Mohmad Yusuf Ansari Since ... vs G.M. Sharfuddin And Ors.
2004 Latest Caselaw 815 Bom

JUDGMENT

D.G. Karnik, J.

1. By this petition, the petitioner tenant challenges the judgment and order dated 3rd July 1987 passed by the learned District Judge, Thane allowing Civil Appeal No. 394 of 1984 and thereby passing a decree for possession against the petitioner.

2. The respondent No. 1 is the owner and landlord of the property bearing Municipal House No. 2, Saudagar Mohalla, Bhiwandi. The respondent No. 2 was a tenant in respect of the suit premises on monthly rent of Rs. 32/-. Dr. M.I. Ansari, the petitioner who is since deceased and whose heirs have been brought on record was a sub-tenant of the respondent No. 2. The respondent No. 1 filed a suit against the respondent No. 2 and the petitioner bearing regular Civil Suit No. 444 of 1974 in the Court of Civil Judge, Jr. Division for possession on the ground that respondent No. 2 had illegally sublet front portion of suit premises to the petitioner and also on the ground that the respondent No. 2 was a defaulter in payment of the rent. The trial Court held that subtenancy was created with the permission of the respondent No. 1. As regards the default the trial Court held that respondent No. 2 was a defaulter in payment of the rent and passed a decree for possession only on the ground of default. The petitioner and the respondent No. 2 filed two separate appeals challenging the decree for possession. The appellate Court confirmed the decree for possession. That judgment is impugned in. this Writ Petition.

3. In the plaint which was filed in the year 1974, the respondent No. 1 has alleged that the respondent No. 1 had illegally and unlawfully sub-let the front portion of the suit premises to the petitioner about 9 years ago. The respondent No. 1 landlord has thus admitted that the subletting was atleast from the year 1965. The provisions of the Bombay Rents, Hotel Lodging House Rates Control Act, 1947 (for short 'the Act') were amended by Maharashtra Act No. 18 of 1997. Under amended Sub-section(2) of Section 15, the prohibition against subletting is deemed to have had no effect before 1st February 1973. In other words, no decree for eviction on the ground of unlawful letting can be passed if the sub-tenancy was created prior to 1st February 1973. As stated earlier, the sub-tenancy in the present case has been created admittedly prior to 1st February 1973 and therefore, no decree for eviction could be passed against the petitioner on the ground of subletting.

4. Section 14 of the Act as amended by Maharashtra Act No. 18 of 1987 reads as under:-

"14. Certain sub-tenants and licensees to become tenant on determination of tenancy. (1) When the interest of a tenant of any premises is determined for any reason, any sub-tenant to whom the premises or any part thereof have been lawfully sub-let before 1st day of February 1973 shall subject to the provisions of this Act, be deemed to become the tenant of the landlord on the same terms and conditions as he would have held from the tenant if the tenancy had continued.

(2) Where the interest of a a licensor, who is a tenant of any premises is determined for any reason, the licensee, who by Section 15A is deemed to be a tenant, shall, subject to the provisions of this Act, be deemed to become the tenant of the landlord, on the terms and conditions of the agreement consistent with the provisions of this Act.

When a tenancy of a tenant is terminated, the subtenant becomes a direct tenant of the landlord. The tenancy of the tenant would stand terminated not by a notice to quit but by a decree for possession passed against him. In the present case, a decree for possession was passed against the respondent No. 2, the tenant, for the first time by the trial Court on 30th June 1984 and that judgment has been confirmed by the appellate Court on 3rd July 1987. Assuming that the tenancy of the respondent No. 2 stood terminated by the judgment of the trial Court on 30th June 1984, the petitioner would become the direct tenant of the respondent No. 1 on termination of such tenancy i.e. with effect from 30th June 1984. On the petitioner-becoming a direct tenant, he would be liable to pay the rent to the respondent No. 1. Therefore, the respondent No. 1 would be entitled to a decree for possession against the petitioner only if the petitioner became a defaulter after 30th June 1984 when he became a direct tenant of the respondent No. 1. Admittedly, no notice of demand has been issued by the respondent No. 1 to the petitioner after 30th June 1984. As such, no decree for eviction could be passed for possession against the petitioner on the ground of default.

5. I am informed at the bar that the respondent No. 2 tenant has since left the premises and rear portion which was in occupation of the respondent No. 2 has been surrendered by him to the respondent No. 1 landlord, after the Writ Petition bearing No. 4388 of 1987 filed by him was dismissed. However, that is irrelevant for the purpose of the decision of this Writ Petition. So far as the front portion of the suit premises is concerned, the decree for eviction passed against the respondent No. 2 cannot be executed against the petitioner who has become a direct tenant of the respondent No. 1.

6. In the circumstances, Writ Petition is allowed and rule is made absolute in terms of prayer Clause 17 (ii) qua the petitioner. No costs.