Full Text
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO. 564 OF 2019
M/s. Shree Durga Trading Co. ….Applicant
-Versus-
Ateeq Anwar Agboatwala and Anr. ….Respondents
Mr. Kevic Setalwad, Senior Advocate a/w Mr. Anupam Surve, Mr. Nimish
Kothare & Mr. Nikhil Mutha i/b Nanu Hormasjee & Co., for the Respondent
Nos. 1 to 5.
JUDGMENT
1) Revisionary jurisdiction of this Court is invoked under the provisions of Section 115 of the Code of Civil Procedure, 1908 (the Code) for setting up a challenge to the decree of eviction passed by the Small Causes Court and upheld by its Appellate Bench directing Applicant-Defendant No.1 to handover possession of the suit premises to the Plaintiffs-landlords. R.A.E. Suit No.1043/1806 of 2001 was initially decreed by the Small Causes Court on 30 September 2014 on the grounds of bonafide requirement of the landlords and unauthorised subletting. The decree was upheld by the Appellate Bench of the Small Causes Court by the judgment and order dated 31 October 2017. The present Revision Application was filed challenging the said decrees passed by the Small Causes Court and its Appellate Bench. By Order dated 4 April 2018, this Court held that no finding was recorded with regard to the point of comparative hardship and by exercise of powers under Order 41 Rule 25 of the Code, this Court permitted parties to lead evidence on the point of bonafide requirement of landlords and on the question of comparative hardship by keeping the Revision Application pending and called for findings of the Trial Court and the Appellate Court on the said two issues. Accordingly, both the parties led evidence on the issues of bonafide requirement of Plaintiffs and comparative hardship. The Trial Court has rendered its findings on both the issues in favour of the Plaintiffs and against the Revision Applicant-Defendant No.1. vide order dated 22 February 2019. The Appellate Bench of the Small Causes Court has confirmed the said findings recorded by the Small Causes Court vide its judgment and order dated 2 March 2019. Accordingly, the orders dated 22 February 2019 passed by the learned Judge of the Small Causes Court as well as the order dated 2 March 2019 passed by the Appellate Bench of the Small Causes Court are also made subject matter of challenge by amending the Revision Application.
2) On 23 March 2018, this Court recorded a statement made on behalf of the Revision Applicant that it is in possession of the suit premises and no other entity was in the possession. That the Revision Applicants had neither created third party interest nor had parted with possession. This Court accordingly had stayed the eviction decree on the condition of depositing the arrears of compensation and rent and subject to the Revision Applicant not creating third party interest or parting with possession of the suit premises.
3) During pendency of the Appeal before the Appellate Bench, the Appellate Court had stayed the execution of the eviction decree dated 30 September 2014 subject to the Revision Applicant depositing Rs.50,000/- per month towards interim compensation. The said order dated 21 April 2015 became subject matter of challenge by both the Revision Applicant, as well as by Plaintiffs by filing Writ Petition Nos. 5688 of 2015 and 7123 of 2015 respectively. By order dated 28 July 2015, this Court enhanced the amount of interim compensation to Rs. 1,20,000/- per month. Accordingly, the Revision Applicant deposited the amount of interim compensation of Rs.1,20,000/- till the year 2018. After dismissal of the Appeal on 31 October 2017, this Court continued the stay by order dated 3 March 2018 subject to the condition of deposit of arrears of interim compensation. After the reference was answered on the issues of bonafide requirement and comparative hardship, Revision Applicant was permitted to amend the present Revision Application and thereafter the Revision Applicant continued depositing the amount of interim compensation of Rs.1,20,000/- in this Court till March 2020. It appears that after April 2020, Revision Applicant was unable to deposit the interim compensation of Rs.1,20,000/- in this Court on account of Covid-19 pandemic and has accordingly filed Interim Application No. 340 of 2021 seeking extension of time to deposit the amount of interim compensation. However, the office reports indicate that the Revision Applicant has deposited interim compensation of Rs. 1,20,000/- in this Court till August 2024.
4) On account of failure on the part of the Revision Applicant to deposit the amount of interim compensation after April 2020 and after noticing that some outsiders were occupying the suit premises on account of execution of partnership deed/deed of admission dated 6 October 2020, the Original Plaintiffs have filed Interim Application NO. 3684 of 2021 not only for vacation of interim order but also for punishing newly impleaded Respondent Nos.[9] to 12 to the Interim Application and for various other reliefs.
5) I have heard Dr. Ranjeet Thorat, the learned Senior Advocate appearing for the Revision Applicant, who would submit that the suit was barred by limitation under Article 67 of the Limitation Act, 1963, but the Trial Court failed to frame issue relating to limitation. That there is no subletting as Defendant No. 2 was merely conducting business on behalf of Defendant No. 1 due to advanced ages of its partners. That bonafide requirement of Plaintiffs is not proved. That the findings recorded on the issue of comparative hardship are perverse as obtaining of possession by Plaintiffs of Shop Nos. 3 and 4 on the ground floor is established.
6) Mr. Setalwad, the learned Senior Advocate would appear on behalf of Respondent Nos.[1] to 5-Plaintiffs opposing the Revision Application submitting that no interference is warranted in concurrent findings recorded on issues of subletting, bonafide requirement and hardship. That this Court did not disturb the findings on subletting while making reference order. That Defendant No. 1 has not been using the suit premises and has been continuously inducting outsiders in the suit premises. That even today outsiders are found to be in possession of suit premises who are now operating the business of pharmacy as opposed to the original business of jewellery of Defendant Nos. 1 and 2. That by way of subterfuge Defendant No. 1 is inducting new partners in the firm and thereby subletting the premises. That Defendant No. 1 has violated the statement made before this Court. He would pray for dismissal of the Revision Application.
7) Plaintiffs-Respondent Nos. 1 to 5 are the Trustees of ‘Noor Hospital’, which is registered public charitable trust and owner and landlord in respect of the building named ‘Noor Hospital’ situated at 49, Mohammad Ali Road, Mumbai -400 033. Defendant No.1 was inducted as tenant in respect of the shop premises bearing Shop Nos.[1] and 2 both admeasuring 800 sq. ft on the ground floor of the building-Noor Hospital on monthly rent of Rs.658/-. Plaintiffs-landlords instituted R.A.E. Suit No.1043/1806 of 2001 in the Court of Small Causes, Mumbai seeking recovery of possession of the suit premises from Defendants. There is no dispute to the position that the Revision Applicant- Defendant No.1 is the tenant in respect of the suit premises. In the original unamended plaint, it was alleged that Defendant No.1 sublet the suit premises in favour of Defendant No.2, who was conducting business in the suit premises. Plaintiffs also pleaded their bonafide need for recovering possession of the suit premises from Defendant No.1tenant for expanding the activities of its hospital. The suit was resisted by Defendant No.1 by filing written statement denying the allegation of subletting in favour of Defendant No. 2 and claimed that Defendant No.1 was in use and possession of the suit premises and had not parted with possession thereof in favour of anyone else including Defendant No.2. The suit was amended by Plaintiffs alleging that Defendant Nos. 3 and 4 were found in possession of the suit shops. It appears that the suit was further amended to implead Defendant No. 5 when the Advocate appearing for Defendant No.3 informed Plaintiffs that Defendant No. 5 was actually conducting the business in the suit premises. Defendant No.1 filed additional written statement denying the contents of the amended plaint. Defendant Nos. 3 and 4 also filed their written statement after their impleadment copying the contents of additional written statement of Defendant No.1. Defendant No.1 filed further additional written statement denying the allegation of subletting in favour of Defendant No.5. Based on pleadings, the Trial Court framed issues about bonafide requirement of Plaintiff-Trust and unlawful subletting of suit premises in favour of Defendant No.2 and also in favour of Defendant Nos.[3] and 4. It appears that no issue was framed with regard to comparative hardship. Parties led evidence in support of their respective claims. After considering the pleadings, oral and documentary evidence, the Trial Court proceeded to decree the suit upholding the grounds of bonafide requirement and unauthorised subletting to Defendant No.2 as well as to Defendant Nos. 3 and 4. The Appeal preferred by Defendant No.1-Revision Applicant came to be dismissed by the Appellate Bench of the Small Causes Court vide judgment and order dated 31 October 2017.
8) As observed above, in the present Revision Application, this Court called for findings of the Trial Court and the Appellate Bench on the issues of bonafide requirement and comparative hardship. Accordingly, the rival parties led additional evidence on those issues. However, both the Courts have rendered findings in Plaintiff’s favour and against the Defendants on reference made by this Court on the issue of bonafide requirement and comparative hardship.
9) Dr. Thorat has strenuously pressed the issue of suit being barred by limitation with reference to the ground of subletting. He would submit that the alleged act of subletting of suit premises by Defendant No. 1 in favour of Defendant No. 2 occurred in the year 1974 and as per Article 67 of the Limitation Act, 1963 the suit ought to have been brought within a period of 12 years from the alleged act of subletting. He has submitted that the Trial Court erroneously did not frame any issue of limitation.
10) Articles 66 and 67 of the Limitation Act, 1963 (Limitation Act) provide thus: Description of suit Period of limitation Time from which period begins to run
66. For possession of immovable property when the plaintiff has become entitled to possession by reason of any forfeiture or breach of condition. Twelve years When the forfeiture is incurred or the condition is broken.
67. By landlord to recover possession from a tenant. Twelve years When the tenancy is determined.
11) Though Dr. Thorat has submitted that Article 67 would be attracted in the present case and not Article 66, in my view, it is not necessary to enter into that debate. What needs to be considered is whether the cause of action for recovery of possession on account of act of subletting is continuous in nature. The concept of continuous wrong is traceable to Section 22 of the Limitation Act, reading as under:
22. Continuing breaches and torts.- In case of a continuing breach of contract or in the case of a continuing tort, a fresh period of limitation begins to run at every moment of the time during which the breach or the tort, as the case may be, continues.
12) While considering a pari materia provision, i.e., Section 23 of the Limitation Act, 1908, the Supreme Court in Balakirshna Savalram Pujari Waghmare Versus. Shree Dnyaneshwar Maharaj Sansthan, reported in AIR 1959 SC 798, laid down the law that the very essence of a continuing wrong is that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury; however, if wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. The Court held thus:
31. It is then contended by Mr Rege that the suits cannot be held to be barred under Article 120 because Section 23 of the Limitation Act applies; and since, in the words of the said section, the conduct of the trustees amounted to a continuing wrong, a fresh period of limitation began to run at every moment of time during which the said wrong continued. Does the conduct of the trustees amount to a continuing wrong under Section 23? That is the question which this contention raises for our decision. In other words, did the cause of action arise de die in diem as claimed by the appellants? In dealing with this argument it is necessary to bear in mind that Section 23 refers not to a continuing right but to a continuing wrong. It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury. It is only in regard to acts which can be properly characterised as continuing wrongs that Section 23 can be invoked. Thus considered it is difficult to hold that the trustees' act in denying altogether the alleged rights of the Guravs as hereditary worshippers and in claiming and obtaining possession from them by their suit in 1922 was a continuing wrong. The decree obtained by the trustees in the said litigation had injured effectively and completely the appellants' rights though the damage caused by the said decree subsequently continued. Can it be said that, after the appellants were evicted from the temple in execution of the said decree, the continuance of their dispossession was due to a recurring act of tort committed by the trustees from moment to moment? As soon as the decree was passed and the appellants were dispossessed in execution proceedings, their rights had been completely injured, and though their dispossession continued, it cannot be said that the trustees were committing wrongful acts or acts of tort from moment to moment so as to give the appellants a cause of action de die in diem. We think there can be no doubt that where the wrongful act complained of amounts to ouster, the resulting injury to the right is complete at the date of the ouster and so there would be no scope for the application of 23 in such a case. That is the view which the High Court has taken and we see no reason to differ from it. (emphasis added)
13) Applying the above ratio to the facts of the present case, the wrong committed by Defendant No. 1 in subletting the premises continued and thereby the injury caused to Plaintiffs also continued. This is not a case where the wrongful act of Defendant No. 1 in subletting the premises resulted in injury which was complete and only damages resulting out of such injury continued. Therefore in a case involving subletting, a continuous cause of action would arise so long as the act of subletting continues.
14) Section 16(1)(e) of the Maharashtra Rent Control Act, 1999, which creates a right in favour of landlord to seek recovery of tenanted premises on the ground of unlawful subletting, provides thus: (e) that the tenant has,-
(i) on or after the 1st day of February 1973, in the areas to which the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 applied; or
(ii) on or after the commencement of this Act, in the Vidarbha and Marathwada, areas of the State, unlawfully sub-let or given on licence, the whole or part of the premises or assigned or transferred in any other manner his interest therein; or
15) Use of the words ‘has sublet’ in Section 16(1)(e) undoubtedly relates to past event of subletting and the act of subletting need not continue on the date of filing of the suit as against other grounds such as bonafide requirement, non use, etc which must continue on the date of filing of the suit. However, if the tenant, who had sublet the premises prior to 12 years and continues subletting the same, the act would constitute continuous breach of tenancy conditions and would give rise to continuous cause of action.
16) Dr. Thorat has relied on judgment of Single Judge of this Court in Shri. Taherbhai T. Poonawala & Ors. Versus. S. Hamid Hassan Patel (deceased by LRs) & Ors.[1] in which this Court has held in paras-9 to 12 as under:
9. Mr. Mandlik, the learned Counsel for Respondent Nos. 1A and 2, pointed out that the fact remains that this breach of tenancy was committed way back on 1st February, 1969 and cannot be ignored by the subsequent determination of tenancy on 9th June, 1981 by the said notice. Applying Art. 66 of the Limitation Act, 12 years would be the period of limitation prescribed for filing a suit for possession of immovable property by reason of breach of condition of tenancy starting from the date when the condition of tenancy was broken. Therefore, Mr. Mandlik contended that on computation of the said period of limitation from 1st February, 1969, when the condition of tenancy was broken, suit was clearly barred by law of limitation.
10. Mr. Mandlik, in this behalf relied upon the judgment of the Supreme Court in Ganpat Ram Sharma v. Gayatri Devi, AIR 1987 SC 2016, specifically paragraph Nos. 21 to 23, which read as under:—
21. Before we discuss the other aspect the result of the several decisions to which reference has been made above indicate that the position in law is that the landlord in order to be entitled to evict the tenant must establish one of the alternative facts positively, either that the tenant has built, or acquired vacant possession of or has been allotted a residence. It is essential that the ingredients must be pleaded by the landlord who seeks eviction but after the landlord has proved or stated that the tenant has built, acquired vacant possession or has been allotted a residence, whether it is suitable or not, and whether the same can be really an alternative accommodation for the tenant or not, are within the special knowledge of the tenant and he must prove and establish those facts. The other aspect apart from the question of limitation to which we shall briefly refer is that the landlord must be quick in taking his action after the accrual of the cause of action, and if by his inaction the tenant allows the premises to go out of his hands then it is the landlord who is to be blamed and not the tenant. In the light of these, we have now to examine whether AIR 2007 Bom 80 the suit in the instant case was barred by the lapse of time. But quite apart from the suit being barred by lapse of time, this is a beneficial legislation, beneficial to both the landlord and the tenant. It protects the tenant against unreasonable eviction and exorbitant rent. It also ensures certain limited rights to the landlord to recover possession on stated contingencies. (Emphasis supplied)
22. The next aspect of the matter is which Article of the Limitation Act would be applicable. Reference was made to Arts. 66 and 67 of the Limitation Act, 1963 (hereinafter called the Limitation Act) which stipulates that for possession of immovable property the cause of action arises or accrues when the plaintiff has become entitled to possession by reason of any forfeiture or breach of condition. Article 67 stipulates a period of twelve years when the tenancy is determined. Article 113 deals with suit for which no period of limitation is provided elsewhere in this Schedule. On the facts of this case it is clear that Article 66 would apply because no determination in this case is necessary and that is well settled now. Determination by notice under Sec. 106 of the Transfer of Property Act is no longer necessary. (Emphasis supplied)
23. It is well settled that time begins to run from the date of the knowledge. See in this connection the decision of Harbans Singh v. Custodian of Evacuee Property ‘P’ Block, AIR 1970 Delhi 82, though that was a case under a different statute and dealt with a different Article. See also Ujagar Singh v. Likha Singh, AIR 1941 All 48 at p. 30. The Division Bench of the Punjab and Haryana High Court in Somdas (deceased) v. Rikhu Dev Chela Bawa Har Jagdass Narokari, (1983) 85 Pun LR 184 held that in a suit for possession under Art. 113 of the Limitation Act, material date is one on which the right to sue for possession arises. (Emphasis supplied)
11. Mr. Mandlik, the learned Counsel also relied upon another judgment of the Hon’ble Supreme Court in Shakuntala v. Hemchand (1987) 3 SCC 211: (AIR 1987 SC 1823), wherein, the Hon’ble Supreme Court in paragraph 12 (para 11 of AIR) has observed as under:—
12. If that is so then on the strict grammatical meaning Art. 67 of the Limitation Act would be applicable. This is indubitably a suit by the landlord against the tenant to recover possession from the tenant. Therefore the suit clearly comes within Art. 67 of the Limitation Act. The suit was filed because the tenancy was determined by the combined effect of the operation of Sections 12 and 13 of the Bombay Rent Act. In this connection, the terms of Sections 12 and 13 of the Bombay Rent Act may be referred to. At the most it would be within Art. 66 of the Limitation Act if we hold that forfeiture has been incurred by the appellant in view of the breach of the conditions mentioned in Section 13 of the Bombay Rent Act and on lifting of the embargo against eviction of tenant in terms of the Section 12 of the said Act. That being so, either of the two, Article 6 or Article 67 would be applicable to the facts of this case; there is no scope of the application of Art. 113 of the Limitation Act in any view of the matter. Sections 12 and 13 of the Bombay Rent Act co-exist and must be harmonised to effect the purpose and intent of the legislature for