The burden of proof for unlawful subletting shifts to the tenant once the landlord establishes exclusive possession by a third party.

JUDGMENT :

1) This Revision Application is filed challenging the judgment and decree dated 26 March 2022 passed by the Appellate Bench of Small Causes Court allowing Appeal No.133 of 2016 and setting aside the judgment and decree dated 25 November 2015 passed by Small Causes Court in R.A.E. & R. Suit No.808/1381 of 2001. The Small Causes Court had dismissed Plaintiffs suit seeking recovery of possession of the suit premises from the Defendants on the ground of unlawful subletting and default in payment of rent. The Appellate Court has decreed R.A.E. & R. Suit No.808/1381 of 2001 on the solitary ground of unlawful subletting and has directed Defendants to handover possession of the suit premises to the Plaintiffs in addition to an order of injunction permanently restraining the Defendants from parting with possession of the suit premises and/or inducting any persons therein under any agreement or arrangement.

2) Facts of the case, as pleaded in the plaint are that Plaintiffs are owners of Building No.195–201, V.P. Road, Mumbai–400 004. Mr. Anant Krishna Sabale was inducted as a tenant in respect of shop situated on ground ?oor on front side of the Building No.195-201, V.P. Road, Mumbai – 400 004 (suit premises). That said Anant Krishna Sabale was carrying on business of hair cutting saloon in the suit premises. After the death of Late Anant Krishna Sabale, his son-Santosh Sabale (Defendant No.1) continued the business of his father and claimed tenancy rights in respect of the suit premises. That Defendant No.1 had sub-let the suit premises for operation of Shri Ganesh Dairy and the said occupant left the suit premises. That thereafter Defendant No.1 illegally sublet the suit premises to Defendant No.3-Kalpesh Thakkar, who started carrying on business in the name and style as 'Woods Fashion' on monthly rent of Rs.20,000/-. Plaintiffs apprehended that Defendant No.1 was about to create further rights in respect of the suit premises and accordingly instituted R.A.E. & R. Suit No.808/1381 of 2001 in the Small Causes Court at Mumbai. Plaintiff included Defendant No.1-tenant Shri Santosh Sabale as well as other legal heirs of late Anant Krishna Sabale as Defendant No.1. Plaintiff also impleaded Shri Kalpesh Thakkar as Defendant No.3 in the suit alleging that he was unlawful sublettee. Plaintiffs claimed that Defendant Nos.1 and 2 were in arrears of rent for the months of April 2000 to May 2001 at the rate of Rs.783/- per month amounting to Rs.10,929/- plus land abolition tax of Rs.1,050/- totaling Rs.11,979/-. Plaintiff accordingly sought eviction of Defendant Nos.1 and 2-tenants on the ground of unlawful subletting and default in payment of rent. Despite service of suit summons, Defendants failed to appear and accordingly the suit was decreed ex-parte directing Defendants to handover possession of the suit premises to the Plaintiffs. Defendant No.1 filed Appeal before the Appellate Bench of the Small Causes Court for setting aside the ex-parte decree which was dismissed. Defendant No.1 filed Writ Petition No.78 of 2011 in this Court, which was allowed, and the ex-parte decree was set aside restoring the suit. Accordingly, Defendant No.1 was allowed to file Written Statement.

3) Defendant No.1 appeared in the suit and filed Written Statement claiming that Defendant No.3 was employed by Defendant No.1 as a temporary salesman-cum-delivery man for a period of seven months from May 2001 to November 2001 and that he left the services of Defendant No.1 on 30 November 2001. Defendant No.1 claims that he was carrying on the business of selling readymade garments in the suit premises under the name and style as ‘Woods Fashion’. That the brand name Woods Fashion was subsequently changed to 'Body Shape NX' and accordingly Defendant No.1 continued carrying business of readymade garments in the suit premises under the name and style as ‘Body Shape NX’. Defendant No.1 prayed for dismissal of the suit. Since Defendant No.2 was described as merely lega