SHANTABAI VISHNUMAL Vs. GANPAT LADHA

JUDGEMENT

(1.) THIS petition has been referred to a Division Bench because along with other points it involves a question of public importance. That question is whether in the case of tenancies of business premises the legal representative of a statutory tenant or persons residing with him at the time of his death would be entitled to be considered as the tenants of such business premises under the definition of "tenant" under section 5(11)(c) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as "the Rent Act"). It is, of course, a matter of regret that the litigation leading ultimately to the present petition has been a long and protracted one and commenced as far back as 1958. When, on the 3rd of September, 1956 the petitioner Smt. Shantibai Vishnumal since deceased field a Standard Rent Application, bearing No. R.A.N. 1032 of 1956, in the Court of Small Causes at Bombay. As a result of the said application for fixing standard rent, the rent of Shop No. 1 in Chawl No. 1, Bhamji Shivaji Estate, Vakola, Santacruz, Bombay, was fixed at Rs. 47.10.0 per month instead of the contactual rent of Rs. 80/- per month. The landlord of the premises Shri Ganpat Ladha then field a Revision application against that order with the result that on the 17th of February, 1960 standard rent was refixed at Rs. 54.25 p. per month. The second stage of the litigation commenced very shortly thereafter, in the sense, that on the 29th of June, 1960 the 1st respondent, as the landlord of the premises, issued to the petitioner a notice to quit, which also contained a demand for arrears of rent from May 1956 to May 1960, at the standard rent now fixed at Rs. 54.25. per month. The registered packet containing the said notice to quit and the demand for arrears of rent is said to have been refused, but it is now common ground that it can be said to have been served on the tenant on the 15th of July, 1960. It would appear, however, that on the 18th of July, 1960 a Civil Revision Application bearing No. 1126 of 1960 was filed by the petitioner in this High Court. It was, however, summarily rejected on the 1st of September, 1960. Now, in so far as the question of fixation of standard rent is concerned the dispute becomes concluded on the 1st of September, 1960 and the standard rent came to be fixed at Rs. 54.25 p. per month. On the basis of the quit notice given by the 1st respondent to the petitioner, referred to above, the 1st respondent proceeds to file a Summary suit for eviction as we well as for recovery of arrears of rent. THIS suit was field on the 6th November, 1960 and is referred to as R.A.E. & R. Summary Suit No. 483/4658/60. The 1st respondent took out a summons for judgment, which came up for hearing on the 13th of April, 1961. It would appear that on the date the petitioner paid into Court a sum of Rs. 3,200/-, being the rent of the suit premises payable in accordance with the standard rent fixed upto the 31st of March, 1961 and leave to defend was granted to the petitioner by the Court. A few months thereafter the suit came up for hearing on the 30th of August, 1962 issues were framed. It is significant that on that very day the petitioner paid a sum of Rs. 1,042-10 as the rent from the 1st of April, 1961 to the 31st of August, 1962, together with permitted increases. The petitioner also paid a sum of Rs. 266.56 as Court Fees and Rs. 125.10 as professional costs. The suit was then adjourned from time to time from the 4th of October, 1962 to the 5th of June 1963, and on one of these dates, that is to say, on the 20th of November, 1962, the petitioner paid a further sum of Rs. 162.75 as rent for three months from the 1st of September, 1962 to the 31st of November, 1962. On the 5th of June, 1963 additional issues were framed and on that day also the petitioner paid a further sum of Rs. 325.50 as rent from December 1962 to May, 1963, together with a sum of Rs. 31.13 as permitted increases. The actual amount paid on that day, however, was Rs. 362.23. On the 6th of June, 1963 evidence was recorded and the hearing closed. On the 18th of June, 1963 the trial Court gave its judgment and awarded a decree for possession. Sometime in August 1963 the petitioner field an appeal against the decree for possession, being appeal No. 321 of 1963. The Appellate Bench of the Small Causes Court by its order and judgment dated the 19th of April, 1963 set aside the decree for possession on the ground that the notice to quit had not been a valid notice. Sometime in August 1963 the 1st respondent, being aggrieved by the decision of the Appellate Bench of the Small Causes Court in setting aside the decree for possession, field a Special Civil Application, being Special Civil Application No. 174 of 1969, in this Court. The said Special Civil Application came up for hearing in April 1969. THIS High Court held that the notice to quit was a valid notice and that it had been duly served, but on other points the matter was remanded back to the Appellate Branch of the Small Cause Courts. The petitioners appeal was, therefore, reheard, and on the 22nd of January, 1970 the Appellate Bench of the Small Causes Court delivered its judgment holding that the 1st respondent was entitled to a decree for eviction under sub-section 3(a) of section 12 of the Rent Act and that even if the case was governed by sub-section 3(b) of section 12, the petitioner had not complied with the conditions thereof, respondent, being aggrieved by the decision of the Appellate Bench of the Small Causes Court in setting aside the decree for possession, field a Special Civil Application, being Special Civil Application No. 174 of 1969, in this Court. The said Special Civil Application came up for hearing in April 1969. THIS High Court held that the notice to quit was a valid notice and that it had been duly served, but on other points the matter was remanded back to the Appellate Bench of the Small Causes Court. The petitioners appeal was, therefore, reheard, and on the 22nd of January, 1970 the Appellate Bench of the Small Causes Court delivered its judgment holding that the 1st respondent was entitled to a decree for eviction under sub-section 3(a) of section 12 of the Rent Act and that even if the case was governed by sub-section 3(b) of section 12 the petitioner had not complied with the conditions thereof, so that it could not be said that discretion vested in the Court to refuse to pass a decree for eviction. It is in these circumstances that the petitioner field the present Special Civil Application No. 334 of 1970, which has come up for hearing more than five years after it was field. It requires to be noticed that in the meantime the original petitioner, Smt. Shantabai Vishnumal, died on the 9th of December, 1973. THIS Court on an application preferred by the heir of the deceased Shri Shashikant V. Shinde allowed, by an order dated the 6th of January, 1975, for him to be brought on record. Before considering the contentions on merits, it is appropriate first to consider the preliminary objection raised by Shri M.V. Paranjpe, the learned Advocate for the 1st respondent. In substance, his contention is that there is a lacuna in the Rent Act so that in respect of non-residential premises the legislature has not made any provision for the protection of the heirs or the legal representatives of a deceased tenant. According to Mr. Paranjpe, section 5(11)(c) of the Rent Act is restricted to residential premises so that Shri Shashikant V. Shinde, who, as the heir of the deceased tenant, has been brought on record, would neither be entitled to continue the petitioner nor continue in possession of the suit premises, which are business premises. Now, the relevant portion of the defination of "tenant" is contained in sub-section (11) of section 5 of the Rent Act, and the opening words of the sub-section are that : "tenant" means any person by whom or on whose account rent is payable for any premises and includes-(among other persons) (c) any member of the tenants family residing with him at the time of his death as may be decided in default of agreement by the Court" Mr. Paranjpes contention, no doubt an attractive one, was that when a contractual tenancy was terminated by the landlord, the tenants interest in the premises ceased, although statutory protection was nevertheless available to him to remain in possession. THIS protection, according to Mr. Paranjpe, was available to a member of the tenants family after the death of the tenant because of the provision in that behalf contained in section 5(11)(c) of the Rent Act, but the plain words of section 5(11)(c) according to Mr. Pranjpe, clearly showed that they refer to those premises in which the original tenant was himself residing at the time of his death. Mr. Paranjpe thus sought to suggest that on this view, Shri Shashikant Vishnu Shinde could get no protection because the premises in suit are business premises to which the relevant provision has no application. Mr. Paranjpe sought support for this contention form a judgment of the Gujrat High Court in (Parubai V. Baldevdas) 1964(5) Guj.L.R. 563. In that case Bhagwati, J. (as he then was) held that on the death of a statutory tenant in respect of business premises, the statutory tenancy would come to an end and neither the heirs nor the members of the family of the statutory tenant would be entitled to resist the landlords claim for recovery of the premises. The learned Judge also held that section 5(11)(c) of the Bombay Rent Act cannot apply to the cases of premises which were used by the tenant as business premises and that in respect of such business premises it could not be said that a member of the tenants family was residing with him at the time of his death. Now, this judgment of the Gujrat High Court no doubt supports the argument of Mr. Paranjpe and it would appear that the Gujrat High Court came to this conclusion because of the words of section 5(11)(c) of the Rent Act, which contain the requirement that the member of the tenants family must be residing with him at the time of his death. According to the High Court, this showed that the intention of the legislature was to protect a member of the tenants family residing with him at the time of this death and prevent such a member of the family from being thrown out of the premises in which he was residing. The Court proceeded on the footing that the legislature had provided protection to the members of the family of the deceased actually residing with him at the time of his death so that they would not be thrown on the street after the tenants death. It is required to be noticed that section 5(11)(c) of the Bombay Rent Act once again came up for consideration before a Division Bench of the Gujrat High Court in (Heirs of deceased Mohanlal Lavji v. Muktabai Shamji) (1971)12 Guj.L.R. 272, where it was held, however, that the provisions of section 5(11)(c) of the Bombay Rent Act were not limited to residential premises only. The Division Bench of the Gujrat High Court referred to the judgment of Dhagwati, J., in Parubais case (supra) and came to a contrary conclusion, viz. that section 5(11)(c) of the Bombay Rent Act was not limited to residential premises only. The Court made a specific note of the fact that the entire sub-section (11) of section 5 of the Bombay Rent Act made no reference whatsoever to the nature of the premises leased and that the various sub-clauses of section 5(11) referred only to persons or classes of persons who are entitled to be treated as tenants. After quoting the relevant passing from Parubais case, the Division Bench observed as follows :---