Prabhakar Tularam Vinchurkar vs Dev Ashish Co-operative Housing Society and another

G.A. Paunikar, J.—The Additional Small Causes Court, Nagpur granted a decree for possession, arrears of rent and mesne profits along with costs of the suit arid an inquiry into future mesne profits from the date of suit till delivery of possession in favour of the plaintiff against the defendant-tenant, Prabhakar in Civil Suit No. 1522/1976; Krishna in Civil Suit No. 1427 of 1976; Balaji in Civil Suit No. 1521 of 1976; Onkar in Civil Suit No. 1031 of 1976; Nilkanth in Civil Suit No. 1648 of 1976 and Narayan in Civil Suit No. 1425 of 1976 vide judgment and decree dated 15-9 1982. The defendant in each of these cases respectively has come up with revision application numbered respectively as above, challenging the said judgment and decree.

The facts in each case are similar and identical except rate of rent and description of the suit premises. The learned Counsel for the applicants in all these revision applications Shri P. G. Palshikar stated that he wants to restrict himself to only a legal challenge to the decrees and that is "whether the defendants-tenants are disentitled to take the plea of tenancy being void for want of compliance of Clause 22 (1) of the Rent Control Order, 1949 in ejectment suits before the Civil Court filed by the plaintiff landlord on the basis of quit notice u/s 106 of the Transfer of Property Act based on prior permission of the Rent Controller under Clause 13 (1) of C. P. and Berar Letting of Houses and Rent Control Order, 1949 obtained by the plaintiff-landlord in proceedings before Revenue Authorities, which were contested by them He did not challenge the decrees on any other grounds or on merits. All the above mentioned revision applications are, therefore, being disposed of by this judgment.

The undisputed facts are that the suit block in each case forms part of a Chawl bearing Corporation House No. 104, situated on Nazul Plot No. 99, Farm-Land Layout, Ramdaspeth, Nagpur. Separate block is in occupation of each of the tenants. The rate of rent paid by each tenant is admitted. The original plaintiff Shakuntalabai Dhote gave separate quit notice to each of the tenants, terminating his tenancy and filed separate suits for ejectment against each of them in Small Causes Court, Nagpur. These suits came to be dismissed on the defence raised by these tenants, that the suit premises are governed by the provisions of Rent Control Order and hence without prior written permission of Rent Controller under Clause 13(1) and quit notice based on such permission, the claim of the landlady for ejectment of these tenants was not maintainable. She then filed civil revision application against the judgment and decree dismissing her suit in this Court and all these revision applications were also dismissed. Thereafter the landlady filed separate proceedings against each of the tenants before the Rent Controller, Nagpur for permission to issue quit notice to him. The permission was granted by the Rent Controller in all the cases against tenants. The tenants preferred appeals before A. D. M., Nagpur (with Rent Control Appellate powers) and these appeals were also dismissed and the orders of Rent Controller were confirmed. The tenants then challenged the orders of Appellate Authority in writ petitions in this Court and the writ petitions came to be dismissed. Thus the orders of the Rent Controller became final and conclusive. It is pertinent to note that the tenants in any of the cases before the Rent Controller never raised the plea of void tenancy nor challenged the relationship of tenant and landlord on any of the grounds but submitted to its jurisdiction. They also did not challenge the permission of the Rent Controller on the said grounds either in appeals before A. D. M. or in writ petitions in High Court. They thus acquiesced in the revenue proceedings throughout. As stated above two rounds of the litigation are over. The landlady had then to start the third round of litigation. She sent quit notice to each of the tenants. None of the tenants replied to the quit notice. She then filed separate suit against each of the tenants, claiming possession, arrears of rent and damages. The name of the plaintiff Society came to be substituted in place of plaintiff Shakuntalabai, as this Society purchased the Chawl during the pendency of the suits on or about 4-5-1981 vide registered Sale Deed executed in its favour by her and the Society as plaintiff was allowed to continue the suit.

The defence of each of the defendants in all the suits was that the contract of tenancy was void because the tenancy was created in contravention of Clause 22 (2) of C. P. and Berar House Rent Control Order, 1949 without intimation to House Allotment Officer. The order of the Rent Controller was, therefore, without jurisdiction. The quit notice based on such permission is non-maintainable. They contended that permission obtained by the plaintiff Shakuntalabai is of no avail to the Society plaintiff. They further contended that the Small Causes Court has no jurisdiction to entertain the suits as the question of title was involved in the suits.

The learned Small Causes Court after appreciating both oral and documentary evidence on record held that the plea of void tenancy is not open and available to the defendants as they failed to raise this issue before the Rent Controller at the earliest stage or even upto the High Court and they are estopped by law from raising such plea. He further held that plea of void tenancy is not a pure question of law but it is a mixed question of law and facts. Relying upon the principles laid down in case of Manibhai Haribhai Parmar and others v. Manohar Chandulal Balwani 1982 Mh. L J 338, he held that the burden to prove assertion was on defendants and the defendants failed to prove it. He further held that the permission granted by the Rent Controller cannot be said to be without jurisdiction. On the contrary it is final and conclusive and binding on the defendants. He also held that the plaintiff society stepped in the shoes of Smt. Shakuntalabai by virtue of said purchase of the suit property from her and is entitled to proceed in the cases as owner of the property in place of its vendor Shakuntalabai. He held that no question of title at all was involved in these suits. He also held that permission of the Rent Controller obtained by Shakuntalabai enures for the benefit of subsequent purchaser on the basis of ruling reported in case of Zafar Hassan v. Jatiram 1977 Mh L J Note No. 84, Page 49. In this view the learned Additional Small Causes Court decreed the claim of the plaintiff Society for possession, arrears of rent and mesne profits along with costs of the suit and an inquiry into future mesne profits from the date of suit till delivery of possession, against each of defendants in suits aforesaid vide judgment and decree dated 15-9-1982. All the defendants, in each of the suits, aforesaid have filed these revision applications, challenging the said judgment and decree.

That the learned counsel Shri P. G. Palshikar did not challenge the decrees on merits. He restricted himself to the single challenge. He contended that only because the defendants had not taken the plea of void tenancy before the Rent Controller or further in appeals or writs, the defendants are not estopped under law from raising the legal plea before the Civil Court in a suit for ejectment based on the permission of the Rent Controller. He contended that the provisions of the Rent Control Order, 1949 are applicable to the suit house. The tenancy was created in favour of the defendants without compliance of Clause 22 (2) of Rent Control Order and hence the tenancy of the defendants was void. Consequently the permission obtained by the plaintiffs is without jurisdiction. The quit notice based on such permission is inoperative and hence the claim of the plaintiff for ejectment and also for arrears of rent was untenable in law and is liable to be dismissed. The learned counsel for the respondent Shri A. S. Bobde, submitted that such a plea is not at all open and available to the defendants and they are estopped under law and also by their conduct when particularly they failed to take the plea initially before the Rent Controller and the earlier suits of the landlady were defeated by raising the plea before the Civil Court that prior permission of the Rent Controller was necessary. Under such circumstances the defendants cannot approbate and reprobate. There must be some stop in the litigation somewhere.

In view of the rival contentions, the crucial point for consideration before me is whether under the facts and circumstances of these cases, the defendants are estopped under law from raising the plea of void tenancy before the Civil Court for the first time after having lost in litigation throughout from the Rent Controller upto writ in High Court without taking this plea and also having defeated the earlier suits of the plaintiff before the Civil Court on the ground that the ejectment suits were untenable without prior permission of the Rent Controller as the provisions of the Rent Control Order are applicable to the suit house.

It is undisputed: that in respect of houses governed by provisions of Rent Control Order, 1949, the tenancy created without compliance of clause 22 (2) of Rent Control Order would be void and the suit for ejectment and arrears of rent would be untenable in law as held in Pandurang v. Dulichand 1960 N L J 335 and in Kakubai & Company v. Nathmal 1979 Mh. L J 450. The landlord in such cases has to file suits on the basis of his title. However, the plea of void tenancy is not simply a pure question of law, but it is a mixed question of fact and law as held in unreported decisions by this Court in Parvatibai Bashamal v. S.N. Patil C.R.A. Nos. 605/606 of 1979 decided on 18-2-1980. (Nagpur). The question of fact has to be pleaded initially before the Competent Authority. In cases where the houses are governed by the provisions of Rent Control Order, the landlord has no right to give notice to a tenant except with the previous written permission of the Rent Controller and if he seeks to obtain permission he has to apply to the Rent Controller only on the grounds given in clause 13 (3) (i) to (ix). His application before the Rent Controller is tenable only if he first establishes the legal and valid relationship of landlord and tenant. The Rent Controller and the Appellate Authority exercise judicial functions as held in Laxman Viihal Rewanhe v. Rajaram 1980 Mh. L J 627 and if these authorities have passed valid orders, these orders cannot be challenged by the Civil Court as held in Mohanlal v. Raghunath 1977 Mh. L J 174. These authorities also cannot go into the merits of the orders of Revenue authorities as held in Bashir Khan v. Ulphabai 1978 Mh. L J Note 7. The decisions of these Revenue authorities operate as res judicata in Civil Suit filed by landlord against the tenant on the basis of permission obtained by him as held in L. V. Rewanhe v. Rajaram. In view of the aforesaid settled principles, if the tenant chooses to contest the proceedings before the Rent Controller, he has to challenge at the threshold the jurisdiction of the Rent Controller by raising all pleas of facts and law at the earliest opportunity before the Rent Controller. In all these cases no plea of void tenancy was at all raised initially before the Rent Controller who has jurisdiction to decide the legal and valid relationship of landlord and tenant and only on such finding he can proceed to grant permission to give quit notice on the grounds mentioned under clause 13 (3) (3) of Rent Control Order. No plea was also raised in appeal or even in writ petitions. Consequently the finding as to legal and valid relationship of landlord and tenant and permissions of the Rent Controller have become final and conclusive and I am of the opinion that they become res judicata in Civil Suit filed by the landlord against the tenant, and the tenant is estopped from raising such pleas of void tenancy in Civil Suit as held in Prabhakar v. Bharat 1983 Mh. L J 427. Consequently I hold that in all these cases permission obtained by the landlord cannot be challenged on the ground of tenancy being void before Civil Court and Civil Court cannot go behind it, but has to act on the permission.

The learned counsel for the applicants relied upon the ruling reported in Awtarsingh v. Damodhar 1974 Mh L J Note 14. In this case the petitioner claiming to be a tenant filed a complaint against the landlord for interference with his tenancy. Earlier application by the landlord for termination of tenancy under clause 13 (3) (viii) was rejected. Question of validity of tenancy was not then raised. Hence it was held in this case that the question whether the tenancy is valid or not is not res judicata and there is no estoppel. It was held in the complaint that burden was on the tenant to prove that he is a tenant and only because the landlord''s application before the Rent Controller was rejected, he is not exonerated from discharging his initial burden. In the complaint case the complainant in his evidence admitted that he had no knowledge whether at the time of creation of tenancy any intimation of vacancy was given by the landlord to the Collector. He also admitted that no assurance was given to him that the landlord has complied with the relevant provisions. In these state of facts he contended before the Court that on previous occasion the landlord had started proceedings under clause 13 (3) (viii) against the petitioner for committing acts of waste and the application was dismissed and, therefore, the question about the validity of tenancy was res judicata. It was held that the question of validity of tenancy, not having been raised in the previous proceedings, the revision on question of tenancy was not barred by res judicata nor by estoppel. In this case the proceedings were before the Rent Controller under clause 13 (3) (viii) read with clauses 14, 22, 23 and 24 of the Rent Control Order and C. P. and Berar Regulation of Letting of Accommodation Act, 1946, sections 5 and 8. The Rent Controller who had jurisdiction to decide the issue held the tenancy of the complainant void ab initio and unenforceable and in this view he held that he has no right to file a complaint This case, therefore, does not help the defendants for their proposition as the proceedings were not before the Civil Court in Civil Suit. The said finding of the Rent Controller is certainly within jurisdiction of the Rent Controller and would be final and binding on parties in Civil Court and operate as res judicata if the issue of relationship of landlord and tenant is in controversy before the Civil Court.

The learned counsel for the petitioner then cited unreported decisions of this Court in case of Parvatibai v. S. N. Patil. In these cases landlord filed a suit for ejectment after obtaining permission of Rent Controller. After the case was closed for argument, the tenant applied for amendment raising the plea of tenancy being void for want of intimation of vacancy and assurance that premises were being permitted to be occupied. The trial Court allowed the amendment. In revision before this Court it was held that the plea sought to be raised is totally inconsistent with the existing position and would result in totally knocking out the very substratum of such ousting the jurisdiction of the Court. The amendment would introduce a totally new case displacing plaintiff completely and hence the amendment was disallowed. The trial Court''s order allowing amendment was set aside. Under these facts this case has no bearing at all on the proposition canvassed before me and is of no avail to the defendants.

The learned counsel for the respondent Shri Bobde urged that in these cases the petitioners are not only estopped under law but also by their conduct from taking the plea of void tenancy after already exhausting two rounds of litigation. There is considerable substance in his contentions. The landlord who has to seek ejection of his tenant, has to spend about two years before the Revenue authorities right from Rent Control proceedings upto writ stage. He has then to file civil suit and spend about another five years from civil suit to Revision or Second Appeal stage. In the instant cases there was already the first round of litigation in civil suits wherein the petitioners contended that without the permission of Rent Controller the ejectment suits were not tenable and thus defeated suits upto High Court. He, therefore, urged that the persons getting advantage of his plea in prior suit is not entitled to take plea inconsistent therewith in subsequent suit on the principle of estoppel, approbate and reprobate u/s 115 of Evidence Act. He relied upon the ruling reported in Umrao Singh Vs. Man Singh and Others, . This ruling lays down a proposition as under:

A person having successfully resisted a suit filed by R for his ejectment from the land in suit on the ground that R was not a Bhoomidar and the suit for ejectment was not maintainable in a revenue Court cannot take up inconsistent stand in subsequent suit relating to the same land brought by successor in interest of R and contend that R was a Bhoomidar and the suit for ejectment should have been filed in a revenue Court. He having already taken advantage of his pleas about the status of R and the maintainability of a suit in revenue Court by dismissal of earlier suit cannot now turn round and take the stand that R was a Bhoomidar and the suit was triable in a Revenue Court.

In view of the aforesaid principle to allow the defendants in this case to take inconsistent position and to blow hot and cold or to play fast and loose according to his convenience would result in a situation which is not only anomalous but is also manifestly inequitable and unjust. As already observed above, these suits by the plaintiff are the third round of litigation. There has to be a stop somewhere. Such situation cannot be countenanced by the Courts imparting justice.

The matter has been discussed in Bigelow on Estoppel, Sixth Edition in following words:

If the parties in Courts were permitted to assume inconsistent position in trial of their cases, the usefulness of Courts of Justice would in most cases be paralysed. The coercive process of law available only between those who consented to its exercise could be set at naught by all. But the rights to all men honest and dishonest are in the keeping of the Courts and consistency of proceedings is, therefore, required of all those who come or brought before them. It may accordingly be laid down as a broad proposition that one, who without mistake induced by opposite party, has taken a particular position deliberately in the course of a litigation must act consistently with it. One cannot play fast and loose.

It is also observed there:

The principles under consideration will apply to another suit than the one in which the action was taken, where the second suit grows out of the judgment of the first. It laid down that defendants who obtain a judgment upon an allegation that a particular obstacle exists cannot in a subsequent suit based upon such allegation deny its truth.

In case of AIR 1926 18 (Privy Council) . Their Lordships of the Judicial Committee observed:

A litigant who has all along maintained a position in support of one and in this case the most important branch of his suit cannot be permitted after he fails upon this branch to withdraw from the position and assert the contrary, most especially when he thereby places his opponent at a greater disadvantage. There could be no clearer case for application of the doctrine of estoppel owing to the conduct of litigant.

The question of approbation and reprobation has been dealt with on page 171 of Halsbury''s Laws of England, 3rd Edition, Vol. 15, and it is observed that:

On the principle that a person may not approbate and reprobate, a species of estoppel has arisen which seems to be intermediate between estoppel by record and estoppel in paid. The principle that a person may not approbate and reprobate expresses two propositions. First, that a person in question having a choice between two courses of conduct is to be treated as having made an election from which he cannot resile and second that he will not be regarded, in general at any rate, as having so selected unless he has taken a benefit under or arising out of the course of conduct which he has first pursued and with which his subsequent conduct is inconsistent.

A person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he would only be entitled on one footing that it is valid and then turn round and say it is void for the purpose of securing some other advantage that is to approbate and reprobate the transaction. The various observations reproduced above lend support to the conclusion that the defendants in these cases are estopped under law and also by their conduct from raising the plea of void tenancy in the Civil Suits.

It is true that after the defendants raised the plea of void tenancy the plaintiff Shakuntalabai had made an application of amendment of plaint under Order 6, Rule 17 of the CPC and vide amendment which was allowed she submitted that her husband who was the owner and landlord of the suit block in the year 1952, had given the intimation of vacancy of the said blocks to the House Allotment Officer, Nagpur on 15-1-1952 and hence the agreements of tenancy with the defendants were valid in law. In view of the defence of the defendants that tenancy was void, the burden to prove that assertion was on the defendants as held in the case of Yashabhai v. Zubedabai13 and in case of Manibhai Haribhai Parmar and others v. Manohar Chandulal and the defendants even otherwise failed to discharge the burden to prove that they are not legal tenants. Law presumes legality. The Trial Court held accordingly and I am unable to differ with this finding. However, this aspect of the case is not material in this case as I have held that the plea of void tenancy is not open and available to the defendants in all the said suits on account of estoppel as stated in preceding para.

In consequence all these revision applications deserve to be dismissed and they are hereby dismissed with costs. Judgment and decree passed by the Trial Court in all these cases are confirmed. However, in view of facts and circumstances of this case, the parties are ordered to bear the costs of these revision applications as incurred. On the request of the learned counsel for the applicants Shri P. G. Palshikar three months'' time is granted to vacate the premises. Respondent-plaintiff shall not execute the decree for possession only till then.