DAULATBEN S PYARASAHEB Vs. SHANTILAL GOVINDJI MISTRY

JUDGEMENT

(1.) Present is a revision petition under Section-29(2) of the Bombay Rents, Hotel & Lodging House Rates Control, 1947 ("the Rent Act") against the Judgement dated 31st January, 1996 passed in Regular Civil Appeal No.152 of 1986 by the learned Assistant Judge, Valsad at Navsari reversing the Judgement and Decree dated 22nd July, 1986 passed in Rent Suit No.38 of 1984 by the learned Civil Judge (S.D.), Navsari, whereunder the Appellate Court has reversed the decree, which was passed against the defendant for his eviction.

(2.) The plaintiff-applicant had filed the suit on various grounds, namely, illegal subletting/parting with possession by the tenants in favour of others, illegal construction without permission or authority of the landlord, non-user, breach of other conditions of the Rent Note and on the ground of arrears of rent. The tenant appeared before the learned trial Court and submitted that there was no subletting, they were not in arrears of rent, they did not make any illegal construction, the property was being regularly used by them and they did not commit breach of any conditions. After recording the evidence and hearing the parties, the trial Court observed that the tenant was in arrears of rent, but, as he had deposited the arrears, it accordingly issued a direction in favour of the landlord for payment of the said rent deposited in the Court. In relation to illegal construction, non-user for six months or more without any sufficient cause or breach of any other condition, the trial Court refused to grant any decree, but, granted decree in favour of the landlord holding, inter alia, that the tenant has sublet the premises or in the alternative has parted with possession in favour of defendant No.4, namely, Manjulaben Shantilal Mistry, who was running the business in the name of M/s.Jayshree Traders. The opponent, being aggrieved by the said decree of eviction, filed an appeal under Section-29 of the Rent Act. The Appellate Court did not interfere in the matter in relation to illegal construction, non-user, breach of condition and arrears of rent as neither there were cross objections on behalf of the plaintiff nor it appears from the records that the plaintiff's ever submitted to the learned Appellate Court that he wanted to support the decree on these grounds, which were not held proved in his favour by the trial Court. The Appellate Court, however, found that the landlord has failed in proving the creation of sub-tenancy or parting with possession. It accordingly allowed the appeal and dismissed the suit. The landlord now, being aggrieved by the said appellate judgement and decree, is before this Court.

(3.) The learned Counsel for the applicants submits that from the records, it would clearly appear that the tenancy was created in favour of Govindjibhai Morarjibhai Mistry and Dolatbhai Govindji Mistry and they have died during the pendency of the appeal and their legal representatives being not brought on record, the appeal had abated. It was also submitted that from the records, it would clearly appear that the sub-tenant/defendant No.4, Manjulaben Shantilal Mistry, was carrying on and was running a business in the suit premises in the name and style of M/s.Jayshree Traders and as the fact is proved, the tenant was liable to be evicted. It was also submitted that the two Courts below were unjustified in not granting decree on the ground of arrears of rent despite recording the findings that the tenant was in arrears of rent of Rs.1,832/- on the date of the suit. The submission is that the appellate judgement and decree deserves to be set aside.