JYOTIBA SHANKAR KAROLE Vs. GAJANAN CHANNAPPA ANGOLKAR

JUDGEMENT

(1.) This Civil Revision Petition under Section 115 of the Code of Civil Procedure, is directed against the order dated 31 5-1982 passed by the learned Principal District Judge, Belgaum, in HRC. Revision No. 177/60 affirming the order dated 20-8-1980 passed by the learned First Additional Munsiff, Bel- gaum, in HRC. No. 323 of 1976 directing eviction of the petitioners from the schedule premises on the giound of subletting.

(2.) The premises in question is a non-residential premises (a shop) bearing C.T.S. No. 110/A, Shahepur, Belgaum The father of the 2nd respondent, who was the owner of the premises in question, mortgaged it under a possessory mortgage to the first respondent. At the time of execution of mortgage, the first petitioner was the tenant. After becoming mongagee of the sche schedule premises, the first respondent initiated the proceeding for eviction of the petitioners on the ground that the first petitioner has sub-let the premises in question to the 2nd petitioner. In addition to the ground of sub-letting, there were other grounds pleaded. It is not necessary to refer to the same because the Court of first instance has negatived those grounds, and in the revision before the District Judge, those grounds are not pursued ; therefore, for our consideration, only the ground of sub-letting survives.

(3.) It is contended on behalf of the petitioners that there is no subletting of the premises ; that though the first petitioner initially took the premises in question on rent and was conducting the business in furniture, but subsequently due to the loss suffered by him in the business, he formed a partnership along with the 2nd petitioner for conducting a stationery shop and as such it was the partnership firm consisting of the petitioners that was in occupation, and as such, there was no question of sub-letting. It is also further contended that the first respondent is not entitled to seek possession on the ground of sub-letting because he has become the moilgagee in possession of the p;emises subsequent to the formation of the partnership ; therefore, as per the definition of the word 'landlord' found in the Karnataka Rent Control Act, 1S61 (hereinafter referred to as the 'Act'), he is not entitled to rely upon the ground of sub-letting which existed prior to the date of mortgage and it was not taken advantage of by the then landlord. It is submitted that it is only such ground which comes into existence after the mortgggs is executed by the 2nd respondent, is available to the first respondent; that as the ground of subletting was available even prior to the mortgage and the 2nd respondent did not take advantage of it, the first respondent is not entitled to seek eviction of the petitioner from the premises in question on that ground.