MOHMAD YUSUF ANSARI Vs. G M SHARFUDDIN

JUDGEMENT

(1.) BY this petition the petitioner tenant challenges the judgement and order dated 3rd July 1987 passed by the learned District Judge, Thane allowing Civil Appeal no. 394 of 1984 and thereby passing a decree for possession against the petitioner.

(2.) THE respondent no. 1 is the owner and landlord of the property bearing Municipal House no. 2, Saudagar mohalla, Bhiwandi. The respondent no. 2 was a tenant in respect of the audit premises on monthly rent of rs. 32/ -. Dr. M. I. Ansari, the petitioner who is since deceased and whose their have been brought on record was a sub-tenant of the respondent no. 2. The respondent no. 1 filed a audit against the respondent no. 2 and the petitioner bearing regular Civil Suit no. 444 of 1974 in the Court of Civil Judge, Jr. Division for position on the ground that respondent no. 2 had illegally sublet front portion of audit premises to the petitioner and also on the ground that the respondent no. 2 was a defaulter in payment of the rent. The trial Court held that sub tenancy was created with the permission of the respondent no. 1. As regards the default the trial Court held that respondent no. 2 was a defaulter in payment of the rent and passed a decree for possession only on the ground of default. The petitioner and the respondent no. 2 filed two separate appeals challenging the decree for possession. The appellate court confirmed the decree for possession. That judgement is impugned in this Writ Petition.

(3.) IN the plaint which was filed in the year 1974, the respondent no. 1 has alleged that the respondent no. 1 had illegally and unlawfully sub-let the front portion of the suit premises to the petitioner about 9 years ago. The respondent no. 12 landlord has thus admitted that the subletting was at least from the year 1965. The provisions of the Bombay Rents, Hotel lodging House Rates Control Act, 1947 (for short 'the act') were amended by Maharashtra Act no. 18 of 1987. Under amended sub-section (2) of section 15, the prohibition against subletting is deemed to have had no effect before 1st February 1973. In other words, no decree for eviction on the ground of unlawful letting can be passed if the sub-tenancy was created prior to 1st February 1973. As stated earlier, the sub-tenancy in the present case has been created admittedly prior to 1st February 1973 and therefore, no decree for eviction could be passed against the petitioner on the ground of subletting.