Judgment

S. MOHAN, J.- The short facts leading to this civil appeal are as under.

2. The suit property was originally owned by Trimbak Hari Awate. He executed a simple mortgage on April 28, 1947 to an extent of 11,000 square feet which represented the entire property for a sum of Rs 20,000 in favour of Dinkar S. Vaidya. On or about July 7, 1948, Awate executed a lease deed in favour of Shankar Godaji Gore. The purpose mentioned in the lease deed was residence and shops. Under the lease deed, the lessee was authorised to sub-lease. The period of lease was 25 years. The annual rent was Rs 1500 payable monthly at the rate of Rs 125. There was no prohibition from the assignment in the said lease.

3. On February 17, 1949, Shankar Godaji Gore, the lessee executed a registered sub-lease in respect of entire land in favour of two persons Sulochanabai Thakur and Krishnabai Sarde, original defendants 2 and 3. The sub-lease was for a period of 99 years and 9 months. The monthly rent was fixed at Rs 50. Defendants 2 and 3, the sub-lessees constructed fourteen shops on a portion of the land, sublet to them. These shops were let out for rent to several persons. They in their turn assigned their interest to different persons. On November 7, 1949, an area of 4000 sq. ft. was sublet by defendants 2 and 3 in favour of Sardar Biwalkar on a rent of Rs 135 p.m. for a period of 67 years. On the same day of the lease, defendants 2 and 3 sold seven out of fourteen shops to Biwalkar. On December 6, 1952, defendants 2 and 3 assigned all their rights, title and interest in respect of the suit land in favour of Bayajabai Ganpat Gore, Sundarabai Babasaheb Gore and Yashodabai Balasaheb Gore, defendants 6, 7 and 8 respectively.

4. In 1952, Dinkar Balkrishna Vaidya, the mortgagee filed a suit being Special Civil Suit No. 89 of 1952 for enforcement of mortgage. In that suit, mortgagor Awate and defendants 1 to 4 were made party-defendants. That suit was decreed. In execution of the final decree in the auction, the mortgagee Dinkar Balkrishna Vaidya himself came to purchase the suit land measuring about 1000 sq. ft. The sale was confirmed on December 19, 1957. Symbolical possession was granted on March 2, 1960. It appears that during the pendency of the suit, mortgagee was declared a lunatic. Therefore, Nazir of the court was appointed as guardian and the property was taken possession of by the Nazir under the provisions of Court of Wards Act.

5. The Nazir filed Regular Civil Suit No. 1142 of 1965 in the Small Cause Court, Poona for recovery of possession and arrears of rent since his demand for rent from Shankar Godaji Gore was not complied with. Shankar Godaji Gore assigned his right, title and interest in the shop premises to defendants 19 and 20. Likewise, on August 27, 1963 defendant 5 assigned his right, title and interest in the shop in favour of defendant 21. Therefore, another ground of sub-letting was also added. That suit was decreed on November 27, 1968. Aggrieved by the said judgment, Civil Appeal Nos. 279, 354 and 265 of 1969 were preferred against the same. Civil Appeal Nos. 279 and 354 of 1969 came to be allowed while Civil Appeal No. 265 of 1969 was dismissed for non-prosecution. Thereupon, the first respondent moved the High Court under Article 227 of the Constitution of India. That was numbered as Special Civil Application No. 242 of 1973. By the impugned order dated July 15, 1980, that came to be allowed. Hence, the present civil appeal.

6. The learned counsel for the appellants Shri U.R. Lalit after taking us through the relevant provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the Act) submits that the lease deed in favour of Shankar Godaji Gore specifically enabled him to sublet. Under the lease deed dated July 7, 1948, Awate the original owner permitted the lessee Shankar Godaji Gore to construct therein and give the said building or any portion thereof to any person on lease rent an