Bombay High Court
Sud Chemie India Pvt Ltd vs Kotak And Company Limited And Anr on 5 August, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:33362
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Arun Sankpal
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10039 OF 2025
IN
MARJI APPLICATION NO. 51 OF 2025
IN
R.A.E. SUIT NO. 371/582 OF 2007
Sud Chemie India Pvt Ltd,
A Company incorporated under the
Provisions of the Indian Companies Act,
1956, having its registered office at
Ediar Industrial Development Sector,
P.O. Binanipuram - 683 590
Kerala and its Branch Office at
Third Floor, Navsari Building,
240, D.N. Road, Fort, Mumbai - 400 001
through its Authorised representative
Jagdish Narmadashankar Pandya ..Petitioner/Orig
Defendant No.2
Versus
1) Kotak & Company Limited,
A Company incorporated under the
ARUN
RAMCHANDRA
provisions of the Indian Companies Act,
SANKPAL
1956, having its registered office at
Digitally signed by
ARUN Navsari Building, 240, Dr D.N. Road,
RAMCHANDRA
SANKPAL
Date: 2025.08.05
Mumbai - 400 001.
20:18:57 +0530
2) Unknown heirs and legal representatives
of deceased Shri Abbas Lalji,-
Through: The Registrar, Small Causes Court,
Mumbai, ...Respondents/ Orig
Address: Small Causes Court, Mumbai, Plaintiff No.1 and
Address: Premises No. 31, Navsari Building, Orig Defendant No.1
240, D.N. Road, Fort,
Mumbai - 400 001.
1/25
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WITH
WRIT PETITION NO. 10040 OF 2025
IN
MARJI APPLICATION NO. 50 OF 2025
IN
R.A.E. SUIT NO. 370/581 OF 2007
Sud Chemie India Pvt Ltd,
A Company incorporated under the
Provisions of the Indian Companies Act,
1956, having its registered office at
Ediar Industrial Development Sector,
P.O. Binanipuram - 683 590
Kerala and its Branch Office at
Third Floor, Navsari Building,
240, D.N. Road, Fort, Mumbai - 400 001
through its Authorised representative
Jagdish Narmadashankar Pandya ..Petitioner/Orig
Defendant No.2
Versus
1) Kotak & Company Limited,
A Company incorporated under the
provisions of the Indian Companies Act,
1956, having its registered office at
Navsari Building, 240, Dr D.N. Road,
Mumbai - 400 001.
2) Unknown heirs and legal representatives
of deceased Shri Aziz Lalji,-
Through: The Registrar, Small Causes Court,
Mumbai,
Address: Small Causes Court, Mumbai,
Address: Premises No. 31, Navsari Building,
240, D.N. Road, Fort,
Mumbai - 400 001. ...Respondents/ Orig
Plaintiff No.1 and
Orig Defendant No.1
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Mr. Shailendra S. Kanetkar, for the Petitioner.
Mr. Abhay Khandeparkar, Senior Advocate, with Rajesh A. Revankar,
i/b A.G. Revankar & Co, for the Respondents.
CORAM: N. J. JAMADAR, J.
RESERVED ON : 23rd JULY 2025
PRONOUNCED ON : 5th AUGUST 2025.
JUDGMENT:
1. Rule. Rule made returnable forthwith, and, with the consent of
the learned Counsel for the parties, heard finally.
2. In Writ Petition No. 10039 of 2025, the Petitioner-Original
Defendant No.2, takes exception to an order passed by the learned
Judge, Court of Small Causes in MARJI Application No. 51 of 2025,
dated 11th July 2025, whereby an Application preferred by the
Petitioner to declare that the decree dated 6 th January 2025 passed in
RAE Suit No. 371/582 of 2007 was null and void and not executable as
the same had been passed by the Court which had no jurisdiction, came
to be rejected, and two consequential orders dated 11 th July 2025 and
15th July 2025, issuing possession warrant and declining to stay the
execution of the said possession warrant, respectively.
3. In Writ Petition No. 10040 of 2025, there is an identical challenge
to the order dated 11th July 2025 passed in MARJI Application No. 50 of
2025 in respect of decree passed in RAE Suit No. 370/581 of 2007
dated 6th January 2025 and consequential orders dated 11 th July 2025
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and 15th July 2025, in the same set of facts, save and except the change
that in RAE Suit No. 371/582 of 2007, the original tenant was Abbas
Lalji and the Suit premises is premises No. 31; whereas in Writ Petition
No. 10040 of 2025, the original tenant was Aziz Lalji and the Suit
premises is premises No.34.
4. Since identical questions of fact and law arise for determination,
both the Petitions were heard together and are being decided by this
common judgment.
5. For the sake of convenience and clarity, the parties are hereinafter
referred to in the capacity in which they were arrayed before the Trial
Court in R.A.E. Suit No. 371/582 of 2007, and Writ Petition No. 10039
of 2025 is considered a representative case.
6. Shorn of superfluities, the background facts leading to these
Petitions can be summarised as under:
6.1 The Plaintiff is a company incorporated
under the Companies Act 1956. Abbas Lalji, whose,
unknown heirs and legal representatives were
impleaded as Defendant No.1; represented by the
Registrar of the Court of Small Causes, Mumbai, was
the tenant in respect of the Premises No. 31, situated
at third floor of Navsari Building, D.N. Road, Fort,
Mumbai ("the Suit premises").
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6.2. Abbas was paying monthly rent of Rs.1455/-.
Abbas expired on 19th April 1988. The tenancy of late
Abbas came to be terminated vide Notice 4th
November 2003.
6.3 Asserting that the Plaintiff had not known
who were the heirs and legal representatives of late
Abbas and nobody turned up to claim the tenancy
rights in respect of the Suit premises, after the
demise of Abbas, the landlord instituted a Suit
against unknown heirs and legal representatives of
late Abbas and Defendant No.2; to whom the Suit
premises was allegedly illegally and unlawfully sub-
let by late Abbas.
6.4 It was, inter alia, asserted that the Suit
premises was sub-let to Defendant No.2 without the
knowledge and consent of the Plaintiff. Defendant
No.2 was in exclusive use, occupation, possession
and control of the Suit premises. Consequently, the
late, Abbas and his unknown heirs and legal
representatives have not been using the Suit
premises for the purpose for which it was let, for a
continuous period of six months prior to the
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institution of the Suit. Eviction of the Defendants
was also sought on the ground of reasonable and
bona fide requirement of the Suit premises for the
use and occupation of the Plaintiff.
6.5 Qua the Defendant No.2, it was averred that,
Defendant No.2 was a multinational Company, being
a member of the AG Group and was thus not entitled
to claim any protection under the rent control
legislation.
6.6 The Defendant No.2 contested the Suit by
filing a Written Statement. It was denied that the
Defendant No.1 had illegally sub-let the Suit
premises to Defendant No.2; the Defendant No.2 was
in exclusive use, possession, occupation and control
of the demised premises and that the Defendant
No.1 has not been using the Suit premises for the
purpose for which it was let for a continuous period
of six months prior to the institution of the Suit.
6.7 It was, in terms, contended that the
Defendant No. 2 was entitled to protection under the
provisions of Maharashtra Rent Control Act 1999
("the Rent Act 1999").
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6.8 The learned Judge of the Court of Small
Causes, after appraisal of the evidence and the
material on record, decreed the Suit for eviction on
the grounds of unlawful sub-letting, non-user and
reasonable and bona fide requirement of the
landlord. The learned Judge also held that the
Defendant No.2 was not entitled to the protection of
the provisions contained in the rent control
legislation.
6.9 It seems that Defendant No.2 did not prefer
any Appeal against the judgment and decree passed
by the Trial Court. Instead, the Defendant No.2
preferred an application purportedly under Section
151 of the Code of Civil Procedure, 1908 ("the
Code") seeking a declaration that the said decree of
eviction dated 6th January 2025 passed in RAE Suit
No. 371/582 of 2007 was null and void and non-
executable. The principal ground for seeking such
declaration was that the suit premises, having been
let to Defendant No.2, a multinational Company, was
exempted from the provisions of Section 3(1)(b) of
the Rent Act 1999. Consequently, the Court of Small
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Causes at Mumbai had no jurisdiction to entertain,
try and decide the Suit for eviction against the
Defendant No.2.
6.10 The Application was resisted by the Plaintiff.
6.11 By the impugned order, the learned Judge,
Court of Small Causes was persuaded to reject the
challenge to the executability of the decree
observing, inter alia, that the Defendant No.2 was
found to be in unauthorised occupation of the Suit
premises and no issue touching the jurisdiction of
the Small Causes Court was framed by the Court
while adjudicating the Suit as it was not specifically
raised. Conversely, the Plaintiff had instituted the
Suit to evict the Defendant No.1, the tenant on the
statutory grounds. Therefore, the Court of Small
Causes had the subject mater jurisdiction.
6.12 Being aggrieved, the Defendant No.2 has
invoked the writ jurisdiction.
7. I have heard, Mr. Shailendra S. Kanetkar, the learned Counsel for
the Petitioner, and Mr. Abhay Khandeparkar, the learned Senior
Advocate, for the Respondent No.1 at some length. With the assistance
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of the learned Counsel for the parties, I have perused the material on
record including the impugned orders.
8. Mr. Kanetkar, the learned Counsel for the Petitioner, mounted a
multi-pronged challenge to the impugned orders. Firstly, Mr. Kanetkar
would urge, the learned Judge committed a grave error in recording a
finding that the issue of jurisdiction of the Court was not raised by any
of the parties. Inviting attention of the Court to the averments in the
Plaint, Mr. Kanetkar would submit that the Plaintiff itself had
approached the Court with a case that the Defendant No.2 was a
multinational Company. In fact, the Trial Court had also framed an issue
as to whether the Defendant No.2 was entitled to the protection under
rent control legislation, and answered the same in the negative. In such
fact-situation, the Application could not have been rejected on the
specious ground that the issue of jurisdiction was not raised by the
parties.
9. Secondly, Mr. Kanetkar submitted with a degree of vehemence
that, the the learned Judge misdirected himself in focusing on the status
of the parties. In the process, the learned Judge ignored the settled
position in law that the exemption from the Application of the rent
control legislation is qua the premises and not the relationship between
the parties. This manifest error in appreciating the legal position
vitiated the finding of the learned Judge. To this end, Mr. Kanetkar,
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placed strong reliance on the judgments of he Supreme Court in the
cases of Parwati bai Vs Radhika1 and Kersi Commissariat and Ors Vs
Ministry of Food and Civil Supplies, Government of Maharashtra,
Mumbai & Anr.2
10. Thirdly, Mr. Kanetkar would urge, it is well recognized that, if the
Court lacks inherent jurisdiction to pass the decree, the decree is non-
est in the eyes of law and the executing Court is empowered to make a
declaration of nullity and decline to execute the decree. In the case at
hand, Since the Defendant No.2 falls within the class of the entities
exempted from the operation of the provisions of the Rent Control Act
1999, the Court of Small Causes could not have assumed the
jurisdiction and passed the decree of eviction. Therefore, the order
rejecting MARJI Applicaton deserves to be quashed and set aside and,
as a necessary corollary, the consequential orders also deserve to be
quashed and set aside.
11. In opposition to this, Mr. Abhay Khandeparkar, the learned Senior
Advocate, for the Respondent No.1-Original Plaintiff, would submit the
Defendant No.2 has, in fact, taken a somersault. Before the Trial Court,
till the passing of the decree, Defendant No.2 had never raised the
ground that the Suit was not maintainable before the Court of Small
Causes as the premises was sub-let to Defendant No.2, a multinational
1 (2003) 12 SCC 551.
2 (2012) 5 SCC 187.
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Company. On the contrary, the Defendant No.2 had flatly denied the
factum of sub-letting and exclusive possession over the Suit premises.
What impairs the case now sought to be canvassed by the Defendant
No. 2 is a categorical contention in paragraph 17 of the Written
Statement that the Defendant No.2 was entitled to protection under the
provisions of Rent Control Act 1999. Therefore, the Defendant No.2
cannot be permitted to assail the validity of the Decree by taking a
diametrically opposite stand that the Suit premises was exempted from
the operation of the provisions of the Rent Act 1999.
12. Mr. Khandeparkar would urge, the Defendant No.2 is precluded
from raising such ground after the passing of the decree by the
principles of res judicata. Reliance was sought to be placed on a
decision of the Supreme Court in the case of Erach Boman Khavar Vs
Tukaram Shridhar Bhat and Ors.3
13. At any rate, Mr. Khandeparkar would urge, the Defendant No.2
who has been in unauthorised occupation of the Suit premises cannot
be placed on a higher pedestal than that of Abbas, the original tenant.
In the face of a clear case of unlawful sub-letting, the learned Judge was
justified in rejecting a wholly misconceived Application, submitted Mr.
Khandeparkar.
14. To start with, there does not appear much controversy over the
foundational facts. The jural relationship between the Plaintiff and
3 2013 15 SCC 655.
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Abbas, as landlord and tenant, is not put in contest. The fact that
Defendant No.2 is in the occupation of the Suit premises is also
incontrovertible. The commercial character of Defendant No.2, i.e., a
multinational Company is, by and large, not in dispute.
15. The parties were at issue over the character in which Defendant
No.2 has been in the occupation of the Suit premises. In MARJI
Application No. 51 of 2025, the core controversy revolved around the
question as to whether the Court of Small Causes lacked jurisdiction, in
view of the exemption from the applicability of the Act to the premises
let or sub-let to, inter alia, a multinational Company, envisaged by
Section 3(1)(b) of the Rent Act 1999.
16. Before adverting to appreciate the core question in controversy, it
may be expedient to keep in view the powers of the executing Court in
the matter of declining to execute the decree on the premise that it was
null and void. Two postulates operate in this branch of law. At the one
end of spectrum is, the principle that the executing Court cannot go
behind the decree. Nor the executing Court has the jurisdictional
competence to question the legality and correctness of the decree,
which is put to execution. At the other end of the spectrum is, the
exclusive domain of the executing Court to determine all questions
relating to the execution, discharge or satisfaction of the decree; which
finds statutory recognition in Section 47 of the Code. In between these
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two positions lies an area where the executing Court can legitimately
decline to execute the decree, on the premise that the decree passed by
the Court is a nullity. Such a situation arises where the Court which
passed the decree lacked inherent jurisdiction. Since the objection to
the executability of the decree goes to the very root of the matter,
dismantling the jurisdictional competence of the Court which has
passed the decree, it is rendered null and void. Such a ground of nullity
can be raised at any stage and in any proceeding, wherever such decree
is sought to be executed. If the executing Court finds that the decree
suffers from such inherent lack of jurisdiction or breach of a statutory
mandate as to render it in-executable, the declaration by the executing
Court that the decree is nullity does not partake the character of going
behind the decree or questioning its legality or correctness. In such a
situation, there is no decree in the eyes of law.
17. In an earliest pronouncement in the case of Hira Lal Patni Vs Kali
Nath4 the Supreme Court enunciated that the validity of the decree can
be challenged in execution proceeding only on the ground that the
Court which passed the decree was lacking in inherent jurisdiction in
the sense that it could not have seisin of the case because subject matter
was wholly foreign to its jurisdiction or that the Defendant was dead at
the time the Suit had been instituted or decree passed or some such
other ground which could have the effect of rendering the Court
4 AIR 1962 SC 199.
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entirely lacking in jurisdiction in respect of the subject matter of the
Suit or over the parties to it.
18. The decision of the Supreme Court in the case of Sunder Dass Vs
Ram Prakash5 illuminatingly postulates circumstances in which the
executing Court can embark upon an inquiry in regard to the
executability of the decree. The observations of the Supreme Court in
paragraph 3 read as under:
"3. "Now, the law is well settled that an executing
court cannot go behind the decree nor can it question its
legality or correctness. But there is one exception to this
general rule and that is that where the decree sought to
be executed is a nullity for lack of inherent jurisdiction
in the court passing it, its invalidity can be set up in an
execution proceeding. Where there is lack of inherent
jurisdiction, it goes to the root of the competence of the
court to try the case and a decree which is a nullity is
void and can be declared to be void by any court in
which it is presented. Its nullity can be set up whenever
and wherever it is sought to be enforced or relied upon
and even at the stage of execution or even in collateral
proceedings. The executing court can, therefore,
entertain an objection that the decree is a nullity and
can refuse to execute the decree. By doing so, the
executing court would not incur the reproach that it is
going behind the decree, because the decree being null
and void, there would really be no decree at all. Vide
Kiran Singh Vs Chaman Paswan, AIR 1954 SC 340:
(1955) 1 SCR 117, and Hira Lal Patni Vs Kali Nath,
5 (1977) 2 SCC 662.
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(1962) 2 SCR 747: AIR 1962 SC 199. It is, therefore,
obvious that in the present case, it was competent to the
executing court to examine whether the decree for
eviction was a nullity on the ground that the civil court
had no inherent jurisdiction to entertain the suit in
which the decree for eviction was passed. If the decree
for eviction was a nullity, the executing court could
declare it to be such and decline to execute it against the
respondent."
(emphasis supplied)
19. The aforesaid position in law was reiterated by the Supreme
Court in the case of Harpal Singh Vs Ashok Kumar & Anr.6
20. Mr. Kanentkar made an endeavour to persuade the Court to hold
that the Court of Small Causes lacked inherent jurisdiction as the Suit
premises was allegedly sub-let to the Defendant No.2, a multinational
Company. To appreciate this submission, it may be necessary to extract
the provisions contained in Section 3(1)(b) of the Rent Act 1999.
"3. Exemption
(1) This Act shall not apply--
(a) ... ... ...
(b) to any premises let or sub-let to banks, or any Public
Sector Undertakings or any Corporation established by or
under any Central or State Act, or foreign missions,
international agencies, multinational companies, and
private limited companies and public limited companies
having a paid up share capital of rupees one crore or
more.
Explanation.--
6 (2018) 11 SCC 113.
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.........
21. The object of exempting the premises let to the entities referred
to in clause (b) sub-Section (1) Section (3) was to strike a balance
between the need for protection of tenants and the interest of the
landlords. By their very nature, the entities included in Clause (b) of
Section 3(1) of the Rent Act 1999, are such entities which are not
constrained by resources and could afford the payment of rent at the
prevailing market rates. The landlords of the premises let out to such
entities were thus not to be restrained from exploiting the full economic
potential of their properties.
22. In the case of Leelabai Gajanan Pansare Vs Oriental Insurance
Com Ltd,7 while considering the question as to whether a Government
company falls within the compendious expression "any public sector
undertaking" or "Corporation", the Supreme Court, enunciated that by
enacting Section 3(1)(b), the Legislature has tried to maintain a balance
by offering an economic package to the landlords. The change
introduced in the Rent Act 1999, namely, permitting the landlords to
charge premium, exclusion of cash-rich entities covered by Clause (b) of
Section 3(1) and provisions of annual increase at a nominal rate of 5%,
were the structural changes brought about by the Rent Act 1999, vis-a-
vis the Bombay Rents, Hotel and Lodging House Rates (Control) Act,
7 (2008) 9 SCC 720.
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1947 ("the Bombay Rent Act 1947"), as a part of the economic package
to the landlord. The Supreme Court further held that the entities
included in Section 3(1) (b) are basically cash-rich entities. They have
positive net asset value. They have positive net worth. They can afford
to pay rents at the market rates.
23. Normally the question of non-applicability of the provisions
contained in the Rent Act 1999, in the context of Section 3(1)(b) arises
where an entity claims that it would not be governed by the
exclusionary clause (b) of Section 3(1). Meaning thereby, it is entitled
to protection of the rent control legislation.
24. In the case at hand, however, the Defendant No.2 seeks to derive
advantage of the purported non-applicability of the provisions of the
Rent Act 1999 to Defendant No.2, being a multinational company, to
question the validity of the decree of eviction passed against it. The
objection proceeds on the premise that the determinative factor is the
use to which the Suit premises is put to, and not the relationship
between the parties. Mr. Kanetkar made an earnest endeavour to drag
home this point.
25. The aforesaid submission of Mr. Kanetkar that the exemption is
qua the premises and not the relationship between the parties appears
to be well-founded. A series of judgments crystallize the aforesaid
proposition.
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26. In the case of Bhatia Coop Housing Society Ltd Vs D.C. Patil 8
while considering the provisions contained in Section 4(1) of the
Bombay Rent Act 1947, in the context of sub-Section 4(a) which was
introduced by the Amendment Act 1953, the Supreme Court exposited
that the exemption granted under the earlier part of sub-Section (1) of
Section 4 is in respect of the premises and not in respect of the
relationship.
27. The Supreme Court observed inter alia as under:
"9. ... ... ... Section 4(1) provides for an exemption from or
exception to that general object. The purpose of the first two
parts of Section 4(1) is to exempt two cases of relationship
of landlord and tenant from the operation of the Act, namely,
(1) where the Government or a local authority lets out
premises belonging to it, and (2) where the Government lets
out premises taken on lease or requisitioned by it. It will be
observed that the second part of Section 4(1) quite clearly
exempts "any tenancy or other like relationship" created by
the Government but the first part makes no reference to any
tenancy or other like relationship at all but exempts the
premises belonging to the Government or a local authority. If
the intention of the first part were as formulated in item (1),
then the first part of Section 4(1), like the second part,
would have run thus:
This Act shall not apply to any tenancy or other
like relationship created by Government or local
authority in respect of premises belonging to it.
8 AIR 1953 SC 16.
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The Legislature was familiar with this form of expression, for
it adopted it in the second part and yet it did not use that
form in the first part. The conclusion is, therefore, irresistible
that the Legislature did not by the first part intend to exempt
the relationship of landlord and tenant but intended to
confer on the premises belonging to Government an
immunity from the operation of the Act.
10. Learned counsel for the respondent next contends
that the immunity given by the first part should be held to be
available only to the Government or a local authority to
which the premises belong. If that were the intention then
the Legislature would have used phraseology similar to what
it did in the second part, namely, it would have expressly
made the Act inapplicable "as against the Government or a
local authority". This it did not do and the only inference
that can be drawn from this circumstance is that this
departure was made deliberately with a view to exempt the
premises itself.
11. ... ... ... In our opinion, therefore, the consideration of
the protection of the interests of the sub-tenants in premises
belonging to the Government or a local authority cannot
override the plain meaning of the preamble or the first part
of Section 4(1) and frustrate the real purpose of protecting
and furthering the interests of the Government or a local
authority by conferring on its property an immunity from the
operation of the Act."
(emphasis supplied)
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28. In the case of Parwati Bai (Supra), on which reliance was placed
by Mr. Kanetkar, the question of exemption to the premises belonging to
the Government or local Authority under the provisions of Madhya
Pradesh Accommodation Control Act, 1961, arose for consideration.
The Supreme Court held that the immunity from the operation of the
Madhya Pradesh Accommodation Control Act, 1961, is in respect of the
premises and not with respect to the parties. If a tenant in municipal
premises lets out the premises to another, a Suit by the tenant for
ejectment of his tenant and arrears of rent would not be governed by
the Act as the premises are exempt under Section 3(1)(b) of the said
Act though the Suit is not between the municipality as a landlord and
against its tenant.
29. In Kersi Commissariat and Ors (Supra), which was strongly relied
upon by Mr. Kanetkar, the facts were that the landlord had let the
premises to New India Assurance Company Ltd, which, in turn, without
the knowledge and consent of the landlord, had inducted the Ministry
of Food and Civil Supplies, Government of Maharashtra as a sub tenant.
The latter took the defence that it was a protected tenant under the
Rent Act 1999 and the relief of eviction was untenable.
30. In that context, the Supreme Court, after following the decisions
in Bhatia Coop Housing Society Ltd (Supra ) and Parwati Bai (Supra),
held that the New India Assurance Company Limited (D1) was itself not
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protected under the Rent Act 1999 and, thus, once the original tenant
was not protected, the Food and Civil Supplies Department (D2), the
sub-tenant, cannot enjoy a better protection or privilege by ostracizing
the concept of premises which is the spine of the provision.
31. In the light of the aforesaid enunciation of law, the moot question
that comes to the fore is whether the Defendant No.2, being a
multinational company, to whom the Suit premises was found to be
unlawfully sub-let, can question the validity of the decree on the ground
that the provisions of the Rent Act 1999 do not apply to the premises in
question.
32. For an answer, a brief reference to the facts becomes necessary.
Late Abbas was indisputably in the occupation of the Suit premises as a
tenant. The Plaintiff alleged the Suit premises was illegally and
unlawfully sub-let to the Defendant No.2. Consequently, the original
tenant had not used the Suit premises for the purpose for which it was
let for a continuous period of six months immediately preceding the
date of the Suit, without reasonable cause.
33. In the context of aforesaid nature of the Plaintiff's claim, it is
necessary to note the response of Defendant No.2 thereto. Firstly,
Defendant No.2 categorically denied that the Suit premises was
unlawfully sub-let by late Abbas. Secondly, the very factum of exclusive
possession, use and occupation of the Suit premises by Defendant No.2
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was explicitly denied. Thirdly, instead of claiming that the Suit before
the Court of Small Causes was not tenable on account of the
inapplicability of the provisions of the Rent Act 1999, the Defendant
No.2 expressly contended that it was entitled to the protection of the
provisions contained in the Rent Act 1999.
34. The aforesaid stance of the Defendant No.2 cannot be said to
inconsequential. The observations of the executing Court that, it
appeared that the issue of jurisdiction of the Court of Small Causes was
not raised, are required to be appreciated in the light of the aforesaid
stand of Defendant No.2.
35. Indeed, the Trial Court returned a finding that the Defendant
No.2 was not entitled to the protection of the provisions of the rent
control legislation. However, this finding does not necessarily imply that
the Suit before the Court of Small Causes was untenable. Undoubtedly,
the exemption under the provisions of Section 3(1)(b) of the Rent Act
1999, is qua the premises and not the relationship between the parties.
Nonetheless, the Court cannot loose sight of the primary fact that the
Suit for eviction was principally against the unknown heirs and legal
representatives of late Abbas-the tenant, and for the enforcement of the
liability to vacate the Suit premises incurred by the tenant on account of
the alleged act of unlawful sub-letting and non-user of the Suit
premises. Since the jural relationship between the Plaintiff and
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Defendant No.1 was beyond the pale of controversy, the Suit against
Defendant No.1 was perfectly tenable and squarely fell within the
exclusive jurisdiction of the Court of Small Causes. The impleadment of
Defendant No.2 was for the reason of being in unauthorized occupation
of the Suit premises which was allegedly unlawfully sublet to Defendant
No.2, by the tenant. Thus, the provisions of Rent Act 1999 squarely
governed the Suit premises as it was let to a person who did not fall
within the excluded categories.
36. Mr. Kanetkar attempted to salvage the position by canvassing a
submission that Section 3(1)(b) governs the premises let or sublet and,
therefore, the alleged unlawful subletting by late Abbas to Defendant
No.2, would fall within the ambit of Clause (b). It was submitted that
the Legislature has not used the expression "lawfully sublet" in clause
(b).
37. The aforesaid submission is in teeth of the provisions contained in
Section 26 of the Rent Act 1999 and Section 15 of the Bombay Rent Act
1947, which statutorily proscribed the creation of sub-tenancy in the
absence of the contract to the contrary. The expression "sublet" in
Section 3(1)(b) would necessarily mean either the subtenancy which is
protected under the provisions of Section 15(A) of the Bombay Rent Act
1947 in respect of the sub-tenants, who are deemed to be the tenants of
the landlords, or the sub-tenancy lawfully created.
-WP-10039-2025.DOC
38. If the submission on behalf of the Petitioner that the provisions of
the Rent Act 1999 would not apply to the premises in respect of which
there is unlawful subletting to the entities specified in Clause (b) of
Section 3(1) is accepted, the provisions of Rent Act 1999 can be
defeated by resorting to disingenuous methods, like after the suit for
eviction reaches an advanced stage, the tenant may unlawfully sublet
the Suit premises to an excluded entity and then it could be urged that
the Court of Small Causes lacked the jurisdiction as the premises has
been sublet to an excluded entity. Such a construction would lead to
absurd results.
39. The conspectus of the aforesaid consideration is that in the fact-
situation of the present nature, since the Court of Small Causes had
exclusive jurisdiction to entertain, try and decide the Suit for eviction
instituted against Defendant No.1, who had allegedly unlawfully sublet
the Suit premises to Defendant No.2, an excluded entity, which was
found to be in unauthorized occupation of the Suit premises, the
validity of the decree which is primarily passed against the tenant
cannot be questioned on the ground of inherent lack of jurisdiction.
40. As this Court has found that the challenge to the validity of the
decree on the ground of it being null and void does not merit
countenance, the consequential orders passed by the executing Court in
order to execute the said decree cannot be faulted at.
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41. Resultantly, Writ Petition No. 10039 and 10040 of 2025 fail.
42. Hence, the following order.
:ORDER:
(i) The Petitions stand dismissed.
(ii) Rule discharged.
(iii) In the circumstances of the case, there shall be no order as
to costs.
[N. J. JAMADAR, J.]
