ORDER :- These two petitions arise out of the judgment of the Bench of the Court of Small Causes in Appeal No. 343 of 1973 and Appeal No. 316 of 1973. These two appeals in their turn arose out of the R.A.E Suit No. 510/4293 of 1963 filed by the Trustees of the Lotus Trust, Bombay. The suit was filed by the Trust for eviction of the various defendants. The suit was decreed by the trial Court against all the relevant defendants. Appeal No. 316 of 1973 was, therefore, filed by the original defendant No. 2 and Appeal No. 343 of 1973 is filed by the original defendant No. 3. The appeal of original defendant No. 2 was dismissed by the Bench of the Small Causes Court (hereinafter, the 'Bench'); whereas Appeal No. 343 of 1973 was allowed by the Bench. Hence Spl. C. A. No. 537 of 1975 has been filed by the Trust against the decree in Appeal No. 343 of 1973; whereas Civil Revision Application No. 62 of 1975 has been filed by the original defendant No. 2 against the decree in Appeal No. 316 of 1963.

2. The facts out of which the present proceedings arose may be briefly stated as under :-

(i) Lotus Trust is a Public Charitable Trust under the relevant statute. The Trust is the owner of Lotus House at Marine Lines. For the sake of convenience the premises in dispute are hereinafter referred to as the 'suit premises', which consist of the portion of ground floor, the entire first floor and two garages.

(ii) By a registered lease-deed dated 30th July, 1958 the Lotus Trust (hereinafter, the 'plaintiffs') leased the premises to M/s. Cathay Theatres Pvt. Ltd. (hereinafter, 'defendant No. 1'). The period for the lease was ten years. The lease was to take effect from 1st July, 1958. The rent agreed for month was Rs. 2,550/-. Clause (m) of the said lease, deed is somewhat significant. By the said clause (m) it is provided that the tenant-defendant shall not sublet, relet or give on leave and licence the suit premises without the previous consent of the landlords.

(iii) On 18th June, 1963 the plaintiffs served upon defendant No. 1 a notice informing that defendant No. 1 had committed breach of the conditions of the tenancy inter alia contained in the said Clause (m) of the lease-deed, in that, they had unlawfully sublet a portion of the suit premises to M/s Hirachand and Co. (hereinafter, defendant No. 2). By the said notice defendant No. 1 was, therefore, called upon to remedy the said breach and it was stated in the said notice that in default the plaintiffs would exercise their option of forfeiting the lease and or re-entering the suit premises.

(iv) There was no reply whatsoever to the said notice and, hence a reminder dated 10-8-1963 was sent by the plaintiffs. In the said reminder it was specifically mentioned that if the breach was not remedied before 17th August, 1963 the plaintiffs would re-enter the premises on 17th August, 1963. This reminder also drew blank. It is contended that on 17th August, 1963 an attempt was made on behalf of the plaintiffs to re-enter the suit premises but they were obstructed. Hence, on 21-8-1963, a further notice was sent by the plaintiffs to defendant No. 1 and on 11-9-1963 the present suit was filed for eviction of defendant No. 1 on the ground of violation of the said Clause (m) of the lease-deed, read with Section 13 (1) (e) and Section 15 of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter, the 'Rent Act').

3. Initially defendant No. 1 M/s. Cathay Theatres Pvt. Ltd. were the sole defendants in the said suit. They filed their written statement on 11-3-1964. Their written statement is delightfully laconic. They did not deny subletting as such. At least there is no specific or unequivocal denial of subletting as such. What they have stated by way of denial is as follows:-

"These defendants deny that in breach of the covenant the defendants have either sublet, relet and/or give on leave and licence the demised premises without obtaining any written consent of the plaintiffs as alleged

Click Here to Read the rest of this document