KISHOR CHINTAMAN KESKAR Vs. SANTDAS ALIDAS MENCHURIA

JUDGEMENT

(1.) THIS is a landlord's petition. The landlord, by this petition, challenges the orders made by both the Courts below. The trial Court, namely, the III Additional Small Cause Judge, Pune, by order dated 28.2.1983, dismissed the suit filed by the landlord for possession against the respondent-tenant. The Appellate Court, namely, the District Court, Pune, by its judgment dated 7.8.1985, dismissed Civil Appeal No.805/1983 filed by the petitioner.

(2.) SHRI Dalvi, learned counsel appearing for the petitioner, urged before me that one of the grounds on which decree of eviction was sought against the tenant was that defendant No.1-tenant had sub-let the premises to defendant No.2. He pointed out that in his written statement, defendant No.1 has stated that he has not sublet the premises to defendant No.2 but she has forcibly entered the premises in the year 1977. Shri Dalvi further submitted that in the written statement filed by defendant No.2, she has stated that though the premises were taken on rent by defendant No.1 in his name, she was the real tenant of the premises. She has stated in paragraph 15 of the written statement that she was in possession of the suit premises from 1.2.1973 as a licensee. Shri Dalvi then took me through the evidence led by the parties. It is to be seen here that in this case the plaintiff-landlord examined himself and one Hirachand. He also examined one Ulhas Keskar, who is the son of the plaintiff-landlord. Defendant No.1 examined himself and defendant No.2 examined herself. Both the Courts below have come to the conclusion that defendant No.2 was not the sub-tenant but she was the real tenant. Shri Dalvi urged that the findings recorded by both the Courts below are not based on the evidence on record. He submitted that the tenancy was created in favour of defendant No.1 and defendant No.1 has stated that he was the real tenant. According to defendant No.1, defendant No.2 was his employee who ousted him from the shop and she started conducting the business there from the year 1977 after he came out of the hospital. Shri Dalvi further urged that there is no material on record to substantiate the word of defendant No.2 that she is the real tenant of the property. Shri Dalvi urged that it is clear from the record that defendant No.2 was the sub-tenant of the premises and she has stated in her written statement that she came in possession of the premises as a licensee from 1.2.1973 and, therefore, in the submission of Shri Dalvi, she is not entitled to the protection given to sub-tenants who came on the premises before 1.2.1973 by sub-section (2) of Section 15of the Bombay Rent Act.

(3.) NOW , it is to be seen that admitted position is that so far as the contract of the tenancy is concerned, it was between the landlord and defendant No.1. Defendant No.1 has made a categorical statement that he was the tenant of the premises and that defendant No.2 was working with him as an employee on daily wages. It is his case that taking advantage of his hospitalisation, she took over the business. From the evidence, it is clear that from 1977 it is defendant No.2 who was carrying on business in the suit premises till her demise recently. It is also established on record that the tenancy is in the name of defendant No.1. The rent receipts are also in his name. Defendant No.2 has stated in her deposition that the premises were taken on rent for establishing a photo studio of defendant No.2. However, perusal of her deposition shows that she was not in a position to give any explanation as to why, if the photo studio was to be set up in the suit premises for defendant No.2, defendant No.1 gave his own name as the tenant of the premises. When I asked Shri Cazi, learned counsel appearing for respondent No.2A, as to what is the reason disclosed on record by her, namely, defendant No.2, he candidly stated that there is no explanation coming from her explaining this conduct. It is further to be seen that it is the case of the petitioner that the reliance placed by the Courts below on the Bombay Shops & Establishment licence is also not proper. The petitioner has stated that the licence issued under the Bombay Shops & Establishment Act does not establish that from 1970, defendant No.2 was carrying on business in the suit premises. It is to be seen that the Appellate Court has observed in its judgment in paragraph 9 that the Shop Act licence in the name of defendant No.2 is of the year 1980-81. It is further to be seen that defendant No.2 has stated that she was carrying on business in the suit premises on her own and she was maintaining the accounts. She has also produced the accounts which are maintained in her own handwriting but they are from the year 1976. Shri Cazi informed me that there are no account books produced on record for the period before the year 1976.