1 45-cra434-11 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION CIVIL REVISION APPLICATION NO. 434 OF 2011 Smt. Meenalben Mohanlal Bhansali .. Applicant V/s. Uttar Bhartiya Public Charitable Trust & Ors. .. Respondents ..... Mr. Sandesh Patil i/b. Mr. Prashant P. Jadhav for the applicant. Mr. Shyam Walve for respondent No.1. ..... CORAM : A.S.OKA, J. DATE : NOVEMBER 28, 2011. P.C.: Heard the learned counsel appearing for the applicant. The applicant is the original first defendant and the respondent Nos.1 to 4 are the original plaintiffs. A suit for eviction was filed by the original plaintiffs against the applicant on the ground of unlawful sub-letting, non user and arrears of rent. The applicant – tenant did not file any written statement. The trial Court decreed the suit on grounds of illegal sub-letting and non-user. An Appeal was preferred by the applicant. The Appeal has been dismissed. 2. The submission of the learned counsel appearing for the applicant is that in the plaint an averment has been made that the applicant inducted a sub-tenant in the year 2001. He submitted 2 45-cra434-11 that in the compromise dated 18th August, 2004 arrived at in Special Civil Suit No.318 of 2000 filed by the original plaintiffs against M/s. Shreyas Construction, it was for the first time recorded that M/s. Shreyas Construction intimated to the plaintiffs that the applicant is a tenant of the plaintiffs. He pointed out that Regular Civil Suit No.489 of 2002 was filed by the plaintiffs against the applicants in which the status of the applicant as a tenant was not accepted. He submitted that in the circumstances, on the basis of an allegation that a sub-tenancy was created by the applicant in the year 2001 in favour of one Suhas Jadhav, a decree for possession on the ground of illegal sub letting could not have been passed. 3. I have considered the submissions. It must be noted here that the aforesaid submissions were not canvassed by the applicant before the District Court in the Appeal. In paragraph No.12 of the Judgment, the learned District Judge has observed thus: “12/- So far ground of sub tenancy is concerned except that the sub tenant was not impleaded as defendant no other ground is argued by the learned Advocate for the appellant challenging the decree of possession on the ground of sub tenancy.” 4. Thus, the only point argued by the applicant before the Appellate Court was that though ground of sub-tenancy was 3 45-cra434-11 pleaded, the alleged sub-tenant was not impleaded as a party to the suit. In paragraph No.6 of the Judgment, the trial Court recorded a categorical finding that the applicant inducted B. K. Sarvana and Ramesh Kumar Jain as illegal sub-tenants. Thus, this finding was not challenged on merits. 5. In paragraph No.4 of the plaint it is alleged that one Suhas Jadhav who was inducted as a sub-tenant continued till 30th April, 2010. It is alleged that thereafter, the suit premises given to one Shri B. K. Sarvana Tandian and at present one Ramesh Kumar Jain was using the premises as sub tenant. 6. In reply dated 14th March, 2005 to the suit notice sent by the advocate for the applicant to the advocate for the plaintiffs, it is stated thus: “3]... It is also true that, your clients had given the said property for Development to M/s. Shreyas Construction by an agreement dated 06/07/1994 on the terms and conditions more particularly stated therein. It is also true that, as per the authority vest with M/s. Shreyas Constructions, they have inducted my client in flat No. 106 as tenant of your clients. It is absolutely false to allege that the area of the said flat is 650 sq.ft., and put your clients to the strict proof thereof. It is true that, my clients is in possession of the said flat as a tenant thereof with effect from 01/06/2000 and a tenancy agreement to that effect has been entered into between M/s. Shreyas Constructions and my client on 2nd June, 2000.” (Underline added) 4 45-cra434-11 7. Thus, the applicant has not disputed that she was inducted in the suit premises with effect from 1st June, 2000 by M/s. Shreyas Construction as a tenant of the plaintiff. Apart from the fact no contention on merit on the ground of sub-tenancy was canvassed before the Appellate Court, in the paragraph No.13 of the Judgment, the Appellate Court has noted that the suit notice was not served to the applicant at the address at the suit premises but at a different address. The Appellate Court has noted that some one else other than the applicant was in possession of the suit premises. 8. As pointed out earlier, the applicant did not file the written statement. The concurrent decrees have been passed by the Courts below on the ground of illegal sub-letting. There is no merit in the Revision Application and the same is rejected. 9. On the oral prayer made by the advocate appearing for the applicant, it is directed that decree for possession shall not be executed for a period of 12 weeks from today. (A.S.OKA, J.)