GANPAT RAMCHAND GUJAR Vs. RAJKUMAR CHAMPALAL SARNOT

JUDGEMENT

(1.) IN this writ petition filed under Article 227 of the Constitution of India, the petitioner seeks to challenge the legality and correctness of the judgment and decree passed by the 6th Additional District Judge, Pune on 7.5.1986 affirming the judgment and decree passed by the Civil Judge, Junior Division, Daund on 31.8.1983.

(2.) RAJKUMAR Champalal Sarnot (for short "Plaintiff") filed a suit for eviction against Shri S.M. Kalal (for short Defendant No.1") and Shri Ganpat Ramchandra Gujar (for short "Defendant No.2") in the Court of Civil Judge, Junior Division Daund at Daund District Pune. The plaintiffs case as set out in the plaint was that he was owner of House No.122 (Old) in Ward No. 4 situated within the limits of Daund Municipality. Room No.4 from the said house was let out to defendant no.1 for the purpose of his residence on the monthly rent of Rs.10/-The defendant no.1 also agreed to pay educational cess in addition to the rent of Rs.10/- per month. The defendant no.1 did not pay the rent for the period from 1.9.1975 to 31.12.1978 and despite repeated demands from the plaintiff, the defendant no.1 remained in arrears of rent and thus, he was wilful defaulter. The Plaintiff also set out the case that the defendant no.1 sub-let the suit room unauthorisedly and illegally to defendant no.2 when he was transferred from Daund to Miraj and he was recovering rent from defendant no.2. The plaintiff also pleaded that the defendant no.1 had acquired railway quarter and, therefore, he did not require the suit premises and he was also not using the said room. The plaintiff served a notice upon the defendant no.1 in the month of November 1978 and accordingly determined his tenancy. The defendant no.1 sent reply to the said notice on 2.12.1978 and did not vacate the premises in question necessitating the filing of the suit against the defendant no.1 and the defendant no.2. The defendant no.1 despite service remained absent and accordingly the Court ordered the suit to proceed ex-parte against him. The defendant no.2 contested the plaintiff's claim and according to him, the defendant no.1 vacated the suit premises in the month of May 1969 and possession was delivered back by him to the plaintiff's father. Thereafter the plaintiff"s father let out the suit premises to defendant no.2 on 5.5.1969 as tenant on monthly rent of Rs.10/- plus education cess. Thus, the defendant no.2 set up the plea that he was plaintiff's tenant in the premises in question. The defendant no.2 submitted that his relations with the father of the plaintiff were friendly and though he was making payment of rent to plaintiff's father, he used to issue rent receipt in the name of defendant no.1. According to him, for the period from May 1969 to August 1975 the rent was paid by him to the father of the plaintiff and he also deposited Rs.300/- and Rs.250/- towards municipal taxes at the instance of the plaintiff's father. Thereafter in view of the friendly relations between the defendant no.2 and plaintiff's father receipts were not issued by plaintiff's father and the defendant no.2 also did not press for giving the receipts. The defendant no.2 denied that he was unlawful sub-tenant or that he was in default in payment of rent. The trial Court after framing the issues recorded the evidence of the plaintiff and defendant no.2 (proceedings against defendant no.1 proceeded ex-parte) and after hearing the learned counsel for plaintiff and defendant no.2 held that the defendant no.2 failed to establish that plaintiff's father let out the suit premises to him. The trial Court held that there was relationship of landlord and tenant between the plaintiff and defendant no.1 and that the defendant no.1 was defaulter in payment of rent for the period 1.9.1975 to 31.12.1978 and that the defendant no.1 sub-let the suit premises to defendant no.2 without the consent of the plaintiff and accordingly decreed plaintiff's suit for eviction on 31.8.1983. The defendant no.2 challenged the judgment and decree passed by the Civil Judge, Junior Division, Daund on 31.8.1983 by filing appeal and the Additional District Judge after hearing the learned counsel for the plaintiff and defendant no.2 maintained the judgment and decree passed by the trial Court. Dissatisfied with the concurrent judgment and decree passed by the two Courts below, the defendant no 2 has preferred this writ petition.

(3.) ON the other hand, Mr. Hushing, the learned counsel appearing for plaintiff urged that even if it is held that the petitioner is protected sub-tenant, the tenant and sub-tenant are required to comply with the provisions of the Rent Control Act and the protection given to such protected tenants is not absolute and if the landlord is entitled to decree of possession under Section 12 or any of the provisions of Section 13 of the Rent Control Act, protection under Section 14 and/or read with Section 15 of the Rent Control Act must give way. Mr.Hushing submitted that if the landlord was entitled to decree for possession under any of the provisions of Section 12 or Section 13, the protected sub-tenant is not entitled to separate notice and landlord cannot be driven to a separate and another round of litigation after the termination of the tenancy of the tenant, more so when sub-tenant is also defendant in the same suit along with the principal tenant. In support of his contention, he relied upon the judgment of this Court in Indian Coffee Workers Co-operative Stores Ltd. Vs. Mrs. Bachoobai Cowasjee Dhanjeeshaw 66 B.L.R. page 338.