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Zaveri and Sons v/s Dwarkadas Haridas & Others

    WRIT PETITION NO.1695 OF 1984
    Decided On, 18 June 1997
    At, High Court of Judicature at Bombay
    By, THE HON'BLE MR. JUSTICE D.K. DESHMUKH
    Shri P.N.Tulsian for the petitioners. Shri Raje S. Bhonsale for the respondents.


Judgment Text
ORAL JUDGMENT


By both these petitions filed under Article 227 of the Constitution of India, the petitioners challenge a common judgment dated 2.3.1984, delivered by the Division Bench of the Small Causes Court, Bombay in Appeal No. 653 of 1976 & Appeal No.674/1976. Both these Appeals were filed, challenging the judgment and decree passed by the Small Causes Court, Bombay dated 29/30.7.1976 in R.A.E. Suit No.233/1931 of 1966. The Appellants in Appeal No.653 of 1976 M/s. Zaveri & Sons was defendant No.5 in the R.A.E. Suit No.233/1931 of 1966. Whereas the Appellant in Appeal No. _ 74/76 - Shri Krishna Sales Agencies, was the defendant No.3 in the Civil Suit No.233/1931 of 1966. The Civil Suit filed by Haridas Ghelabhai of whom the present respondents Nos. 1 to 5 are the legal representatives. The plaintiffs claimed in the suit that they are landlords of a building bearing No.25/27 situated at Old Post Office Lane, Kalbadevi, Bombay -2. The plaintiffs claimed a decree of eviction against the defendants in the Civil Suit on several grounds. It was the case of the plaintiffs in the Civil Suit that initially, the building was given on lease to one Pandurang Javji Dadaji, who expired leaving behind him defendant No.1, namely, Rajaram Shankar Choudhari as his only heir. The defendant No.2 in the Suit- Laxmibai Narayan Choudhari, according to the plaintiffs had no interest in the suit property. The plaintiffs sought decree of eviction against the tenants on several grounds, including the ground that the suit premises have been unlawfully sublet to the defendant Nos. 3 to 5. The trial Court found in favour of the landlords only on one ground namely, unlawful subletting of the suit premises to defendant Nos. 3 to 5. The Trial Court, therefore, passed a decree of eviction against the defendants. As stated above, that decree was challenged only by the defendant Nos. 3 & 5 by filing separate Appeals before the Appellate Court. The Appellate Court found that so far as the defendant No.3 is concerned, licence in his favour was created by an agreement at Exh. 7, which was executed by defendant No.2 and the Court then found that it is only the defendant No.1 who inherited the tenancy on the death of the original tenant and that the defendant No.2 did not inherit the tenancy and therefore, the defendant No.2 had no right to create suit tenancy in favour of defendant No.3 and therefore, the Appellate Court recorded a finding that the premises have been unlawfully sublet to the defendant No.3 and therefore, the landlords are entitled to a decree of eviction against the defendant No.3. It is further to be seen that in so far as the defendant No.5 is concerned, the Court found that transfer in his favour of the part of the suit premises was executed by the defendant No.4 and therefore, the defendant No.5 was an unlawful sub-tenant. Thus the defendant No.5 was claiming possession of the premises through the defendant No.4. The Appellate Court has clearly found that the defendant No.3 is a sub-tenant of the defendant No.2 and the defendant No.5 is unlawful sub-tenant of defendant No.4. The reason given by the Court for holding that the sub-tenancy created in favour of the defendant No.3 was unauthorised, namely, that it was created by defendant No.2, who had no interest in the suit property. In my opinion it appears to be correct. However, in so far as the sub-tenancy created in favour of the defendant No.5 is concerned, the sub-tenancy was created in his favour by the defendant No.4. The only aspect that appears to have been weighed with the courts below for holding sub-tenancy in favour of the defendant No.5, to be an unlawful is that the defendant No.4 was not authorised to create sub-tenancy, obviously because of the provisions of Section 15 of the Maharashtra Act. It is however, clear that the sub-tenancy in favour of defendant No.5 was created in 1969 that is much before 1.2.1973 and therefore, in view of the amendments incorporated in sub-section (2) of section 15 of the Act by Maharashtra No.18 of the 1987, the sub-tenancy in favour of the defendant No.5 would be protected and on that ground a decree of eviction cannot be passed against the defendant No.5. Therefore, the net result is that though the finding recorded by the Courts below that sub-tenancy created in favour of the defendant No.5 was unlawful is taken to be correct, still the decree of eviction cannot now be passed against the defendant No.5 because of the amendments effected in the year 1987 in sub-section (2) of Section 15 of the Act by the Maharashtra Act No. 18 of 1987. In the result, therefore, the Writ Petition No.1695 of 1984 which is filed by M/s.Zaveri and Sons which was defendant No.5 in the Civil Suit No. 233/1931 of 1966 succeeds and is a

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llowed. The decree passed by the Courts below for eviction of the defendant No.5 is set aside to that extent only. 2.So far as the Writ Petition No.1724 of 1984, which is filed by the Krishna Sales Agencies, which was defendant No.3 in the Civil Suit No.233/1931 of 1966 fails and is dismissed. 3.Rule in writ petition No.1695/84 is made absolute in the above referred terms. Whereas the Rule in writ petition No.1724/84 is discharged. There shall be, however, no order as to costs in the petitions.
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