2005 Supreme(Bom) 755

IN THE HIGH COURT OF BOMBAY
Ramchandra Madhav Darunkar
Versus
Abdul Sattar Ismail
Decided on : July 20, 2005

Headnote:Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 - Section 5(11)(c) Substituted by Act 22 of 1978 Decree for eviction for sub-letting and unauthorised construction Person who claims as successor of tenant should be person who is carrying on education, business, trade or storage in the premises Original tenant not occupying the suit premises at the time of his death but he was carrying on business somewhere else Held, his widow as well as other heirs are not entitled to continue in possession of the premises.

       Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 - Section 5(11)(c)(ii) Tenancy Termination of Demise of tenant Widow’s claim as successor Claim that premises used for partnership business and never sub-let by deceased husband Concurrent finding showing tenant had illegal sub-letting under guise of partnership business Construction also unauthorised As regards subletting defendant did not occupy premises at time of his death Claim of widow not proper. Considering the finding which has been recorded by both the Courts below, on the point of sub-letting and original defendant not occupying the premises at the time of his death, thus, it has to be held that the widow of the defendant cannot succeed as tenant. As Court confirmed the decree passed by the trial Court, accepting the finding recorded by both the Courts below on the point of sub-letting and unauthorized construction, above finding has been recorded by me on the basis of submission advanced by the learned counsel though nothing will turn on this aspect in the instant case as the decree of eviction is passed and that the principal tenant was not in occupation of the premises in question the defendant Nos. 2 to 5 thus are not entitled to continue to enjoy the possession of the premises. Therefore, d ecrees passed by both the Courts below stand confirmed. Both the petitions are dismissed. Rule discharged. No order as to costs.

       Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 - Section 13(1)(e) Eviction on grounds of illegal subletting Tenant’s evidence to establish existence of a partnership not produced Concurrent finding that partnership was fictitious Order of eviction need not be disturbed. It is to be noted that the burden was on the defendant to establish that there was genuine partnership and he should have produced evidence to that effect. The partnership has to be formed as required by the Indian Partnership Act and the partnership must be registered partnership. If there was real genuine partnership, the defendant No. 1 or defendant No. 2 to 5 should have brought evidence of the same on record. Whatever evidence that was brought on record by the plaintiff was properly and meticulously appreciated by both the Courts below and they have recorded finding that the so-called partnership was fictitious partnership and thus, they have not accepted that the defendant No. 1 was partner in the firm. This finding recorded by both the Courts below are required to be accepted. Therefore, the said findings are accepted. Both the Courts below have not committed any error whatsoever in recording the finding recorded on the point of subletting. It is worthwhile to note that the lower appellate Court while considering the issue of sub-letting has recorded the finding.

       Civil Procedure Code, 1908 - Order XLI, Rule 33 Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947, Section 13 Unauthorised construction To be pulled down Tenant erected super structure No agreement for allowing any structure on open space Illegal construction by tenant Decree by Appellate Court for demolition of structure and possession Order justified. There is nothing on record to show that the plaintiff has allowed the defendant to erect the super structure. Both the Courts below have recorded the finding that the defendant No. 1 has erected the superstructure without permission of the plaintiff and allowed the defendants 2 to 5 occupying premises. Therefore, both the acts of defendant No. 1 thus, are illegal and sufficient to pass decree of eviction on both counts i.e., unlawful sub-letting and erecting structure without permission consent of the landlord. Both the Courts below have concurrently recorded the finding that the defendants have failed to establish that they have obtained permission from the plaintiff i.e., for construction and sub-letting. Therefore, once this position is accepted, then, the judgment and decree passed by both the Courts below are to be sustained and need to be confirmed. Looking to the findings that were recorded by the Courts below then, direction issued by the Appellate Court can be sustained. The appeal which was filed was heard by the Appellate Court which was regular appellate Court and the procedure, power and jurisdiction of the Appellate Court has been referred in Order XLI of the Code. The power to pass such a decree by the Appellate Court can be traced out from Rule 33 of Order XLI. When the trial Court and the Appellate Court recorded the positive findings on the above referred two points then, issuing of such direction of the pulling down the structure cannot be faulted. The Appellate Court has jurisdiction to entertain the contention and to pass an order by giving further direction. Therefore, the contention of Shri Dhorde has no substance.

       CONSTITUTION OF INDIA, 1950 - Article 227 Supervisory jurisdiction of High Court Exercise of Scope. The jurisdiction conferred on High Court by Article 227 of the Constitution which gives a right of superintendence over all Courts and Tribunals throughout the territory in relation to which this Court exercised the jurisdiction but not corresponding right as conferred upon the litigant to invoke the jurisdiction under this Article as a matter of right. The power conferred by virtue of Article 227 cast a duty upon High Court to keep inferior Courts and Tribunals within the limits of their authority and jurisdiction and to see that they do not cross the limits, ensure performance of duties by such Courts and Tribunals in accordance with law, conferring the power within the ambit of the enactment creating such Court and Tribunal. Only wrong decision may not be ground for exercise of jurisdiction under this Article, unless the wrong is referable to grave dereliction of duty and flagrant abuse of power by the subordinate Court and the Tribunal resulting in grave injustice to the party. The question of illegal and unlawful creation of sub-tenancy and erection of construction unauthorisedly are essentially the findings of facts and if both the Courts below on the basis of material produced on record by the respective parties, records the findings, then unless that finding is perverse or as a result of an error apparent on the face of the record, then only High Court will have to interfere in the order. Otherwise High Court has to confirm the order of eviction passed by the trial Court which was confirmed by the Appellate Court. Presuming and accepting the finding of the appellate Court that open plot was allotted; but there is nothing on record to show that the plaintiff has allowed the defendant to erect the superstructure. Both the Courts below have recorded the finding that the defendant No. 1 has erected the superstructure without permission of the plaintiff and allowed the defendants 2 to 5 occupying premises. Therefore, both the acts of defendant No. 1 thus, are illegal and sufficient to pass decree of eviction on both counts i.e. unlawful subletting and erecting structure without permission consent of the landlord. Both the Courts below have concurrently recorded the finding that the defendants have failed to establish that they have obtained permission from the plaintiff i.e. for construction and sub-letting. Therefore, once this position is accepted, then, the judgment and decree passed by both the Courts below are to be sustained and need to be confirmed.

       CONSTITUTION OF INDIA, 1950 - Article 227 Maintainability of suit Issue of maintainability not raised before lower Courts Cannot be raised at the stage of writ petition. If the defendants were serious about the question of maintainability of suit, they should have raised such point at the threshold and should not have waited till the final conclusion of the litigation. Before both the Courts below, no issue about maintainability of the suit was framed, instead the parties went to the trial on the issues which were framed, but the defendant did not even made an application to the trial Court to frame the additional issue about maintainability of the suit. This was necessary for the defendants to raise this contention at the threshold and sought finding on it. If such plea would have been taken at the initial stage the plaintiff would have sought permission of the Court to withdraw the suit with permission to file fresh suit and/or would have amended the plaint to cure out the deficiencies pointed out but not doing so, the defendants are now estopped from raising the contention about maintainability of the suit at the stage of the writ petition.