Bombay High Court
Anil Bhausaheb Patil And Anr. vs Sangli Urban Co-Operative Bank Ltd. ... on 21 August, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:36054
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Arun Sankpal
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO. 207 OF 2019
1. Anil Bhausaheb Patil
Age: 62 years, Occ: Business,
R/o 12/14, Kisan Chowk,
Near Market Yard,
Sangli.
2. Ajit Bhausaheb Patil (Since Deceased)
through LRs.
2A. Lata Ajit Patil
Age: 62 years, Occ. Household
Having address at
Tulsi Apartment, Kisan Chowk
Flat No.2, Opp to Market Yard,
Sangli.
2B. Aarati Ravindra Kabadage
Age: 42 years, Occ. Housewife
Having address at
Beside Hotel Sadanand
Miraj Road, Sangli.
ARUN
2C. Kirti Nilesh Khot,
RAMCHANDRA
SANKPAL Age: 40 years, Occ. Housewife
Having address at
Digitally signed
by ARUN
RAMCHANDRA
SANKPAL
Vijaywadi, S.V. Road,
Date:
2025.08.21 Malad, Mumbai. ..Applicants
21:14:54 +0530
Versus
Sangli Urban Cooperative Bank Ltd,
Reg. Under Maharashtra Cooperative Act 1960,
Registered Office, 404, Khanbhag,
Sangli, through Branch Manager
Sangli Urban Coop Bank Ltd,
Sangli Main Branch, Sangli. ...Respondent
1/20
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WITH
CIVIL REVISION APPLICATION NO. 208 OF 2019
Bhausaheb Babgonda Patil
Since deceased through legal heirs
1. Anil Bhausaheb Patil
Age: 62 years, Occ: Business,
R/o 12/14, Kisan Chowk,
Near Market Yard,
Sangli.
2. Ajit Bhausaheb Patil (Since Deceased)
through LRs.
2A. Lata Ajit Patil
Age: 62 years, Occ. Household
Having address at
Tulsi Apartment, Kisan Chowk
Flat No.2, Opp to Market Yard,
Sangli.
2B. Aarati Ravindra Kabadage
Age: 42 years, Occ. Housewife
Having address at
Beside Hotel Sadanand
Miraj Road, Sangli.
2C. Kirti Nilesh Khot,
Age: 40 years, Occ. Housewife
Having address at ...Applicants
Vijaywadi, S.V. Road,
Malad, Mumbai.
Versus
Sangli Urban Cooperative Bank Ltd,
Reg. Under Maharashtra Cooperative Act 1960,
Registered Office, 404, Khanbhag,
Sangli, through Branch Manager
Sangli Urban Coop Bank Ltd,
Sangli Main Branch, Sangli. ...Respondent
2/20
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Mr. Kuldeep Nikam, with Om Latpate, for the Applicants in both Civil
Revision Applications.
Mrs. G.H. Keluskar, for the Respondent in both Civil Revision
Applications.
CORAM: N. J. JAMADAR, J.
RESERVED ON : 8th AUGUST 2025
PRONOUNCED ON: 21th AUGUST 2025
JUDGMENT:
1. These Revision Applications are directed against a common
judgment and decree dated 7th January 2019 passed by the learned
District Judge, Sangli, in RCA Nos. 18 of 2014 in RCS No. 214 of 2006
and RCA No. 242 of 2015 in RCS No. 444 of 1989, whereby the Appeals
preferred by the Applicants against the decrees of eviction passed in RCS
Nos. 444 of 1989 and 214 of 2006, came to be dismissed by affirming
the said decrees passed by the Trial Court.
2. Since the two Suits sought eviction of the tenants from one and
the same Suit premises, albeit on distinct statutory grounds, it was
considered in the fitness of things to decide both the Applications by a
common judgment.
3. Shorn of unnecessary details, the background facts leading to
these Revision Applications can be summarised as under:
3.1 The parties are hereinafter referred to in the capacity in
which they were arrayed before the Trial Court.
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3.2 The Plaintiff is an Urban Cooperative Bank registered under
the Maharashtra Cooperative Societies Act 1960 ("the Act of
1960").
3.3 The Plaintiff owns a premises situated at City Survey No.
1103B/4 on Harbhat Road, Sangli. The main branch of the
Plaintiff-Bank is located at the said premises. A ground floor
premises admeasuring 80.4 sq meters (the suit premises) was in
the occupation of Bhausaheb Patil, the deceased-tenant/original
Defendant in RCS No. 444 of 1989. Rent was to be paid at the rate
of Rs. 350/- per month, apart from the education cess and the
electricity charges.
RCS NO. 444 OF 1989:
3.4 The Plaintiff addressed a notice to the original Defendant
asserting that the original Defendant was in arrears of rent and
electricity charges since the month of July 1988. Despite service of
the notice, the original Defendant failed to comply with the
demand therein. Asserting that the original Defendant committed
default in payment of rent, and that the Suit premises was
required for the occupation, and expansion of the business
operations, of the Plaintiff the Suit, being RCS No. 444 of 1989,
came to be instituted.
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3.5 The original Defendant resisted the Suit by filing a Written
Statement. All the averments in the Plaint adverse to the interest
of the Defendant were denied. The requirement of the Plaintiff
was stated to be neither bona fide nor reasonable. It was
contended that the Plaintiff had ample space to conduct its
banking business. Many departments were shifted from the Main
Branch to other locations. The Plaintiff had started construction
of a number of premises in Sangli. Therefore, in the event the
decree of eviction was passed, the Defendant would suffer greater
hardship.
RCS NO. 214 OF 2006:
3.6. During the pendency of the first Suit, the Plaintiff instituted
RCS No. 214 of 2006, asserting, inter alia, that the Bhausaheb,
the original tenant/Defendant passed away on 26 th May 1998. The
original tenant was running the business of cloths in the Suit
premises under the name and style of "Vishal Fabrics". After the
demise of the original tenant the Defendant Nos. 1 and 4, the sons
and widow of Bhausaheb, sublet the Suit premises to Mr. Shah,
who had started an electronics goods and gift articles shop under
the name and style of "Anand Shopee" in the Suit premises. Even
the said shop Anand Shopee was closed in the month of November
2005. The Defendants were in the process of further subletting the
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suit premises or transferring their interest in the suit premises.
Hence the suit for eviction.
3.7 The second Suit was also resisted by the Defendants. It was
denied that the Defendants had unlawfully sublet the Suit
premises to Mr. Shah and were indulging in illegal profiteering.
DECREE IN RCS NO. 214 OF 2006:
3.8 By a judgment and order dated 16 th November 2013, RCS
No. 214 of 2006 came to be decreed holding inter alia that the
Defendants had sublet the suit premises.
DECREE IN RCS NO. 444 OF 1989:
3.9 By judgment and order dated 30th July 2015, Suit No. 444
of 1989 was also decreed holding, inter alia, that the Defendant
committed default in payment of rent and thereby incurred
forfeiture of tenancy, the Plaintiff-Bank required the Suit premises
for its occupation reasonably and bona fide and in the event the
decree of eviction is not passed, the Plaintiff-Bank would suffer
greater hardship.
3.10 Being aggrieved, the Applicants preferred Appeals before
the District Court. By a common judgment and order, the learned
District Judge, Sangli, was persuaded to dismiss both the Appeals
and affirm the orders passed by the Trial Court.
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3.11 Being further aggrieved, the Applicants have preferred
these Revision Applications.
4. By an order dated 4th April 2019, this Court granted an ad-interim
relief subject to the Applicants clearing the arrears of rent, and neither
creating third party interest in, nor parting with the possession of, the
Suit premises.
5. It emerged that the Defendants did not deposit the rent during
the pendency of the Appeals till April 2024. An Application was filed
before the Trial Court on 14th October 2024, wherein a prayer was made
seeking permission to deposit the rent for 120 months, for the period
commencing from March 2014 to April 2024.
6. Thus, by an order dated 19th December 2024, this Court clarified
that, the grant of any permission by the Trial Court to deposit the
arrears and the consequent deposit of the arrears of rent would not
amount to waiver of consequences arising from the non-compliance of
the order dated 4th April 2019 and the Provisions of Section 12 of the
The Bombay Rents, Hotel And Lodging House Rates Control Act, 1947
("the Bombay Rent Act, 1947").
7. In the backdrop of the aforesaid developments, I have heard Mr.
Kuldeep Nikam, the learned Counsel for the Applicants-Defendants in
both the Revision Applications, and Mr. G.H Keluskar, the learned
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Counsel for the Respondent-Plaintiff at some length. With the assistance
of the learned Counsel for the parties, I have perused the material on
record.
SUB-LETTING:
8. To start with, the ground of unlawful subletting of the Suit
premises on which the decree of eviction was first passed in RCS No.
214 of 2006. It was the specific case of the Plaintiff that, Mr. Shah was
running the electronics goods and the gift articles business under the
name and style of "Anand Shopee" in the Suit premises. The Defendant
had ceded complete control over the demised premises to the said Mr.
Shah. Subsequently, the said Mr. Shah also closed the business in the
Suit premises and Rajesh Gidwani (PW-5) started a new business under
the name and style of "Get In". It is interesting to note that, Rajesh
Gidwani (PW-5) was examined as a witness for the Plaintiff.
9. An endeavour was made on behalf of the Defendants to
demonstrate that there was no subletting of the Suit premises as the
Defendants had entered into a partnership with Rajesh Gidwani (PW-5).
Thus, the tenancy rights in the Suit premises were never surrendered.
10. Mr. Nikam, the learned Counsel for the Applicants, strenuously
submitted that, there was overwhelming material to show that the
Defendant Nos. 1 to 3 in Suit No. 214 of 2006 had entered into a
registered Partnership Agreement with Rajesh Gidwani (PW-5). In the
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face of the registered Partnership Agreement, wherein the tenancy
rights were retained by the Defendant Nos. 1 to 3, the Courts below
committed a manifest error in law in holding that the partnership
Agreement was a subterfuge to evade eviction on the ground of unlawful
subletting. Mr. Nikam would urge that the Courts below were not at all
justified in discarding the registered Partnership Agreement on the
premise that, the share in the profits of Defendant Nos. 1 to 3 in the
business of the firm was marginal.
11. Mr. Keluskar, the learned Counsel for the Respondent-Plaintiff
would, however, submit that the Partnership Agreements were brought
about to mask the real nature of the transaction between the parties. It
was submitted that the Plaintiff had led positive evidence by examining
Rajesh Gidwani (PW-5) to whom the premises was unlawfully sublet. In
contrast, the Defendants failed to discharge the onus by explaining the
circumstances in which the third parties were in the occupation of the
Suit premises.
12. It is well recognized that where a stranger is found in the
possession of the demised premises, the onus rests on the tenant and,
such stranger, if impleaded as a party, to explain the capacity in which
such stranger is in the occupation of the demised premises. True, a
tenant may enter into a partnership and retain the control over the
demised premises and, in such a situation, the tenancy rights cannot be
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said to have been transferred. However, where the Partnership
Agreement is a camouflage to conceal the subletting of the demised
premises, the Court is not precluded from examining the real nature of
the transaction between the tenant and the stranger occupant and, in
such a situation, the covenants in the Agreement between the tenant and
such stranger do not bind the landlord.
13. It is judicially recognized that to defeat the provisions of the Rent
Control legislation, which incorporate subletting as a ground of eviction,
often devices are adopted to camouflage the subtenancy and thereby
obviate the consequence of unlawful subtenancy. Thus, the Courts are
called upon to enquire whether the Agreement of Partnership is a
genuine transaction or a subterfuge to evade eviction on the ground of
unlawful subletting.
14. In the case of Parvinder Singh Vs Renu Gautam & Ors1 a Three
Judge Bench of the Supreme Court enunciated that to defeat the
provisions of law, a device is at times adopted by unscrupulous tenants
and sub-tenants of bringing into existence a deed of partnership which
gives the relationship of tenant and sub-tenant an outward appearance
of partnership while in effect what has come into existence is a sub-
tenancy or parting with possession camouflaged under the cloak of
partnership.
15. The supreme court enunciated the legal position as under:
1 (2004) 4 SCC 794.
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"8. ... ... ... If the tenant is actively associated
with the partnership business and retains the use and
control over the tenancy premises with him, may be
along with the partners, the tenant may not be said to
have parted with possession. However, if the user and
control of the tenancy premises has been parted with
and deed of partnership has been drawn up as an
indirect method of collecting the consideration for
creation of sub-tenancy or for providing a cloak or
cover to conceal the transaction not permitted by law,
the Court is not estopped from tearing the veil of
partnership and finding out the real nature of
transaction entered into between the tenant and the
alleged sub-tenant.
9. ... ... ... An enquiry into reality of transaction is
not excluded merely by availability of writing reciting
the transaction. Tyagaraja Mudaliyar Vs Vedathanni
(AIR 1936 PC 70) is an authority for the proposition
that oral evidence in departure from the terms of a
written deed is admissible to show that what is
mentioned in the deed was not the real transaction
between the parties but it was something different. A
lease of immovable property is transfer of a right to
enjoy such property. Parting with possession or control
over the tenancy premises by tenant in favour of a
third person would amount to the tenant having
'transferred his rights under the lease' within the
meaning of Section 14(2) (ii) (a) of the Act."
(emphasis supplied)
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16. Reverting to the facts of the case, in the light of the aforesaid
position in law, the inference regarding the subletting drawn by the
Courts cannot be said to be unjustifiable. As noted above, the primary
onus to explain the presence of the stranger in the Suit Premises rests on
the tenant or the stranger, when he is made a party to the proceeding. In
the case at hand, the Plaintiff examined Rajesh Gidwani (PW-5) who
was in the occupation of the suit premises, as its witness. Initially, the
said witness deposed that there was a partnership between him and the
three legal heirs of the deceased-Bhausaheb Patil, the original tenant. He
had 64% share in the profits of the business. Defendant Nos. 1 to 3 had
12% each. However, in the cross-examination Rajesh Gidwani (PW-5)
conceded in no uncertain terms that when the partnership commenced,
under the partnership deed dated 16th July 2007 (Exhibit "155"), he had
97% share in the profits of the said business and Defendant Nos. 1 to 3
had only 1% share each therein. Subsequently in the year 2009, the
share of Defendant Nos. 1 to 3 was increased to 12% each. From the
evidence of Rajesh Gidwani (PW-5), it further appeared that, the Suit
premises was in his possession and he was alone running the business
therein.
17. In the backdrop of the aforesaid glaring facts, which stare in the
face, the endeavour of Mr. Nikam to urge that notwithstanding the 1%
share in the profits of Defendant Nos. 1 to 3 (collectively 3%) the
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partnership was a genuine transaction, does not carry conviction. The
miniscule share of 1% each, it itself, militates against the partnership
Agreement being a genuine transaction. It defies comprehension that for
a meagre 3% profit in the partnership business, Defendant Nos. 1 to 3
continued to exercise all pervasive control over the demised premises
and the partnership business. From this standpoint, the failure of the
Defendants to place on record relevant documents to justify the further
increase in the share of the profits to 12% each, after the institution, and
during the pendency, of the Suit for eviction, further dents the claim of
Defendants that the subsequent increase in the share of the Defendant
Nos. 1 to 3 in the profits of the partnership business lends an element of
genuineness to the said transaction. Nor any material could be placed on
record to show that the profits in the business were transferred to the
accounts of the partners.
18. A useful reference in this context can be made to a decision of the
learned Single Judge of this Court in the case of Narhar D Sakhawalkar
(Since Deceased through his L.Rs.) Sphurti Nilkanth Sakhawalkar Vs
Suresh Lahoti & Ors,2 wherein it was inter alia observed that the fact
that the stranger partners were holding 80% profits out of the
partnership business would itself show that, the interest was transferred
and subtenancy was created.
2 2009(2) Mh.L.J. 755.
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19. In the case at hand 97% share in the profits of the business to the
stranger partner makes the partnership artificial, unrealistic and
unappealing to human credulity. Thus, no interference is warranted with
the findings recorded by the Courts below on the ground of subletting.
DEFAULT IN PAYMENT OF RENT:
20. On the aspect of default in payment of rent, the Trial Court as
well as the Appellate Court have recorded consistent findings that
though the Defendant had deposited the arrears of rent and electricity
charges along with 9% interest on the day the Defendant appeared
before the Court in response to the Suit summons, yet, the Defendant
did not regularly deposit the rent during the pendency of the Suit and
thereby committed breach of the conditions stipulated in sub-Section (3)
of Section 12 of the Bombay Rent Act 1947.
21. In paragraph 19 of the impugned judgment, the learned District
Judge has categorically recorded that the Defendants did not regularly
pay the rent. The learned District Judge has enumerated the dates on
which the rent was deposited by the Defendant; the period for which the
rent was so deposited and the resultant delay in the payment of rent.
22. Mr. Nikam, candidly submitted that, indeed, there was some
delay in the deposit of the rent during the pendency of the proceedings.
However, it cannot be said that the Defendant was not regular in the
payment of rent.
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23. The aforesaid submission is required to be stated to be repelled.
Evidently there was considerable delay in the deposit of rent, in each
tranche of the deposit. The tenant may not deposit the rent with
mathematical precision. However, a consistent course of default, and
deposit of the rent after months together, as a matter of system and
repetition, (as shown in paragraph 19 of the impugned judgment) can
lead to no other inference than that of failure to regularly deposit the
rent during the pendency of the Suit.
24. What exacerbated the situation is the fact that, the Defendants
did not deposit the rent during the pendency of the Appeal. As is
evident, from the order passed by this Court on 19 th December 2024, it
was only on 14th October 2024, the Applicants filed an Application
seeking permission to deposit the rent for a whopping 120 months i.e.,
for the period of March 2014 to April 2024.
25. No reasons, or for that matter the persuasive skills of Mr. Nikam,
can offer a satisfactory explanation for such inaction and failure to
deposit the rent despite a clear and explicit order dated 4 th April 2019,
that the Applicants would clear the arrears of rent before the next date
of hearing, subject to which the ad-interim relief was thereby granted.
26. In this view of the matter, the forfeiture of tenancy for non-
compliance with the conditions under Section 12(3) of the Bombay Rent
Act 1947 is an inevitable consequence.
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REQUIREMENT OF THE PREMISES:
27. With regard to the requirement of the Suit premises for the
Plaintiff for its business operations, the thrust of the submission of Mr.
Nikam was that, after the institution of the Suit there were significant
developments which substantially diminished the requirement of
additional premises for the Plaintiff.
28. The requirement of the Plaintiff, according to Mr. Nikam, ceased
to exist in two ways. First, there was substantial reduction of the work
and the workforce at the main branch of the Plaintiff, as a number of
business units were shifted from the main branch to the other branch
offices. Second, during the pendency of the Suit, the Plaintiff
constructed a new building and also obtained clear and vacant
possession of the premises from three other tenants. Therefore, on
account of subsequent events, the requirement of the Plaintiff has
completely eclipsed.
29. The Courts below took note of the subsequent developments and,
yet, found that the requirement of the Plaintiff still subsisted and, in the
event of refusal to pass the decree, the Plaintiff would suffer greater
hardship.
30. It is trite that the requirement of the landlord has to be judged in
the context of the facts as they obtained on the date of the institution of
the Suit. That remains the basic rule. However, the Court is required to
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take a cautious cognizance of the subsequent events. In cases were the
subsequent developments are such that the requirement of the landlord
is completely eclipsed, the Court may be justified in modifying the
decree.
31. A useful reference in this context can be made to a decision of the
Supreme Court in the case of Gaya Prasad Vs Pradeep Srivastava,3
wherein it was enunciated that, the crucial date for deciding as to the
the bona fide of the requirement of the landlord is the date of his
application for eviction. The antecedent days may perhaps have utility
for him to reach the said crucial date of consideration. If every
subsequent development during the post-petition period is to be taken
into account for judging the bona fide of the requirement pleaded by
landlord there would perhaps be no end so long as the unfortunate
situation in our litigative slow-process system subsists. The subsequent
events to overshadow the genuineness of the need must be of such
nature and of such a dimension that the need propounded by the
petitioning party should have been completely eclipsed by such
subsequent events.
32. Following the abovesaid pronouncement, in the case of D. Sasi
Kumar Vs Soundararajan,4 the Supreme Court reiterated that, if as on
the date of filing the Petition the requirement subsists and it is proved,
3 (2001) 2 SCC 604.
4 (2019) 9 SCC 282.
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the same would be sufficient irrespective of the time lapse in the judicial
process coming to an end, and that the landlord should not be penalised
for the slowness of the legal system
33. Applying the aforesaid principles to the facts of the case at hand,
it is pertinent to note that the case of the Plaintiff that the main branch
of the Plaintiff is located on the first floor of the building, the demised
premises on the ground floor and the locker facility provided by the
bank is situated in the basement could not be impeached. It emerges
from the evidence that the customers of the bank were required to climb
30 odd steps to reach the first floor where the banking operations are
conducted. If a customer has to access his locker, he is first required to
approach the first floor and then return to the basement to use the
locker facility.
34. The necessity of the demised premises, therefore, cannot be said
to have been completely eclipsed as the requirement to expand the
banking business and extend the facility to the customers cannot be said
to have ceased. The submission of Mr. Nikam that the bank has
obtained the possession of other tenements and has also constructed
buildings to house the new branches of the Bank, even if taken at par,
does not detract materially from the Plaintiff's claim. These
developments, in a sense, underscore the growing business activities of
the Plaintiff-Bank.
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35. I am, therefore, inclined to hold that the Courts below have
correctly arrived at the findings that the subsequent events did not
completely eclipse the requirement of the Bank.
36. On the aspect of the greater hardship, both the Courts have found
that the Defendants have another premises in the vicinity of the demised
premises. Moreover, if viewed in the backdrop of the fact that the
Defendant had ceded complete control of demised premises in favour of
the stranger, the Defendants would not suffer any hardship if the decree
of eviction is passed. Resultantly, the grounds of reasonable and bona
fide requirement and the element of greater hardship are also required
to be answered in favour of the Plaintiff.
37. The conspectus of the aforesaid consideration is that, both the
Revision Applications deserve to be dismissed.
38. Hence the following order:
:ORDER:
The Civil Revision Applications stand dismissed with costs.
[N. J. JAMADAR, J.]
39. At this stage, the learned Counsel for the Applicants seeks
continuation of the interim relief for a period of 12 weeks. The learned
Counsel for the Respondent opposed the prayer.
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40. As the interim relief is in operation since 2019, the same shall
continue to operate for a period of six weeks from today, subject to the
Applicants filing an undertaking not to part with possession of the Suit
premises and otherwise create third party interest therein, within one
week from today.
[N. J. JAMADAR, J.]
