VIJAYA MADHUKAR DESAI Vs. BHARAT SHANTILAL MEHTA

JUDGEMENT

(1.) By this revision application, applicants (original defendant nos.5, 6 and 8) challenge a decree of eviction passed by the appellate bench of the Small Causes Court on 19 March 2010.

(2.) Respondent nos.1 to 5 are the owners and landlords of the suit premises which are commercial premises admeasuring about 10,000 sq.ft situated at Goregaon(W) Mumbai. By an agreement dated 23 March 1966, they let out to the respondent nos.6 to 9 (the defendant nos.1 to 4) the suit premises on a monthly rent of Rs.4811/. The defendant nos.1 to 4 were carrying out business in the partnership in the suit premises in the name and style of M/s.Town Printary. In course of time, some of the defendant nos. 1 to 4 died and the remaining retired from the firm. Eventually, defendant nos.5 to 9 came in possession of the suit premises and continued the business in partnership under the same name i.e. in the name of M/s.Town Printary. On the defendant nos.1 to 4 ceasing to be the partners and the defendant nos.5 to 9 coming in possession of the suit premises, the landlords issued a notice to quit which was followed by a suit for eviction interalia on the ground of subletting. The trial court dismissed the suit. On appeal, the appellate bench of the Small Causes Court allowed the appeal and held that defendant nos.5 to 9 were unlawful subtenants and passed a decree for possession. That decision is impugned in the present revision.

(3.) Mr.Walavalkar, learned counsel for the applicants submitted that the defendant nos.1 to 4 were not the tenants but the partnership firm viz. M/s.Town Printary of which they were the partners was the tenant of the suit premises and since the same firm was continued there was not subletting. He invited my attention to the agreement of tenancy dated 23 March 1966 (Exhibit A to the application) and submitted that in the agreement after the names of four defendants, the words "of M/s.Town Printary" were written indicating that defendant nos.1 to 4 had taken the premises on rent not for themselves but for the partnership firm viz. M/s.Town Printary. The partnership firm was reconstituted from time to time and presently, defendant nos.5 to 9 were the partners of the partnership firm. Since the same partnership firm continues, it cannot be held that defendant nos.5 to 9 were the unlawful subtenants. In support of his submission, he referred to and relied upon a decision of this Court in Shah Babulal @ Gangaji Devji v. Prakash Ratansey Merchant and Ors.,1986 BomRentCas 122, as also to another decision of this Court in the case of Bhairulal Balmukund Verma v. Poonamchand Kasturchand Sancheti and Anr., 1997 BomRentCas 270