1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 196 OF 2007 M/s.Seth Industries Limited ....Petitioner Versus Sadhana Textiles Mills Pvt. Ltd. & Ors. ....Respondents. Mr.Y.S.Jahagirdar, Sr.Counsel i/b. P.S.Dani for Petitioner. Mr.V.A.Thorat alongwith Mr.N.C.Parekh i/b. Mansukhlal Hiralal & Co., Advocates for Respondent No.1. CORAM : R. V. MORE, J. DATED : 16TH APRIL, 2009. P.C. Heard, Mr. Jahagirdhar and Mr.Thorat, learned Senior Counsel for the Petitioner and Respondent No.1, respectively. 2. The Revision takes exception to the concurrent decree of eviction under the Bombay Rent Act on the ground of default and sub-letting. 3. The Petitioner is the Original Defendant No.1 and the Respondent No.1 is the Original Plaintiff. The dispute is about the premises at 2nd floor of the building “Sadhana Rayon House” situate at Dr. Dadabhai Naoroji Road, Fort, Bombay - 400 001 (hereinafter for the sake of brevity called as “the suit premises”). The Plaintiff is the owner and landlord of the suit premises. By lease deed dated 18th June, 1966, the Plaintiff leased the suit property to one M/s.Shivprakash Janakraj & Co.Pvt.Ltd. on monthly lease rent of Rs.3290/-. The said lease in respect of the said suit property was transferred in favour of 2 Defendant No.1 with effect from 1st July, 1966 for the unexpired period of lease deed on the same terms and conditions. The lease deed expired by efflux of time on 31st August, 1973 and thereafter the Defendant No.1 continued to hold the said premises as statutory tenant. 4. It is the case of the Plaintiff that the Defendant No.1 was in arrears of rent and also committed breach of conditions of the lease deed dated 18th June, 1966 and sub-let the suit premises to Seth Oil Mills Ltd., Seth Woolen Mills Pvt.Ltd. and Gloria Leasing Co. Ltd.. The Defendants were in arrears of rent for the period of 9 months i.e. from October 1985 to June, 1986 amounting to Rs.20,612/- and accordingly, by the Notice dated 22nd July, 1986, the Defendant No.1 was called upon to pay the sum of Rs.29,610/-. The Defendant No.1 alongwith their letter dated 22nd August, 1986 sent cheque for an amount of Rs.29,610/- however, the said cheque when presented was returned by the Banker for non-payment. The Defendant No.1 subsequently replaced the same by a draft for the said amount. However, the case of the Plaintiff is that the Defendant No.1 failed to pay the arrears of rent within one month from the receipt of the notice and therefore liable to be evicted. It is further case of the Plaintiff that the Defendant No.1 thereafter committed default in payment of monthly compensation for the month of June-1986 to October-1986 amounting to Rs.13,160/-. It is the case of the Plaintiff that as the Defendant continued to occupy the suit premises as a statutory tenant, no notice was required, however, with abundant caution notice was given on 5th November, 1986 and thereby terminated the tenancy of the Defendant No.1 and called upon them to hand over vacant possession of the suit premises. The Defendant No.1 by their Advocates letter dated 20th November, 1986 sent a sum of Rs.13,160/- by a demand draft dated 20th November, 1986 and requested to accept the same without prejudice to the rights and contentions of the Plaintiff. It is the case of the Plaintiff that the Defendant No.1 had failed to pay the arrears of rent for the period of 9 months from October-1985 to June-1986 within one month from the 3 receipt of the notice dated 22nd July, 1986. 5. It is also the case of the Plaintiff that initially the Defendant No.1 sub- let the premises to Seth Oil Mills Ltd., Seth Woolen Mills Pvt. Ltd. and Gloria Leasing Co. Ltd.. During the pendency of the suit, the Defendant No.1 in defiance of the injunction order, further parted with the possession of the suit premises to Radon Tapes & Tubes Ltd., Nisha Synthetics Ltd., Magikraft Ltd., Gloria Leasing Ltd., Simplex Woolen Mills, Golden Soya Ltd., Gloria Chemical Industries Ltd., Sandeep Mercantile Co-op. Works, Bandra Plastics Ltd., Kalyani Leasing Pvt. Ltd. & Ors. and therefore, by amendment paragraph 14(a) was introduced in the said plaint, pointing out the above facts. It is the case of the Plaintiff that the above companies i.e. Respondent Nos.2 to 13 on enquiry were found to be in possession of the suit premises on payment of substantial amount to the Defendant No.1 for use and occupation of the respective definite portion let out to them in the suit premises in the form of cabin space. 6. The Plaintiff also claimed decree of eviction on the ground that the suit premises is not being used by the Defendant No.1 for the period of 6 months immediately preceding the date of the suit and the Plaintiff required the suit premises bonafide and reasonably for their own use and occupation and no hardship will be caused to Defendant No.1, if the decree of eviction is passed in favour of the Plaintiff. 7. The Defendant No.1 contested the suit by filing written statement. It was submitted that the Court has no jurisdiction to try and entertain the suit. They denied that the Plaintiff has cause of action to the relief, as prayed. The termination of tenancy was alleged to be illegal, bad-in-law and not binding upon the Defendants. It was alleged that the Defendant No.1 had no intention to sub- let the suit premises or part with possession of the suit premises and the allegations of the Plaintiff in this regard are absolutely false. It was further 4 contended that M/s.Seth Oil Mills Ltd., Seth Woolen Mills Pvt. Ltd. and Seth Textiles are in possession since long with the full knowledge of the Plaintiffs and they are duly protected under the provisions of the Bombay Rent Act. It was submitted that the Original Defendant No.3/Respondent No.3 is in exclusive use, occupation and possession of the Cabin Nos. 1, 2 to 7 and they are lawful sub- tenants of the suit premises. Regarding, Plaintiff’s allegation that induction of other Companies in the suit premises in breach of injunction, it was denied that these Companies are doing their independent business and commercial transactions from the suit premises. It was also denied that these Companies are paying substantial amount to Defendant No.1. So far as the eviction on the ground of non-user and bonafide and reasonable requirement is concerned, the same was also denied and it was contended that the Plaintiff is not entitled to have decree on this ground. 8. The Trial Court after considering the evidence on record and after hearing the learned Counsel for the respective parties, held that the Defendant No.1 unlawfully sub-let the suit premises to Seth Oil Mills Ltd., Seth Woolen Mills Pvt. Ltd. and Gloria Leasing Co. Ltd. viz. Defendant Nos.3, 11 & 6. It was further held that Defendant No.1 has unlawfully and without prior consent of the Plaintiff, sub-let the suit premises to Defendant Nos., 2,4,5,6,8 to 10 and 12 to 13 during the pendency of the suit. The Trial Court found that the Plaintiff could not prove the ground of non-user for the period of six months immediately preceding the date of suit. The Trial Court further held that the requirement of the Plaintiff of the suit premises is reasonable and bonafide and greater hardship would be caused to the Plaintiff in case of refusal of decree of eviction. The Trial Court also held that the Respondent No.3/Defendant No.3 is not lawful sub- tenant. The Trial Court however, passed a decree of eviction on the ground of default. 9. The Defendant No.1 as well as Defendant No.3 filed two separate 5 Appeals before the Bench of the Small Causes Court at Bombay viz. Appeal No.367 of 2003 and 609 of 2003. Both the appeals were clubbed together and disposed of by the Bench of Small Causes Court at Bombay by the common Judgment and Decree dated 23rd January, 2007. The Appeal No.609 of 2003 filed by the Respondent No.3/Defendant No.3 came to allowed thereby holding that the Respondent No.3/Defendant No.3 is lawful sub-tenant. The Appeal No.367 of 2003 was partly allowed, whereby the Trial Court’s decree on the ground of sub-letting and default under section 12(3)(a) of the Bombay Rent Act came to be confirmed. However, the said decree on the ground of reasonable and bonafide requirement came to be set-aside. The Defendant No.1 being aggrieved has filed the present Revision Application. 10. Now, let us first consider whether both the Lower Courts have correctly arrived at the finding that the Defendant No.1 without permission of the Plaintiff and in breach of the lease agreement has unlawfully sub-let the suit premises to Defendant Nos.2 to 13 except Defendant No.3. The Plaintiff alleged sub-letting of the suit premises in two parts. Initially prior to filing of the suit, sub-letting was to Seth Oil Mills Ltd., Seth Woolen Mills Pvt. Ltd. and Gloria Leasing Co. Ltd and secondly sub-letting in favour of other Defendant- Companies during the pendency of the suit in defiance of order of injunction. In order to substantiate the sub-letting by the Defendant No.1 to Defendants, the Plaintiff has examined two witnesses i.e. P.W.1 viz. Director of the Plaintiff and P.W.2, Mr. Ramchandra Bhiva Dhuri, Personal Manager. The P.W.1 stated that when he visited the premises, he found that it was a big hall consisting of 12 to 13 cabins in the suit premises. Those cabins were occupied by the parties and on enquiry it was disclosed that those cabins were let out by Defendant No.1 and they are paying large amount to Defendant No.1. The P.W.2 also stated that he visited the suit premises and he found that Defendant No.1 has constructed cabins in the suit premises and all those cabins are occupied by different parties. He found name plates of Nisha Synthetics, Gloria Leasing, Seth Woolen Mills 6 and Set Oil Mills etc. 11. The Plaintiff also produced the evidence at Exhibit-“J” Colly. which shows the respondent Companies are occupying the respective cabins. The evidence consist of certificates regarding registration of the firms and registered office as per the Companies Act, 1956. The Plaintiff further relied upon the documentary evidence at Exhibit-“E” Colly. which also gives the name of the registered office of all respective Companies who are occupying the respective cabins. The Plaintiff also produced the photographs to show the nature of use of the suit premises, showing name plates and occupation of third party viz. Respondent Nos.2 to 13/Defendant Nos.2 to 13 in the suit premises. 12. The above oral evidence as well as documentary evidence clearly shows the presence of Respondent Nos.2 to 13/Defendant Nos.2 to 13 in the suit premises and therefore, it is for the Defendant No.1 to explain in what capacity these Defendants are in possession of the suit premises. The Lower Court relying upon the decision of Smt.Rajbir Kaur & anr. Vs. M/s. Chokesiri & Co. reported in 1988(2) All India Rent Control Journal, Page 316 held that the Plaintiff discharged the burden that the third parties are in possession of the suit premises and therefore, it is for Defendant to explain how the third parties are in possession. It was also held that in case third party is in possession, it has to be inferred that there must be a monetary transaction of letting out the premises. 13. The defence of the Defendant No.1 seems to be that Defendant Nos.2 to 13 are not sub-tenants and they were allowed to receive the correspondence. It was also the defence that all those Companies have been promoted by the Directors or Promoters and sons of the directors of Defendant No.1. The Lower Courts on the basis of evidence, however, did not accept Defendant No.1’s above defence in as much as, the Defendant Nos.2 to 13 7 Companies are different legal entities and parting with possession to them amounts to sub-letting. 14. In the above facts and circumstances, the Lower Courts have correctly come to the conclusion that the Defendant No.1 parted with the possession in favour of third party without knowledge and consent of the Plaintiff-landlord and same is done for consideration. I do not find any error in the findings recorded by the Lower Court and therefore, decree on the ground of sub-letting cannot be interfered with. 15. So far as eviction on the ground of default is concerned, the Trial Court passed decree under section 12(3)(a) and 12(3)(b) of the Bombay Rent Act. The Lower Appellate Court modified this decree and passed decree on the ground under section 12(3)(a) of the Bombay Rent Act only. The cause of action to file the suit to the Plaintiff was arrears of rent based upon the first demand notice. If the tenant is in arrears of rent for more than six months and has not paid or deposited the rent within thirty days from the date of receipt of the demand notice, then the provisions of section 12(3)(a) of the Bombay Rent Act, are attracted. In the present case, admittedly payment of arrears of rent was not made within the period of thirty days from the receipt of the first demand notice and therefore decree is correctly passed under section 12(3)(a) of the Bombay Rent Act. 16. Hence, no interference is required in exercise of revisionary jurisdiction under section 115 of the Code of Civil Procedure, 1908. The Civil Revision Application is accordingly, dismissed. (R. V. MORE, J.)