DINANATH NARAYAN MULEY Vs. RAM MULCHAND BHATIA

JUDGEMENT

(1.) The petitioner in this petition is defendant No. 2 in a suit, being R.A.E. Suit No. 300/2083 of 1970, filed by the first respondent against him and the second respondent for possession of a shop, hereinafter referred to as "the suit premises", situated in a building called "Pushpa Bhavan" in Colaba at Bombay. The first respondent is the owner of the suit premises which is situated in a building owned by a Co-operative Society. In some previous proceedings, which need not be mentioned in detail, the second respondent has been to be the tenant of the suit premises, though originally it had been contended by the first respondent that the second respondent was a licensee and not the tenant of the suit premises. After the second respondent was held to be the tenant of the suit premises the first respondent served a notice dated 25th of May, 1968 on him determining his tenancy in respect of the suit premises. Thereafter, the second respondent continued to be in occupation of the suit premises as a statutory tenant.

(2.) In the year 1970 the suit, mention of which has been made above, was filed by the first respondent seeking eviction of the second respondent on the ground that he was in arrears of rent and that he had illegally sub-let the suit premises in favour of someone who was carrying on the business of tailoring under the name and style of "Dina Gents Tailors". Subsequently the present petitioner was added as defendant No. 2 in that suit when the first respondent came to know about his name. This was done on 17th of April, 1976. Prior to that the second respondent had already filed his written statement on 9th of September, 1970. In paragraph 8 of plaint, the first respondent had mentioned that the second respondent had parted with the possession of the suit premises in favour of another person to whom it had been sub-let after the coming into operation of Maharashtra Ordinance 3 of 1959. It was then specifically averred in the said paragraph of the plaint that the said unlawful tenant has been carrying on the tailoring business in the suit premises. In the paragraph added by amendment it was specifically mentioned that defendant No. 2, namely the petitioner, has been joined as a party defendant as he was in actual possession of the suit premises and it was also mentioned that he was not protected under the provisions of the Bombay Rent Act.

(3.) On 24th of March, 1977 the petitioner filed his points of defence. With reference to the averments made in paragraph 8 of the plaint, the petitioner mentioned that he has been in possession of the suit premises with the knowledge of the plaintiff since the year 1965 and has been carrying on his business as tailor in the name and style of "Dina Gents Tailors" He has also mentioned that he was protected under the provisions of the Bombay Rent Act. The averments in paragraph 8 of the plaint to the effect that he was an illegal sub-tenant was not even faintly denied in the points of defence. It was mentioned in a subsequent paragraph of the points of defence that the unlawful sub-letting, if any, as alleged had been legalised under the amendment to the Bombay Rent Act. In what manner that was legalised was not mentioned at all. Reading most liberally the petitioner seems to have taken the contention that he has been in occupation of the suit premises with the knowledge of the landlord, the first respondent, and, therefore, if the sub-tenancy was illegal to begin with, it became legal.