1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1291 OF 2001 Sopan Laxman Zende (since deceased through L.Rs.) 1. Ananta Sopan Zende 2. Bhiwa Sopan Zende 3. Tanaji Sopan Zende 4. Namdev Sopan Zende ........ Petitioners versus Bhupendra Narsibhai Patel ........Respondent. Mr. Amit Borkar adv. for the Petitioner Mr. H.K. Menghani adv. for the Respondent. CORAM: A. P DESHPANDE, J. DATED : 21st November, 2009. P. C.: 1. This petition is filed by the tenant aggrieved by the judgment and decree passed by the appellate bench of the Small Causes Court at Mumbai, confirming the judgment and decree passed by the trial court decreeing the suit filed by the respondent landlord for ejectment and possession under sec. 13(1)(e) of the Bombay Rent Act. 2. The respondent instituted a suit against the petitioner tenant on two grounds, (1) that the tenant is defaulter in payment of rent 2 for a period of more than six months and (2) on the ground of sub letting. The trial court decreed the suit on both the grounds whereas the appellate court has reversed the finding of the trial court in so far as the ejectment and possession under section 12 is concerned, however maintained the judgment and decree for ejectment and possession to the extent it relates to sec. 13(1)(e) of the Bombay Rent Act, i.e. subletting. 3. According to the plaintiff landlord, the tenanted premises comprise of room No.24 situated at 1 st floor, Patel Mansion, 21 Khed Galli, Prabhadevi and has been let out to the petitioner/defendant on a monthly rent of Rs. 36.50/-. According to the plaintiff the defendant has illegally and unauthorizedly parted with the possession of the suit premises by inducting about 15 persons therein 2/3 years prior to the filing of the suit. In reply to the same the defendant has averred in para-1 of the written statement that because of prolonged Textile strike, the defendant was not getting any income and the defendant along with about 15 other persons who hail from the village of the defendant/tenant are also residing in the tenanted premises since long and the plaintiff did not raise any objection to the same. It is also pleaded in the written statement that other 15 occupants are contributing for payment of rent. On the said pleadings the plaintiff led evidence and substantiated the fact of sub letting by deposing before the court. The defendant did neither cross examine the plaintiff nor did he examine any witness in support of his case. 3 4. Having regard to the evidence of the plaintiff and the admission of the defendant in the written statement that about 15 persons are residing in the tenanted premises along with the defendant coupled with the admission that they are sharing the rent, the trial court has recorded a finding that the defendant has sub let the premises and/or assigned/transfered the interest in the suit premises in favour of others. Having so held, the trial court decreed the suit under sec. 13(1)(e). The first appellate court also concurring with the view taken by the trial court has confirmed the finding and the decree passed by the trial court under sec. 13(1)(e) of the Bombay Rent Act. Re-iterating that the defendant has transferred interest in the suit premises in favour of third party and thus sub let the premises. The court blow has relied upon two circumstances to record the finding of sub letting and the same are to the effect that the notice served by the plaintiff was returned unserved as the defendant was reported to have left the tenanted premises, and the second circumstance is the admission in the written statement by the defendant that because of the textile strike he had gone to the village leaving the premises in possession of other 15 persons. 5. The learned counsel for the petitioner has submitted that sharing of premises with third person by itself does not constitute sub letting. Thus the courts below have erred in law in passing a decree on that ground. Per contra the learned counsel for the respondent has submitted that rank outsiders are in occupation of the premises and are also contributing for payment of rent and this 4 would definitely constitute subletting. It is admitted position that the landlord has not agreed for sub letting in writing. Unless and until there is a written permission of the landlord, the sub letting is wholly impermissible. This position is clear from sec. 15 of he Act. To substantiate the said contention, Reliance is placed on a judgment reported in 2006(1) All M R 548 in case of Vimal Balkrishna Kharat Vs. Mahesh Holaram Motwani wherein the learned Single Judge of this court has held that written permission is must for creating sub tenancy and a long possession or no objection or silence of the landlord itself cannot be the ground to support the sub tenancy. It is held that as written permission is the requirement of the statute, whereas principles of waiver, acquiescence and estoppel which are principles of procedure cannot prevail upon the statutory provision. In the present case relying on the evidence led by the plaintiff a finding of fact has been recorded that the tenant has sub let the premises. On the own showing of the tenant, he has permitted other 15 persons who are in no way related to him and who are rank outsiders to enter the tenanted premises and that too by asking them to contribute for payment of rent. If this is the case of the defendant as pleaded in the written statement, then the case of the plaintiff of sub letting stands substantiated even from the admission in the written statement. The learned counsel for the petitioner has placed reliance on a judgment of this court reported in 2001 (4) Bom.C.R. 834 in case of C.C. Yi (Dr.) Vs. Janakidevi Anantlal Gupta & ors wherein it is held that mere using of the tenanted 5 premises by some other person along with the tenant by itself does not constitute sub letting. What is material to note is that if the premises are shared by someone, who is near or dear to the tenant by itself would not constitute sub letting. However, if other persons who happen to be the villagers from the native place of the tenant are permitted to occupy and they are made to contribute for payment of rent, then an inescapable conclusion has to be drawn that there has been sub letting. Whether as a matter of fact the premises are sub let or not has to be decided by the courts below and the trial court and the first appellate court has concurrently held that the tenant has sub let the premises. Jurisdiction of this court under Article 227 is very limited and an order impugned cannot be interfered with unless and until a patent illegality is pointed out. In the present case there is no illegality much less patent committed by the courts below, and hence no interference is called for. As a very possible view of the matter has been taken by the courts below there is no reason for this court to interfere with the impugned judgment. 6. Perused the impugned judgment and decree. The same does not call for any interference in exercise of writ jurisdiction. No patent illegality is pointed out and hence the present petition must fail. In the result the petition is dismissed. Rule discharged. Needless to mention that the interim order if any stands vacated. 7. The learned counsel for the petitioner at this stage submits that during pendency of the petition, the possession of the petitioner has been protected and hence makes a request to 6 continue the stay. The prayer is opposed by the learned counsel for the respondent. However having regard to the fact that stay has been operating during pendency of the petition, I deem it fit to continue the same for a period of six weeks. Ordered accordingly. (A. P. Deshpande, J.)