Back
IN THE HIGH COURT OF BOMBAY
R.A. Jahagirdar, J.
Lakhichand Punamchand Marwadi other ..... Petitioners.
Versus
Thakurnath Dalasaheb Tukaram Barse .... Respondent.
Writ petition No. 985 of 1980, decided on 26-6-1990.
Advocates appeared :
M.A. Rane, for the petitioners.
M.D. Angal, for the respondents.
Sections 13(1) (e), 14, 15 and 25 (as amended. by Act 1986)- Benefit of Amending Act-Sub-tenancies created before 1-2-1973-Eviction of Subtenants-As per amendment all sub-tenancies created before 1-2-1973 are legalised- Word proceeding in Section 2S includes writ petition-Thus benefit of Amendiog Act is available to tenants even if eviction decree is in dispute in writ petition.
Relying on judgment (1990) 1 Born CR 529 Division Bench held that the word proceeding used in Section 25 of the Amending Act must necessarily include the proceeding by way of a petition under Article 227 of the Constitution of India. In paragraph 14 of its judgment, the Division Bench held that if the word "proceeding" mentioned in Section 25 of the Amending Act is construed with the object of the legislation, a liberal construction will have to be put on the said word and so construed, it will include in its import even the proceeding instituted under Article 227 of the Constitution of India. Since in the case before the Division Bench the premises had been sub let by the petitioner prior to 1st of February, 1973, it was held that subletting was not illegal. The writ petition was, therefore, allowed and the decree for eviction passed by the authorities below was set aside. In the case before the Division Bench the suit had been filed in the year 1974. The cause of action, therefore, must have arisen in or prior to the year 1974.
The facts in the present case, however, show that the suit for eviction was filed long before the Legislature bestowed legality on illegal sub-tenancies. The suit was filed in the year 1971 The cause of action had already accrued in favour of the plaintiff as against the defendants and the amendment could not have the effect of divesting of a right which had already vested in the landlord.
The language of the Amending Act in its various sections leaves one in no doubt that notwithstanding the fact that a cause of action has arisen on any day, all sub-tenancies created despite the prohibition before 1st of February, 1973 stood legalised. No other meaning, according to me, is possible. Further, in view of the language contained in Section 25 of the Amending Act, it is clear that irrespective of the date Oil which the suit was filed, if the suit or proceeding as mentioned in section 25 of the Amending Act is pending then the illegality attaching to a sub-tenancy created before 1st February, 19)3 stands removed by virtue of the provisions contained in Maharashtra Act No. 18 of 1987.
2. The respondent as a landlord filed a suit, being Regular Civil Suit No. 221 of 1971 against two brothers hereinafter referred to as "defendants" Nos. 1 and 2. The suit was filed on two grounds, namely, that defendant No. 1, who was the original tenant, had illegally sublet the suit premises consisting of four rooms to defendant No. 2 and further that defendant No. 1 was guilty of arrears of rent, deserving a decree of eviction under section 12(3) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, hereinafter referred to as "the Bombay Rent Act", as it then stood.
3. The trial Court rejected the claim of the respondent, hereinafter referred to as "the plaintiff" for possession on the ground of arrears of rent. This was done not merely on merits but also by nothing that the case for default was not pressed in the trial Court on behalf of the plaintiff. The trial Court, however, held that defendant No. 1, the original tenant, had illegally sublet the suit premises to defendant No. 2. Hence the suit was decreed on the ground available to a landlord under section 13(1)(e) of the Bombay Rent Act.
4. This decree for possession was challenged by the defendants in an appeal, being Cavil Appeal No. 62 of 1977, which was heard and dismissed by the learned Appellate Judge, namely the Assistant judge of Nasik, by his judgement and order dated 31st of January 1980 while doing so the learned Appellate judge confirmed the finding of sufbletting and negative the argument advanced on behalf of the plaintiff regarding the arrears of rent. It is this decree confirming the degree off the trial Court which is the subject matter of challenge in this petition under Article 227 of the Constitutions of India. During the pendency of this petition, the ordinal defendants, namely the petitioners in this petition, expired and their legal representative have been brought on record for the sake of convenience. However reference is being made in this judgement to the parties as the plaintiff and the defendants.
5. As already mentioned above, the question which arises in this petition is already concluded by the judgment of the Division Bench of this Court referred to above. however, I am taking the liberty of mentioning in this judgment as to how and what question arises because with great respect, these details have not been mentioned in the judgment of the Division Bench. It may be that the details have not been mentioned in the judgment of the Division Bench because the Division Bench was dealing with the reference made to it by Tated, J., and in all probability all the relevant facts and details were in the judgment of Tated,J.
6. The provisions of the Bombay Rent Act, as they stood from time to time, ought to be necessarily noted. Pilor to May 1959, subletting was prohibited and under section 13(1)(e) of the Bombay Rent Act, subletting was available as a ground to a landlord for claiming eviction of the tenant from the tenanted premises. However, by an ordinance, which was subsequently replaced by Bombay Act No. 49 of 1959 , all sub-tenancies, which were subsisting on 14th of May, 1959 were made legal. The effect was that the landlord could not claim possession of the tenanted premises form the tenant on the ground that before 14th of May, 1959 the suit premises had been sublet. The language of section 13(1)(e), as it stood prior to the amendment of 1959 was as follows:---
"(e) that the tenant has, since
SupremeToday
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
