Oral Judgment:
1. Rule. Heard finally with the consent of the learned Counsel for the parties.
2. This writ petition filed under Article 227 of the Constitution of India takes exception to the decree for eviction passed by the trial Court which has been maintained by the appellate Court. The respondent no.1 is the owner of a shop in which the respondent no.2 - defendant no.1 and the petitioner no.1 - defendant no.2 were the tenants. The rent agreed to be paid was Rs.2500/- per month. For the sake of convenience, the respondent no.1 would be referred to as the landlady, the petitioner no.1 would be referred to as the tenant and the petitioner no.2 would be referred to as the subtenant.
3. According to the landlady, the tenants were in arrears of rent since August 2006. As these arrears of rent were not paid despite demand being made, on 21-11-2009 the landlady issued a notice under provisions of Section 15(2) of the Maharashtra Rent Control Act, 1999 (for short, the said Act) to the tenants as well as the sub-tenant. It is also the case of the landlady that she was in bonafide need of the suit block. Further, the tenants had sublet the premises to the sub-tenant without consent of the landlady. On these counts the landlady filed suit for eviction against the tenants and the sub-tenant.
4. Before the trial Court the respondent no.2 did not appear and hence, the suit proceeded exparte against him. The tenant and the sub-tenant filed their written statement below Exhibit-16 and opposed the prayers made in the plaint. It was denied that they were in arrears of rent and were, therefore, liable to be evicted. The landlady examined her power of attorney holder but the said witness was not cross-examined. On the basis of the evidence on record, the trial court held that the tenants were in arrears of rent, the landlady had established her bonafide need and that the greater hardship would be caused to her if the decree was not passed. It was further held that the tenants had sublet the premises to the sub-tenant. By judgment dated 11-4-2011, the trial Court decreed the suit.
5. The tenant and the sub-tenant challenged the aforesaid decree by filing an appeal under Section 34 of the said Act. This decree was not challenged by the respondent no.2. During pendency of the appeal, the landlady gave up the claim of eviction based on the ground of bonafide need and subletting. The decree was sought to be supported only on the ground of the tenants being in arrears of rent. The appellate Court by judgment dated 13-10-2015 held that the tenants were in arrears of rent and hence were liable to be evicted. On that ground, the appeal came to be dismissed.
6. Shri A. Shelat, the learned Counsel for the petitioners made the following submissions:
(a) The notice under Section 15(2) of the said Act not having been duly served on the sub-tenant and the landlady having given up the grounds of eviction based on bonafide need of the suit premises and subletting, she cannot succeed in seeking eviction of the sub-tenant on the ground of arrears of rent. In absence of service of the demand notice on the sub-tenant, no decree could have been passed against the sub-tenant. In that regard, the learned Counsel placed reliance upon the judgment of learned Single Judge in Natwarlal Gokuldas Shah through Lrs. Vs. Khanderao Balwant Lokhande and others 2003(5) Mh.L.J. 184.
(b) The landlady having not examined herself had merely led evidence of her power of attorney holder. The power of attorney holder was not a competent witness to depose about the issuance of the demand notice under Section 15(2) of the said Act. Both the Courts were not justified in considering the evidence of the power of attorney holder while passing the decree for eviction. In this regard, he placed reliance upon the judgment of the Hon'ble Supreme Court in Man Kaur (Dead) by Lrs. Vs. Hartar Singh Sangha (2010)10 SCC 512.
(c) Before the appellate Court, the tenants and subtenant had moved an application for recalling the landlady's witness by setting aside the order of "no cross-examination" vide Exhibit-16. Similarly, an application below Exhibit-46 was also moved for de-exhibiting the agreement of leave and license (Exhibit-22). Both these applications were rejected by the appellate Court without any legal basis. The same resulted in grave prejudice to the legal rights of the tenants and sub-tenant.
7. Shri D.N. Dani, the learned Counsel for the respondent no.1 - landlady supported the decree for eviction and countered the submissions made on behalf of the petitioners as under:-
(a) The tenancy in respect of the tenants and sub-tenant being joint and indivisible, the notice served on the tenant was sufficient notice to the sub-tenant. According to the learned Counsel, the occupation of the tenants and sub-tenant was in the capacity as joint tenants. As the demand notice had been served on the tenants, non-service of the said demand notice on the sub-tenant was not fatal. It was also submitted that sending of notice under Section 106 of the Transfer of Property Act, 1882 was sufficient and service of the same was not very relevant. The learned Counsel sought to draw support for the aforesaid submissions by placing reliance upon the judgment of the Supreme Court in Kanji Manji Vs. The Trustees of the Port of Bombay AIR 1963 SC 468 as well as judgment of learned Single Judge in Mst. Ramubai Vs. Jiyaram Sharma AIR 1964 Bom 96 and Tirathdas Pokhardas Kalda Vs. Suribai Assumal Moolchandani and others 2007(2) Mh.L.J. 309.
(b) The decree for eviction on the ground of arrears of rent had been rightly passed as the tenants and the sub-tenant had not complied with the provisions of Section 15(2) and Section 15(3) of the said Act. The arrears of rent not having been cleared, the decree for eviction had been rightly passed by the Courts below. In that regard the learned Counsel placed reliance upon the judgment of the Division Bench in Chandiram Dariyanumal Ahuja Vs. Akola Zilla Shram Wahtuk Sahakari Sanstha, Akola 2013 (1) Mh.L.J. 28.
(c) The applications moved by the tenants and the sub-tenant before the appellate Court had been rightly rejected. A party could not be permitted to fill up the lacunae in such manner. The learned Counsel relied upon the judgment of the Hon'ble Supreme Court in Vadiraj Naggappa Vernekar (Dead) through Lrs. Vs. Sharadchandra Prabhakar Gogate (2009) 4 SCC 410 in that regard.
8. I have heard the respective Counsel for the parties at length and I have given due consideration to their respective submissions. The questions that arise for consideration are as under:
(i) In a suit for eviction based on the grounds of arrears of rent, bonafide need and subletting if the landlady gives up the ground of subletting and if the demand notice issued under Section 15(2) of the said Act is not served upon the sub-tenant, can the sub-tenant still be evicted?
(ii) Whether the power of attorney holder of the landlady was competent to depose on her behalf in support of the case for eviction?
9. Before considering the aforesaid questions, it would be first necessary to note the relevant facts that have come on record. The landlady had filed suit for eviction against her two tenants and sub-tenant on the grounds of arrears of rent, bonafide need and subletting. The notice of demand issued under Section 15(2) of the said Act has been served only upon the tenants who had failed to comply with the statutory requirements thereof. This notice, however, was not duly served on the sub-tenant. Further, the decree for eviction passed by the trial Court has been challenged only by one tenant and the sub-tenant. The grounds based on bonafide need of the landlady and subletting by the tenants have been given up in appeal.
10. As to question (i) :- The landlady while seeking eviction of the tenants and the sub-tenant issued a demand notice on 21-11-2009 (Exhibit-30) to the tenants as well as the sub-tenant. The postal receipts were at Exhibits 31 to 33. Both the tenants were duly served with these notices below Exhibits 34 and 35. However, the notice issued to the sub-tenant was returned back to the sender (Exhibit-36). This finding recorded by the trial Court has been affirmed by the appellate Court. The endorsement on the said envelope was "address not found". It is, therefore, a finding of fact recorded that the demand notice under Section 15(2) of the said Act has not been served upon the subtenant.
11. It is well settled that even if eviction of a tenant is sought on various grounds under provisions of Section 15(2) and Section 16(1) of the said Act and a decree is passed on some of the grounds in favour of the landlord, such decree for eviction can be supported even on a singular ground of eviction. In the present case, the eviction of the tenants was sought on the ground that they were in arrears of rent, the act of subletting the premises and bonafide need of the landlady. Though the trial Court decreed the suit on all the three grounds, the landlady in the appeal preferred by one of the tenants and the sub-tenant chose to support the decree for eviction only on the ground of arrears of rent. Such course was always permissible for the landlady. Merely because the grounds of bonafide need and subletting were not pressed by the landlady before the appellate Court, the same by itself cannot be fatal to the case of the landlady. It was open for her to seek eviction of the tenant on the ground of arrears of rent. Hence, much capital cannot be made by the tenant of the act of the landlady of giving up the prayer for eviction on the ground of bonafide need and subletting.
12. The question to be considered is whether the notice under Section 15(2) of the said Act was required to be duly served upon the sub-tenant. The provisions of Section 15(2) of the said Act contemplate service of such demand notice only upon the tenant. The landlady had not recognized the sub-tenant as her tenant and had in fact sought eviction of the tenant on the ground of illegal subletting. The expression "tenant" as defined by Section 7(15) of the said Act does not include sub-tenant. The said expression includes a person who is deemed to be a tenant under Section 25 of the said Act. For the purposes of becoming a person deemed to be a tenant under Section 25 of the said Act, the subletting should have been lawful and subsisting on the date of commencement of the Act. In the present case, these requirements are not met as the subletting was not lawful, but was objected to by the landlady. Thus, when the sub-tenant did not answer the definition of the expression "tenant" under Section 7 (15) of the said Act nor was he in a position to take advantage of the provisions of Section 25 of the said Act there was no requirement whatsoever for the landlady to issue a demand notice under provisions of Section 15(2) of the said Act to him. Merely because the landlady chose to issue such notice to the sub-tenant and the same could not be duly served, the same would not militate against the case of the landlady while seeking eviction of the tenant. There being no requirement in law to issue a separate demand notice to the sub-tenant who did not answer the requirements of Section 25 of the said Act, its non-service on the sub-tenant would not prejudice the case of the landlady especially when the demand notice was duly served on the tenant.
13. Once it is found that the landlady could support the decree even on a singular ground of eviction and there being no legal requirement of issuing a demand notice to such subtenant who had no protection under Section 25 of the said Act, then the decree passed against the tenant under Section 15(2) of the said Act would bind such sub-tenant. The status of the sub tenant was that he was claiming his right to occupy the premises through the tenant and if the tenant was liable to be evicted, such subtenant having no statutory protection would also be liable to be evicted on the basis of said decree. Thus, the decree for eviction that has been passed against the tenant on the ground that he was in arrears of rent would be binding on the sub-tenant who was not deemed to be a tenant under Section 25 of the said Act.
14. As to Question No.(ii) : The landlady had examined her power of attorney holder in support of her prayer for eviction. The said power of attorney holder was her brother-in-law. In his affidavit, he had specifically stated that he had been collecting the rent from the tenants and managing the affairs of the landlady. He was aware of all the facts of the case. He further stated that on 4-7-2009, he had issued a letter to the defendant nos.1 and 2 demanding arrears of rent. This letter was not replied. He has then stated that the landlady through her Counsel had issued a registered notice dated 21-11-2009. He identified the signature of the said Counsel and stated that the contents of the notice were true. The submission made on behalf of the petitioners that the power of attorney holder was not competent to depose on behalf of the landlady cannot be accepted. As noted above, the power of attorney holder was the brother-in-law of the landlady. He had been collecting rent from the tenants and had also issued a letter on her behalf demanding arrears of rent. He was aware about the legal notice issued demanding arrears of rent. In Man Kaur (supra) which decision was relied upon by the learned Counsel for the petitioners the position as to who could give evidence on behalf of another person in matters involving personal knowledge has been summarized. In the present case, it cannot be said that the power of attorney holder had deposed about the acts done by the principal - landlady. In fact, various steps were taken by the power of attorney holder himself and therefore, he was very much competent to depose as her power of attorney holder. Thus, in the facts of the present case and considering the relationship between the power of attorney holder and the landlady, it is held that the power of attorney holder was competent to depose on behalf of the landlady.
15. In so far as the order passed by the appellate Court on the application seeking permission to recall the witness examined by the plaintiff is concerned, the appellate Court has found that during the trial sufficient opportunity was granted to the defendants, but they did not prosecute the proceedings sincerely. The observations in para 4 of the said order indicating various adjournments granted speak for themselves and rejection of the said application cannot be faulted. Similarly, the order passed on the application for de-exhibiting the document at Exhibit-22 is just and proper in view of the fact that the petitioners had not challenged the lease agreement in the written statement. Hence, no fault can be found to the orders passed below Exhibits 16 and 22.
16. The finding that the tenant was in arrears of rent is a finding based on the material on record. Even otherwise the tenant is in arrears of occupation charges since October, 2014 and hence, the decree for eviction based on said ground does not deserve to be interfered with.
17. In the light of aforesaid discussion, the decree for eviction does not call for any interference. The writ petition is dismissed. Rule stands discharged with no order as to costs.