- (1.) Special leave granted.
(2.) These Civil Appeals have been preferred against a common judgment of the Bombay High Court dismissing Writ Petition No. 3313 of 1987 filed by Arjun Khiamal Makhijani who is the appellant in one of these appeals and Writ Petition No. 3417 of 1987 by Prithdayal Chetandas and others who are the appellants in the other civil appeal. Jamndas C. Tuliani who is respondent No. 1 in both these appeal is the owner and the landlord of the suit premises comprising two bedrooms flat together with a garage on the ground floor and a store room on Bhulabhai Desai Road in the city of Bombay. A suit instituted by him for ejectment from the said premises against five defendants on the ground that they were tenants of the said premises and were in arrears of rent for a period of more than six months which they had not paid in spite of a notice of demand having been served on them as contemplated by sub-sec. (2) of Sec. 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as 'the Act') and were consequently liable for eviction under Sec. 12(3)(a) of the Act as it then stood. Two other grounds were pleaded by respondent No. 1 namely that the tenants had charged the user of the suit premises and that they had committed breach of terms and conditions of the tenancy. Subsequently, Arjun Khiamal Makhijani aforesaid was impleaded as defendant No. 6 in the suit on the assertion that the tenants had illegally sublet a portion of the premises namely the garage to him and were consequently liable to be evicted on this ground also. The suit was contested both by the tenants as well as by defendant No. 6. The trial Court recorded findings in favour of the landlord insofar as the pleas of default in payment of rent and illegal sub-tenancy are concerned. The other two pleas namely that the tenants had charged the user of the suit premises and had also committed breach of terms and conditions of the tenancy were decided against the landlord. On the basis of the findings on the pleas of default in payment of rent and illegal subletting, the suit was decreed. Two appeals were preferred against the judgment of the trial Court, one by the tenants and the other by defendant No. 6. Both the appeals were dismissed and the tenants and defendant No. 6 aggrieved by the said decree filed two writ petitions in the High Court. Against these common judgment of the High Court dismissing these writ petitions, the present civil appeals have been preferred.
(3.) Before dealing with the respective submissions made by learned Counsel for the parties it may be pointed out that even though the finding that the tenants were defaulters in payment of rent has been upheld by the High Court, the other finding namely that the tenants had illegally sublet the garage of the suit premises to defendant No. 6 has been set aside and it has been held accepting the case of the tenants that defendant No. 6 was a trespasser. The tenants had also claimed before the High Court the benefit of sub-sec. (3) of Sec. 12 of the Act as substituted by Amendment Act 18 of 1987 which came into force on October 1, 1987. This plea too was repelled. Defendant No. 6, before the High Court on the other hand took up the plea that in view of the finding in the suit that he was an illegal sub-tenant of the garage since 1967, he was entitled to the benefit of sub-sec. (2) of Sec. 15 of the Act as amended by the aforesaid Amendment Act 18 of 1987. The High Court repelled this pleas on the finding that he was not a sub-tenant but a trespasser and also on the ground that he was not in possession on February 1, 1973, the relevant date mentioned in the said sub-section. The High Court also held that benefit of sub-sec. (2) of Sec. 15 as amended, could not be given to defendant No. 6 in a writ petition, the same being not a proceeding contemplated by sec. 25 of the Amendment Act. In order to appreciate the submissions made by learned Counsel for the parties, it will be useful to extract sub-sec. (3) as it stood at the time when the suit was instituted and sub-sec. (3) as it stands after its amendment. Sub-sec. (3) as it stood when the suit was instituted reads as hereunder : "(3)(a) Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub-sec. (2), the Court shall pass a decree for eviction in any such suit for recovery of possession. (b) In any other case no decree for eviction shall be passed in any such suit if, on the first day of hearing of the suit or on or before such other date as the Court may fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter continues to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the Court.";