[Cites 6, Cited by 0]
Bombay High Court
Shri. Deendayal Raghunath Yadav And Ors vs Smt. Noorbanoo Abdul Salam Shaikh And ... on 30 January, 2026
2026:BHC-AS:4744
CRA-590-2011 C.doc
Digitally signed
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
by
HUSENBASHA
HUSENBASHA RAHAMAN
RAHAMAN
CIVIL APPELLATE JURISDICTION
NADAF
NADAF Date:
2026.01.30
CIVIL REVISION APPLICATION No. 590 OF 2011
16:23:12 +0530
1. Deendayal Raghunath Yadav
since deceased through legal heirs
and legal representatives
1/1. Santosh Deendayal Yadav
1/2. Sandeep Deendayal Yadav
2. Sitaram Raghunath Yadav
3. Rambriksha Raghunath Yadav ...Applicants
Versus
1. Smt. Noorbanoo Abdul Salam Shaikh
2. Irshadbhai Alais Mulla ...Respondents
****
Mr. Rajesh S. Datar a/w. Mr. Akshay J. Kandarkar for Applicants.
Mr. S. G. Deshmukh a/w. Mr. Vignesh Ashokan i/b. Mr. Gautam T.
Kanchanpurkar for Respondent Nos. 1 & 2.
****
CORAM : M.M. SATHAYE, J.
RESERVED ON : 10th DECEMBER, 2025
PRONOUNCED ON : 30th JANUARY, 2026
JUDGMENT :
1. This Civil Revision Application is filed by Plaintiffs/landlords
under Section 115 of the Civil Procedure Code, 1908 ('CPC', for
short) challenging judgment and decree dated 01.04.2011 passed by
Principal District Judge, Thane in Civil Appeal No.38 of 2009 ('the
said appeal' for short), by which the appeal filed by Defendant No.1 /
Tenant is allowed, there by setting aside the Judgment and Decree of
eviction dated 13.02.2009 passed by 3rd Joint Civil Judge, Junior
CRA-590-2011 C.doc
Division, Thane in Regular Civil Suit No. 724 of 2004 ('the said suit'
for short). In short, the eviction suit was decreed directing the
Respondents to vacate the suit premises. However, the decree of
eviction has been set aside by the Appeal Court.
2. One shop at measuring 10' x 12' in Raghunath Chawl bearing
Tika No.8, City Survey No.160/4 situated at Uthalsar, Old Agra Road,
Thane - 400 601 is the suit premises.
3. The Applicants filed the said suit against the Respondents for
recovery of suit premises on the grounds of default/arrears of rent
and unlawful subletting under section 16(1)(e) of the Maharashtra
Rent Control Act, 1999 ('MRC Act' for short). It is the case of the
Applicants/landlords that Respondent No. 1 did not pay the rent of
the suit premises and she is in arrears since January 2003 till filing of
the suit. The Applicants/landlord amended the plaint and added
paragraph No. 9A contending inter alia that Respondent No. 1 has
sublet the suit premises to Respondent No. 2 illegally without the
consent of the Applicants and she is earning profits from Respondent
No. 2.
4. Respondent No. 1 filed written statement contending inter alia
that Respondent No. 2 is working with her as a mechanic in the
garage being run by Respondent No. 1 in suit premises. That
Respondent No. 2 is looking after the garage. It is contended that
Respondent No. 2 has been paid daily wages by Respondent No. 1
and case of unlawful subletting is denied. It is contented that since
the Plaintiffs did not produce any legal heirship, the rent is not paid.
CRA-590-2011 C.doc
However, Respondent No. 1 is ready to pay the rent to true landlord.
It is contented that on getting suit summons, she has deposited the
arrears of rent on 27.12.2004.
5. Parties led evidence in support of their rival claims. The
learned Trial Judge on appreciation of evidence found that the
ground of default is not proved, however found that the ground of
unlawful subletting is proved and therefore the suit was partly
decreed directing Respondent No. 1 to vacant the suit premises.
Respondent No. 1 filed the said appeal challenging the decree of
eviction, which has been allowed under impugned decree. During
pendency of the proceedings, Applicant No.1 expired and his legal
rights are brought on record.
6. Learned counsel Mr. Datar appearing from the Applicants/
landlords submitted that the Appeal Court has appreciated the
evidence perversely and has reversed a well reasoned judgment of
the Trial Court, thereby dismissing the suit. He submitted that the
evidence of PW-2 has been appreciated in perverse manner. That it
could not have been held that evidence of PW-2 is not substantiated
by documentary evidence. That the admissions of Respondent No. 1
are considered perverse manner, in as much as the Shop and
Establishment License is admitted to stand in the name of son-in-law
of Respondent No. 1, which itself shows subletting. Respondent No. 2
has avoided to appear in the suit and adverse inference needs to be
drawn against Respondents. He submitted that exclusive possession
of Respondent No. 2 is sufficiently established and therefore it was
for Respondent No. 1 to prove that Respondent No. 2 was working as
CRA-590-2011 C.doc
servant on daily wages. He relied upon the Judgment of Santosh
Anant Sabale Vs. Mathuradas Morarji (since deceased) and Others
[2024 SCC Online Bom 3847] in support of his case.
7. On the other hand, Mr. Deshmukh, learned counsel appearing
for Respondents submitted that Respondent No. 1 is a muslim-lady
and therefore the business is run in the name of son-in-law. He
submitted that non availability of license in the name of Respondent
No. 2 must be held in favour of Respondent No. 1. He submitted that
the Appellate Court has rightly dismissed the suit because exclusive
control and possession of Respondent No. 2 is not proved. He
submitted that no adverse inference can be drawn against the
Respondents in the facts of the case. Lastly, he submitted that in the
limited scope under Section 115 of the CPC, no interference is
required as there is no perversity in the impugned order.
8. I have considered the rival submissions and perused the report.
9. It is settled position of law that while considering the ground
of unlawful subletting, the landlord can not be expected to know
about the transaction / agreement between the Tenant and sub-
tenant which is necessarily a clandestine arrangement. In a recent
judgment of Hon'ble Supreme Court in Ram Maruti Devi Vs. Pushpa
Devi & Ors (2017) 15 SCC 230, this law is re-iterated. The landlord is
required to establish exclusive possession of the sub-tenant in respect
of suit premises or part thereof for monetary consideration. Once
such fact is established then onus shifts upon the tenant to explain
how the sub-tenant is in possession of the suit premises. It may not
CRA-590-2011 C.doc
be possible always to give direct evidence of monetary consideration
since such transaction of sub-letting are made between the tenant
and sub-tenant behind the back of the landlord.
10. The Applicants/landlords have examined PW-2 Mr. Nazir
Saudagar, who has stated in his examination-in-chief that he knows
Respondent No. 2 and he takes his four-wheeler to Respondent No.2
for repairs at Manoharpada.
11. Respondent No. 1/tenant has admitted that she does not have
any documentary evidence to show that she is paying salary to 3
persons (including Respondent No. 2) allegedly employed by her to
run the garage. She has further admitted that the persons allegedly
employed by her gives quotation of the car repairs. She has also
admitted that she has no documentary evidence to support her case
payment of salary. She has further admitted that the license of
running a garage stands in the name of son-in-law. She has also
admitted that no details are produced about how much material is
purchased or used in the garage.
12. Aforesaid admissions apparently indicate that the Respondent
No. 1 has no real control over the business in the suit premises.
13. Perusal of the Appeal Court judgment indicates that the Appeal
Court has considered the case of unlawful subletting in a convoluted
manner. It is held by the learned Judge that 'Had defendant No. 1
indeed sublet the suit shop to defendant No. 2, it would have
appeared in the tax assessment record of Thane Municipal
Corporation'. To expect the tenant to let the name of unlawful sub-
CRA-590-2011 C.doc
tenant appear in the tax record is against the very idea of 'unlawful
sub-letting' as a statutory ground for eviction.
14. Further, the Appeal Court has held that 'Fact, however remains
that Plaintiffs were/are not having documentary evidence to show
that Defendant No. 1 has sub-let the suit shop to Defendant No.2' . It
is settled position of law that by the very nature of the ground, it is a
secret activity between the tenant and sub-tenant and therefore
landlord cannot be expected to have access to any documentary
evidence of such secret transaction between the tenant and unlawful
sub tenant.
15. The aspect of license of running garage in suit premises not
standing in the name of Respondent No.1 is also not properly
considered by the Appeal Court. The admission of Respondent No. 1
that the license stands in the name of son-in-law (not Respondent No.
2) itself indicates that the Respondent No. 1 is not running the
garage. This has a material bearing on the issue involved.
16. For the reasons stated above, the appreciation of evidence by
the Appeal Court is perverse and there is ex-facie error in considering
the burden. The finding arrived at by the Appeal Court is found based
on perverse appreciation and against settled position of law and if
allowed to stand, would amount to miscarriage of justice. Therefore
the same is being interfered with, drawing support from paragraph
10 of the Judgment of the Hon'ble Supreme Court in Pandurang
Dhondi Chougule Vs. Maruti Hari Jadhav [1965 SCC OnLine SC 83]
and paragraph 43 of the Judgment of the Hon'ble Supreme Court in
CRA-590-2011 C.doc
HPCL Vs. Dilbahar Singh [(2014) 9 SCC 78].
17. It is not possible to re-appreciate the evidence in the limited
jurisdiction under Section 115 of the CPC and therefore the evidence
needs to be considered again by the last-fact finding Court i.e. the
Appeal Court.
18. Therefore, the Civil Revision Application partly succeeds and
Rule is made partly absolute, by passing following order:
(a) The impugned judgment and decree dated 01.04.2011
passed in Appeal No. 38 of 2009 is quashed and set aside.
(b) The said appeal is restored to the file of the Appeal Court
for re-consideration on merits.
(c) The Appeal Court is directed to re-consider the evidence
already on record and decide the appeal in accordance
with law, without being influenced by observations in this
order, preferably within 9 months from presentation of
this order.
(d) There shall be no order as to costs.
19. All concerned to act on duly authenticated or digitally signed
copy of this order.
(M.M. SATHAYE, J.)
