SUMITRA MADHAV SHETE Vs. NIRMALA GANGADHAR DANDE

JUDGEMENT

(1.) Heard Advocate Shri N.S. Deshpande, for the petitioners/original defendants and Advocate Shri V.V. Bhangde for respondents. Rule made returnable forthwith and heard finally by consent. The suit for eviction 8s possession was dismissed by the Small Causes Court, and R.C.A. 437/2007 filed by the respondents (landlords) under section 34 of the Maharashtra Rent Control Act, 1999 has been allowed by the District Judge No. 9, Nagpur on 27.6.2008

(2.) Advocate Deshpande contends that petitioner No. 3 who has been accepted to be nephew of original tenant Madhaorao Shete and whose joint residence with said Madhao has been accepted on record, ought to have been treated as direct tenant and there was no question of examining his status as subtenant. He contends that in fact agreement was negotiated by petitioner No. 3 and there are on record some documents of N.M.C. which shows such independent status of petitioner No. 3. He argues that as petitioner No. 3 is original tenant, he still occupies the tenanted premises in his own rights and there is no question of granting permission by lower Appellate Court on the ground of nonuser of tenanted premises by original tenant or Madhav. He further states that in these circumstances there is no question of granting permission even on the ground of default in payment of rent after receipt of notice under section 15(1) of the Maharashtra Rent Control Act.

(3.) Advocate Bhangde in reply states that the lower Appellate Court has independently considered the evidence and no document has been produced on record to show that petitioner No. 3 was residing with petitioner No. 1 and 2 as member of their family. He further argues that because of this he has been rightly labeled as sub-tenant by present respondents, but even lower Appellate Court has not granted permission on that ground. He states that in any case petitioner No. 3 has not come up with plea that he attempted to pay rent to present respondents and that rent was not accepted. He argues that after service of notice under section 15(1) or even after service of suit summonses on the petitioner No. 3 or petitioner No. 1 and 2 could have deposited the rent. According to him that rent was not deposited as petitioner No. 1 and 2 had already shifted permanently to Bombay and therefore he states that grant of permission on the ground of default is proper. He further argues that in this situation when original tenants are not in occupation and they are not paying rent also and a stranger continues to be in occupation a case of nonuser is definitely made out.