NARENDRA BACHUBHAI DAVE Vs. JETHALAL S. DAVE

JUDGEMENT

(1.) This is an appeal from the judgment and order of Gandhi J. dismissing the Chamber Summons taken out by the appellants, in suit No. 375 of 1962 in this Court, praying that appellant No. 1 should be relieved of certain undertakings given by him under the consent decree passed in the said suit and for stay of all proceedings in execution of the said consent decree. The appeal raises some interesting questions under the newly added Section 15A and Sub -section (4A) of Section 5 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as 'the Bombay Rent Act').

(2.) APPELLANT No. 1 before us was defendant No. 2 in Suit No. 375 of 1962 and all the appellants including appellant No. 1 are the heirs and legal representatives of defendant No. 1, who has died after the disposal of the suit. It may be mentioned that the parties are related and belong to the same family. The family is certainly no stranger to litigation. Respondent No. 1 before us was original plaintiff No. 1 and respondent No. 2 was plaintiff No. 2, which is a firm consisting of some of the family members. There was an open plot of land at Santa Cruz belonging to one Moisuddin. On August 17, 1944, by an indenture of lease, Moisuddin granted a lease of the said plot for a period of five years to one Ishwarlal Desai. Ishwarlal Desai constructed certain structures on the plot, one of them being a theatre called Roop Talkies, and carried on the business of exhibiting cinematograph films there. On October 23, 1951 there was an indenture of assignment by which the entire property was assigned to one Hariprasad Dave, a brother of respondent No. 1 and the deceased defendant No. 1. It appears that the said Hariprasad purchased these properties for the benefit of himself, defendant No. 1 and the three sons of respondent No. 1 viz. Krishnashanker, Ashwinkumar and Kishorekumar. It further appears that the lease was renewed for a period of twenty years from August 15, 1951 in favour of the said Hariprasad Dave. On February 27, 1953 a partnership firm was constituted of the five persons mentioned above viz. Hariprasad Dave, defendant No. 1 and the aforesaid three sons of respondent No. 1 and this firm was known as M/s. Roop Talkies. This firm carried on its business till March 31, 1958, when defendant No. 1 retired from the partnership. Jethalal Dave, respondent No. 1 (plaintiff No. 1), was taken as a partner in the place of defendant No. 1, On May 8, 1958 an agreement of leave and licence was entered into by which the partners of M/s. Roop Talkies viz. respondent No. 1 and his aforesaid three sons granted to defendant No. 1 leave and licence to enter the said theatre known as Roop Talkies and carry on the business of exhibiting cinematograph films there. We shall come to this agreement in some detail a little later. After this agreement was entered into, it appears that there were certain disputes between the parties and defendant No. 1 claimed tenancy rights and, according to respondent No. 1, committed breaches of this agreement. It is not necessary to consider in detail these disputes. However, it appears that by the agreements dated November 4, 1960 and June 16, 1961 defendant No. 1 accepted the position that he was a licensee under the agreement dated May 8, 1958. On November 10, 1962 the aforesaid suit No, 375 of 1962 was filed by respondent No. 1 against defendant No. 1 for possession of the Roop Talkies and of the articles described in Schedule 'A' to the plaint. On October 1, 1964 respondent No. 2 viz. the firm of M/s. Roop Talkies, was joined as plaintiff No. 2. In 1966 there was an amendment to the plaint whereby certain allegations were made against defendant No. 1 and defendant No. 2, although at that stage defendent No. 2 (appellant No. 1) was not joined as defendant to the suit. These allegations were that defendant No. 1, who was then carrying on the business in the name and style of M/s. Narendra and Co. had admitted his son, appellant No. 1 as a partner in the said firm of M/s. Narendra and Co. without the consent of the respondents and that thereafter defendant No. 1 and appellant No. 1 were conducting the business of Roop Talkies together, it was alleged that by permitting appellant No. 1 to join in the conduct of the said business, defendant No. 1 had committed a breach of the aforesaid leave and licence agreement. It appears that on September 16, 1969 this suit reached hearing. At that stage, appellant No. 1 was added as a party defendant to the suit, and a consent decree was passed by the Court pursuant to certain consent terms which were handed in by the parties. It appears that certain undertakings, to which we shall come presently, were given and a consent decree was passed by the Court.

(3.) ON March 31, 1973 Maharashtra Act No. XVII of 1973 came into force, under which certain amendments were introduced into the Bombay Rent Act. The 'Statement of Objects and Reasons' to this Act shows that the mischief, which was intended to be remedied was that the provisions of the Bombay Rent Act were being avoided by the expedient of giving premises on leave and licence for some months at a time, often renewing the same from time to time at a higher licence fees. It was felt that the licensees were thus charged excessive licence tees and had no security of tenure, and hence it was provided by Clause 14 of the Bill that certain licensees should be granted protection as statutory tenants. We may make it clear that we have referred to the Statement of Objects and Reasons not as a guide to the interpretation of the provisions introduced by the new Act but merely to show the circumstances under which the said provisions were introduced. On July 21, 1973 defendant No. 1 died intestate leaving behind him the present appellants as his heirs and legal representatives. On July 25, 1973 appellant No. 1 received a letter addressed to defendant No. 1 by the advocate of the respondents pointing out that both the defendants had given an undertaking to the Court not to part with the possession of the aforesaid premises and articles and alleging that the defendants had repeatedly committed breaches of certain terms of the consent decree regarding the payment of the amount of municipal and other rates, taxes and charges. By the said letter the attention of the defendants was drawn to the undertaking given by them to hand over possession of the said cinema theatre premises with all articles therein on or before September 30, 1973 and a hope was expressed that the defendants would observe the undertakings given by them. By the said advocate's letter the respondents expressed their desire to take over possession of the suit premises and the articles therein on September 30, 1973. On September 12, 1973 the appellants took out a Chamber Summons praying that appellant No. 1 (defendant No. 2) should be relieved of the aforesaid undertaking given by him under the consent decree dated September 16, 1969 and that pending the hearing and final disposal of the suit filed by the appellants against the respondents in the Court of Small Causes at Bombay being R.A.N. Declaratory Suit bearing Stamp No. 7239 of 1973 all proceedings in execution of the consent decree should be stayed. It may be mentioned that prior to taking out this Chamber Summons the appellants had filed the aforesaid suit in the Court of Small Causes for a declaration of their alleged rights as tenants in the suit premises. Admittedly, the undertaking was not complied with and possession of the suit premises and the said articles was not handed over to the respondents on September 30, 1973, nor has this been done till today.