1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.618 OF 2008 IN APPEAL NO.484 OF 2006 Ashokkumar Narsimhulu Nagboth ..Applicant V/s Smt.Sarla Rajaram Adep & ors .. Respondents Mr.A.R.Pande, Advocate, for the applicant Mr.N.V.Walawalkar, Senior Counsel i/b.Mr.D.M.Tailor, Advocate, for the respondents CORAM : R.M.SAVANT, J. DATE : 22ND JANUARY, 2009 P.C. . The above Civil Revision Application takes exception to the decree of eviction passed by the Trial Court and confirmed by the Appellate Court. The said decree has been passed on the ground of subletting and also on the ground of bonafide requirement of the landlord. 2 2. The learned counsel for the applicant sought time to put in an affidavit to place on record the fact that the respondent No.1 herein has acquired premises after the decree came to be passed and therefore, the ground of bonafide requirement invoked by him was no more available. However, since the decree is also passed on the ground of subletting this Court was of the view that time could be granted, if a case was made out by the petitioner in respect of the ground of subletting. 3. In so far as subletting is concerned, it was the case of the plaintiff that the defendant No.1 sublet the premises initially to the defendant No.2 thereafter, to some persons, who were carrying out Mango business and thereafter, to the defendant Nos.3 & 4. The plaintiff produced documents Exh.Nos.11 and 12 which are the letters issued by the professional Tax Officer and the letter issued by the plaintiff to the Bal Avdhoot Sports Club dated 16th November, 2002 and the reply of the Manager dated 27th November, 2002 Exh-13 to 3 the plaintiff's letter and counter foil of the donation given by the defendant No.2 to the said Bal Avdhoot Sports Club at Exh.26. The said letters and counterfoil inter alia disclose that the defendant No.2 was paying donation to the said Bal Avdhoot Sport Club from 1997 to 2002 when he was carrying business in the suit premises. From the said documents at Exh.13 and Exh.26, it is clear that the defendant No.1 has sublet the suit premises to the defendant No.2. This evidence was in respect of the defendant No.2. In so far as the two persons, who came to occupy the suit premises after the said defendant No.2 i.e. Munir Ahmed and Mr.Hasim Mohammed, the plaintiff produced acknowledgement showing that the letters addressed by the plaintiff were received by the said Munir Ahmed at the address of the suit premises. In so far as the defendant Nos.3 & 4 are concerned, who are carrying on business of grocery in the said premises, the plaintiff produced photographs which are at Exh.21 collectively as also bailiff's report at Exh.15, which is in respect of the service of the interim notice on the defendant Nos.3 & 4, on refusal of the defendant Nos.3 & 4 to accept the same the bailiff had to paste 4 the said interim notice at the address of the suit premises. Thus, from the said report of the bailiff the plaintiff sought to prove that the defendant Nos.3 & 4 were in the suit premises during pendency of the suit. 4. It would be significant to note that the defendant No.1 filed the Written Statement through his constituted attorney and did not step into the witness box. The defendant No.2 did not venture to prosecute the said suit. As indicated above, the defendant Nos.3 & 4 have refused to accept interim notice as per the Bailiff's Report. On the basis of the evidence which was placed on record, both the Courts below have recorded a finding that the defendant No.1 had initially sublet the premises to the defendant No.2, then to the two persons Munir Ahmed and Hasim Mohammed and then to the defendant Nos.3 & 4. Both the Courts below have also recorded a finding that the defendant No.1 has gone to America eight years prior to recording of evidence in the said suit. The defendant No.1 is a Software Engineer working in America and his parents are also with 5 him in America. The Appellate Court therefore reached a conclusion that the defendant No.1 has permanently shifted to America. 5. It is sought to be contended on behalf of the applicant that the landlord, who is seeking eviction on the ground of subletting, has to prove the allegations by producing proper evidence to that effect and the evidence in the present case is not sufficient. For the said purpose reliance is placed on the Judgment of the Apex Court reported in 2008(7) Supreme Court Cases 722 in the matter of NIRMAL KANTA (DEAD) THROUGH LRS. Versus ASHOK KUMAR AND ANOTHER the Hon'ble Apex Court has held as follows :- “The lessor and/or landlord seeking eviction of lessee or tenant alleging creation of sub-tenancy has to prove such allegation by producing proper evidence to that effect. Once it is proved that lessee and/or tenant has parted with exclusive possession of demised premises for a monetary consideration, the creation of sub-tenancy and/or allegation of sub-letting stands established.” 6. On the other hand, on behalf of the respondents the attention of the Court is drawn to the Judgment of the Apex Court 6 reported in AIR 1998 SUPREME COURT 1240 in the matter of M/s.Bharat Sales Limited Vs. Life Insurance Corporation of India. The said Judgment has been considered by the Hon'ble Apex Court in the Judgment reported in 2008(7) Supreme Court Cases 722. In the Judgment of M/s.Bharat Sales Limited Vs. Life Insurance Corporation of India the Apex Court held that “To prove sub-letting production of affirmative evidence showing payment of monetary consideration by the sub- tenant to the tenant is not necessary. Inference as to sub- letting can be drawn from proof of delivery of exclusive possession of the premises by the tenant to the sub- tenant.” 7. In the instant case, the plaintiff has made a specific averment in the plaint as regards the consideration that might have been paid by the defendant No.2 to the defendant No.1, and also led oral and documentary evidence in support of his case of subletting. As indicated above, neither the defendant No.1 nor the defendant No.2 have stepped into the witness box to deny the said case of the plaintiff. 7 8. Considering the findings of fact recorded by both the Courts below and considering the fact that the defendant No.1 has gone to America, in my view, the test laid down by the Hon'ble Supreme Court in both the Judgments cited supra has been satisfied. In my view, the concurrent decree passed on the ground of subletting requires no interference at the hands of this Court in its revisional jurisdiction under Section 115 of the Code of Civil Procedure, 1908. In view of the decree being upheld on the ground of subletting, in my view, it is not necessary to go into the merits of the case in so far as the decree on the ground of bonafide requirement is concerned. 9. The Civil Revision Application is accordingly dismissed. However, the instant order is stayed for a period of eight weeks on the petitioner furnishing the usual undertaking within a period of four weeks from date. (R.M.SAVANT, J.) 8