JUDGMENT

R.G. Ketkar, J. - Heard Mr. V.M. Singh, learned counsel for the applicant and Mr. Y.S. Bhate, learned counsel for respondents No.1 to 9, at length.

2. By this application under section 115 of Code of Civil Procedure, 1908 (for short, ''C.P.C.''), the applicant, hereinafter referred to as ''defendant No.3'', has challenged the judgment and decree dated 26.11.2018 passed by the Appellate Bench of the Small Causes Court at Bombay in (A1) Appeal No.117/2013. By that order, the Appellate Court allowed the appeal preferred by respondents No.1 to 9, hereinafter referred to as the ''plaintiffs'', and set aside the judgment and decree dated 7.9.2013 passed by the learned Judge, Court Room No.17 of the Court of Small Causes at Mumbai in R.A.E. and R. Suit No.1096/1753 of 2003. The Appellate Court decreed the suit and directed respondents No.10 and 11, hereinafter referred to as ''defendants No.1 and 2'' and defendant No.3 to deliver jointly and severally possession of shop No.4 ad-measuring 123 sq. ft. on the ground floor, Panchsheel Building, situate at plot No.264, Sulochana Shetty Marg, Sion (West), Mumbai - 400 022 (for short, ''suit premises'') to the plaintiffs within 90 days from the date of the order. Defendants No.1 and 2 were jointly and severally directed to pay arrears of rent and permitted increases amounting to Rs. 1326/- with simple interest at 15% p.a. to the plaintiffs from the date of filing of the suit till its realization. Separate enquiry was ordered to be held under Order 20, Rule 12 of C.P.C. for future mesne profits/compensation from the date of institution of the suit in respect of the suit premises.

3. The plaintiffs had instituted suit against the defendants inter alia contending that Kashinath Vithal Bhosle, since deceased, was the monthly tenant of the suit premises on the ground floor of the Panchsheel Building. Defendants No.1 and 2 are the sons and heirs and legal representatives of Kashinath Vithal Bhosle. The plaintiffs alleged that defendants No.1 and 2 have unlawfully sublet the suit premises to defendant No.3.

Defendant No.3 is illegally in exclusive possession of the suit premises. Defendant No.3 has no right, title and interest in the suit premises.

4. The plaintiffs further alleged that the defendants No.1 and 2 were irregular in payment of rent and have not paid rent of suit premises from April, 2003 to September, 2003 amounting to Rs. 582/- @ Rs. 97/- per month and further permitted increases from 1.4.2003 to 30.9.2003 @ Rs. 124/- p. m. amounting to Rs. 744/- in all amounting to Rs. 1,326/-.

5. The plaintiffs further alleged that the suit premises are reasonably and bonafide required by the plaintiffs for their own use and occupation. Plaintiff No.7 Miss. Jagruti Indravadan Shah is a qualified computer expert. Plaintiff No.1 Rajesh Sureshchandra Shah is carrying on business in mobiles as well as doing job in photo copying and computer D.T.P. work in a garage in the suit property, which is objected to by Mumbai Municipal Corporation. For developing business it is necessary to have shop in public on road. The plaintiffs desire to set up their business and for that purpose they themselves require the suit premises for their own use and occupation reasonably and bonafide.

6. The suit summons were issued to the defendants. Defendants No.1 and 2 did not remain present. The suit was proceeded ex-parte against defendants No.1 and 2. Defendant No.3 filed written statement dated 27.2.2013 resisting the suit. Defendant No.3 contended that by a registered deed of assignment dated 10.4.2003, the business of the suit premises as a running and going concern together with para-fenilia of said business, stock-in-trade and goodwill were assigned and delivered to defendant No.3. Incidental to the assignment of the business, the tenancy rights in respect of the suit premises were also assigned to defendant No.3 without any monetary consideration. Defendant No.3, thus, is legally in use, occupation and posse