HARILAL B DRESSWALA Vs. DAYASINGH JOGINDARSINGH

JUDGEMENT

(1.) BY this writ petition filed under Article 227 of the Constitution of India, the petitioners challenge the order dated 17.4.1984 passed by the Division Bench of the Small Causes Court at Bombay in Appeal No.265/1973. That appeal was filed by the present respondent No.1 Dayasing challenging the order dated 24.4.1972 passed by the Small Causes Court at Bombay, in R.A.D. Suit No.7760/1965. That suit was filed by the respondent No.1 claiming a declaration in the following terms :

(2.) NOW , the admitted facts are that the petitioners are the owners of the suit premises, namely, Godown 4-6, Tel Galli, Vithalwadi, Bombay and that respondent No.2 Bawa Glass Co. was the tenant of the suit premises. In the year 1960, the petitioners filed a suit for a decree of eviction against the tenant Bawa Glass Co. on the ground that the tenant Bawa Glass Co. is not ready and willing to pay the rent. To this suit, admittedly, respondent No.1 Dayasing was not joined as a defendant. In the suit there was also an allegation that the tenant Bawa Glass Co. had sublet the premises and decree was sought on that ground also. However, a finding was recorded by the Court that the premises have been lawfully sublet by the tenant to one Gurudatt Asanand. There is some controversy between the parties whether this Gurudatt Asanand and the present respondent No.1 Dayasing are one and the same. However, the fact that is material for the present petition is that a decree of eviction was denied to the landlord on the ground that the tenant had illegality sublet the suit premises. When the decree was put to execution, there was an objection raised to the execution. Ultimately, the present suit came to be filed by the respondent No.1 claiming a declaration that he is the tenant of the suit premises and that the decree passed in the earlier suit does not bind him. The trial court, however, recorded a finding against the plaintiff-respondent No.1 and dismissed the suit. The appellate Court, however, reversed the finding recorded by the trial Court and recorded findings in favour of the respondent No.1 who had filed an appeal before the appellate Court, and decreed the suit.

(3.) HOWEVER , Shri Shah, learned counsel appearing for the petitioners, urged before me that the purpose of enacting sub-section (2) of section 15 of the Act was to extend protection to the interest of the tenants who have created sub-tenancies before 1.2.1973 from all actions of eviction by virtue of the provisions of clause (e) of sub-section (1) of section 13 of the Act. In his submission, the purpose of sub-section (2) of section 15 of the Act is not to declare the sub-tenancies which are created before 1.2.1973 as lawful. In short, in the submission of Shri Shah, the protection given by sub-section (2) of section 15 of the Act extends to the tenant who has created the sub-tenancy but it does not further extend to the sub-tenant in whose favour the sub-tenancy has been created. In my opinion, the submission made by Shri Shah is not well founded. It is pertinent to note here that the first part of sub section (2) of Section 15 of the Act declares that the prohibition contained in sub section (1) of section 15 of the Act, shall be deemed to have no effect in relation to the premises in relation to which sub tenancy is created before 1.2.1973. The net result is that, in relation to a tenant who creates sub tenancy before 1.2.1973, the provisions of sub section (1) of Section 15 of the Act, do not have effect. Sub section (1) of Section(15) of the Act is the only provision which prohibits creation of sub tenancies. The net result would be that as in the present case it is an admitted position that sub tenancy was created before 1.2.1973, by operation of statutory fiction the provisions of sub section (1) of section 15 of the Act had no effect. If that be so, then it follows that the creation of sub tenancy was lawful. It is further to be seen here that sub section (2) of Section 15 of the Act further declares that such sub tenancies shall be deemed to be lawful for all purposes. If the sub-tenancy is valid for all purposes, then in my opinion the sub tenancy would be valid and lawful also for the purpose of section 14 and, therefore, a person in whose favour sub tenancy is created before 1.2.1973 and who is on the suit premises on 1.2.1973, shall be entitled to be declared as a lawful tenant under sub section (1) of Section 14 of the Act. Thus, in view of the conclusion that I have reached on the basis of admitted facts and the provisions of the Act which have undergone amendment during the pendency of the petition, I find myself in agreement with the conclusion that has been reached by the appellate court, though for different reasons because the provisions of law as it stood then were different.