LOUIS LOBO Vs. MOHAMED YUSUF MOOSA

JUDGEMENT

(1.) Petitioner/Defendant has filed this Petition challenging the decree dtd. 9/12/2005 passed by the Appellate Bench of the Small Causes Court allowing Cross Appeal No.26 of 2004 filed by Plaintiffs thereby decreeing R.A.E. Suit No.1952/5871 of 1985 and directing Petitioner /Defendant to handover possession of the suit premises to Plaintiffs. The Trial Court had decreed the R.A.E. Suit No.1952/ 5871 of 1985 on the ground of acquisition of suitable alternate accommodation by Defendant while rejecting the grounds of unauthorised subletting and bonafide requirement. Cross Appeals were filed by both the parties challenging the decree dtd. 29/4/2003 passed by the Trial Court. Petitioner/Defendant filed Appeal No.227 of 2004 challenging the eviction decree on the ground of acquisition of suitable alternate premises. On the other hand, Plaintiffs filed Cross Appeal No.26 of 2004 challenging the findings of the Trial Court on the issues of unauthorized subletting and bonafide requirement. The Appellate Court has answered the issue of acquisition of suitable alternate accommodation in favour of Defendant and against Plaintiff and to that extent, Appeal No.227 of 2004 filed by the Defendant appears to have been allowed. However, Cross Appeal No.26 of 2004 filed by Plaintiffs has also been allowed by accepting the ground of unauthorized subletting while maintaining the finding of the Trial Court on the issue of bonafide requirement. In short, the Suit is ultimately decreed by the Appellate Bench only on the ground of unauthorised subletting. The short issue that arises for consideration is whether the decree passed by the Appellate Bench on the ground of unauthorized subletting can be sustained or not.

(2.) Few basic facts required for decision of the present Petition are that Plaintiffs are landlords in respect of the entire third floor premises of the house known as 'Minoo Mansion' situated at 470-472, Jagannath Shankar Seth Road, Girgaum, Mumbai-400 004 (suit premises). According to Plaintiffs, Mr. Philip Lobo was inducted as monthly tenant in respect of the suit premises. Upon death of said Philip Lobo, his son-Mr. Louis Lobo (Defendant) became monthly tenant in respect of the suit premises. Plaintiffs instituted R.A.E. Suit No.1952/5871 of 1985 against Louis Lobo alleging that he illegally sublet or gave on Leave and License or transferred the suit premises to some third parties, who were in exclusive use and occupation thereof. Plaintiffs also sought recovery of possession of the suit premises on the ground of acquisition of suitable alternate accommodation by the Defendant. Plaintiffs also pleaded their bonafide requirement for seeking possession of the suit premises. Defendant appeared in the Suit and filed written statement through his constituted attorney Mr. C.F. Rodrigues. It was pleaded in the written statement that the suit premises were taken on rent by the Residential Club known as 'St. Aleixo Club of Calangute (the Club) for working men and that Mr. Philip was a leading member of the said club. That the suit premises were never used nor intended to be used by Mr. Philip Lobo or by members of his family. That the name of Mr. Philip Lobo was used only for convenience and that the rent in respect of the suit premises was always paid from the funds of the Club. Defendant therefore claimed that the Club is actually a lawful sub-tenant or protected licensee.

(3.) It appears that during pendency of the Suit, Plaintiff - Mohamed Yusuf Moosa sold the building, in which suit premises are located in favour of Mr. Parasmal Keshrimal Surana vide deed of conveyance dtd. 18/9/1991. Accordingly, original Plaintiff made an application for joining said purchaser- Parasmal Keshrimal Surana as Plaintiff No.2. The application was allowed and said Parasmal Keshrimal Surana was impleaded as Plaintiff No.2 in the Suit. It appears that Defendant filed additional written statement. Both the sides led evidence in support of their respective claims. Plaintiffs examined Mr. Mahendra Parasmal Surana, Plaintiff No.2(b) as their witness. On behalf of Defendant, Mr. John Peter Fernandes, Power of Attorney Holder of Defendant was examined as DW1. Defendant also examined Mr. Francis Rodrigues, member of the Club.