SHOEB HABIB BHIMJI Vs. SOHABAI DOOUGARSI MALANI

JUDGEMENT

(1.) THIS Court had passed an order on 6th January 1992 making absolute the rule issued earlier and quashing order dated 22nd June 1979 passed by the trial Court in R.A.E. Suit No. 1888 of 1967 and the order dated 31st August 1984/1st September 1984 passed by the Appellate Court in Appeal No. 500 of 1979, and Suit No. 1888 of 1967 was ordered dated 6th January 1992 was an ex parte and the same was set aside on 9th January 1992. It is in these circumstances that this writ petition is heard today.

(2.) RESPONDENT No. 1 as landlady filed Suit No. 1888 of 1967 against Habib Yusuf Bhimji (original defendant No. 1 who has died and whose heirs are present petitioners) and against respondent No. 2 (original defendant No. 2) for recovering possession of the suit premises on various grounds under the Bombay Rent Act. Mr. A.A. Sayed submitted that only one ground was pressed by the landlady-respondent No. 1 viz, that her tenant Habib Yusuf Bhimji had unlawfully sublet the premises to respondent No. 1 Abdul Kader Lalmohamed, and that in view of the fact that the law has been amended in 1987 providing for subletting prior to 1st February, 1973 ceasing to be a ground for eviction, the first respondent's suit must necessarily be dismissed. The withdrawal of grounds other than subletting as is urged by Mr. Sayed can be seen from the order dated 4th October 1979 passed by the Appellate Bench of the Court of Small Causes. That order reads as follows :-

(3.) IT must be pointed out that on 4th October 1979 the 1st respondent requested for expeditious hearing of the appeal and for this purpose she, through her Advocate made the statement that she had already given up the other grounds in the trial Court and "he also states that he is not pressing the grounds other than unlawful subletting." The landlord's Advocate made this statement before the Lower Appellate Bench for the specific purpose of obtaining an order for expeditious hearing of the appeal and having made this statement the Appellate Bench granted his request and ordered that the hearing of the appeal be expedited. What would be the position if at that time, prior to the 1987 amendment in the Rent Act, the Appellate Bench had decided the question of unlawful subletting against the landlady. Could there landlady then ask the Appellate Bench to decide the ground of profiteering ? Clearly the answer is "no". Even before the law was changed in 1987 the landlady could have pleaded the ground of profiteering. It was not a new ground introduced in 1987 as an alternative after legalising subletting and it was given up though available.