Yuvraj @ Munna Pralhad Jagdale & Ors. Versus Janardan Subajirao Wide

Yuvraj @ Munna Pralhad Jagdale & Ors. Versus Janardan Subajirao Wide  

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 2855­2856 OF 2011

Yuvraj @ Munna Pralhad Jagdale & Ors.     ...Appellants

Versus

Janardan Subajirao Wide        ...Respondent

WITH

I.A Nos. 89837­89838 of 2021

&

I.A Nos. 38142­38143 of 2023

J U D G M E N T

SANJAY KUMAR, J.

1. These   civil   appeals   arise   out   of   the   judgment   dated

03.12.2008 of the Bombay High Court, allowing Writ Petition No.

1067 of 1992, and its later judgment dated 09.09.2009, dismissing

Review Petition No. 75 of 2009 in W.P No. 1067 of 1992, respectively.

In turn, W.P No. 1067 of 1992 filed by Janardhan Subajirao Wide, the

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respondent herein, arose out of the judgment dated 21.12.1991 of the

learned 13th Additional District Judge, Pune, in Civil Appeal No. 1030

of 1987, confirming the judgment dated 30.09.1987 of the learned

II Additional S.C. Judge, Pune, in C.S. No. 386 of 1985.

2. C.S. No. 386 of 1985 was filed by late Ramachandra Maruti

Jagadale, plaintiff No.2, and his wife, late Sou. Rangubai Jagadale,

plaintiff No.1, the predecessors­in­title of the appellants herein, for

recovery of possession of the leased premises bearing C.T.S No. 1873

at Bhamburda, Pune, from the tenant, Janardhan Subajirao Wide. By

judgment   dated   30.09.1987,   the   Trial   Court   decreed   their   suit,

holding them entitled to claim eviction of the tenant under Section

13(1)(e)   of   the   Bombay   Rents,   Hotel   and   Lodging   House   Rates

(Control) Act, 1947 (for brevity, ‘the Act of 1947’). Two months’ time

was granted to the tenant to vacate the premises. This judgment of

the Trial Court was confirmed in appeal by the learned 13th Additional

District Judge, Pune, vide judgment dated 21.12.1991.

3. It   is   against   these   judgments   that   the   tenant,   viz.,   the

respondent herein, filed W.P. No. 1067 of 1992 before the Bombay

High Court. By its judgment dated 03.12.2008, the High Court opined

that a case of sub­tenancy was not made out, warranting eviction of

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the   tenant   on   that   ground,   and   quashed   the   decree   of   eviction/

possession. In consequence, C.S. No. 386 of 1985 was dismissed.

Aggrieved thereby, the legal representatives of the deceased plaintiffs,

who were on record in the writ petition, filed Review Petition No. 75 of

2009. However, by its judgment dated 09.09.2009, the High Court

reiterated its finding that the tenant had never parted with possession

of  the   leased   premises   and  had   never   left   the   premises,   being  a

partner. Holding so, the High Court concluded that there was no error

on the face of the record and dismissed the review petition. Presently,

these two judgments are under appeal.

4. While so, the tenant, Janardhan Subajirao Wide, the sole

respondent in these appeals, expired on 16.02.2018. Thereupon, the

appellants filed I.A. No. 89838 of 2021 seeking condonation of the

delay of 1169 days in taking steps and I.A. No. 89837 of 2021 to set

aside the abatement of the appeals and to permit substitution of the

legal heirs of the deceased respondent. Notice having been ordered

thereon, Mr. Sudhanshu S. Choudhari, learned counsel, who had

earlier   appeared   for   the   deceased   respondent,   e­filed   his

vakalatnama/appearance on behalf of the legal representatives on

05.11.2022.  No counter was filed by him opposing the applications.

Sufficient cause having been shown, delay in taking necessary steps

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is   condoned;   abatement   of   the   appeals   is   set   aside;   and   legal

representatives   of   the   deceased   sole   respondent   are   brought   on

record. Registry shall make necessary changes in the cause titles in

both the appeals before issuing certified copies of this judgment.

5. Heard Mr. Vinay Navare, learned senior counsel, appearing

for   the   appellants;   and   Mr.   Sudhanshu   S.   Choudhari,   learned

counsel, appearing for the respondents.

6. The   leased   premises,   consisting   of   two   blocks   with   an

approximate area of 455 sq. ft., are situated on the ground floor on

the eastern side of the cement­concrete building, bearing C.T.S No.

1873 at Bhamburda, Pune. These premises were let out to the tenant

by the original landlord and landlady, the predecessors­in­title of the

appellants, for the purpose of his hotel business under the name and

style of Hotel Ambika. Civil Suit No. 386 of 1985 was filed by the

landlord and landlady for eviction of the tenant on two grounds. Their

claim was that the tenant carried out unauthorized construction of a

toilet in the leased premises, thereby violating the mandate of Section

13(1)(b) of the Act of 1947. It was also their case that the tenant

parted with the running of the hotel and possession of the leased

premises   in   favour   of   one   Krishna   B   Shetty,   thereby   committing

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breach of Section 13(1)(e) of the Act of 1947. These grounds are borne

out by the plaint filed in the suit, which is sought to be placed on

record, by way of I.A. No. 38142 of 2023, along with a photocopy of

Section 15 of the Act of 1947. I.A. No. 38143 of 2023 was filed seeking

exemption from filing an official translation of the plaint. The I.A.s are

allowed.   The   documents   are   taken   on   record   and   exemption,   as

prayed for, is granted.

7. The   tenant   filed   a   Written   Statement   denying   the   suit

claims.   Thereupon,   the   Trial   Court   settled   three   issues   for

consideration.   The   plaintiffs   examined   three   witnesses,   including

plaintiff No. 2, while the defendant examined himself as DW1.

8. Plaintiff   No.   2,   speaking   as   PW1,   stated   that   the   suit

premises was leased out to the tenant in the year 1975 for running

his hotel business. He asserted that the tenant constructed a toilet in

the leased premises in January, 1985, without obtaining his consent

and 2­4 days later, he sold his rights in the hotel to Krishna B Shetty

for a sum of ₹2,00,000/­ and accepted ₹50,000/­ as earnest money.

He claimed that Krishna B Shetty was running the hotel in the leased

premises thereafter for about eleven months. He further stated that in

November, 1985, there was a dispute between the tenant and Krishna

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B Shetty, which led to the sealing of the premises, and finally the key

thereof   was   handed   over   by  the   Sub­Divisional  Magistrate   to   the

tenant and, thereafter, Krishna B Shetty did not operate the hotel.

9. PW2, the Advocate­Commissioner, stated in her first report

(Exh.8) that Krishna B Shetty was in occupation of the leased hotel

premises   when   she   visited   the   same.   In   her   subsequent   report

(Exh.23), she stated that she found no trace of a toilet constructed in

the leased premises.

10. Krishna B Shetty was examined as PW3. He stated that he

intended   to   purchase   the   hotel   from   the   tenant   and   had   taken

possession in January, 1985. He stated that the price was settled at

₹2,00,000/­ and he paid ₹50,000/­ by way of earnest money at the

time   of   execution   of   the   agreement.   He   asserted   that   the   tenant

illegally evicted him from the hotel premises, constraining him to file a

complaint and also a suit for specific performance.

11. The tenant examined himself as DW1. In his examinationin­chief,  he claimed that  he  had  not  given  the  hotel  business to

Krishna B Shetty or anyone else and that Krishna B Shetty was not

given possession of the leased premises at any time. However, during

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his cross­examination, he admitted that he was carrying on hotel

business in the leased premises with the name ‘Hotel Ambika' and in

the year 1984, he thought of admitting a partner to run the hotel. As

Krishna B Shetty was also in the same business, he stated that he

had   talks   with   him   about   joining   the   business.   He   denied   that

Krishna B Shetty was allowed by him to join as a partner in January,

1985.   He,   however,   admitted   his   signatures   in   the   partnership

agreement executed in that regard (Exh.48) and conceded that his

own Advocate had purchased the stamp paper and drafted the said

agreement. He denied that Krishna B Shetty performed Satyanarayan

Pooja on 07.01.1985, after execution of the partnership agreement,

but   admitted   that   the   Invitation   Card   (Exh.44)   issued   on   that

occasion   bore   his   name.   He   also   admitted   his   signatures   in   the

assignment agreement dated 15.01.1985 (Exh.49). He denied that

Krishna B Shetty was running the hotel as his own business in his

individual capacity and that he forcibly dispossessed him in January,

1986. He admitted that proceedings were initiated under Section 145,

Cr.P.C. but asserted that final orders were passed in his favour.

12. Upon consideration of the pleadings and evidence, the Trial

Court answered the three issues framed by it as under: ­

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 “1. It   is   proved   that   the

deft.   has   without   the

plffs. consent given in

writing erected on the

suit   premises   any

permanent structure.

No

2. It   is   proved   that   the

deft. has after the date

of   commencement   of

the   B.R.   Act

(Amendment   Act   of

1973) unlawfully given

on licence whole  or

part of the premises or

assigned or transferred

in   any   other   manner

his interest in the suit

premises?

Yes

3. If   plff.   entitled   to

decree for possession?

Yes”

13. The Trial Court held against the plaintiffs in so far as the

ground under Section 13(1)(b) of the Act of 1947 was concerned, as

the Advocate Commissioner's second report (Exh.23) showed no trace

of a toilet having been constructed in the leased premises. However,

as regards the ground raised under Section 13(1)(e) of the Act of

1947, the finding was otherwise. The Trial Court took note of the

admitted execution of the partnership agreement dated 01.01.1985

(Exh.48), whereby the tenant accepted Krishna B Shetty as a partner

in   his   hotel   business.   Further,   the   Trial   Court   noted   that   the

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Invitation Card (Exh.44) for the Satyanarayan Pooja, mentioned the

name of Hotel Ambika, the name of the tenant and the name of the

new partner, Krishna B Shetty. The Trial Court also noted that the

tenant admitted his signatures in the assignment agreement dated

15.01.1985 (Exh.49), whereby he had assigned his hotel business in

the leased premises to Krishna B Shetty for ₹2,00,000/­ and accepted

₹50,000/­ as earnest money. It was accordingly held that Krishna B

Shetty was taken as a partner in the business initially but, thereafter,

the   business   was   sold   to   him   for  ₹2,00,000/­.   The   Trial   Court

observed   that   the   original   lease   deed   dated   22.01.1975 (Exh.55)

stated clearly in page 4 that the tenant would not assign the business

and would not allow third persons to conduct the said business in

any way nor would he transfer the said business in any way in favour

of a third person. The Trial Court then adverted to Section 15(1) of the

Act of 1947, which provides that, in the absence of a contract to the

contrary, the tenant would not be entitled to sublet or transfer or give

on licence the leased premises and also the  proviso  thereto, which

allowed   the   Government,   by   way   of   a   notification   in   the   Official

Gazette,  to permit in any area transfer of interest in premises held

under leases or a class of leases to such extent as may be specified in

the notification. As the conditions of the proviso were not satisfied on

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facts and in the light of the clear prohibition of assignment in the

lease deed, the Trial Court decreed the suit.

14. The learned 13th Additional District Judge, Pune, affirmed

these findings of the Trial Court and dismissed Civil Appeal No. 1030

of   1987   filed   by   the   tenant. The   Bombay   High   Court,   however,

reversed the findings of both the Courts below. While accepting that

there was material to show that the tenant had assigned his business

in favour of Krishna B Shetty, the High Court took recourse to the

proviso  to Section 15(1) of the Act of 1947 and held that it was

permissible thereunder for a statutory tenant to transfer his tenancy

rights even though the lease agreement prohibited such a transfer.

Further, the High Court took note of the fact that Civil Suit No. 623 of

1986   filed   by   Krishna   B   Shetty   against   the   tenant   for   specific

performance had been dismissed. According to the High Court, so

long as the legal possession remained with the tenant, mere creation

of a partnership agreement by the tenant for the purpose of jointly

carrying on business in the leased premises would not amount to

sub­letting.   Holding   so,   the   High   Court   set   aside   the   decree   of

eviction/possession and dismissed the suit. By its later judgment

dated 09.09.2009, the High Court dismissed the Review Petition filed

by the appellants herein, reiterating that the tenant had never parted

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with or left the premises and, being a partner, he was also involved in

the business. Observing that the dominant purpose of the agreement

executed by the tenant was not to sub­let the premises, the High

Court   opined   that   there   was   no   error   on   the   face   of   the   record

warranting exercise of review jurisdiction.

15. At   this   stage,   we   may   note   that   neither   of   the   parties

thought it appropriate to place on record all the documents that they

considered   relevant.   The   original   lease   deed   dated   22.01.1975

(Exh.55), relied upon by Mr. Vinay Navare, learned senior counsel, is

not available for scrutiny. Similarly, the judgment in Civil Suit No.

623 of 1986, filed against the tenant by Krishna B Shetty, relied upon

by   the   High   Court   and   Mr.   Sudhanshu   S.   Choudhari,   learned

counsel, was not produced prior to conclusion of the hearing of these

appeals. However, the learned counsel deemed it fit to enclose a copy

of the said judgment along with his Written Submissions, after this

judgment was reserved. As the said document was not placed on

record in keeping with due procedure and at the appropriate time, it

is liable to be eschewed from consideration. More so, as the sole

respondent entered appearance through counsel as long back as in

January, 2011, and had ample opportunity to do the needful even if

the said judgment did not form part of the record before the High

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Court.   This   Court   is,   therefore,   constrained   to   adjudicate   on   the

strength of the material available on record.

16. The   issue   for   consideration   is   whether   the   tenant

committed breach of the lease condition with regard to assignment of

his business in the leased premises, warranting his eviction under

Section 13(1)(e) of the Act of 1947. Though the tenant denied the

same, Mr. Vinay Navare, learned senior counsel, would assert that

the admissions made by him during his deposition as DW1 speak

volumes   to   the   contrary.   He   would   point   out   that   the   tenant

categorically admitted execution of the partnership agreement dated

01.01.1985 (Exh.48) and the assignment agreement dated 15.01.1985

(Exh.49),   apart   from   conceding   that   the   Invitation   Card   (Exh.44),

issued in connection with the Satyanarayan Pooja performed in the

hotel, mentioned his name along with those of Hotel Ambika and

Krishna B Shetty.

17. Countering   these   contentions,   Mr.   Sudhanshu   S.

Choudhari,   learned   counsel,   would   argue   that   execution   of   a

partnership deed by the tenant, whereby a third party was inducted

into the business as a partner, is of no consequence. He would point

out   that   the   partnership   agreement   dated   01.01.1985   (Exh.48)

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mentioned that the business would be undertaken as a partnership

with   the   tenant;   his   brother,   Laxman;   and   Krishna   B   Shetty,   as

partners and that the relevant clause in the said document, marked

as   Exh.51,  indicated  that   Krishna   B  Shetty  would   look   after  the

business transactions. He would place reliance on Parvinder Singh

Vs. Renu Gautam and others1 and Mahendra Saree Emporium (II)

Vs. G.V. Srinivasa Murthy2

 in support of his contention that such a

business   arrangement   would   not   amount   to   creation   of   an

assignment or sub­tenancy.

18. In Parvinder Singh (supra), this Court observed that if the

tenant   is   actively   associated   with   the   partnership   business   and

retains the use and control over the tenanted premises with him,

maybe along with partners, the tenant may not be said to have parted

with possession, but if the user and control of the tenanted premises

has been parted with and the deed of partnership has been drawn up

as an indirect method of collecting consideration for creation of a subtenancy   or   for   providing   a   cloak   to   conceal   a   transaction   not

permitted by law, the Court is not estopped from tearing the veil of

partnership and finding out the real nature of the transaction entered

into between the tenant and the alleged sub­tenant.

1 (2004) 4 SCC 794

2 (2005) 1 SCC 481

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19. This   Court   observed   in  Mahendra   Saree Emporium

(supra) that the transfer of a right to enjoy immovable property to the

exclusion of all others during the term of the lease is the sine qua non

of a lease under Section 105 of the Transfer of Property Act, 1882,

and a sub­lease would imply parting with, by the tenant, of the right

to enjoy such property in favour of his sub­tenant. This Court further

noted that the phraseology employed for inferring sub­letting is quite

wide and would embrace within its scope sub­letting of the whole or

part of the premises as also assignment or transfer in any other

manner of the lessee's interest in the tenanted premises. On facts,

however,   it   was   held   that   the   tenant   therein   had   not   created   a

sub­tenancy merely by converting his sole proprietary business into a

partnership business and as the tenant never dissociated himself

from the business activity.

20. It would be apposite at this stage to peruse the relevant

statutory provisions, viz., Section 13(1)(e) and Section 15(1) of the Act

of 1947. They read as under: ­

‘Section 13 (1) Notwithstanding anything contained in this

Act, but subject to the provisions of Section 15, a landlord

shall be  entitled to recover possession of any premises if the

Court is satisfied­ 

(a)  ­ (d) ……

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(e) that the tenant has, since the coming into operation of

this Act unlaw­fully sub­let the whole or part of the premises

or assigned or transferred in any other manner his interest

therein; or

(ee)……..’

‘Section 15 (1) Notwithstanding anything contained in any

law, but subject to any contract to the contrary, it shall not

be lawful after the coming into operation of this Act for any

tenant to sub­let the whole or any part of the premises let to

him or to assign or transfer in any other manner his interest

therein and after the date of commencement of the Bombay

Rents, Hotel and Lodging House Rates Control (Amendment)

Act, 1973, for any tenant to give on licence the whole or part

of such premises

Provided   that   the   State   Government   may   by

notification in the Official Gazette permit in any area the

transfer of interest in premises held under such leases or

class of leases or the giving on licence any premises or class

of premises and to such extent as may be specified in the

notification.’

The aforestated provisions make it crystal clear that, in the

ordinary course and notwithstanding anything contained in any other

law, unless the contract itself permits sub­letting, it shall not be

lawful, after coming into operation of the Act of 1947, for a tenant to

sub­let the premises let out to him or to assign or transfer in any

manner his interest therein. The  proviso  to Section 15(1), however,

authorizes the State Government to permit, in any area, transfer of

interest in premises held under leases or a class of leases, by issuing

a notification in the Official Gazette, duly delineating the extent to

which such transfer is permitted. Presently, it is nobody's case that a

notification was issued by the State Government having application to

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the case on hand. Viewed thus, reliance placed by the High Court

upon this provision was wholly misconceived. In the absence of such

a notification by the State Government, the issue is whether the

tenant could have assigned his leasehold interest in favour of Krishna

B Shetty under the assignment agreement dated 15.01.1985 (Exh.49),

overriding the condition in the lease deed to the contrary.

21. It is in this context that the prohibitory condition in the

lease deed dated 22.01.1975 (Exh.55) assumes importance. The Trial

Court and the Appellate Court extracted the gist of the said lease

condition   in   their   judgments.   The   Lease   Deed   is   stated   to   have

recorded unequivocally in page 4 that the business of Hotel Ambika is

the independent business of the tenant and that he would not assign

the business and would not allow third persons to conduct the said

business in any way nor would he transfer the said business in any

way in favour of a third person. Therefore, there is a clear interdiction

against transfer or assignment by the tenant of the business being

run in the leasehold premises in favour of a third person.

22.  Given   the   clear   proscription   in   the   lease   deed,   duly

endorsed by the explicit language of Sections 13(1)(e) and 15(1) of the

Act of 1947, the very execution of the assignment agreement dated

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15.01.1985   (Exh.49),   whereby   the   tenant   admittedly   assigned   his

business in the leasehold premises in favour of Krishna B Shetty for

₹2,00,000/­ and accepted a sum of ₹50,000/­ as earnest money, was

sufficient in itself to establish transgression of the lease condition and

the statutory mandate. No doubt, the earlier decisions of this Court,

referred   to   hereinabove,   laid   down   the   principle   that   the   mere

execution of a genuine partnership deed by a tenant, whereby he/she

converted a sole proprietary concern into a partnership business,

while continuing to actively participate in the business and retaining

control over the tenanted premises wherein the business is being run,

would not amount to sub­letting. However, that principle has no role

to play in the case on hand as the tenant did not stop short at

executing the partnership agreement dated 01.01.1985 (Exh.48) but

went   on   to   execute   the   assignment   agreement   dated   15.01.1985

(Exh.49),   whereby   he   assigned   his   hotel   business   in   the   leased

premises to Krishna B Shetty and received earnest money also. The

very  act  of  execution  of  this  document  was  sufficient  in  itself  to

complete the breach of the lease condition and the statutory mandate

and   did   not   require   anything   further.   Therefore,   the   subsequent

failure of Krishna B Shetty in his specific performance suit in Civil

Suit No. 623 of 1986, be it for whatever reason, is of absolutely no

relevance   or   consequence.   All   the   more   so,   as   the   landlord   and

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landlady   were   admittedly   not   parties   thereto   and   the   judgment

rendered in the said suit was not even placed on record as per due

procedure and at the relevant time. Irrespective of the result in the

said   suit,   the   ineluctable   fact   remains   that   the   tenant   admitted

execution of the assignment agreement (Exh.49) and that singular

fact settled the issue as to whether there was an act of assignment on

his part. The High Court seems to have lost sight of this crucial

aspect.

23. We,   therefore,   find   on   facts   that   the   tenant   admitted

committing a breach of the lease condition with regard to assignment

of his leasehold interest in favour of a third party, when he signed the

assignment agreement dated 15.01.1985 (Exh.49) for a consideration

of ₹2,00,000/­ and received ₹50,000/­ as earnest money. The breach

being complete on his part upon such execution itself, the failure of

the assignee, Krishna B Shetty, in his suit for specific performance

against the tenant is of no import.

24. The impugned judgments of the Bombay High Court are

accordingly set aside and the judgment of the Trial Court, as affirmed

by the Appellate Court, shall stand restored. In consequence, the

respondents herein, being the legal representatives of the deceased

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tenant, shall vacate the suit premises and hand over vacant and

peaceful possession thereof to the appellants within 2 months, failing

which   the   appellants   shall   be   at   liberty   to   initiate   execution

proceedings before the competent court.

25. The appeals and the I.As are allowed.   There shall be no

order as to costs.

……………………………………….J

[SUDHANSHU DHULIA]

………………………………………...J

[SANJAY KUMAR]

NEW DELHI;

MARCH 21, 2023.