/ 1 / IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2259 OF 1990 1. Shri. Mohammed Shariff Bakridi since deceased by his heirs and L.Rs. 1A) Shaikh Munir Ahmed & Anr. ...Petitioners V/s. Shri.Babasaheb Govindrao Ghone ...Respondent Shri.G.M. Khambate for Petitioners. Shri.S.R. Page i/b. S.G. Page for Respondent. CORAM : V.M. KANADE, J. DATED : 18th JANUARY, 2008. P.C:- 1. Petitioners are the original tenants. They are challenging the judgment and order passed by the VIIth Additional Small Cause Judge in Small Cause Suit No.137 of 1984 whereby the Trial Court was pleased to pass an order of eviction against the Petitioners and they were directed to deliver the possession of the suit premises. This order was confirmed by the District Judge in Civil Appeal No.666 of 1986. Both these orders are challenged by this Writ Petition. / 2 / 2. Brief facts, in nutshell, are as under:- Suit premises were let out to father of Defendant No.1 for running a hair-cutting saloon. After father of Defendant No.1 expired, Defendant No.1 continued to be in occupation of the suit premises and he carried on business in the said premises. The Plaintiff/landlord sent a registered notice in the year 1983 claiming arrears of rent from 01/01/1983 to 30/06/1983. After expiry of one month from the date of said notice, he filed suit on the ground that Plaintiff had become entitled to claim possession of the suit premises since the Defendant No.1 had not paid rent from 01/01/1983 to 30/06/1983. It is also contended that the Defendant No.1 had sub-let his premises to Defendant No.2 without consent of the Plaintiff. Defendants filed their written statement and it was contended by Defendant No.1 that the Defendant No.2 was his cousin and was a member of the family. It is also contended that soon after registered notice was served on the Defendants/Petitioners herein, Defendant No.1 had tendered amount of rent. However, Plaintiff refused to accept rent which was sent by money orders. The Trial Court held that the Plaintiff / 3 / had established that Defendant was in arrears of rent and also sub-let premises to Defendant No.2 and on this ground directed that possession should be delivered to the Plaintiff. This finding was confirmed in appeal by the District Judge. 3. Shri. Khambate the learned counsel appearing on behalf of the Petitioners/original tenants submitted that both the Court had clearly erred in recording said finding and committed error of law which was apparent on the face of record. It is submitted that rent was tendered to the landlord within one month from the registered notice being served. Though this fact is accepted by the Trial Court and lower Appellate Court, both the Courts held that since money orders sent by the Defendant No.2, the landlord was justified in not accepting the money orders. He further submitted that only documents on which reliance was placed by the Plaintiff to establish that premises was sub-let to Defendant No.2 was shop and Establishment License. He submitted that Shop and Establishment License was in existence in 1963 and at that time also name of Defendant No.2 appeared in the said license. He further / 4 / submitted that order passed by the Trial Court and which was confirmed by the District Court may be quashed and set aside. 4. Shri. Page learned counsel appearing on behalf of the Respondent, on the other hand, submitted that concurrent fact of finding was recorded by both the Courts below and this Court while exercising its writ jurisdiction need not interfere with the finding of fact. He further submitted that Defendants had not entered the witness box and not established that Defendant No.2 was a member of the family. 5. It is an admitted position that Defendants had sent money orders after notice was issued. These money order coupons are to be found at Sr.Nos.21 to 27. The Trial Court also noted that money order coupons show that money orders were sent by Defendant No.1. However, even assuming that Defendant No.2 had sent money order in the name of Defendant No.1, it cannot be stated that rent was not paid within one month from the service of registered notice. Section 5(11) of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 gives definition of “Tenant” which reads as under:- / 5 / “(11) “Tenant” means any person by whom or on whose account rent is payable for any premises and includes,- (a) such sub-tenants and other persons as have derived title under a tenant before the 1st day of February 1973; (aa) Any person to whom interest in premises, has been assigned or transferred as permitted or deemed to be permitted, under section 15; (b) any person remaining after the determination of the lease, in possession with or without the assent of the landlord, of the premises leased to such person or his predeessor who has derived title before the first day of February 1973. (bb) such licensees as are deemed to be tenant for the purposes of this Act by section 15A; (bba) the State Government, or as the case may be, the Government allottee, referred to in sub-clause(b) of clause(1A), deemed to be a tenant, for the purposes of this Act by section 15B; (c) (i) in relation to any premises let for residence, when the tenant dies whether the death has occurred / 6 / before or after the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Act, 1978 any member of the tenant's family residing with the tenant at the time of his death or, in the absence of such member, any heir of the deceased tenant, as may be decided in default of agreement by the Court; ii) in relation to any premises let for the purposes of education, business, trade or storage, when the tenant dies, whether the death has occurred before or after the commencement of the said Act, any member of the tenant's family using the premises for the purposes of eduction of carrying on business, trade or storage in the premises, with the tenant at the time of his death, or, in the absence of such member any heir of the deceased tenant, as may be decided in default of agreement by the Court. Explanation.- The provisions of this clause for transmission of tenancy shall not be restricted to the death of the original tenant, but shall apply, and shall be deemed to always have applied, even on the death of any subsequent tenant, who becomes tenant under these provisions on the death of the last preceding tenant.” / 7 / 6. It is apparent from the definition of the word 'Tenant' that the rent can be paid by tenant either by himself or through other person. Finding of both the Courts below on this point is, therefore, liable to be set aside. Both the Courts below erred in hold that Defendants had not paid rent within one month from the service of said notice. 7. So far question of sub-letting is concerned, Shop and Establishment License clearly indicates that it was issued for the first time in 1963 i.e. during the lifetime of father of Defendant No.1 and at that time also name of Defendant No.2 appeared in the said license. That being a position, case of the Plaintiff that Defendant No.2 was inducted four to five years before service of statutory notice, falls to the ground. Both the Courts below have clearly erred and committed error of law which is apparent on the face of record. In the result, Writ Petition is allowed. Judgment and order passed by the Trial Court and which is confirmed by the District Judge is quashed and set aside. Suit is made absolute in terms of prayer clause(b). In these circumstances, there shall be no order as to costs. / 8 / . Writ Petition is disposed of accordingly. V.M. KANADE, J.