A lawful sub-tenant's right to possession and protection under the Rent Act is not affected by the main tenant's breach of Section 12 (3) of the Act, which deals with non-payment of rent.

JUDGMENT - 1. The petitioner is the original plaintiff. On 1-9-1964 he filed a suit for possession of a shop situate in Ganji Market, Saraf Bazzar, Ward No. 6 of Ahmednagar City, bearing Municipal Committee No. 2801, City Survey No. 3093, against two defendants under the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947, (hereinafter referred to as the Rent Act;) on the sole ground of defendant No. 1 tenant having failed to pay arrears of rent for more than six months in spite of service of notice under Section 12 (2) of the Rent Act. It was alleged that defendant No. 2 was running the said shop as the servant of the defendant No. 1 Defendant No. 1 did not contest and the proceedings were se ex parte against him. Defendant No. 2 contested the suit, pleading that he was a lawful sub-tenant and had paid rent to defendant No.

1 and cannot be evicted for breach of Section 12 (3) of the Rent Act by defendant No. 1.

2. The trial Court accepted the case of the plaintiff that defendant No. 2 was the servant of defendant No. 1 and passed a decree for eviction against both for non -payment of rent by defendant No. 1 and also a decree for rent against defendant No. 1. On appeal by defendant No. 2, decree for eviction against him was set aside by the District Judge holding that, he was a lawful sub - tenant and his possession was protected by the Rent Act and he cannot be evicted for failure of the defendant No. 1 to comply with Section 12 (3) of the Rent Act. the plaintiff challenges this decree in this Spl. C. A. under Article 227 of the Constitution of India.

3. Mr. Pendse for the petitioner contends that finding of fact as to the defendant No. 2 being the sub - tenant is vitiated by several errors. According to him, no rent agreement or rent receipts have been produced, nor attempt to lead evidence to prove direct lease agreement is even made, nor defendant No. 1 is examined to prove the grant of sub - lease by him to defendant No. 2. He contends that, reliance by the District Judge on an irregularity maintained rough note - book and un -proved documents of the Office of the Shop and Establishment Inspector, amounts to relying on hearsay evidence. I do not find any substance in this contention. The learned District Judge has relied on the evidence and defendant No. 2, his two witnesses and, also on the Registration Certificate under the Shops and Establishments Act issued in the years 1957 and 1959, showing that defendant No. 2 was running his own shop in the premises in dispute. This finding of fact does not cease to be so far the reasons suggested by Mr. Pendse. There is also no substance in the contention that the evidence of the plaintiff is not considered or that the judgment of the District Judge bristles with several misquoted extracts of evidence. None was however cited before me.

4. Mr. Pendse, however, contends that assuming that the defendant No. 2 is lawful sub - tenant, he is still liable to be evicted along with the main tenant, once the main tenant, defendant No. 1, is so found liable under Section 12 (3) of the Rent Act due to his failure to pay the arrears of rent. Now, it could have been so under the ordinary law of landlord and tenant under which sub - tenant cannot possess or claim any better or independent rights apart from, the one that can be claimed through the main tenant. He has to sink or swim with the main tenant. But not so under the Rent Act. The defendant No. 2 is proved to have been a lawful sub - tenant. Sub - lease in his favour is proved to have been created before 1957. Definition of the word tenant, in Section 5 (11) (a) includes sub - tenant inducted lawfully before the amendment of Section 15 (2) of the Rent Act by Ordinance No. III of 1959. It will not make any difference as to whether sub - tenant is in possession of the whole or only a part of the premises leased to the tenant. Implication of this inclusive definition is that protection afforded to any tenant against his landlord un

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