Nilesh Laxmichand and Another vs Shantaben Purushottam Kakad (since deceased) by Lrs

NILESH LAXMICHAND AND ANOTHER ... APPELLANT(S)

VERSUS

SHANTABEN PURUSHOTTAM KAKAD (SINCE DECEASED) BY LRS ... RESPONDENT(S)

J U D G M E N T

K.M. JOSEPH, J.

1. This appeal by special leave is directed against the

Order dated 24.09.2018 passed by the High Court of Bombay

in Civil Revision Application No. 29 of 2018. By the

impugned Order, the Revision Application filed by the

appellants challenging the Order of the Appellate Bench of

the Small Causes Court at Bombay in Appeal No. 19 of 2013

has been dismissed. Thereby the result is that the suit

filed by the respondents for eviction of the appellants Signature Not Verified Digitally signed by DEEPAK GUGLANI Date: 2019.05.08

under Section 16(i)(c), 16(i)(e) and 16(1)(n) of the 16:13:48 IST Reason:

1

Maharashtra Rent Control Act, 1999 (hereinafter referred

to as ‘the Act’, for short), has been decreed against the

appellants.

2. The original RAE Suit No. 1681 of 2006 was filed by one

Shantaben Purushottam Kakad (the respondents in this appeal

are the legal representatives of the original aforesaid

plaintiff). The rented premises consisted of a shop on the

ground floor of the building. The case of the plaintiff,

inter alia, is as follows (parties will be referred to in

the position before the Trial Court):

The first defendant took the premises on rent for

the purpose of carrying out business of bookshop and

he, the first defendant, has, since the inception, been

carrying on the business of bookshop in the name and

style “Chetna Book Store”. In about July, 2005, the

first defendant suddenly closed down the business of

bookstore, and since then, is not using the premises

for more than six months prior to the suit, for the

purpose for which it was let and that too without

reasonable or any cause. It was further stated that the

2 first defendant had sublet the premises to third party.

As regards the ground of nuisance, it was stated that

the defendants have started business of preparation

and sale of foodstuff from the suit premises which does

not have suitable layout or ventilation for the same.

It is further stated that as a result, there was

pollution and smell and smoke and this caused lot of

nuisance and annoyance for the plaintiff an old

landlady and other occupants of the building. This

business is now closed down. It is further stated that

the business of garments was also started and closed

down and that the defendants have now given the suit

premises to someone else. It is, on these allegations,

the suit came to be filed.

3. A Written Statement came to be filed by the appellants.

The first appellant is actually the son of the second

appellant. Their case is, inter alia, as follows:

In the year 1971, the second defendant, who is the

father of the first defendant, approached the original

landlord, the husband of the original plaintiff, for 3 taking the suit premises on rent. On finalisation of

negotiations, the premises were taken on rent somewhere

in the year 1971. At that time, the first defendant was

a minor aged five years. The premises were taken for

commercial/business purpose to be carried on by the

second defendant but the second defendant, for certain

spiritual reason and on the advice of the Astrologer,

obtained receipt in the name of the first defendant. The

rent receipts continued to be issued in the name of the

first defendant. After obtaining the building on rent,

the second defendant used the rented premises for

selling books in the name and style “Chetna Book Store”.

Second defendant obtained necessary licence under The

Shops and Establishments Act. The second defendant was

not able to get good business and sufficient earnings.

He started business of readymade garments for some time.

That also did not succeed. Thereafter, he started the

business in the name and style “Shree Krishna Food

Corner”. However, though he applied, the Health

Department did not issue the licence. The business in

4 fast food was stopped and again the business of selling

books and stationery was continued. The case of

sub-tenancy was denied, so also the case relating to

nuisance.”

4. The Trial Court relied upon the deposition of PW1 to

find that he admitted that he did not know when the tenancy

was created, whether any negotiations took place and on what

terms and conditions, the tenancy was created. The suit

premises, was found to be let out in the year 1971 when the

original landlord was looking after the affairs. The court

relied upon the deposition of the second defendant as DW1

as to the reasons why the rent receipt came to be issued

in the name of the first defendant. The registration

certificate under The Shops and Establishments Act was

found to be in the name of second defendant for the business

of book selling and food centre. These are for the period

from 1988 to 2003 and for the period from 2006 to 2007. The

lack of objection from the original landlord in the year

1971 to the business being carried out by the second

5 defendant, was noted. DW1 has deposed that the first

defendant was five years old in the year 1971. Relying upon

Section 11 of the Indian Contract Act, 1872 and noting

reciprocal obligations is a cast on a lessee, tenancy in

favour of the minor, was ruled out. From the inception, the

second defendant was found to be in exclusive possession

without interruption. Tenancy was found to be created in

favour of the second defendant, though the rent receipt

stands in the name of the first defendant. It was found that

defendants proved that second defendant was then using the

suit premises for selling books by obtaining license under

The Shops and Establishments Act for the year 2006 to 2007

and it was found that it could not be said that defendant

was not using the premises for the purpose for which it was

let for the continuous period of six months immediately

preceding the date of the suit. The Trial court did not find

favour with ground of illegal subletting. Regarding the

illegal subletting to Mr. Raja, the details were found

wanting.

6

5. As regards ground of nuisance, it was found that the

smell and smoke of preparing foodstuff may cause nuisance

and annoyance if the same are on a large scale and for a

continuous period. There are 16 to 18 shops on the ground

floor. The original plaintiff did not enter the witness box.

PW1 resided elsewhere and he occasionally visited the

premises. No adjoining occupier was examined as witness to

support the case of nuisance. The particulars, as to what

time in a day the defendants particularly prepared

foodstuff and on what scale, etc., was not given. Finding

all the three grounds not made out, the suit was dismissed.

6. The Appellate Court refers to the rent receipts in the

name of the first defendant and found that nullifies the

evidence of DW1 to the effect that the premises was taken

in the name of the second defendant since inception. It was,

therefore, found that there was no question of induction

of the second defendant since inception. The reason

regarding creation of tenancy in the name of the first

defendant being on the advice of an Astrologer or

Numerologist was found unbelievable as no such Astrologer

7 or Numerologist, on whose advice the same was done, was

examined. Two letters dated 30.10.2005 and 01.12.2005

written by the defendants were relied upon to conclude that

the second defendant had absolute control over the suit

premises and that he was in possession of the premises. As

regards non-user of the premises, evidence of PW1 showed

that in or about 2005, the first defendant suddenly closed

down the business and the premises was locked for some time

and first non-use was commenced in July, 2005. Thereafter,

plaintiffs received two letters on 30.10.2005 and

01.12.2005 from the defendants. Under those letters, the

second defendant intimated the original plaintiff that

there was leakage in the premises causing nuisance and due

to which the suit premises have become unwholesome and in

a filthy condition. DW1 in his evidence, it was found, has

deposed as having run the Chetna Book Store for quite a

number of years. Then he switched over to business of

readymade garments. Thereafter, he started business of

Shree Krishna Food Corner. Again, business in Book Centre

was started. The Shops and Establishments Act showed that

8 the business was carried on from 1988 to 1990, 1991 to 1993.

The license was restricted to that period. The subsequent

license is for the period from 2006 to 2007. This meant that

there was a break in 1993 and business was started again

in 2006-2007. During the period 1993 to 2006, other

businesses like selling of readymade garments and foodstuff

centre was going on at the suit premises. The suit was

instituted on 19.10.2006. On the basis of new registration

certificate issued on 30.11.2007, the defendants have come

out with a case that firm by name Chetna Book Centre was

being carried out since 2006. It was found that there was

a gap of 13 months in between the date of the suit and

registration of the new firm. This establishes non-use, it

was found.

7. The Appellate Court found that the businesses of book

stall and foodstuff are diametrically opposite to each

other. The former is carried out during the day and later

goes till late hours of night. As a result of that it can

safely be said that starting of food corner in all

probabilities could have resulted in causing nuisance and

9 annoyance to the occupants of the suit building, it was

found. The evidence of PW1 was relied on to find that he

used to take a round of the premises and that he was affected

whenever he visited his mother, was found believable and

nuisance was found established.

8. Regarding subletting, it was found there was no plea

of protected license. The court found that subletting was

duly established. Appeal was allowed.

9. As stated earlier, the High Court has affirmed the

findings of the Appellate Court.

10. In regard to the contention that who was the tenant,

it was found that the rent receipt showed that tenant was

the first defendant. It showed that second defendant had

taken the tenancy in the name of first defendant for his

benefit. Secondly, it was found that after attaining

majority, the first defendant has not rescinded the

contract. Once it was found that first defendant was tenant,

it was for second defendant to establish in what capacity

he was in possession. It was found that second defendant

was not in possession prior to 01.02.1973, and therefore,

10 could not claim to be a protected sub-tenancy or protected

tenancy.

11. Regarding ground of non-user, the High Court affirmed

the findings of the Appellate Court.

12. Regarding nuisance, the High Court relied on the

evidence of PW1. Noticing the limitations under Section 115

of Code of Civil Procedure, the Revision was dismissed.

13. We have heard the counsel for the parties.

14. Learned counsel for the appellant would submit that

none of the grounds have been made out. First defendant was

a minor in 1971. On account of the belief and on the advice

of an Astrologer the suit premises were taken on rent in

the name of first defendant who was only five years of age.

There could not be any tenancy in his favour. Second

defendant was managing the business. License was in his

name. There was neither illegal sub-tenancy nor nuisance.

The case of non-user is also sought to be rebutted. Learned

counsel for the respondents supported the Order. He also

submitted quite clearly that the case of non-user is clearly

11 established at any rate and he prayed for the rejection of

the appeal.

15. As regards the case of nuisance, Section 16(i)(c),

inter alia, declares that conduct which is a nuisance or

annoyance to the adjoining or neighbouring occupier by the

tenants or others under him, is the ground for eviction.

The nuisance, apparently, is attributed to the period of

time when business of fast food was being carried out. We

have noticed the findings of the Trial court. The evidence

of none of the neighbours, be they any of the shopkeepers

in the building itself or otherwise, is forthcoming.

Details, as such, thereof are not seen established. The

original plaintiff who resided in the same building has not

given evidence. The evidence essentially constitutes of the

deposition of PW1, the son of the original plaintiff and

the complaint in writing. Admittedly, he does not reside

in the building. He resides elsewhere. No doubt, his

evidence that when he came to visit his mother and he would

go around, is relied upon to conclude that he has

experienced nuisance and that nuisance is established. We

12 would think that having regard to the serious consequences

which arise out of ground of nuisance, being established,

the facts of this case may not justify eviction of

appellants on the said ground. In fact, the High Court has

not independently gone into the matter and it has affirmed

the findings of the Appellate Forum. These findings, we have

adverted to. We do not think that there was justification

for the Appellate court or the High Court to sustain

eviction on the ground of nuisance.

16. As regards, the question whether there is subletting,

it is necessary to notice the plea relating to subletting.

It is to the effect that defendant no.1 has unlawfully

sublet, assigned or transferred to third party for unlawful

consideration. It is further alleged that plaintiff’s son

Anil met the person who confirmed to him that it has been

given to him on license basis. It is also stated in paragraph

5 that the defendants have now given the suit premises to

someone else. From this, we take it that the case of

subletting is built around the act of putting the third

party, who is named as Mr. Raja, in possession. There is

13 no case, as such, set up that there is illegal subletting

by defendant no.1 putting defendant no.2 in possession and

the allegation is specific, as noted above.

17. Regarding this allegation, we are of the view that the

finding, given by the Trial Court, correctly brings out the

position found in fact. The details, as to when Shri Raja

was put in possession, as to when Shri Raja was found in

possession, whether this possession was exclusive, the

purpose for which Shri Raja was using the premises, are

neither pleaded nor proved. The alternate case of

subletting, apparently set up at the stage of argument, is

that there is unlawful subletting to the second defendant.

We have noted the pleading. The pleading of subletting is

about subletting to a third party which was rejected by the

Trial Court. In the Appellate Court, such subletting is

found qua the second appellant. Having regard to the facts,

beginning with the fact that first appellant was only nearly

five years old, the registration was in the name of second

appellant, the nature of the relationship between the

appellants, viz., the second appellant is the father of the

14 first appellant and also the case which was pleaded in the

suit, we are of the view that finding of illegal subletting

cannot be sustained.

18. The remaining ground is a ground relating to non-user.

Section 16(1)(n) of the Maharashtra Rent Control Act, 1999,

reads as follows:

“16(1)(n). that the premises have not been used without reasonable cause for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit.”

19. The following elements must be established under

Section 16(1)(n) - the premises must have been let out for

a particular purpose; there must be non-user by the tenant

for the purpose; the non-user must be without reasonable

cause; the non-user must be for a continuous period of six

months immediately preceding the date of the suit.

20. Suit in this case was instituted on 20.10.2006.

therefore, it is incumbent on the respondents to establish

that the premises were not been used for a continuous period

15 of six months which means from 20.04.2006 till the date of

institution of the suit.

21. The pleading of the plaintiff is, it was let out for

the purpose of business of book shop. It is further case

of the plaintiffs that about in or about 2005, the first

appellant suddenly closed down the business in book store,

and since then, till the date of the suit, was not using

the suit premises for more than six months. It is also

stated, in paragraph 5, that the defendants have started

the business of preparation and sale of foodstuffs. As a

result of tremendous pollution and smell and smoke, it

caused lot of nuisance. Complaints were made and this

business was closed. The business of readymade garments was

also started and closed down. This is in short, the pleading

of the plaintiff.

22. The defendants, on the other hand, set up the case that

on acquiring the premises for the business purpose, i.e.,

selling of books and stationery, defendant no.2 ran the

business for a number of years. Instead of aforesaid

business, defendant no.2 started doing business of

16 readymade garments and he did not succeed. Then he started

fast food business and the same also could not be continued

because no license was issued for running the same business.

He instead started again the business of selling books under

the name and style “M/s. Chetna Book Centre” and he

continued to do the said business from the suit premises

till date.

23. What stands out from the aforesaid pleadings is that

the second defendant, after taking over the premises under

the lease, has started the business of selling books.

Thereafter, from the pleadings of both the plaintiff and

defendants, it is clear that appellant also carried on the

business in readymade garments and also, still further,

business in fast food. As to when the other businesses were

carried on, is not clear from the plaint or written

statement.

24. The case sought to be set up before this Court would,

however, reveal the following:

It is the appellant’s that the book stall business was running slow. It was in the year 2005 that the second appellant decided to start new business. It is 17 their case that the business in clothes was closed down immediately after it was started. Thereafter, in 2005, we must indeed find that the business of fast food was started. The fact that the business of fast food was being run, is clearly established by one circumstance and that is the complaint dated 27.10.2005 given regarding conduct of the business of fast food. This is the case of the respondents. Therefore, the fast food was also started and it apparently was closed down. Thereafter, it is to be noticed that according to the appellants, the second appellant started again business of book stall in the name and style as “Chetna Book Corner” in the year 2006 onwards (see Ground ‘F’ in the Special Leave Petition). It is further stated that as the license was originally renewed in the name of Shree Krishna Fast Food Corner, the Municipal Corporation did not change the name later on and informed the second appellant that it will be changed at the time of renewal. Therefore, it is quite clear that the appellant’s case must be taken to be that till 2005, business was been carried out in books from the suit premises. Interestingly, the plaintiff also, in paragraph 3, would state that in or around July 2005, the defendant no.1 suddenly closed down the business of book store. Therefore, it is clear, as day light, and it can be taken as established that the premises was being used for running the book store and it 18 continued, even according to the plaintiff, till July 2005. This is also the stand taken by the appellants, as we have noted. In quick succession, the business in garments was started which was short lived. Equally business in fast food was conducted and the same was also stopped.

25. We must remind ourselves that the requirement of

Section 16(1)(n) of the Maharashtra Rent Control Act, 1999

will be satisfied if it is established that for a period

of six months continuously from 20.04.2006 till the date

of institution of the suit, the suit premises were not used

by the tenant without a reasonable ground for the purpose

for which it was let out. Since even the appellants do not

have a case that the appellants were carrying on the

business in readymade garments or fast food during the

period, the only business that the appellants can lay store

by, is the business in books.

26. The contention of the appellants would appear to be

that the Appellate Court has proceeded on the basis that

the registration was obtained on 30.11.2007. Appellate

Court further finds that there is a gap of 13 months from

19 the date of the institution of the suit and the date on which

the registration was obtained on 30.11.2007. It is the case

of the appellants that what the provision in question

requires is that there must be non-user by the tenant for

the period of six months immediately and continuously prior

to the institution of the suit. The period of 13 months,

if calculated from 30.01.2007 backwards, in point of time,

would be a period commencing from 30.10.2006. The

contention appears to be that the cause of action is the

continuous non-user for six months prior to the use.

Therefore, the relevant question has not been posed and

answered, appears to be the argument of the appellants.

27. Let us consider the registration certificates which

have been produced. The registration certificate, under the

Bombay Shops and Establishments Act, 1948, is seen to be

certified on 9th day of September, 2005. It is in the name

of the second appellant. Under the heading “Nature of

business”, it is stated “Sale of books, Sale of snacks,

juice, cold drink and ice cream”. The name of the

20 establishment is known as “Chetna Book Centre”, “Shree

Krishna Food Corner”.

28. We can say the date of receipt, as far as 2005 is

concerned, is 06.09.2005. Still further, there is a

reference to receipt dated 09.01.2007. Under the

Maharashtra Shops and Establishments Act, under Section

7(2)(A), a registration certificate shall be valid upto the

end of the year for which it is granted. As it stands now,

it is valid for a period of twelve months from the date it

is granted or renewed. This is after the substitution by

Act 25 of 2013. Therefore, the provision, which is relevant,

is the previous provision, under which, as noted, the

registration certificate would be valid upto the end of the

year for which it was granted. Therefore, even going by the

registration certificate produced and under the Act, we

would think that as it has been issued on 09.09.2005, it

came to an end by the end of the year. The word “year” is

defined in Section 2(32) as meaning that “a year commencing

first day of January”. Thus, even the appellant apparently

paid the fees for renewal of the registration only on

21 09.01.2007. He did not pay any fees for renewal of the

registration during the year 2006. On 30.11.2007, no doubt,

registration certificate was issued. The result is that

during the year 2006, it can be concluded that there was

no registration for the business either in books or fast

food.

29. This apart, the fact that under the Shops and

Establishments Act, it is undoubtedly true that a person

having a shop must get it registered. In other words,

carrying on a shop or establishment, as defined in the Act,

without registration, would make it illegal. The fact that

there is a registration, however, would not be sufficient

to establish that there is use of the premises. In other

words, even if a person has registration, that by itself

would not mean that the tenant is actually using the

premises for the purpose for which it is rented out to him.

Actual use of the premises can be established by various

other circumstances like electricity bills, payment of

wages to employees if there are employees, evidence

relating to transactions of the business which is carried

22 on etc. No doubt, the burden actually is on the landlord

to establish the non-user. But since, in this case, it would

appear that there is no registration for the period, it

shows that the appellants could not have lawfully conducted

any business in the suit premises. There is, no doubt, the

evidence of PW1 also.

30. Appellants have attempted to produce additional

documents. The document is a notice issued for keeping open

the shop on a Monday on 11.09.2006. It is also stated, fine

was paid of Rs.4,000/-. We find considerable substance in

the contention of the respondent that additional evidence

can be admitted only if the grounds of Order 41 Rule 27 are

established. We find no merit in the said application.

Consequently, it fails and it is dismissed.

31. We would think that in the circumstances of the case,

having regard to the fact that two courts have found the

ground of non-user under Section 16(1)(n) of the

Maharashtra Rent Control Act, 1999 established and the

facts as noted by us, particularly in an appeal after

Special Leave, we do not deem it fit to interfere with the

23 judgment of the High Court. The appeal shall stand

dismissed.

.............J. (ASHOK BHUSHAN)

.............J. (K.M. JOSEPH) New Delhi, May 08, 2019.

24