MERAJBIBI W/O MUYUDDIN GULAMNABI Vs. GULAMMAHMAD MUSABHAI

JUDGEMENT

(1.) THE petitioners -original defendant Nos. 2 and 3 in H.R.P. Suit No. 512 of 1993 have approached this Court under Section 29(2) of The Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as "the Bombay Rent Act" for short) assailing the judgment and order dated 4.10.2002 passed by the Appellate Bench of the Small Causes Court of Ahmedabad in Civil Appeal No. 154 of 2000 confirming the judgment and order of small Causes Court rendered on 21.7.2000 in H.R.P.Suit No. 512 of 1993.

(2.) FACTS in brief deserve to be set out as under.

(3.) THE plaintiff filed HRP suit No. 512 of 1993 in the Small Causes Court for eviction of the present petitioners from the suit premises i.e. Municipal Census (MC) No. 2724/1 on the ground of non -payment of rent for more than 6 months and on the ground of subletting. The plaintiff No. 1 and his daughters had to file a suit as the plaintiff purchased the suit property from original owner on 3.1.1983. The plaintiff became the owner of two properties namely M.C. No. 2724/1 and 2724/2. Both these properties are having a common wall. Both these properties were originally rented by two real brothers namely Mohmad Yasin and Amir Yasin respectively. Mohmad Yasin was tenant in property bearing MC No. 2724/1 i.e the suit premises in question, whereas, Amir Yasin was tenant of MC No. 2724/2. After demise of both the brothers, their widows and family members continuing residing in the respectively premises as tenants. The widow of Mohmad Yasin ? tenant of MCS No. 2724/1 died on 29.1.1992 leaving behind her married daughter, who resided in a separate premises and who is joined as defendant No. 1 in the HRP Suit No. 512 of 1993. The widow of Amir Yasin ? a tenant of MC No. 2724/2 namely Husenabibi with her daughter Hajibibi have been joined as defendant Nos. 2 and 3 respectively as they resided in the premises and claimed tenancy right by virtue of provisions of Section 5(11)(c)(i) of the Act on the ground that after demise of male members, all the respective tenants namely Mohmad Yasin and Amir Yasin, there was no male members left in the family of deceased and therefore, family started residing jointly and Hajibibi's husband Ajmadullakhan started taking care of the family. The family's were closely related as widows of two brothers were said to have been residing together occupying the two premises i.e. MC Nos. 2724/1 and 2724/2, the plaintiff issued statutory notice upon defendant No. 1, service whereof is duly proved as per the finding recorded by the trial Court. The trial Court has recorded that requisite statutory notice under Section 12(2) of the Act read with Section 10 of the Transfer of Property Act had been served upon defendant No. 1 Mehrajbibi. Despite this notice, no compliance with regard to payment of rent was made when the statutory notice gave, rise in favour of the plaintiffs to file suit for eviction decree and accordingly, the suit was filed as it is stated hereinabove on the ground of non -payment of rent within stipulated time limit and subletting the premises by inducting Husenabibi and Hajibibi -defendant Nos. 2 and 3 respectively. The said suit was resisted by the defendants and the defendants filed written statement jointly through their power of attorney holder Shri Ajmadullahkhan, who happens to be the husband of Hajibibi, defendant No. 3 and son -in -law of Husenabibi -defendant No. 2. Said Ajmadullakhan was given power of attorney by Mehrajbibi, Hussanabibi and Hajibibi for defending their stand in the suit. The defendants have in the written statement stated that there was no statutory notice to defendant Nos. 2 and 3 for terminating the tenancy. The defendant Nos. 2 and 3 were residing as family members with Ayeshabibi widow of Mohmad Yasin, who was original tenant of MC No. 2724/1 and thus, they became statutory tenants by operation of provisions of Section 5(11)(c)(i) of the Act and Ayeshabibi permitted them to occupy the premises under written agreement with her. It is further submitted that Mehrajbibi has submitted that she was no more tenant and she was not claiming any right as tenant in the suit premises. It is important to note here that joint reply i.e written statement was filed on behalf of all the defendants and in this joint written statement defendant No. 1 daughter of Ayeshabibi ? deceased tenant has expressly stated that she did not claim any tenancy right nor is she claimed any tenancy right in the suit premises. It was further alleged in the written statement on behalf of defendant Nos. 2 and 3 that they were ready and willing to pay the rent and they sent money order which was not accepted by landlord. The trial Court after elaborate discussion and evidence on record, decreed the suit in favour of the plaintiffs vide judgment and order dated 21.7.2000. The said judgment and order of the trial Court was assailed by the defendants by preferring Civil Appeal No. 154 of 2000 before the Appellate Bench of the Small Causes Court at Ahmedabad and Appellate Bench of the Small Causes Court also after elaborate reasoning dismissed the Appeal confirming the decree of the trial Court by judgment and order dated 4.10.2002. The present revision application is filed challenging the said judgment and order of the Appellate Bench of the Small Causes Court under the provision of Section 29(2) of the Bombay Rent Act.