Case BriefsHigh Courts

Delhi High Court: Jayant Nath, J., while addressing a matter noted the essential ingredients that a landlord is required to show for the purpose of getting an eviction order for bonafide needs.

Respondents counsel in the present application vehemently relied upon various orders passed by this Court to hold that once possession was regained by the respondent/landlord the revision petition was rendered infructuous.

Counsel for the Petitioner/Tenant did not deny that in the Execution Proceedings the respondent/landlord had received physical possession of the property. He denied that the instant petition was infructuous.

Referring to the decisions of this Court, Court stated that “it is manifest that present petition is infructuous”

 Background

In the interest of justice, High Court considered the impugned order on merits. Further, dealing with the submissions of the petitioner whereby it had been strongly urged that the impugned order passed by the ARC was liable to be set aside by this court and possession restored.

Present petition was filed under Section 25-B of the Delhi Rent Control Act, 1958 seeking to impugn the eviction order pertaining to the property.

Respondent/Landlord had filed a petition for eviction under Section 14(1)(e) read with Section 25-B of the Delhi Rent Control Act, 1958 on ground of bona fide requirements.

Counsel for the petitioner reiterated that the five shops have been mentioned in the application for leave to defend which are available to the respondent/landlord. He has also further stated that he has denied the need for additional accommodation in his application for leave to defend. Hence, it is pleaded that this denial itself would be a ground for grant of leave to defend as it raises a triable issue.

Analysis, Law and Decision

Looking at the aspect with regard to the scope of present petition, Bench referred to the Supreme Court decision in Shiv Sarup Gupta v. Dr Mahesh Chand Gupta, (1999) 6 SCC 222.

Bench tested the order of the ARC to see whether it is according to law, and whether the conclusions are not wholly unreasonable.

Court noted that the essential ingredients which a landlord is required to show for the purpose of getting an eviction order for bona fide needs are:

  • the petitioner is the owner/landlady of the suit premises
  • the suit premises are required bona fide by the landlord for himself/herself and any of his/her family members dependent upon him/her.
  • the landlord/landlady or such other family members have no other reasonable suitable accommodation.

High Court opined that there was no dispute regarding the relationship of tenant and landlord between the parties.

Petitioner pleaded that there were 5 other properties available to the respondent/landlord which were sufficient for their alleged business. To this, the respondent submitted that the accommodation available with them fell short of carrying out their business of sweets and properties mentioned by petitioner were already being used.

Bench also referred to the Supreme Court decision in G.C. Kapoor v. Nan Kumar Bhasin, (2002) 1 SCC 610,

“9. It is settled position of law that bonafide requirement means that requirement must be honest and not tainted with any oblique motive and is not a mere desire or wish. In Dattatraya Laxman Kamble v. Abdul Rasul Moulali Kotkunde [1999] 2 SCR 912, this Court while considering the bonafide need of the landlord was of the view that when a landlord says that he needs the building for his own occupation, he has to prove it but there is no warrant for ‘presuming that his need is not bonafide’. It was also held that while deciding this question. Court would look into the broad aspects and if the Courts feels any doubt about bonafide requirement, it is for the landlord to clear such doubt.”

In the Supreme Court decision of Prativa Devi v. T.V. Krishnan, (1996) 5 SCC 353, it was held that the landlord is the best judge of his requirement and Courts have no concern to dictate to the landlord as to how and in what manner he should live. Bona fide personal need was a question of fact and should not be normally interfered with.

Further, impugned order rightly held that other than making bald averments without filing any documents, the petitioner/tenant has failed to plead any fact which would throw doubt on the bona fide requirement of the respondents/landlord.

Therefore, Court held that the respondents/landlord’s requirement was a bonafide requirement and is an honest one and not tainted with any oblique motive and is not a mere wish or desire.

Hence, petitioner failed to make out any triable issue and the petition was dismissed. [Bhawani Shankar v. Nand Lal, 2021 SCC OnLine Del 4284, decided on 7-09-2021]


Advocates before the Court:

For the petitioner: J.C. Mahindroo, Megha Verma Mahindroo, Shubham Agarwal and Cherry Singh, Advs.

For the Respondents: Jai Sahai Endlaw, Ajay Kumar Gupta, Subhoday Banerjee and Surbhi Gupta, Advocates

Case BriefsHigh Courts

Allahabad High Court: Vivek Kumar Birla, J., expressed:

“…a party cannot be permitted to blow hot – blow cold, where he knowingly accepts the benefit of a contract, or conveyance, or of an order, he is estopped from denying the validity of, or the binding effect of such contract, or conveyance, or order upon himself.”

Petition was filed challenging the impugned orders passed by the Prescribed Authority/Judge Small Causes Courts, Bulandshahar.

Petitioners were the tenants of a shop of which the initially the tenancy was with the grandfather of the petitioners. Later after the demise of grandfather, the legal heirs of the deceased i.e. Jugmandar Das Jain received the shop by means of inheritance.

Thereafter, respondents-landlords initiated the proceedings under Section 21(1)A of Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972  against the legal heir.

Crux of the Petitioners Argument:

If the compromise decree is contrary to statutory provisions, the same is a nullity and cannot be executed.

Analysis, Law and Decision

Original tenant was in possession of a shop 7.0 ft x 23 ft and in the release application filed on the ground f personal need of the family, he agreed to remain in possession of the shop 5.6 ft wide x 12 ft. deep only, which was to be handed over to him by the landlord after the Court Order.

Comprise between the parties reflected that the old rent of Rs 18 per month was to continue. The original tenant had clearly stated that he had only daughters and no son, he, therefore, agreed in the wisdom that he will remain in possession of the shop till his lifetime and thereafter, the tenancy shall not devolve on his legal heirs.

Bench noted that in the terms of compromise, it was clearly stated that there was a clear understanding that neither his daughters nor their husbands shall claim any tenancy over the shop left in possession of Raj Bahadur Jain and shall hand over the possession to the landlord and if they failed to do so, the landlord will be at liberty to take possession through Court.

Petitioners being daughters of the tenant were obviously beneficiary, maybe indirectly, of such compromise as the tenant Raj Bahadur Jain continued in peaceful possession of the said shop till his death as the proceeding of the release application did not proceed further on the basis of such compromise.

For about 16 years, no challenge was raised to the above-mentioned compromise.

“…in cases where protection under a Rent Act is available, no eviction can be ordered unless ground seeking eviction is made out, even if parties had entered into a compromise and that the invalidity on that count can even be raised in execution.” 

Whether petitioner can take shelter from the above law in the present set of facts and circumstances?

Bench opined that a party cannot be permitted blow hot – blow cold, where he knowingly accepts the benefit of a contract or conveyance, or of an order, he is estopped from denying the validity of, or the binding effect of such contract, or conveyance, or order upon himself.

For the above position of law, Bench referred to the Supreme Court decisions in Rajasthan State Industrial Development and Investment Corpn. v. Diamond & Gem Development Corpn. Ltd., (2013) 5 SCC 470.

Net effect of the Supreme Court decision in Raghunath Prasad Pande v. State of Karnataka, (2018) 5 SCC 594 is that once the compromise decree has been acted upon, a party cannot be permitted to go back from the same and the same is not liable to be set aside.

In the instant case, property was released in part and the old tenant had entered into a compromise. It has been added that he was the sole tenant and had every right to enter into compromise about his tenancy rights. The compromise continued for about 10 years till the death of the tenant Raj Bahadur Jain and they enjoyed the benefits arising out of such compromise.

Since the original tenant remained in possession over the agreed part of the accommodation during his lifetime, now the legal heirs cannot come forward and say that they are a statutory tenant and the said compromise was a nullity as they were not a party or that the same was contrary to law.

With regard to injunction suit, decree of a civil court granting permanent injunction cannot override the proceedings under the provisions of UP Act 13 of 1972 between the landlord and tenant.

Compromise was validly entered between the landlord and the sole tenant, who enjoyed the fruits or the benefits of the same.

Concluding the matter, Bench decided that :

  • Tenant-petitioner shall handover the peaceful possession of the premises in question to the landlord-opposite party on or before 31.8.2021;
  • Tenant-petitioner shall file the undertaking before the Court below to the said effect within two weeks from the date of passing of this order
  • Tenant-petitioner shall pay damages at Rs 2,000/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 31.8.2021 or till the date he vacates the premises, whichever is earlier and the landlord is at liberty to withdraw the said amount
  • Tenant-petitioner shall also state that he will not create any interest in favour of the third party in the premises in dispute
  • Tenant-petitioner shall not be evicted from the premises in question till the aforesaid period.

[Anshu Jain v. Suresh Prakash, 2021 SCC OnLine All 217, decided on 10-03-2021]


Advocates before the parties:

Counsel for Petitioner: Nagendra Kumar Srivastava

Counsel for Respondent : Sanjai Srivastava, Ajit Kumar,Vivek Srivastava

Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of Sanjay Kishan Kaul and R. Subhash Reddy, JJ., addressed the instant petition regarding landlord-tenant dispute, wherein the petitioner had challenged the judgment of Civil Judge by which the Court had affirmed the execution proceedings for evicting the petitioner. The Bench remarked,

This is a classical case of how civil proceedings can be prolonged ad infinitum, causing grave injustice to one of the parties.”

The facts of the case relate back to the case of Debashish Sinha v. Sreejib Sinha, 2019 SCC OnLine Cal 7890. One Rabindra Nath Sinha, the original tenant was inducted as a lessee by the respondent under an agreement for 21 years in 1967. After expiry of the said period the respondent filed a suit for eviction against the original tenant which was decreed in favour of the respondent by the decree dated 17-08-2005. The original tenant challenged the judgment and decree passed by the Trial Court successively up to the Supreme Court. However, the appeals were dismissed on contest, affirming the decree of eviction.

However, after conclusion of initial legal battle, the respondent put the decree in execution in the year 2009. It was at that stage that the present petitioner, Debashish Sinha entered appearance claiming himself to be a nephew of the original tenant and filed an application under Order XXI Rule 97, 99 and 100 read with Sections 47 and 151 of the CPC contending, inter alia, that he had been running a business in a decreetal shop room under the name and style “The Wardrope” since 1977 with the original tenant. It was also pleaded that the agreement of partnership in respect of the said business was executed in the year 1980. On the basis of said partnership agreement the petitioner claimed independent title over the decreetal property as that of a tenant.

The petitioner contended that the decree passed against the original tenant was not binding upon the petitioner and it could not be executed against him. The Executing Court by an order dated 20-09-2011 dismissed the said objection. The petitioner preferred an appeal against the said judgment before Civil Judge (Senior Division), which was again dismissed and the judgment of the Execution Court was affirmed.

The Supreme Court observed, there being no privity of contract between the decree holder and the petitioner with regard to tenancy in respect of decreetal shop room, the Courts below rightly dismissed the application filed by the petitioner under Order XXI Rule 97, 99, 100 read with Sections 47 and 151 of the CPC. The Bench, while dismissing the appeal, remarked,

“The landlord filed suit for possession which succeeded right till this Court. The execution proceedings filed in the year 2009 has dragged on for 12 years. This application filed by the petitioner itself was an abuse of process of law.”

The Bench opined that merely dismissing the petition would not suffice as some signal must be sent to discourage this nature of litigation. Thus, while dismissing the SLP the Bench imposed the following directions:

1) The execution should be satisfied within a period of 15 days from this order being placed before the Trial Court.

2) Damages should be computed by the Executing Court at the market rates against the petitioner from the date of filing the objection i.e. 26-03-2010 till possession gets transferred.

3) For wastage of judicial time and for dragging on the proceedings, the petitioner should be burdened with costs of Rs. 1 lakh to be paid to the respondent within the period of three months.

[Debashish Sinha v. Sreejib Sinha, SLP No. 4148 of 2020, 08-03-2021]


*Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

For Petitioner: Adv. S.K. Bhattacharya, Adv. Anindo Mukherjee and AOR  Sarla Chandra,

For Respondent:  Adv. Pijush K Roy, Adv. Sudipa Roy, Adv. Kakali Roy and AOR Rajan K. Chourasia

Legislation UpdatesStatutes/Bills/Ordinances

Governor of Uttar Pradesh promulgates the Uttar Pradesh Regulation of Urban Premises Tenancy Ordinance, 2021

Purpose of the Ordinance: To establish Rent Authority and Rent Tribunals to regulate renting of premises and to protect the interests of landlords and tenants and to provide speedy adjudication mechanism for resolution of disputes and matter connected therewith or incidental thereto.

[Section 3] Ordinance not to apply to certain premises:

  • Premises owned by the Central or State Government or Union Territory Administration or a Government undertaking or Enterprises or Statutory Body or Cantonment Board.
  • Premises owned by a Company, University or Organisation given on rent to its employees as part of service contract
  • Premises owned by religious or charitable institution as may be specified, by State Government’s notification.
  • Premise owned by Auqaf registered under the Waqf Act, 1995 or by any public trust registered under applicable law.
  • Other building or category of buildings specifically exempted in public interest by notification by the State Government.

 [Section 4] Tenancy Agreement

 No person shall, after the commencement of this Ordinance, let or take on rent any premises except by an agreement in writing, which shall be informed to the Rent Authority by the landlord and tenant jointly.

In case the tenant and landlord fail to jointly inform the execution of the tenancy agreement, the both of them shall separately inform the execution of tenancy agreement to the Rent Authority within a period of 1 month from the date of expiry.

[Section 5] Period of Tenancy

 Every tenancy entered into after the commencement of this Ordinance shall be valid for a period as agreed upon between the landlord and the tenant.

Tenant may request the landlord for renewal or extension of the tenancy, within the period agreed to in tenancy agreement, and if agreeable to the landlord, may enter into a new tenancy agreement with the landlord or mutually agreed terms and conditions.

 If a tenancy for a fixed term ends and has not been renewed or the tenant fails to vacate the premises at the end of such tenancy, then such tenant shall be liable to pay an enhanced rent to the landlord.

[Section 6] Rights and Obligations of successor in case of death

 Terms of agreement shall be binding upon their successors in the event of the death of the landlord or tenant, the successor of the deceased landlord or tenant shall have the same rights and obligations as agreed to in the tenancy agreement for the remaining period of such tenancy.

In the event of the death of tenant, the right of tenancy shall devolve on his successors, namely:

Spouse, son or daughter or where there are both son and daughter, both of them; parents; daughter-in-law, being the widow of his pre-deceased son; widowed or divorced sister

[Section 7] Restriction on sub-letting

 No tenant shall, except by entering into a supplementary agreement to the existing tenancy agreement:

  • Sub-let whole or part of the premises held by him as a tenant
  • Transfer or assign his rights in the tenancy agreement or any part thereof

[Section 10] Rent Authority to determine the revised rent in case of dispute

 In determining the rent to be revised, the rent authority may be guided by the prevailing market rent in the surrounding areas let out on rent.

[Section 11] Security Deposit

 Security deposit to be paid by the tenant in advance shall be such as may be agreed upon between the landlord and the tenant in the tenancy agreement, which shall be:

  • Not exceed two months’ rent, in case of residential premises; and
  • Not exceed 6 months’ rent, in case of non-residential premises.

Security Deposit shall be refunded to the tenant on the date of taking over vacant possession of the premises from the tenant, after making due deduction of any liability of the tenant.

[Section 14] Deposit of rent with Rent Authority

 Where the landlord refuses to accept any rent and other charges payable or refuses to give a receipt, the rent and other charges shall be paid to the landlord by postal money order or any other method, in such manner as may be prescribed, consecutively for two months, and if the landlord refuses to accept the rent and other charges within such period, then the tenant may deposit the same with the Rent Authority.

In case the tenant is unable to decide as to whom the rent is payable during the period of tenancy agreement, the tenant may, in such case, deposit the rent with the rent authority.

[Section 15] Repair and Maintenance of Property

 In case tenant fails or refuses to carry out the repairs, the landlord may carry out the repairs and deduct the amount incurred for such repairs from the security deposit and the amount so deducted shall be paid by the tenant within a period of one month of the issue of notice by the landlord.


To read more, click on the link below: Tenancy Ordinance

Op EdsOP. ED.

This article concerns with a recurrent issue that arises from an ever-widening relationship of landlord-tenant. There can be no hesitation mentioning that almost all the societies have witnessed conflicts when it comes to determination of tenancy and thus, regulate the same. In India, Part V of the Transfer of Property Act, 1882, (hereinafter referred to as “the Act” or “TPA”) governs such a relationship entered into through a lease. A perplexing question that needs discussion here pertains to procedural requirement of “giving a notice” under Sections 106 and 111(g) of the Act, by the landlord, of his intention to determine the jural relationship of tenancy before filing a suit for eviction under the various State Rent Acts. The issue within this is not regarding what amounts to “giving of a notice” or whether a notice given in a certain way fulfils all requirements to be a valid notice. The controversy centres on whether such a notice is at all necessary to be given. The major takeaway for the readers would be knowledge of confined situations where notice is required to be served by the landlord and consequently, would reduce the confusion regarding the same. Before moving on to the question on hand it becomes pertinent to shed some light on the concept and scope of the aforesaid provisions.

Ordinarily, a contract between the parties would regulate all the relevant terms including the duration of the subsistence of tenancy, however, there might be a case where the contract mentions no date of termination of such relation. On a plain reading of Section 106, it is clear that the legislature has classified the leases into two categories and according to their purposes this provision would be attracted to construe the duration of the lease and accordingly duration of notice to be served in absence of a contract or local usage to the contrary[1]. This implies that this section is applicable only in the absence of contract as to the duration of lease. Also, it is open to the parties to contract themselves out of the provision and to make a valid contract between themselves as regards duration of their lease and the manner of termination of the same. It is obvious that the lease of tenancy, mostly, if not always, would be covered by the mandate of giving 15 days’ notice to the tenant. Even the length of the notice or the calendar for computation of the period can be subject to contract between the parties[2].

The other indispensable requirement of giving notice is rooted under Section 111(g) of the Act. The sub-section deals with the subject known as forfeiture of leases. Forfeiture ordinarily implies a penalty for an offence or unlawful act or for some wilful omission of a tenant of property whereby he loses it, together with his title, which devolves upon others[3]. To constitute forfeiture in a matter, there must be a breach of an express condition of the lease which provides for the landlord’s re-entry to the premises.

The question that stares us at this stage is whether both the notices under the impugned sections technically are identical to each other. To start with, a bare reading of Section 111(g) shows that it is nowhere mentioned as to the nature and time period of the notice that needs to be given is identical to that of Section 106. Clearly, Section 106 of the Act was incorporated as an equitable provision so that a tenant may not be taken by surprise. The rationale behind such a mandate could be intimating the intention of landlord so that the tenant could arrange for himself another roof. It seems to be in the interests of hapless tenants who are without just cause thrown out of the premises at the mercy of the landlord. On the other hand, the latter’s purpose apparently is not the one as of the former and is not based on the principles of justice, equity or good conscience[4]. It cannot be said to be guided by reason and equity as the tenant after liability has been incurred cannot be given benefit of his own wrong. Therefore, notice under the latter sub-section is not the one to be given under Section 106 of the Act. However, at most, it can be said that the similarities that can be drawn in both the notices are with respect to the procedural formalities but not the technical ones.

This brings us to the real question of this article as to whether the “giving of notice” as contemplated by the Act is a prerequisite condition that needs to be adhered to prior to filing of a suit of eviction against tenant under the State Rent Acts.

Here, it becomes imperative to appreciate the fact that the State List[5] of the Constitution of India prescribes the State Governments to regulate rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents. Resultantly, almost all the States have enacted their law governing determination of tenancy. The controversy now is limited to whether the provisions of the relevant State Rent Act was in addition to the provision of the TPA or was in derogation thereof. In other words, whether it would supplement or supplant the same. The Rent Acts  passed in different States were intended to prevent indiscriminate eviction of tenants and were intended to be a protective statute to safeguard the security of possession of the tenants and therefore, should be construed in the light of it being a social legislation[6].

As far as the answer to the present question is concerned it can be said that there were mixed and inconsistent views iterated by the Supreme Court and various High Courts in catena of judgments. A few of the judgments deserves to be highlighted herein. The Supreme Court in Manujendra Dutt v. Purendu Prosad Roy Chowdhury[7], while deciding requirement of notice in both the sections to be sine qua non before filing suit for eviction under the State rent provisions, has remarked that:

5. … Rent Acts are not ordinarily intended to interfere with contractual leases and are Acts for the protection of tenants and are consequently restrictive and not enabling, conferring no new rights of action but restricting the existing rights either under the contract or under the general law.

In addition to the above case, the Supreme Court while referring to its judgment in Namdeo Lokman Lodhi v. Narmadabai[8], has held that giving notice under Section 106 is a principle of equity and hence mandatory but laid down contrary with respect to Section 111(g). It observed that:

26. … The irrelevance of the English Law as such to notions of good conscience in India notwithstanding, we agree that a written notice is no part of equity. The essential principles, not the technical rules, of the TP Act form part of justice, equity and good conscience. The conclusion emerges that the landlord’s termination of the tenancy in this case is good even without a written notice.[9]

Either of the above view was adopted by the Supreme Court of India in many more pronouncements until the landmark judgment[10] by a seven-Judge Bench of the Court. The ruling marked the end of all the chaos and confusing and thus overruled all the previous conflicting views. Moreover, it emphasised the need to have a uniform law in all the States despite having some difference in phraseology of relevant provisions in the State laws.

The Court pointed out with no hesitation that notice under both the sections is different kind of intimation. As far as Section 106 is concerned it brushed aside the previous position of law and stated that when under the various State Rent Acts, either in one language or the other, it has been provided that a tenant can be evicted on the grounds mentioned in certain sections of the said Acts, then how does the question of determination of a tenancy by notice arise? If the State Rent Act requires the giving of a particular type of notice in order to get a particular kind of relief, such a notice will have to be given. It further observed that:

11. … It is true that the Rent Act is intended to restrict the rights which the landlord possessed either for charging excessive rents or for evicting tenants. But if within the ambit of those restricted rights he makes out his case it is a mere empty formality to ask him to determine the contractual tenancy before institution of a suit for eviction[11].

Thus, the action of the landlord in instituting a suit for eviction on the ground mentioned in any State Rent Act will tantamount to an expression of his intention that he does not want the tenant to continue as his lessee and the legal relationship of lessor and lessee will come to an end on the passing of an order or a decree for eviction. Until then, under the extended definition of the word “tenant” under the various State Rent Acts, the tenant continues to be a tenant even though the contractual tenancy has been determined by giving of a valid notice under Section 106 of the TPA.

On the other hand, the Court while considering the requirement under Section 111(g) obliterated the difference between “contractual tenantandstatutory tenant. It observed that where any tenant has violated any term of the contract and the landlord having served the notice determines the contractual lease under Section 111(g) of the Act, nevertheless, he would be provided with the protection under various State Acts as statutory tenant and can only be evicted after obtaining an order or decree to that effect. Stating it in words of the Bench:

16. … Why this dual requirement? Even if the lease is determined by forfeiture under the Transfer of Property Act the tenant continues to be a tenant, that is to say, there is no forfeiture in the eye of the law. The tenant becomes liable to be evicted and forfeiture comes into play only if he has incurred the liability to be evicted under the State Rent Act, not otherwise. In many State statutes different provisions have been made as to the grounds on which a tenant can be evicted and in relation to his incurring the liability to be so evicted. Some provisions overlap those of the Transfer of Property Act. Some are new which are mostly in favour of the tenants but some are in favour of the landlord also.[12]

Therefore, it can be aptly concluded that determination of a lease in accordance with the TPA is unnecessary and a mere surplusage because the landlord cannot get eviction of the tenant even after such determination. The tenant continues to be so even thereafter.

Thereafter, this position of law has been followed in a plethora of judgments by the Supreme Court. In Shakuntala S. Tiwari v. Hem Chand M. Singhania[13], the Court held that it is an act in law and not an act of law because under the scheme a determination of tenancy which takes place under the TPA, according to the appellant, is wholly irrelevant for founding a cause of action in ejectment because the provisions of the TPA are superseded by the provisions of the Rent Act. Interestingly, the Court has broadened its sweep to the extent saying that Section 111(g) in such situations be treated as inoperative and deemed to be repealed[14].

Conclusion

On a careful consideration of all the material referred to, it can be aptly remarked that requirement of giving a notice to the tenant under Sections 106 and 111(g) in a case of filing an eviction petition under the respective State rent legislations is not based on rule of equity and reason. Hence, it is an additional technical formality, absence of which ensue no legal consequences and cannot be insisted upon the landlord. But does that mean that the impugned provisions have no role to play in shaping the rent control jurisprudence? The answer cannot be in affirmative. The two provisions would still operate in a larger field of regulating other leases of immovable property other than tenancy. Also, it cannot be said that both of them are in nullity when we talk about regulation of landlord-tenant relationship. The judgment of the Supreme Court in Nopany Investments (P) Ltd. v. Santokh Singh (HUF)[15] can be interpreted to the extent that giving a notice under Section 106 of the Act is not a requirement even when filing a suit in general law. However this does not seem to be the correct proposition of law laid down in Yesodai Ammal case[16] as these provisions of the Act would apply in absence of Rent Act in the State concerned and where the landlord presses a ground which does not find mention in the State Act but in general law[17]. In furtherance to this, there can be another situation which is a necessary corollary to the intent of State Legislatures i.e. where the State rent law itself expressly or by necessary implication entails to give a notice in accordance with the terms of Section 106.

Ergo, the requirement of giving a notice can be summed up in the following categories as noted hereinbelow:

  1. Where the rent agreement speaks for giving notice in a manner which is not inconsistent with the statute in force of that State or the general law (in case no State Act exists) as the case maybe, then that specific clause of the agreement shall prevail.
  2. Where no clause for giving notice is provided in the agreement or if provided is inconsistent with the State law or Central law (in case of absence of State law), then:

(a) Where that particular State has not enacted its rent statute, then the terms provided under TPA shall apply and would become a mandate.

(b) Where a particular State has enacted its rent statute but does not provide any provision regarding giving of notice, then no notice need to be served before filing a petition for eviction and tenancy shall only be terminated once a decree is granted by the proper rent court.

(c) Where the State rent statute itself expressly or by necessary implication entails to give a notice in accordance with the terms of Section 106 of TPA.

(d) Where the landlord presses a ground which does not find mention in the relevant State Rent Act in a particular State of India but in TPA, then terms of TPA shall be complied with.


*Final Year Student of BA LLB (Hons.), University School of Law & Legal Studies, GGSIPU.

[1] Samir Mukherjee v. Davinder K. Bajaj, (2001) 5 SCC 259 

[2] Harbhajan Singh v. P.N. Chopra, 1976 SCC OnLine Del 174

[3] Wharton’s Law Lexicon, see also Sunil Kumar Modi v. Munna Lal Gupta, 2007 SCC OnLine All 899

[4] Rattan Lal v. Vardesh Chander, (1976) 2 SCC 103; see also, Namdeo Lokman Lodhi v. Narmadabai,  1953 SCR 1009

[5] Sch. VII, List II, Entry 18,  Constitution of India

[6] Manujendra Dutt v. Purendu Prosad Roy Chowdhury, (1967) 1 SCR 475

[7] Ibid

[8] 1953 SCR 1009

[9] Rattan Lal v. Vardesh Chander, (1976) 2 SCC 103, 117

[10] V. Dhanapal Chettiar v. Yesodai Ammal, (1979) 4 SCC 214

[11] Id. at p. 22

[12] V. Dhanapal Chettiar v. Yesodai Ammal, (1979) 4 SCC 214, at p. 227

[13] (1987) 3 SCC 211

[14] Palani Ammal v. Viswanatha Chettiar, (1998) 3 SCC 654

[15] (2008) 2 SCC 728

[16] (1979) 4 SCC 214

[17] Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693

COVID 19Op EdsOP. ED.

I. Introduction

The spread of dreaded coronavirus has led to serious disruptions across the globe, India being no different. The virus has caused an unprecedented and incalculable damage to the economies worldwide, a situation equated to the Great Depression 1921, and caused deaths of millions of people across the globe. It has led to such a situation that even day to day activity such as access to print media is difficult.

The lack of demand and consequent lesser production has resulted in loss of millions of jobs worldwide apart from causing insurmountable damage to the social and economic conditions of the world. Among all these pertinent issues which are being faced by people, one of them is the effect of COVID-19 on businesses.

Even as the economy has virtually come to a standstill and people are being directed to remain quarantined in their respective homes, several tenants are being evicted by their landlords due to their inability to rental amount.

II. Intersection between landlord — Tenant Disputes due to COVID19 

As most of these tenants, belonged to the lower stature of the society and were primarily migrants working in the unorganised sectors, were left stranded on the streets high and dry and thus resultantly the Government had to step in to provide them basic facilities through shelter home and hunger relief camps. Further, as majority of these tenants were living in the tenanted premises on the bases of oral agreement and with the understanding that rental dues would have to be paid on month to month basis were also deprived of many essential safeguards provided under the law.

Insofar as commercial leases are concerned such as those of shops in shopping complex, office spaces, etc. are concerned, it is bit unclear whether the tenant can take recourse to the force majeure clause, assuming that such a clause is present in the lease deed in the first place, to avoid paying the rental amount till the lockdown persists. There is lack of clarity on this issue due to lack of authoritative judicial precedent and even after the lockdown is lifted, the businesses as such may find it difficult to pay the rent as it will take considerable time for the economy to bounce back to the same level as it was prior to the lockdown, further it is also to natural to expect that there would be significant reduction in consumer spending post the lockdown due to reduced purchasing power of the consumer.

III. Statutory framework and force majeure clause 

In India, the relationship between the landlord and the tenant is governed by various statues viz. the Contract Act, 1872[1] (hereafter, ‘the Contract Act), the Transfer of Property Act, 1881[2] (hereafter, ‘the Property Act), the Delhi Rent Control Act, 1958[3] (hereafter, ‘the Rent Control Act) etc.

Section 56 of the Contract Act stipulates when a contractual obligations may be excused, an extract whereof is reproduced herein below –

S.56. Agreement to do impossible act.— An agreement to do an act impossible in itself is void.

Contract to do an act afterwards becoming impossible or unlawful.— A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful.’

However, it may be a bone of contention if one take resource of the aforestated provision in order to wriggle out of its liability to contractual rent amount especially when the relationship between the parties should be governed by the Property Act or the Rent Control Act, as the case may be, as both these two statues are special statues and it is well-settled law the special law prevails over the general law[4]. Further, as the relationship of landlord and tenant are based upon the lease deed/lease agreement which is primarily a contractual agreement and the disputes, including non-payment of rent, if any, shall be governed strictly under the terms and conditions provided thereof.

In addition to the definition of force majeure clause provided under the respective lease deed, to understood its true import, one may refer to their definition in general sense –

Black’s Law Dictionary, 8th Edition, defines force majeure as ‘A contractual provision allocating the risk if performance becomes impossible or impracticable, esp. as a result of an event or effect that the parties could not have anticipated or controlled.’

Similarly, Oxford Dictionary defines force majeure as ‘unexpected circumstances, such as war, that can be used as an excuse when they prevent somebody from doing something that is written in a contract.

It is to be noted that that term ‘force majeure’ is not to be equated as an ‘act of God’ as the former is of wider import than the latter. However, it has to borne in mind that since the former is an exception to the general rule of performance of contract, the same has to be construed narrowly.[5]

However, it is not the first time that the contracting parties have resorted to force majeure clause citing impossibility/frustration of performance, some of these cases wherein it has invoked earlier are –

In Bikram Chatterji  v. Union of India[6], it has been opined by the Supreme  Court that: (SCC Online para 129)

‘129. A blatant violation of the provisions of RERA has been done by the Amrapali Group. Since RERA contemplates timely completion of projects once registration has been granted Under Section 5 and extension of registration. Under Section 6, it is only in the event of force majeure in case there is no default on the part of the promoter, registration can be extended in aggregate for the period not exceeding one year. Force majeure shall mean a case of war, flood, drought, fire, cyclone, earthquake or any other calamity caused by nature…..’                                                                                           

(emphasis supplied)

Similarly, in another case Dhanrajamal Gobindram v. Shamji Kalidas and Co.[7], the Supreme Court has opined as under –

‘19. McCardie, J. in Lebeaupin v. Crispin[8], has given an account of what is meant by “force majeure” with reference to its history. The expression “force majeure” is not a mere French version of the Latin expression “vis major”. It is undoubtedly a term of wider import. Difficulties have arisen in the past as to what could legitimately be included in “force majeure”. Judges have agreed that strikes, breakdown of machinery, which, though normally not included in “vis major” are included in “force majeure”. An analysis of rulings on the subject into which it is not necessary in this case to go, shows that where reference is made to “force majeure”, the intention is to save the performing party from the consequences of anything over which he has no control. This is the widest meaning that can be given to “force majeure”, and even if this be the meaning, it is obvious that the condition about “force majeure” in the agreement was not vague. The use of the word “usual” makes all the difference, and the meaning of the condition may be made certain by evidence about a force majeure clause, which was in contemplation of parties…’

In a very recent judgment rendered by the Bombay High Court in ‘Standard Retail Pvt. Ltd. v. G.S. Global Corp.[9]’, the  High Court has refused to accept the contention that COVID-19 pandemic and the lockdown declared by the Central/State Government would either tantamount to frustration, impossibility and impracticability of the contract or the same can be termed as a ‘force majeure clause’, and thus has declined to restrain the respondent therein from encashing the Letters of Credit opining inter alia that production of steel comes within the ambit of essential commodity and there was no restriction of movement of the same, an extract of the judgment is reproduced herein below –

2. It is the case of the petitioners that in view of the COVID-19 pandemic and the lockdown declared by the Central/State Government, its contracts with Respondent1 were terminated as unenforceable on account of frustration, impossibility and impracticability. The petitioners have relied upon Section 56 of the Contract Act, 1872.

** *

4. Having heard learned counsel for the petitioners and learned Senior Counsel forRespondent1 (in the first 3 petitions), learned counsel forRespondent1 (in the last 2 petitions), the learned counsel forRespondent3, Bank (the first 3 petitions), in my view the petitioners are not entitled to any ad interim reliefs for the reasons stated herein-below:***

e. In any event, the lockdown would be for a limited period and the lockdown cannot come to the rescue of the petitioners so as to resile from its contractual obligations with Respondent 1 of making payments.

f. The judgments relied upon by the learned counsel for the petitioner in Energy Watchdog v. CERC[10]and Satyabrata Ghose v. Mugneeram Bangure & Co.[11] do not assist the case of the petitioners and are distinguishable on facts.”

However, the Delhi High Court in ‘Halliburton Offshore Services Inc. v. Vedanta Limited[12] has opined  in para 20 that ‘The countrywide lockdown, which came into place on 24th March, 2020 was, in my opinion, prima facie in the nature of force majeure’, and thus thereby granted an ad interim stay on invocation and encashment of the bank guarantees.

Pertinently, both the aforestated two cases where instituted under Section 9 petition of the Arbitration and Conciliation Act, 1996[13], seeking the relief of injunction against the respondent.

Although, these aforementioned cases can be distinguished on the basis of the facts and were not pertaining to landlord – tenant dispute but nevertheless do aid in interpreting the term ‘Force Majeure Clause’, as perhaps it has been the first time, since the Spanish Flu in 1919, that a disease has spread to such an unimaginable extent that it was termed as global pandemic by  WHO, which further adds to the ambiguities due to lack of authoritative judicial precedent on the issue in hand i.e. if the spread of COVID-19 amounts to force majeure.

Also, one may argue that even if the lockdown is in continuance, the tenants have continued to enjoy the possession of the tenanted premise and thus have unjustly enriched themselves at the cost of the landlord, thus the tenant ought to have paid the rent and lack of business thereof shall not be a ground for non-payment of rent. In this regard the judgement rendered by the Andhra Pradesh High Court in ‘Gandavalla Munuswamy v. Marugu Muniramiah[14], is quite apt, the relevant extract thereof is reproduced herein below –

9…In my opinion, such an indirect and, what is more ambiguous course of action on the part of a lessee cannot be regarded as sufficient for conveying to the lessor his intention to treat the lease as void under section 108(e). The lessee must directly and categorically express to the lessor his intention to treat the lease as void. Otherwise, it will be legitimate for the lessor to regard the lease as subsisting. There is nothing in Section 108(e) of the Transfer of Property Act which compels a lessee to treat a lease as void. It is optional with him to do so or to refrain from doing so. This aspect of the matter makes it all the more necessary that an unambiguous declaration of the lessee’s intention to treat the lease as void must be communicated to the lessor. The lessor would not otherwise be able to take appropriate steps on the footing that the lease has come to an end and he is therefore at liberty to deal with the property as he chooses. What is even more important is that a mere declaration of intention to treat the lease as void is not sufficient. The lessee must also yield up possession of the property to the lessor as required by the provision of the section 108(q) of the Transfer of Property Act. He cannot continue in possession and yet declare that he has treated the lease as void. That would obviously be an inconsistent and impermissible position to adopt. So long as a lessee has not surrendered to his lessor the possession which he obtained from the latter at the time of the lease, he cannot rid himself of his obligations under the lease. His holding to the possession into which he was inducted by his lessor will estop him from disputing the right of his lessor to evict him and to recover possession from him...”

Recently, the Delhi High Court in Ramanand v. Dr. Girish Soni[15], has held in relation to a landlord–tenant dispute governed by the Rent Control Act, that suspension of payment of rent by tenants owing to  COVID-19 lockdown crisis would not be justified though some relaxation may be given in the schedule of payment, the relevant extract is reproduced herein below:

“3. The urgent application under consideration, raises various issues relating to suspension of payment of rent by tenants owing to the COVID-19 lockdown crisis and the legal questions surrounding the same….

* * *

31. Finally, in the absence of a contract or a contractual stipulation, as in the present case, the tenant may generally seek suspension of rent by invoking the equitable jurisdiction of the Court due to temporary non-use of the premises. The question as to whether the suspension of rent ought to be granted or not would depend upon the facts and circumstances of each case as held by the Supreme Court in Surendra Nath Bibran v. Stephen Court[16]. In the said case, the Court directed payment of proportionate part of the rent as the tenant was not given possession of a part of the property…

The aforesaid case throws some light if one can rely upon the force majeure clause to justify non-payment of rental amount, however, the said case can be distinguished on the basis of the facts, as in that case the Court had already directed eviction of the tenant much prior to the coronavirus pandemic and the said judgment came to be delivered upon an application seeking suspension of rent. Moreover, the Court has itself noted in para 26 that ‘The question as to whether the suspension of rent ought to be granted or not would depend upon the facts and circumstances of each case as held by the Supreme Court in Surendra Nath Bibran v. Stephen Court[17], further the entire contract, if any, executed between the landlord and the tenant has to be kept in mind while deciding if non-payment of rent was justified or not.

IV. Government and Judicial Intervention

In the United Kingdom, the Government has passed the Coronavirus Act, 2020[18] w.e.f. 20th March, 2020, in view of the plight of tenants, with the objectives of protecting the tenant’s interest and thereby suspends the landlord’s right to evict business tenancies in England and Wales till normalcy is restored.

Similarly, even in India, the Ministry of Home Affairs (MHA) vide order dated 29th March, 2020 has inter alia directed the landlords of rented accommodation not to demand rent for a period of one month from workers including migrants.  Further it also has been directed that the  landlord shall not force labourers and students to vacate their premises and any violation thereof shall foist criminal action on them including but not limited to the Disaster Management Act, enforcement whereof is the responsibility of the respective State Government and Union Territory.

In addition to this, several PILs also have been filed before the Supreme Court and High Courts seeking exemption from paying rent during the lockdown, non-deduction of wages during the lockdown period, non-termination of workers/employees by the employers, waiver of Interest on EMIs during COVID lockdown, etc. Needless to say that the higher judiciary, which is already functioning in a limited capacity and conducting its proceedings through video conferencing, has become the hub of PILs. 

V. Conclusion 

In  view of the aforesaid, it is difficult to say with certitude as whether the tenants can avoid paying rental amount for the period of lockdown citing force majeure clause, primarily due to lack of judicial precedent coupled with the factum that the interest of tenants are being protected by executive direction rather than legislative command. All in all, it is quite certain that once the lockdown is lifted and normalcy of courts is restored, several cases are going to be instituted either seeking eviction and/or arrears of rental amount from the tenants.


*Author is advocate by profession, practising and appearing before the High Court of Delhi and other tribunals and courts situated in Delhi. Author can be reached at advananthkini@gmail.com for any suggestions/comments.

[1] Act No. 9 of 1872

[2] Act No. 4 of 1882 

[3] Act No. 59 of 1958 

[4] In Kidar Lall Seal  v. Hari Lall Seal,1952 SCR 179, the  Court had opined that “It is an established principle that where there is a general law and a special law dealing with a particular matter, the special excludes the general.” See also Dhruv Dev Chand v. Harmohinder Singh , (1968) 3 SCR 339

[5] See Energy Watchdog v. CERC, (2017) 14 SCC 80

[6] 2019 SCC OnLine SC 901 

[7] (1961) 3 SCR 1020 

[8] [1920] 2 KB 714

[9] 2020 SCC OnLine Bom 704  

[10] (2017) 14 SCC 80

[11] 1954 SCR 310

[12] 2020 SCC OnLine Del 542 

[13] Act No. 26 of 1996  

[14] 1964 SCC OnLine AP 20 

[15] 2020 SCC OnLine Del 635  

[16] (1966) 3 SCR 458  

[17] Ibid.

[18]Available at http://www.legislation.gov.uk/ukpga/2020/7/contents/enacted , last visited on 1st May, 2020.

[19] Noti. No. 40-3/2020-DM-I(A), dated March 29, 2020

[20] Many PILs have been filed on this subject such as Supreme Court Bar Association’s PIL on Government scheme for payment of office rent during lockdown; PIL to restrain landlords from evicting student and labourers; PIL on welfare schemes for migrant workers, etc.

COVID 19Hot Off The PressNews

Supreme Court: A bench of Ashok Bhushan and SK Kaul, JJ has dismissed a petition seeking directions to the Union of India for compliance with the Ministry of Home Affairs (MHA) order dated March 29, which directed landlords not to demand rent from students and migrant labourers for a period of one month amid the coronavirus-induced lockdown. The Court also warned the petitioner in-person advocate Pawan Prakash Pathak of heavy cost.

Justice Kaul said,

“The lawyers are filing a number of cases with respect to COVID-19, I don’t understand this,”

The petition had also sought a quick response be taken on the evictions being reported by tenants amid COVID-19 or till further orders of the government.

The MHA had earlier warned of strict action against those who force tenants to vacate their rented accommodation due to a failure to pay rent amid the ongoing crisis.

(Source: ANI)

Case BriefsForeign Courts

Supreme Court of the United Kingdom: A Full Bench of Lord Briggs (President), Lord Carnwath, Lord Hodge, Lord Wilson and Lady Arden, JJ. allowed the appeal by a majority of three to two. Lord Briggs gives the main Judgment with which Lord Carnwath and Lord Hodge agree. Lady Arden and Lord Wilson each give a dissenting Judgment with respect to withholding consent of the landlord.

Hautford Ltd. was a tenant of a whole building in Soho under a 100-year lease. The lease is permitted that the whole property is to be used for residential purposes, however, at the time when it was granted in 1986 only the top two floors were used for residential purposes. Around 2013 the tenant developed other floors of the building into residential flats and then sought planning permission for the change of use. The lease contained a provision that the tenant must obtain the landlord’s consent not to be unreasonably withheld for any application of planning permission. The tenant sought consent from the landlord, Rotrust Nominees Ltd., which was ultimately refused. The landlord’s ground for withholding consent were on the basis that by turning the whole building into residential use, the tenant could have a strong claim under the statute for enfranchisement meaning to compel the landlord to sell the freehold to the tenant.

The High Court and the Court of Appeal both ruled that refusing consent based on the risk of enfranchisement was unreasonable when taking into account that the lease permitted use of the whole building for residential purposes.

Lord Briggs delivered the majority opinion and remarked that the case was not one with complex disputed fact nor did it deal with complicated points of law. Rather it deals with one simple question: did the landlord act was reasonable or unreasonable.

The Court summarised the established principle which is to be followed when assessing whether a party has acted reasonably:

  • The grounds for withholding consent must be to do with the relationship of landlord and tenant in regard to the subject matter of the lease. 
  • Decisions should be based on the specific facts and care must be taken “not to elevate a decision made on the facts of a particular case into a principal of law”. 
  • The conduct only has to be reasonable it does not need to be right or justifiable.

With respect to the first test, Lord Briggs held that the real risk of enfranchisement was central to a landlord and tenant relationship and in relation to the third test; he held that enfranchisement would clearly adversely affect the landlord’s reversionary interest which was an essential type of consideration that the refusal of consent was reasonable.

Lady Arden and Lord Wilson disagreed with the majority holding and upheld the reasoning of the Court of Appeal and the High Court.

The Court granted the Appeal and considers that, on the undisputed facts; the landlord was acting reasonably in protecting the value of its property.[Sequent Nominees Ltd. v. Hautford Ltd, [2019] 3 WLR 981, decided on 30-10-2019]

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J., allowed a petition that challenged the impugned order whereby petitioner’s application under Order 12 Rule 6 CPC for judgment on admissions was rejected.

The petitioner (landlord) had filed a suit for possession of the suit property which was owned by her. She had prayed for ejectment of the tenant-respondents. The petitioner moved an application under Order 12 Rule 6 CPC which was rejected by the trial court on the sole ground that the tenant did not make any admission as to the ownership of the petitioner and their tenancy in the suit property.

On facts, the High Court held that the trial court erred in reaching the said conclusion, as in the written statement filed by the tenant, there was a clear admission that they were tenants under the petitioner, and the petitioner was the owner of the suit property. Even the receipt of legal notice served by the petitioner for ejecting the tenants was admitted.

On the point of law, the Court noted that in a suit for ejectment, the landlord has to establish: (i) Relationship of landlord and tenant; (ii) Tenancy is not a protected tenancy under the Delhi Rent Control Act, 1958; (iii) There is no registered subsisting lease agreement; (iv) Tenancy has been terminated and the respondent tenant has failed to hand over possession.

The Court was of the opinion that since, there was an unequivocal admission of the ingredients that the landlord has to establish for seeking ejectment of its tenant, the application filed by the petitioner under Order 12 Rule 6 CPC ought to be allowed. Orders were made accordingly. [Geeta v. Mohd. Raza, 2019 SCC OnLine Del 11385, decided on 14-11-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: Tarlok Singh Chauhan, J. entertained a petition filed by a landlord against the order passed by the Rent Controller in favor of the tenant, whose supply of electricity was unreasonably disconnected by the said landlord.

Factual matrix of the case was that the tenant filed an application under Section 11(3) of H.P. Urban Rent Control Act, 1987 to the Rent Controller and contended that the supply of electricity was allegedly disconnected by the landlord without any just and reasonable cause. The Rent Controller passed an order in favor of the tenant, aggrieved by which the landlord proffered an appeal which was dismissed by the authority, hence the landlord filed the instant petition.

The main point noted by the Court was the scope of revisional jurisdiction, which the Court exercised keeping in mind judgment passed by the Constitution Bench of the Supreme Court in Hindustan Petroleum Corpn. Ltd. v. Dilbahar Singh, (2014) 9 SCC 78, where it was held that, “The expression “revision” is meant to convey the idea of much narrower expression than the one expressed by the expression “appeal”. The revisional power under the Rent Control Act may not be as narrow as the revisional power under Section 115 of the CPC but certainly, it is not wide enough to make the High Court a second court of first appeal”. Another important point held in the abovementioned judgment was, “The power of the High Court even though wider than the one provided under Section 115 of the Code of Civil Procedure is not wide enough to that of the appellate Authority.”

In the aforesaid decision, the Supreme Court was dealing with the provisions of the Kerala Buildings (Lease and Rent Control) Act, 1965, T.N. Buildings (Lease and Rent Control) Act, 1960 and Haryana Urban (Control of Rent and Eviction) Act, 1973. The incongruity in the decisions rendered by the Supreme Court in Rukmini Amma Saradamma v. Kallyani Sulochana, (1993) 1 SCC 499 was the backdrop in which the Constitution Bench was called upon to decide the scope of the revisional jurisdiction and the expression “legality and propriety” provided in the relevant statues. The essential question being as to whether in exercise of such powers, the revisional authority could reappreciate the evidence or not. It was held, “A finding of fact recorded by court/authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law.”

The High Court hence based on the above-discussed judgment and considering the exposition of law opined that, admittedly the electricity supply to the premises let out to the tenant had been disconnected by the landlord on the ground of nonpayment of such charges. Even though there appeared to be some dispute regarding rate of rent, but that by itself was not sufficient ground and could not have been made the basis for the landlord to disconnect the electricity supply to the premises let out to the tenant. The Court further held that, ground on the basis of which, electricity was disconnected was that the tenant had failed to pay the electricity charges the Court did not consider it as a sufficient ground to disconnect the electricity supply, more particularly, when it had been proved on record that there is submeter installed in the premises. It was further opined by the Court that once that be the admitted position, then obviously nonpayment of the amount due, if any, on account of electricity consumption would be a matter between electricity department and the tenant and it would be the prerogative of the aforesaid department to disconnect the electricity supply as per rules in case the electricity charges are not deposited.

The Court decided that the instant petition was frivolous and a perfect case where a heavy fine was to be imposed and dismissed the petition as it had no merits.[Ramesh Thakur v. Roshini Chauhan, 2019 SCC OnLine HP 1135, decided on 22-07-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: The instant petition involved a question that whether the eviction of tenant could be ordered for settling married son of the landlord under Section 14(3)(a)(i) of H.P. Urban Rent Control Act, 1987, even the same was not covered by Section 14(3)(d) of the Act. The same question was contemplated by Tarlok Singh Chauhan, J.

Factual matrix of the case was that the landlord filed a rent petition under Section 14 of the Act of 1987, before the Rent Controller. He sought eviction of the tenant on the ground that his son intended to settle his business in the same premises and that since he and his wife were old, they wanted to live with their son at Solan. The landlord also claimed arrears of rent and sought eviction on the ground of material addition and alteration being carried out by the tenant in the premises in question.

The tenant contested the petition tooth and nail and denied the grounds taken in the petition seeking his eviction from the premises in question. Subsequently, an order was passed in favor of the landlord and the tenant-petitioner was directed to be evicted on the grounds of non-payment of arrears of rent and that the son of the landlord needed the premise for the running business. The tenant was aggrieved by the order and he went into an appeal, the appellate authority dismissed his appeal and hence, the tenant had no other option but to file the instant petition.

Pratap Singh Gover, counsel for the landlord, relied on cases where the similar reiteration of law was found in the Judgments, Nand Lal Sharma v. Bimla Sharma, HLJ 2007 (HP) 1112; Jasvinder Singh v. Kedar Nath, HLJ (2012) (HP) 1452; Jagat Ram Chauhan v. Avinash Partap, HLJ 2014 (HP) 420 etc. further the counsel presented the witnesses, one of them was the son of the landlord, who testified that the said premise was needed by them, as his parents were old and he wanted to start his own business, but for the time being he was residing in Delhi.

On the contrary, tenant appeared as a witness and deposed that son of the landlord was residing abroad in Mexico and was doing business there and he had no intention to shift or settle at the said premise. He stated that the landlord intended to sell the tenanted premises and the proposed buyer had been forcing the landlord to get the tenanted premises vacated and in order to give vacant possession to the buyer, the landlord had concocted false plea of bona fide requirement.

The Court after the submissions of the parties observed that, there was no reason to doubt the bona fide requirement of the landlord as admitted, he was a senior citizen aged about 83 years and thus required someone to look after him and his property. The testimony of the son of the landlord was also not doubted. It was further observed that the tenant had no proof of what he alleged that the landlord wanted to sell the premise. Hence, the Court found no merit in the petition and dismissed the same.[Mandeep Singh v. Gian Chand, 2019 SCC OnLine HP 1029, decided on 18-07-2019]

Case BriefsHigh Courts

Sikkim High Court: Bhaskar Raj Pradhan, J. confirmed a decree of eviction passed against the appellant-tenant by the District Judge on the bonafide requirement of the landlord.

The sole ground for eviction being contended in the application was the requirement of suit premises for the personal occupation of the landlord. Under the relevant statutory notification, the landlord could evict the tenant only on showing the bonafide requirement for personal occupation. A holistic reading of the plaint suggested that the landlord required the suit premises as his house was in a dilapidated condition; his ill health including mental illness for which he desired to accommodate a help; to accommodate his growing children who did not have adequate personal space in the house and who were pestering him for it which was causing him mental stress; to establish them in business as they were completing their education; etc.

The appellant -tenant was represented by Laxmi Chakraborty and Manju Rai, Advocates. Per contra, Zangpo Sherpa, Deven Sharma, Jushan Lepcha and Mon Maya Subba, Advocates represented the respondent-landlord.

On perusal of the record, the High Court found the facts as claimed of the landlord to be true. Referring to its earlier case in Pradeep Golyan v. Durga Prasad Mukhia, 2016 SCC OnLine Sikk 225, the Court observed: “That personal occupation of the landlord includes the requirement of the dependents as well is now well settled.” The landlord pleaded hardship and proved it. He proved a bonafide requirement of personal occupation. Furthermore, the appellant did was unable to show any special equities in his favour against the eviction.

In such circumstances, the Court confirmed the decree of eviction passed by the District Judge. However, considering the fact that the appellant was in occupation of the suit premises and doing his business from there since 1999, he was given four months’ time to vacate the suit premises on the condition that he will continue to pay rent till then. [Bishnu Prasad Bhagat v. Prakash Basnett, 2019 SCC OnLine Sikk 84, decided on 15-06-2019]

Case BriefsHigh Courts

Kerala High Court: The Division Bench of Hrishikesh Roy and A.K. Jayasankaran Nambiar. JJ. dismissed a writ appeal filed by landlord against an order dispensing with the requirement of his consent, for renewal of his tenant’s trade licence.

A partnership firm (tenant) – Vijaya Jyothi Traders ­– had filed an application before the Thrissur Municipal Corporation for a D&O (Dangerous & Offensive) licence. The Corporation refused to consider this application on the ground that the application was not supported by landlord’s (appellant herein) consent which was the mandate under Sections 492(3) and 492(4) of the Kerala Municipality Act, 1994.

In a petition filed by the managing partner of the firm (respondent herein), it was averred that averred that since there were some disputes between him and the appellant-landlord, therefore obtaining consent letter from the landlord must not be insisted for consideration of the renewal of the licence. Learned Single judge allowed the petition and directed the Corporation to consider the subject application without insisting for consent from the appellant-landlord. Aggrieved thereby, the instant writ appeal was filed.

The Court noted that the learned Single Judge had taken note of pending suits between the landlord and tenant and had also provided an opportunity of hearing to both the parties. It relied on the judgment in Sudhakaran v. Corporation of Trivandrum, (2016) 14 SCC 263 where the Apex Court while deciding the on renewal of trade licence, stated that a tenant could not be deprived of running a lawful business merely because the landlord withheld his consent. A valid tenancy has implied the authority of the landlord for the legitimate use of the premises by the tenant.

In view of the above, the Court upheld the impugned judgment. [C.S. Babu v. C. Vijayan, 2018 SCC OnLine Ker 5783, Order dated 14-12-2018]

Case BriefsHigh Courts

Delhi High Court: A Bench of Anu Malhotra, J. dismissed a revision petition filed against the order Additional Rent Controller whereby the tenant’s application for leave to defend the eviction petition under Section 14(1)(e) of the Delhi Rent Control Act, 1958 filed by the landlord was dismissed.

The landlord had filed an eviction suit against the tenant on the ground of bona fide requirement. The tenant represented by Virendra Singh, Advocate urged that the need of the landlord was artificial and mala fide. It was alleged that the landlord and the tenant were in the same business and the landlord sought to evict the tenant due to business rivalry and the landlord did not require any additional accommodation for doing any work.

The High Court perused the entire record and noted that landlord sought eviction of tenant stating that he wanted to expand his business and required the space available in the tenanted shop for bona fide purpose. It was observed by the Court that the tenant did not provide any specific details or evidence to substantiate his claims. It was further observed as well settled that “landlord is the best judge of his own needs”. In facts and circumstances the present case, it was held that there was no infirmity whatsoever in the impugned order. Thus, the petition was dismissed. [Subhash Chander Rana v. Jitender Verma, 2018 SCC OnLine Del 13239, decided on 29-12-2018]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of A.M. Dhavale, J. dismissed a second appeal filed against the order made in first appeal wherein it was held that the plaintiffs were not entitled to claim damages for wrongful possession of rented premises by the defendant.

The plaintiffs were owners of the subject property which was let out to Nizam Government which handed it over to Zila Parishad. In the year 1990, Zila Parishad terminated its own tenancy and directed its officials yo handover the possession of the property to plaintiffs. However, this direction was not complied with. It was also an admitted fact that plaintiffs did not take any step to recover the possession of the property and were now directly before the Court claim damages for wrongful possession by Zila Parishad.

Question before the Court was “Whether the landlord would be entitled for damages after termination of tenancy if he does not take any step for recovery of possession for more than 12 years after termination?”

The High Court referred to Chander Kali Bai v. Jagdish Singh Thakur, (1977) 4 SCC 402 wherein it was observed, “if a tenant continues in possession after termination of contractual tenancy, he would not be liable for damages till the decree for eviction is passed.” In the instant case, no decree for eviction was passed. The tenant Zila Parishad itself terminated the tenancy. In such case, the landlord plaintiffs were bound to file suit for possession. He could not directly file suit for damages for the amount not agreed under the contract. Furthermore, damages by way of mesne profits can be awarded under Order 20 Rule 12 only from the date of decree for possession for the period for which the possession is wrongfully retained in spite of the decree. In such view of the matter, the second appeal was dismissed. [Arvind v. State, 2018 SCC OnLine Bom 6069decided on 10-12-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Vinod Goel, J. dismissed a revision petition filed against the order of the Additional Rent Controller whereby he allowed the eviction petition filed by the respondent-landlord under Section 14(1)(e) of the Delhi Rent Control Act, 1958.

The petitioner was a tenant of the respondent. The respondent, in the eviction petition filed by him, had sought ejectment of the petitioner from the suit property. the ground taken by him was a bona fide requirement. It was pleaded that the suit property was required by the respondent for expansion of the business. The petitioner, per contra, submitted that the said property was not suitable for expansion of business as sought by the respondent. the Additional Rent Controller, however, decreed the suit and passed the eviction orders against the petitioner. Aggrieved thereby, he filed the instant revision under Section 25-B of the DRC Act.

The High Court, while adjudicating on the matter, referred to a Supreme Court decision in Baldev Singh Bajwa v. Monish Saini, (2005) 12 SCC 778. It was observed that whenever a landlord seeks ejectment of a tenant for bona fide requirement, it shall be presumed to be genuine and bona fide. Furthermore, the burden to rebut the said presumption lies on the tenant; however, the mere assertion on part of the tenant does not suffice. In the instant case, the testimony of the respondent as to his bona fide requirement went unrebutted. In such view of the matter, the revision petition was dismissed and the order impugned was accordingly upheld. [Metro Bearings v. Faizunnisa, 2018 SCC OnLine Del 12313, Order dated 31-10-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Valmiki Mehta, J. dismissed an appeal filed by the appellant-tenant impugning the judgment of the trial court whereby mesne profits were awarded to the respondent-landlord.

The appellant was a tenant in the subject premises. The tenancy commenced in 1986 and was terminated in 1998 vide legal notice. The appellant in the meanwhile, during the pendency of suit for possession and mesne profits, handed over the possession of the tenanted premises to the landlord in 1999. Therefore, the mesne profits were calculated from May 1998 to August 1999 (date of filing the suit to date of handing over of possession). Against the award of mesne profits, the appellant filed the present regular first appeal under Section 96 CPC.

The High Court noted that the trial court relied on the rent paid by another tenant to calculate the mesne profits. It was also observed that some amount of honest guess work is always involved in calculation of mesne profits, therefore, once the rent paid on similar premises on same area was taken as the basis, there was no illegality in the award of the mesne profits passed by the trial court. Furthermore, the definition of mesne profits in Section 2(12) CPC provides that mesne profits include the interest payable thereon. Holding that the judgment impugned did not require any interfere, the learned Judge went on to observe that there is no inherent right in citizens of this country, who are tenants, to violate the law by overstaying in the premises where the tenancy stands dismissed. The appeal was dismissed. [Hindustan Motors Ltd. v. Seven Seas Leasing Ltd.,2018 SCC OnLine Del 11391, decided on 19-09-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: A Single Judge Bench comprising of Gurvinder Singh Gill, J., dismissed a revision petition filed assailing the order of the Appellate Authority which in turn upheld the order of Rent Controller, Ludhiana, whereby the petitioner was ejected from the property in question.

The respondent filed an ejectment petition before the Rent Controller on the grounds that the petitioner-tenant had defaulted in paying the rent since June 2008. The petitioner contended that the respondent was not the landlord as he had taken the premises on rent from one Narinder Singh. The Rent Controller found that a relationship between tenant and landlord existed between the parties. And since the petitioner defaulted in paying the rent, petitioner was ordered to be ejected from the property concerned. The Appellate Authority confirmed the findings and upheld the order passed by the Rent Controller. Feeling aggrieved, the petitioner approached the High Court.

The High Court perused the record and found that the abovementioned Narinder Singh, in his examination, had stated that he had sold the property concerned to the petitioner. A power of attorney and a Will was also executed in favor of the petitioner. The Court did not find any registered sale deed proving the factum of sale; however, the abovesaid documents showed that there was some arrangement between the petitioner and Narinder Singh whereby the petitioner exercised the rights of the landlord. The Court held the law to be well settled that a person can be a landlord even without having ownership rights in the property. The High Court did not find any infirmity in the impugned order and the revision petition was thereby dismissed. [Ashok Kumar v. Piara Singh, 2018 SCC OnLine P&H 733, dated 29-05-2018]

Case BriefsSupreme Court

Supreme Court: Deciding a short question of law as to whether the requirement of the landlord for own occupation could also mean occupation by a member of the family, the bench of Kurian Joseph and A.M. Khanwilkar, JJ said that mere non-examination of the family member who intends to do the business cannot be taken as a ground for repelling the reasonable requirement of the landlord.

According to the J&K High Court, the appellant has failed to establish her reasonable requirement for own occupation as per Section 11(1)(h) of the Jammu and Kashmir Houses and Shop Rent Control Act, 1966. Having not examined the son who intends to do the business, the requirement of own occupation was not established.

In the present case, the landlord was not happy and content with the paltry rent received from the premises and intended to engage her unemployed and uneducated son in the business at the premises. Considering the facts of the case, the Court said that the eviction is not sought on the last limb of Section 11(1)(h) of the Act namely, “for the occupation of any person for whose benefit the house or shop is held”. The premises sought to be evicted is not held for the benefit of the son alone; but the whole family. It is for the own occupation of the landlord and it is for the landlord to decide as to the best use the premises should be put to.

The Court said that the reasonable requirement by the landlord of the premises would depend on whether the landlord has been able to establish a genuine element of need for the premises which would depend on the facts and circumstances of each case. Merely because the landlord has not examined the member of the family who intends to do business in the premises, he cannot be non-suited in case he has otherwise established a genuine need. [Mehmooda Gulshan v. Javaid Hussain Mungloo, 2017 SCC OnLine SC 143, decided on 17.02.2017]

Case BriefsForeign Courts

Supreme Court of United Kingdom: In an appeal filed by a Landlord against the liability from failure to keep ‘paved area outside the building’ in repair as per the Section 11 of the Landlord and Tenant Act, 1985, the Court allowing the appeal, held that the landlord is not in breach of his statutorily implied obligation for carrying out repairs until he has the notice of the disrepair.

Section 11 of the 1985 Act applies to Sub-tenancy agreements and extends the landlord’s statutory repairing covenants to “keep in repair the structure and the exterior of the dwelling-house”. In the present case, the subtenant having tripped over an uneven stone on a paved way which was the main access to the building and suffered injuries, had brought action against the landlord for the breach of the provision. The Court of Appeals had allowed the case but in the present appeal the Court took a contrary view.

The Court held that the expressions of the obligations under the Section 11 should be given a natural meaning rather than an artificially wide one. It held that, the fact that a piece of property is a necessary means of access to a building cannot be sufficient for it to constitute part of the ‘exterior’ of that building. Therefore, the paved way did not fall within the ambit of the provision.  Moreover, the Court as an exception to the general principle upheld the rule that, the landlord is not liable under a covenant with his tenant to repair premises which are in the possession of the tenant and not of the landlord unless and until the landlord has notice of the disrepair. Relying on a number of cases which had earlier upheld the rule the Court held that the landlord  could only be held liable if he had had notice of the disrepair before the accident, which he did not have. In accordance with both the observation the appeal of the landlord was allowed. [Edwards  v. Kumarasamy  [2016] UKSC 40, decided on 13 July 2016]