important point
Something more than merely holding a large number of shares is required to prove that one is actually controlling and managing the business.

judgment

A.K. MATHUR, J. —

1.This Appeal is directed against the order passed by the High Court of Judicature at Bombay in Writ Petition No. 7701 of 2004 on 29th November, 2004 whereby the learned Single Judge has upheld the order of the appellate court under the provisions of Section 13(1)(e) of the Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947.

2.Brief facts which are necessary for the disposal of this appeal are as under:

The suit was filed by the plaintiff Smt. Anoop Shahani (respondent herein) against the defendant No. 1 Mrs. Santosh Ajit Sachdeva (appellant herein) wife of Mr. Ajit Sachdeva since died who was the original tenant of the suit premises for eviction on the ground of subletting of the premises. The suit premises, i.e., 61, Anjali, 6th floor, Behind Radio Club, Colaba Bombay 5 was let out by the plaintiff on the monthly rent of Rs. 1300/-. It was contended that the defendant No. 2 was a proprietory concern of the defendant No. 1 known as M/s Pearl Advertisings. During the pendency of the suit the plaint was amended and the defendants Nos 4& 5 joined as defendants. The joining of defendants Nos. 4 & 5 were unlawful in respect of the suit premises. It is the case of defendant No. 1 who unlawfully sublet the suit premises to defendants Nos. 3, 4 & 5. The defendant Nos. 3, 4 & 5 claimed rights through defendant no. 1. According to plaintiff, defendant No. 1 has unlawfully sublet the suit premises to defendant No. 3 in the month of September, 1998 and therefore, the defendant No. 1 has lost protection of the Bombay Rent Act and therefore, the defendant No. 1 is liable to be evicted from the suit premises. The plaintiff by giving a notice dated 19.8.1989 through her advocate terminated the tenancy of the defendant no. 1 in respect of suit premises and called upon the defendant No. 1 to quit, vacate and deliver the quiet and peaceful possession of the suit premises. But no reply was given. Hence, the suit was filed against the defendants for eviction. On the basis of pleadings of the parties, the learned trial judge framed three issues in the suit on 7.11.1997 :

1.Does plaintiff prove that defendant nos. 1 & 2 illegally sublet the suit premises or unlawfully given on licence to the Defendant No. 3?

2.Is plaintiff entitled to decree of possession of the suit premises?

3.What order and decree?

3.Both the parties examined themselves with necessary witness and produced the documents. The trial court after considering the matter held that the plaintiff was not entitled to the decree for eviction. It is relevant to mention that Mr. Sachdeva expired and defendant No. 1 Smt. Santosh Ajit Sachdeva wife of Mr. Sachdeva became the tenant of plaintiff in respect of suit premises. As already mentioned above that M/s Pearl Advertisings is a proprietory concern of Shri Ajit Sachdeva. The defendant No. 3 M/s Impression Advertising Pvt. Ltd is the unlawful occupant in respect of suit premises. The case of the defendant was that her husband Ajit Sachdeva and she herself registered the Private Limited Company and were the Directors of the said company. During the life time of late Shri Sachdeva he also carried out the business in the name of M/s Impression Advertising and Marketing. Mr. Sachdeva died on 26th September, 1984 and thereafter defendant No. 1 was accepted as tenant by the plaintiff and the rent was being paid by the defendant No. 2 to the extent of Rs. 300/- and by M/s Impression Advertising and Marketing at Rs. 1000/- per month.

4.It was also contended that defendant No. 3 M/s Impression Advertising Co. did not commence the business owing to the illness of the Director late Shri Sachdeva. However in July, 1988 defendant No. 1 decided that the said company should conduct the business which was being carried out in the name of M/s Impression Advertising and Marketing. After the commencement of the business the defendant was remitting the rent to the plaintiff on behalf of the defendant no.1. Therefore, the defendan