1 WP 6447/99 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6447 OF 1999 Mishrilal Ramjivan Sarda, since deceased through L.Rs. 1. Satyanarayan Mishrilal Sarda 2. Leelavati Rameshwar Rathi .. Petitioners V/s Sidaramappa Kashinath Lingshetti .. Respondent Mr. A.A. Kumbhakoni, Senior Advocate, for the petitioners. Mr. P.M. Pradhan with Mr. Shrishail Sakhare for the respondent. CORAM : D.G. KARNIK, J. DATE : 2ND FEBRUARY 2011 & 3RD FEBRUARY 2011 ORAL JUDGMENT: 1. Heard learned counsel for the parties. 2. This petition is directed against the judgment and order dated 7th September 1999 passed by the learned Additional District Judge, Solapur, dismissing the appeal of the petitioner and thereby confirming the decree for eviction passed against him. 2 WP 6447/99 3. The respondent is the owner and landlord of the house property bearing municipal no. 351/1/2B, city survey no. 3384/4B situated at Solapur. The property consists of two floors. The ground floor has 5 rooms and a hall and was used for the purpose of business by the petitioner. The first floor also has 5 rooms and a hall. 4. On 21st July 1981, the respondent by a notice to quit terminated the tenancy of the petitioner and demanded arrears of rent and possession. On failure of the petitioner to comply with the notice, the respondent filed a suit bearing Regular Civil Suit No. 681 of 1982 in the Court of Civil Judge, Senior Division, Solapur, for possession of the suit premises. The trial Court passed a decree for eviction of the petitioner on the ground of subletting of a part of the suit premises and also on the ground of reasonable and bonafide requirement of the respondent landlord. The contention of the respondent that the petitioner was in default of payment of rent was however rejected by the trial Court. Being aggrieved by the decree for eviction, the petitioner filed an appeal bearing Civil Appeal No. 49 of 1991. No cross objections were filed by the petitioner for refusal of the trial Court to pass the decree on the ground of default in payment of rent. During the pendency of the appeal, the 3 WP 6447/99 petitioner made an offer to the respondent landlord that the petitioner was willing to vacate the first floor and contended that if the decree for possession was confirmed only in respect of the first floor, no hardship would be caused to either side. The appellate Court therefore called for a finding from the trial Court whether no hardship would be caused to either side if a partial decree for possession was passed. After considering the additional evidence adduced, the trial Court held that a partial decree for possession would not meet the need of the landlord. Thereafter the appeal was heard and the appellate Court confirmed the decree for possession of the entire property on the ground of reasonable and bonafide requirement holding that a decree for partial possession would not meet the needs of the respondent. The appellate Court also confirmed the decree for possession on the ground of unlawful subletting. Aggrieved petitioner is before this Court. 5. When this petition came up for hearing on admission before the Court on 23rd December 1999, the respondent stated that he was prepared to take possession of the first floor but wanted a panchanama should be made first before he takes possession. The respondent has since taken possession of the first floor of the suit premises and is in possession thereof. This 4 WP 6447/99 Court admitted the petition and issued Rule and granted interim stay to possession of the ground floor only. 6. As regards the subletting, it is the case of the respondent that the petitioner had sublet one room admeasuring 10’ x 8’ on the southern side of the ground floor of the suit premises to a partnership firm by name “Sarda Dresses”. According to the respondent, only the wife of the petitioner and some strangers were partners of the said firm which was carrying on business in the said room. Since the petitioner was not a partner of the said firm but his wife and strangers were the partners, that amounted to subletting. The respondent has not mentioned the exact date of subletting but has stated in paragraph 6 of the plaint that the subletting took place some time in the year 1972-73 or thereabout. Considering the evidence of the income tax inspector who was examined for the purpose of subletting by proving that the firm was paying rent of Rs.100/- per month to the petitioner and also considering the evidence of the shop inspector, the trial Court came to the conclusion that the petitioner had sublet one room on the ground floor of the suit premises to the partnership firm “Sarda Dresses” from December 1972. The defence of the petitioner was that though his wife was a partner in the firm before filing of the suit, the 5 WP 6447/99 petitioner’s wife had retired and the petitioner became a partner in her place and since the petitioner had not parted with possession of the suit premises and the firm was not in exclusive possession and since the petitioner was a partner of the firm on the date of the filing of the suit, it could not be said to be a subletting. Rejecting the defence, the trial Court held that the exclusive possession of the suit premises was handed over to the firm and amounted to subletting. The appellate Court has confirmed the said finding. 7. Mr. Kumbhakoni, learned counsel for the respondent submitted that in view of the amendment to the Bombay Rent Act and in particular section 15 thereof, a subtenancy created prior to 1st day of February 1973 has been regularised. No decree for eviction can be passed on the ground of unlawful subletting in view of the fact that the subletting, as held by the trial Court, took place on 7th December 1972, i.e. prior to 1st February 1973. Section 15 of the Bombay Rent Act was amended firstly in the year 1959 and secondly with effect from 1st February 1973 by the Maharashtra Act No. 18 of 1987. Sub- section (2) of section 15 as amended by the Maharashtra Act No. 18 of 1987, retrospectively with effect from 1st February 1973, reads as follows: 6 WP 6447/99 “15. (1) ........ (2) The prohibition against the sub-letting of the whole or any part of the premises which have been let to any tenant, and against the assignment or transfer in any other manner of the interest of the tenant therein, contained in sub-section (1), shall, subject to the provisions of this sub-section be deemed to have had no effect before the 1st day of February, 1973, in any area in which this Act was in operation before such commencement; and accordingly, notwithstanding anything contained in any contract or in the judgment, decree or order a Court, any such sub-lease, assignment or transfer of any such purported sub-lease, assignment or transfer in favour of any person who has entered into possession, despite the prohibition in sub-section (1) as purported sub-lessee, assignee or transferee and has continued in a possession on the date aforesaid shall be deemed to be valid and effectual for all purposes, and any tenant who has sub-let any premises or part thereof, assigned or transferred any interest therein, shall not be liable to eviction under clause (e) of sub-section (1) of section 13. 7 WP 6447/99 The provisions aforesaid of this sub-section shall not affect in any manner the operation of sub-section (1) after the date aforesaid.” Sub-section (2) of section 15 of the Act provides that prohibition against the subletting shall be deemed to have no effect before 1st day of February 1973 and notwithstanding anything contained in any contract or in the judgment, decree or order of a Court, any sub-lease, assignment or transfer in favour of any person shall be deemed to be valid and effectual for all purposes, and any tenant who has sublet the premises or any part thereof before the aforesaid date shall not be liable for eviction under section 13(1)(e) of the Act. The sub-tenancies created prior to 1st day of February 1973 are regularised by reason of amendment to section 15 by Maharashtra Act No. 18 of 1987. In the present case, the trial Court has recorded a finding of fact that the sub-tenancy was created on 7th December 1972 which is prior to 1st February 1973. Consequently, no decree for eviction can be passed on the ground of illegal subletting and the decree for eviction on that ground is required to be set aside. 8. As regards the bonafide requirement, the respondent has 8 WP 6447/99 stated in the plaint that at the time of filing of the suit he was studying in a medical college and had recently married. While he was unmarried, he was living with his elder brother but after the marriage, he wanted to live separately and therefore he wanted to occupy the first floor of the suit premises for his residence. He has further pleaded that he wanted to start medical practice and for the purpose of a medical dispensary and a hospital he required the ground floor premises. 9. So far as the requirement for residence is concerned, the respondent has recovered the possession of the entire first floor of the suit premises during the pendency of the writ petition. Learned counsel for the petitioner did not press the petition and gave up the challenge to the decree so far as it relates to the possession of the first floor. So far as the requirement of the ground floor is concerned, he invited my attention to the plaint wherein it is stated that there are 5 rooms and a hall on the ground floor. After passing his M.B.B.S. Degree in the year 1984, the respondent opened his dispensary in two places in the city of Solapur. In his oral testimony, he stated that he could not establish substantial practice in either of the two places and therefore wanted to start practice in the suit premises. After passing of the M.B.B.S. examination, the respondent has not 9 WP 6447/99 gained any experience by working in any hospital. He is practicing only a general practitioner possessing the basic bachelors degree in medicine. He does not hold any post graduate qualification. No evidence was adduced by him to show how he was going to open and run a hospital. The nature of the hospital was not mentioned. In the circumstances, the mere ipse dixit of the respondent about his need of the suit premises for opening a hospital cannot be accepted. His need for opening a dispensary in the premises has been accepted by the two courts below and that is a possible finding of fact requiring no interference in exercise of extraordinary jurisdiction under Article 227 of the Constitution of India. The question, however, is what would be the extent of the premises required for the purpose of medical practice as a general practitioner. According to the evidence of the petitioner, he would require one room for consulting and examining the patients and another room for the sitting of the patients. Ordinarily therefore two rooms would be required by him but certainly he has not established a need for 5 rooms and a hall. The two Courts below have not considered the issue whether the requirement of the respondent for medical practice sans a hospital would be met by passing a decree for possession of a part of the ground floor premises. Plan of the property was 10 WP 6447/99 produced in this Court which shows that there are two roads on two sides of the property. It appears possible to divide the ground floor premises in two separate parts. If a partial decree by division of the ground floor premises is passed, no hardship would be caused to either side. The petitioner has been carrying on business in the suit premises for several years and has established a goodwill. If he is allowed to retain possession of a part of the ground floor premises, he can continue to carry on business in that part and the goodwill of the business earned over the years would not be affected. On the other hand, the respondent’s requirement would also be met if a partial decree is passed. In the circumstances, it would be appropriate to remand the matter back to the trial Court for the purpose of considering whether a division of the ground floor premises is possible and if so, whether no hardship would be caused to either side by passing a partial decree for possession. 10. For these reasons, the writ petition is allowed in part. Decree for possession in respect of the first floor premises is confirmed. So far as the decree for possession of the ground floor is concerned, the matter is remanded back to the trial Court for considering whether it would be possible to divide the ground floor premises into two parts and if so, whether no 11 WP 6447/99 hardship would be caused to either side by passing a partial decree for possession. It would be open to the parties to adduce evidence on remand on the aforesaid issues. Taking into consideration that the suit is very old, the trial Court shall decide the matter on remand expeditiously and, in any event, within one year of the receipt of the writ. 11. Rule is made absolute to the extent indicated above. (D.G. KARNIK, J.)