1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.425 OF 2009 Kishan Lal Malhotra ..Applicant V/s Smt.Leela S.Gandhi & Ors. ..Respondents ---- Mr. V. A.Thorat Sr.Counsel along with R.A.Thorat for the applicant. Mr.P.K.Dhakephalkar Sr.Counsel along with Amit Gandhi for the respondent nos.1 to 4. ---- Coram : R.S.MOHITE,J Date : 7th October, 2009. PC 1 This is a revision filed by the original defendant no.2. The defendant no.2 has filed the revision impugning concurrent judgments and decrees passed by the two lower Courts. 2 It is an admitted position that the defendant no.1 in the suit was a tenant of the original plaintiffs. Earlier the plaintiffs had filed two suits in the Court of Small Causes for recovery of possession under the Bombay Rent Act. It appears that one suit was on the ground of bonafide requirement and the other suit sought eviction on the ground of illegal sub-letting. It appears that in respect of illegal sub-letting, the defendant no.1 filed a written statement contending that defendant no.2 who was their erstwhile employee has been sub-letting their suit premises. 2 3 After the Maharashtra Rent Control Act came into force in the year 1999, the plaintiffs filed the present suit after issuing eviction notice to the defendant no.1. It was contended in the suit that the protection of the Rent Act was not applicable to the defendants as their tenant i.e. Defendant no.1 was a bank which had no protection in view of the provisions of section 3 of the Maharashtra Rent Control Act 1999. In this suit the defence taken by the present applicant who was the original defendant no.2 was that he should be treated either a legal sub-tenant protected by section 15 of the Bombay Rent Act or in the alternative a licensee who was conferred in the status of the deemed tenant under Section 15-A. It is seen that on the basis of evidence led by parties, both the Courts have decreed the plaintiffs’ suit for eviction. 4 The sole point that was argued before me was that despite repeal of the Bombay Rent Act, the status acquired by defendant no.2 as legal sub-tenant within the meaning of Section 15 of the Bombay Rent Act or in the alternative deemed tenant under Section 15-A of the Bombay Rent Act, continued to exist between him and the defendant no.1 in so far as sub-tenancy was concerned and between him and the plaintiffs in so far as question of deemed tenancy was concerned. It was contended that in such a fact situation, the suit filed by the petitioners without termination of the sub-tenancy/deemed tenancy of the petitioners was not maintainable. Reliance was placed in the case of HindustanFerrodo Ltd., Vs. Mrs.Hari Lachman Hasija reported in 2003(4) Mh.L.J, 50, in which this point was considered vis-a-vis the status of deemed tenant under Section 15-A of the Bombay Rent Act and wherein it was held that the suit filed for eviction of petitioners without termination of tenancy of petitioners who were deemed tenants was not maintainable. On the facts of this case however, I find that there is absolutely no foundation laid on the basis 3 of which Court can come to the conclusion that the defendant no.2 was either a protected sub-tenant within the meaning of Section 15 of the Bombay Rent Act or a deemed tenant within the meaning of Section 15-A. In my view, what was required to be shown in both cases was that the defendant no.2 was in exclusive possession of the suit premises as on 1.2.1973 and was also paying either rent to his principal tenant i.e. Defendant no.1 or was paying compensation. In the present case it is seen that the officer of the erstwhile employer of defendant no.2 was examined. On perusal of his evidence, I find that he has not supported the version of defendant no.2 that he was either a protected sub-tenant or a deemed tenant. On the contrary, he stated that after his retirement from service in the year 1978, defendant no.2 was residing in the premises without any right. In the face of such evidence the least that defendant no.2 was required to do was to produce evidence to indicate that he was making payment of rent/compensation. It is the case of the defendant no.2 in his evidence that he had a bank account with defendant no.1 and payment of rent/compensation was being made through his own account. However, defendant no.2 did not produce any passbook and restricted himself to contend that the bank record of the year 1989 was not available with him. Counsel for the defendant no.2 stated that in the trial Court the bank record for the period prior to 1973 was sought to be summoned. That application is not found in the compilation. Be that as it may, the witness of the bank does not appear to have been confronted with any such extract of the bank account. The non production of such account or the non consideration of such an account by the trial Court was not one of the grievance that was made in the appeal memo before the first appellate Court. Admittedly, there is no document between the defendant no.1 and defendant no.2, produced either by defendant no.1 or defendant no.2 to indicate the status with which defendant no.2 was put in possession of the premises. Though no specific issue regarding 4 sub-tenancy/deemed tenancy was framed by the trial Court or appellate Court, I find from the judgment of the trial Court that the trial Court has concluded that this was a case of no evidence. I have perused the evidence on record. I do not find any material apart from mere statement of defendant no.2 to indicate that he was a legal sub-tenant/deemed tenant of either defendant no.1 or the plaintiff. In this view of the matter, it must be held that there is no foundation led for raising the law point as canvassed. Civil Revision Application is therefore, summarily rejected. At this stage, Counsel for the applicants seeks time to vacate. Subject to the filing of the usual undertaking to the effect that the applicant 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. The undertaking as above, will have to be filed in this Court within a period of two weeks. (R.S.MOHITE,J) 5