1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6062 OF 1997 Gorakhnath B. Bhingardive .. Petitioner versus Hashmatullam N. Khan & Anr. .. Respondents Smt Anita A. Agarwal for the petitioner. CORAM : A.S.OKA, J. DATE : 6th January 2010. ORAL JUDGMENT: . When this writ petition was called out yesterday for final hearing none appeared for respondent Nos.1A and 1B. After hearing the submissions of the learned counsel appearing for the petitioner, the petition was adjourned till today. None appears for the respondent Nos.1A and 1B when the petition is called out. 2 The petitioner is the 2nd defendant in the suit filed by the 1st respondent. The suit relates to a room which is more particularly described in the plaint. The suit was filed by the 1st respondent against the 2nd respondent and the present petitioner. The case made out by the 1st respondent is that the 2nd respondent was a tenant in respect of the suit premises. A decree for possession was sought by the 1st respondent on the grounds incorporated in section 12(3)(a), section 13(1)(e) and section 13(1)(l) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as the said Act). The allegation 2 in the suit is that the petitioner has been unlawfully inducted by the 2nd respondent in the suit premises. The 2nd respondent did not contest the suit. The petitioner contested the suit by filing a written statement by contending that he was inducted in the suit premises in the year 1958 with the consent of the original owner (predecessor in title of 1st respondent). The 1st respondent purchased the property in which the suit premises are situated in the year 1970-71. The trial Court dismissed the suit in so far as the prayer for possession is concerned. The trial Court held that there was documentary evidence on record to show that the petitioner was occupying the suit premises prior to 1973 and therefore he has been protected under the said Act. 3 In an appeal preferred by the 1st respondent, the District Court has interfered and has passed a decree on all three grounds pleaded by the 1st respondent. 4 The learned counsel appearing for the petitioner submitted that there was documentary evidence to show that the petitioner was in possession of the suit premises if not from 1958 atleast from 1965. The learned counsel further submitted that the 1st respondent has acquired the suit property in the year 1970. She submitted that though number of documents were produced by the petitioner showing his possession prior to 1973 and though the said documents were exhibited, the appellate Court has erroneously declined to read those documents in evidence. Her submission is that in view of amended provisions of sub-section 2 of section 15 of the said Act, the possession of the petitioner was required to be 3 protected. 5 I have considered the submissions. It is not in dispute that the 1st respondent purchased the suit property in the year 1970. The trial Court found that the 2nd respondent had unauthorisedly sublet the suit premises in favour of the petitioner. The petitioner examined the predecessor in title of the 1st respondent. The letter dated 16th September 1965 (Exhibit 39) issued by the predecessor of the 1st respondent was proved as the predecessor of the 1st respondent admitted that the same bears his thumb impression. The said letter was issued by the predecessor of the 1st respondent to enable the petitioner to obtain a ration card. The second document considered by the trial Court is the certificate dated 1st June 1970 issued by public vaccinator of Pune Municipal Corporation showing that smallpox vaccinaton was given to petitioner’s daughter. The address of the petitioner of the suit premises has been shown in the said certificate. There was a receipt dated 9th September 1980 (Exhibit 41) issued by one Kanhaiyalal regarding purchase of golden ornaments by the petitioner. At Exhibit 42 there is a receipt issued by Pankaj General Trading Company dated 10th January 1973 for purchase of Bush transitor. The receipts at Exhibit 41 and 42 show that the petitioner was residing in the suit premises. 6 The said documentary evidence has been discarded by the Appellate Court on the ground that the said documents are not properly proved. There is nothing on record to show that any objection was raised by the 1st respondent for 4 exhibiting the said documents. The document at Exhibit 42 is a certificate issued by the public vaccinator of Pune Municipal Corporation which records that the petitioner’s daughter was vaccinated on 18th May 1970. The said certificate shows that the petitioner was residing in the suit premises. 7 One Saudgar who was predecessor in title of the 1st respondent was examined as a witness who stated in his deposition recorded in December 1989. that the petitioner was residing in the suit premises for a period of twenty years. He accepted that the letter at Exhibit 39 dated 16th September 1965 bears his thumb impression. The Appellate Court has found fault with the evidence of the said witness on the ground that the witness disclosed his inability to state the year in which the said letter at Exhibit 39 was issued by him. It must be borne in mind that the witness was examined in December 1989 and the letter has been issued in the year 1965. The Appellate Court was impressed by a stray sentence in the cross-examination of the said witness that the 2nd respondent was residing in the suit premises till 1975-76. It must be stated here that the 1st respondent has appeared on the scene in 1970-71 when he purchased the property. The trial Court has noted that a suggestion was given to the 1st respondent that when he purchased the property the petitioner used to pay the rent and there are signatures of the petitioner on the counterfoil of the rent receipt. The said suggestion was denied by him. However, it appears that the counterfoils of the rent receipts were not produced. The case of the 1st respondent is that the 2nd respondent was in arrears from 1st June 1985. The 1st respondent could have 5 always produced the counterfoils to show that the rent was being paid by the 2nd respondent and not by the petitioner. It must be stated here that the case made out by the 1st respondent was that the suit premises have been kept closed by the 2nd respondent from the year 1975. The trial Court has relied upon documents at Exhibit 39 to 42 which are already referred to above. These documents certainly show that the petitioner was occupying the suit premises prior to 1st February 1973. The sub-section 2 of section 15 provides that the prohibition against subletting or transfer of interest of the tenant contained in sub-section 1 of section 15 shall be deemed to have no effect before 1st February 1973. The said provision was introduced by the amendment by Maharashtra Act No.18 of 1987. A Division Bench of this Court has held that the said amendment has a retrospective operation. By the same amendment the definition of tenant under sub-section 11 of section 5 has been amended by providing that tenant includes a sub-tenant who has derived titled under the tenant before 1st February 1973. Thus, if sub-tenancy is created prior to 1st February 1973, there is no illegality about it and there cannot be a decree for eviction passed on the ground of unauthorised subletting. As stated earlier, by virtue of amendment to the sub- section 11 of section 5 of the said Act, such a sub-tenant has been given a status of tenant. The other ground of eviction are default allegedly committed by the 2nd respondent after 1975. In view of sub-section 11 of section 5 of the said Act as amended, the petitioner became entitled to protect his possession as on 1st February 1973. The third ground of eviction was acquisition of suitable residence by the 2nd respondent. It is not the case of the 1st respondent that the 6 acquisition was prior to the 1st February 1973. Therefore, decree could not have been passed against the petitioner on both the said grounds. 8 There was no reason for the Appellate Court to disturb the finding of the trial Court on this aspect which is based on documentary evidence in the form of documents at Exhibit 39 to 42 which show presence of the petitioner in the suit premises prior to 1973. The documents have been marked as exhibits without any objection from the 1st respondent. Therefore, petition must succeed and I pass the following order: : O R D E R : (a) Rule is made absolute in terms of prayer clause (b). (b) There will be no orders as to costs. (A.S.OKA,J)