IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4268 OF 2019

NILESH LAXMICHAND AND ANOTHER   ...  APPELLANT(S)

VERSUS

SHANTABEN  PURUSHOTTAM  KAKAD   (SINCE DECEASED) BY LRS       ... RESPONDENT(S)

J U D G M E N T

K.M. JOSEPH, J.

1. This appeal by special leave is directed against

the Order dated 24.09.2018 passed by the High Court of

Bombay in Civil Revision Application No. 29 of 2018. By

the impugned Order, the Revision Application filed by

the appellants challenging the Order of the Appellate

Bench of the Small Causes Court at Bombay in Appeal No.

19 of 2013 has been dismissed. Thereby the result is

that the suit filed by the respondents for eviction of

the  appellants  under  Section  16(1)(c),  16(1)(e)  and

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16(1)(n)  of  the  Maharashtra  Rent  Control  Act,  1999

(hereinafter referred to as ‘the Act’, for short), has

been decreed against the appellants.

2. The original RAE Suit No. 1681 of 2006 was filed by

one  Shantaben  Purushottam  Kakad  (the  respondents  in

this  appeal  are  the  legal  representatives  of  the

original  aforesaid  plaintiff).  The  rented  premises

consisted  of  a  shop  on  the  ground  floor  of  the

building. The case of the plaintiff, inter alia, is as

follows (parties will be referred to in the position

before the Trial Court):

The first defendant took the premises on rent

for  the  purpose  of  carrying  out  business  of

bookshop and he, the first defendant, has, since

the  inception,  been  carrying  on  the  business  of

bookshop in the name and style “Chetna Book Store”.

In about July, 2005, the first defendant suddenly

closed down the business of bookstore, and since

then, is not using the premises for more than six

months prior to the suit, for the purpose for which

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it was let and that too without reasonable or any

cause.  It  was  further  stated  that  the  first

defendant had sublet the premises to third party.

As regards the ground of nuisance, it was stated

that  the  defendants  have  started  business  of

preparation  and  sale  of  foodstuff  from  the  suit

premises  which  does  not  have  suitable  layout  or

ventilation for the same. It is further stated that

as  a  result,  there  was  pollution  and  smell  and

smoke and this caused lot of nuisance and annoyance

for  the  plaintiff  an  old  landlady  and  other

occupants  of  the  building.  This  business  is  now

closed down. It is further stated that the business

of garments was also started and closed down and

that  the  defendants  have  now  given  the  suit

premises  to  someone  else.  It  is,  on  these

allegations, the suit came to be filed.

3. A  Written  Statement  came  to  be  filed  by  the

appellants. The first appellant is actually the son of

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the second appellant. Their case is,  inter alia, as

follows:

In the year 1971, the second defendant, who is

the father of the first defendant, approached the

original  landlord,  the  husband  of  the  original

plaintiff, for taking the suit premises on rent. On

finalisation  of  negotiations,  the  premises  were

taken on rent somewhere in the year 1971. At that

time,  the  first  defendant  was  a  minor  aged  five

years.  The  premises  were  taken  for

commercial/business purpose to be carried on by the

second  defendant  but  the  second  defendant,  for

certain spiritual reason and on the advice of the

Astrologer,  obtained  receipt  in  the  name  of  the

first defendant. The rent receipts continued to be

issued in the name of the first defendant. After

obtaining the building on rent, the second defendant

used the rented premises for selling books in the

name and style “Chetna Book Store”. Second defendant

obtained  necessary  licence  under  The  Shops  and

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Establishments  Act.  The  second  defendant  was  not

able to get good business and sufficient earnings.

He started business of readymade garments for some

time.  That  also  did  not  succeed.  Thereafter,  he

started the business in the name and style “Shree

Krishna Food Corner”. However, though he applied,

the Health Department did not issue the licence. The

business  in  fast  food  was  stopped  and  again  the

business  of  selling  books  and  stationery  was

continued. The case of sub-tenancy was denied, so

also the case relating to nuisance.”

4. The Trial Court relied upon the deposition of PW1

to find that he admitted that he did not know when the

tenancy  was  created,  whether  any  negotiations  took

place and on what terms and conditions, the tenancy was

created. The suit premises, was found to be let out in

the year 1971 when the original landlord was looking

after the affairs. The court relied upon the deposition

of the second defendant as DW1 as to the reasons why

the rent receipt came to be issued in the name of the 5

first defendant. The registration certificate under The

Shops and Establishments Act was found to be in the

name  of  second  defendant  for  the  business  of  book

selling and food centre. These are for the period from

1988 to 2003 and for the period from 2006 to 2007. The

lack of objection from the original landlord in the

year  1971  to  the  business  being  carried  out  by  the

second defendant, was noted. DW1 has deposed that the

first defendant was five years old in the year 1971.

Relying upon Section 11 of the Indian Contract Act,

1872 and noting reciprocal obligations is a cast on a

lessee, tenancy in favour of the minor, was ruled out.

From the inception, the second defendant was found to

be  in  exclusive  possession  without  interruption.

Tenancy was found to be created in favour of the second

defendant, though the rent receipt stands in the name

of the first defendant. It was found that defendants

proved that second defendant was then using the suit

premises for selling books by obtaining license under

The Shops and Establishments Act for the year 2006 to

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2007 and it was found that it could not be said that

defendant was not using the premises for the purpose

for which it was let for the continuous period of six

months immediately preceding the date of the suit. The

Trial court did not find favour with ground of illegal

subletting.  Regarding  the  illegal  subletting  to  Mr.

Raja, the details were found wanting.  

5. As regards ground of nuisance, it was found that

the smell and smoke of preparing foodstuff may cause

nuisance and annoyance if the same are on a large scale

and for a continuous period. There are 16 to 18 shops

on the ground floor. The original plaintiff did not

enter the witness box. PW1 resided elsewhere and he

occasionally  visited  the  premises.  No  adjoining

occupier was examined as witness to support the case of

nuisance. The particulars, as to what time in a day the

defendants particularly prepared foodstuff and on what

scale,  etc.,  was  not  given.  Finding  all  the  three

grounds not made out, the suit was dismissed.

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6. The Appellate Court refers to the rent receipts in

the  name  of  the  first  defendant  and  found  that

nullifies the evidence of DW1 to the effect that the

premises was taken in the name of the second defendant

since inception. It was, therefore, found that there

was no question of induction of the second defendant

since  inception.  The  reason  regarding  creation  of

tenancy in the name of the first defendant being on the

advice  of  an  Astrologer  or  Numerologist  was  found

unbelievable as no such Astrologer or Numerologist, on

whose  advice  the  same  was  done,  was  examined.  Two

letters dated 30.10.2005 and 01.12.2005 written by the

defendants were relied upon to conclude that the second

defendant had absolute control over the suit premises

and  that  he  was  in  possession  of  the  premises.  As

regards  non-user  of  the  premises,  evidence  of  PW1

showed  that  in  or  about  2005,  the  first  defendant

suddenly closed down the business and the premises was

locked for some time and first non-use was commenced in

July, 2005. Thereafter, plaintiffs received two letters

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on 30.10.2005 and 01.12.2005 from the defendants. Under

those  letters,  the  second  defendant  intimated  the

original  plaintiff  that  there  was  leakage  in  the

premises causing nuisance and due to which the suit

premises  have  become  unwholesome  and  in  a  filthy

condition.  DW1  in  his  evidence,  it  was  found,  has

deposed as having run the Chetna Book Store for quite a

number of years. Then he switched over to business of

readymade garments. Thereafter, he started business of

Shree  Krishna  Food  Corner.  Again,  business  in  Book

Centre was started. The Shops and Establishments Act

showed that the business was carried on from 1988 to

1990, 1991 to 1993. The license was restricted to that

period. The subsequent license is for the period from

2006 to 2007. This meant that there was a break in 1993

and business was started again in 2006-2007. During the

period 1993 to 2006, other businesses like selling of

readymade garments and foodstuff centre was going on at

the  suit  premises.  The  suit  was  instituted  on

19.10.2006.  On  the  basis  of  new  registration

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certificate issued on 30.11.2007, the defendants have

come out with a case that firm by name Chetna Book

Centre was being carried out since 2006. It was found

that there was a gap of 13 months in between the date

of  the  suit  and  registration  of  the  new  firm.  This

establishes non-use, it was found.

7. The Appellate Court found that the businesses of

book stall and foodstuff are diametrically opposite to

each other.  The former is carried out during the day

and later goes till late hours of night. As a result of

that it can safely be said that starting of food corner

in  all  probabilities  could  have  resulted  in  causing

nuisance and annoyance to the occupants of the suit

building, it was found. The evidence of PW1 was relied

on to find that he used to take a round of the premises

and  that  he  was  affected  whenever  he  visited  his

mother,  was  found  believable  and  nuisance  was  found

established.

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8. Regarding  subletting,  it  was  found  there  was  no

plea  of  protected  license.  The  court  found  that

subletting was duly established. Appeal was allowed.

9. As stated earlier, the High Court has affirmed the

findings of the Appellate Court.

10. In  regard  to  the  contention  that  who  was  the

tenant, it was found that the rent receipt showed that

tenant was the first defendant. It showed that second

defendant had taken the tenancy in the name of first

defendant for his benefit. Secondly, it was found that

after attaining majority, the first defendant has not

rescinded the contract. Once it was found that first

defendant was tenant, it was for second defendant to

establish in what capacity he was in possession. It was

found that second defendant was not in possession prior

to 01.02.1973, and therefore, could not claim to be a

protected sub-tenancy or protected tenancy.  

11. Regarding  ground  of  non-user,  the  High  Court

affirmed the findings of the Appellate Court.

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12. Regarding nuisance, the High Court relied on the

evidence of PW1. Noticing the limitations under Section

115  of  Code  of  Civil  Procedure,  the  Revision  was

dismissed.

13. We have heard the counsel for the parties.

14. Learned counsel for the appellant would submit that

none of the grounds have been made out. First defendant

was a minor in 1971. On account of the belief and on

the  advice  of  an  Astrologer  the  suit  premises  were

taken on rent in the name of first defendant who was

only five years of age. There could not be any tenancy

in  his  favour.  Second  defendant  was  managing  the

business. License was in his name. There was neither

illegal sub-tenancy nor nuisance. The case of non-user

is also sought to be rebutted. Learned counsel for the

respondents  supported  the  Order.  He  also  submitted

quite  clearly  that  the  case  of  non-user  is  clearly

established at any rate and he prayed for the rejection

of the appeal.

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15. As regards the case of nuisance, Section 16(1)(c),

inter alia, declares that conduct which is a nuisance

or annoyance to the adjoining or neighbouring occupier

by the tenants or others under him, is the ground for

eviction.  The  nuisance,  apparently,  is  attributed  to

the period of time when business of fast food was being

carried out. We have noticed the findings of the Trial

court. The evidence of none of the neighbours, be they

any  of  the  shopkeepers  in  the  building  itself  or

otherwise,  is  forthcoming.  Details,  as  such,  thereof

are not seen established. The original plaintiff who

resided in the same building has not given evidence.

The evidence essentially constitutes of the deposition

of  PW1,  the  son  of  the  original  plaintiff  and  the

complaint in writing. Admittedly, he does not reside in

the  building.  He  resides  elsewhere.  No  doubt,  his

evidence that when he came to visit his mother and he

would go around, is relied upon to conclude that he has

experienced nuisance and that nuisance is established.

We  would  think  that  having  regard  to  the  serious

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consequences  which  arise  out  of  ground  of  nuisance,

being  established,  the  facts  of  this  case  may  not

justify eviction of appellants on the said ground. In

fact, the High Court has not independently gone into

the  matter  and  it  has  affirmed  the  findings  of  the

Appellate Forum. These findings, we have adverted to.

We do not think that there was justification for the

Appellate court or the High Court to sustain eviction

on the ground of nuisance.

16. As  regards,  the  question  whether  there  is

subletting, it is necessary to notice the plea relating

to subletting. It is to the effect that defendant no.1

has unlawfully sublet, assigned or transferred to third

party for unlawful consideration. It is further alleged

that plaintiff’s son Anil met the person who confirmed

to him that it has been given to him on license basis.

It is also stated in paragraph 5 that the defendants

have now given the suit premises to someone else. From

this, we take it that the case of subletting is built

around the act of putting the third party, who is named

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as Mr. Raja, in possession. There is no case, as such,

set up that there is illegal subletting by defendant

no.1  putting  defendant  no.2  in  possession  and  the

allegation is specific, as noted above.  

17. Regarding this allegation, we are of the view that

the finding, given by the Trial Court, correctly brings

out the position found in fact. The details, as to when

Shri Raja was put in possession, as to when Shri Raja

was found in possession, whether this possession was

exclusive, the purpose for which Shri Raja was using

the  premises,  are  neither  pleaded  nor  proved.  The

alternate case of subletting, apparently set up at the

stage of argument, is that there is unlawful subletting

to the second defendant. We have noted the pleading.

The pleading of subletting is about subletting to a

third party which was rejected by the Trial Court. In

the Appellate Court, such subletting is found  qua the

second appellant. Having regard to the facts, beginning

with the fact that first appellant was only nearly five

years old, the registration was in the name of second

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appellant, the nature of the relationship between the

appellants, viz., the second appellant is the father of

the first appellant and also the case which was pleaded

in the suit, we are of the view that finding of illegal

subletting cannot be sustained.

18. The remaining ground is a ground relating to non-

user. Section 16(1)(n) of the Maharashtra Rent Control

Act, 1999, reads as follows:  

“16(1)(n). that the premises have not been used without reasonable cause for the  purpose for  which they  were let for a continuous period of six months immediately preceding the date of the suit.”  

19. The following elements must be established under

Section 16(1)(n) - the premises must have been let out

for a particular purpose; there must be non-user by the

tenant for the purpose; the non-user must be without

reasonable cause; the non-user must be for a continuous

period of six months immediately preceding the date of

the suit.

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20. Suit  in  this  case  was  instituted  on  20.10.2006.

therefore,  it  is  incumbent  on  the  respondents  to

establish that the premises were not been used for a

continuous  period  of  six  months  which  means  from

20.04.2006 till the date of institution of the suit.

21. The pleading of the plaintiff is, it was let out

for the purpose of business of book shop. It is further

case of the plaintiffs that about in or about 2005, the

first appellant suddenly closed down the business in

book store, and since then, till the date of the suit,

was  not  using  the  suit  premises  for  more  than  six

months. It is also stated, in paragraph 5, that the

defendants have started the business of preparation and

sale of foodstuffs. As a result of tremendous pollution

and  smell  and  smoke,  it  caused  lot  of  nuisance.

Complaints were made and this business was closed. The

business  of  readymade  garments  was  also  started  and

closed  down.  This  is  in  short,  the  pleading  of  the

plaintiff.  

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22. The defendants, on the other hand, set up the case

that  on  acquiring  the  premises  for  the  business

purpose,  i.e.,  selling  of  books  and  stationery,

defendant no.2 ran the business for a number of years.

Instead of aforesaid business, defendant no.2 started

doing business of readymade garments and he did not

succeed. Then he started fast food business and the

same also could not be continued because no license was

issued  for  running  the  same  business.  He  instead

started again the business of selling books under the

name  and  style  “M/s.  Chetna  Book  Centre”  and  he

continued  to  do  the  said  business  from  the  suit

premises till date.

23. What  stands  out  from  the  aforesaid  pleadings  is

that  the  second  defendant,  after  taking  over  the

premises under the lease, has started the business of

selling books. Thereafter, from the pleadings of both

the  plaintiff  and  defendants,  it  is  clear  that

appellant  also  carried  on  the  business  in  readymade

garments  and  also,  still  further,  business  in  fast

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food. As to when the other businesses were carried on,

is not clear from the plaint or written statement.  

24. The case sought to be set up before this Court

would, however, reveal the following:

It  is  the  appellant’s  that  the  book  stall

business was running slow. It was in the year 2005

that  the  second  appellant  decided  to  start  new

business. It is their case that the business in

clothes was closed down immediately after it was

started. Thereafter, in 2005, we must indeed find

that the business of fast food was started. The

fact that the business of fast food was being run,

is clearly established by one circumstance and that

is the complaint dated 27.10.2005 given regarding

conduct of the business of fast food. This is the

case of the respondents. Therefore, the fast food

was also started and it apparently was closed down.

Thereafter, it is to be noticed that according to

the appellants, the second appellant started again

business of book stall in the name and style as

“Chetna Book Corner” in the year 2006 onwards (see

Ground ‘F’ in the Special Leave Petition). It is

further stated that as the license was originally

renewed  in  the  name  of  Shree  Krishna  Fast  Food

Corner, the Municipal Corporation did not change

the name later on and informed the second appellant

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that it will be changed at the time of renewal.

Therefore, it is quite clear that the appellant’s

case must be taken to be that till 2005, business

was  been  carried  out  in  books  from  the  suit

premises.  Interestingly,  the  plaintiff  also,  in

paragraph 3, would state that in or around July

2005, the defendant no.1 suddenly closed down the

business of book store. Therefore, it is clear, as

day light, and it can be taken as established that

the premises was being used for running the book

store  and  it  continued,  even  according  to  the

plaintiff, till July 2005. This is also the stand

taken by the appellants, as we have noted. In quick

succession, the business in garments was started

which  was  short  lived.  Equally  business  in  fast

food was conducted and the same was also stopped.

25. We must remind ourselves that the requirement of

Section 16(1)(n)  of the Maharashtra Rent Control Act,

1999 will be satisfied if it is established that for a

period of six months continuously from 20.04.2006 till

the date of institution of the suit, the suit premises

were not used by the tenant without a reasonable ground

for the purpose for which it was let out. Since even

the appellants do not have a case that the appellants

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were carrying on the business in readymade garments or

fast food during the period, the only business that the

appellants can lay store by, is the business in books.

26.  The contention of the appellants would appear to

be that the Appellate Court has proceeded on the basis

that  the  registration  was  obtained  on  30.11.2007.

Appellate Court further finds that there is a gap of 13

months from the date of the institution of the suit and

the  date  on  which  the  registration  was  obtained  on

30.11.2007. It is the case of the appellants that what

the provision in question requires is that there must

be non-user by the tenant for the period of six months

immediately and continuously prior to the institution

of the suit. The period of 13 months, if calculated

from 30.01.2007 backwards, in point of time, would be a

period  commencing  from  30.10.2006.  The  contention

appears  to  be  that  the  cause  of  action  is  the

continuous non-user for six months prior to the use.

Therefore, the relevant question has not been posed and

answered, appears to be the argument of the appellants.

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27. Let us consider the registration certificates which

have been produced. The registration certificate, under

the Bombay Shops and Establishments Act, 1948, is seen

to be certified on 9th day of September, 2005. It is in

the name of the second appellant. Under the heading

“Nature of business”, it is stated “Sale of books, Sale

of snacks, juice, cold drink and ice cream”. The name

of the establishment is known as “Chetna Book Centre”,

“Shree Krishna Food Corner”.

28. We can say the date of receipt, as far as 2005 is

concerned,  is  06.09.2005.  Still  further,  there  is  a

reference to receipt dated 09.01.2007. Under the Bombay

Shops and Establishments Act, under Section 7(2)(A), a

registration certificate shall be valid upto the end of

the year for which it is granted. As it stands now, it

is valid for a period of twelve months from the date it

is granted or renewed. This is after the substitution

by Act 25 of 2013. Therefore, the provision, which is

relevant, is the previous provision, under which, as

noted, the registration certificate would be valid upto

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the  end  of  the  year  for  which  it  was  granted.

Therefore, even going by the registration certificate

produced and under the Act, we would think that as it

has been issued on 09.09.2005, it came to an end by the

end of the year. The word “year” is defined in Section

2(32) as meaning that “a year commencing first day of

January”. Thus, even the appellant apparently paid the

fees  for  renewal  of  the  registration  only  on

09.01.2007. He did not pay any fees for renewal of the

registration during the year 2006. On 30.11.2007, no

doubt, registration certificate was issued. The result

is that during the year 2006, it can be concluded that

there was no registration for the business either in

books or fast food.  

29. This  apart,  the  fact  that  under  the  Shops  and

Establishments  Act,  it  is  undoubtedly  true  that  a

person having a shop must get it registered. In other

words, carrying on a shop or establishment, as defined

in  the  Act,  without  registration,  would  make  it

illegal.  The  fact  that  there  is  a  registration,

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however,  would  not  be  sufficient  to  establish  that

there is use of the premises. In other words, even if a

person has registration, that by itself would not mean

that the tenant is actually using the premises for the

purpose for which it is rented out to him. Actual use

of the premises can be established by various other

circumstances like electricity bills, payment of wages

to employees if there are employees, evidence relating

to transactions of the business which is carried on

etc. No doubt, the burden actually is on the landlord

to establish the non-user. But since, in this case, it

would  appear  that  there  is  no  registration  for  the

period, it shows that the appellants could not have

lawfully conducted any business in the suit premises.

There is, no doubt, the evidence of PW1 also.

30. Appellants  have  attempted  to  produce  additional

documents. The document is a notice issued for keeping

open the shop on a Monday on 11.09.2006. It is also

stated,  fine  was  paid  of  Rs.4,000/-.  We  find

considerable  substance  in  the  contention  of  the

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respondent  that  additional  evidence  can  be  admitted

only  if  the  grounds  of  Order  41  Rule  27  are

established. We find no merit in the said application.

Consequently, it fails and it is dismissed.  

31. We would think that in the circumstances of the

case, having regard to the fact that two courts have

found the ground of non-user under Section 16(1)(n) of

the Maharashtra Rent Control Act, 1999 established and

the facts as noted by us, particularly in an appeal

after Special Leave, we do not deem it fit to interfere

with the judgment of the High Court. The appeal shall

stand dismissed.  

.............J.                    (ASHOK BHUSHAN)

.............J.                                          (K.M. JOSEPH) New Delhi, May 08, 2019.  

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