PRABHULAL CHHOGALAL MANDORE Vs. BASTIRAM HIMATRAM BHUTADA

JUDGEMENT

(1.) DECEASED Bastiram Himatram Bhutade, father of respondent No. 1 plaintiff- landlord filed a Civil Suit No. 2292 of 1974 in the Court of III Additional Judge, Small Causes Court, Pune for eviction of the petitioner defendant- tenant from the suit premises. One of the grounds for eviction was that the tenant sub- let the suit premises to one Phutarmal Sitaram Mandora. The trial Court after considering the evidence on record came to the conclusion that the tenant did sub- let the suit premises to phutarmal and thereby contravened the provisions of section 13 (1) (e) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for the sake of brevity hereinafter referred to as the Bombay rent Act) and on that basis the decree for eviction came to be passed. Feeling aggrieved by the said judgment and decree the tenant preferred an Appeal No. 202 of 1979 before the IV Extra Assistant Judge, Pune, who confirmed the finding that the tenant had unauthorisedly sub- let the suit premises. As a necessary consequence of this the appeal came to be dismissed. Being aggrieved by the said appellate judgment and decree, the tenant filed the present writ petition under Article 227 of the constitution of India on 13th April, 1981.

(2.) PENDING the writ petition Maharashtra Act XVIII of 1987 came into force with effect from 1st October, 1987. By the Amending Act section 15 of the Bombay Rent Act is amended. In sub section (2; of section 15, the words, figures and letters before the 1st day of February, 1973 have been substituted and further it is made clear that, "it shall be deemed to have been substituted on the 1st day of February, 1973". Thus in terms the amendment has been given a retrospective effect. As a result of the said amendment sub-letting before the 1st day of February, 1973 is not now a lawful ground for eviction of a tenant. The saving clauses incorporated in section 25 of the Maharashtra Act XVIII of 1987 reads thus:.

(3.) WHEN this writ petition came up for hearing before Guttal, J, on 29th February, 1988 he framed the following issue and remitted it to the Trial Court for decision:. Did the tenant Prabhulal Chhogalal Mandore (that is, the petitioner- defendant- herein) sub- let the suit premises to Phutarmal Sitaram Mandora before the 1st day of February, 1973"? Guttal, J, had directed the Trial Court to hear the Counsel for the parties and after considering the evidence on record submit his findings on the issue No additional evidence was permitted to be led. Guttal, J, further directed that the finding shall be certified by the District Court, Pune. The learned Trial Judge after hearing the Counsel for the parties and considering the evidence on record, by his order dated 30th April, 1988 held that the defendant - tenant had not sub- let the suit premises to phutarmal prior to 1st February 1973 but had sub- let it after 1974. The District Court on hearing the Counsel for the parties did not agree with the finding recorded by the trial Judge and after considering the evidence on record and hearing the parties, reached a finding that the tenant had sub- let the suit premises to Phutarmal before 1st February, 1973.