1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4207/1991 Shantilal Uttamchand Gandhi (Deceased by heirs) PETITIONER VS. Maruti Laxman Jadhav RESPONDENT Mr.T.Mhatungale, i/b Mr.Anturkar advocate for the petitioner Mr.V.S.Gokhale,advocate for Res.no.3 & 4 Coram:A.M.Khanwilkar,J. Date.15.7.2008 P.C. 1] This writ petition by the tenant takes exception to the concurrent judgment and decree passed by the two courts below in respect of ground of subletting and tenant having acquired alternative suitable accommodation. The appellate Court in addition has decreed the suit against the petitioner /tenant on the ground that defendant no.3 who was occupying the suit premises caused nuisance and annoyance . It is not in dispute that the defendant no.3 is father in law of defendant no.1 . According to the respondent landlord the suit premises situated on city survey no.802 , Ravivar Peth , Pune were 2 let out to the defendant no.1 as monthly tenant. The defendant no.1 instead inducted defendant no.3 and unauthorisedly sublet the suit premises to defendant no.3 .Besides the said ground the petitioner also asserted that the defendant no.1 /tenant has acquired alternative suitable accommodation and further that the defendant no.3 caused nuisance and annoyance in the suit premises. 2] The trial court on analysing the material on record has found as of fact that the defendant no.1 was the tenant in respect of the suit premises. The plea of the defendant no.3 that he was the tenant and not defendant no.1 has been turned down by the trial court. That finding of fact has been upheld by the appellate Court . The abovesaid concurrent finding of fact recorded by the two courts below will bind this court. It will necessarily follow that the landlord has become entitled to a decree of eviction against his tenant / defendantno.1 on the grounds pressed in to service. 3] To get over this position the '' only argument' ' canvassed before this court is that it is admitted position that the defendant no.3 was paying rent to the landlord . If that fact is undisputed , placing reliance on definition of expression 'tenant' in section 5(11) of the Bombay Rent Act ,1947 it was argued that a person who pays the rent is also a tenant. The said provision reads as follows : ''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) 3 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 predecessor who has derived title (before the first day of February,1973); (bb) such licensee as share deemed to be tenants for the purpose of this Act by section 15A ;) (c) (i) in relation to any premises let for residence,when the tenant dies, whether the death has occurred 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 education or 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. '' In the opening part of the section no doubt it is provided that the tenant means any person by whom or on whose account rent is payable for any premises .However, once it is found as of fact that the defendant no.1 was inducted as tenant in the suit premises , merely because defendant no.3 (father- in -law of Defendant no.1) 4 was in fact occupying the suit premises or the fact that he was paying the rent to the landlord in relation to the suit premises would not result in snapping of relation between the landlord and defendant no.1 tenant. Defendant no.1 never the less would continue to be the tenant of the respondent landlord . Notably , it is seen that the landlord received the payment from defendant no.3 , paid on account of defendant no.1 . Even for that reason the Defendant no.1 will qualify the definition of tenant . As aforesaid , defendant no.3 is none other than father in law of defendant no.1 who was incidentally occupying the suit premises even after defendant no.1 shifted out of the suit premises upon acquiring alternative suitable accommodation elsewhere . That does not result in defendant no.3 acquiring the status of the tenant within the meaning of section 5(11) of the Rent Act. If any authority is required on this proposition , as is fairly pointed by the counsel for the petitioner himself , it will be useful to make reference to the dictum of the Apex Court in case of Harshvardhan 2002 (3) S.C.C. 626 .The Apex Court has held that by paying rent a person does not become the tenant. The person may pay or tender the rent to the landlord in the capacity of agent,employee or family member . Keeping in mind the said dictum of the Apex Court , the argument of the petitioners that the defendant no.3 was the tenant and not defendant no.1 will have to be only stated to be rejected in the fact situation of the present case. 4] As is noted earlier, both the courts below have analysed 5 the documents and evidence on record to positively hold that it is defendant no.1 who was inducted as tenant in respect of suit premises. Once this finding of fact is to be upheld , the decree of eviction against the tenant passed by two courts below would become unquestionable . In as much as , both the courts below have found that defendant no.1 has acquired alternative suitable accommodation and had shifted there .That finding of fact has neither been assailed before this Court nor it is possible for this Court to take a different view in exercise of writ jurisdiction . Besides the ground of defendant no.1 -tenant has acquired alternative suitable accommodation , the landlord would also succeed on the other ground on which the appellate court has decreed the suit against the petitioners /tenants for having caused annoyance and nuisance . 5] In the circumstances , it is not necessary to burden this judgment with other aspects of the matter as only question agitated before this Court will have to be answered against the petitioners . As a result of which , the decree of eviction passed by two Courts below will have to be upheld . 6] Accordingly this petition is dismissed with costs. (A.M.Khanwilkar,J.)