The assignment of a business must involve genuine continuity of the same business; otherwise, it constitutes unlawful subletting under the Bombay Rent Act.

JUDGMENT :

(Sandeep V. Marne, J.)

1) Petitioner -landlady has filed this Petition challenging the decree dated 1 April 2003 passed by the District Judge, Pune, allowing Civil Appeal No.790 of 1985 and setting aside the eviction decree dated 28 September 1994 passed by the Additional Small Causes Judge, Pune, in Civil Suit No.1662 of 1981.

2) Commercial premises situated at House No.324, Mahatma Gandhi Road, Camp, Pune are the suit premises. According to Petitioner/Plaintiff, Defendant No.1 was inducted as monthly tenant in respect of the suit premises for the purpose of carrying out laundry business. Plaintiff alleged that Defendant No.1 closed his laundry business in the year 1976-77 and was in the process of subletting the suit premises. Therefore, she served Notice dated 12 January 1977 upon the Defendant No.1 terminating his tenancy. The notice was replied by Defendant No.1 denying the allegations. Plaintiff thereafter received notice dated 2 May 1981 from Defendant Nos.1 and 2 informing her that ownership right in the laundry with the name of M/s. Snow White Cleaners and Dyers was transferred by Defendant No.1 and his son in favour of Defendant No.2 alongwith stock-in-trade, goodwill of the business and tenancy rights. In the above factual background, Plaintiff filed Civil Suit No.1662 of 1981 in the Court of Small Causes seeking eviction of Defendant Nos.1 and 2 from the suit premises on the ground of unlawful subletting. Plaintiff also alleged that Defendant No.1 constructed permanent structure in the suit premises and also converted verandah into room in addition to construction of bathroom without the consent of the Plaintiff. The Suit was resisted by Defendant No.1 by filing written statement contending that Defendant No.1 was running a laundry business in the suit premises till 1981, when he transferred the entire running business of laundry together with goodwill, stock-in-trade therein, furniture fittings and machinery to the defendant No.2 by a registered conveyance in May -1981. Defendant No.1 filed additional written statement to the amended plaint raising a plea that his father first took the suit premises for commencing laundry business in March- 1950, which business was sold by him to the wife of Defendant No.1. That the rent receipt was however maintained in the name of Defendant No.1. After death of first Defendant’ wife, the business was being managed by Defendant No.1 and his son till the same was sold to Defendant No.2 as a running concern. Defendant No.2 filed his own written statement contending that the concern ‘Snow White Cleaners and Dyers’ were previously owned by wife of Defendant No.1, after whose death, the concern was inherited by Defendant No.1 and his son. That the tenancy rights were also inherited by Defendant No.1 and his son as legal heirs. It was contended by Defendant No.2 that the suit premises were not let out for conducting only laundry business and the same were let out for business purposes in general.

3) Parties led evidence in support of their respective claims. After considering the pleadings, documentary and oral evidence, the Trial Court proceeded to decree the Suit by judgment and order dated 28 September 1994 accepting the ground of unlawful subletting. The Trial Court held that the business of Defendant No.1 was not a running concern and that therefore the arrangement of transfer of business between Defendant Nos.1 and 2 amounted to unlawful subletting. The Trial Court also held that since Defendant No.1 was statutory tenant of the suit premises he had no right to assign or transfer in the running business alongwith tenancy rights in the suit premises to Defendant No.2. The Trial Court however did not accept the ground of unauthorised additions and alterations in the suit premises. The Suit was thus decreed on 28 September 1984 on the sole ground of unauthorised subletting.

4) Defendant No.2 preferred Civil Appeal No.790 of 1985 in the District Court, Pune, challenging the evic