SHAKUNTALA GULSHAN BAKSHI Vs. HOMAI M IRANI

JUDGEMENT

(1.) BY this petition, the petitioner challenges the order dated 12.3.1984 passed by the Assistant Judge, Pune, in Civil Appeal No.225/1981. That appeal was filed by respondent No.1 Smt.Homai Irani challenging the order dated 30.10.1980 passed by the II Additional Judge, Small Causes Court, Pune, in Civil Suit No.184/1977. That civil Suit was filed by respondent No.1 Irani claiming therein that she is owner of House No.852/53/54, Dastur, Meher Road, Pune and that one Essa Abdul Vahed was tenant of 3 rooms on the ground floor and 3 rooms on the first floor of the above referred building. The landlady sought a decree of eviction against the tenant on several grounds including the ground that the tenant had unlawfully sublet the suit premises to the present petitioner Smt.Shakuntala. The trial Court recorded a finding against the landlady on all the grounds including the ground of unlawful subletting. The trial Court held that the tenant Essa had not sublet the premises to the present petitioner but that the present petitioner was a member of his family. In the appeaL filed by the landlady, the appellate Court reversed the finding recorded by the trial court on the ground of unlawful subletting and held that the petitioner was not a member of the family of the tenant Essa but the tenant Essa introduced her as an unlawful sub-tenant in the suit premises. As a result, the appeal was allowed and the suit for a decree of eviction was decreed. During the pendency of the appeal Essa expired. The landlady who had filed the appeal did not bring his legal representatives on record. A question was raised before the appellate court that as the tenant is now dead and his legal representatives are not brought on record, whether the appeal can be continued against the alleged unlawful sub-tenant. The appellate Court found, relying on the observations of the Supreme Court in its judgment in South Asia Industries v. Sarup Singh, A.I.R. 1966 Supreme Court 186, that the proceedings can be continued against the alleged unlawful sub-tenant in the absence of the tenant. The appellate Court, after holding that the appeal was competent, proceeded to consider whether the occupation of the suit premises of the present petitioner was as a member of the family of Essa or as an unlawful sub-tenant and found that the petitioner was an unlawful sub-tenant of the suit premises. Therefore, it is this finding of the appellate Court which is challenged in the present petition.

(2.) WHEN the petition was called for final hearing, none appeared for the petitioner. However, with the help of Shri Satpute, learned counsel appearing for Respondent No.1, I have gone through the petition and the record I have also heard him. I find from the petition that, the petitioner has stated that after the appeal was decided by the appellate court, she came across a Will executed by the deceased tenant Essa, dated 10th October, 1973 declaring her to be his sole heir and bequeathing all his immovable properties to her including the tenancy rights in the suit premises. Along with the petition, a copy of the Will is also filed. Though the petition was filed in the year 1984 and respondent No.1 was served, thereafter Respondent No.1 has not cared to file any counter affidavit denying the statements made in the petition regarding the Will. In the absence of any counter affidavit being filed by the Respondent to the allegations made in paragraph 7 of the petition, I have to accept those statements as true and correct. If those statements are accepted as true and correct, then it become clear that by virtue of the Will dated 10th October, 1973 of the tenant Essa, the petitioner became his heir and inherited the tenancy rights in the suit premises and, therefore, there is no question of she occupying the suit premises as a sub-tenant. The execution of the Will by tenant Essa also shows that the petitioner was residing with him as a member of his family and she was his niece. It is further to be seen here that, considering the relationship between the petitioner and the deceased tenant Essa and the fact that the petitioner was widowed in the year 1973, and thereafter she started residing in the suit premises, it is quite probable that she was residing there as a member of the family of tenant Essa. I also find that the appellate Court has not given cogent reasons for disturbing the finding of fact recorded by the Trial Court. In the face of the Will dated 10th October, 1973, in my opinion, as the petitioner herself became the tenant of the suit premises, there is no justification for evicting her on that ground.