SATWANT KAUR Vs. ABDUL KADAR ABDUL SUBHAN

JUDGEMENT

(1.) THE facts giving rise to this application briefly are that the petitioner-plaintiff purchased a building Jawahar Nivas in 1948. One Hafizabai was the tenat of a hair cutting saloon onthe ground floor of that building. Hafizabai had sublet the premises to Abdul Subhan, father of respondents 1, 3, 4, 5 and 6 and husband of respondent No. 2 His sub-tenancy in favour of Abdul Subhan had been created before the coming into force of the Bombay Rents. Hoten and Lodging House Rates control Act 1947 (hereinafter referred to as the Act ). Abdul Subhan died on 22nd December 1950 leaving behind the respondents as his heirs. He also left another wido, who died in 1954, with whom we are no longer concerned. In 1952 the plaintiff filed a suit in ejectment against Hafizabai. On 24-6-1954 a decree in ejectment was passed against Hafizabai. When the plaintiff tried to execute the decree, respondent No. 1, original defendant No. 1 offered obstruction. He claimed to be a sub-tenant in possession of the premises. The plaintiff then took out an obstructionist notice. This was discharged on 24-6-1955 Defendant No. 1 subsequently made an applicationfor fixation of standard rent. On 25-4-57 the plaintiff served a notice on defendant No. 1 terminating his tenancy on different grounds. On 5th September, 1957 the plaintiff filed a suit against defendant No. 1 forpossession of the premises and for arrears of rent. On 11-12-1957 defendant No. 1 filed a written statement, in which he contended that the subtenancy had devolved on all the heirs of Abdul Subhan andthat as no notice had been served on the other heirs of Abdul Subhan, the notice terminating the tenancy served on him (defendant No. 1) was bad in law. On 12-6-1958 defendants Nos. 2 and 6 made an application for being made parties to the suit. They were joined, but the plaintiff did not claim any relief against them. The learned trial Judge decree the suit against the defendant No. 1 Against the order made by him the defendants appealed to a Bench of the Court of Small Causes. The appeal was allowed and the decree of the trail Court, in so far as it awarded possession of the premises to the plaintiff and mesne profits, was set aside. Against that order this revision aplication has been filed.

(2.) THE defendants' case is that after the death of Abdul Subhan they were all subtenants of the premises and that after the termination of the tenancy of Hafizabai they became tenants of the plaintiff under clause (11) in section 5 read with section 14 of the Act. This clause, as it stood on the date on which the suit was filed, defined tenant as follows:

(3.) WE are therefore, unable to accept the above arguments of Mr. Nain. In our opinion the heirs of a person, whose sub-tenancy had been created before the Act came into force, also come within the scope of sub-clause (a ).