ash 1 cra-259.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL REVISION APPLICATION NO.259 OF 2011 Esa Veednayagam. .. Applicant Vs Smt. Tamma alias Pakim Wd/o. Koyal Rajmani Nadar & Another. .. Respondents -- Shri R.R. Sharma for the Applicant. Shri Jacob David for the Respondent No.1. -- CORAM : A.S. OKA, J DATED : 19TH DECEMBER, 2011 P.C. . Submissions of the learned counsel appearing for the parties were heard on the earlier date. 2. The Revision Applicant is the first Defendant in a suit filed by the first Respondent/Plaintiff. The suit premises is a room in a chawl more particularly described in the Plaint. The suit was filed under the provisions of the Bombay Rents, Hotel and Lodging, House Rates (Control) Act, 1947 ( hereinafter referred to as “the said Act of 1947”) for eviction of the Applicant. The decree for eviction was claimed on the ground of non-user for a period of six months prior to the date of ash 2 cra-259.11 institution of the suit, sub-letting by the Applicant to the second Defendant and bona fide need. The Trial Court decreed the suit on the ground of illegal subletting by the Revision Applicant to the second Defendant. An Appeal preferred by the Applicant has been dismissed by the Appeal Bench of the Court of Small Causes. 3. The learned counsel appearing for the Revision Applicant submitted that the ground of sub-tenancy has not been established inasmuch as there is no transfer of interest by the Applicant to the second Defendant and in fact the second Defendant was merely a Conductor of the business for a temporary duration. He submitted that there is no interest created in favour of the second Defendant and the Applicant has not indulged in profiteering. The second submission of the learned counsel appearing for the Applicant is that the property in which the suit premises is situated was declared as a slum area and, therefore, the suit filed by the first Respondent was not maintainable. He pointed out that by a Notification dated 27th October, 1977, the property in which the suit premises is situated is declared as a slum area. He submitted that there is enough material to show that a slum rehabilitation scheme has been implemented in respect of the property in which suit premises is situated and, therefore, the suit premises are required to be treated as falling in a slum area. As far as subletting is concerned, he relied upon a decision of the Apex Court in the case of ash 3 cra-259.11 Jagan Nath (Deceased) through Lrs. v. Chander Bhan & Others (AIR 1988 SC 1362). 4. I have carefully considered the submissions. As far as subletting is concerned, the Courts below in particular the Appellate Court has found that on 16th March, 1988, the first Respondent addressed a legal notice to the Applicant alleging that the Applicant has sublet the suit premises to the second Defendant by accepting a sum of Rs.1,500/- as security deposit and was collecting Rs.600/- per month from the second Defendant. Reply was sent to the said notice on 26th March, 1988 in which it was alleged that the second Defendant was merely a Conductor and the second Defendant was conducting the business on behalf of the Applicant. Reliance is placed by the first Respondent on notice dated 5th March, 1989 in which it was alleged that the Applicant was intending to unlawfully sublet the suit premises. The notice was replied on 6th November, 1989 by the Advocate for the Applicant which contained denial. 5. The Applicant relied upon the Agreement dated 1st December, 1989 purportedly executed by him in favour of the second Defendant. The Agreement is of conducting. The said Agreement has been discarded by the Courts below and in particular the Appellate Court for the reasons recorded. The first reason is that even the reply ash 4 cra-259.11 dated 26th March, 1988 sent by the Applicant to the Advocate’s notice issued by the first Respondent recorded that the second Defendant was a Conductor, but the agreement of conducting is purportedly executed on 1st December, 1989. It has been observed that the Agreement dated 1st December, 1989 has been purportedly signed by the Applicant on 30th November, 1989 and only the last page of the Agreement is signed and there are no signatures appearing on the every page of the Agreement. The Appellate Court has referred to the cross-examination of the Applicant in which he claimed that after execution of the said Agreement dated 1st December, 1989, the possession of the suit premises has been handed over to the second Defendant. However, in the reply dated 26th March, 1988, the Applicant contended that the second Defendant was in possession as a Conductor. The Agreement refers to payment of Rs.1500/- by the second Defendant to the Applicant and payment of Rs.600/- per month by the second Defendant to the Applicant. Considering the aforesaid factors, the Appellate Court observed that the agreement appears to have been got executed subsequently to circumvent the provisions of law. 6. The Trial Court has considered another aspect. The Applicant stated in his evidence that the second Defendant was his servant, who was allowed to conduct the business for a temporary period during the illness of the Applicant. It is pointed out that in the ash 5 cra-259.11 reply sent to the notice or even in the Agreement, there is no reference to the fact that the second Defendant was a servant of the Applicant. If the second Defendant was a servant of the Applicant, there was no necessity of executing the conducting Agreement. Therefore, the Courts below have rightly rejected the plea of the Applicant that the second Defendant was merely a Conductor of the business. 7. The learned counsel appearing for the Applicant relied upon a decision of the Apex Court in the case of Jagan Nath (supra). He submitted that the Applicant has not divested himself of the right to remain in possession. 8. For reasons recorded, the case made out by the Applicant on the basis of the execution of the conducting Agreement has been disbelieved by the Courts below. But what is admitted is that the Applicant has received a sum of Rs.1,500/- towards deposit from the second Defendant and was receiving a sum of Rs.600/- per month. In the light of the admitted fact regarding receipt of consideration by the Applicant, after having rejected the case that the transaction was of a conducting agreement, the Courts below have accepted that there is unauthorised transfer by the Applicant to the second Defendant and, therefore, no fault can be found with the findings recorded on the ground of subletting. Before the Appellate Court, it was tried to be ash 6 cra-259.11 contended that subsequently the second Defendant left the suit premises and the Applicant started conducting the business. Forfeiture of the tenancy arises when the premises are unlawfully sublet and, therefore, subsequent departure of the second Defendant from the suit premises is of no consequence as far as the suit for eviction is concerned. 9. The case made out by the Applicant is that under Notification dated 27th October, 1977, the property bearing CTS No.41 has been declared as a slum area. In fact it is contended in the list of hutment dwellers, the Applicant is shown as the eligible person for the slum rehabilitation scheme. The Appellate Court has held that the Applicant did not lead any evidence to show that the suit premises is constructed on the property bearing CTS No.41 and that there is no reference to the CTS No.41 in the Annexure-II (List of eligible hutment dwellers). Therefore, the Appellate Court negatived the contention that the suit premises was situated on a land which is declared as a slum area. There is no reason to find fault with the said finding of fact. 10. Therefore, it is not possible to find fault with the decree passed by the Courts below and the decree will have to be confirmed. However, it is made clear that no adjudication is made as regards the eligibility claimed by the Applicant for slum rehabilitation scheme. ash 7 cra-259.11 11. The Civil Revision Application is rejected with no orders as to costs. 12. On the prayer made by the learned counsel appearing for the Applicant, it is directed that the decree for possession shall not be executed for a period of three months from today. ( A.S. OKA, J )