- (1.) By this writ petition filed under Article 227 of the Constitution of India, the petitioners challenge the order dated 17.4.1984 passed by the Division Bench of the Small Causes Court at Bombay in Appeal No.265/1973. That appeal was filed by the present respondent No.1 Dayasing challenging the order dated 24.4.1972 passed by the Small Causes Court at Bombay, in R.A.D. Suit No.7760/1965. That suit was filed by the respondent No.1 claiming a declaration in the following terms : "(a) that it may be declared that the plaintiffs have become or be deemed to have become tenants of the suit premises, viz. a godown at 4-6, Telgalli, Vithalwadi, Bombay, about the 31st of July 1963 on the same terms and conditions as were held by defendant No.5 by reason of subletting of the premises to the plaintiffs prior to 21st May 1959; (b) that it be declared that the decree and order passed in R.A.E. Suit No.298/2800 of 1960 against Bawa Glass Co., Defendant No.5 is not binding on the plaintiffs and is not capable of execution against them."
(2.) Now, the admitted facts are that the petitioners are the owners of the suit premises, namely, Godown 4-6, Tel Galli, Vithalwadi, Bombay and that respondent No.2 Bawa Glass Co. was the tenant of the suit premises. In the year 1960, the petitioners filed a suit for a decree of eviction against the tenant Bawa Glass Co. on the ground that the tenant Bawa Glass Co. is not ready and willing to pay the rent. To this suit, admittedly, respondent No.1 Dayasing was not joined as a defendant. In the suit there was also an allegation that the tenant Bawa Glass Co. had sublet the premises and decree was sought on that ground also. However, a finding was recorded by the Court that the premises have been lawfully sublet by the tenant to one Gurudatt Asanand. There is some controversy between the parties whether this Gurudatt Asanand and the present respondent No.1 Dayasing are one and the same. However, the fact that is material for the present petition is that a decree of eviction was denied to the landlord on the ground that the tenant had illegality sublet the suit premises. When the decree was put to execution, there was an objection raised to the execution. Ultimately, the present suit came to be filed by the respondent No.1 claiming a declaration that he is the tenant of the suit premises and that the decree passed in the earlier suit does not bind him. The trial court, however, recorded a finding against the plaintiff-respondent No.1 and dismissed the suit. The appellate Court, however, reversed the finding recorded by the trial Court and recorded findings in favour of the respondent No.1 who had filed an appeal before the appellate Court, and decreed the suit.
(3.) For the purpose of deciding this petition, it is section 15 and section 14 of the Bombay Rent Act which are relevant. Both the sections have undergone amendments during the pendency of this petition and these amendments, in my opinion, materially alter the controversy between the parties. Now, it is a finding of fact, and which is not seriously disputed before me, that the suit premises were sublet by the original tenant Bawa Glass Co. to respondent No.1 Dayasing. However, the controversy between the parties was whether the subletting took place before 21st May 1959 or after 21st May 1959. There is also a finding of fact recorded, which again is not seriously disputed before me, that the subletting in favour of respondent No.1 took place before 31st July 1963, the date on which the decree in the earlier suit filed by the landlord was passed. It is also not in dispute before me that on 1.2.1973 respondent No.1 was in possession of the suit premises. Now, in this background, the provisions of sub-section (1) of section 14 and sub-section (2) of section 15 are to be looked into. Sub-section (1) of section 14 reads as under : "14. (1) When the interest of a tenant of any premises is determined for any reason, any sub-tenant to whom the premises or any part thereof have been lawfully sublet before the 1st day of February 1973 shall, subject to the provisions of this Act, be deemed to become the tenant of the landlord on the same terms and conditions as he would have held from the tenant if the tenancy had continued." It is clear from the perusal of sub-section (1) of section 14 of the Act that in case where the tenancy of a tenant is determined for any reason and if there is on the premises a sub-tenant, the sub-tenancy in whose favour is lawfully created, he is deemed to have become tenant of the landlord on the same terms and conditions. It is thus clear that for clothing a sub-tenant with the rights of a tenant under this section, two conditions that are to be satisfied by the sub-tenant are : (1) that there has been lawful subletting in his favour; and (2) the subletting has been before 1.2.1973. It is for the purpose of finding out whether a sub-tenancy is lawful or unlawful that the provisions of sub-section (2) of section 15 of the Act become relevant. Sub-section (2) of section 15 reads as under : "15.(2) The prohibition against the sub-letting of the whole or any part of the premises which have been let to any tenant, and against the assignment or transfer in any other manner of the interest of the tenant therein, contained in sub section (1) shall, subject to the provisions of this sub-section, be deemed to have had no effect before the 1st day of February 1973, in any area in which this Act was in operation before such commencement; and accordingly notwithstanding anything contained in any contract or in the judgment, decree or order of a court, any such sub-lease, assignment or transfer or any such purported sub-lease, assignment or transfer in favour of any person who has entered into possession, despite the prohibition in sub-section (1), as a purported sub-lessee, assignee or transferee and has continued in possession on the date aforesaid, shall be deemed to be valid and effectual for all purposes, and any tenant who has sub-let any premises or part thereof, assigned or transferred any interest therein, shall not be liable to eviction under clause (e) of sub-section (1) of section 13. The provisions aforesaid of this sub section shall not affect in any manner the operation of sub section of section (1) after the date aforesaid." Perusal of the provisions of sub-section (2) of section 15 of the Act shows that if sub-tenancy in relation to any premises is created before 1.2.1973 and if the sub-tenant is on the premises on 1.2.1973, then sub-tenancy in his favour is to be deemed to be valid and effectual for all purposes.;