1 FH wp.3219.92 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3219 OF 1992 Smt. Laxmibai Narayan Sahastrabuddhe. ... Petitioner Vs. Ratanlal Raoji Doshi, deceased, through legal heirs and ors. ... Respondents -------- Mr. Prathamesh Bargude h/f Mr. A.V.Anturkar for the Petitioner. Mr. N.V.Walawalkar, Senior Counsel, a/w Mr.G.H.Keluskar for Respondent Nos.2(a) to 2(d), 3 and 5. -------- CORAM : A.S.OKA, J. DATE : 07 st December, 2010. JUDGMENT : 1 The original plaintiff is the Petitioner and the Respondents are the legal representative of the original defendant. During the pendency of the petition, the original plaintiff died and her legal representatives have been brought on record. 2 A suit for possession under provision of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as “the said Act”) was filed by the plaintiff against the Defendant – Ratanlal. The suit premises is the shop admeasuring 10 x 18 ft. more particularly described in paragraph No.1 of the plaint. The allegation in the suit is that from time to time, rent note was issued by the plaintiff in 2 FH wp.3219.92 favour of the defendant in his personal capacity and in breach of terms and conditions of the rent note, the defendant has allowed his brother to use the suit premises. The second contention in the plaint is that the plaintiff’s son is having a shop premises adjacent to the suit premises and the area of the shop premises held by the plaintiff’s son was small and considering the needs of growing business, the plaintiff needs the suit premises for bona fide use of her son. In short, bona fide need of the plaintiff’s son to occupy the suit shop for the purposes of business. The third ground pleaded is of arrears of rent. 3 The suit was contested by the defendant by filing a written statement. In the written statement, it was contended that the suit premises was let out to the ancestor of the defendant and was being used by the joint family of Ratanlal (original defendant) till 1966. It was contended that there was a partition in 1966 and in partition, the suit premises was allotted to the defendants’ younger brother Rikhavlal and since then said Rikhavlal was paying rent to the plaintiff till April 1975. The defendant denied the pleading of the bona fide need. It is contended that rent notes were nominally executed in the name of the defendant. 4 Both the Courts below negatived all the grounds of eviction pleaded by the plaintiff and hence, the suit has been dismissed. 5 The learned counsel appearing for the Petitioner has taken 3 FH wp.3219.92 the Court through the pleadings, notes of evidence and the findings recorded by the Courts below. He submitted that the rent note has been executed in the name of Ratanlal showing him as the tenant. He submitted that there is not even an indication in the rent note that the joint family of the defendant was the tenant. He submitted that rent note executed shows that the Ratanlal was the tenant in his personal capacity. He submitted that the defendant Ratanlal has relied on partition of the year 1966. Admittedly, there was no evidence to show that the joint family of the defendant Ratanlal was running the shop in the suit premises and that there was a partition. He submitted that the evidence shows that in the year 1978, the defendant Ratanlal continued to be in possession. He submitted that the Courts below have committed gross error in accepting the case made out by the defendant that the joint family was the tenant. He submitted that the said finding is completely contrary to the rent notes on record. He submitted that as the defendant failed to prove that the joint family was the tenant and that in partition, the suit premises was allotted to Rikhavlal. It is obvious that there was unauthorized and unlawful transfer in favour of the said Rikhavlal, which was prohibited by the said Act. He submitted that no evidence could be adduced by the defendant to prove that any person other than the defendant had tenancy right in respect of the suit premises. He submitted that in the entire evidence of the plaintiff, the case consistently made out is that till 1978, the defendant himself was in possession. He submitted that the findings recorded by the Courts below on this aspect 4 FH wp.3219.92 are perverse. As far as bona fide need is concerned, he submitted that the requirement pleaded was of the son of the plaintiff, who was carrying business in a small premises adjacent to the suit premises. He submitted that there is no reason to doubt the need of the son of the plaintiff. He submitted that as the original tenant had parted with possession in favour of the Rikhavlal, a finding on the issue of comparative hardship ought to have been recorded in favour of the plaintiff. As far as Civil Application No. 2836 of 2010 made by the respondent is concerned, he submitted that he has not received instructions from the legal representatives of the plaintiff. 6 I have given careful consideration to the submissions. I have perused the evidence. Perusal of the deposition of the plaintiff shows that in the examination-in-chief, there is no specific allegation made as regards the unauthorized transfer by the defendant in favour of Rikhavlal. The relevant part of the examination-in-chief reads thus: “..... Rikhablal Rauji Doshi is not concern with the suit premises have produced the duplicate copy of receipt book of rent motes since from 19-6-1966. It is mentioned in the rent receipt that the rent amount has been paid by Rikhablal Rauji Doshi as he used to pay the rent amount on behalf of Ratanlal. Ratanlal Rauji Doshi was the tenant in the suit premises, hence We have mentioned the name of Ratanlal in all the at receipts. The defendants are in arrears of rent amount suit premises for more than 6 months next before the it as well as I required the suit premises for my bonafide and occupation hence I have claimed suit premises from the defendant. 5 FH wp.3219.92 I never gave consent for possession and occupation of suit premises to Rikhablal Rauji Doshi. I also pray that the arrears of Rent amount Rs.1,616-50 be recovered and paid me.” 7 Thus, the plaintiff stated that from the year 1966, the rent was paid by Rikhavlal on behalf of the defendant – Ratanlal. In fact there was no reason to consider the ground of unauthorized subletting in absence of material assertions in the examination-in-chief. Suffice it to say that even accepting what was stated in the examination-in-chief is correct, the rent receipts from 19 th June, 1966 show that the rent was being paid by the Rikhavlal. Even accepting the case of the plaintiff that Rikhavlal was unauthorizedly placed in possession as a sub-tenant, his possession is from the year 1966 and therefore, by virtue of sub-Section (2) of Section 15 of the said Act, the prohibition against sub-tenancy will not apply as the said Rikhavlal was inducted in the suit premises prior to 1 st February, 1973. In the circumstances, there is no reason to interfere with the concurrent findings of fact on the issue of unauthorized subletting. 8 As far as bona fide need is concerned, both the Courts have not accepted the bonafide need. The Civil Application No. 2836 of 2010 has been filed by the legal representatives of the original defendant contending that the Petitioner has constructed additional area of 450 sq.ft. just above his shop premises and he has constructed one storied 6 FH wp.3219.92 construction admeasuring 525 sq.ft. on the ground floor and 600 sq.ft on the first floor on the rear side of the existing building. It is alleged that in July, 2004, the Applicant acquired possession of shop premises adjacent to the existing shop, which was occupied by the tenant - Shri. Dhembare. Area of the said premises is 60 sq.ft. Photographs of the construction carried out by the Applicant are annexed to the application. The possession receipt showing delivery of possession by said tenant – Mr. Dhembare has been also annexed. There is no reply filed to the said application. Therefore, what is stated in the application will have to be accepted. Assuming that there was a bona fide need on the date of institution of the suit, the same has been completely eclipsed by the said subsequent events. 9 Hence, there is no reason to interfere with the concurrent decrees of dismissal of the suits passed by the Courts below. Writ petition is rejected. Rule is discharged with no order as to costs. [ A.S.OKA, J ]