1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.453 OF 2009 Sayed Ahmed Punjabi & Anr. ..Applicants V/s Gerald Martin Coelho & Ors. ..Respondents ---- Mr. R.A.Thorat for the applicants. Mrs. Jai V. Kanade for the respondent no.1. ---- Coram : R.S.MOHITE,J Date : 7th October, 2009. PC 1 This is a revision application filed by the original defendant nos.2 & 3 impugning concurrent judgments of the two lower Courts decreeing the plaintiff’s suit for eviction under the Rent Act. Both the courts have decreed the plaintiff’s suit on the ground of creation of illegal sub-tenancy. Plaintiff had filed the suit without making an express averment as to which of the defendants were tenants. In paragraph-9 of the plaint however, the plaintiff made a statement that the suit was between the landlord and the tenant for recovery of possession and hence, the Court has jurisdiction. On behalf of the defendant no.2 an application was made during the trial for framing of a preliminary issue and accordingly preliminary issue was framed under Section 9-A, since an interim notice was pending, and the same came to be decided by an order dated 1.2.1995 in favour of the defendant and the Small Causes Court held that it has jurisdiction. This order has 2 admittedly not been challenged at any stage. 2 On behalf of the applicants, it was contended that since the plaintiff himself had not come with the case that defendant no.2 was a tenant, the suit could not be decreed on the ground of illegal sub-letting. It is true that in the plaint the plaintiff has not admitted defendant no.2 to be a tenant. It is also true that the plaintiff has come with the case that when the original tenant expired, there is nobody staying with her except a servant. It however, appears from the record that the defendant no.2 appeared and filed a written statement contending that he was residing with the tenant Kulsum Mohamed Illyas when she expired on 29.4.1994. He also contended that he was a family member. In view of such a stand taken by defendant no.2 and on the basis of the evidence as led in the trial Court, the trial Court has accepted the case of the defendant no.2 and held that he was a family member residing with original tenant Kulsum when she expired. In my view, once the defendant no.2 took such a stand then it was not necessary for the plaintiff to lead evidence in this regard, if the stand taken by the defendant no.2 would help her in obtaining final relief as sought for. Once this position is accepted then in my view, there is no infirmity which can be found in the concurrent judgments of the two lower Courts holding that defendant no.2 had illegally sub-letting the premises to defendant no.3. In this view of the matter, the Civil Revision Application is summarily rejected. At this stage, Counsel appearing for the applicants seeks time to vacate. On all the adult members of family of applicant no.2 filing separate undertakings in this Court stating that applicant no.2 and his family members alone are in possession of the suit premises and they will not create any 3rd party rights or part with possession of the suit premises or any part thereof, the decree will not be executed for a period of ten weeks from today. 3 Undertakings to be filed in this Court within a period of two weeks from today. (R.S.MOHITE,J)