IMPORTANT POINT
Where eviction suit is against main tenant on ground of default in payment of rent under the Bombay Rent Control Act, a sub-tenant who is protected by u/s 14 cannot be ordered to be evicted along with original tenant because sub-tenant becomes direct tenant after the determination of tence on decree being passed against original tenant.

Headnote:Bombay Rents, Hotel & Lodging House Rates Control Act, 1947-Section 12 r/w Section 14, 13(1)(e) -Eviction on ground of default in payment of rent-Eviction suit again tenant and sub-tenant-Sub- tenancy proved to be created in 1950 though landlord claimed sub-tenancy came to be created in 1972-Eviction ordered against main tenancy alone-Whether correct?-Held, Yes-Sub-tenancy being before 1959 Section 14 saved sub-tenant from eviction-Sub tenant became direct tenant from date of determination of tenancy, i.e., from date of decree of Court evicting main tenant-Sub- tenant could not be said to be in arrears of rent before he became direct tenant-He therefore could not be evicted on ground of default in payment of rent.
       Held : Courts have returned the finding that though there is subletting by the first respondent to the second respondent but that subletting was before 1959. That being so, Section 14 of the Act comes into play and saves the second respondent from eviction. As noted above, High Court has held that the tenancy of the first respondent stood determined w.e.f. April 17, 1982 on the date when the first Appellate Court delivered judgment holding that the first respondent was liable to eviction on the ground under Section 12 of the Act. Now from this date it is the second respondent who becomes direct tenant under the appellants. Sub-section (2) of Section 15 validates any sub-tenancy created before the first day of February 1973 and in that case a tenant is not liable to eviction under clause (e) of sub-section (1) of Section 13 of the Act.
        (Paras 4 & 5)
       When the Act was enacted a sub-tenant was saved from the eviction if sub-tenancy had been created prior to February 13, 1948. Under the Ordinance of 1959, which was subsequently replaced by the Bombay Act 49 of 1959, a lawful sub-tenancy created prior to May 21, 1959 was also saved. Again by the amending Act (Bombay Act 18 of 1987) lawful sub-tenancies created prior to February 1, 1973 were saved. Thus a sub-tenant is protected if sub-tenancy, which is lawful, is created prior to February 1, 1973. (Para 7)
       Under Section 14 of the Act sub-tenant becomes tenant only after the tenancy of the tenant is determined. In the notice dated January 16, 1975, the appellants have claimed rent only from the first respondent. It is his tenancy which is determined and the allegation is that the first respondent inducted the second respondent to the suit premises. In the suit also it is the first respondent against whom ground for eviction on the ground of non-payment of rent under Section 12 of the Act is advanced. The first Appellate Court rightly held that a money decree for non-payment of rent cannot be passed against the second respondent when it was the first respondent who was in arrears of rent as claimed by the appellants and that the second respondent becomes liable to pay rent of the premises only from the date tenancy of the first respondent is determined. (Para 10)
       The argument that when rent is in arrears, it is qua the premises and the sub-tenant who is occupying the premises would also be liable for default in payment of rent of the premises and thus could be evicted along with the main tenant over looks. (Para 11)

JUDGMENT

D.P. Wadhwa, J.-This is landlord s appeal. There are two appellants. They filed a suit for eviction against the respondents, numbering three, under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short, the Act ). There were four grounds of eviction : (1) non-payment of rent; (2) subletting; (3) damage to the premises; and (4) bona fide need of the appellants themselves. Suit of the appellants was dismissed by the trial Court on all the grounds. Appellants appealed against that order. The appellate Court; however, held that the first respondent, the tenant, defaulted in payment of rent and was liable to eviction on that ground but since the second respondent was a lawful sub-tenant, no decree or order for eviction could be passed against second respondent. Other grounds of eviction were again held against the appellants. Appellants then filed a writ petition in the Bombay High Court which was dismissed by the impugned judgment dated December 22, 1995 by a learned single Judge of the High Court with only modification holding that the tenancy of the first respondent stood determined on April 17, 1982 and not on March 1, 1975 as was held by the lower appellate Court. While the High Court in the writ petition fixed the date determining the tenancy of the first respondent on which date appeal of the appellants was dismissed, the first appellate Court had fixed the date determining the tenancy of the first respondent when notice issued by the appellants determined the tenancy of the first respondent.

2. Suit premises is a shop in the city of Ahmad Nagar within the jurisdiction of the Bombay High Court. Appellants said that they had let out the shop premises to the respondent who unauthorisedly sublet the same to the second and third respondents. It has been held that the third respondent was an employee of the second respondent and this finding has not been challenged before us by the appellants. In the notice dated January 16, 1975 sent by the appellants demanding arrears of rent, it was not mentioned as to when there was subletting by the first respondent to the second respondent. Admittedly both the respondents are brothers. It was stated that the first respondent had inducted the second respondent to the shop premises by taking a substantial amount of "pagri". In the suit, however, it was mentioned that subletting was in the year 1972 and 1973 and the rent was stated to be in arrears from February 1, 1971 till the date of the filing the suit which was September 9, 1975. Respondents denied that there was any subletting. Their plea was in the alternative-one, that both the respondents were brothers and were joint tenants and were working as partners and second, that the first respondent left the premises in late 50 s and all through thereafter rent had been paid by the second respondent even though the rent receipts were issued in the name of the first respondent. It was the second respondent who signed on the counterfoils of the rent receipts. First plea that the respondents were joint tenants was negatived. It was held that the second respondent became sub-tenant in 50 s and was, thus, protected from being evicted even though the ground of eviction of the first respondent, the tenant-in-chief being in arrears of rent, succeeded. First appellate Court came quite heavily on the appellants holding that they raised a false plea of subletting from the year 1972 and 1973. A presumption was drawn against the appellants, and in our view rightly, as they failed to produce the counterfoils of the rent receipts.

3. Only two grounds have been pressed before us in the present appeals: (1) that since the first respondent was in arrears of rent and there was default in not complying with the provisions of Section 12 of the Act in order to save himself from eviction, not only the first respondent but the second respondent, assuming he is sub-tenant, would also be liable to eviction; a

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1999 Supreme(SC) 1358

Cases Referred (3)