HIRALAL VALLABHRAM Vs. SHETH KASTURBHAI LALBHAI

JUDGEMENT

(1.) This Revision Application arises out of a suit originally filed by plaintiff No. 1 against defendants Nos. 1 to 4 for recovering possession of certain premises situate in the City of Ahmedabad. Plaintiff No. 1 was the owner of the premises and he had let them out to defendants Nos. 1 to 3 who were carrying on business in the firm name of Messrs. N. A. Brothers. The contractual rent was Rs. 26/per month. Some time prior to November 1956 plaintiff No. 1 found that defendant No. 4 was in possession of the premises. Plaintiff No. 1 therefore gave a notice dated 30th November 1956 terminating the tenancy of defendants Nos. 1 to 3 and calling upon them to hand over possession of the premises. It was alleged in the notice that defendants Nos. 1 to 3 had unlawfully sublet the premises to defendant No. 4 and had therefore forfeited the protection of the Rent Act. Defendants Nos. 1 to 3 were also in arrears of rent from 1st September 1956 and a demand for arrears of rent was also therefore made in the notice by plaintiff No. 1. Though the period of the notice expired on 30th December 1956 defendants Nos. 1 to 3 did not hand over possession of the premises to plaintiff No. 1 nor did they pay up the arrears of rent. Plaintiff No. 1 therefore filed the present suit on 1st March 1957 for recovering possession of the premises. Since defendant No. 4 was admittedly in possession of the premises plaintiff No. 1 impleaded him as a defendant to the suit in addition to defendants Nos. 1 to 3. There were two grounds on which possession of the premises was sought by plaintiff No. 1. The first ground was that defendants Nos. 1 to 3 were in arrears of rent at the date of the suit and were therefore not entitled to the protection of the Rent Act. The second ground was that defendants Nos. 1 to 3 had unlawfully sublet the premises to defendant No. 4 and plaintiff No. 1 was therefore entitled to recover possession of the premises under section 13(1)(e) of the Rent Act. Now curiously enough each one of the defendants put forward a different defense and the defendants put forward by them were contradictory of one another. Defendant No. 1 alleged that he had ceased to be a partner of defendants Nos. 2 and 3 since Samvat Year 2001 and that he had therefore nothing to do with the premises. Defendants Nos. 2 and 3 agreed that defendant No. 1 had ceased to be their partner but they alleged that after defendant No. 1 left the partnership they had admitted defendant No. 4 as a partner in the business which they carried on in the firm name of Dineshchandra Kashinath and that defendant No. 4 was therefore not their sub-tenant but was carrying on business in the premises in partnership with them. Defendant No. 4 came forward with a totally different story. He denied that defendants Nos. 2 and 3 had sublet the suit premises to him. He also denied that he was taken as a partner by defendants Nos. 2 and 3 in the business carried on in the premises. He alleged that defendants Nos. 1 to 3 had sold the business carried on by them as a running concern together with the stock-in-trade and goodwill thereof and as incidental to that transaction they had assigned their interest as tenant in the premises to him and contended that such assignment being permissible under the proviso to section 15(1) read with the Notification issued by the Government under that proviso plaintiff No. 1 was not entitled to recover possession of the premises from him. During the pendency to the suit plaintiff No. 1 sold the premises to plaintiff No. 2 and plaintiff No. 2therefore applied for being joined as a party plaintiff to the suit. Plaintiff No 2 also added a prayer in the application that he may be permitted to amend the plaint by introducing the additional ground that the premises were bona fide and reasonably required by him for occupation by himself. The application for adding plaintiff No. 2 as a party plaintiff to the suit was allowed but the amendment of the plaint for including the additional ground was rejected. The result was that the suit became a suit by two plaintiffs for recovery of possession of the premises against the defendants but the grounds for recovery to possession remained the same.

(2.) The suit came to be heard by the learned trial Judge on 18th February 1960 but an event happened before that which made a considerable impact on the legal issues involved in the suit. On 21st May 1959 Bombay Ordinance No. III of 1959 was promulgated and by it certain sections of the Rent Act were amended. Prior to the amendment sec. 15(1) made all sub-lettings unlawful by providing that notwithstanding anything contained in any law it shall not be lawful after the coming into operation of the Rent Act for any tenant to sublet the whole or any part of the premises let to him. If therefore any subletting was made by a tenant after the coming into operation of the Rent Act it was unlawful by reason of sec. 15(1) and it furnished a ground for eviction to the landlord under section 13(1)(e). But by the amendment sec. 15(2) was introduced which removed the bar imposed by sec. 15(1) with retrospective effect and legalized all subletting made prior to 21st May 1959 provided that the sub-tenants had entered into possession despite the bar before the commencement of the Ordinance and continued in possession at such commencement. The result was that even if it was established that defendants Nos. 1 to 3 had sublet the premises to defendant No. 4such subletting could not be said to be unlawful if defendant No. 4 continued to be in possession of the premises at the date of the commencement of the Ordinance i. e. 21 May 1959 and if such subletting was not unlawful then obviously the plaintiffs were not entitled to recover possession of the premises under sec. 13(1)(e) and the ground based on section 13 could not avail the plaintiffs.

(3.) The plaintiffs however persisted in their stand that defendants Nos. 1 to 3 had sublet the premises to defendant No. 4 and one of the issues framed by the learned trial Judge therefore was-