HIRALAL VALLABHRAM Vs. SHETH KASTURBHAI LALBHAI

JUDGEMENT

(1.) This is an appeal by Special leave against the judgment of the Gujarat High Court. Brief facts necessary for present purposes are these. A suit was brought by respondents Nos. 1 and 2 (hereinafter referred to as the respondents) against the appellant and three others in the Court of Judge Small Causes at Ahmedabad under sec. 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, No. LVII of 1947 (hereinafter referred to as the Act). The case of the respondents was that the other three persons who were defendants Nos. 1 to 3 were the tenants-in-chief of the premises while the present appellant who was defendant No. 4 was their sub-tenant. The respondents had given notice to the tenants-in-chief terminating the tenancy and asked them to vacate the premises from after November 30, 1956, which was the end of the month of tenancy. The suit was filed on March 1, 1957 and was based on two grounds, namely, (i) that the rent had not been paid for six-months, and (ii) that there had been unlawful sub-letting by the tenants-in-chief to the appellant. The suit was resisted by the three tenants-in-chief, One of them took the defence that the premises had been taken by a firm at a time when It consisted of the three defendants. But later defendant No. 1 no longer remained a partner of the firm and had nothing to do with the premises and the suit against him was not maintainable. Defendant Nos. 2 and 3 on the other hand contended that the rent claimed (i. e. Rs. 26/-) was excessive and prayed that standard rent should be fixed for the premises. These defendants further said that defendant No. 1 was no longer a partner of the firm and that in his place defendant No. 4 (i, e. the present appellant) had become partner. Thus defendants Nos. 2 and 3 denied that there was any sub-letting, unlawful or otherwise, to the appellant. It was further stated that the rent due had been deposited on the first date of hearing and in consequence there were no arrears due to the respondents. The appellant also filed a written-statement. He denied that he was sub-tenant but his case was that the entire interest of defendants Nos. 1 to 3 in the business along with the interest in the premises had been transferred to him and be was thus the tenant of the respondents and not a sub-tenant. He further said that the arrears of rent had been paid into Court and thus there were no arrears due to the respondents.

(2.) On these pleadings, the trial Court framed four issues. The first issue was whether defendants Nos. 1 to 3 were in arrears and it was held that they were not in arrears. The second issue was about the standard rent of the premises and the trial Court held that it was the same as the contractual rent, namely, Rs. 26/- per mensem. The third issue was whether defendants Nos. 1 to 3 had sub-let the premises and the fourth issue was whether there was an assignment in favour of the present appellant by defendants Nos. 1 to 3 of their interest. The trial Court held that defen dants Nos. 1 to 3 had sub-let the premises to the present appellant and did not accept the contention of defendants Nos. 2 and 3 about partner ship or of the appellant about assignment. Finally the trial Court held on the basis of the amendment of the Act in 1959 that there could be no eviction. It therefore dismissed the suit against all the four defendants, namely, the three tenants-in-chief and the appellant so far as eviction was concerned. It further ordered the tenants-in-chief to pay rent from September 1, 1956 upto date at the rate of Rs. 26/- per mensem. It further said that the amount of rent had been deposited by the tenants in Court and should be taken away by the respondents with the rider that in case the amount fell short the respondents would be at liberty to recover the deficiency if any from the person and property of the tenants-in-chief. Finally the suit was dismissed in toto against the present appellant.

(3.) The respondents then went in appeal against The dismissal of the suit so far as eviction was concerned. To this appeal the three tenantsin-chief and the appellant were made parties, and the main contention of the respondents in the appellate Court was that the suit for eviction should have been decreed both on the ground of arrears of rent and on the ground of subletting. Two main questions were formulated by the appellate Court for decision, namely-(i) whether the tenants-in-chief were tenants in arrears and (ii) whether the respondents were entitled to possession from the present appellant on the ground that he was not a sub-tenant and also on the ground that he was not protected under sec. 15(2) of the Act as amended in 1959. do the question of arrears, the appellate Court held that there were so arrears. But to the other question the appellate court Secms to have taken a curious view. It did not examine the correctness of the view taken by the trial Court that the present appellant was a sub-tenant. It took the view that as the present appellant had in his written-statemeat denied that he was a sub-tenant, he could not be a sub-tenant. It then went on to hold that as the present appellant was in possession and as he was not a suo-tenant on his own showing he must be held to be a trespasser because he bad failed to prove assignment. So holding that the present appellant was a trespasser, it ordered his ejectment on the ground that benefit of sec. 15(2) as amended in 1959 could only be available to a subtenant, which the present appellant was not on his own showing. The appellate Court therefore allowed the appeal, set aside the decree of the trial Court and ordered that the present appellant should hand over possession of the suit premises to the respondents within six months of the order of the appellate court. We have said that the view taken by the appellate Court was curious because the appellate Court does not Secm to have ordered the ejectment of the tenants-in-chief. At least there is nothing in the judgment ef the appellate Court to show this, though it is certainly said therein that the trial court's decree was set aside.