The suit can proceed against a sub-tenant even if the suit against the original tenant is dismissed, as per the provisions of Order IX Rule 5 and 11 of the CPC.

JUDGMENT :

1. The present revision application under Section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Rent Act) emanates from the judgment and order dated 27.04.2015 passed by the appellate bench of Small Causes Court, Ahmedabad in Regular Civil Appeal No.104 of 2010, whereby the appellate court has allowed the appeal filed by the opponent-original defendant No.2 by setting aside the judgment and decree dated 29.09.2010 passed by the trial Court in HRP Suit No.727 of 2005.

The parties shall be referred as per the original status in the suit proceedings.

2. The plaintiffs instituted HRP Suit No.725 of 2005, being landlords of the suit premises i.e. Shop No.2, admeasuring about 146.81 sq.yard, situated at the Ground Floor of Kandhari Apartment, in Survey Nos.54, 57 and 58 paiki, situated at Saijpur Bogha, District-sub-district Ahmedabad.

2.1 It is the case of the plaintiffs that the defendant No.1, had sublet the suit premises to the defendant No.2 and accordingly the suit was instituted seeking recovery of possession of the suit premises as well as for recovery of mesne profit and for permanent injunction for handing over the possession of the suit premises.

2.2 From the judgement of the trial Court, it appears that since the plaintiffs did not take care to effect the summons upon the defendant No.1, the trial Court dismissed the suit of the plaintiffs against the defendant No.1 on 08.09.2005. The defendant No.2 appeared before the trial Court below and contested the suit. After examining the evidence both - documentary as well as oral, the trial Court framed issues at Exh.50 and allowed the suit filed by the plaintiffs and directed the defendant No.2 to handover the vacant and peaceful possession of the suit premises.

2.3 Being aggrieved by the aforesaid judgment and decree passed by the trial Court, the defendant No.2 filed Regular Civil Appeal No.104 of 2010, which came to be allowed and the judgement and decree passed by the trial Court was set aside, which has given rise filing of the present revision application.

3. Learned advocate Mr. Dave appearing for the appellants-original plaintiffs has submitted that both the courts below have held in favour of the plaintiffs however, the appellate Court has allowed the appeal only on the point that the suit was liable to be dismissed since it was dismissed qua the original tenant-defendant No.1. He has submitted that the judgment and decree passed by the appellate court is required to set aside since the evidence on record reveals that the defendant No.1 had sublet the property to the defendant No.2 against the agreement executed between the plaintiffs and the defendant No.1. He has referred to such rent agreement dated 01.11.1988 (Exh.60).

3.1 Learned advocate Mr. Dave has submitted that the evidence clearly reflects that the original tenant i.e. defendant No.1 had sublet the suit shop and hence, as per the provision of Section 16 of the Rents Act, the defendant No.1 had no right to sublet / transfer the possession of the suit shop without prior consent of the plaintiffs or landlord. He has submitted that the appeal since is allowed only on the sole point with regard to dismissal of the suit apropos the defendant No.1, the order requires to be set aside since the suit can always be contested and proceeded against the defendant No.2, who was the tenant. It is submitted that the plaintiff No.1, who is widow and aged about 72 years is waiting for the suit premises to be utilized by her.

3.2 Learned advocate Mr. Dave has placed reliance on the judgement of the Apex Court in the case of Joy Nath Goala & Ors. vs. Bhabani Prasad Choudhary & Ors., (1997) 10 S.C.C. 276, while distinguishing the judgement in the case of Raghuram Rao Vs. ERIC P. Mathias, (2002) 2 S.C.C. 624, on which the reliance is placed by the appellate court. He has submitted that the said decision will not apply to the facts of the present case since before the Apex Court, the issue with rega