Krishna Gopal Vs. Laxminarayan and ors. - Court Judgment

Excerpt:
- - , the bathroom and the latrine, user of which has been enjoyed by the respondents as tenants, the respondents-tenants are entitled to maintain an application under section 38 against the appellant-landlord for restoring the user of bathroom and latrine. sub-section (1) of section 43 of the mysore rent control act provides that no landlord either himself or through any person acting or purporting to act on his behalf, shall, without just and sufficient cause cut-off or withhold any essential supply of service enjoyed by the tenant in respect of the building let to him. 8. section 38(1) of the act is a similar provision which reads as under- 38. cutting off or withholding essential supply or service- (1) no landlord either himself or through any person purporting to act on his behalf shall without just and sufficient cause cut off or withhold any essential supply or service enjoyed by the tenant in respect of the accommodation let to him. ' 9. the learned counsel for the appellant has submitted that a distinction should be made between a claim for possession of bathroom and latrine for which a civil suit is a remedy and a claim for restoring the essential supply or service enjoyed by the tenant in respect of the accommodation let in him which in the instant case is user of bathroom and latrine for the restoration of which the remedy is by way of an application under section 38 of the act. but if the result of such an act or omission of the landlord should be withholding of any essential supply or service to the tenant which had been enjoyed previously, the jurisdiction of the controller which has been conferred by the statute, cannot be ousted by such act or omission of the landlord. ' x x x x x 11. in the instant case the learned rent controlling authority has found that the user of bathroom and latrine has been enjoyed by the respondents as tenants and as such, in the event of user of bathroom and latrine being withheld by the landlord, the rent controlling authrity must be held to have jurisdiction under section 38 of the act to order restoration of such user since user of bathroom and latrine would be covered within the meaning of the expression 'essential supply' or 'service'.even if the appellant were not the landlord but only a person purporting to act on behalf of the landlords as envisaged in section 38 of the act an application under section 38 of the act would still be a competent remedy in the circumstances. consequently, i find that there has been no error of jurisdiction committed by the authority in entertaining the application under section 38 of the act and in passing the impugned interim order after being satisfied that there was a prima facie case in favour of the tenants for issue of interim direction to the landlord for restoring user of bathroom and latrine, pending enquiry into the matter.r.k. verma, j. 1. this is a misc. second appeal under section 32 of the m. p. accommodation control act (hereinafter referred to as 'the act') filed by the landlord against the order dated 29-11-88 passed by the 1st additional judge to the court of the district judge, mandsaur in misc. appeal no. 33/88, affirming the order dated 28-10-88 passed by the rent controlling authority in case no. 2; 88-89, a-90 (4) whereby the rent controlling authority in a case started on the application of the tenants under section 38 of the act, has allowed an interim application of the tenants, directing the landlord not to deprive the tenants from enjoyment of essential services of the disputed latrine and bathroom and to remove obstruction created by him. 2. the facts giving rise to this appeal, briefly stated, are as follows: the respondents-tenants laxminarayan, dinesh chandra, manaklal, basantrao and kantilal filed an application under section 38 of the act before the rent controlling authority alleging that the appellant krishna gopal s/o shankarlal and other heirs of deceased shankarlal are the landlords in respect of the accommodation let to the respondents tenants. it is also alleged that the appellant krishna gopal holds a power of attorney from the other heirs of shankarlal and lives in one half portion of the house and the other half portion of the house forms the rented accommodation in question in which the respondent-tenants reside. the tenanted accommodation in occupation of the tenants includes one flush latrine and one bathroom having a watertap located on the groundfloor. the respondents-tenants alleged that with a view to get the accommodation in question vacated by them the rented accommodation excepting the latrine and bathroom aforesaid was sold by the appellant to kantilal s/o nanalal soni on 27-2-88. as a result of such sale effected by the appellant the respondents become the tenants of the purchaser in respect of the accommodation in question except the latrine and the bathroom in respect of which they continued to be the tenants of the appellant. subsequently, on 15-6-88 the appellant closed the door of bathroom from inside and on 12-10-88 he blocked the septictank attached to the latrine. the respondents tenants, therefore, prayed for restoration of the essential services to them by giving a direction to the appellant in that behalf. 3. the reply of the appellant krishna-gopal to the respondents' application under section 38 of the act was that the disputed latrine and bathroom did not form part of the rented accommodation and the respondents did not use the said latrine and bathroom and that the respondents were tenants of the portion of the house which belonged to his mother basan-tibai and brothers babulal and jagdish and that portion was sold to kantilal and laxi-narayan sons of nanalal soni on 27-2-88 whereafter the respondents no more remained tenants of the mother and brothers of the appellant and on the other hand became tenants of the purchasers. the contention raised by the appellant, in short, was that there existed no relationship of landlord and tenant between the appellant and the respondents, in any case, after the sale of the tenanted accommodation on 27-2-88 in favour of kantilal and laxminarayan, sons of nanalal who are not impleaded as parties by the respondents-tenants. 4. the learned rent controlling authority on perusal of the affidavits filed by the parties and the notice dated 2-5-88 given by the tenants to the landlord and after hearing arguments of the parties passed the order dated 28-10-88 directing the appellant-landlord not to deprive the tenants from using the latrine and bathroom and to remove obstruction put by him in the use of the said latrine and bathroom. being aggrieved by the order of the learned authority, the landlord filed a misc. appeal under section 31 of the act before the learned lower appellate court of the additional judge to the court of district judge, mandsaur. the learned lower appellate court after hearing arguments of the parties, has upheld the order passed -by the rent controlling authority and accordingly has dismissed the appeal. the landlord has, therefore, filed this misc. appeal under section 32 of the act. 5. learned counsel for the appellant landlord has firstly contended that after the transfer of the residential portion of the accommodation by sale in favour of purchasers kantilal and laxminarayan, sons of nanalal, the appellant or his brothers and mother ceased to be the landlords in respect of the accommodation in question and as such there was no relationship of landlord and tenant between the appellant and the respondent. consequently, the provision of section 38 of the act was not attracted in the instant case. 6. the learned counsel for the respondents-tenants has submitted that as a result of transfer by sale of a part of the accommodation let out to the tenants there has been severance of tenancy by virtue of section 109 of the t. p. act and as such, the appellant landlord still continues to be the landlord in respect of the unsold portion of the accommodation viz., the latrine and the bathroom and therefore the relationship of landlord and tenant between the appellant and the defendant has not ceased and the respondents are not precluded from invoking section 38 of the act against the appellant for restoration of the user of bathroom and latrine. learned counsel has cited a full bench decision of this court in sardarilal v. narainlal, 1980 jab lj 110 : (air 1980 madh pra 8) and a decision of the supreme court in moharsingh v. devi charan, air 1988 sc 1365 in support of his submission that section 109, t. p. act is a statutory exception to the unity and integrity of the tenancy and effects the severance or split of tenancy on a transfer by sale of a part of the accommodation given on lease. in the instant case, therefore, since after transfer by sale, the purchasers have become owners-landlords in respect of residential rooms of the accommodation and the appellant is still the landlord owner of the unsold portion viz., the bathroom and the latrine, user of which has been enjoyed by the respondents as tenants, the respondents-tenants are entitled to maintain an application under section 38 against the appellant-landlord for restoring the user of bathroom and latrine. 7. the learned counsel for the appellant next contended that the respondents-tenants have been dispossessed from the latrine and bathroom and by an application under section 38 of the act moved by them, they in fact wanted to be restored to the possession of latrine and bathroom under the garb of restoration of essential supply or service. the proper remedy for the respondents is not by way of an application under section 38 of the act, but by way of a civil suit for possession of latrine and bathroom from which they have been dispossessed. learned counsel has placed reliance in this connection on a decision in savithramma v. ramdas, air 1974 kant 7 wherein the expression 'essential supply of service' used in section 43(1) of mysore rent control act has been construed to include facilities other than the building leased to the tenant and not the building or a portion of the building itself. it has, therefore, been held that an application by the tenant under section 43 for restoration of possession on the ground that the landlord has forcibly taken possession of a portion of the premises leased to him viz., the kitchen, the bathroom and the latrine, is not maintainable. hence the court has no jurisdiction to make an order directing the landlord to restore the possession of the portion of the premises in question. sub-section (1) of section 43 of the mysore rent control act provides that no landlord either himself or through any person acting or purporting to act on his behalf, shall, without just and sufficient cause cut-off or withhold any essential supply of service enjoyed by the tenant in respect of the building let to him. 8. section 38(1) of the act is a similar provision which reads as under-'38. cutting off or withholding essential supply or service- (1) no landlord either himself or through any person purporting to act on his behalf shall without just and sufficient cause cut off or withhold any essential supply or service enjoyed by the tenant in respect of the accommodation let to him.' 9. the learned counsel for the appellant has submitted that a distinction should be made between a claim for possession of bathroom and latrine for which a civil suit is a remedy and a claim for restoring the essential supply or service enjoyed by the tenant in respect of the accommodation let in him which in the instant case is user of bathroom and latrine for the restoration of which the remedy is by way of an application under section 38 of the act. according to the learned counsel what the respondents are seeking is restoration of possession of bathroom and latrine from which they have been dispossessed and, therefore, an application under section 38 is not maintainable. the argument of the learned counsel, in my opinion, is fallacious. the building structure of bathroom and latrine has admittedly been not sold to the purchasers and, therefore, under section 109 t. p, act the original tenancy has been split on account of transfer so that the purchasers have become landlord in respect of the residential rooms sold to them and appellant has continued to be a landlord in respect of the roomy structure of bathroom and latrine which has not been sold to any one. in such circumstances the tenants are entitled to claim restoration of user of bathroom and latrine from the appellant landlord who still owns the roomy structure of the bathroom and latrine in respect of which he has become the landlord on split of tenancy by operation of section 109 of t. p. act aforesaid. 10. the learned counsel for the respondents has on the other hand placed reliance on a decision of delhi high court in smt. naresh rani v, haridutta sharma, 1972 ren cj 411 wherein construing the meaning of the words 'essential supply' or 'service' occurring in section 45 of the delhi rent control act which is analogous to section 38 of the act aforesaid, it has been held that the phrase' essential supply' or 'service' occurring in the delhi rent control act would legitimately include use of the bathroom and any passage and the obstruction caused by the landlady to the use of the bathroom and the common passage by the tenants constitute cutting off or withholding the essential supply and services within the meaning of section 45 of the act and the rent controller has the jurisdiction to decide the matter and to direct the restoration of essential supply or service. the following further observations made in that case are relevant-'as such the matter lay within the jurisdiction of the controller. moreover, the manner of deprivation of the amenity is not a material circumstance for determining the jurisdiction of the controller. the landlord may withhold an amenity either by cutting off the water supply or by causing it to be done by the municipal corporation by any act or omission on his part or he may do so by causing physical obstruction as she has done in this case or he may also do so by forcibly taking possession of any part of the premises. but if the result of such an act or omission of the landlord should be withholding of any essential supply or service to the tenant which had been enjoyed previously, the jurisdiction of the controller which has been conferred by the statute, cannot be ousted by such act or omission of the landlord. on the other hand, if the tenant does not want mere restoration of the supply or service or for that matter the amenity withheld but claims possession of any substantial part of the tenanted premises it may be open to him to institute a suit in a regular civil court.' x x x x x 11. in the instant case the learned rent controlling authority has found that the user of bathroom and latrine has been enjoyed by the respondents as tenants and as such, in the event of user of bathroom and latrine being withheld by the landlord, the rent controlling authrity must be held to have jurisdiction under section 38 of the act to order restoration of such user since user of bathroom and latrine would be covered within the meaning of the expression 'essential supply' or 'service'. even if the appellant were not the landlord but only a person purporting to act on behalf of the landlords as envisaged in section 38 of the act an application under section 38 of the act would still be a competent remedy in the circumstances. consequently, i find that there has been no error of jurisdiction committed by the authority in entertaining the application under section 38 of the act and in passing the impugned interim order after being satisfied that there was a prima facie case in favour of the tenants for issue of interim direction to the landlord for restoring user of bathroom and latrine, pending enquiry into the matter. the impugned order, therefore, calls for no interference in this appeal. 12. in the result this appeal fails and is hereby dismissed. in the circumstances of the case there shall, however, be no order as to costs of this appeal, which shall be borne by the parties as incurred.