Champaben Balvantrai Bhatt and Another Vs Maniben Maganlal Patel and Another

Mr. K.A. Puj, J.@mdashThe petitioners-original plaintiffs have filed this Civil Revision Application u/s 29(3) of the Bombay Rent Act challenging the judgment and order passed by the Appellate Bench of Small Cause Court in Civil Appeal No. 383 of 1984 on 18th March, 1996 setting aside the judgment and decree for possession of the suit premises passed on 16th October, 1984 in HRP Suit No. 268 of 1980. This Court has issued notice on 18.1.1997. Rule was issued on 7.4.1997. The respondent No. 1 could not be served because he was not found residing at the address given. During the pendency of the Civil Revision Application, Civil Application is filed by the applicant/original respondent No. 1 stating therein that she has become very old and there is no certainty of her life and therefore, she has vacated the suit premises. She has shifted to village Chikhodara, Ta: Borsad, Dist: Anand. There was no heir left by her and therefore, she desired to hand over possession of the portion in her possession, that is, back side one room of the suit premises. It is further stated in the said application that she has made a declaration before this Court on oath on 19th March, 2001. It is further stated that the respondent No. 2 namely Manubhai to whom she had sub let the premises i.e. one room in the front side, in which he was doing the business of preparing and selling food articles. It is further stated that pending Civil Revision Application before this Court, Manubhai had also left and Manubhai recommenced the name of one Dineshchandra Trikamlal Nayak to be the new sub-tenant and therefore, there was an understanding between respondent No. 1, said Manubhai and Dineshchandra Nayak and accordingly Manubhai had let front portion of the demised premises to Shri Dineshchandra Nayak and has put him in possession of the same on the same rent as sub-tenant which was paid by Manubhai to respondent No. 1.

2. The above Civil Application was disposed of by this Court on 23rd April, 2001 wherein it is observed that in view of the statement made in the application on affidavit and in view of the receipt of handing over possession of the rear room to the landlord, the statement made in the application was recorded and accordingly the said application was disposed of.

3. The question therefore, remains to be decided in the present Civil Revision Application is only with regard to the suit premises in possession of the 3rd party, that is, Dineshchandra Nayak. It is the case of the petitioners that the suit premises consists of two rooms, one front room and one rear room. Originally, the suit premises were let out by the husband of the petitioner No. 1 to Maganbhai Patel, husband of respondent No. 1 for his personal use on monthly rent of Rs. 25/ - + municipal taxes, education cess and electricity burning charges. An attempt was made to sub-let the premises and therefore, husband of the petitioner No. 1 had filed HRP suit No. 1649 of 1969 to restrain the husband of respondent No. 1 from transferring or sub-letting the suit premises to any body else and had obtained injunction. As the husband of the respondent No. 1 died during the pendency of the suit and the respondent No. 1 Maniben had given an undertaking that she would not transfer or sub-let the suit premises to any body else which resulted into permanent injunction against respondent No. 1. Inspite of this, the respondent No. 1 sub-let the front room for commercial purpose and committed breach of undertaking given to the Court. She was also irregular in paying rent. As per terms of the tenancy, she was required to pay municipal taxes and education cess which she did not pay and committed breach of the terms of the tenancy. The father of the petitioner was doing sweet mart and Farsan business which had gone to his uncle''s share in partition. He was discharged from service. He being unemployed wanted to start Farsan business and therefore, the suit premises were required bonafide and reasonably for personal use.

4. The petitioners therefore, filed HRP Suit No. 2688 of 1980 claiming possession of the suit premises on the aforesaid grounds. The said suit was decreed in favour of the petitioners on 16th October, 1984. The respondents were given time to hand over possession of the suit premises upto 31st December, 1984 which gave rise to Civil Appeal No. 383 of 1984.

5. It is also the case of the petitioners that the respondent No. 1 has sub-let the premises and she is profiteering. Even in municipal record, names of Manubhai and Dineshchandra Nayak are shown as occupiers of the premises. Even in the register of shops and establishment, it is registered. Even at present, there is a Farsan shop in the front portion. It is also the case of the petitioners that liability to pay municipal taxes is on the respondent No. 1. She has not paid taxes and they have piled up for the last several years and the amount of such taxes comes to approximately above Rs. 15,000/-which is also a clear breach of one of the terms of the tenancy.

6. Despite the fact that the above grounds on which the suit was filed and decree was passed, Civil Application No. 383 of 1984 was allowed by the Appellate Bench of Small Causes Court and it is this order which is under challenge in the present Civil Revision Application.

7. Heard Mr. M.B. Gandhi, the learned Advocate appearing for the petitioner and Ms. Lopa Bhatt, the learned Advocate appearing for the respondent No. 1. Despite service of notice, the respondent No. 2 did not appear before the Court. The Court would have gone into merits of the matter by closely scrutinising the orders passed by the learned Judge, Small Cause Court as well as Appellate Bench of Small Cause Court, but for the subsequent development that has taken place during the pendency of the Civil Revision Application before this Court. It has now come on record by way of filing a declaration by respondent No. 1 before the Court that she has already handed over rear portion of the suit premises and front portion is sub-let to one Dineshchandra Nayak at the behest of respondent No. 2, i.e. Manubhai Nanalal. The Court has inquired from learned Advocate Mr. Gandhi as to whether the third party namely Dineshchandra Nayak who is in occupation of the front portion of the suit premises is required to be heard in the matter after joining him as a party respondent in the proceeding.

8. Mr. Gandhi has submitted that in view of the decision in the case of Bibi Zubaida Khatoon Vs. Nabi Hassan Saheb and Another, as well as the definition contained in Section 52 read with explanation thereof of The Transfer of Property Act, 1882, a third party is not required to be joined as a party respondent nor he is required to be heard in the matter. Mr. Gandhi has further submitted that in the case before Apex Court, transferee pendente lite filed an application seeking impleadment in the pending suit and to amend pleadings. The Court observed that there is no absolute rule that transferee pendente lite in all cases without leave of Court should be allowed to join and contest pending suits. The Court further observed that the transferee purchasing property during pendency of the suit without leave of the Court is bound by the decree that may be passed and action of alienation was not found bonafide. The Court therefore, rejected the application for impleadment and amendment of pleadings.

9. Mr. Gandhi further relied on the decision of the Apex Court in the case of B. Gangadhar Vs. B.G. Rajalingam, , wherein it is also not necessary that the tenant should be made party to the suit when the construction was made pending suit and the tenant were inducted into possession without leave of the Court. It is settled law that a tenant who claims title, right or interest in the property through the judgment debtor or under the colour of interest through him, he is bound by the decree and that, therefore, the tenant need not econominee be impleaded as a party defendant to the suit nor it be an impediment to remove obstruction put up by them to deliver possession to the decree holder.

10. Mr. Gandhi further relied on the decision of the Apex Court in the case of Importers and Manufacturers Ltd. Vs. Pheroze Framroze Taraporewala and Others, , wherein it is held that under the ordinary law a decree for possession passed against a tenant in a suit for ejectment is binding on a person claiming title under or through that tenant and is executable against such person whether or not he was or was not a party to the suit. The non-joinder of such a person does not render the decree any the less binding on him. It is in this sense, therefore, that he is not a necessary party to an ejectment suit against the tenant. It is, however, recognised that such a person is, nevertheless, a proper party to the suit in order that the question whether the lease has been properly determined and the landlord plaintiff is entitled to recovery possession of the premises may be decided in his presence so that he may have the opportunity to see that there is no collusion between the landlord and the tenant under or through whom he claims and to seek protection under the Act.

11. As per this judgment the subtenant, namely, Manubhai Maganlal was joined as party in the suit. However, the third party, namely, Shri Dinesh Naik to whom the said Manubhai Maganlal has sublet the premises is neither a proper nor necessary party and hence it is not necessary to hear him or to join him as a party in the present proceeding before this Court.

12. Even Section 52 of the Transfer of Property Act, 1882, read with explanation thereto, clearly states that the Section comes into existence from the point of the institution of the suit and continues to survive till the satisfaction of the decree. The effect of doctrine of lis pendens as embodied in Section 52 of Transfer of Property Act is not to annul all voluntary transfers effected by the parties to a suit but only to render it subservient to the rights of the parties thereto under the decree or order which may be made in that suit. Its effect is only to make the decree passed in the suit binding on the transferee if he happens to be third party person even if he is not a party to it. Considering the factual scenario and above legal position, the Court is of the view that one of the grounds on which the decree was sought for, was sub-letting and by filing a declaration before the Court during pendency of this Civil Revision Application, subletting is proved. As a matter of fact, one part of the suit premises is already handed over by the respondent No. 1 to the petitioners. The respondent No. 2 had chosen not to appear before the Court. On the contrary, the premises was further sub-let to one Dineshchandra Nayak who is a third party and such sub-letting had taken place during pendency of the Civil Revision Application. In that view of the matter, the judgment and decree passed by the Appellate Bench of Small Causes Court in Civil Appeal No. 383 of 1984 on the ground of sub-letting requires to be reversed and it is accordingly reversed and that of the trial Court with regard to sub-letting is restored. The petitioners are entitled to possession of the suit premises on the ground of sub-letting. Civil Revision Application is accordingly disposed. Rule made absolute to the above extent. However, there shall be no order as to costs.