VINAYAK N JOSHI Vs. VIRENDRA KASHINATH RAVAT

JUDGEMENT

(1.) BY this petition filed under Article -227 of the Constitution of India, the petitioner challenges the order passed by the Division Bench of the Small Causes Court at Bombay in Appeal No.107 of 1986. That appeal was filed by the present petitioner challenging the judgment and decree dated 29-10-1985 passed by a Single Judge of the Small Causes Court at Bombay in R.A.E. Suit No.3597 of 1970. That Civil Suit was filed by one Virendra Kashinath Ravat and Ashok Kashinath Ravat who are respondents No.1 and 2 in the present petition claiming that they are owners of Room No.7, 21/21A, Benham Hall Lane, Girgaum, Bombay - 400004. It is interested to note that to this civil suit defendant No.1 was joined as "the heirs and legal representatives of Miss Shanta B. Sabnis, address not known", and against this unnamed defendant No.1 and defendants No.2 to 5, of whom the present petitioner was defendant No.4, a decree of eviction was claimed. The landlord claims decree of eviction against the defendants in suit on several grounds including the ground of default committed by the tenant in payment of rent and unlawful sub-letting of the premises. The trial court decreed the suit and directed the defendants to vacate the suit premises. In the appeal filed by the present petitioner Vinayak, the appellate court confirmed the findings recorded by the trial court and dismissed the appeal.

(2.) THE learned counsel appearing for the petitioner submitted before me that a decree has been passed against the present petitioner by the appellate court only on one ground viz. unlawful sub-letting. The learned counsel submitted that in the plaint, it is stated by the respondent No.1 and 2 that the tenant of the premises Miss Shanta Sabnis expired leaving behind her mother as legal representative. It is further stated that in the month of February, 1970 her mother has also expired and the plaintiffs are not aware of the legal representatives of the mother of the tenant Shanta Sabnis. He further pointed out that it is stated in the plaint that defendant No.2 Sharayu S. Gadekar claims to be the daughter of deceased tenant Shanta. However, according to the plaintiffs, she is not the heir of the original tenant Shanta. However, because she claims to be the legal representative of the deceased tenant Shanta, she was joined as defendant No.2. The learned counsel pointed out that in order to claim a decree of eviction against sub-tenant or tenant on the ground that the suit premises have been unlawfully sublet, there has to be an averment in the plaint that the tenant has sub-let the suit premises. The learned counsel submitted that in the plaint, the allegation is that during the pendency of the suit, the defendants or any of them have inducted the defendants No.4 and 5 unlawfully. In the submission of the learned counsel, unless there is a positive statement made in the plaint, that the tenant has unlawfully sub-let the suit premises, there can not be a decree passed against the tenant under Section 13(1)(e) of the Act.

(3.) IT is thus clear from these averments that the plaintiffs have no where treated defendant No.2 as their tenant. In so far as the allegation about the unlawful sub-letting is concerned, in paragraph-5 it reads as under:-