Amendments to the Bombay Rent Act legalized certain sub-tenancies, affecting eviction rights and retrospective applicability.

1. In my opinion, the point which arises for decision in this petition under Art.227 of the Constitution of India has already been decided by the Division Bench of this Court, consisting of Dharmadhikari and Chaudhari, JJ. Dharmadhikari, J. delivered the concerned judgment in Writ Petition No. 1464 of 1981 (Prabhulal Chhogalal Mandore v. Bastiram Himatram Bhutada) on 11th of September, 1989. The facts leading to this petition, however, have got to be stated.

2. The respondent as a landlord filed a suit, being Regular Civil Suit No. 221 of 1971, against two brothers, hereinafter referred to as "defendants Nos. 1 and 2". The suit was filed on two grounds, namely, that defendant No. 1, who was the original tenant, had illegally sublet the suit premises consisting of four rooms to defendant No. 2 and further that defendant No. 1 was guilty of arrears of rent, deserving a decree of eviction under S.12(3) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 , hereinafter referred to as "the Bombay Rent Act", as it then stood.

3. The trial Court rejected the claim of the respondent, hereinafter referred to as "the plaintiff", for possession on the ground of arrears of rent. This was done not merely on merits but also by noting that the case for default was not pressed in the trial Court on behalf of the plaintiff. The trial Court, however, held that defendant No. 1, the original tenant, had illegally sublet the suit premises to defendant No. 2. Hence the suit was decreed on the ground available to a landlord under S.13(1)(e) of the Bombay Rent Act.

4. This decree for possession was challenged by the defendants in an appeal, being Civil Appeal No. 62 of 1977, which was heard and dismissed by the learned appellate Judge, namely the Assistant Judge of Nasik, by his judgment and order dated 31st of January, 1980. While doing so, the learned appellate Judge confirmed the finding of subletting and negatived the argument advanced on behalf of the plaintiff regarding the arrears of rent. It is this decree confirming the decree of the trial Court which is the subject - matter of challenge in this petition under Art.227 of the Constitution of India. During the pendency of this petition, the original defendants, namely the petitioners in this petition, expired and their legal representatives have been brought on record. For the sake of convenience, however, reference is being made in this judgment to the parties as the plaintiff and the defendants.

5. As already mentioned above, the question which arises in this petition is already concluded by the judgment of the Division Bench of this Court referred to above. However, I am taking the liberty of mentioning in this judgment as to how and what question arises because, with great respect, those details have not been mentioned in the judgment of the Division Bench. It may be that the details have not been mentioned in the judgment of the Division Bench because the Division Bench was dealing with the reference made to it by Tated, J. and in all probability all the relevant facts and details were in the judgment of Tated, J.

6. The provisions of the Bombay Rent Act, as they stood from time to time, ought to be necessarily noted. Prior to May, 1959, subletting was prohibited and under S.13(1)(e) of the Bombay Rent Act, subletting was available as a ground to a landlord for claiming eviction of the tenant from the tenanted premises. However, by an Ordinance