Bombay High Court: While examining a challenge to an appellate judgment reversing a decree of possession in favour of the tenant, the Single Judge Bench of Rajesh S. Patil, J., held that the finding of surrender of tenancy in absence of any documentary evidence was perverse and contrary to record. The Court restored the decree of possession passed by the trial court and directed restoration of possession to the tenant while observing that there can be no surrender of tenancy without any agreement or decree.
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Background
A shop in Mumbai was let out in 1944 on monthly rent. In 1956, the landlord requested temporary use of the premises for election purposes. A letter dated 19 December 1956 recorded that the tenant agreed to give the premises for 3—4 months and that possession would be returned whenever the tenant required upon 48 hours’ notice. During this period, the tenant was permitted to occupy one room in a residential flat in a nearby building to accommodate his servant and stock-in-trade.
Despite repeated reminders by the tenant, the landlord did not hand over the possession of the suit premises, and therefore, the tenant filed a suit seeking possession. The matter first went to the City Civil Court, which returned the plaint for want of jurisdiction. The tenant then approached the Small Cause Court seeking possession, which decreed the suit in his favour. Being aggrieved, the landlord preferred an appeal, and the appellate court reversed the decree, holding that tenancy had been surrendered. Dissatisfied by the judgment, the tenant invoked the supervisory jurisdiction under Article 227 of the Constitution.
Analysis
The Court noted that the letter dated 19 December 1956 clearly established that the premises were given to the landlord only for a temporary period for election purposes, with an obligation to return possession upon notice. However, there was nothing on record to show that an alternate residential premise was given to the tenant. The Court further noted that there was no document to suggest the surrender of tenancy. Therefore, the Court observed that the appellate court’s finding that there was indeed a surrender of tenancy was perverse. The Court opined that once, according to the landlord, the tenancy was surrendered then there was no question of tenant paying the rent and landlord issuing receipt to that effect. The said event continued 3 years after the tenancy was surrendered.
The landlord had argued that the tenant was paying rent for the residential premise and not for the shop. However, the Court did not agree to that and opined that even though there was a shifting, rent was collected for the suit premises and therefore, there existed a relationship of a landlord and tenant between the parties. The Court emphasised that if there is a relationship of a landlord and tenant, then the only court which will have jurisdiction to decide the issue of possession would be the Small Cause Court.
The Court opined that if a tenant is compelled by the landlord to temporarily vacate the premises, the landlord must restore possession after the agreed period, as the landlord-tenant relationship continues. If possession is not returned, the tenant’s remedy lies before the Small Cause Court. In this case, however, the tenant initially filed a suit in the City Civil Court. After 10—11 years, the landlord challenged its jurisdiction, and by order dated 9 September 1981, the plaint was returned for filing before the Small Cause Court. The tenant’s appeal from order was dismissed on 18 January 1982.
On the issue of jurisdiction, the Court held that Section 28, Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bombay Rent Act) is wide enough to include even a suit for re-possession filed by a tenant. The Court emphasised that the Bombay Rent Act is a beneficial legislation enacted to protect tenants. The Court opined that if a decree is passed in favour of the landlord under Section 13(1)(h) or Section 13(1)(hh), Bombay Rent Act and the tenant vacates the premises, after the new building is erected, the tenant needs to be given back the same area which was in his possession earlier. If the possession is not given back to him, he has no alternative but to file a suit under Section 28, Bombay Rent Act (or Section 33, Maharashtra Rent Control Act, 1999) to get back possession of tenanted premises.
The Court reiterated the settled position that tenancy can be terminated only in two ways:
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By a decree of eviction; or
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By surrender of tenancy.
In absence of either of the above grounds, the tenancy always remains and the tenant cannot be told to part with his possession. The Court noted that more than 50 years have passed from the date the landlord took possession and even today he is not ready to hand it over to the tenant against whom there is no eviction decree. There was also no written agreement for surrender of tenancy.
The Court also found the landlord’s case of swapping the premises hard to believe, observing that nobody would surrender a shop premises for one room from a flat on a second floor from main road to an interior road, that too without any written agreement or consideration. The Court noted that after the writ petition was filed before this Court, which is pending for more than 25 years, ad interim relief was granted to the tenant, that the landlord must not create any third-party interest in the said premises.
The Court referred to Dattatraya Krishna Jangam v. Jairam Ganesh Gore, 1964 SCC OnLine Bom 30, wherein it was observed that the Bombay City Civil Court does not have jurisdiction to entertain suits for declaration of sub-tenancy or tenancy and injunction restraining eviction or interference with possession where the claim arises under the Bombay Rent Act.
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Decision
Accordingly, the Court allowed the writ petition and quashed and set aside the appellate court’s judgment as perverse. The Court confirmed the trial court’s decree granting possession to the tenant and directed the landlord to hand over possession of the suit premises to the tenant within 8 weeks.
[Ramesh Bhaskar Utturkar v. Unmesh Trimbak Naravane, Writ Petition No. 4229 of 2001, decided on 8-6-2026]
[Ed. Note: Editorial Note: The source judgment refers to the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 variously as the “Bombay Rent Act, 1947” and the “Bombay Rent Control Act, 1947“, and to the Maharashtra Rent Control Act, 1999 as the “Maharashtra Rent Act, 1999.” The correct statutory titles have been used throughout this report for accuracy and clarity.
Advocates who appeared in this case:
For Petitioners: Dr. Virendra Tulzapurkar, Senior Counsel i/b. Y.S. Bhate, Viraaj Y. Bhate, Advocates.
For Respondents: Pradeep Thorat a/w Drupad Patil, Hemang Raythatha, Sunil Gangan, Swapnil Shikhare, Manav Chetwani i/b. RMG Law Associates.
