JUDGMENT :— Special leave granted.

2. Civil Appeal No. 2827 of 1989 (arising Out of SLP No. 14890 of 1988) is by defendants 1, 2 and 5 who are some of the tenants of a residential premises consisting of two bedrooms in the first floor, a garage and a storeroom in the ground floor on the Bhulabhai Desai Road, Bombay having approximately an area of 1,300 sq. ft. Defendants 3 (since dead) and 4 were also tenants, along with the aforesaid defendants in respect of the premises. Civil Appeal No. 2826 of 1989 (arising out of SLP No. 12298 of 1988) is by defendant No. 6 who was added at the instance of the landlord by order dated 21st March, 1975, to the eviction proceeding when he led claim to be a sub-tenant in respect of the garage with effect from 1-4-1967.

3. On 8-4-1967, the plaintiff-landlord issued notice to the tenants terminating the tenancy on the ground of default in the matter of payment of rent and change of user. The tenants did not reply to the notice and on 18-6-1967 the suit for eviction was filed on the two grounds stated in the notice. Subsequently when defendant No. 6 was added to the suit a further ground on the basis of unauthorised subletting was additionally raised. During the pendency of the proceeding for eviction defendant No. 6 filed a suit against defendants 1 to 5 on the basis that by agreement dated 1-4-1967 he had been inducted as sub-tenant in respect of the garage and applied for injunction restraining defendants 1 to 5 from dispossessing him. Since the landlord was not a party to the said suit, it is indeed unnecessary to advert to the chequered career of that litigation and another action which he too instituted.

4. The defendants 1 to 5 filed two written statements one on 16-10-1967, and again on 29-3-1975. On the first occasion they denied that they were defaulters, they also disputed the allegation of change of user. On the second occasion which was an event after defendant No. 6 was added to the case, they pleaded that defendant No. 6 had never been put into possession of any portion of the premises and that he was merely a friend of the son of defendant No. 1 and was carrying on business in a part of the garage in question for a short period and had no right nor was in possession by the time the allegation of sub-letting had been made. Defendant No. 6 alleged that there was no change of user of the premises as the garage and the store-room were being used for storing and workshop purpose only but he did not definitely indicate whether he was a sub-tenant.

5. The City Civil Court which was the original forum of the litigation decreed eviction as also the claim for arrears of rent and future mesne profits. He found that defendants 1 to 5 were not tenants and had failed to pay the arrears in spite of service of valid demand notice and had, therefore, made themselves liable for eviction under S. 12(3)(a) of the Bombay Rent Act. He negatived the plea of change of user but he accepted the stand of the landlord that a part of the premises had been sublet contrary to law. Two appeals had been taken against the original - order one by three of the tenants and the other by defendant No. 6. The Additional Chief Judge who heard the appeals by a common judgment dated 9-6-1987 dismissed both by upholding the two grounds found against the defendants by the trial Judge.

6. Two separate writ. petitions under Art. 227 of the Constitution were filed before the High Court against the common appellate judgment - one by defendants Nos. 1, 2 and 5 and the other by defendant No. 6. No attempt was made to bring the heirs of defendant No. 4 who had died during the pendency of the appeal on record and they were not impleaded in the proceeding before the High Court in the writ petition by the tenant, but in the tenants writ petition, defendant No. 4 in spite of the fact that he was long dead was added as a respondent.

7. The High Court dealt with both the writ petitions together and by a somewhat unusually lengthy judgment dis