PHILATELIE ORIENT Vs. KODAK, LIMITED

JUDGEMENT

(1.) THE opponents are the landlords and they filed an ejectment suit against defendants Nos. 1 and 2. Defendant No. 1 was their tenant and he assigned his right, title and interest in the tenancy to defendant No. 2. The Small Causes Court mada an ejectment order which has been confirmed in appeal, and this is an application in revision against that order.

(2.) NOW , what the Small Causes Court held was that the action of defendant No. 1 in assigning the tenancy came within the prohibition of Section 15 and was not saved by the proviso to that section, and this is the decision that is being challenged by Mr. Rele before me. Now, under Section 12 of the Bombay Rent Act the tenant is protected if he observes and performs the conditions of the tenancy in so far as they are consistent with the provisions of the Act, and Mr. Rele has drawn my attention to the different language used between this section and the original Section 9 of the Act of 1944. There, the obligation upon the tenant to perform the conditions of the tenancy was unqualified, whereas under Section 12 if any provision of the tenancy is inconsistent with the provisions of the Act, then the tenant is not bound to observe that condition. I think there Mr. Rele. is right, but he has got to satisfy me that there is any provision of the Act which is inconsistent with the obligation of the tenant to observe the term of the tenancy with regard to assignment. It is not disputed that under the tenancy agreement between the landlord and the tenant, the tenant could not assign without the previous consent of the landlord, nor is it disputed that the previous consent was not obtained. Nor does Mr. Rele contend that the tenant did not commit a breach of the term of his agreement with the landlord. But his contention is that the tenant is freed from his obligation to observe this condition because it is not consistent with the provisions of the Act.

(3.) IN my opinion, therefore, the Courts below were right in the conclusion they came to. The result is that the rule is discharged with costs. Stay order vacated. The plaintiffs agree and undertake not to execute the order for ejectment on the petitioners undertaking to give vacant possession of the premises on or before December 31, 1954.