2024:BHC-AS:35522 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 543 OF 2023 Haresh Panchal Alias Harish Vallabhbhai Naroliwala … Applicant Versus Leela Chandrakant Naik ….Respondent ___________________________________________________________ Mr. Rishikesh Soni a/w Ms.Raveena Yaddav for the Applicant. Mr. Vikram N. Walawalkar a/w I. Qureshi for the Respondent.

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CORAM : SANDEEP V. MARNE, J.

DATED : 2 SEPTEMBER 2024.

ORAL JUDGMENT :-

1) Revisionary jurisdiction of this Court under Section 115 of the Code of Civil Procedure, 1908 is invoked for setting up a challenge to the Decree dated 15 December 2008 passed by the learned Single Judge of the Small Causes Court R.A.E. and R. Suit No. 548/1331 of 1993. The Appellate Bench of the Small Causes Court has dismissed Appeal No. 37 of 2009 confirming the Decree of the Small Causes Court.

2) Plaintiff instituted R.A.E. and R. Suit No. 548/1331 of 1993 seeking recovery of possession of the suit premises on the grounds of default in payment of rent, unauthorised subletting, erecting permanent construction and nuisance/annoyance. The suit ___ Page No. 1 of 12 ___

M S DO IA LNN IPAE LIDsMSD D21+i 01Oi I ag 0Ag L 2:tn 5N 1Ni eI 4t 3e 1PA :a .Ed 00:l L 2 9by I 2.y 04 was filed against Defendant No. 1, who is the original Tenant. The Applicant, who claims to be son of Defendant No. 1-Tenant, was impleaded as Defendant No. 2 in the suit with an allegation that the first Defendant-Tenant has unauthorizedly sublet the suit premises in favour of the Applicant/Defendant No.2. When the suit summons was served, Defendant No. 1 failed to appear in the suit nor participated in its decision. The suit was defended by Applicant/Defendant No.2 by filing written statement and by leading evidence. After considering the pleadings, documentary and oral evidence led by Plaintiff and Defendant No. 2, the Small Causes Court proceeded to decree the suit by accepting the grounds of arrears of rent, unauthorised subletting and erection of permanent construction. The ground of nuisance and annoyance, however, came to be rejected. Defendant No. 2 filed Appeal No. 37 of 2009 before the Appellate Bench of the Small Causes Court, which has been dismissed by Decree dated 31 August 2023.

3) I have heard Mr. Soni, the learned counsel appearing for Revision Applicant, who would submit that the demand notice dated 26 January 1993 was faulty as it sought to demand rent in respect of period when Plaintiff was not even a landlord. He would submit that the probate in favour of the Plaintiff came to be issued in August 1988 and that therefore demand of rent by the Plaintiff in respect of period prior to August 1988 was clearly illegal. That since the notice itself was not legal, the suit on the ground of arrears of rent was clearly not maintainable. He would submit that in any case, the second Defendant deposited the entire amount of rent by filing an application on 16 July 2005 i.e. immediately after framing of issues on 18 June 2005. Relying on judgment of this Court in Gulam Hussein Kalumia Vs. Mahomed Umar Azizulla¹, Mr. Soni would

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1958 SCC Online Bom 156 contend that so long as the tenant deposits the arrears of rent before conclusion of trial, the decree under Section 12(3) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bombay Rent Act) cannot be passed. He would further submit that the findings recorded by both the Courts would indicate that the rent has been deposited by Defendant No. 2 till 2020. He would therefore submit that the ground of arrears of rent has erroneously been accepted by the Small Causes Court and its Appellate Bench.

4) So far as the ground of unauthorised subletting is concerned, Mr. Soni would submit that there can be no subletting in the present case since second Defendant is the son of the first Defendant. He would submit that the first Defendant had not migrated to USA and