Judgment:
D.K. Deshmukh, J.
1. By this petition, the petitioner challenges the judgment of the Appellate Bench of the Small Causes Court at Bombay in Appeal No. 346 of 1980, dated 13.8.1981. The appeal was filed by the petitioner challenging the order of the Additional Judge, Small Causes Court at Bombay, dated 2.4.1980, is R.A.D. Suit No. 5472/ 1975.
2. The facts giving rise to the present petition are that the present petitioner, Shamrao, is monthly tenant in respect of Shop No. 13 in a building situate at the Corner of Gokhale Road and N.C. Kelkar Road, Dadar, bearing Plot No. 177, T.P.S. No. IV, Mahim Division, Bombay. Respondent No. 1, Sulochana, filed R.A.D. Suit No. 5472/1975 before the Small Causes Court at Bombay, claiming that the shop premises were given to her on licence by the present petitioner and therefore she is a protected licensee of the premises, being in the premises on 1.2.1973. She also claimed a mandatory injunction against defendants Nos. 2 to 11, who are respondent Nos. 2 to 11 in the present petition, directing them to deliver possession of Shop No. 2 in the new building to her, namely the plaintiff in the suit. It appears that the entire building was purchased by the respondent No. 2 Shri Shiv-Sena Trust. They wanted to erect anew building on the plot and therefore possession of Shop No. 13 was handed over to the respondent No. 2 Trust pursuant to an agreement entered into on 7.4.1975 between the petitioner and the said Trust whereby it was agreed that in the new building to be constructed on the plot, a shop will be allotted to the petitioner. Pursuant to that agreement, new building has been constructed on the plot and Shop No. 2 is available for allotment. The respondent No. 1 therefore claimed that it is she who is entitled to the possession of that shop as she is sub-tenant of the petitioner. In the civil suit, the respondent No. 1 had filed an application for injunction and by order dated 4.7.1978, there was an injunction issued against the Trust and its Trustees restraining them from handing over possession of the Shop No. 2 in the new building to the present petitioner.
3. The petitioner-defendant filed written statement on 13.4.1977. The petitioner contended that the respondent No. 1 plaintiff is not his sub-tenant of Shop No. 13 and that the premises were given to her for conducting the business pursuant to the agreement dated 3.9.1962. It appears that after filing the written statement dated 13.4.1977, another written statement was filed by the 1st defendant-petitioner on 25.10.1978 and the lawyer appearing for the 1st defendant-petitioner made an endorsement that the written statement earlier filed should not be considered. The trial Court found that the procedure laid down by the Civil Procedure Code was not followed for making the amendment in the written statement and therefore the second written statement filed on behalf of the 1st defendant-petitioner is liable to be excluded from consideration. The parties thereafter led evidence before the trial Court. The trial Court by its Judgment held that by agreement dated 3.9.1962, the present petitioner had not given to the respondent No. 1-plaintiff only the business for conducting but a sub-tenancy was created in her favour. It was further held that she being the sub-tenant of the premises in exclusive possession of the shop, it is she who is entitled to the allotment of Shop No. 2 in the new building. The suit filed by the respondent No. 1 was therefore decreed by the trial Court. The trial Court held that the plaintiff-respondent No. 1 is deemed tenant in respect of Shop No. 2 and direction was issued to defendant Nos. 2 to 11 to put the plaintiff respondent No. 1 in actual possession of Shop No. 2. The judgment of the trial Court was challenged by the present petitioner in Appeal No. 346/1980. The Appellate Court confirmed the findings recorded by the trial Court and dismissed the appeal. It is against these two orders that the present petition has been filed.
4. Perusal of the plaint allegations shows that it is the case of the plaintiff respondent No. 1 in the suit that a sub-tenancy was created in her favour by the agreement dated 3.9.1962. Perusal of the judgments of the Courts below shows that they have found that, according to the petitioner he was conducting a bicycle repair business in the premises at Shop No. 13. However, in the agreement, he has not specified the nature of the business that he was carrying on in the suit shop. It is further found by the Courts below that the respondent No. 1 was carrying on the business of library and book-selling in the suit premises. The Courts have found that in the agreement, it is nowhere stated that the stock-in-trade would be transferred to the respondent No. 1 plaintiff. The Courts have also found that pursuant to the agreement dated 3.9.1962, the respondent No. 1 was placed in exclusive possession of the premises and that she was carrying on her library business in the premises to the total exclusion of the petitioner. Thus, the finding of both the Courts below on this aspect of the matter, namely, that by the agreement dated 3.9.1962, a sub-tenancy was created in favour of the respondent No. 1, is based on the evidence on record. The Courts below have recorded this finding of fact after appreciating the evidence led by both the parties in the suit. The Courts below have further found that the plaintiff-respondent No. 1 continued to pay rent to the present petition upto April 1975. Therefore, it is obvious that even after expiry of the period which was mentioned in the agreement dated 3.9.1962, the respondent No. 1 continued on the premises. The Courts have found that as the plaintiff continued in the premises as sub-tenant on 1.2.1973, she becomes a deemed tenant of the premises and her sub-tenancy is protected by law. The trial Court, in paragraph 18 of its judgment has observed thus :
18. Therefore, on the evidence on record, I have no hesitation to conclude that the Plaintiff has established her claim that a valid licence in respect of shop No. 13 was subsisting is her favour. It is, therefore, irresistible to conclude that she had become a deemed tenant in respect of shop No. 13. Hence 1 record an affirmative finding on issue No. 2.
5. The Courts below have, after finding that the respondent. No. 1-plaintiff' was the sub-tenant, have held that because the petitioner continues to be the tenant of the premises, the agreement entered into between him and the Trust is legal. Because the petitioner was the tenant, he was competent to enter into an agreement and because the respondent No. 1 was his sub-tenant, it is also obvious that the juridical possession of the premises would continue with him and it is through him that the Trust got possession of the premises. The Courts have further held that as per the agreement between the Trust and the petitioner, the petitioner would be entitled to Shop No. 2. However, he would not be entitled to actual possession of the shop because on the date on which the agreement was entered into in April 1975, it was the respondent No. 1 who was in actual possession of the shop as a deemed tenant and therefore, though the petitioner would be entitled to the tenancy of the premises, in so far as the Trust, who is the landlord and owner, is concerned, it is the respondent No. I who is the protected sub-tenant of the petitioner who would be entitled to its actual possession. I do not find any flaw in the reasonings adopted by both the Courts below. Perusal of the judgment of the Appellate Court shows that except for assailing the findings of facts recorded by the trial court, no other point was raised in the appeal before the Appellate Court. Perusal of the grounds in the present petition shows that it is urged that the suit filed by the Respondent No. 1 was not tenable under the provisions of Section 28 of the Bombay Rent Act. Perusal of Section 28 of the Act shows that the Small Causes Court under the Bombay Rent Act has jurisdiction to entertain and try all suits or proceedings between a landlord and a tenant relating to the recovery of possession of any premises. The present suit related to the recovery of the premises in relation which the respondent No. 1 had possessory rights. A power given to the Court to grant decree for possession, by necessary implication, must include power to make declaration necessary for granting the relief. Therefore, a Court under the Bombay Rent Act would definitely have power to issue declaration. In my opinion, therefore, the suit filed by the respondent No. 1 was perfectly within the jurisdiction of the Court under Section 28 of the Bombay Rent Act.
6. Thus, I find that the orders impugned in the petition are perfectly legal and valid. They are based on the material on record and I do not find any manifest or apparent error of law in the findings recorded by both the Courts below.
7. In the result, therefore, the petition fails and is dismissed. Rule is discharged with no order as to costs.