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Whether plea of benami tenancy is tenable?

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 1362 of 1986

Decided On: 20.09.1988

Decided On: 21.09.1988

M.S. Shastri
Vs.
Hilla M. Batliwalla and Ors.

Hon’ble Judges/Coram:S.G. Manohar, J.
Citation: 1989(1) Bom.C.R.138.

1. The main question involved in this writ petition is nothing but arithmetical calculation. There are other questions involved, but the petition is capable of being decided even without deciding those questions. However, it is also true that if those question are decided in favour of the respondent landlady, then on these questions as well, all by themselves, the present petition is capable of being decided against the present petitioner.

2. I will first state the skeletal facts necessary for formulating the questions arising in the petition.

(A) The dispute relates to a three bed-room Flat, admeasuring about 1500 sq.ft. It includes also a garage on the ground floor. There is no dispute that the flat is in a building belonging to the Co-operative Housing Society and that it belongs to the respondent (who will be referred to hereafter as the Landlady). Admittedly M/s. Kailas Castings Pvt. Ltd., (who will be referred to as defendant No. 1) entered into agreement of leave and licence with the landlady for occupation of the Flat (hereafter the suit premises) on the payment of monthly compensation of Rs. 900/- The Agreement was signed by M. S. Shastri, the present petitioner (hereafter, referred to as defendant No. 2 as the Director of the Company. The Agreement was for a period of 11 months. But there is no dispute that it was renewed from time to time and every time the terms and conditions continued. Likewise, the Agreement continued to be signed by defendant No. 2 as the Director. The Agreement provided that defendant No. 1 Company would use the premises for residence of the officers of the Company. There is further no dispute that is fact defendant No. 2 was in occupation of the same. The landlady’s contention is that defendant No. 2 was in occupation as the officer of the Company, whereas defendant No. 2 contends that he himself was the licensee or tenant and not defendant No. 1.

(B) There is further no dispute that on 1-2-1973 all the licensees got the status of a deemed tenant or protected licensee as per the amendment of the Rent Act which was brought on the statute book with effect from 1-2-1973. There is further no dispute that having regard to the position emanating from the amendment, the landlady accepted the licensee as the deemed tenant or protected licensee as provided by the Act and hence, there is no dispute that whosoever is the licensee or the deemed tenant is entitled to get protection of the Act and, is, likewise, subject to the liabilities emanating from the Act and to the obligations flowing from the Act.

(C) Irrespective of the question as to who, between defendant No. 1 & defendant No. 2, was the deemed tenant or a protected licensee of the suit premises, fact remains that according to the landlady the tenant concerned had committed defaults in the payment of rent and, that hence, she gave a notice on 22-11-1978 calling upon defendant No. 1 to make payment of all the arrears of rent which, according to her, had become payable from1st April, 1978, meaning thereby that the tenant concerned had committed default in the payment of rent from 1st April 1978. To be more precise the contention of the landlady has been that the tenant concerned had paid the rent till 31st March, 1978 at the rate of Rs. 900/- per month, but had not paid any rent for any subsequent period. To this Notice, no reply was given either by defendant No. 1 or defendant No. 2. But somewhat surprisingly, a cheque for the rent of Rs. 900/- was sent on 27th November, 1978. There was a forwarding letter which mentioned that the cheque for Rs. 900/- was sent for the rent for the month of October 1978 and, undisputedly, the landlady was directed to credit that rent for October 1978 only. Likewise, in the month of December, a cheque dated 28th December, 1978 was sent by defendant No. 2 to the landlady for Rs. 1800/- and the forwarding letter specifically mentioned that the amount was sent for being credited towards the rent for the months of November & December 1978. Not one word was stated as to what was to happen about the arrears alleged to be due from 1st April, 1978 till the end of September 1978. According to the landlady, rent from April to October was not paid at all. There was not one word or murmur about denial of that allegation. All the same, the payment was made only for the subsequent period. The landlady has not accepted the payment made by two cheques and admittedly the cheques have not been encashed.

(D) The landlady thereafter filed the instant suit, making both the defendants parties to the same. According to her, the leave & licence agreement was in favour of the Company, defendant No. 1. Under the Agreement, it was defendant No.1 who was the licensee and the Company had to pay compensation of the rate of Rs. 900/- per month. Defendant No.2 was in occupation of the premises only as an officer of the Company defendant No.1; the rent from the month of April 1978 till 31st October, 1978 had remained in arrears; Notice under section 12(2) of the Rent Act was given for payment of all that rent, but it was not heeded; the subsequent payment made with reference to particular months, October, November and December was not a valid tender and, at any rate, did not amount to tender of rent due from 1st April to 31st September, 1978; thus, the rent was in arrears for a period exceeding 6 months on the date of the suit, which was filed on 19th February, 1979; there was no bona fide dispute about the standard rent instituted within the statutory period and hence, the landlady was entitled to possession of the suit premises.

I may mention here that the additional ground for possession is also mentioned, viz the landlady’s bona fide personal requirement as contemplated by section 13(1)(g) of the Rent Act. But that claim has not been pressed with and I do not wish to consider the position as regards the same.

During the pendency of the suit, the Company, defendant No. 1 stood amalgamated with the Company, defendant No. 3, who was subsequently impleaded in the suit. The written statement was filed by defendant No. 2 who came out with the plea that not defendant No. 1 but he himself was the licensee, the contents of the Agreement dated 30th November 1968 notwithstanding. Defendant No. 3’s Written Statement appears to be completely non-committal. It is unnecessary to consider defendant No. 3’s Written statement and contention, because, as will be presently pointed out defendant No. 3 has submitted to the decree passed against itself by the Court below.

(E) But what is of further importance is that according to defendant No. 2 not only that there were no arrears of rent payable to the landlady, whether from 1-4-1978 onwards or from any other date, but that in fact there was an over-payment made to the landlady.

On these pleadings, issues were framed and the parties went to trial.

(F) After examining the evidence in his own way, the learned Judge held that not defendant No. 1 but defendant No. 2 was a tenant in respect of the suit premises and, further, defendant No. 2 was not in arrears of any rent at all. The plaintiff’s suit was, therefore, dismissed by him.

(G) In Appeal, the contention of defendant No. 2 that he was the original licensee has been negatived. Likewise, the Appeal Court has held that the plaintiff was successful in establishing that neither defendant No. 1 nor defendant No. 2 had paid rent from the month of 1st April, 1978 till the date of the suit as required by law. The Appeal was, therefore, allowed and the suit for possession was decreed in favour of the plaintiff landlady.

(H) The present writ petition is filed by original defendant No. 2 against the said order. There are some other allied proceedings. Not being satisfied with the contention that there was an over-payment made by the 2nd defendant, the 2nd defendant took in his head to file an application for fixation of standard rent. I may mention here that in the written statement of defendant No. 2 a plea was raised that his wife was the tenant. The standard rent application is filed by both of them; Meaning thereby, that both were the tenants: In the application for fixation of standard rent (hereafter, referred to as standard rent application), those defendants have been successful in slashing down the liability of payment to Rs. 500/- per month. As will be presently pointed out, the suit premises are situate in one of the most prestigious localities in the City of Bombay; they admeasure more than 1500 sq.ft Unless the Courts have objection to be realistic, the Court must take judicial notice of the fact that the rent of this area goes not only in thousands but in tens of thousands. This defendant got the premises for them, almost on a platter, for the paltry compensation of Rs. 900/-. They are business people and still they have taken in their heads to slash down the rent payable to the landlady. As will be presently pointed out, the outgoings of the landlady far exceed Rs. 900/- and this defendant No. 2 finds it a matter of great justice that he should himself pay to the landlady per month the handsome sum of Rs. 500/- Evidently, according to him, it is the duty of the landlady to maintain him for his life-time by spending money from her pocket. This is plainly the expectation of this 2nd defendant. This aspect is stated because it has got great bearing in the equities between the parties and upon the question whether this Court’s writ jurisdiction is meant for such veritable miscreants.

(I) Just as the 2nd defendant has filed the present writ petition, Writ Petition No. 1562 of 1986 was filed by original defendant No. 3, with whom the Company/defendant No. 1 was amalgamated. However, that petition had been withdrawn by that Company on 21st April, 1988. The result is that, in the eyes of law, the Company, which was the original licensee or the successor in title of the original licensee, has submitted to the decree for eviction.

3. The questions which arise for decision of this Court can now be formulated as follows:

(a) Whether the licensee/tenant of the suit premises was in arrears of rent for a period of 6 months before the date of the notice or before the date of the suit.

(b) Whether defendant No. 2 is entitled to contend that not defendant No. 1 but defendant No. 2 or his wife was the tenant of the suit premises. In other words, whether he can set-up the plea that defendant No. 1 was a benamidar and that the tenancy transaction was a benami transaction.

(c) Assuming that it was open for defendant No. 2 to set-up such plea, whether in fact defendant No. 2 has succeeded in vindicating that plea.

(d) What is the effect of the fact that the original licensee/defendant No. 1 assuming that they were not mere benamidars have submitted to the decree for eviction upon the present Writ Petition filed by original defendant No. 2, assuming that their plea that they were the tenants was negatived by the Court.

4. I may state here that although the petition was argued by him almost as an Appeal, Mr. Walavalkar, the learned Counsel for the petitioner, stated repeatedly before this Court that if his plea that he or defendant No. 1 was not in arrears of rent for a period exceeding 6 months on the date of the suit, the other questions formulated above would pale into the academies. In other words, he frankly conceded that if he did not establish the fact that payments pleaded by him were not proved by him, he was out of the Court and the eviction decree was inevitable, irrespective of the question whether it was he who was the licensee/tenant or defendant No. 1 was the licensee/tenant.

In this view of the matter, all that I am required to consider is whether the finding recorded by the Court below, after almost thread-bare examination of the entire evidence, can be said to be wrong to such an extent that this Court can interfere with the finding even in its writ jurisdiction.

However, I may mention here that apart from the question whether his finding is binding upon this Court in its writ jurisdiction or not, in fact the learned Counsel took almost 3 days of this Court to satisfy the Court that there were no arrears of rent due from any of the defendants, either on the date of the Notice, 22-11-1978, or on the date of the suit 19th February, 1979, and that after hearing him at length, this Court is fully satisfied that the payments alleged by him in addition to those which have been admitted by the landlady are not proved by him at all. The inevitable consequence, therefore is that not only on the date of the suit but even on the date of the Notice, the tenant in question was in arrears of rent for a period exceeding 6 months. There is no dispute that if this is the factual position, then the provisions of section 12(3)(a) of the Rent Act must inexorably apply and the decree for eviction becomes imperative. The petition is capable of being decided against the petitioner on this narrow ground itself.

However, for the reasons which will be presently mentioned, I propose to deal with even with the other points set our above, though quite briefly.

5. The work of deciding the question as to whether the tenant concerned was in arrears for a period exceeding 6 months or not is made very much simplified by virtue of certain admitted statements filed in this Court; to the writ petition a List is filed by the petitioner showing the payments made by the tenant concerned towards the rent (I am using the word “rent” because, undisputedly, with effect from 1-2-1973 the landlady has accepted the licensee to have become a deemed tenant or protected licensee). The payment made or claimed to have been made by the tenant concerned is shown in the List, which is in fact a Statement, which ranges from November 1968 to 28th December, 1978. In other words, each and every payment made by the tenant concerned to the landlady is set out in the said Statement. There is no dispute that most of the payments were made by cheque. Hence, wherever there is the admission that the payment was received by cheque, the cheque number also is mentioned in Column 3 of the Statement. The amount paid at the time of each payment is mentioned in Column 4. So also is mentioned the name of the Bank, upon which each particular cheque was drawn, in Column 5, which is styled as “Remarks” Column. The 1st payment as mentioned above is dated November 1986 and the last payment, Sr. No. 105, is dated 28-12-1978.

The contention of the plaintiff, let me repeat, is simple. According to her, the entire rent till 31st March, 1978 has been paid. This total comes to Rs. 99,900/-. No further payment till the date of the suit is admitted, except the two cheques, referred to above, dated 27-11-1978 (Rs. 900/-) and 28-12-1978 (Rs. 1800/-). The landlady has not accepted those cheques, because they were conditional payments. According to Mr. Rane, who appears for the landlady, all payments, excepting payments mentioned against Sr. No. 1, 2, 4, 20, 37, 99, and, as mentioned above, at Sr. No. 104 & 105, are admitted. Even the payment of Rs. 2700/- as against Sr. No. 1 is not denied, but admittedly it is not the payment of rent, but it is the payment of deposit as 3 month’s advance rent. In fact the statement filed by the petitioner itself mentioned it as advance rent. Further, it is an admitted fact that the 1st payment for the month of January 1969, from which month the agreement started, the payment is made on 10th January 1969. Excluding the above payments which are disputed, the total sums paid by the tenant concerned to the landlady aggregates exactly to Rs. 99,900/- and this sum, undisputedly, represents payment till 31st March, 1978. It goes without saying that if this position is established and if the denial in respect of the payment by the landlady as regards the above items of payment is found to be a justified denial, then not only on the date of the suit but even on the date of the notice, the tenant would be deemed to be in arrears for as many as 7 months. Admittedly, no valid tender of the arrears was made within one month from that date; not, at any rate, for of anything beyond the rent for the month of October 1978. Even if that payment is taken into account which was admittedly offered within one month, the tenant was in arrears ,of as many as 6 months on the date of the suit if the subsequent cheque for Rs. 1800/- is not taken into account. Even if that cheque is taken into account, still the payments for the month of January was not made. This would mean that on the date of the suit, filed in February 1979, the defendants were admittedly in arrears of 10 months of rent and even assuming that the payment of Rs. 2700/- were offered in October & November 1978, should be taken into account, still, on the date of the suit the tenant was in arrears for 7 months.

Unless, therefore, the tenant proves that the payments which have been claimed to have been made by him as mentioned in Sr. Nos. 1, 2, 4, 20, 37, 99, 104 & 105, are duly made or deemed to have been duly made, the eviction decree becomes inevitable.

For the sake of convenience, a Xerox Copy of the Statement of payments claimed to have been made on behalf of the tenant towards the monthly rent, which is produced as a List along with the writ petition, is being annexed to this judgment as Appendix-1. As mentioned above, only a few entries in the same are matters of dispute. I will deal with each of them one after the other.

Item No. 1:

This relates to the payment made at Sr. No 1 in the Statement for November 1968. The Cheque Number is not mentioned. But admittedly this is the payment made as security deposit, which is described in the Statement as advance rent. However, Mr. Walavalkar fairly stated, at the outset, that this payment cannot be taken into consideration while computing the arrears .In the first place, it was made much before the date of commencement of the agreement. Secondly, the agreement itself mentions it as a security deposit. The entire conduct of the party shows that this was never treated by the party as payment for future rent. In fact there is no dispute that the payment of the 1st month’s rent (rent for January 1969) was made on 10-01-1969.

This item shall have, therefore, to be excluded, undisputedly.

Item No. 2:

The 2rd Item is at Sr. No. 2, which purports to be the payment made in November 1968 of Rs. 900/- in cash. The plaintiff has stoutly denied this payment. Mr. Walavalkar candidly stated that it was not possible for the petitioner to lead any independent evidence for this payment, either oral or documentary. He wants, therefore, this amount to be excluded from the payments claimed to have been made.

Item No. 3:

The 3rd Item is at Sr. No. 4, which purports to be the payment by cheque No. 26253 for the sum of Rs. 2700/-.

Mr. Rane stoutly denies this payment. He points out that there is no evidence led by the tenant to prove that the amount was ever received by the landlady. The statement mentions the Cheque Number to be 26253. But even though other cheques are produced, this cheque has not been produced. Admittedly, the plaintiff’s Account in the Union Bank is not credited with this amount. Mr. Walavalkar contended that this cheque might have been credited by the plaintiff/lady in some of her other Account. No such question has even been put to the landlady. It is not proved that any other Account is maintained in any other Bank by the landlady. In fact this entry of Rs. 2700/- is not put to the plaintiff/landlady at all. Position, thus, is that the tenant upon whom the burden lies of proving the payment has not led any evidence to prove this payment and this entry is not put to the plaintiff in the cross-examination.

Moreover, Mr. Rane pointed out that this is a statement prepared for the purpose of this writ petition. Nowhere in the lower Courts such a statement was prepared, nor was this entry put to the plaintiff with reference to any such Statement containing this entry. It is for the first time in this writ petition that this entry is being flaunted before the Court.

Furthermore, there is another significant aspect of this entry. There is no dispute that the entry of Rs. 900/- dated 10-01-1969 is the rent or compensation for the month of January 1969. The landlady has already received security deposit of Rs. 2700/-. Hence, it defies understanding as to for what reason a sum of Rs. 2700/- would be paid by the tenant to the landlady just 8 days after the earlier payment. It is noteworthy that in the months of February & March rent has been paid at the rate of Rs. 900/- for each of those months. If this is the position, if defies understanding as to for what purpose the amount of Rs. 2700/- was paid by the tenant to the landlady on 18-01-1969.

All that the tenant wants to rely upon is the entry in the Pass-Book of the wife of defendant No. 2. Mr. Walavalkar has no answer to the plea that such entries can be had in anybody’s Pass-Book cheap for the dozens. Any person can issue a bearer cheque in the name of a stranger, withdraws the money himself and create an impression in the Pass-Book that the amount was received by the person in whose name the cheque was issued. It is as simple a trick as that. The Pass-Book of defendant No. 2’s own wife will not prove the payment by her to the landlady of the tenant.

This payment of Rs. 2700/- has got, therefore, to be excluded.

Item No. 4 :

The next disputed entry is Sr. No. 20. As regards this entry, Mr. Walavalkar frankly admitted that the payment could not be said to have been proved at all. To the Court’s question as to why, then, this payment was included in the Statement, he had next to no answer. The only conclusion can be that this statement is made not exactly with much of a sense of responsibility. It is not as if that the statement was produced in the lower Court as a summary of the payments claimed to have been made by the defendant. It is just a statement annexed to the petition which is sworn on Affidavit. The petitioner wants the Court to believe that the statement is prepared honestly on the basis of fact. The fact is that this amount of Rs. 900/- is shown to have been paid as a 2nd payment on the same date, 17-4-1970, without any justification, without even mentioning the cheque number, without claiming that the amount was paid in cash is, therefore on the face of it a false statement. In this connection, it is significant to note that Sr. No. 19 represents payment of Rs. 900/- by cheque on the Union Bank of India dated 17-04-1970. The cheque number of that payment is mentioned as 42099. Then disputed entry at Sr. No. 20 also purports to be dated 17-04-1970 for the identical amount of Rs. 900/-. For what reason such payment would be made by the licensee and for what reason the Court will be persuaded to accept this payment is something which defies imagination & understanding. However, since Mr. Walavalkar has stated that this payment has got to be excluded, nothing further needs to be stated about this entry.

Item No. 5 :

The next Item is Sr. No. 37, dated 31-8-1971.

Mr. Rane pointed out that this entry is being relied upon for the first time in this writ petition before this Court. This entry has never been put to the plaintiff/landlady in the cross-examination. The cheque number is not mentioned. Moreover, the earlier payment is dated 27-08-1971 by Cheque No. 133, issued on the Union Bank of India. This payment of 31-08-1971 reveals identical position as Entry Sr. No. 20. In the case of Entry Sr. No. 20 the payment is claimed to have been made on the same date twice. As regards Entry Sr. No. 37, the payment is claimed to have been made just on the 4th day after the previous payment in the same month. The petitioner, defendant No. 2, has produced a Certificate from the Bank for proving the payment to the plaintiff. In the Certificate, this payment is not included. Once again, the payment is claimed in this Court for the first time. But unlike Entry Sr. No. 20, this payment finds no place in any of the pass-books produced by the 2nd defendant. Fortunately for the Court’s time, Mr. Walavalkar has not pressed for inclusion of this payment very seriously.

It follows that this amount of Rs. 900/- will have to be excluded.

Item No. 6 :

The last contentious entry is Sr. No. 99 relating to alleged payment of Rs. 900/- made in cash on 26-6-1978. The claim relating to this entry is nothing but sleight of hand. What happened was that on 17-06-1978 Cheque No. 616 was issued on behalf of the tenant for a sum of Rs. 900/-. This Cheque is on the State Bank of India. It is cleared and credited in the Khata of the plaintiff/landlady in the Union Bank on 26-06-1978. But with obvious inadvertance the Clerk in the Union Bank of India wrote on the pass-book that the monies were received in cash. It is an admitted fact that a cheque dated 17-06-1978 was issued by the petitioner’s wife on behalf of the tenant for a sum of Rs. 900/-. If this was in addition to the cash, alleged to have been paid on 26-06-1978 , the payment made by cheque dated 17-06-1978 would have been also shown in the pass-book of the plaintiff/landlady. Neither the plaintiff’s pass-book nor the pass-book of defendant No. 2’s wife shows such a double payment. Taking advantage of the mistake of the Clerk of the Union Bank of India showing that the amount which was received by cheque was received in cash, a claim is made before this Court that this is an amount doubly paid by the tenant to the plaintiff.

Now, the question would arise as to why a double payment would be made in the month of June 1978 itself. Significantly enough, if there was any doubt about the fact that the entry dated 26-06-1978 is nothing but the payment by cheque dated 17-06-1978, it stands resolved completely by the fact that the cheque dated 17-06-1978 in question is produced. It bears No. 616 and the endorsement shows that it is cleared on 26-06-1978. If the cash payment received and credited in the plaintiff’s Account on 26-06-1978 was in addition to the cheque payment then, surely the pass-book would show two entries : 1st for the payment received by cheque & cleared on 26-06-1978 and the other payment received in cash on 26-06-1978. No such thing finds place in the pass-book. This is the reason why I described this contention as nothing but sleight of hand.

6. All the above mentioned payments, which have been claimed, but which has got to be excluded for the reasons mentioned above, total upto Rs. 9,000/-.

Mr. Walavalkar has also filed in the Court another statement of claim, referred to above mentioning further two payments offered after the date of the notice, viz. Cheque for Rs. 900/- dated 27-11-1978 and Cheque for Rs. 1800/- dated 28-12-1978. For the reasons which will be presently mentioned, those two cheques shall have to be excluded. I may mention here that even Mr. Walavalkar did not quarrel with this proposition that if the earlier arrears are proved, that is to say, if payments claimed earlier are not proved, then the offer of these two payments, which is of a conditional character shall have to be excluded. The statement shows the total amount paid/offered as Rs. 1,11,100. To this has to be added a sum of Rs. 500/- for which credit has admittedly to be given to the tenant on account of the boiler expenses defrayed by himself. He has claimed a total sum of Rs. 1,11,600/-. From this, the two payment of Rs. 2,700/- have to be deducted, because, firstly, they were not payments but were only offers of payment, and secondly, because they were conditional offers they were rightly rejected. The net amount claimed to have been paid by him comes to (Rs. 1,11,600 minus Rs. 2,700) Rs. 1,08,900/-. From out of that the above mentioned item totalling upto Rs. 9,000/- have got to be deducted and if we deduct that amount, the amount paid by the tenant to the plaintiff/landlady comes to the exact figure of Rs. 99,900/- as is pleaded by the plaintiff in her plaint. This shows beyond a shred of doubt that the plaintiff’s claim in the notice as well as in the suit was a correct claim. This shows that on the date of the notice the tenant was in arrears of 7 months, because on 31st October, 1978 the arrears due were Rs. 1,06,200/- whereas he had paid only a sum of Rs. 99,900/-. This Rs. 6,300/- represents arrears of 7 months.

7. It is un-necessary for me to expatiate on the point that the payments made in November and December of Rs. 900/- & Rs. 1,800/- respectively cannot be taken into account, because they were conditional payments. The landlady was directed to credit it only to the months of October and November, whereas the arrears were for the earlier period. The landlady was not bound to accept it at all.

But even assuming that those two payments totalling to Rs. 2,700/- are included, the fact remains that even on the date of the suit, even after taking into account those payments, the tenant was in arrears of 7 months. If this is the position, this decree passed by the lower Court is invulnerable.

Mr. Rane argued that if the arrears were of 7 months, totalling upto Rs. 6,300/- and if the tenant had paid only Rs. 2,700/-, it was a case of short-payment and the landlady was not bound to accept the same and in support of the same he relied upon the judgment in the case of Nandlala Topandas v. R.K. Joshi, 76 Bombay Law Reporter page 703. It has been held in that case as follows :-

“A tenant who is in arrears of rent for a period of six months or more and on whom a notice under sub-section (2) of section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 has been served should, within the statutory period, make payment of the whole amount of arrears of rent demanded in such notice. A mere part payment by a tenant of such arrears of rent so as to reduce the same to less than six months will not take out the case from the purview of sub-section (3)(a) of section 12 of the Act.”
Since this is the judgment of the Division Bench, it is binding upon me. But apart from that position the fact remains that it was also a conditional payment. Hence, that payment cannot be taken into account while computing the arrears at all.

Mr. Walavalkar wanted me to keep on record the argument advanced by him by placing reliance upon section 4 of the Banker’s Books of Evidence Act, 1891.

I have not referred to the argument earlier, because I do not find any substance in it. The section in terms state that the entries in the Books of Account shall be prima facie evidence not only of the existence if such entries and that shall be admitted as evidence of matters, transactions and accounts therein recorded. But the point is that in the present case the entry made in the pass-book of defendant No. 2’s wife will not fasten liability of the payment upon the landlady. Moreover, if there is entry in one pass-book showing debit to the plaintiff/landlady, the landlady’s pass-book should show a corresponding entry. But there is no corresponding credit entry. Above all, the point is that there is any amount of ponderous evidence showing that these entries cannot be true at all. Reliance upon this section 4 is quite mis-placed. However, since the learned Counsel wants me to keep the point on record, I have mentioned the same in my judgment.

As stated at the outset, Mr. Walavalkar has not disputed the position that whosoever may be the tenant, if there were arrears of rent exceeding 6 months, the decree for eviction was inevitable. In my opinion, it is a correct statement of law on the part of the Counsel. In this view of the matter, the decree for eviction passed by the lower Court cannot be interfered with.

8. This leads me to the examination of the other question whether the real tenant was the Company defendant No. 1, or its director, defendant No. 2 or his wife, who is not a party to the suit. As indicated earlier, although this question directly arises in this litigation, the finding about the default in payment of rent by the tenant concerned really deviates the decision on this question, It is only because of the strenuous insistence by Mr. Rane, the learned Counsel for the respondent for judgment even on this question (for reasons which are quite obvious) that I am examining and am giving my considered opinion on this point. It is for the first time in the written statement that defendant No. 2 has come out with the plea that not the Company, defendant No. 1, not even himself but his wife was the original “tenant” (as distinguished from a mere licensee), the contrary statements and stipulations in the Agreement of Leave & Licence notwithstanding. Defendant No. 2 did not stop there. He filed a beautiful application for fixation of standard rent. That application is made not only by the wife of defendant No. 2 alone but also by himself along with his wife. On what basis both of them became tenant overnight is something which defies understanding. In this Court, Mr. Walavaka makes a fair statement that defendant No. 2’s wife was prepared to make an Affidavit that she was not a tenant and that she will not claim any right in respect of the suit premises and that claim on her behalf was wrongly made. Point is that such wrong statements are scattered & sprinkled all over the pleadings and conduct of the 2nd defendant. Not only that he does not make the payment as agreed, but he wants it to be further reduced, even though the landlady is required to pay monies for the expenses required for the flat out of her pocket, through her nose as it were. But since this plea is set up, I must took for its basis in law and in facts.

9. If a benami transaction was recognised in the Law of Lease, this entire basic feature of leases will vanish. I will take a simple illustration: ‘B’ approaches “A’ for lease of his land. ‘A’ has a face set not to lease it to ‘B’. ‘B’ cannot set up ‘C’ as a benamidar to take lease from ‘A’ and contend against ‘A’ in the future that ‘C’ was only a benamidar and that ‘B’ was the real lessee. The lessor’s right to choose the personnel or his lessee is, thus, wholly defeated by such benami transaction. Such transactions, therefore, cannot be countenanced by the law at all.

Moreover, in any event, it cannot be countenanced at least against the landlord. A landlord cannot be told by a 3rd party that when his lessee took the lease from him, he was in fact cheating him and that the real lessee was the 3rd party and that the lessee was a mere benamidar. The lease would be voidable on this account itself, because it is brought about by such fraud. The lessor never wanted it to give to the 3rd party and by practising fraud on the lessor the 3rd party proposes to take that lease. It will be wholly a voidable transaction. As to what will happen if the lessor has no objection to the benami nature is not for me to consider at this stage. I keep my fingers crossed on the question whether a person can tell rest of the world, other than the landlord, that he is the real tenant in respect of certain property belonging to the landlord and not the person shown as the lessee in the Lease Deed executed between the lessor and the person shown in the lease as a lessee. Against the landlord in any event, such a contention is just not tenable.

I may hasten to observe that there may be cases where the landlord himself may be a party to such a benami transaction, that he knows that the person named as a lessee is only a benamidar and that he was agreeable to the name of the real tenant being concealed behind the screen of the benamidar. I do not wish to decide as to what would be the legal position in such a case. Point is that in the absence of any such plea or evidence it would not be open for any person to go on cocking snoozes at the landlord telling him that he had been made a fool of and that the real tenant was somebody else.

Such situation will not arise in the case of transfer such as sale or gift. ‘A’ may not want to sell his land to ‘B’ but may have no objection to selling it to ‘C’ and may sell it to ‘C’ ‘B’ may then purchase it from ‘C’ and none could object. That thing which can be done directly can always be done also indirectly. But that which cannot be done directly can also not be done indirectly. This is one of the basic principles of the law.

10. This entire question has been examined by the lower Appellate Court in para 23 of his judgment and the lower Court has relied upon the judgment of the Patna High Court reported in MANU/BH/0019/1978 : AIR1978Pat91 Ranvijaya Shahi v. Bala Prasad Motani.

With respect, I am in complete agreement with the proposition of law formulated by the learned Judge of the Patna High Court.

11. The question has been dealt with by the Patna High Court as well as by the Supreme Court also in the context of the provisions of section 92 of the Evidence Act. Reliance in that behalf is placed upon the judgment of the Supreme Court in MANU/SC/0490/1976 : AIR1976SC2400 Niranjan Kumar and other v. Dhyan Singh and another.

In that case, no doubt the Supreme Court has observed that a person named in the lease document as tenant was acting as agent for his principal. But a benamidar is not an agent. The concept of benami transaction is something much more than a transaction of agency.

Moreover, in the present case defendant No. 2 was a director of the Company. Defendant No. 1 would be the agent of the Company. The Company named as the tenant would not be his agent. This is apart from the fact that the plea of any kind of agency is not taken by defendant No. 2 at all. In my opinion, the implicit ratio of that judgment is fully applicable to the present case. The case made out before the Supreme Court for getting over the provision of section 92 of the Evidence Act has not been made out by defendant No. 2 in the present case. The Supreme Court has held in that case that section 92 is not a bar for examining whether the person mentioned in the Rent Note as a lessee was a real lessee or not since there can be contemporaneous of subsequent oral agreement between the parties by virtue of which the rights and liabilities of the tenant under the lease are allowed to be made over to some other person. The learned Judges of the lower Courts were right in observing that no such case has been made out in the instant case. But that judgment was dealing mainly with the position under the Evidence Act. We are considering here the position under the substantive law, emanating, from the Transfer of Property Act. In my opinion, the view taken by the Patna High Court in this connection is more apposite.

The conclusion drawn by the lower Appellate Court that in the facts and pleadings in the present case it was not open for defendant No. 2 to set up the plea that his wife was the tenant and not the Company/defendant No. 1, is the correct view.

12. But even assuming that it is open for defendant No. 2 to setup any such plea of benami transaction, point is that in the instant case it is a sham plea on the face of it. This entire question is examined by the lower Court exhaustively in Paras 7 to 17 of his judgment. The discussion and examination is so exhaustive that I would not be really justified having a second look at the appreciation of evidence, sitting as I am in my writ jurisdiction. But the entire exercise is obviated by virtue of the frank statement made by Mr. Walavalkar before me, as referred to above. Moreover, on his own showing, defendant No. 2 was not the tenant/- licensee of the suit premises. The written statement states that the original tenant (as distinguished from licensee) was defendant No. 2’s wife. I have mentioned above the change of stand and stance by this defendant No. 2 as suits his purpose. It is impossible to hold even on facts that defendant No. 1 was only a benamidar and that defendant No. 2 or his wife was the real licensee/tenant. It follows that there was no jural relationship between the plaintiff on the one hand and defendant No. 2 or his wife on the other. The fact that rent was paid by cheque, either by defendant No. 2 or by his wife, is neither here nor there, because admittedly, both of them were directors of the Company, defendant No. 1, who was named as the licensee in the relevant licence agreement. I have, therefore, no hesitation in holding, unequivocally, that the plea of defendant No. 2 as regards his wife being the real tenant or for the matter of that, he himself being a tenant, a real tenant, is a sham plea.

13. If this is the position it follows that submission to the eviction decree on the defendant No. 3, who stepped into the shoes of defendant No. 1, puts an end to the entire litigation so far as the trial is concerned. I know that the real agony of the decree-holder starts only after securing the decree. But that is something about which nothing needs to be stated at this stage. The fact remains that if defendant No. 2 is not the tenant or the licensee, the present writ petition filed by him is totally without any locus.

The petition is liable to be dismissed on that ground as well.

14. Civil Application No. 3293 of 1986 is filed by the respondent/landlady for leave to amend the plaint with a view to incorporate therein the plea that since defendant No. 1/Company has been amalgamated with Company/defendant No. 3, pending the suit, and since neither defendant No. 2 nor his wife is the Director of the Company/defendant No. 3, defendant No. 2 has no right whatsover to remain in possession of the suit premises.

In view of the view taken by me, as mentioned in the earlier Paras, it is un-necessary for me to pass any order on this Civil Application and hence the Civil Application shall stand disposed of with no orders on the same.

By my separate order, I have already appointed a Receiver to take position of the suit premises. The Receiver shall continue in possession of the suit premises and defendant No. 2 shall occupy the suit premises, but strictly as the agent of the Receiver. The Receiver shall not recognise the possession of any person other than that of defendant No. 2. The petitioner, defendant No. 2, has already made a statement before the Court, through his learned Counsel, that an Affidavit shall be filed by his wife, Mrs. Shanti Shastri, that she never had and does not have any right, title and interest in the suit premises, nor is she in possession of the suit premises, except in the capacity as member of the family of defendant No. 2. I have already given a week’s time to Mr. Walavalkar to file the necessary Affidavit. The Affidavit shall be filed on or before Monday, the 26th instant and a copy of the same shall be handed over to the Receiver. If no such copy is given to the Receiver, the Receiver shall report the matter to this Court forthwith.

6 week’s time is given to the petitioner, defendant No. 2 to obtain an appropriate order of stay from the Supreme Court. If no such stay is obtained by the petitioner from that Court, the Receiver shall take possession of the suit premise from his agent, viz,, the petitioner/defendant No. 2 and shall put the plaintiff/landlady in possession of the same.

Liberty to the parties to move this Court for remove of difficulties, if any.

By this order, the petition stands disposed of. However, it shall be placed before this Court for directions, as regards the direction to the Receiver, on Tuesday, the 27th instant. The Receiver is directed to remain present in the Court on that day.

The rule earlier issued stands discharged.

15. So far as the question of costs is concerned, if there existed any case where special costs ought to be ordered against the petitioner, the present one is that case. The premises are situate in one of the most prestigious localities in the city of Bombay. Not only today, but even at the time when the premises was given on leave and licence to the Company, defendant No. 1 Company leases used to be given for the return of not hundreds but thousands of rupees. It is a matter of common knowledge that when these proceedings were instituted in the year 1978, the returns have sky-rocketed not to thousands but tens of thousands of rupees and the present defendant, really speaking, has no concern with the suit premises whatsoever, except that he was staying there as a Director of the Company, defendant No. 1. He raised all sorts of pleas such as that his wife was a tenant, that he himself was the tenant and what not. The premises which would have brought to the plaintiff thousands of rupees by way of return were in his possession for the paltry amount of Rs. 900/- per month and his avarice impelled him to deny to the plaintiff even that much of amount. He filed a Standard Rent Application and got the rent slashed down to Rs. 500/- per month. The plaintiff has placed before this Court the Statement from the Society which shows that an amount vastly larger than the amount of Rs. 900/- P.M. is required to be sent by the plaintiff for the Society’s charges and various other expenses. This means that for quite a few years from the date of the filling of the suit, the plaintiff has been required to maintain this defendant No. 2 and his wife in the premises at their own costs by paying large amounts for maintenance of the Flat in the Society running into thousands. The defendant has had no compunction about it at anytime. All the time his belief has been that it is a great privilege that he has been conferring upon the plaintiff by staying in the suit premises as if it is their bounden duty to maintain him and his family, come what may by spending vast amounts so that he can stay in the Flat with comfort. When the question came as to what amount he should pay after the decision on this petition, even Mr. Walavalkar stated that Rs. 2000/- would be a reasonable amount that should be paid by this petitioner to the plaintiff. As a matter of fact, the amount that ought to be paid as mesne profits would far exceed this amount. But it was at the request of Mr. Walavalkar himself that I fixed the amount to be paid by him as the Receiver’s agent for a period of 6 weeks from the date of the order at the rate of Rs. 2000/- per month only. The defences taken by him are of the most sham and dishonest character; in one breath he says that his wife was the tenant, in another breath, he says that he himself was the tenant. He filed a Standard Rent Application in which both of them have been shown as the tenants. By what law this happens and by what law this should be tolerated is anybody’s guess. The actual amount that the plaintiff must have been required to spend over this litigation can never be recompensed actual order of costs, but it must have gone in tens of thousands.

In these circumstances, the minimum order of costs that should be passed is that the petitioner shall pay a sum of Rs. 3,000/- as costs of this petition. I am aware of the fact that these costs are also most unrealistic, but, for the present. I do not want to deal with that issue in this petition.

The petitioner shall pay the costs of this petition which are quantified at Rs. 3,000/- as Advocate’s costs. The other costs shall be taxed by the office of this Court according to law and rules.

The order of costs passed by the lower Court is not in any way disturbed by this order.

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