Rudrayya Tippayya Sw... v. Kalyanappa Gurushant..., Bombay High Court, Judgment, Law, casemine.com

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Case Number

Writ Petition No.4964 of 1990,

Judges

Mr. Justice R.M.S. Khandeparkar

Acts

provisions of the Rent Act, applying the provisions under Section 99 of the Code of Civil Procedure,
BOMBAY RENTS HOTEL AND LODGING HOUSE RATES CONTROL ACT 1947
Section 99 of the Code of Civil Procedure
ARTICLE 227 CONSTITUTION OF INDIA

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Smart Summary

Factual and Procedural Background

The petitioners challenged two impugned judgments and orders: (1) the judgment and order dated 16 April 1984 in Regular Civil Suit No.1196 of 1974 by the IInd Joint Civil Judge, Junior Division, Solapur, and (2) the judgment and order dated 10 September 1990 by the Additional District Judge, Solapur in Civil Appeal No.544 of 1984 which dismissed the appeal and confirmed the decree for eviction against the petitioners. The petitioners sought relief under writ jurisdiction (Article 227), attacking the decrees for eviction and for restoration of possession.

The petitioners argued that the suit was a composite suit improperly combining (a) a claim for restoration of possession based on title and (b) a claim for eviction under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (the Rent Act), and that such mis-joinder made the suit not maintainable. They also contested the courts' findings that the respondents had proved bona fide need of the premises and that the petitioners had defaulted in payment of rent.

The courts below had reached concurrent findings in favour of the respondents on the factual issues (bona fide need and default in rent). The impugned decisions were challenged before the High Court under Article 227. The High Court considered jurisdictional questions (including market value of the property being Rs.8,767 and thus within the jurisdiction of the Civil Judge, Junior Division, Solapur) and the effect of Section 99 of the Code of Civil Procedure on mis-joinder of causes of action, and ultimately dismissed the petition. The interim relief previously granted was extended for eight weeks from the date of the hearing.

Legal Issues Presented

Whether a composite suit combining a claim for restoration of possession based on title and a claim for eviction under the Rent Act is maintainable, or whether such combination amounts to mis-joinder of causes of action rendering the suit not maintainable.
Whether the concurrent factual findings of the courts below that the respondents had bona fide need of the premises and that the petitioners had defaulted in payment of rent were vitiated by perversity or arbitrariness such as to warrant interference in writ jurisdiction under Article 227 of the Constitution of India.

Arguments of the Parties

Petitioners' Arguments

The suit was a composite suit combining distinct causes of action: restoration of possession on title and eviction under the Rent Act; such combination amounted to mis-joinder of causes of action and was therefore not maintainable.
The procedure, forum of appeal, and availability of second appeal under the Rent Act differ from ordinary civil procedure; combining both claims in one suit ignored those procedural distinctions and was illegal.
Both lower courts erred in finding that the respondents had proved bona fide need and default in payment of rent.
Reliance was placed on decisions including Govindbhai Parshottamdas Patel & Ors. v. New Shorrock Mills (AIR 1984 Gujarat 182) and Mohmad Husain Chorumiya Shaikh v. Taraben Manilal Shah (1992 Bom.R.C. 41) to support the contention that such suits are not maintainable/that separate jurisdictions should not be exercised in the same proceedings.

Respondents' Arguments

The plaint, read as a whole, showed that the dispute was essentially between landlord and tenant; the denial of title pleaded by the respondents was in the nature of a ground for eviction under the Rent Act rather than a separate suit based on title.
The parties had understood the proceedings to be landlord-tenant proceedings and the petitioners did not at any time complain about misunderstanding the nature of the plaintiffs' claim.
Even in eviction proceedings under the Rent Act, if a title dispute arises, the court dealing with the eviction is not barred from determining that title issue.
Relied on authorities (including Messrs Importers and Manufactures Ltd. v. Pheroze Framroze Taraporewala (AIR 1953 SC 73), Smt. Savitribai v. Vithal Hari Petakar (AIR 1981 Bom 430), Kamruddin Shabuddin Tamboli v. Allauddin Fattemohamed Malik (1985(1) Bom.C.R. 101), and Babulal Bhuramal v. Nandram Shivram (AIR 1958 SC 677)) to support the proposition that the eviction/landlord-tenant nature of the suit could be upheld and title issues could be dealt with in such proceedings.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Govindbhai Parshottamdas Patel & Ors. v. New Shorrock Mills, Nadiad (AIR 1984 Gujarat 182)	The provided opinion records that this decision discusses that when the same individual/authority is invested with two different jurisdictions, that individual cannot exercise both jurisdictions simultaneously in one proceeding; forums and procedures under different statutes may be distinct.	The Court acknowledged the proposition of law laid down by the Gujarat High Court but held that those factors were not required to be gone into in the facts of the present case; the Court noted the appellate forum differences but did not allow that to overturn the impugned judgment.
Mohmad Husain Chorumiya Shaikh v. Taraben Manilal Shah (1992 Bom.R.C. 41)	This opinion cited the case but did not state the specific rule or principle from it in the provided text.	The case was cited by the petitioners in support of their contention; the High Court's reasons did not rest principally on this authority in the portion of the opinion provided.
Messrs Importers and Manufactures Ltd. v. Pheroze Framroze Taraporewala (AIR 1953 SC 73)	The provided opinion cited this Apex Court decision but did not extract or state a specific rule or principle from it in the text provided.	The respondents relied on this authority to support their contentions; the High Court noted the citation and treated it as one of several authorities put forward but did not base its primary reasoning solely on it in the provided text.
Smt. Savitribai v. Vithal Hari Petakar (AIR 1981 Bom 430)	The opinion lists the decision as cited by the respondents; the specific rule/principle from this decision is not described in the provided text.	Cited by respondents; the Court noted the citation among authorities supporting the respondents' position but did not rely on it as the central basis for the decision in the provided excerpts.
Kamruddin Shabuddin Tamboli v. Allauddin Fattemohamed Malik (1985(1) Bom.C.R. 101)	The opinion cites the decision; no specific rule or principle from it is set out in the provided text.	Referred to by respondents as supporting authority; the Court observed the citation but its decision was founded on the concurrent findings of fact and jurisdictional considerations rather than on this authority alone.
Babulal Bhuramal & Anr. v. Nandram Shivram & Ors. (AIR 1958 SC 677)	The opinion cites the Apex Court decision; the specific principle relied upon from this case is not detailed in the provided text.	Cited by respondents; the Court recorded the reliance but its principal reasoning emphasized jurisdiction, Section 99 CPC and the lack of perversity in the factual findings.

Court's Reasoning and Analysis

The Court's analysis proceeded through the following steps, based strictly on the material in the opinion:

Review of records and issues: The petition challenged the trial court and appellate court decrees, primarily on two grounds — maintainability of a composite suit and the correctness of factual findings on bona fide need and default in rent.
Concurrent findings on facts: Both lower courts had reached concurrent findings that respondents proved bona fide need of premises and that petitioners defaulted in payment of rent. The High Court found no evidence that these findings were perverse or arbitrary and therefore saw no basis for interference under Article 227.
Jurisdictional analysis: The plaint showed the market value of the suit property at Rs.8,767. The Court observed that suits for restoration of possession for properties of market value less than Rs.10,000 had to be filed before the Civil Judge, Junior Division, Solapur. Thus, the Civil Judge, Junior Division, had jurisdiction over both the title-based restoration claim and the eviction claim under the Rent Act in the facts of this case.
Effect of mis-joinder: The Court referred to Section 99 of the Code of Civil Procedure which provides that no decree shall be reversed or substantially varied in appeal on account of mis-joinder of causes of action (or parties) if the mis-joinder does not affect the merits or the jurisdiction of the Court, subject to the proviso regarding necessary parties. The Court reasoned that if the appellate court and trial court had jurisdiction and the merits were correctly decided, mere mis-joinder would not warrant interference in writ jurisdiction.
Application of authority on distinct jurisdictions: The Court accepted that the Gujarat High Court decision (Govindbhai) correctly stated that distinct statutory jurisdictions cannot be exercised simultaneously in a single proceeding by the same authority; it acknowledged differences in appeal forums and procedures under the Rent Act versus ordinary civil procedure. However, the Court held that these considerations did not alter the outcome in the present facts because (a) the trial court had jurisdiction to deal with both claims given the property value and landlord-tenant nature of the suit as pleaded, (b) no prejudice to petitioners was shown from any alleged composite suit, and (c) the factual findings were not liable to be disturbed.
Pleadings read as whole: The Court emphasized that pleadings must be read as a whole and not by picking out stray sentences; an overall reading showed that respondents pursued eviction on grounds including bona fide need, default in rent and denial of title as a ground for eviction under the Rent Act.
Conclusion on interference: Because there was jurisdiction, and because the findings on merits were not perverse or unsupported, there was no scope for writ interference under Article 227 simply on the ground of mis-joinder. The Court therefore dismissed the petition.

Holding and Implications

Holding: The petition is dismissed. The High Court declined to interfere with the concurrent findings of the lower courts and upheld the decree for eviction and restoration of possession.

Implications:

The direct effect is that the decrees of the trial court and the appellate court confirming eviction and restoration of possession are sustained; the petitioners' challenge under Article 227 failed.
The Court ruled that in the facts of this case the Civil Judge, Junior Division, had jurisdiction to try both the restoration-of-possession claim (title-based) and the eviction claim under the Rent Act because the market value of the property fell within that Court's pecuniary jurisdiction.
The Court held that mis-joinder of causes of action, where it does not affect the merits or jurisdiction (per Section 99 CPC), is not a ground for interference in writ jurisdiction; no prejudice from any alleged composite suit was shown by the petitioners.
The opinion does not state that it establishes any new precedent; it expressly declined to further pursue other points or authorities urged by the petitioners because they did not justify a contrary finding. Therefore, the decision's immediate consequence is the dismissal of the petition and continuation of the decrees below (subject to the interim relief extension noted below).

Additional procedural outcome recorded in the opinion: the interim relief granted earlier was extended for a period of eight weeks from the date of the hearing; rule discharged with no order as to costs.

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Rudrayya Tippayya Swami Since Deceased By His L.Rs. Another v. Kalyanappa Gurushantappa Alagundagi Others

Cases referred :

Govindbhai Parshottamdas Patel Vs. New Shorrock Mills, Nadiad, AIR 1984 Gujarat 182 [ 3 , 8 ]

Mohmad Husain Chorumiya Shaikh Vs. Taraben Manilal Shah, 1992 Bom.R.C. 41 [ 3 ]

Messrs Importers and Manufactures Ltd. Vs. Pheroze Framroze Taraporewala, AIR 1953 SC 73 [ 3 ]

Smt. Savitribai Vs. Vithal Hari Petakar, AIR 1981 Bom 430 [ 3 ]

Shri. Kamruddin Shabuddin Tamboli Vs. Shri. Allauddin Fattemohamed Malik, 1985(1) Bom.C.R. 101 [ 3 ]

Babulal Bhuramal Vs. Nandram Shivram, AIR 1958 SC 677 [ 3 ]

Advocates appeared :

Shri. A. A. KUMBHAKONI for the Petitioners.

Shri. G. S. GODBOLE for Respondent No.1.

:- Heard the learned advocates for the parties. Perused the records.

2. The petitioners challenge the judgment and order dated 16th April, 1984 passed in Regular Civil Suit No.1196 of 1974 by the IInd Joint Civil Judge, Junior Division, Solapur, and the judgment and order dated 10th September, 1990 passed by the Additional District Judge, Solapur, in Civil Appeal No.544 of 1984. By the latter judgment and order, while dismissing the appeal, the lower appellate Court has confirmed the decree against the petitioners for eviction from the suit premises.

3. The challenge to the impugned judgment and order is two fold. Firstly that a composite suit, one in relation to the relief for restoration of possession based on title and other in relation to the eviction of the petitioners from the suit premises on the basis of the grounds available under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, hereinafter called as the Rent Act, was not maintainable, as such a suit suffers from mis-joinder of causes of action as the cause of action for possession on the basis of title to the property being totally distinct and separate from the cause of action for eviction in favour of the landlords under the Rent Act, and therefore, both could not be combined in the same proceedings and both the Courts below having ignored this aspect have acted illegally while decreeing the suit. Secondly that both the Courts erred in holding that the respondents/original plaintiffs had established the case in relation to the bona fide need of premises as well as default in payment of rent. Reliance is sought to be placed in the decision of the Division Bench of Gujarat High Court in the matter of Govindbhai Parshottamdas Patel & Ors. Vs. New Shorrock Mills, Nadiad , reported in AIR 1984 Gujarat 182 and of the learned Single Judge of this Court in the matter of Mohmad Husain Chorumiya Shaikh Vs. Taraben Manilal Shah, reported in 1992 Bom.R.C. 41. The attention is also drawn to the averments in the plaint while submitting that the same clearly disclose the pleadings which reveal that the suit was filed primararily for restoration of possession from a trespasser and, in the alternative, for eviction on the basis of the grounds available under the Rent Act. The attention was also drawn to the procedure, which is required to be followed in the cases arising under the Rent Act, while contending that the same is different from the one to be followed in regular suits particularly in relation to a right of appeal as also the forum to which such appeal is to be filed, irrespective of the quantum of amount involved in relation to the arrears of rent and the absence of provision for second appeal. On the other hand, while submitting that the claim of the plaintiffs to be understood by reading the entire plaint as a whole, and there being no grievance made at any time by the petitioners in understanding the exact nature of the claim of the plaintiffs, it is submitted by the learned advocate for the respondents that both the parties had clearly understood that the dispute was between the landlord and the tenant and the pleadings in relation to the grounds pertaining to denial of title was in respect of one of the grounds available for the landlord to seek eviction of a tenant under the Rent Act. Further it was sought to be contended that even in the proceedings for eviction filed against a tenant by the landlord under the Rent Act, if a dispute pertaining to the title of the premises arises for determination thereof, the Court dealing with the matters under the Rent Act is not debarred from dealing with the said issue. On proper reading of the pleadings in the plaint, it cannot be said that the suit was of the nature other than that between the landlord and the tenant. Reliance is sought to be placed in the decisions of the Apex Court in the matter of Messrs Importers and Manufactures Ltd. Vs. Pheroze Framroze Taraporewala , reported in AIR 1953 SC 73, of the Division Bench of this Court in Smt. Savitribai & Anr. Vs. Vithal Hari Petakar , reported in AIR 1981 Bombay 430 and of the learned Single Judge of this Court in Shri . Kamruddin Shabuddin Tamboli Vs. Shri. Allauddin Fattemohamed Malik and Ors., reported in 1985(1) Bom.C.R. 101 and of the Apex Court in Babulal Bhuramal & Anr. Vs. Nandram Shivram & Ors., reported in AIR 1958 SC 677.

4. It is to be noted that both the Courts have arrived at the concurrent findings on the issues pertaining to the bona fide need of the premises to the respondents and default in payment of rent by the petitioners and both these findings having been arrived at, on analysis of the entire evidence on record in proper perspective, there is no case made out for interference therein in exercise of jurisdiction under Article 227 of the Constitution of India. None of the findings in respect of the claim of the respondents regarding bona fide need of the premises as well as default on the part of the petitioners in payment of rent can be said to be either perverse or arbitrary are not borne out from the record. Being so, as far as the facts of the case is concerned, there is no scope for interference in writ jurisdiction.

5. As already observed above, the petitioners seek to challenge the judgment and orders primarily on the ground of non-maintainability of composite suit inasmuch as that the claim of the respondents for restoration of possession on the basis of the title to the property was sought to be mingled with the grounds for eviction of a tenant available under the Rent Act. Irrespective of the fact whether such a suit can be filed or not, the fact remains that the decree for eviction was passed by the Civil Judge, Junior Division, Solapur. It is not in dispute that the suit for eviction of the tenants on the grounds available under the Rent Act in relation to the premises situated at Solapur and within the jurisdiction of the Civil Court at Solapur are to be entertained and tried and decided by the Civil Judge, Junior Division, Solapur. It is also not in dispute that the suits for restoration of possession of immovable properties situated within the jurisdiction of the said Court had necessarily to be filed in the said Court when the market value of the property was less than Rs.10,000/- at the relevant time. In the case in hand, the plaint apparently discloses that the market value of the suit property was valued at Rs.8,767/- and the same was not disputed by the petitioners predecessors, who had contested the suit by filing written statement. Obviously, therefore, the suit for restoration of the possession of the property was maintainable before the Civil Court, Junior Division, Solapur, in relation to the property in question. In other words, the Civil Judge, Junior Division, Solapur, had, at the relevant time, jurisdiction to entertain the suit for restoration of possession in relation to the suit property as well as the suit for eviction of a tenant from the suit property.

6. Once it is established that the Court had jurisdiction to decree the suit and the decision arrived at by the Court below does not disclose any finding which can be said to be either perverse or contrary to the materials on record, then such a decision would not warrant interference in writ jurisdiction under Article 227 of the Constitution of India, merely on the ground of mis-joinder of causes of action. It is to be noted that Section 99 of the Code of Civil Procedure clearly provides that no decree shall be reversed or substantially varied nor shall any case be remanded, in appeal on account of any mis-joinder or non- joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court provided that nothing in that section would apply to non- joinder of a necessary party. If the legislative mandate does not expect interference, even by the appellate Court in the decree passed by the lower Court merely on the ground of mis-joinder of cause of action, when such misjoinder of cause of action does not affect the merits of the case or jurisdiction of the Court, certainly interference in such a decree in exercise of jurisdiction under Article 227 of the Constitution of India would be thoroughly uncalled for. As already seen above, there being no case made out for interference in the impugned judgment and orders on merits, and the Courts below had jurisdiction to entertain and try the suit for restoration of possession of the immovable property, based on the title, as well as the suit for eviction of a tenant by the landlord, merely filing of a composite suit on both the grounds, in the facts and circumstances of the case in hand, would not warrant interference in writ jurisdiction.

7. As rightly submitted on behalf of the respondents, a grievance of the parties, either in the plaint or in the written statement, has to be understood by reading the entire pleadings in the plaint or in the written statement, as the case may be, and not by picking up stray sentence from here and there from the pleadings. Overall reading of the plaint would necessarily disclose that the respondents had approached the Court for eviction of the petitioners from the suit property on various grounds including the grounds of bona fide need of the premises, default in payment of rent as well as denial of title. The pleadings apparently disclose that the respondents had served a notice upon the petitioners informing them about the purchase of the property by the respondents and consequently, the acquisition of status of a landlord vis-a-vis the petitioners, and there was no response to the said notice. It was, therefore, apparent that there was justifiable cause for the landlord to believe that the petitioners were not interested in accepting the title of the respondents to the suit premises.

8. As regards the decision of the Gujarat High Court in Govindbhai Parshottamdas Patels case (supra), there was a serious dispute raised by the parties on the point of status of the occupant of the premises as to whether he was a licensee or tenant, and it was not a case of being a composite suit and, therefore, being not maintainable. Undoubtedly, similar ground was also raised along with the other grounds relating to the absence of merits of the case for eviction of the occupants from the suit premises. The decision also lays down that considering the scheme of the Rent Act, it would be clear that when the same person or individual is invested with two different jurisdictions, he cannot exercise two jurisdictions simultaneously in one and the same proceedings and that he has to exercise one jurisdiction at a time because it is not he (the individual officer), who acts, but it is the authority under the particular Act, which is distinct and independent, which exercises that particular jurisdiction, and even if one jurisdiction is exercised, not only the original forum may be changed, but the procedure for trial and hearing of the particular proceeding to be adopted by that forum will also be different. There could be no quarrel about the proposition of law laid down by Gujarat High Court. The learned advocate for the petitioners is also justified in contending that the appellate forum in cases of decree of eviction under the Rent Act is not the same as the one under the Code of Civil Procedure in relation to the suit for possession based on title, and that there is no provision for second appeal in the case of decree of eviction under the Rent Act. However, all those factors are not required to be gone into, in the facts and circumstances of the case in hand. As already observed above, once the petitioners are not able to make out any case on merits for interference in the judgment and order and once it is clear that the decree for eviction under the Rent Act as well as the decree for restoration of possession in a suit based on title to a immovable property, could have been passed by the same Court, and in fact the suit was by the landlord against the tenant in terms of the provisions of the Rent Act, applying the provisions under Section 99 of the Code of Civil Procedure, and in the absence of any prejudice being disclosed to the petitioners on account of the alleged composite suit filed by the respondents, there is no case for interference in the impugned judgment and order. As rightly submitted by the learned advocate for the respondents, the pleadings in the plaint do not disclose any composite suit, as has been alleged. The pleadings in relation to the denial of title are essentially, as submitted by the learned advocate for the respondents, in relation to the ground for eviction of the tenant based on denial of title by him which is a ground for eviction available under the Rent Act.

9. For the reasons stated above, it is not necessary either to deal with other points sought to be raised nor it is necessary to refer to other decisions, which are relied upon by the advocate, as they do not justify any finding contrary to those arrived at in this judgment. In the result, therefore, the petition fails and is hereby dismissed. Rule is discharged with no order as to costs.

10. At this stage, on oral request by the learned advocate for the petitioners, though objected by the respondents, the interim relief granted during the pendency of the petition shall remain in force for a period of eight weeks from today.

Petition dismissed.

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Rudrayya Tippayya Sw... v. Kalyanappa Gurushant...