1. The present Civil Revision Application under Section 29(2) of the Bombay Rent Act has been preferred by the applicants- original defendants to quash and set aside the impugned judgment and order/decree passed by the learned appellate Bench of the Small Cause Court at Ahmedabad dated 31/03/2012 in Civil Appeal No. 118/2007 by which the learned appellate Court has allowed the appeal preferred by the respondents-original plaintiffs by quashing and setting aside the judgment and decree passed by the learned Small Cause Court at Ahmedabad dated 04/05/2007 in HRP Suit No. 534/2005 by which the learned trial Court dismissed the suit refusing to pass the eviction decree and consequently, the learned appellate Court has decreed the suit and passed the eviction decree on the ground of subletting under Section 13(1) (e) of the Bombay Rent Act.
2. The respondents-original plaintiffs instituted HRP Suit No. 534/2005 before the learned Small Cause Court, Ahmedabad against the appellants-original defendants for eviction decree on the ground of subletting by original defendants nos. 1 and 2 in favour of original defendant no. 3 and also on the ground of bonafide and personal requirement of the respondents-original plaintiffs-landlord. It appears that though original defendant no. 3 was found to be in partial possession of the suit premises, without the consent of the landlord, the learned trial Court refused to pass the eviction decree on the ground of subletting. The learned trial Court dismissed the suit and refused to pass the eviction decree also on the ground that the respondents- original plaintiffs-landlord required the suit premises for their personal and bonafide use. Consequently, the learned trial Court dismissed the suit by judgment and decree dated 04/05/2007 and refused to pass the eviction decree on the ground of subletting as well as on the ground of personal and bonafide requirement of the respondents-original plaintiffs-
landlord. Being aggrieved and dissatisfied with the judgment and decree passed by the learned Small Cause Court at Ahmedabad dated 04/05/2007 in HRP Suit No. 534/2005, the respondents-original plaintiffs preferred Civil Appeal No. 118/2007 before the learned appellate Bench of the Small Cause Court at Ahmedabad and the learned appellate Bench of the Small Cause Court at Ahmedabad by impugned judgment and order/decree has allowed the said appeal preferred by the respondents-original plaintiffs and has quashed and set aside the impugned judgment and order/decree passed by the learned trial Court dismissing the suit and consequently decreeing the suit and passing the eviction decree on the ground of subletting under Section 13(1)(e) of the Bombay Rent Act. Being aggrieved and dissatisfied with the impugned judgment and order/decree passed by the learned appellate Bench of the Small Cause Court at Ahmedabad in passing the eviction decree against the applicants-original defendants under Section 13(1)(e) of the Bombay Rent Act, the applicants- original defendants have preferred the present Civil Revision Application under Section 29(2) of the Bombay Rent Act.
3. Shri Viral K. Shah, learned advocate appearing on behalf of the applicants-original defendants has vehemently submitted that the learned appellate Court has materially erred in allowing the appeal and quashing and setting aside the judgment and decree passed by the learned trial Court and consequently decreeing the suit and passing the eviction decree under Section 13(1)(e) of the Bombay Rent Act i.e. on the ground of subletting.
3.1. It is further submitted by Shri Shah, learned advocate appearing on behalf of the applicants-original defendants that as original defendant no. 3 was found to be in possession of the suit premises with original defendants nos. 1 and 2, the learned appellate Court has materially erred in passing the eviction decree on the ground of subletting. It is submitted that as original defendant no. 3 was not found to be in exclusive possession of the suit premises, no decree could have been passed on the ground of subletting. Shri Shah, learned advocate appearing on behalf of the applicants-original defendants has further submitted that as such the learned appellate Court has materially erred in relying upon the decision of the Hon'ble Supreme Court in the case of Associated Hotels of India Ltd. Vs. S.B. Sardar Ranjit Singh reported in AIR 1968 SC 933. It is submitted that in the case before the Hon'ble Supreme Court the entire rented premises was found to be in possession of the third party-sub tenant and, therefore, the Hon'ble Supreme Court held that subletting has been proved. It is submitted that in the present case the entire suit premises was not found to be in possession of original defendant no. 3 and, therefore, no case is made out for subletting and, therefore, the learned appellate Court has materially erred in passing the eviction decree under Section 13(1)(e) of the Bombay Rent Act. Making the above submissions, it is requested to admit/allow the present Civil Revision Application. No other submissions have been made.
4. The present Civil Revision Application is opposed by Shri L.R. Pathan, learned advocate appearing on behalf of the respondents-original plaintiffs, who appeared in the delay condonation application. It is submitted that considering the fact that admittedly original defendant no. 3 was found to be in possession of the suit premises, may be partially, the learned appellate Court has rightly passed by the eviction decree under Section 13(1)(e) of the Bombay Rent Act, which is not required to be interfered with by this Court under Section 29(2) of the Bombay Rent Act. It is submitted that the learned appellate Court has rightly interpreted Section 13(1)(e) of the Bombay Rent Act and has rightly held that if original defendant no. 3 is found to be in partial possession, Section 13(1)(e) of the Bombay Rent Act would be applicable and decree for eviction on the ground of subletting can be passed and, therefore, it is submitted that as such no illegality has been committed by the learned appellate Court in allowing the appeal and passing the eviction decree under Section 13(1)(e) of the Bombay Rent Act. It is submitted that as on today the decree passed by the learned appellate Court is already executed and possession is with the respondents-original plaintiffs. Making the above submission, it is requested to dismiss the present Civil Revision Application.
5. Heard the learned advocates appearing on behalf of the respective parties at length and considered the impugned judgment and order/decree passed by both the Courts below. At the outset, it is required to be noted that the learned appellate Court has passed the eviction decree against the applicants-original defendants under Section 13(1)(e) of the Bombay Rent Act i.e. on the ground that original defendants nos. 1 and 2 have sublet the suit premises in favour of original defendant no. 3. It is not in dispute that as such the suit premises was let to original defendants nos. 1 and 2. It is also not in dispute and it is not disputed by the learned advocate appearing on behalf of the applicants-original defendants that original defendant no. 3 was found to be in possession of the suit premises and was carrying on the business. However, it is the case on behalf of the applicants-original defendants that as original defendant no. 3 was not in exclusive possession of the entire suit premises, no eviction decree under Section 13(1)(e) can be passed. The aforesaid has no substance and cannot be accepted. Even if the third party is found to be in possession of the partially rented the premises Section 13(1)(e) of the Bombay Rent Act would be attracted and eviction decree can be passed on the ground of subletting. Section 13(1)(e) of the Bombay Rent Act does not say that only in a case where the entire suit premises is found to be in possession of the third party then and then only the decree on the ground of subletting can be passed.
6. Under the circumstances, when original defendant no. 3 was admittedly found to be in possession of the suit premises (may be partially) a clear cut case of subletting has been made out and, therefore, no illegality has been committed by the learned appellate Court in passing the decree under Section 13(1)(e) of the Bombay Rent Act. At this stage, it is required to be noted that it was the case on behalf of the applicants-original defendants that all of them were carrying on similar business but as sister concerned. However, the applicants-original defendants failed to prove the same. The learned appellate Court has considered the aforesaid aspect in extenso and considering the same has passed the eviction decree on the ground of subletting. Under the circumstances, in view of the above, no illegality has been committed by the learned appellate Court in allowing the appeal and quashing and setting aside the judgment and decree passed by the learned trial Court dismissing the suit and consequently decreeing the suit and passing the eviction decree under Section 13(1)(e) of the Bombay Rent Act, which calls for the interference of this Court in exercise of the revisional jurisdiction under Section 29(2) of the Bombay Rent Act. It is also required to be noted at this stage that even the judgment and decree passed by the learned appellate Court has been executed and possession is already taken over by the respondents-original plaintiffs.
7. In view of the above and for the reasons stated hereinabove, the present Civil Revision Application deserves to be dismissed and is accordingly dismissed.
(M.R. SHAH, J.) siji