SAIFUDDIN SHARAFALLI Vs. HIRO PHOTOGRAPHERS

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioners challenge the order dated 7.2.1984 passed by the Division Bench of the Small Causes Court of Bombay in Appeal No.32/1976. That appeal was filed by the petitioners challenging order dated 31.7.1975 passed by the Small Causes Court at Bombay, in R.A.E.Suit No.295/2274/1967. That suit was also filed by the petitioners claiming therein that they are landlords of the suit premises, namely, Shop No.12 on the ground of Pir Mohamed Manzil, New Pipewala Building, 3rd Pasta Lane, Colaba, Bombay, and that the respondent is a tenant of the suit premises. The landlords sought a decree of eviction against the tenant on two grounds : (1) that the tenant has unlawfully sublet the suit premises and (2) that the tenant is profiteering by virtue of the subletting. So far as the aspect of the unlawful subletting is concerned, it was the case of the tenant that he had sublet the premises after obtaining consent from the previous landlord. The trial court recorded finding in favour of the tenant and held that he had sublet the premises in the year 1965 with the consent of the previous landlord. Therefore, a decree on that ground was declined in favour of the landlords. So far as the second ground is concerned, it was not in dispute between the parties that the contractual rent that was being charged by the landlords for the suit premises was Rs.162.92 whereas the tenant was charging an amount of Rs.2550/- p.m. from the sub-tenant. The trial court recorded a finding that the tenant is charging from the sub-tenant rent in excess of the standard rent and permitted increases. However, decree on that ground was denied to the landlords by the trial Court on the ground that the premises were sublet admittedly in 1965 whereas in terms of the provisions of section 13(1)(j) of the Bombay Rent Act, as it stood then, for the applicability of that clause, it was necessary that the subletting must have taken place before the commencement of the Bombay Rents, Hotel & Lodging Houses Rates Control (Amendment) Ordinance,1959. In the appeal carried by the landlords before the appellate Court, the appellate Court confirmed the findings recorded by the trial Court and dismissed the appeal. Thus, in the present petition, the orders passed by both the subordinate Courts are challenged.

(2.) AT the hearing of the petition, only one contention was urged before me by the learned counsel appearing for the petitioners. She submitted that by Act No.18 of 1987, section 13(1)(j) of the Bombay Rent Act has been amended and now section 13(1)(j) as amended by section 12(c) of the Amending Act reads as under :

(3.) NOW , it is to be seen that it is clear from the plain reading of the provisions of section 13(1)(j) as it stands today that nothing prevents the landlords from instituting a suit for a decree of eviction against the tenant alleging that he has sublet the premises before 1.2.1973 and that as he is charging rent in excess of the standard rent and permitted increases in relation to the suit premises, the landlords are entitled to a decree of eviction against the tenant. If a fresh suit can be filed by the landlords on the basis of the amended provisions, then, in my opinion, the amended provisions can be taken aid of by the landlords in these proceedings also because in view of the judgment of the Division Bench in Prabhulal's case referred to above, the proceedings were not finally terminated because the present petition was pending when the Amending Act came into force in the year 1987. Therefore, in my opinion, the learned counsel for the petitioners is right in submitting that the provisions of section 13(1)(j) as amended by the Maharashtra Act No.18 of 1987 have to be taken into consideration while deciding whether the landlords are entitled to a decree against the tenant under that provision.