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brijesh

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Transfer of Property Act, 1882-Sec. 116-Statutory tenant, who is. Sec. 108(q)-Obligation of Sub-tenant to restore possession on determination of tenancy-Sub-tenant must restore possession to sub-tenant, unless tenant is evicted by title paramount. Rent Control & Eviction : Landlord and Tenant-Plea of eviction by title paramount-Meaning and availability of. Rajasthan Premises (Control of Rent and Eviction) Act, 1950-Section 13-Suit for eviction by tenant against sub-tenant for default in payment of rent-At the same time, suit for eviction by landlord against tenant for illegal sub-letting-Plea of direct attornment in favour of landlord by sub-tenant on institution of latter suit-Defence of eviction by paramount title holder- Availability of-Rule of Estoppel-Applicability of-Held, tenant continues to be a tenant until a decree for eviction passed by a Court achieved finality-On facts, defence of eviction of landlord by owner so as to exonerate sub-tenant from liability for eviction not available to the sub-tenant-Rule of estoppel applicable against the sub-tenant-Transfer of Property Act, 1882/Indian Evidence Act, 1872-Section 108/Section 116. Respondent and appellant are tenant and sub-tenant of the suit premises given on rent by landlord-Trust. On default of payment of rent, the respondent filed suits for recovery of arrears of rent and for eviction against the appellant under the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 before Civil Judge. The Trust also filed a suit for eviction against the respondent on the ground of unlawful sub-letting of the shop to the appellant, which is pending. The appellant contended that subsequent to the institution of the suit by the Trust for eviction against the respondent, the appellant has directly attorned in favour of the Trust and that the right of the respondent to recover rent and secure eviction against the appellant had ceased to exist. The Civil Judge by interim order, held the tenant appellant liable to deposit the determined rent in the Court. The Additional District Judge, on appeal by the appellant, held that the respondent was not entitled to claim rent and recover possession since the appellant has attorned in favour of the Trust In appeal by the respondent, the High Court held that the appellant could not directly attorned in favour of the Trust by excluding the principal tenant under the provisions of the Act A review sought by the appellant was also dismissed. Hence these appeals. Dismissing the appeals, the Court HELD : 1.1. Under the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, a tenant in relation to a sub-tenant is a landlord and the sub-tenant is a tenant in relation to the tenant who has inducted him on the premises. Further, in spite of the tenancy having come to an end under the provisions of the Transfer of Property Act, 1882 or by the terms of contract, the tenant does not cease to be a tenant and continues to hold that status until a decree for eviction under the provisions of Rajasthan Act has been passed against him. Where the tenancy premises are governed by a rent control law, merely on termination of tenancy, the tenant cannot be evicted. The tenant is entitled to continue in possession enjoying status almost on par with a person whose contractual tenancy still subsists. He cannot be evicted unless a ground for eviction under the relevant provision of rent control law is made out. He is not a tenant holding over because his tenancy is not continuing by volition or by act of the parties. Such continuance is attributable to the protection conferred by statute and, therefore, he is called a statutory tenant and his tenancy a statutory tenancy. The tenancy would determine only on a decree for eviction being passed against him. [176-H; 177-A-C] Smt. Gian Devi Anand v. Jeevan Kumar & Ors., AIR (1985) SC 796; Damadilal & Ors. v. Parashram & Ors., AIR (1976) SC 2229 and Smt. Chander Kali Bai & Ors. v. Jagdish Singh Thakur & Anr., AIR (1977) SC 2262, relied on. Kewal Ram v. Mangu Mal, AIR (1974) Raj 201, referred to. 1.2. The respondent-tenant holding the premises from the Trust would remain a tenant until the passing of a decree for eviction under Section 13 of the Rajasthan Act in the suit filed by the Trust against the respondent. In spite of a threat for eviction by the Trust against the respondent the respondent is neither liable to be evicted nor his status as tenant liable to suffer adversely except by a judicial pronouncement and that too on having achieved a finality. So far as the appellant sub-tenant is concerned, the title of the respondent-tenant would not come to an end till the passing of such decree for eviction against him. Even if the Trust has instituted a suit for eviction, the respondent-tenant has a right to contest. [177-G-H] 1.3. Rule of estoppel codified under Section 116 of the Indian Evidence Act, 1872 between a landlord and his tenant would mutatis mutandis govern a tenant and his sub-tenant in their relationship inter se. The estoppel continues to operate so long as the tenant has not openly restored possession by surrender to his landlord. The rule of estoppel ceases to have applicability once the tenant has been evicted. His obligation to restore possession to his landlord is fulfilled either by actually fulfilling the obligation or by proving his landlord’s title having been extinguished by his landlord’s eviction by a paramount title holder. Eviction by paramount title holder is a good defence bringing to an end the obligation of the tenant to put the lessor in possession of the property under Section 108 clause (q) of the Transfer of Property Act The burden of proving eviction by title paramount lies on the party who sets up such defence. [178-F-H] Currimbhoy & Co. Ltd. v. LA. Greet & Ors., AIR (1933) PC 29 and Mt. Bilas Kunwar v. Desraj Ranjit Singh & Ors., AIR (1915) PC 96, relied on. 1.4. To constitute eviction by title paramount so as to discharge the obligation of the tenant to put his lessor into possession of the leased premises, three conditions must be satisfied: (i) the party evicting must have a good and present title to the property; (ii) the tenant must have quitted or directly attorned to the paramount title holder against his will; and (iii) either the landlord must be willing or be a consenting party to such direct attornment by his tenant to the paramount title holder or there must be an event, such as a change in law or passing of decree by a competent court, which would dispense with the need of consent or willingness on the part of the landlord and so bind him as would-enable the tenant handing over possession or attorning in favour of the paramount title holder directly. In other words, the paramount title holder must be armed with such legal process for eviction as cannot be lawfully resisted. The burden of raising such a plea and substantiating the same, so as to make out a clear case of eviction by paramount title holder, lies on the party relying on such defence. [181-D-F] Krishna Prasad Singh v. Advanath Ghatak, ILR (1943) Patnat 513; Pusaram Maniklal Izardar v. Deorao Gopalrao Mali (minor) by guardian mother Parwati W/o Gopalrao, AIR (1947) Nagpur 188; Radheylal v. Ratansingh, (1977) MPLJ 335; Gajadhar Lodha v. Khas Mahatadih Colliery Co. & Ors., AIR (1959) Patna 562 and Sain Dar v. Sant Ram, AIR (1959) Punj 564, approved. 1.5. The respondent cannot be said to have been evicted by title paramount. It cannot be said that the respondent-tenant does not have any defence nor can he lawfully resist the suit filed by the owner Trust The plain and simple legal position which flows is that the appellant must discharge his statutory obligation to put his landlord, that is, the respondent in possession of the premises in view of the latter’s entitlement to hold the tenancy premises until his own right comes to an end and the respondent must discharge his statutory obligation to put his own landlord, that is the Trust, in possession of the tenancy premises on his entitlement to hold the tenancy premises coming to an end. [182-C] 1.6. The plea of eviction by paramount title is not available to the appellant for three reasons : (i) it cannot be said that the Trust is armed with a legal process for eviction which cannot be lawfully resisted by the tenant-respondent or to which he has no defence; (ii) the attornment by the appellant in favour of the Trust is voluntary and not under any compulsion; and (iii) it cannot be said that the Trust has such good and present title against the tenant-respondent so as to hold the appellant liable to be evicted against his will. In view of the respondent’s relationship with the Trust being one governed by the provisions of the rent control law, his title as tenant and hence as landlord as against the sub-tenant appellant will not come to an end unless and until the suit for eviction filed by the Trust against the respondent is decreed and the decree has achieved finality. [183-E-F] D. Satyanarayana v. P. Jagdish, AIR (1987) SC 2192, distinguished. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5467 of 1998. 2002 AIR 569, 2002( 1 )SCR 171, 2002( 2 )SCC 50, 2002( 1 )SCALE123 , 2002( 1 )JT 97

  CASENO.:   Appeal (civil) 5467 of 1998   PETITIONER:VASHU DEO Vs. RESPONDENT:BAL KISHAN DATE OF JUDGMENT: 11/01/2002 BENCH:R.C. Lahoti & Brijesh Kumar   JUDGMENT: WITH CIVIL APPEAL No.5468 OF 1998 JUDGMENT R.C. Lahoti, J. The suit property consists of a shop. It forms part of a buildingowned by Sarvjanik Sampati Trust (hereinafter, the ‘Trust’, … Continue reading

Code of Civil Procedure, 1908/Provincial Small Cause Courts Act, 1887- Order 9 Rule 13/Section 17(1)/Proviso-Ex-parte decree by Court of Small Causes for deposit of arrears of rent and eviction-Application by respondent to set aside the decree-Failure by respondent to deposit decretal amount or make a previous application seeking permission to furnish security-Application to furnish security filed subsequently and after delay- Maintainability of the main application-Held, the law is mandatory and not directory for deposit of decretal amount or filing a previous application- Hence, application for setting aside decree not maintainable on account of failure to comply with proviso. Appellant-landlord filed a suit before a Court of Small Causes for recovery of arrears of rent and for eviction against respondent-tenants under Section 20 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. The suit was decreed ex-parte for recovery of arrears of rent and eviction. The appellant executed the decree and obtained possession of the premises with police help. The respondents filed an application before the trial court seeking setting aside of the ex-parte decree under Order 9 Rule 13 of CPC. Along with the application, the respondents neither deposited the decretal amount before the trial court nor filed an application seeking permission to furnish security of the decretal amount. During the course of hearing, the appellant contended that the application filed by the respondents was not maintainable and liable to be dismissed for non-compliance with the proviso to section 17 of the Provincial Small Cause Courts Act, 1887 (PSCC Act). The respondents then filed an application before the trial court seeking permission to furnish security for the decretal amount the trial court dismissed both the applications. The Court of Additional District Judge, in a revision preferred by the respondents, condoned the delay and directed the trial court to accept security and decide the application filed under Order 9 Rule 13 CPC on merits. A Writ Petition filed before High Court by the appellant was dismissed. In appeal to this Court, the appellant contended that the proviso to section 17 of the PSCC Act is mandatory and hence the non-compliance therewith cannot be condoned; and that, even assuming the court has power to condone the delay, no sufficient cause was made by the respondents. =Allowing the appeal, the Court HELD : 1.1. The object behind establishing the Courts of Small Causes conferred with jurisdiction to try summarily such specified category of cases which need to be and are capable of being disposed of by adopting summary procedure of trial is to secure an expeditious disposal and to curtail the lengthy procedure of litigation. The jurisdiction to entertain and hear an application to set aside a decree passed ex-parte or for a review of judgment by Courts of small Causes is sought to be qualified and narrowed down by imposing condition as to deposit or giving security for performance or compliance by enacting proviso to section 17(1) of the Provincial Small Cause Courts Act, 1887 (PSCC Act). [149-G; 150-A] 1.2. A bare reading of the provision shows that the legislature has chosen to couch the language of the proviso in a mandatory form and there is no reason to interpret, construe and hold the nature of the proviso as directory. An application seeking to set aside an ex-parte decree passed by a Court of Small Causes or for a review of its judgment must be accompanied by a deposit in the court of the amount due from the applicant under the decree or in pursuance of the judgment. The proviso as to deposit can be dispensed with by the court in its discretion subject to a previous application by the applicant seeking direction of the court for leave to furnish security and the nature thereof. The proviso does not provide for the extent of time by which such application for dispensation may be filed. It may be filed at any time up to the time of presentation of application for setting aside ex-parte decree or for review and the Court may treat it as a previous application. The obligation of the applicant is to move a previous application for dispensation. It is then for the court to make a prompt order. The delay on the part of the court in passing an appropriate order would not be held against the applicant because none can be made to suffer for the fault of the court. [151-B-D] 1.3. The application for setting aside ex-parte decree was not accompanied by the deposit in the court of the amount due and payable by the applicant under the decree. The applicant also did not move any application for dispensing with deposit and seeking leave of the court for furnishing such security for the performance of the decree as the court may have directed. The application for setting aside the decree was therefore incompetent. [151-F] Mohammad Ramzan Khan v. Khubi Khan, AIR (1938) Lahore 18 (DB); Murari Lal v. Mohammad Yasin, AIR (1939) Allahabad 46; Mt. Shikhani v. Bishambhar Nath, AIR (1941) Oudh 103; Jagdamba Prasad and Ors., v. Ram Das Singh and Anr., AIR (1943) Allahabad 288; Roshan Lal v. Brij Lal Amba Lal Shah, AIR (1944) Oudh 104; Vembu Amal v. Esakkia Pillai, AIR (1949) Madras 419; Khetra Dolai v. Mohan Bissovi, AIR (1961) Orissa 37; Dhanna v. Arjun Lal, AIR (1963) Rajasthan 240; Krishan Kumar v. Hakim Mohd. (1978) ALJ 738; Sharif v. Suresh Chand and Ors., (1979) AWC 256; Roop Basant v. Durga Prasad and Anr., (1983) 1 ARC 565; Mohd. Islam v. Faquir Mohammed, (1985) 1 ARC 54; Krishan Chandra Seth v. Dr. K.P. Agarwal and Anr.,(1988) 1 ARC 310; Mamta Sharma v. Hari Shankar Srivastava and Ors., (1988) 1 ARC 31; Mohd Yasin v. Jai Prakash, (1988) 2 ARC 575; Purshottam v. Special Additional Sessions Judge, Mathura and Ors. (1991) 2 ARC 129; Ram Chandra (deceased L.Rs.) and Ors. v. IXth Additional Distric Judge, Varanasi and Ors., AIR (1991) Allahabad 223; Sagir Khan v. The District Judge, Farrukhabad and Ors., (1996) 27 ALR 540; Mohammad Nasem v. Third Additional District Judge, Faizabad and Ors., AIR (1998) Allahabad 125; Beena Khare v. Vllth Additional District Judge, Allahabad and Anr, (2000) 2 ARC 616; Surendra Nath Mittal v. Dayanand Swarup and Anr., AIR (1987) Allahabad 132; Chigurupalli Suryanarayana v. The Amadalayalasa Co-operative Agricultural Industrial Society Ltd., AIR (1975) A.P. 196 and Tarachand Hirachand Porwal v. Durapa Tavanappa Patravali, AIR (1943) Bombay 237, referred to. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5109 of 1999.

CASE NO.: Appeal (civil) 5109 of 1999 PETITIONER: KEDARNATH Vs. RESPONDENT: MOHAN LAL KESARWARI & ORS. DATE OF JUDGMENT: 10/01/2002 BENCH: R.C. Lahoti & Brijesh Kumar JUDGMENT: R.C. Lahoti, J. The landlord-appellant filed a suit for recovery of arrears of rent and for eviction against the tenant-respondents on the ground available under Clause (a) of … Continue reading

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