GOPAL KRISHNA JOSHI Vs. CHANDRAKANT SHANKAR KANADE

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioner challenges the order dated 15.2.1984 passed by the Division Bench of the Small Causes Court, Bombay in Appeal No.170/82. That Appeal was filed by the respondent No.1-Chandrakant, challenging the judgment and decree dated 20.3.1982 passed by the Small Causes Court, Bombay in R.A.E. & R. Suit No.5925/1971. That Suit was filed by the present-petitioner-Gopal claiming therein that he is owner of building called 'Shanti Niwas', situated at 19A, Sion Road, Sion, Bombay-22 and that the defendant No.1-Madao Narayan Patwardhan had taken on rent the Block No.5 from the landlord. The landlord sought decree of eviction against the tenant on several grounds, namely (i) that the tenant is not ready and willing to pay the rent; (ii) that the landlord needs the suit premises for his bonafide occupation, (iii) that the tenant has acquired alternate accommodation; (iv) that the tenant has not been using suit premises for the purposes for which they were let out to him for the period of six months immediately preceding the date of filing of the suit and also that the suit premises have been sub-let by the defendant No.1-Madao to the respondent No.1-Chandrakant. Respondent No.1-Chandrakant was joined as defendant No.2 to that suit. The Trial Court recorded a finding that the respondent No.1-Chandrakant is unlawful sub-tenant of the suit premises. It also recorded a finding that the defendant No.1-Madao has acquired alternate accommodation. In the result, the suit filed by the landlord for decree of eviction against the defendants was decreed. The judgment and decree of the Trial Court was challenged by the Respondent No.1-Chandrakant before the Appellate Court under the Bombay Rent Act. The Appellate Court held that the licence was created by the defendant No.1 Madao in favour of the respondent No.1 Chandrakant by an agreement dated 13.12.1972 and therefore, as the respondent No.1 was occupying the suit premises as a licensee on 1.2.1973, he becomes a deemed tenant of the suit-premises in terms of the provisions contained in Section 15(A) of the Bombay Rent Act. The Appellate, Court, therefore, held that a decree of eviction cannot be passed against the respondent No.1-Chandrakant. As a consequence the Appeal filed by the respondent No.1 - Chandrakant was allowed and the suit filed by the landlord-Gopal was dismissed. It is this judgment 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. With the held of the learned counsel appearing for respondent Shri M.B.Baadkar, I have gone through the record of the case. Perusal of the judgment of the Appellate Court shows that the Appellate Court has found as a fact that by agreement of leave and licence dated 13.12.1972, licence of the suit premises was created by the defendant No.1-Madao in favour of the respondent No.1 Chandrakant. It is obvious from the judgment of the Appellate Court that the only point that was urged before the Appellate Court, on behalf of the petitioner, was that the tenancy of defendant No.1 Madao, who was a contractual tenant, was terminated by the Petitioner-landlord by notice dated 18.6.1971 and therefore, the moment the contractual tenancy of the defendant No.1-Madao was terminated, he had no authority to create a valid licence of the suit premises in favour of the respondent No.1-Chandrakant. Therefore, according to the petitioner-landlord, even if it is assumed that the defendant No.1 Madao, created licence of the suit premises in favour of the respondent No.1 Chandrakant by an agreement dated 13.12.1972, in the submission of the petitioner, the licence was invalid. Before the Appellate Court, in support of this contention several judgments of this Court were relied on. In this connection, the learned Counsel for the respondent has invited my attention to the judgment of the Supreme Court in the case of Chandavarkar Sita Ratna Rao v/s. Ashalata S.Guram (AIR 1987 Supreme Court 117). Perusal of the judgment of the Supreme Court shows that precisely, the controversy whether the contractual tenant, after termination of his tenancy by the notice of the landlord, has a authority to create licence in relation to the suit premises has been considered and answered by the Supreme Court. The Supreme Court in paragraph 35 of its judgment in Chandavarkar Sita Ratna Rao's case has observed thus:-

(3.) IT is clear from the judgment of the Supreme Court, referred to above, in Chandavarkar's case, that the Appellate Court was absolutely right in holding that the respondent No.1-Chandrakant was not an unlawful sub-tenant, but that his licence was protected by the provisions of Section 15(A) of the Act and by reason of the operation of those provisions, he became deemed tenant of the suit premises.