ssm sm sm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 1067 OF 1992 PETITION NO. 1067 OF 1992 PETITION NO. 1067 OF 1992 Shri Janardan Subajirao Wide, Age 46 yrs. Occu. Business, R/o. 24/5, Wakadewadi, Pune-5. ....Petitioners. (Orig. Defendant) Vs. 1. Sou. Rangubai Ramchandra Jagdale, 2. Ramchandra Maruti Jagdale, (Both Since deceased through their legal representatives) 2a) Pralhad Ramchandra Jagdale, (Since deceased through his heirs) 2a-i) Yuvraj @ Munjiya Pralhad Jagdale Age 26 years. 2a-ii) Smt.Shakuntala Pralhad Jagdale, Age 55 years, Both R/o. Wakadewadi, Narveer Tanajiwadi, Shivajinagar, Pune-5. b) Machindra Ramchandra Jagdale, (since deceased through his legal heirs) b-1) Charudatt Machindra Jagdale, Age 38 yrs. Occu. Business. b-2) Rajendra Machindra Jagdale, (Since deceased through L.Rs.) 2b/ 2-i) Master Abhishek Rajendra Jagdale (Minor) b-2-ii) Kum. Nikita Rajendra Jagdale, Age 8 years, Both minor represented by their Guardian- (b-1). b-3) Smt.Kunda Machindra Jagdale, Age- Adult, Occu. Household. c) Shivaji Ramchandra Jagdale, ( 2 ) Age 56 years, Occu. Business. d) Sadashiv Ramchandra Jagdale, Age 50 years, Occu. Business, R/o. 47/2, Wakadewadi, (Narveer Tanajiwadi), Shivajinagar, Pune-411 005. ...Respondents. (Orig.Plaintiffs) Mr.T.D.Deshmukh for the Petitioner. None for the Respondents. CORAM CORAM CORAM : : : ANOOP V.MOHTA, J. ANOOP V.MOHTA, J. ANOOP V.MOHTA, J. DATED DATED DATED : 3rd DECEMBER, 2008. : 3rd DECEMBER, 2008. : 3rd DECEMBER, 2008. JUDGMENT:- JUDGMENT:- JUDGMENT:- The Petitioner is a original Defendant-Tenant, has challenged the impugned order of Court below whereby, the landlord/Respondents’ case of subtenancy under Section 13(1)(b) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (for short, "the Bombay Rent Act") is confirmed and thereby allowed the landlords case of eviction on that ground only. 2. The lease premises is situated at C.T.S.No. 1873, Bhamburda, Pune, consists of 2 blocks (for short, "the suit premises"). The suit premises were let out for running a hotel. As averred, accepted by the Court below that the petitioner’s have transferred the said ( 3 ) property in favour of one Krishna Shetty without permission and consent. It is contended specifically that the Petitioners never parted with the possession of the property. He is very much there and now he is doing business exclusively. Though there is material to show that he had assigned his business in favour of one Krishna Shetty, a deed of partnership Exhibit 51 and agreement whereby it was accepted that Krishna Shetty was his partner in the business of hotel. That was a partnership between the Defendant, his brother and the third person K.B.Shetty. 3. Under priviso to Section 15(1), of the Bombay Rent Act, it is permissible for the statutory tenant to transfer his tenancy right, as a going concern, even though the agreement prevented such transfer without previous consent of the landlord. Admittedly, the person running business goodwill and stock in trade had been assigned as permissible under the said provisions. As observed and held in Swastik Rubber Swastik Rubber Swastik Rubber Products Products Products Ltd. & Anr. Vs. Vasantrao Mahadeo Ltd. & Anr. Vs. Vasantrao Mahadeo Ltd. & Anr. Vs. Vasantrao Mahadeo Dhatingan, Dhatingan, Dhatingan, 2005 (1) Bom C.R. 327 2005 (1) Bom C.R. 327 2005 (1) Bom C.R. 327. by the Division Bench of this Court, that such assignment of premises whether contract contains prohibition or without consent of landlord, is permissible. Therefore, the ( 4 ) assignment of leasehold premises by the Defendants was not subletting. This Judgment is clearly cover the case of the Petitioners also. 4. It is brought to the notice during the course of argument that said Sub-tenant Krishna Shetty had filed Special Civil Suit No.623 of 1986 against the Petitioner/tenant is already dismissed. The reference of the suit is made in the impugned order. 5. In the present case, additional factor is that the Petitioner never parted or left the premises. Being a partner, he was also involved in the business. The dominant purpose of this agreement was not to sub-let the premises. The Apex Court in Mahendra Saree Mahendra Saree Mahendra Saree Emporium Emporium Emporium (II) Vs. G.V.Srinivasa Murthy 2005 (1) (II) Vs. G.V.Srinivasa Murthy 2005 (1) (II) Vs. G.V.Srinivasa Murthy 2005 (1) S.C.C. S.C.C. S.C.C. 481 481 481, held that so long as legal possession remains with the tenant the mere factum of the tenant having entered into an agreement of partnership for the purpose of carrying on the business in the tenancy premises would not amount to subletting, (Parvinder Parvinder Parvinder Singh Singh Singh Vs. Renu Gautam, 2004 (4) SCC 794 Vs. Renu Gautam, 2004 (4) SCC 794 Vs. Renu Gautam, 2004 (4) SCC 794). In the present case also, in view of this Judgment I see, there is no case made out by the landlord, of subtenancy. The eviction order passed by the Court ( 5 ) below on this ground is, therefore, wrong. Therefore, taking all this into account, I am inclined to interfere with the order passed by the Court below. The decree of eviction/ possession, is therefore, quashed and set aside. The suit of the plaintiffs is dismissed. 6. The Petition is, accordingly allowed in terms of prayer clause (b). Rule made absolute. No order as to costs. ( ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.)