considered statutory changes under the Maharashtra Regional and Town Planning Act, 1966, and relevant case law.

Court's Interpretation and Reasoning:

The Court ruled that the prohibition on change of user did not affect the merits of the eviction decree, as it pertained to future permissions for redevelopment, not the current legal right to recover possession.

Key Evidence and Findings:

The Court found no evidence that the prohibition applied to the Nashik property.

Application of Law to Facts:

The Court determined that the statutory prohibition did not impact the owners' right to evict.

Treatment of Competing Arguments:

The Court dismissed the argument that the prohibition invalidated the eviction decree.

Conclusions:

The prohibition on change of user did not affect the eviction decree.

(d) Consideration of Comparative Hardship:

Relevant Legal Framework and Precedents:

The Court analyzed Sections 13(1)(g) and 13(1)(i) of the Bombay Rent Act, which address eviction criteria for premises with structures and vacant land, respectively.

Court's Interpretation and Reasoning:

The Court acknowledged that the lower courts considered comparative hardship, which is not required under Section 13(1)(i) for vacant land. However, it found that this did not vitiate the judgment, as the essential criteria were met.

Key Evidence and Findings:

The Court confirmed the owners' bona fide requirement for the land.

Application of Law to Facts:

The Court concluded that the consideration of comparative hardship was extraneous but not prejudicial to the Corporation.

Treatment of Competing Arguments:

The Court dismissed the argument that the wrong legal standard invalidated the judgment.

Conclusions:

The judgment was upheld despite the additional consideration of comparative hardship.

III. SIGNIFICANT HOLDINGS

The Court established that:

- Each default in rent payment constitutes a recurring cause of action, allowing for new suits.

- The revisional court's jurisdiction does not extend to reassessing evidence without evidence of perversity.

- Statutory prohibitions on change of user do not affect existing eviction decrees.

- Consideration of comparative hardship in cases of vacant land under Section 13(1)(i) is not required but does not invalidate judgments if done.

The Court dismissed both Civil Revision Applications, affirming the lower courts' judgments and decrees.