Gangaprasad M.Daulriya v. Tarkeshwar Deoraoji Devatighare

Heard the learned counsel for the petitioner. By this petition, the petitioner impugns judgment passed by the appellate court on 18th October, 2010 granting a decree of possession in favour of the respondent by reversing the judgment passed by the Trial Court in Reg.Civil Suit No.273/2004 and directing the petitioner to handover the possession of the suit premises within a period of two months from the passing of the judgment.

3. The respondent is the original plaintiff. He had filed a suit against the petitioner under Section 16(1)(g)(1) (e) and (1)(n) of the Maharashtra Rent Act, 1999. The petitioner filed the written statement and denied the claim 2 of the plaintiff. The petitioner denied that the plaintiff required the suit premises for the bona fide occupation. The plaintiff amended the plaint during the pendency of the suit and pleaded that the defendant had unlawfully sub-let the suit premises and/or given it on license to Shri Chandraprakash Dulariya and Shri Rajendra Dulariya. The plaintiff also sought possession of the suit property on the ground of sub-letting. It is necessary to note that the defendant did not deny the ground of sub-letting as pleaded by the landlord by amending the written statement after the plaint was amended.

4. The Trial Court on an appreciation of the evidence on record held that the landlord had failed to prove his case under Section 16 of the Maharashtra Rent Control Act, 1999 and was not entitled to grant of decree for possession. The first appellate court on an reappreciation of the evidence on record confirmed the order passed by the Trial Court in favour of the tenant on the ground of bona fide need but held that the petitioner/defendant had unlawfully sub-let the suit premises to Shri Chandraprakash and Rajendra Dulariya and was entitled to possession of the suit property on that ground.

5. On hearing the learned counsel for the petitioner 3 and on perusal of the impugned judgment, it appears that the first Appellate Court was justified in holding that the petitioner had sub-let the suit premises to Rajendra and Chandraprakash Dulariya. For recording the aforesaid finding, the first Appellate Court considered the fact that the defendant had failed to deny the pleading of the plaintiff in regard to the ground of sub-letting. The first Appellate Court considered the rent-note which was produced on record at Exh.20. The first Appellate Court also considered the certificates issued under the Bombay Shop and Establishment Act in regard to the registration of the shops in the name of M/s Chandraprakash Ramswarup wherein the name of Chandraprakash Dulariya was shown as the owner of the shop. The Appellate Court heavily relied on Exhs. 36 and 37 which show that the premises were sub-let to Chandraprakash and Rajendra Dulariya as they were shown as owners of the shop. The contents of Exh.37 further disclosed that the business was carried on in the suit premises by Rajendra and Chanddraprakash Dulariya. The submission made on behalf of the petitioner that Chandraprakash and Rajendra were the members of his family and they were residing with him as they were his nephews and were the partners of the firm, is liable to be rejected on the short ground that the petitioner/defendant had not specifically pleaded about the partnership firm, if 4 any, and about Chandraprakash and Rajendra being the partners of the firm and being in possession of the suit premises as partners. The first Appellate Court rightly gave due weightage to the fact that the petitioner/defendant had not specifically denied the fact of sub-letting and the fact that Chandraprakash and Rajendra were running the business of General Merchandise and Imitation Jwellery in the suit premises and were in possession of the same. In the facts and circumstances of the case, the first Appellate Court has rightly held that the landlord was entitled to possession under Section 16(1)(e) and (1)(n) of the Maharashtra Rent Control Act. The submission made on behalf of the petitioner that since two identical suits were filed by the respondent against the present petitioner and in one of the suits there was a denial of the plea of sub-letting, it must be held that the petitioner intended to deny the fact of sub- letting in this case also is liable to be rejected as the two suits were independently tried and it is an admitted position that in the present suit there was no amendment of the written statement in regard to the ground of sub-letting. The judgment reported in 1996(2) Bom.C.R.267 (Bhairulal Balmukund Verma ..vs.. Poonamchand Kasturchand Sancheti and anr.) and relied on by the learned counsel for the petitioner cannot be made applicable to the facts of this case. 5

7. In the result, the writ petition fails and hence it is