MERWANJI NANABHOY MERCHANT DEAD Vs. UNION OF INDIA

JUDGEMENT

(1.) This appeal by special leave is directed against the judgment and order dated July 25, 1968 of the Bombay High Court in Special Civil Application No. 426 of 1966, whereby the appellant-landlord's suit seeking eviction of the tenant (respondents) was dismissed by the High Court.

(2.) The appellant owns the suit property situated at 29A, Burr Road, Kirkee, Poona. It is an extensive property covering about 3.03 acres of land with a main dwelling house, out-houses, garden etc. By an order dated Dec. 16, 1929, issued by one J. S. Harison, Brigadier, Commanding the Cantonments of Poona and Kirkee, under the Cantonment (House Accommodation) Act (MI) 1923 the said property was requisitioned (appropriated) for the purpose of the residence of Military Officer. Thereupon appellant executed a lease (1st lease) in Feb., 1930 in respect of the said property with the Secretary of State for India for a period of five years on the terms and conditions set out in said lease. On the expiry of the first lease the appellant executed another lease on June 25, 1935 in respect of that property for a period of five years. Thereafter further leases were executed for fresh periods and the last lease was executed on April 21, 1951 (Ex. 70) which was for a period of three years, on the expiry of which the tenancy of the respondent tenant became a monthly tenancy at the rental of Rupees 115/- per month. In the Leases and particularly in the last lease at Ex. 70 there was as per Cl. 2 (iii) a convenant on the part of the respondent-tenant to the effect that "he will keep premises in as good condition as the same are now in (reasonable wear and tear, and destruction or damage by fire, riots, insurrection, act of God or tempest excepted)". According to the appellant, the said convenant was an essential term of the lease which cast an obligation on the tenant to keep the property in tenantable repair and for that purpose to carry out the necessary repairs from time to time but the tenant failed and neglected to do so resulting in deterioration and damage to the property and further the tenant also failed to pay the permitted increases at the rate of Rupees 10.50 n. p. under S. 10-C of the Bombay Rent Act, 1947. Therefore, by a lawyer's notice dated October 21, 1960, the appellant terminated the tenancy and called upon the respondent-tenant to deliver vacant and peaceful possession of the suit property in the same condition in which it had been taken by it at the expiry of April, 1961. After satisfying the provisions of S. 80, C. P. C. the appellant filed a suit (Regular Civil Suit No. 888 of 1963) for eviction in the Court of Civil Judge, Senior Division, Poona, Mainly the ground for eviction was a breach of the aforesaid essential term of the Lease on the part of the respondent-tenant and the consequent damages to the property. The appellant also claimed that he was entitled to permitted increased under Sec. 10-C of the Bombay Rent Act which the respondent was unwilling to pay. He therefore, claimed possession as well as the permitted increases. The suit was resisted by the respondents by raising a twofold contention. First, it was contended that under Cl. 2 (iii) of the Lease there was no obligation cast on them to carry out any repairs which was the responsibility of the appellant and as such, no term or condition was breached by them entitling the appellant to claim possession and secondly, the deterioration and damage to the property, if any, was attributable to reasonable wear and tear during the past 20 year which was the responsibility of the appellant and, therefore, they were not liable to be evicted. As regards the permitted increases, the respondents did not dispute them and offered to pay the same on the appellant executing a fresh agreement of Lease in their favour as in the past.

(3.) On an appreciation of the oral and documentary evidence tendered by the parties both the trial Court and the District Court in appeal recorded a finding of fact that the suit property, the outhouses mainly and the main bungalow to a lesser degree, had suffered considerable deterioration and damage and that such deterioration and demage was not on account of natural or reasonable wear and tear but was due to the negligence in the up-keep and maintenance of the property on the part of the respondents and in that behalf, in addition to the appellant's evidence, the Courts relied upon the evidence of the respondents' witness R. M. Joshi, an Overseer, who virtually admitted that the damage was due to negligence in maintaining the property in good condition. On construction of Cl. 2 (iii) of the Lease both the lower Courts held that under the said clause the responsibility to carry out the repairs necessary to keep the property in good condition and tenantable repair was on the respondents who had committed a breach thereof resulting in damage to the property entitling the appellant to evict the respondents under Sec. 12 (1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. In this view of the matter the trial Court passed in appellant's favour a decree for possession, the permitted increases and mesne profits, about which there was no dispute, which was confirmed in appeal by the District Court. The respondents preferred a combined application under Art. 227 of the Constitution and S. 115 of the Code of Civil Procedure to the High Court challenging the decisions of the lower Courts. On construction of Cl. 2 (iii) of the Lease the High Court took a contrary view holding that the said clause was merely a covenant for careful and reasonable use of the property on the part of the tenant and nothing more, a breach whereof entitled the appellant to claim only damages and not eviction. The High Court further held that both under the Lease and S. 23 of the Bombay Rent Act. 1947 the duty to keep the property in good repairs fell on the appellant-landlord and, therefore, the view of the lower Courts that the appellant was entitled to a decree for eviction for breach of an essential term of the contract (to keep the suit property in repairs) was not sustainable. On behalf of the appellant reliance was alternatively placed upon S. 13 (1) (a) of the Bombay Rent Act, 1947 read with Section 108 (o) of the Transfer of Property Act to sustain the decree for eviction but the High Court took view that since S. 108 (o) covered cased on voluntary waste committed by some positive acts of the tenant the same was not attracted to the facts of the instant case. In the result, the High Court set aside the decisions of both the lower Courts on the point of eviction and dismissed the suit in so far as it related to the prayer for eviction.