1. As common question of law and facts arise in these group of Civil Revision Applications and they arise out of the common judgment and order passed by the learned appellate Court, both the Civil Revision Applications are disposed of by this common order.
1.1. Civil Revision Application No. 2/2012 has been preferred by the applicants-original plaintiffs to quash and set aside the impugned judgment and order dated 14/09/2011 passed by the learned Principal District Judge, Surat in Regular Civil Appeal No. 12/1997.
1.2. Civil Revision Application No. 3/2012 has been preferred by the applicants to quash and set aside the impugned judgment and order dated 14/09/2011 passed by the learned Principal District Judge, Surat in Regular Civil Appeal No. 9/1997.
2. The applicants-original plaintiffs-landlord instituted Small Suit No. 1070/1980 in the Court of learned Small Cause Court at Surat against the respondents-original defendants nos. 1 to 9 for recovery of the possession of the suit property on the ground of arrears of rent, bonafide requirement of the landlord and on the ground of subletting. It was the case on behalf of the applicants-original plaintiffs that the respondents nos. 1 to 8-original defendants nos. 1 to 8-tenants have sublet the suit premises in favour of respondent no. 9-original defendant no.
9. It was the specific case on behalf of respondent no. 9- original defendant no. 9 that he is the direct tenant prior to 1959 and he is in possession of the suit premises much prior to 1959. The learned trial Court did not accept the case of respondent no. 9-original defendant no. 9 that he is the direct tenant of the suit premises and/or that he is in possession of the disputed property in question as head/direct tenant and consequently the learned trial Court passed the judgment and decree dated 31/12/1996 and directed respondent no. 9-
original defendant no. 9 to handover the ground floor area i.e. one room, which is occupied by respondent no. 9-original defendant no. 9. The learned trial Court however, did not pass the decree of possession on the ground of arrears of rent for more than six months and on the ground of bonafide requirements. Being aggrieved and dissatisfied with the judgment and decree passed by the learned Small Cause Court at Surat in Small Suit No. 1070/1980 passing the decree of possession on the ground of subletting respondent no. 9- original defendant no. 9 preferred Regular Civil Appeal No. 9/1997 before the learned Principal District Judge, Surat. It appears that during pendency of the said Appeal, respondent no. 9-original defendant no. 9 expired and, therefore, his heirs were brought on record, who are respondents nos. 9-A to 9-E. Simultaneously, the applicants-original plaintiffs also preferred Regular Civil Appeal No. 12/1997 against the judgment and decree passed by the learned Additional Small Cause Court at Surat in Summary Suit No. 1070/1980 in so far as not passing the decree of possession on the ground of arrears of rent and bonafide requirement. Both the Appeals came to be heard by the learned appellate Court and by impugned judgment and order the learned appellate Court has allowed Regular Civil Appeal No. 9/1997 preferred by respondent no. 9-original defendant no. 9 and has quashed and set aside the judgment and decree passed by the learned Additional Small Cause Court at Surat in Small Suit No. 1070/1980 decreeing the suit on the ground of subletting considering Sub Section (2) of Section 15 of the Bombay Rent Act and the learned appellate Court dismissed Regular Civil Appeal No. 12/1997 preferred by the applicants-original plaintiffs. Being aggrieved and dissatisfied with the impugned common judgment and order passed by the learned Principal District Judge, Surat dated 14/09/2011 in Regular Civil Appeal Nos. 9/1997 and 12/1997, the applicant- original plaintiffs have preferred the present Civil Revision Application under Section 29(2) of the Bombay Rent Act.
3. Shri Arpit Kapadia, learned advocate appearing on behalf of the applicants-original plaintiffs-landlord has vehemently submitted that as such the learned appellate Court has materially erred in granting the benefit of Sub Section (2) of Section 15 of the Bombay Rent Act. It is submitted that as such two inconsistent plea were taken by respondent no. 9- defendant no. 9. It is submitted that on one hand respondent no. 9-original defendant no. 9 claimed that he was the direct tenant and, therefore, it was not open for him and/or for the learned appellate Court to grant the benefit of Sub Section (2) of Section 15 of the Bombay Rent Act. It is submitted that once respondent no. 9-original defendant no. 9 claimed that he was the direct tenant, there was no question of considering his case as sub tenant and to grant the benefit of Sub Section (2) of Section 15 of the Bombay Rent Act and, therefore, it is submitted that the learned appellate Court has materially erred in considering Sub Section (2) of Section 15 of the Bombay Rent Act and has materially erred in quashing and setting aside the judgment and decree passed by the learned trial Court. Shri Kapadia, learned advocate appearing on behalf of the applicant-original plaintiffs has vehemently submitted that both the Courts below have materially erred in not passing the decree on the ground of bonafide requirement of the landlords. Making the above submission, it is requested to admit/allow the present Civil Revision Applications.
4. Shri Amit Thakkar, learned advocate has appeared on behalf of respondent no. 9-original defendant no. 9-heirs of original defendant no. 9 i.e. respondents nos. 9-A to 9-E in Civil Revision Application No. 2/2012. It is submitted by him that it was the specific case on behalf of respondent no. 9-original defendant no. 9 that he was inducted as a tenant within the knowledge of the applicants-original plaintiffs-landlords and it might be that respondent no. 9-original defendant no. 9 has failed to prove his case and the applicants-original plaintiffs have established and proved their case that the respondents nos. 1-8-original defendants nos. 1 to 8 have sublet the suit premises in favour of respondent no. 9-original defendant no. 9 in that case also when respondent no. 9-original defendant no. 9 was found to be in possession even as sub tenant prior to 1959 he will be entitled to protection under Sub Section 2 of Section 15 of the Bombay Rent Act and, therefore, it is submitted that the learned appellate Court has not committed any error and/or illegality in quashing and setting aside the judgment and decree passed by the learned trial Court granting the decree of possession on the ground of subletting.
5. Shri Thakkar, learned advocate appearing on behalf of respondent no. 9-original defendant no. 9 has submitted that as such the learned advocate appearing on behalf of the applicants-original plaintiffs did not press the ground of arrears of rent and bonafide requirement and pressed the ground before the learned appellate Court of subletting only and, therefore, it is not open for the applicants-original plaintiffs now to press the ground of arrears of rent and bonafide requirement, which were waived before the learned appellate Court. Therefore, it is requested to dismiss the present Civil Revision Applications.
6. Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that the applicants-original plaintiffs prayed for recovery of possession on the ground of arrears of rent, bonafide requirement and subletting. It was the specific case on behalf of the applicants-original plaintiffs that respondents nos. 1 to 8- original defendants nos. 1 to 8 have sublet the property in favour of respondent no. 9-original defendant no. 9. It was the case on behalf of respondent no. 9-original defendant no. 9 that he was inducted as tenant by respondents nos. 1 to 8 prior to 1959 with the knowledge of the applicants-original plaintiffs. The learned trial Court did not accept the case on behalf of the respondent no. 9-original defendant no. 9 that he was inducted as tenant by respondents nos. 1 to 8-original defendants nos. 1 to 8 within the knowledge of the applicants-original plaintiffs. The learned trial Court did not pass the decree on the ground of arrears of rent and bonafide requirement. Being aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court decreeing the suit on the ground of subletting, respondent no. 9-original defendant no. 9 preferred Regular Civil Appeal No. 9/1997 before the learned District Court and simultaneously, the applicants-original plaintiffs also preferred Regular Civil Appeal No. 12/1997 before the learned District Court against the judgment and decree passed by the learned trial Court in not passing the decree on the ground of arrears of rent and bonafide requirement. It appears that from the judgment and order passed by the learned appellate Court that the learned advocate appearing on behalf of the applicant- original plaintiffs waived the grounds to get the decree on the ground of arrears of rent and bonafide requirement and pressed for confirmation of the decree, which was passed on the ground of subletting. Considering Sub Section 2 of Section 15 of the Bombay Rent Act when it was found that respondent no. 9-original defendant no. 9 was in possession of the suit premises in question prior to 1959 and accepting the case on behalf of the applicants-original plaintiffs that original respondents nos. 1 to 8-original defendants nos. 1 to 8 have sublet the suit premises in favour of respondent no. 9-original defendant no. 9 without the knowledge of the applicants- original plaintiffs in that case also considering the Sub Section (2) of Section 15 of the Bombay Rent Act, learned appellate Court has held that bar against subletting will not come in the way of respondent no. 9-original defendant no. 9 sub tenant and his possession shall be deemed to valid and consequently the learned appellate Court has quashed and set aside the decree passed by the learned trial Court which was passed on the ground of subletting. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned appellate Court, the applicant-original plaintiffs have preferred the present Civil Revision Applications.
7. Now so far as the contention on behalf of the applicants- original plaintiffs that once respondent no. 9-original defendant no. 9 claimed that he was direct tenant in that case it was not open for him to claim the benefit of Sub Section (2) of Section 15 of the Bombay Rent Act and/or the learned appellate Court ought not to have granted the benefit of Sub Section (2) of Section 15 of the Bombay Rent Act to respondent no. 9-original defendant no. 9 is concerned, the aforesaid has no substance. It is required to be noted that as such respondent no. 9-original defendant no. 9 claimed direct tenancy and/or claimed that he was inducted as a tenant by respondents nos. 1 to 8- original defendants nos. 1 to 8 within the knowledge of the applicants- original plaintiffs, however the learned trial Court did not accept the said case on behalf of respondent no. 9-original defendant no. 9 and accepted the case on behalf of the applicants-original plaintiff that respondents nos. 1 to 8-original defendants nos. 1 to 8 have subletted the suit premises in favour of respondent no. 9-original defendant no. 9. Therefore, the case on behalf of the applicants-original plaintiffs with respect to subletting came to be accepted by the learned trial Court and respondent no. 9-original defendant no. 9 came to be considered as sub tenant. In that case also when respondent no. 9-original defendant no. 9 was found to be sub tenant prior to 1959 in that case as per Sub Section (2) of Section 15 of the Bombay Rent Act the bar against subletting shall be deemed to have no affect against respondent no. 9- original defendant no. 9. Under the circumstances, the learned appellate Court has rightly granted the benefit of Sub Section (2) of Section 15 of the Bombay Rent Act and has rightly quashed and set aside the judgment and decree passed by the learned trial Court, which was on the ground of subletting. No illegality has been committed by the learned appellate Court in allowing the Appeal preferred by respondent nos 9-A to 9-E- original defendant no. 9.
8. Now so far as Civil Revision Application No. 3/2012 challenging the judgment and order passed by both the Courts below in not passing the decree on the ground of arrears of rent and bonafide requirement of the landlord is concerned, it is required to be noted that in an Appeal preferred by the applicants-original plaintiffs against the judgment and decree passed by the learned trial Court in not passing the decree on the ground of arrears of rent and bonafide requirement being Regular Civil Appeal No. 12/1997, it appears from the impugned common judgment and order passed by the learned appellate Court that the learned advocate appearing on behalf of the applicants-original plaintiffs waived the ground of arrears of rent and bonafide requirement and only pressed for the ground of subletting. Considering the facts and circumstances of the case now it is not open for applicants-original plaintiffs to pray for decree of possession on the ground of arrears of rent and bonafide requirement, which were waived by the learned advocate appearing on behalf of applicants-original plaintiffs. Under the circumstances, the learned appellate Court has not committed any error and/or illegality in dismissing Regular Civil Appeal No. 12/1997 preferred by the applicants-original plaintiffs.
9. In view of the above and for the reasons stated hereinabove, the present Civil Revision Applications fail and they deserve to be dismissed and are accordingly dismissed. Notice is discharged.
(M.R. SHAH, J.) siji