FULCHAND FOJMAL Vs. SUPERIOR CAP MART

JUDGEMENT

(1.) THE Petitioners are claiming to be sub tenant under one Haribhau Kalidas Dave has filed writ petition challenging the decree passed by the Small Causes Court, Bombay in R.A.E. Suit No.596/5660 of 1966 which was confirmed by the order of the appellate Court on 4-12-1979 by the appellate bench of the Small Causes Court. THE suit which gave rise to the impugned order in this case was filed by the respondent No.1 in respect of the suit premises, the portion of the Northern side of the 2nd floor of the Sanjana Building, Mirza Street, Bombay-2. THE suit was filed on three grounds i.e. arrears of rent illegal subletting and change of user. THE trial court passed decree on the first two grounds and rejected the ground of change of user.

(2.) AS I stated earlier, this decree was confirmed by the appellate Court. Normally, this court will not interfere where there is concurrent finding on facts by the both courts below. But in this case, the learned counsel for the Petitioner Mr. Thorat has submitted that the petitioners are entitled for protection under Section 14 of the Sub-Section (1) read with Sub Section (2) of Section 15 of the Bombay Rent Act, 1947. He drew my attention to the undisputed facts of this case that the premises was leased to the original tenant who has filed written statement. But he didn't contest the matter. In his written statement, he has categorically stated that he had put the petitioners in possession of the premises. On a reading of the written statement, it is clear that he is no more interested in the suit premises. According to Mr. Thorat, since the petitioner was put in possession, he was paying the rent to the original tenant. When he made attempt to pay the rent to the landlord, 1st respondent, he refused to accept. It is proved in this case, when original tenant died in 1970, present petitioners were continuing the possession of the premises. Undisputed fact is that the petitioner's father was sub tenant who was occupying premises from the year 1960. When he died in 1970 the present petitioners came to be in possession. According to Mr. Thorat, petitioner is entitled to protection. He has also brought to my notice that both the courts below had no occasion to examine the consequences of the amendment of the Act brought about in 1987 under Section 15(2) and Section 40 by Maharashtra Amendment Act No.18 of 1986 which came into force on 1-10-1987. The appellate court has passed order as early as 20-1-1986.

(3.) IN the result, writ petition is allowed and decree of the courts below are set aside to the extent indicated above. Rule is made absolute in the above terms. IN the circumstances, no orders as to costs. Petition allowed.