ssm
sm IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1067 OF 1992
Shri Janardan Subajirao Wide,
Age 46 yrs. Occu. Business,
R/o. 24/5, Wakadewadi,
Pune-5. ....Petitioners.
(Orig. Defendant)
Vs.
1. Sou. Rangubai Ramchandra Jagdale,
2. Ramchandra Maruti Jagdale,
(Both Since deceased through
their legal representatives)
2a) Pralhad Ramchandra Jagdale,
(Since deceased through his heirs)
2a-i) Yuvraj @ Munjiya Pralhad Jagdale
Age 26 years.
2a-ii) Smt.Shakuntala Pralhad Jagdale,
Age 55 years, Both R/o. Wakadewadi,
Narveer Tanajiwadi, Shivajinagar,
Pune-5.
b) Machindra Ramchandra Jagdale,
(since deceased through his legal heirs)
b-1) Charudatt Machindra Jagdale,
Age 38 yrs. Occu. Business.
b-2) Rajendra Machindra Jagdale,
(Since deceased through L.Rs.)
2b/ 2-i) Master Abhishek Rajendra Jagdale
(Minor)
b-2-ii) Kum. Nikita Rajendra Jagdale,
Age 8 years, Both minor
represented by their Guardian- (b-1).
b-3) Smt.Kunda Machindra Jagdale,
Age- Adult, Occu. Household.
c) Shivaji Ramchandra Jagdale,
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Age 56 years, Occu. Business.
d) Sadashiv Ramchandra Jagdale,
Age 50 years, Occu. Business,
R/o. 47/2, Wakadewadi,
(Narveer Tanajiwadi), Shivajinagar,
Pune-411 005.
...Respondents.
(Orig.Plaintiffs)
Mr.T.D.Deshmukh for the Petitioner.
None for the Respondents.
CORAM : ANOOP V.MOHTA, J.
DATED : 3rd DECEMBER, 2008.
JUDGMENT:-
The Petitioner is a original Defendant-Tenant,
has challenged the impugned order of Court below
whereby, the landlord/Respondents’ case of subtenancy
under Section 13(1)(b) of the Bombay Rents, Hotel and
Lodging House Rates (Control) Act, 1947 (for short,
“the Bombay Rent Act”) is confirmed and thereby
allowed the landlords case of eviction on that ground
only.
2. The lease premises is situated at C.T.S.No. 1873,
Bhamburda, Pune, consists of 2 blocks (for short, “the
suit premises”). The suit premises were let out for
running a hotel. As averred, accepted by the Court
below that the petitioner’s have transferred the said
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property in favour of one Krishna Shetty without
permission and consent. It is contended specifically
that the Petitioners never parted with the possession
of the property. He is very much there and now he is
doing business exclusively. Though there is material
to show that he had assigned his business in favour of
one Krishna Shetty, a deed of partnership Exhibit 51
and agreement whereby it was accepted that Krishna
Shetty was his partner in the business of hotel. That
was a partnership between the Defendant, his brother
and the third person K.B.Shetty.
3. Under priviso to Section 15(1), of the Bombay Rent
Act, it is permissible for the statutory tenant to
transfer his tenancy right, as a going concern, even
though the agreement prevented such transfer without
previous consent of the landlord. Admittedly, the
person running business goodwill and stock in trade
had been assigned as permissible under the said
provisions. As observed and held in Swastik Rubber
Products Ltd. & Anr. Vs. Vasantrao Mahadeo
Dhatingan, 2005 (1) Bom C.R. 327.
327 by the Division
Bench of this Court, that such assignment of premises
whether contract contains prohibition or without
consent of landlord, is permissible. Therefore, the
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assignment of leasehold premises by the Defendants was
not subletting. This Judgment is clearly cover the
case of the Petitioners also.
4. It is brought to the notice during the course of
argument that said Sub-tenant Krishna Shetty had filed
Special Civil Suit No.623 of 1986 against the
Petitioner/tenant is already dismissed. The reference
of the suit is made in the impugned order.
5.
In the present case, additional factor is that the
Petitioner never parted or left the premises. Being a
partner, he was also involved in the business. The
dominant purpose of this agreement was not to sub-let
the premises. The Apex Court in Mahendra Saree
Emporium (II) Vs. G.V.Srinivasa Murthy 2005 (1)
S.C.C. 481,
481 held that so long as legal possession
remains with the tenant the mere factum of the tenant
having entered into an agreement of partnership for
the purpose of carrying on the business in the tenancy
premises would not amount to subletting, (Parvinder
Parvinder
Singh Vs. Renu Gautam, 2004 (4) SCC 794).
794 In the
present case also, in view of this Judgment I see,
there is no case made out by the landlord, of
subtenancy. The eviction order passed by the Court
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below on this ground is, therefore, wrong. Therefore,
taking all this into account, I am inclined to
interfere with the order passed by the Court below.
The decree of eviction/ possession, is therefore,
quashed and set aside. The suit of the plaintiffs is
dismissed.
6. The Petition is, accordingly allowed in terms of
prayer clause (b). Rule made absolute. No order as
to costs.
( ANOOP V. MOHTA, J.)
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