1. The present Civil Revision Application under Section 29(2) of the Bombay Rent Act has been preferred by the applicant-
original defendant no. 4 to quash and set aside the impugned judgment and order passed by the learned appellate Court- learned 2nd Extra Assistant Judge, Valsad, Navsari dated 19/07/2000 in Regular Civil Appeal No. 22/1993 by which the learned appellate Court has allowed the said appeal preferred by the original plaintiffs by quashing and setting aside the judgment and decree dated 30/11/1992 passed by the learned Civil Judge (Senior Division), Navsari in Regular Civil Suit No. 197/1987 by which the learned trial Court has dismissed the said suit preferred by the original plaintiffs for recovery of possession/eviction decree on the ground of subletting by original defendants nos. 1 to 3 in favour of the applicant- original defendant no. 4.
2. The original plaintiffs instituted Regular Civil Suit No. 197/1987 in the Court of learned Civil Judge (Senior Division), Navsari for recovery of possession/eviction decree against the original defendants on the ground of subletting in favour of the applicant-original defendant no. 4 without the consent of the landlord. It was the case on behalf of the original plaintiffs that the suit property was given on lease to original defendant no. 1-Navsari Mahila Sahakari Bhandar Ltd. on the rent of Rs. 125/- per month and original defendant no. 1 has subletted the suit premises to the applicant-original defendant no. 4 without prior approval/consent of the landlord and, therefore, an eviction decree was sought under Section 13(1)(e) and 13(1)(ee) of the Bombay Rent Act.
3. The suit was resisted by the original defendants. The original defendants nos. 1 to 3 filed their written statement at Exh. 22. The original defendants nos. 4, 5 and 6 also filed separate written statement at Exh. 24. All the original defendants denied the allegation of subletting. It was the case on behalf of the original defendants that as such pursuant to the order passed by the Registrar of Co-operative Societies, original defendant no. 1-tenant came to be merged into the applicant-original defendant no. 4 and, therefore, as it was a statutory merger, it cannot be said that the original defendant no. 1 has subletted the suit premises in favour of original defendant no. 4 illegally, which warrants eviction. The learned trial Court framed the issues at Exh. 26. On behalf of the original plaintiffs, two witnesses came to be examined at Exhs. 71 and 94. The original defendant no. 1-tenant also produced the documentary evidence. From the defendants side, two witnesses were examined at Exhs. 102 and 106. The learned trial Court vide judgment and decree dated 30/11/1992 dismissed the suit by holding that as the original defendant no. 1 merged into the applicant-original defendant no. 4 pursuant to the order passed by the Registrar of Co-operative Societies under the Gujarat Co-operative Societies Act, it cannot be said that there was subletting in favour of original defendant no. 4 as alleged and, therefore, the learned trial Court refused to pass the eviction decree under Section 13(1)(e) and 13(1)(ee) of the Bombay Rent Act. Being aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court dismissing the suit and refusing to pass the eviction decree under Section 13(1)(e) and 13(1)(ee) of the Bombay Rent Act, original plaintiffs preferred Regular Civil Appeal No. 22/1993 before the learned District Court, Valsad and the learned 2nd Extra Assistant Judge, Valsad, Navsari by impugned judgment and order and relying upon the decision of the Hon'ble Supreme Court in the case of M/s. General Radio & Appliances Co. Ltd. and Ors Vs. M.A. Khader reported in AIR 1986 SC 1218 has allowed the said appeal and has quashed and set aside the judgment and decree passed by the learned trial Court dismissing the suit and consequently passed the eviction decree under Section 13(1)(e) of the Bombay Rent Act on the ground of subletting. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned appellate Court in allowing the appeal and quashing and setting aside the impugned judgment and order passed by the learned trial Court dismissing the suit and consequently passing the eviction decree, the applicant- original defendant no. 4 has preferred the present Civil Revision Application under Section 29(2) of the Bombay Rent Act.
4. Shri Dhirendra Mehta, learned advocate appearing on behalf of the applicant-original defendant no. 4 has vehemently submitted that as such the learned appellate Court has materially erred in passing the eviction decree against the original defendants on the ground of subletting i.e. under Section 13(1)(e) of the Bombay Rent Act. It is submitted that when original defendant no. 1 came to be merged into the applicant-original defendant no. 4, pursuant to the order passed by the Registrar of Co-operative Societies under the Gujarat Co-operative Societies Act, more particularly Section 17 of the aforesaid Act and consequently when the applicant- original defendant no. 4 was in possession of the suit property, the learned appellate Court has materially erred in holding the subletting and passing the decree under section 13(1)(e) of the Bombay Rent Act. It is further submitted by Shri Mehta, learned advocate appearing on behalf of the applicant-original defendant no. 4 that even the learned trial Court has not properly appreciated the facts of the decision of the Hon'ble Supreme Court in the case of M/s. General Radio & Appliances Co. Ltd. and Ors (Supra), which has been relied upon while passing the eviction decree. It is further submitted that the learned appellate Court has not properly appreciated the fact that in the case before the Hon'ble Supreme Court the Hon'ble Supreme Court was considering Section 10(ii)(1) of the A.P. Buildings (Lease, Rent and Eviction) Control Act, which is different from Section 13(1)(e) of the Bombay Rent Act.
4.1. Shri Mehta, learned advocate appearing on behalf of the applicant-original defendant no. 4 has relied upon the decision of the learned Single Judge in the case of Dahiben Lakhabhai and Anr Vs. The Administrative Officer and Ors. reported in 1980 GLR 90 by submitting that the transfer in favour of the applicant-original defendant no. 4 was compulsory transfer pursuant to the order of merger passed by the Registrar of Co-operative Societies, and, therefore, it cannot be said to be subletting, more particularly, unless and until it is proved that the transfer is for valuable consideration. Making the above submission and relying upon the above decision, it is requested to allow the present Civil Revision Application.
5. The present Civil Revision Application is opposed by Shri Subhash Barot, learned advocate appearing on behalf of respondent no. 1. It is submitted that as the merger of original defendant no. 1 in favour of the applicant-original defendant no. 4 was voluntary merger and not compulsory merger by operation of law, the learned appellate Court has rightly held that original defendant no. 1 has subletted the suit premises in favour of the applicant-original defendant no. 4 and has rightly passed the eviction decree under Section 13(1)(e) of the Bombay Rent Act. Shri Barot, learned advocate appearing on behalf of respondent no. 1-original plaintiff has relied upon the decision of the Hon'ble Supreme Court in the case of Singer India Ltd. Vs. Chander Mohan Chadha and Ors. reported in (2004) 7 SCC 1 as well as the decision of the Kerala High Court in the case of Malabar Regional Co-operative Milk Producers Union Ltd. Vs. K.P. Abdullakoya Haji and Ors. reported in 1997 AIHC 1499 in support of his submission that the learned appellate Court has rightly passed the eviction decree under Section 13(1)(e) of the Bombay Rent Act on the ground that original defendant no. 1 has sublet the suit premises in favour of the applicant-original defendant no. 4 without the consent of the landlord.
5.1. Relying upon the additional affidavit filed by respondent no. 1-original plaintiff dated 20/07/2011, Shri Barot, learned advocate appearing on behalf of respondent no. 1-original plaintiff has submitted that as such even the applicant-original defendant no. 4 is also not using the suit premises and even the electricity connection in the suit premises has been disconnected and, therefore, it is requested to dismiss the present Civil Revision Application.
6. Heard the learned advocates appearing on behalf of the respective parties at length and considered the impugned judgment and orders passed by both the Courts below as well as the evidence on record from the Record and Proceedings, which has been received from the learned trial Court. It is not in dispute that the suit premises was leased in favour original defendant no. 1, which is already closed/merged into original defendant no. 4 and, therefore, as such original defendant no. 1 was the tenant of the suit premises. It appears that in fact original defendant no. 1 applied for voluntary merger with the applicant-original defendant no. 4 and to that the Registrar of Co-operative Societies passed an order under Section 17 of the Gujarat Co-operative Societies Act of merger of original defendant no. 1 into the applicant-original defendant no. 4. Under the aforesaid facts and circumstances, when possession of the suit premises has been transferred in favour of the applicant-original defendant no. 4 without the consent of the landlord and tenancy has been transferred without the consent of the landlord, it cannot be said that the learned appellate Court has committed an error and/or illegality in passing the eviction decree under Section 13(1)(e) of the Bombay Rent Act.
6.1. The contention on behalf of the applicant-original defendant no. 4 that as it was transfer/merger of original defendant no. 1 with the applicant-original defendant no. 4, and pursuant to the order passed by the Registrar of Co- operative Societies the applicant-original defendant no. 4 was in possession of the suit premises, it cannot be said original defendant no. 1 has subletted the suit premises in favour of the applicant-original defendant no. 4. The aforesaid cannot be accepted. As stated hereinabove, as such it was voluntary merger by original defendant no. 1 into the applicant-original defendant no. 4 and not a compulsory merger under the provisions of the Co-operative Societies Act. The things would have been different if original defendant no. 1 is merged into the applicant-original defendant no. 4 compulsorily under the statute and/or there is compulsory statutory merger. If the contention on behalf of the applicant-original defendant no. 4 is accepted that as original defendant no. 1 is merged into the applicant-original defendant no. 4 pursuant to the order passed by the Registrar Co-operative Societies and the possession was handed over to the applicant-original defendant no. 4 and, therefore, there is no subletting, in that case, every tenant Society to avoid and/or get out of the allegation of subletting would pass the Resolution to get itself merged into another Society and can contend that there is no subletting. Under the circumstances, the contention on behalf of the applicant- original defendant no. 4 that there was no subletting cannot be accepted. As such, the learned appellate Court has rightly relied upon the decision of the Hon'ble Supreme Court in the case of M/s. General Radio & Appliances Co. Ltd. and Ors (Supra). Identical question came to be considered by the Hon'ble Supreme Court in the case of Singer India Ltd. (Supra) and it is held that even if there is an order of a Court sanctioning the Scheme of Amalgamation under Sections 391 and 394 of the Companies Act whereunder the leases, right of tenancy or occupancy of the transferor Company gets vested in and becomes the property of the transferee company, it would make no difference insofar as the applicability of subletting is concerned as the Act does not make any exception in favour of a lessee who may have adopted such a course of action in order to secure compliance with law.
6.2. In the case of Malabar Regional Co-operative Milk Producers Union Ltd. Vs. K.P. Abdullakoya Haji and Ors. (Supra) Kerala High Court has held that any agreement between the first and the second societies would not bind the landlord and, therefore, the transfer of leasehold right and possession of building to second Society without permission and knowledge of the landlord amounts to sub-lease.
6.3. Now so far as reliance placed upon the decision of this Court in the case of Dahiben Lakhabhai and Anr (Supra) is concerned, on facts the said decision would not be applicable.
6.4. Now so far as the contention on behalf of the applicant- original defendant no. 4 that as the original plaintiff has failed to prove that suit premises has been transferred for valuable consideration and, therefore, the eviction decree cannot be passed is concerned, it is required to be noted that in the present case, the learned appellate Court has passed the eviction decree under Section 13(1)(e) of the Bombay Rent Act on the ground that original defendant no. 1 has unlawfully subletted the suit premises in favour of the applicant-original defendant no. 4. The learned advocate appearing on behalf of the respondent is not in a position to point out how the transfer of possession in favour of the applicant-original defendant no.
4 can be said to be lawful subletting. There is a distinction between Section 13(1)(e) and 13(1)(ee) of the Bombay Rent Act. Under the circumstances, when original defendant no. 1 transferred the suit premises in favour of the applicant-original defendant no. 4 without the consent of the landlord and subletting has been proved and the decree under Section 13(1) (e) of the Bombay Rent Act is passed, it cannot be said that the learned appellate Court has committed an error and/or illegality, which calls for interference of this court in exercise of revisional jurisdiction under Section 29(2) of the Bombay Rent Act.
CRA/916/2000 10/10 JUDGMENT
6.5. At this stage, it is required to be noted that as per the additional affidavit filed by the landlord the applicant-original defendant no. 4 is also not using the suit premises and the same is closed and even electricity connection has also disconnected since 2001.
7. In view of the above and for the reasons stated hereinabove, the present Civil Revision Application fails and the same deserves to be dismissed and is accordingly dismissed. Rule is discharged. Ad-interim-relief granted earlier, if any, stands vacated forthwith. No costs.
(M.R. SHAH, J.) siji