KAMALABAI P LALJI Vs. J HIRJI AND CO

JUDGEMENT

(1.) BOTH the Writ Petitions are directed against a judgment and order dated 16th March, 1991 passed by an appellate bench of the Small Causes Court dismissing an appeal bearing Appeal No. 507 of 1998. The Writ Petition No. 738 of 1991 is filed by the landlords (the plaintiffs) and the Writ petition No. 4202 of 1991 is filed by the subtenants (the defendant nos. 3,4, 5 and 6 ). Both the petitions arise out of a suit bearing R. A. E. and R. Suit no. 856/2819 filed by the landlords for possession of Vakhar 1 (Godown 1) on the ground floor of the property know as Shree govardhan Niketan situate at Gaiwadi, Cavel street No. 134-40, Bombay - 400 002 (for short "the suit premises" ). For the sake of convenience, the parties are hereinafter referred to by their respective status in the suit.

(2.) THE plaintiffs are the landlords and the defendant no. 1 firm is the original tenant. It was in arrears of rent and permitted increases from 1st April, 1978 to 31st december, 1978. By a notice to quit dated 15th January, 1979, the plaintiffs called upon the defendant no. 1 to pay the arrears of rent and also demanded possession of the suit premises. As the defendant no. 1 failed to pay the rent as per the demand notice, the plaintiffs filed a suit against the defendant no. 1 for possession only on the ground of default. The plaint was amended in September, 1986 and defendant no. 2 was added as a party to the suit alleging that the defendant no. 1 had unlawfully subject or unlawfully given on license the whole or part of the suit premises to the defendant no. 2. A decree was also sought on the ground of unlawful subletting to defendant no. 2. The plaint was further amended in January, 1988 and defendant nos. 3 to 6 were added as parties. By this amendment, the plaintiffs alleged that on or about 1st February, 1967, the defendant no. 1 had unlawfully sublet or unlawfully given on licence the entire suit premises to the defendant no. 3 firm and the defendant nos. 4 to 5 were its partners. By a judgment and order dated 12th December, 1988, learned single Judge of the Small Causes Court passed a decree for possession against all the defendants on the ground of default and subletting. He held that the defendant no. 1 was in arrears of rent for a period of more than six months and had failed to pay the same despite notice of demand dated 15th July, 1979 and that the defendant no. l had unlawfully sublet or assigned its interest in the suit premises to the defendant no. 2 since April, 1985. He also held that the defendant no. l had unlawfully sublet the suit premises to the defendant no. 3 firm from 1st February, 1967. In view of the findings in favour of the plaintiffs on all the issues, the trial Court passed a decree for possession against all the defendants. The defendant no. 2 did not file any appeal against the said judgment. However, the defendant no. l and defendant nos. 3 to 6 jointly filed an appeal against bearing appeal no. 507 of 1988 against the said judgment and decree joining the plaintiffs and defendant no. 2 as respondents. The appellate Court held that the plaintiffs had failed to prove that the defendant no. 2 was in use and occupation of the suit premises as unlawful sub-tenant. The appellate Court, however, held that defendant nos. 3 to 6 were sub-tenants. It further held that on the plaintiffs' own averments, the defendant nos. 3 to 6 were sub-tenants with effect from 1st february, 1967 and by reason of amendment to the Bombay Rents Hotel and Lodging houses Rates Control Act 1947 (for short 'the act'), the subletting prior to 1st February, 1973 was legalised and therefore, defendant nos. 3 to 6 were not unlawful sub-tenants. As regards the ground of default, the appellate court held that the defendant no. l was in arrears of rent for a period of more than six months and had failed to pay the rent despite notice of demand dated 15th January, 1979. The appellate Court, therefore, dismissed the appeal and confirmed the decree for possession passed against the defendants. That judgment is challenged by the defendant nos. 3,5 and 6 (defendant no. 4 having died in between) by filing of a Writ Petition bearing no. 4202 of 1991. The findings recorded by the appellate Court that (i) the plaintiff had not proved that the defendant no. 1 had sublet the premises to defendant no. 2 and (ii) that the defendant nos. 3 and 6 were the lawful sub-tenants are challenged by the plaintiffs by filing the Writ Petition No. 738 of 1991. Regarding subletting to defendant nos. 3 to 6.

(3.) IN paragraph no. 3-A of the plaint introduced by an amendment, the plaintiffs have stated thus :