1 wp 3186.2000.sxw srk IN THE HIGH COUT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3186 OF 2000 Shri Ramchandra P. Bansode (since deceased) through legal heirs & others .. Petitioners vs Sau. Akhtarunnisa Ahmadkhan & Anr., .. Respondents Mr.Abhay Thorat, Advocate for the Petitioners. Mr. M.S.Kadu, Advocate for Respondents 1(a) to 1(e) & 2. CORAM: A.S.OKA,J DATE: 4th September, 2009. JUDGMENT 1 I have heard the submissions of the learned counsel appearing for the parties. The petitioners are the original defendants and the respondents are the original plaintiffs. The suit was filed by the respondents under the provisions of the Bombay Rent, Hotel and Lodging Houses Rent Control Act, 1947 (hereinafter referred to Bombay Rent Act) for possession of the premises let out to the predecessor of the petitioners. The suit was filed on various grounds such as bonafide requirement, default, unlawful sub-letting etc. The Trial Court dismissed the suit. An Appeal was preferred by the Petitioners before the District Court. The District Court set aside the decree of the trial court and passed a decree on the ground of default and sub-letting. The Judgment and 2 wp 3186.2000.sxw Decree of the District Court is subject matter to challenge in this Writ Petition. 2. It must be stated here that recently a view has been taken by this Court holding that for challenging the Decree passed in Appeal arising out of Bombay Rent Act, a remedy of Revision Application under section 115 of the Code of Civil Procedure, 1908 is available. However, the present petition is filed in the year 2000 and on 10th July, 2000 this court entertained this petition on merits by issuing notice for final disposal at admission stage. Therefore, it will not be appropriate to relegate the parties to another remedy after lapse of nine years. 3 The learned counsel appearing for the petitioners invited my attention to the findings recorded by the trial court. He submitted that compliance was made by the petitioners with the notice of demand and therefore, there was no occasion for the court to pass a decree on the ground of default. He submitted that there is no evidence adduced by the respondents to show that the predecessor of the petitioners had parted with the possession of suit premises in favour of third parties or that the predecessor of the petitioners had created any interest therein in favour of any third party. He placed reliance on the decision of this court, in the case of C.C.Y1 (Dr.), Medical Practitioner, Bhiwandi vs. Smt. Janakidevi Anantlal Gupta & Ors. (2001 The Bombay Rent Cases 3 wp 3186.2000.sxw 312). He further placed reliance on other two decisions of this court, in the case of Dsudbhai Imranali Motorwala Vs. Ajij Yakub Tamboli and another, (1991 Bom. R.C. 102) as well as Raju R. Shetty Vs. Raghunath w/o Sukadeosing and another, (1977 Bom.R.C. 1). He invited my attention towards the deposition of predecessor of the petitioners on this aspect. He pointed out that the predecessor of the petitioners deposed before the trial court that he had permitted some unemployed youth to show the suit premises as the place of contact and the said unemployed youth used to sit in the suit shop premises. He therefore, submitted that the allegation of illegal subletting has not been proved. 4 The learned counsel appearing for the respondents supported the impugned judgment and decree by inviting my attention to the findings recorded by the Appellate Court. He urged that no interference is called for. 5 I have given careful consideration to the submissions. According to the case made out by the respondents, on 30th January, 1982 respondents had issued a legal notice to the predecessor of the petitioners demanding the arrears of rent and calling upon the predecessor of the petitioners to vacate the suit premises. It is noted by the courts below that the predecessor of the petitioners have filed an application for fixation of the standard rent. The Appellate Court has recorded a finding that monthly rent was not deposited regularly and 4 wp 3186.2000.sxw punctually during the pending of the suit and therefore, the petitioners are not entitled for protection of the provisions of clause (b) of section 12 (3) of the Bombay Rent Act. 6 At this stage, it must be noted that the landlord stepped into witness box in support of his case and deposed about the service of notice of demand which preceded the institution of the suit. He admitted the receipt of money order sent by predecessor of the petitioners in sum of Rs.300/-. The trial court has considered the said aspect. The trial court has noted the admitted position that notice of demand was received by the predecessor of the petitioners on 1st February, 1982 and on 1st March, 1982, one of the plaintiffs actually received money order of the amount representing the arrears on rent. The money order was sent before 1st March, 1982 i.e. before expiry of period of one month from the date of receipt of the demand notice. Thus, the predecessor of the petitioners had complied the demand notice. Therefore, the date on which the suit was instituted, there was no cause of action available to the respondents- landlords for filing a suit under section 12 (3)(a) of the Bombay Rent Act. In view of the settled position of the law, in such a case, a decree could not have been passed even under section 12 (3) (b) of the Bombay Rent Act. Therefore, the Appellate Court has committed an error in passing decree on the said ground. 5 wp 3186.2000.sxw 7 Now turning to the ground of unauthorised subletting, reliance was placed on two documents. The first document is at Exh.20, which is a printed invitation for attending the Pooja to be performed by M/s Suyog Stove Repairers on 27th November, 1976 on account of inauguration of Stove Repairers’ Scheme. The invitation records that the Pooja will be at 108, near Ghorpade Peth Gate, Pune 411 002. The second document on which reliance was placed by the landlords was a hand bill which is at Exh.21 containing advertisement of a scheme floated by M/s Suyog Stove Repairers through its Scheme Directors Mr. Annasaheb Champanwar, Mr. Phulchand Shinde and Mr.Shanker Sonwane. The said hand bill also bears the address 108, near Ghorpade Peth Gate, Pune 410 002. 8 In the examination in chief, the predecessor of the petitioners came out with the case that he had permitted some unemployed youth to sit in the suit shop premises and to show the address of the suit premises as their place of contact. He has stated in the examination in chief that the said youth did not carry business in the suit premises. The document at Exh.20 namely, the invitation card was shown to the predecessor of the petitioners. He stated that the Pooja was performed in the suit premises as mentioned in the invitation card. Thus, the predecessor of the petitioners admitted the said invitation card at Exh.20 which was published and issued by M/s Suyog Stove Repairers in 6 wp 3186.2000.sxw which it was stated Pooja will be held on 27th November, 1976 on account of inauguration of stove repairers’ scheme. The hand bill at Exh.21 is again an advertisement published by the said M/s Suyog Stove Repairers which contains three names of the strangers as the Directors. The said hand bill also contains address of the suit premises as the address of M/s Suyog Stove Repairers. Thus, these two documents clearly show that third parties were carrying on business of running a stove repairing scheme in the said suit premises. Thus it is established from the documentary evidence that third parties were allowed to carry on business in the suit premises. Therefore, the burden was on the predecessor of the petitioners to show in what capacity the third parties were carrying their business in the suit premises. The said two documents at Exh.20 and Exh.21 and admission given by the predecessor of the petitioners that a Pooja was performed in the said suit premises by M/s Suyog Stove Repairers falsified the case made out by him in the examination in chief that he had allowed certain unemployed youths to use the address of the suit premises as contact address. No effort was made by the predecessor of the petitioners to examine the said persons who had published invitation and the hand bill. In the circumstances, an inference has been rightly drawn by the Appellate Court of unauthorized subletting on the part of the petitioners. There was no explanation brought on record by the predecessor of the petitioners as to how 7 wp 3186.2000.sxw the third parties were allowed to run a stove repairing scheme in the suit premises and as to how the said persons were allowed to perform a Pooja in the said suit premises on account of inauguration of the said scheme. 9 In the circumstances, it is not possible to find fault with the impugned judgment and decree in so far as it relates to a decree on the ground of unauthorized subletting and transfer as the said ground has been established. The decree for possession passed against the petitioners deserves to be confirmed. 10 Hence, I pass following order: i) Writ Petition is dismissed. ii) On the prayer made by learned counsel appearing for the petitioners, the decree for possession shall not be executed for the period of 12 weeks from today. Judge.