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Bombay High CourtIndian Cases

Dharamsas Mangilal Jain vs Shrikumar And Ors. on 18 September 1982

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Bombay High Court
Dharamsas Mangilal Jain vs Shrikumar And Ors. on 18 September, 1982
Equivalent citations: AIR1983BOM114
1. This is the landlords’ petitioner, whose suit was decree by the Third Additional Small Causes Court, holding that defendants Nos. 1 and 2 were not in need of the suit premises and the landlord was entitled to possession because the tenant, since the coming into operation of the Bombay Rents, Hotel and Lodging House Rates Control Act, was unlawfully sublet the tenanted. premises, being House No. 319, situated in Kirkee, the Cantonment Area of Poona Town. That decree was, however, set aside in appeal by the District Court, Pune, holding that the sub-letting was in the year 1968 and the provisions of the Act were applied to the area in year 1969. Thus the sub-letting was not unlawful.

2. That order vacating the decree by the appeal Court is challenged in the present petition.

3. The fact not in dispute and as found are that the suit premises were tenanted to defendants Nos. 1 and 2 as monthly tenants. The plaintiff served the notice of termination of that tenancy on Dec. 20, 1971, inter alia, on the ground that the learned premises were entirely sub-let by defendants Nos. 1 and 2 in favour of defendants No. 3. In the appeal Court a Purshis was filed that defendants No. 3 was put in the occupation of the suit premises as a subtenant in 1968. The appeal Court has found that the provisions of the Bombay Rent Act were made applicable by a Notification to the Cantonment Area as from Dec. 1969. Holding that as the sub-letting was in 1968, the provisions of clause (e) of sub-section (1). of s. 13 of the Bombay Rent Act were not attracted, the appeal Court vacated the trial Court’s decree.

4. The narrow question is whether that order is correct.

5. It is well settled that the provisions of s. 13(1) and the different clauses furnish the grounds on the basis of which the landlord, who is other-wise not entitled to recover possession is entitled to recover possession of the tenant premises. As far as the sub-letting is concerned, cl.(e) enjoins that the landlord has to satisfy the Court that the tenant has, since the coming into operation of the Bombay Rent act, unlawfully sub-let the premises or any part thereof. The words “has sub-let:” are used in present prefect tense and contemplate a completed event connected in some way with the present time. A similar phrase available in S. 13(1)(e) of the Rajashthan Premises (Control of Rent and Eviction) Act has been interpreted by the Supreme Court in the case of Gappulal v. Shriji Dwarkadheeshji. , to convey within its meaning any sub-letting which was made in the past was has continued up to the present time and it did not matter that the sub-letting was either before or after the Act came into force. The terms of cl.(e), therefore, have to be understood not only with reference to the time when the subletting began but also when the subletting began but also when the action is brought and the landlord seeks to satisfy the conditions of that clause. Upon this aspect, is obvious that when the subletting is with regard to the tenement taken on monthly basis, it is also assumed, as the facts indicate in the present case, that the subletting is on the same premises on monthly basis. In other words, the sub-tenancy has a tenure of a month which ends by the month and arises in his favour every month.

6. While considering the provisions of the Kerala Building (Lease and Rent Control) Act, S 11(4)(i), which permitted the landlord to resume possession where subletting of the premises was without the consent of the landlord or in absence of right to documents so under a lease deed in the case of K. K. Krishna v. M. K. Vijaya Raghavan, , the Supreme Court ruled that right under S. 108(j) of the T.P. Act was no defence when the conditions of that provisions were fully satisfied. It was there ruled that all the rights conferred don the landlord and tenant by S. 108 and other provisions of the T. P. Act have not been left intact and if a State Rent Act makes provisions for eviction on certain specified grounds, eviction cannot be resisted on the basis of right conferred by the T. P. Act. It is, thus, obvious that what has to be satisfied by the landlord is the requirement under a particular clause on the basis of which a decree for possession is sought.

7. Now, to be the unlawful subletting; the provisions of S. 15(1) of the Bombay Rent Act prescribe that after the coming into force of the law, but subject to any contract to the contrary,. it would not be lawful for the tenant to sublet whole or any portion of the premises. Thus, the subletting of the monthly tenancy and its continuance after the coming into force of the Act would be within the mischief of S. 15. There is no good reason to exclude the present subletting Court the monthly tenancy only but reason that it has initially began in 1968. It was not the case in defence in the present controversy that the sub-letting was continued either because of acquiescence or consent in writing of the landlord, or was permitted by any contract to the contrary. The existing subletting when the Act is applied, there being no agreement to save it, is well within the mischief of s. 15(1) and if made a ground satisfied requirements of clause (e) of sub-section (1) of S. 13 of the Act.

8. This being the position of the sub-letting, which was continued even after the Act applied and here being no contract pleaded permitting any such sub-letting, the landlord had satisfied the provisions of S. 13(1)(e) of Bombay Rent Act.

9. The appeal Court was, therefore, not right in vacating the decree of the trial Court.

10. The impugned order made by the appeal Court, that is, the Court of the 2nd Extra Joint Judge, Pune, in Civil Appeal No. 610 of 1976 is, therefore, set aside and the decree made by the Court of the 3rd Additional Small Causes Judge, Pune, is restored. The Rule is made absolute in these terms,. The respondent to pay the costs of the petitioner throughout.

11. Order accordingly.