1 wp1348.sxw ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.1348 OF 1995 Mr.Hoshi Marazban Gawaoji Madora (since deceased by his heirs and legal representatives) 1 Mrs.Fesoze Hoshi M.C.Madora 2 Mrs.Meher Rajice Jacobi ...Petitioners vs. 1 J.D.Khurana (since deceased by his heirs) 1A Mrs.Savitri Jaidayal Khurana 1B Mohar Jaidayal Khurana 1C Sudhir Jaidayal Khurana 1D Sunil Jaidayal Khurana 1E Mrs.Usha D. Chawala 2 Shri Anil S. Khurana 3 Mrs.Vidya S. Khurana 4 Kanwar S. Khurana 5 Satish Erram 6 Mrs.Guldhan Johar ...Respondents Mr.Rajesh S. Patil for the petitioners Mr.A.V.Anturkar for the respondent no.2 CORAM :A.S.OKA,J. DATE : SEPTEMBER 28, 2010 ORAL JUDGMENT : 1. Heard the learned counsel for the petitioners and the learned counsel for the 2nd respondent. By this writ petition under Article 2 wp1348.sxw 227 of the Constitution of India, the petitioners who are the legal representatives of the original plaintiff have taken an exception to the Judgment and Decree dated 13th April 1994 passed by the learned 6th Additional District Judge, Pune by which a decree for eviction passed in favour of the original plaintiff has been set aside. For the sake of convenience the parties in the petition have been referred with reference to their status before the Trial Court. 2. According to the case of the plaintiff, he is the owner of the premises more particularly described in paragraph 1 of the plaint which is northern 1/4th portion of the building  Manek Hall at Pune more particularly described therein. According to the case of the plaintiff in the year 1962, a suit for possession and for arrears of rent was filed by the plaintiff against the 1st defendant. The suit was decreed which was confirmed by the District Court. The 1st defendant filed a Special Civil Application for challenging the Judgments and Decrees of both the Courts below. 3. On 22nd March 1974, there was a settlement arrived at by and between the plaintiff and the 1st defendant in the Special Civil Application. The consent terms filed in this Court record 3 wp1348.sxw that the 1st defendant was to deliver vacant possession of the open space described in paragraph 1 (b) of the plaint which was abutting the premises described in paragraph 1(a) of the plaint. The decree provided that the possession shall be handed over after removal of structures constructed thereon. The consent terms further provided that the 1st defendant herein shall occupy the premises described in paragraph 1(a) of the Plaint, namely 1/4th portion of the building facing East Street in north west corner of compound of Bungalow No.2 Elphistone Road, Camp, Poona known as Manek Hall (the suit premises) as a statutory tenant paying rent at the rate of Rs.90/- per month being the standard rent plus permitted increases. 4. According to the case made out in the plaint in the present suit, the 1st defendant failed and neglected to pay standard rent from 1st December 1976. Therefore, a notice dated 29th April/ 2nd May 1977 was issued by the plaintiff calling upon the first defendant to pay arrears of rent from 1st December 1976 and to deliver possession of the suit premises by the end of May 1977. According to the plaintiff, the said notice was served to the 1st defendant on 4th May 1977. Reliance is placed on letters dated 5th December 1978, 9th January 1979 and 12th February 1979. It was contended in the plaint that these three letters were sent by R.P.A.D 4 wp1348.sxw and under certificate of posting. It is alleged that the letter dated 5th December 1978 sent by R.P.A.D was not claimed by the 1st defendant. It was alleged that the same course of events followed in respect of the other two letters. It is contended that the letter dated 9th February 1979 issued by the plaintiff was pasted on the main door of the suit premises. However, the 1st defendant failed and neglected to pay the arrears of rent and permitted increases. 5. Another allegation made in the plaint is that the 1st defendant himself has not been using the suit premises for conducting any business for more than six months. It was alleged that the 1st defendant had unlawfully sublet the suit premises in the year 1975 to defendant nos.2 to 4. By carrying out amendment to the plaint , it was alleged that during the pendency of the suit, the defendant nos.2 to 4 have illegally sublet a part of the suit premises to defendant nos.5 and 6 who are Advocates. 6. The suit was contested by the 2nd respondent by filing a written statement. He admitted that earlier the suit was filed in the year 1962 and that the said suit was decreed. Appeal preferred by the 1st defendant was dismissed. The 2nd defendant also admitted the consent terms in the Special Civil Application filed by 5 wp1348.sxw the 1st defendant. The 2nd defendant denied that a sum of Rs.90/- per month was the standard rent. The 2nd defendant claimed that he was unaware of the fact that the plaintiff has served notice dated 2nd May 1977 to the 1st defendant. The second defendant did not admit that the 1st defendant received the said notice on 4th May 1977 or on any other date. The 2nd defendant pleaded ignorance about the three letters relied upon by the plaintiff addressed to the 1st defendant. It is contended that in the year 1977, the 2nd defendant has sent arrears of rent by money order which the plaintiff refused to accept. The 2nd defendant admitted that the 1st defendant has not been using the suit premises since last more than six months. It is contended that the 1st defendant had left Pune for good in the year 1974. The 2nd defendant denied the allegations of sub-tenancy and contended that the plaintiff was fully aware that the business was being run by the 1st defendant and his younger brother. The 2nd defendant contended that he along with the 4th defendant were the sons of the younger brother of the 1st defendant and the 3rd defendant is the widow of the 1st defendant s younger brother. It is contended that the plaintiff was aware that the business was run by the family of the 1st defendant and his younger brother. It is contended that though the business was run in 6 wp1348.sxw partnership, the rent receipt was passed for the purpose of convenience in the name of the 1st defendant and in fact the plaintiff was receiving the rent from 2nd and 3rd defendants. The 2nd Defendant stated that all these defendants are the tenants in respect of the suit premises and that the plaintiff has repeatedly accepted the rent from the 2nd and 3rd defendants knowing fully well that the 1st defendant had shifted to Bombay. It is contended that the plaintiff was fully aware that the 1st defendant was on bad terms with the other defendants and taking advantage of the situation, the plaintiff thought it fit that the 2nd to 4th defendants were kept in dark about the alleged notices demanding rent. It is contended that 2nd to 4th defendants had shown all the agreements to the plaintiff s Advocate. In paragraph 8 of the written statement, the 2nd defendant contended that the plaintiff was aware that the 2nd defendant was in possession of the suit premises in his own right and as a recognized tenant. 7 The 3rd defendant filed a separate written statement. The 3rd defendant pleaded ignorance about the earlier suit filed by the plaintiff in the year 1962 and subsequent settlement. The 3rd defendant pleaded ignorance about the notices issued by the plaintiff to the 1st defendant. The 7 wp1348.sxw same is the case made out by the 3rd defendant as regards letters allegedly sent by the plaintiff to the 1st defendant. In paragraph 4 of the written statement, the 3rd defendant contended that the suit premises was taken on on lease by the 1st defendant-J.D.Khurana. After dissolution of the partnership between the 1st defendant, 2nd defendant-Anil Khurana, Shiv Dayal Khurana, Shri Sunil Khurana , said Shiv Dayal Khurana became the sole owner of the business of Modern Dyers and has been in exclusive possession the suit premises as lawful licensee of the 1st defendant. It is contended that he was paying license fee to the plaintiff at the instance of the 1st defendant. It was contended that in view of dissolution of the partnership, said Shiv Dayal Kurana, while being a lawful licensee of the 1st defendant died on 27th December 1972. After his death, the third defendant became a lawful licensee or a direct tenant in respect of the suit premises. In the alternative, it is contended that in view of alleged termination of tenancy of the 1st defendant, the 3rd defendant became direct tenant in respect of the suit premises. 8 The 6th defendant also filed a separate written statement. The 6th defendant contended that the 1st defendant was a lawful tenant in respect of the suit premises and was carrying on 8 wp1348.sxw business in the suit premises with the 2nd defendant. The 6th defendant denied the allegation that the 1st defendant has sublet the suit premises to the 2nd to 4th defendants. It was contended that the plaintiff was aware that the 2nd defendant was conducting business in the suit premises on behalf of the 1st defendant. It was contended that the 2nd defendant was liable to pay rent to the plaintiff and he was all along ready and willing to pay the rent, but with a view to evict the defendants from the suit premises, the plaintiff did not accept the rent from the 2nd defendant. It was contended that the said 6th defendant is an Advocate who had taken one room of 10 x 12 from the 1 st defendant as licensee under the agreement of license. As she was in possession of the said room as a licensee on 1st February 1973, she became a lawful tenant of that room. She contended that the 5th defendant was working as her junior lawyer who had no concern with the suit premises. 9 The widow of the original plaintiff was brought on record during the pendency of the suit who deposed on behalf of the plaintiff. The 2nd defendant examined himself. The 6th defendant examined herself. It will not be out of place here to note an important factual aspect that the 6th defendant represented the 2nd to 4th 9 wp1348.sxw defendants as their Advocate in the suit. 10 The Trial Court framed various issues. The Trial Court held that the 1st defendant was a defaulter in payment of rent for more than six months. The Trial Court held that the 1st defendant had sublet the suit premises to 2nd to 4th defendants and 2nd to 4th defendants sublet the suit premises to 5th and 6th defendants. The Trial Court proceeded to pass a decree for possession. An appeal was preferred by the 2nd defendant. The title of the Judgment of the Appellate court shows that the 6th defendant represented the legal representatives of the 1st defendant as well as the 3rd defendant and 4th defendant in the Appeal as their Advocate. The Appellate Court came to the conclusion that the Trial Court committed an error by passing a decree on the ground of arrears of rent, subletting and non- user.Hence the decree was set aside. 11 The learned counsel for the legal representatives of the original plaintiff has taken me through the pleadings and notes of evidence and Judgments of the courts below. He submitted that though there is no material on record, the Appellate Court recorded a finding that partnership firm of the 1st defendant was carrying on business from the year 1950 and that the partnership firm was the tenant. He 10 wp1348.sxw submitted that it is not the case made out by the 2nd defendant that the partnership was the tenant. He submitted that the consent terms filed in the earlier suit established that the 1st defendant was the only tenant. He submitted that in the written statement of the 2nd defendant, an inconsistent stand was taken that 2nd to 4th defendants are the tenants. He submitted that the findings recorded by the Appellate Court are totally contrary to the evidence on record. He submitted that the notice dated 2nd May 1977 was duly served to the 1st defendant and that the 1st defendant neither tendered the rent nor filed an application for fixing the standard rent and therefore, a decree for possession should have followed. On a query made by this Court, the learned counsel for the legal representatives of the plaintiff submitted that notice dated 29th April/2nd May 1977 is the notice on the basis of which the decree on the ground of arrears of rend has been claimed. He submitted that there was no reason for the Appellate Court to set aside the finding of the Trial Court on the ground of non-user. He submitted that the findings recorded by the Appellate Court are perverse. 12 The learned counsel for the 2nd defendant submitted that the 1st defendant was not served with the suit summons. He submitted that the 11 wp1348.sxw Trial Court relied upon an affidavit of the plaintiff at Exh.29 in which he stated that on the acknowledgment of the summons sent by the post, there is a signature of the son of the 1st defendant. He submitted that such a service cannot be treated as a good service in view of express provisions of the Code of Civil Procedure,1908. He submitted that as there was no legal service of summons to the 1st defendant, the suit cannot be decreed on the ground of arrears of rent. He pointed out that going by the assertions made notice dated 29th April/2nd May 1977, on the date of notice, arrears of rent were of 5 months and therefore, section 12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947( hereinafter referred to as the said Act) will not be applicable. He submitted that the plaintiff has not proved that the 1st defendant was the tenant. Inviting the attention of the Court to the deposition of the 2nd defendant, he pointed out that the 2nd defendant is in possession of the premises from the year 1950 and he became partner in the year 1970. He pointed out that the partnership deed is placed on record which shows that the partnership firm was in existence in the year 1970 and was carrying on business in the suit premises. He submitted that in view of this fact, by no stretch of imagination, 2nd to 4th defendants can be called out as unlawful sub- 12 wp1348.sxw tenants. He submitted that the Appellate Court was justified in coming to the conclusion that the plea of sub tenancy was not established. He submitted that the case of the plaintiff is that the 6th defendant was inducted by the 2nd to 4th defendants but 6th defendant claimed to have been inducted by the 1st defendant. He submitted that as partnership firm was carrying on business of which even the 1st defendant was a partner, a decree could not have been passed on the ground of non user. He submitted that no interference is called for in the decree of dismissal of suit. 13 I have carefully considered the submissions. It must be stated here that the contention raised by the learned counsel for the second defendant in the writ petition that the 1st defendant was not properly served with the suit summons, was not raised before the Courts below by the 2nd defendant and the said contention is sought to be raised for the first time at the time of final hearing of the writ petition. Moreover, during the pendency of the suit, the 1st defendant died and his legal representatives namely widow, sons and daughters were brought on record. There is nothing on record to show that the legal representatives of the 1st defendant raised any such contention regarding failure to serve summons to the 1st 13 wp1348.sxw defendant. When this aspect was brought to the notice of the learned counsel for the 2nd defendant during the course of his submissions, the learned counsel for the 2nd defendant sought time to peruse the record of the Trial Court for ascertaining whether the legal representatives 1st defendant were served with suit summons. This Court did not grant time as such a contention was not never raised before the Courts below and for the first time in September 2010, such contention cannot be allowed to be raised by the 2nd defendant in the writ petition of the year 1995. 14 The first question to be decided is as regards ground of subletting urged by the 1st defendant. The case of the plaintiff is that the 1st defendant has sublet the suit premises to 2nd to 4th defendants sometimes in the year 1975 and during the pendency of the suit, 2nd to 4th defendants sublet a part of the suit premises to 5th and 6th defendants who are Advocates. 15 In the written statement filed by the 2nd defendant, there is a specific admission in paragraph 6 that the 1st defendant was not using the suit premises for more than last six months. It is contended that the 1st defendant left Pune for the good in the year 1974. As far as plea of sub tenancy is concerned, different stands have 14 wp1348.sxw been taken by the 2nd defendant in the written statement. The first stand in paragraph 6 is that the 1st defendant and his younger brother were carrying on family business in the suit premises. It is stated that the 2nd to 4th defendants were the legal heirs of the younger brother. The second contention is that the business was run in partnership between the 1st defendant and the father of 2nd defendant. It was contended that the 2nd and 3rd defendants were paying rent and the receipt was passed in the name of the 1st defendant for the purpose of convenience. Thereafter, another stand is taken that  actually all these defendants are tenants of the suit premises . It was alleged that the plaintiff has accepted the rent from the 2nd and 3rd defendants. It must be noted here that in the written statement, the 2nd defendant has not taken a stand that it was the partnership firm which was the tenant. The 2nd defendant has not stated the year in which the partnership firm was constituted. 16 It must be stated here that that the dictation of the Judgment commenced in open Court on 21st September 2010. On that day, a request was made by the learned counsel for the 2nd defendant for grant of time of couple of days to enable the 2nd defendant to explore the possibility of settlement. The request was 15 wp1348.sxw granted. On 24th September 2010, the learned counsel for the 2nd respondent pointed out that amicable settlement is not possible and therefore for further dictation, petition is kept today. After the matter was called out, one of the respondents made a request for adjournment on the ground that the said respondent desires to engage another Advocate. The said request cannot be acceded to as the matter was fully argued and the dictation of the Judgment has already been started. 17 As stated earlier, a contradictory stand was taken by the 2nd respondent in the written statement. In paragraph 6 of the written statement, he contended that the plaintiff was receiving rent from 2nd and 3rd respondents knowing fully well that the 1st defendant was in Bombay. It was contended that  all these defendants are the tenants of the suit premises. The 3rd defendant came out with another version that her husband become sole owner of the business in the suit premises and that he was a licensee of the 1st defendant after dissolution of the partnership. The 3rd defendant contended that she is a lawful licensee of suit premises. It was further contended that the 3rd defendant has become a direct tenant of the plaintiff. 18. In the deposition of the 2nd defendant, he 16 wp1348.sxw came out with a case that he came to the suit premises in the year 1950. This deposition was recorded on 14th March 1989 when he disclosed his age as 42 years. Thus, in the year 1950, the age of the 2nd defendant must be 3 years. Thus, he claims to have entered the suit business premises when he was 3 years old. He stated that that the 1st defendant was the eldest brother in the family. He stated that he joined his father as a partner in the year 1970 and the partnership is registered. He stated that the partnership was filing income tax returns and partnership firm was paying the rent. He referred to the compromise in the earlier suit recorded in the High Court under which the 1st defendant was accepted as a tenant. He stated that after the compromise, he went to the plaintiff for paying rent but the plaintiff did not accept the rent. He stated that the 1st defendant left the suit premises in the year 1975. In examination-in-chief, the 2nd defendant has not stated as to who is the tenant. He has not stated that the 1st defendant was not the tenant. He has not stated that the partnership firm was the tenant. He has merely stated that the partnership firm was paying the rent. In examination-in-chief, the 2nd defendant stated that he is not aware of the board displayed by the 6th defendant on the suit premises. He stated that the 6th defendant never used the suit 17 wp1348.sxw premises for her consultancy. Thereafter, he stated that the premises was not taken by the 1st defendant alone ,but he had taken it on behalf of all of them. In the cross examination, the 2nd defendant admitted that the rent receipts were in the name of the 1st defendant. He denied the correctness of the suggestion that the rent receipts were passed in the name of the 1st defendant in his individual capacity. In the cross examination, the 2nd defendant admitted that the 6th defendant had a consulting room in the suit premises. However, he denied that the 6th defendant came to the suit premises during the pendency of the suit. He denied the correctness of the suggestion that the suit premises has been sublet by him to the 6th defendant. In the re-examination he stated that after the 1st defendant left the suit premises, he himself and his father were carrying on business in the suit premises till the death of his father. 19 The 6th defendant stepped into witness box and stated that she had put her board on the suit premises in October 1972 with the permission of the 1st defendant. She stated that she has a consulting room in the suit premises. She denied to be the sub-tenant of the 2nd defendant. In the cross examination she stated that there was no written agreement between 18 wp1348.sxw herself and the 1st defendant. However, her stand in the written statement was that she had taken the suit premises under an agreement of license from 1st defendant. Her specific stand in the pleading is that the 2nd defendant was carrying on business on behalf of the 1st defendant. As pointed out earlier, the 6th defendant represented the 2nd defendant in the suit as his Advocate. The 2nd defendant in the examination- in-chief stated that the 6th defendant never used the suit premises for her consultancy. However, the 2nd defendant admitted in the cross examination that the 6th defendant had a consulting room in the suit premises. The statement of the 6th defendant is that  I have consulting room in the suit premises . In the written