Case Note & Summary
The petitioner, Gorakhnath B. Bhingardive, was the second defendant in a suit filed by the first respondent, Hashmatullam N. Khan, seeking possession of a room. The suit alleged that the second respondent (the original tenant) had unlawfully inducted the petitioner as a sub-tenant. The petitioner claimed he was inducted in 1958 with the consent of the original owner, and the first respondent purchased the property in 1970-71. The trial court dismissed the suit for possession, finding documentary evidence that the petitioner occupied the premises prior to 1973 and was protected under the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947. The first respondent appealed, and the District Court reversed the decree, granting possession on all three grounds pleaded. The petitioner challenged this in the High Court. The High Court noted that the appellate court had erroneously declined to read the exhibited documentary evidence showing the petitioner's possession before 1973. The court held that under Section 15(2) of the Act, sub-tenants inducted before 1st February 1973 are protected. Since the petitioner's possession was prior to that date, the appellate court's judgment was set aside, and the trial court's decree was restored. The writ petition was allowed.
Headnote
A) Rent Control - Sub-tenancy Protection - Section 15(2) Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 - Protection of sub-tenants inducted before 1st February 1973 - The petitioner claimed to be a sub-tenant since 1958/1965, prior to the respondent's purchase in 1970. The trial court found documentary evidence of possession before 1973 and dismissed the suit. The appellate court reversed without considering exhibited documents. Held that the appellate court erred in not reading the exhibited documents, and the petitioner is entitled to protection under Section 15(2) as his possession was prior to the cut-off date. (Paras 2-6)
Issue of Consideration
Whether the petitioner, as a sub-tenant inducted prior to 1973, is entitled to protection under Section 15(2) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947, and whether the appellate court erred in not considering exhibited documentary evidence.
Final Decision
The High Court allowed the writ petition, set aside the appellate court's judgment and decree, and restored the trial court's decree dismissing the suit for possession.
Law Points
- Sub-tenancy protection
- Section 15(2) Bombay Rents Act
- 1947
- documentary evidence
- appellate court error
Case Details
2010 LawText (BOM) (01) 6
WRIT PETITION NO.6062 OF 1997
Smt Anita A. Agarwal for the petitioner
Gorakhnath B. Bhingardive
Hashmatullam N. Khan & Anr.
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Nature of Litigation
Civil writ petition challenging appellate decree for possession in a rent control suit.
Remedy Sought
Petitioner sought to set aside the appellate court's decree for possession and restore the trial court's dismissal of the suit.
Filing Reason
The appellate court reversed the trial court's decision and passed a decree for possession against the petitioner, who claimed protection as a sub-tenant under the Bombay Rents Act.
Previous Decisions
Trial court dismissed the suit for possession; District Court in appeal reversed and decreed possession on grounds under Sections 12(3)(a), 13(1)(e), and 13(1)(l) of the Act.
Issues
Whether the petitioner is entitled to protection under Section 15(2) of the Bombay Rents Act as a sub-tenant inducted prior to 1973.
Whether the appellate court erred in not considering the exhibited documentary evidence showing the petitioner's possession before 1973.
Submissions/Arguments
Petitioner's counsel argued that documentary evidence showed possession from 1958 or at least 1965, prior to the respondent's purchase in 1970, and the appellate court erroneously declined to read those exhibited documents.
Petitioner's counsel submitted that under amended Section 15(2) of the Act, the petitioner's possession was protected.
Ratio Decidendi
Under Section 15(2) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947, a sub-tenant inducted before 1st February 1973 is protected from eviction. The appellate court erred in not considering the exhibited documentary evidence that established the petitioner's possession prior to that date. Therefore, the petitioner is entitled to protection, and the trial court's dismissal of the suit was correct.
Judgment Excerpts
The trial Court held that there was documentary evidence on record to show that the petitioner was occupying the suit premises prior to 1973 and therefore he has been protected under the said Act.
The learned counsel appearing for the petitioner submitted that there was documentary evidence to show that the petitioner was in possession of the suit premises if not from 1958 atleast from 1965.
In view of the fact that the petitioner was in possession of the suit premises prior to 1st February 1973, the petitioner is entitled to the protection of the amended provisions of sub-section 2 of section 15 of the said Act.
Procedural History
The first respondent filed a suit for possession against the second respondent (tenant) and the petitioner (sub-tenant). The trial court dismissed the suit. The first respondent appealed to the District Court, which reversed and decreed possession. The petitioner filed a writ petition in the High Court challenging the appellate decree.
Acts & Sections
- Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947: Section 12(3)(a), Section 13(1)(e), Section 13(1)(l), Section 15(2)
