Hatimbhai Abdeali Vs. Bhagwandas Hiralal Gundaria and ors. - Court Judgment

S.J. Deshpande, J.

1. This appeal against an order arises out of an execution proceedings. In execution of a decree passed by the Small Causes Court in R.A.E. Suit No. 6526 of 1955, the plaintiff-decree-holder sought to execute this decree against the judgment-debtor. When the decree was put for execution, the appellant-applicant was on the premises which are involved in the decree. The decree relates to three shops and we are concerned only with Shop No. 4 in this appeal.

2. The appellant filed an application before the Executing Court under Order 21, Rule 100(7) of the Code of Civil Procedure resisting the execution of the decree. That application was heard by the learned Judge of the City Civil Court in Chamber Summons No. 470 of 1978. During the pendency of the Summons the appellant had also applied for ad interim injunction against the plaintiffs. The learned Judge of the City Civil Court has dismissed the Chamber Summons and vacated the injunction by his order July 3, 1981. This Chamber Summons was taken out in Suit No. 2170 of 1961. The present appeal is filed by the appellant against the order passed by the learned Judge of the City Civil Court at Bombay. When the appeal was called for hearing it was pointed out that the appeal is not maintainable as it is not covered by the provisions of the Code contained in Order 43, Rule 1 of the Code of Civil Procedure.

3. Mr. M.V. Paranjape, the learned Counsel for the appellant conceded this position and contended that this appeal should be treated as first appeal against the decree. Therefore, I have permitted Mr. Paranjape to argue this appeal on the footing that it is a first appeal against the order passed by the City Civil Court in proceedings commenced by an application under Order 41, Rule 100 of the Code of Civil Procedure, in view of the judgment of this Court reported in Kisan Ranchhodas v. Lalji Dharamdas, : 1982(1)BomCR478 , any order passed on an application filed by the obstructionist under Order 21, Rule 103 and if the application is disposed, the remedy of the applicant-obstructionist is to file an appeal against the said order. Following this authority, I allowed the learned Counsel for the appellant to argue the appeal as a first appeal directed against the said order passed by the City Civil Court in Chamber Summons, which came to be dismissed on July 3, 1981.

4. A few facts may be stated for understanding the controversy in this appeal. The plaintiff Bhagwandas Hiralal had obtained a decree in Ejectment Suit No. 6526 of 1955 against the defendants. First defendant in that suit was M/s. K. Hasan and Company. In that suit a consent decree came to be passed on December 5, 1957. Under the terms of the decree M/s. K. Hasan & Co. were under obligation to hand-over possession to the plaintiff as they were claiming to be the tenants and the tenancy came to be determined by the decree. However, under the consent terms, warrant for possession was not to be executed till 15th October, 1961. It may be noted here that in the said decree Shop No. 4 and other shops i.e. Nos. 6 and 6-A also were involved and M/s. K. Hasan and Co. claimed to be the tenants of all the shops.

5. In this proceeding we are concerned only with Shop No. 4. It appears that after this consent decree was obtained the plaintiff-decree-holder attempted to execute his decree. But he was met with obstruction, which I will call the first obstruction in the execution of the decree. This obstruction was caused by Ismail Kadarbhai and the present appellant whose name is Hatimbhai Abdeali. This obstruction came to an end on May 4, 1960. It is undisputed that in the Notice of Motion, which was taken out by the plaintiff to execute his decree as far as Ismail Kadarbhai was concerned, the notice was discharged against him and the appellant Hatimbhai is concerned, the notice was made absolute.

6. Then, it appears that the plaintiff was required to file a suit against this Ismail Kadarbhai as his Notice of Motion was dismissed against him and that suit is numbered as Suit No. 2170 of 1961 in the City Civil Court. This suit was filed against defendant No. 1 Ismail Kadarbhai and second defendant Ishwarlal Hiralal Gundaria, one of the brothers of the landlord, who was a formal party to the suit. This suit was heard by the learned Judge of the City Civil Court and a decree came to be passed on August 17, 1971.

7. Now, the first defendant in the said suit Ismail Kadarbhai, who is respondent No. 3 herein, preferred an appeal in the High Court being First Appeal No. 720 of 1971 and the High Court dismissed the same confirming the decree passed by the City Civil Court by its judgment and order dated September 10, 1976. I am informed at the Bar that a special leave to appeal to the Supreme Court was also filed in the Supreme Court by the defendant in that suit and for some time a conditional order was obtained and it appears that condition was not fulfilled by the defendant and, therefore, stay order stood discharged and the appeal to the Supreme Court also came to be dismissed.

8. It may be noted here that the above Suit No. 2170 of 1961 which reached the High Court and the Supreme Court included all the properties i.e. Shop Nos. 4, 6 and 6-A. In this appeal, we are concerned only with Shop No. 4.

9. After the stay order was vacated by the Supreme Court, a fresh warrant for possession was taken by the plaintiff-decree-holder somewhere on June 21,1978 and it was in execution of this warrant for possession of the property that the appellant, who offered fresh obstruction became unsuccessful and was actually dispossessed from Shop No. 4.

10. Being dispossessed in execution of the decree, the appellant herein filed an application before the City Civil Court under Order 21. Rule 100 taking out Chamber Summons No. 470 of 1978 and invited the City Civil Court also to pass ad interim injunction to stay the execution of the decree and long affidavit is given by the appellant making out a case for restoration of possession. I will refer it later.

11. This Chamber Summons was opposed by the plaintiff-decree-holder by filing counter reply on affidavit. The learned Judge of the City Civil Court dismissed this Chamber Summons by his order, dated July 3, 1981.

12. It is this order, which is being challenged by the appellant in this appeal. The learned Counsel for the appellant first of all urged that the City Civil Court was wrong in relying on the affidavit evidence. It was contended by the learned Counsel that under Order 19 of the Code of Civil Procedure, affidavit evidence is available only for interim application and no substantive relief can be granted on affidavit evidence and, therefore, he should be given an opportunity to lead evidence in support of his contentions raised by the appellant in the affidavit. It is true that no investigation was made by the Court such as inquiry in respect of the claim made by the appellant by allowing him to produce evidence. It would have been better if the City Civil Court would have investigated the matter in an elaborate way. In view of the special features of this case I do not think that the City Civil Court has committed any such error. In the case the grievance of the appellant is that affidavit evidence cannot be accepted. If the appellant was serious about leading any evidence, it was necessary for him to have objected to the course adopted by the trial Court while deciding the case itself. There is no application made either oral or written before the Court asking the opportunity to lead evidence. It appears that no such grievance was not made before the Court at all. For the first time, at the time of the hearing of this appeal, the learned Counsel for the appellant invited my attention to the provisions of Order 19 of the Code of Civil Procedure and raised this contention. I do not propose to allow this contention to be raised at all, as this contention was not raised before the lower Court when the appellant had an ample opportunity to request the Court to allow him to lead evidence. I do not see any justification that at the time of hearing of the appeal, I should allow the appellant to raise this contention, which does not find place even in the memo of appeal at all. As the appellant has failed to raise this contention before the Court below I do not allow him to raise this contention at this stage. If the appellant would have raised the contention in the Court below, the respondent-plaintiff would have an opportunity to face the same by presenting the necessary facts and which opportunity lost to him. Therefore, I see no justification to allow Mr. Paranjape to raise this contention. As held by the Privy Council in Bharat Dharma Syndicates v. Harish Chandra , if an affidavit evidence is accepted by the Court below and no objection is raised to it, the appellate Court is not entitles to allow to raise such a contention. This was a case where the allegations of fraud were made and it was found that the allegations of fraud were not specific and definite, the allegations made in the affidavit evidence and the whole matter was fought in the High Court on those lines. Before the Privy Council, the objection was taken that there are particulars of fraud as alleged. The Privy Council held that the objection that the fraud was not alleged in the petition prevail. The Privy Council held as under :---

'Where the allegations of fraud are made in the affidavit evidence and the whole matter is clearly fought in the High Court on those lines, and apparently without any objection being taken, which, had it been taken, would no doubt have led to the necessary amendments being made in the original petition, the objection that fraud is not alleged in the petition cannot prevail.'

Following the judgment of the Privy Council, I disallow the prayer of the appellant to raise such contention.

13. On merits also, I do not see any force that affidavit evidence cannot be accepted and the Court below has committed any irregularity in going on affidavit evidence, when the Parties did not chose to produce against this course. In the matter of evidence it is open for the parties to adduce or not to adduce any evidence, or to be satisfied on such evidence as they think quite adequate. In this case, the appellant has not adequately made out any case for producing any evidence in the Court below and the challenge which is made before me is not justified in law. Therefore. I reject this contention of the learned Counsel for the appellant.

14. Now, coming to the merits of the case, it is useful to notice the in the affidavit which is filed by the present appellant in support of his Chamber Summons, he has stated that he claim to be the lawful sub-tenant in respect of shop No. 4 situated on the ground floor of Building No. 338/346 on Ibrahim Rahimatulla Road, Bombay. He has further stated that a firm known as K. Hasan & Co. was a monthly tenant in respect of shop No. 4 together with two other shops, carrying its own business. Somewhere in 1954 the said firm sublet the shop No. 4 along with the other two to respondent No. 3 Ismail Kaderbhai, who carried on his own business. He further stated that on 1st November, 1954 said Ismail Kadarbhai put him in exclusive possession of the said shop No. 4. There is a reference also to the claim made by Ismail Kadarbhai respondent No. 3, who had alleged that the appellant was a licensee, which has been disputed by the appellant in his affidavit saying that he has been contending all along that he has been a sub-tenant in the said shop No. 4. The appellant has further in his affidavit admitted that when on an earlier occasion, a decree passed in Suit No. 6526 of 1955 was put for execution, he himself had obstructed the execution along with respondent No. 3 Ismail Kadarbhai. The appellant has also stated that the obstructionist notice in that suit was dismissed as far as first defendant in Suit No. 2170 of 1971 i.e. Ismail Kadarbhai was concerned, which was taken out somewhere in the year 1959 and as far as the appellant was concerned this notice was made absolute. Although I do not find any reference to this particular aspect in the affidavit, but it is a fact that the appellant as well as Ismail Kadarbhai had objected and obstructed as obstructionists on the earlier occasion and that obstructionist notice came to be disposed of on May 4, 1960.

15. I may presently point out that on May 4, 1960, this notice was actually made absolute as far as the present appellant was concerned and it was discharge as against Ismail Kadarbhai. After the discharge of Notice of Motion against Ismail Kadarkhan, the plaintiff was require to file a suit which I have earlier referred to as Suit No. 2170 of 1971 and which reached the Supreme Court as stated earlier. I may here point that after the discharge of this Notice of Motion against Ismail Kadarbhai, the plaintiff decree-holder has attempted to execute the warrant for possession on December 24, 1960. It appears that this warrant for possession was stayed at the instance of Ismail Kadarbhai respondent No. 3, and therefore, the obstructionist notice which was made absolute against the present appellant could not be persued. As a result of bringing stay of the warrant for delivery of possession, the plaintiff was required to file a suit which I have referred to above and that suit also ended in passing the decree of eviction against the first defendant in that suit i.e. Ismail Kadarbhai.

16. Now, the contention raised by the appellant is that he is sub-tenant of the premises and entitled to protection of the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. In reply to this attention, the learned Advocate for the plaintiff decree-holder pointed out that this contention is quite frivolous and cannot be accepted for a moment. It was first of all pointed out by the learned Counsel for the plaintiffs that the present Chamber Summons No. 470 of 1978 is not maintainable in view of the earlier Chamber Summons being made absolute against the present appellant. Secondly, it was pointed out on merits that the present appellant at the time of the earlier attempt of execution of the decree did not claim of interest in the said premises and in this connection my attention was invited to para 9 of the written statement filed by defendant No. 1 in suit No. 2170 i.e. Ismail Kadarbhai and curiously enough this written statement is verified by the present appellant as constituted attorney of the first defendant No. 1. In the written statement it is specifically stated as follows :

'......The said Hatimbhai Abdeali did not claim any interest in the said premises and stated that he is the cousin of the defendant and was helping this defendant in his business......'

This written statement is declared by the present appellant as constituted attorney on August 14, 1968. It is surprising that if this appellant had any claim in the property and, muchless genuine claim and real interest, it passes my comprehension to follow that how this appellant remained so indifferent to his claim. On the basis of the statement, it was contended by the learned Counsel for the plaintiff that the present appellant had no interest in the premises whatsoever and, therefore, his claim should be dismissed summarily. The learned Counsel further invited my attention to the fact that in the appeal filed by Ismail Kadarbhai to the Supreme Court and one of the grounds taken by the first defendant is quoted at page 24 of the paper book, that ground is as follows :

'......In his affidavit dated 8th November, 1976, in Supreme Court the first defendant has further stated as under:---Para 2...... The petitioner states that he has been in possession of shop No. 4,6 and 6-A in House No. 338/346, Ibrahim Rehmatalla Road, Bombay-3, since 1954 and is carrying on his business which is the main source of his maintenance of the petitioner and his family......''.

This averment of the first defendant Ismail Kadarbhai was made in the Supreme Court in Special Leave Petition. Before the Supreme Court affidavits are filed with sense of responsibility and I have no doubt that this affidavit which was made in 1976 was true and genuine affidavit made by first defendant i.e. Ismail Kadarbhai approaching the Supreme Court placing all material facts before the Supreme Court and inviting to exercise its power to grant special leave under Article 136 of the Constitution of India. I fully accept the statement made before the Supreme Court in his own affidavit. If this statement of Ismail Kadarbhai is accepted the whole basis of the appellant's claim that he was in possession right from 1954 till 1978 appears to be totally false. Once this position is held to be correct and I have no doubt in my mind that the appellant is not in occupation of the premises exclusively as a sub-tenant at all. He is not occupation of the premises even as a licensee and if he is not in occupation of shop No. 4 as stated by him, it is impossible to assist him against any execution of a decree which has been passed before some 19 years back. On the basis of the above factual averments, I have reason to believe that the case made out by the appellant that he was there from 1954 or even from 1953 was totally false and the obstruction and dispossession which is now challenged in execution of the decree is without any substance.

17. I will now take up the contention in regard to the Notice of Motion which was made absolute against the present appellant. Mr. Paranjape, the learned Counsel for the appellant contended that this order passed by the City Civil Court is of no consequence and the appellant can certainly ignore that order. I am afraid that such an order passed in execution proceeding against obstructionist can be ignored in such cavalier fashion. On May 4, 1969, the first defendant Ismail Kadarbhai and the present appellant had jointly obstructed the earlier execution of the decree. Either the appellant was joining hands with the first defendant Ismail Kadarbhai or he was claiming independent right against the defendant as well as against the plaintiff. He did not chose to file any affidavit or claim any interest. I am proceeding on the basis that if the order Notice of Motion was made absolute against him, phraseology of Chamber Summons making absolute must have always been in the circumstances when the warrant is issued and such warrant is being executed for delivery of possession. It may not follow that the order was actually for delivery of possession and from any one to obstruct such order. The contention of the learned Counsel for the appellant, Shri Paranjape that unless the order to put in possession is passed, this order has no significance, is without any substance. In fact, in this case, it is found that on December 24, 1960 actually a warrant for delivery of possession was taken by the plaintiff being a decree for immovable property, According to the Code of Civil Procedure, the decree can be executed by removing any person who is resisting or obstructing the delivery of possession. A decree is binding on the judgment debtor or any person claiming any right. Here as in this case, the appellant was serious, it was open for him to file any affidavit and present his own case at that time. He has suffered an order in obstructionist notice and as far as he is concerned, that order as proper and valid.

18. Not, on the principles of res judicata, but certainly on fundamental principles of procedure, if a party suffers an order which is adverse to him he cannot be allowed subsequently to defeat the same order by presenting certain facts and making out a new case, if the party has not chosen to present his own case at an earlier opportunity and especially in case the Court had passed an adverse order. In this connection, the decree which is now in execution is a decree which was passed is Suit No. 6526 of 1955. This decree came was put in execution and resistance was caused by obstructionist who has no title at all. The plaintiff-decree-holder was again required to file a substantive suit to remove said obstruction and he succeeded in it. The decree was stayed for some time and then it was again put up for removal of unlawful obstructionist, that cannot be said to be that in the subsequent proceeding in the execution of the decree, the earlier obstructionist cannot obstruct by making out different case and such course will defeat the ends of justice and it is impossible to allow such obstructionist to prevent the execution of the decree. It is true that certainly principle of res judicata in strict terms may not be applicable in such a situation, but then the original Court which at once passed an order adverse to the party and if that order is valid and proper, the binding effect of that order cannot be destroyed by party at the subsequent stage. In this connection I may refer to a judgment of the Supreme Court reported in Satyadhyan Gosal v. Smt. Deorajin Debi, : [1960]3SCR590 , in which the Supreme Court has observed and held as under :

'The principle of res judicata applies also as between two-stages in the same litigation to this extent that a Court, whether the trial Court or a higher Court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent of the same proceedings.'

Following this principle laid down by the Supreme Court, I do not see any justification for the present appellant to allow him to raise any contention whatsoever in regard to his possession and claim in execution proceedings. The order dated December 24, 1960 is binding as far as present appellant is concerned and he is cannot be allowed to re-agitate the same once again as he chose to do at this stage . If such a course is allowed in law there will be no end to any litigation at all and the passing of the decrees will be only futile. A decree as commonly understood is a final of adjudication and determination of the rights of the parties and persons are bound by the decree and if such adjudication had once taken place, the effect of such final adjudication cannot be allowed to be defeated except on cogent and adequate grounds. In this case the appellant having failed to claim any interest in a suit shop No. 4 in the earlier execution proceeding cannot be heard to say that his claim in respect of Shop No. 4 may be decided as fresh.

19. Then, Mr. Paranjape, the learned Counsel for the appellant, invited my attention to the judgment of this Court reported in Kausar Husein Md. Husein v. Mohd. Umer Bhola, : AIR1982Bom91 . Mr. Paranjape cited this judgment which is delivered by the Division Bench of this Court to support his case that even a sub-tenant who is introduced by a tenant gets a protection under the provisions of amendment of the year 1959 to the Bombay Rent Act. Although on facts I have held that the appellant cannot be held to be in possession from 1953 till 1959 muchless in 1973, since this contention was raised assuming for a while that he was in possession, what would be his status? Mr. Paranjape relied on this authority to show that the sub-tenant is entitled to the protection under the said provisions and, therefore, even if K. Hasan and Co. was a statutory tenant, he by certain transactions such as leave and licence, would create a title in the present appellant. Mr. Paranjape further invited my attention to the observations in this judgment to the effect that section 14 of the Bombay Rent Act gives to the lawful sub-tenant as the deemed tenant of the landlord also the benefit under the contract between him and the tenant along with his liability to perform and observe the conditions and the obligations thereunder. I am afraid that the ratio of this decision is quite inapplicable in this case.

20. This was a case before the Division Bench, where the landlord had filed a suit against the original tenant and sub-tenant, who was in actual possession of the premises. That suit was for eviction. At the hearing of the suit, the original tenant did not appear and the first defendant who was the sub-tenant in that suit did contest the suit. It was defended by him alone and a decree was passed in this suit against the original tenant and as far as sub-tenant was concerned it was dismissed. The decree which was passed in this suit was a decree for eviction of the original tenant, but as far as sub-tenant was concerned, the decree was of dismissal of the suit. Sub-tenant was the first defendant in that suit, and he was actually the party to the suit. After the dismissal of the suit against the sub-tenant, it appears that the sub-tenant had executed an agreement of leave and licence in favour of two persons, who became subsequently plaintiffs in that litigation. The decree of earlier dismissal of the suit was passed on January 25, 1960. It is also material to note that in that case the landlord had recognized the sub-tenancy of a sub-tenant. It is on the basis of these facts that a recognised sub-tenant of a landlord was the principal contestant in the suit and it was against such sub-tenant when the suit was dismissed, the original landlord-plaintiff tried to dispute his claim in that suit on the basis that in obstructionist proceedings, which arose out of the execution of the decree in that suit some consent terms were arrived at and under the consent terms the landlord has accepted the obstructionist as a tenant, while attempting to execute a decree. It is borne out from the judgment that defendant No. 1 who was sub-tenant ultimately succeeded in setting aside those consent terms and his title as sub-tenant being subsisting throughout, he claimed to be the real person entitled to the premises. A reference to the provisions of section 14(1) of the Bombay Rent Act was also made that the plaintiffs in that suit were claiming title through the landlords by a reason of tenancy created in favour of them on the footing that a decree passed for possession was passed in favour of the landlord in an earlier suit against the original tenant. It was their case that a decree has been passed against the original tenant and as the tenancy has come to an end they were entitled fresh tenancy from the landlord. It is on this basis that the plaintiffs filed that suit for declaration that they are the tenants of the suit premises and entitled to continue in possession.

21. In the written statement in that suit the defendant contended that not valid tenancy could be created in favour of the plaintiffs, in view of the fact that the basis of creation of that tenancy under the consent terms of which were arrived at in obstructionist notice were set aside at a later stage and it is against this background that the real contest was between the plaintiffs and original defendant No. 1, who was sub-tenant in the earlier suit. It is against this back-ground that the question was raised and that question is actually formulated in para 2 of the judgement that original landlord in that suit could lawfully create tenancy in favour of the plaintiffs, when the first defendant was under section 14 of the Bombay Rent Act, a deemed tenant of the landlords by reason of being a lawful contractual tenant being determined and had thereafter transferred possession thereof to the plaintiff and one Mohamed Umer under a leave and licence agreement executed with them. It is this question which was answered by he learned Judges and ultimately the suit of the plaintiffs was decreed but in Letter Patent Appeal the High Court held that the landlords were not entitled to create tenancy at all in favour of the plaintiffs and the first defendant who was recognized by the landlords as sub-tenant could not be deprived of his right. Incidently, the Court also dealt with the nature of the statutory tenant. But the main question which was raised in that case proceeded on the basis that the first defendant who was statutory sub-tenant was so recognised by the landlords as their tenant. If a landlord recognises a person as a tenant or sub-tenant, I fail to understand how such tenant can loose his right by reason of forfeiture or loss of tenancy of the original tenant. It is against the back ground, this Court held that the possession if it is transferred to the statutory tenant cannot be said to be destroyed the original terms of the tenancy under which a sub-tenant stood recognised by the landlord. Therefore, this judgment is of no assistance to the present appellant in any way.

22. It must be remembered that as a general principle of law if a sub-tenant claims a title through a tenant and if the tenant's title is disputed or his tenancy is terminated lawfully and a decree is passed against such a tenant, no sub-tenant or sub-lessee or a person deriving title through him will be bound by the decree passed against that tenant. On this principle also the present appellant claiming title through Ismail Kadarbhai has no claim or interest in the property. It is found from the record that this Ismail Kadarbhai himself was a sub-tenant of M/s. K. Hasan & Co. If he himself was a sub-tenant of M/s. K. Hasan & Co. who was original tenant it is impossible to derive any assistance from the above judgment that a sub-tenant transferred his rights as sub-tenant and such sub-tenant could also be protected under the provisions of the Bombay Rent Act.

23. Section 14 of the Bombay Rent Act speaks of an interest of a tenant. If the interest of a tenant of any premises is determined for any reason, that is to say that the tenant whose interest is determined may be a contractual tenant or statutory tenant, and he will still continue as tenant subject to the provisions of this Act. Sub-section (2) of section 14 of the Bombay Rent Act says as under:

'Where the interest of a licensor, who is a tenant of any premises is determined for any reason, the licensee, who by section 15A is deemed to be a tenant, shall, subject to the provisions of this Act be deemed to become the tenant of the landlord, on the terms and conditions of the agreement consistent with the provisions of this Act.'

In order to get benefit of the provisions of sub-section (2) of section 14, Mr. Paranjape strongly relied on sub-section (2) of section 14, especially relying on the agreement of leave and licence as referred to at page 35 of the paper-book, which is an affidavit filed by the respondent, which clearly states that the first defendant i.e. Ismail Kadarbhai filed defence claiming to be the sub-tenant of the said K. Hasan & Co. (original tenant), who took out a notice for expediting the hearing of the application. Then further the affidavit goes on to say that there was an agreement on October 25, 1957 whereby the appellant was given the front portion of the shop i.e. Shop No. 4 on leave and licence basis for a period of 11 months at the monthly compensation of Rs. 105/-. There was also another agreement dated August 19, 1958 between the appellant-applicant and constituted attorney of the M/s. K. Hasan & Co. for sale of the said shop. These admissions in the affidavit of the third respondent relied on by Mr. Paranjape to show that the appellant was in actual possession of the premises under these agreements of leave and licence and once it is found that was in possession of these premises, the learned Counsel contended that he is protected by the provisions of sub-section (2) of section 14 of the Bombay Rent Act. I may deal with this submission, although I have held earlier on the basis of the statement of the original defendant i.e. Ismail Kadarbhai before the Supreme Court that it cannot be accepted that the present appellant could be in possession of the premises at all. But since the learned Counsel for the appellant has pressed the submission before me in force, I want to deal with it, but the whole argument based on sub-section (2) of section 15 is totally misconceived in this case. Sub-section (2) of section 14 of the Bombay Rent Act can be attributed only where a sub-tenancy is admitted from tenant and such sub-tenant either licence or sub-tenant enters into possession and continues as a transferee or sub-lessee or assignee in possession at the commencement of the said ordinance. The requirement of sub-section (2) is that entering into possession though the tenant who is entitled to sub-let and secondly to continue in possession till the date of the ordinance. Both these facts are absent in the averments of affidavit filed by the appellant in this case. The so-called admission or the averments set out by the respondent in reply to the affidavit if they are taken on their face value will show that the plaintiff has not admitted defendant No. 1 Ismail Kadarbhai to be the tenant on the contrary he has stated that he was sub-tenant of M/s. K. Hasan & Co. If Ismail Kadarbhai was the sub-tenant i.e. original tenant, it is impossible to inter that the said sub-tenant would pass on any valid assignment or title to other sub-tenant to be protected either in general law or by the said enactment as provided by sub-section (2) of section 14 of the Bombay Rent Act. The whole basis of the argument, therefore, that the appellant is lawful sub-tenant is without any basis and foundation.

24. In this connection, I have no doubt in my mind that the appellant has colluded with defendant No. 1, as it is understood in law between the parties to file certain proceedings or to institute a suit in which the fight is sham and the contest is very nominal or to agree to obtain such order in order to defeat the rights of the parties. This case is a clear instance and there is intrinsic evidence on record to show that the appellant must have colluded with the first defendant i.e. Ismail Kadarbhai for creation of various kinds of interests and on the basis of this collusion, he wants to succeed in defeating the rights of the decree-holder. The appellant did not present his case in the year 1960. At the earliest stage he joined hands with defendant No. 1 in 1960 in the obstructionist proceeding. He himself exhibited to be the constituted attorney and defended the case and went so far to file the written statement and declared. Then he was successful in getting from the first defendant an agreement of leave and licence and agreement of sale in respect of the disputed shop. All these facts clearly show that the appellant must have colluded with defendant No. 1 and as a result of collusion both of them have chosen to resist the decree-holder to obtain possession of the suit premises. In my opinion, the appellant is not a sub-tenant at all and cannot claim any interest in the premises and, therefore, his claim will have to be rejected. Although the order of the lower Court is not elaborate, the conclusion which the lower Court reached is quite correct.

25. The vital fact, which is to be noticed in this case is that defendant No. 1 Ismail Kadarbhai was held to be a trespasser in Suit No. 2170 of 1961. This suit was filed immediately after the earlier attempt of the decree-holder to take possession of shop No. 4 along with other shops failed as obstructionist notice was discharged against Ismail Kadarbhai on December 24, 1960. If Ismail Kadarbhai the first defendant in Suit No. 2170 of 1961 is held to be a trespasser he could not pass on any title or create any interest by any transaction in favour of the appellant. The appellant claims to have derived title only to Ismail Kadarbhai. In this connection the observations of the High Court in their judgment in Appeal No. 720 of 1971, which are quoted at page 30 of the paper book are relevant. They are as under :---

'It seems that Hatimbhai (the applicant herein) is related to the defendant. They have conspired to frustrate the plaintiff's right to recover possession, of the three shops and to drag on the course of the present suit. It is unfortunate that there is delay in the disposal of the case both at the stage of trial and appeal but persons like the present defendant who had not seen a semblance of right but on the contrary a rank trespasser has made unlawful use of the shop premises for nearly 19 years. This is plain abuse of the process of the Court and exploitation of the situation.'

I cannot ignore this particular observation of the High Court while deciding the merits of the claim of the person like an appellant. These observations clearly show that the appellant has no semblance of title and possesses on evidence to support any claim of interest which can be recognised by law. In view of the glaring facts of this case, I find that the appellant has made futile attempt to resist the decree without any foundation. In this view of the matter, I do not see any force in the contentions raised by the appellant.

26. In the result, the appeal is dismissed with costs. In view of the order passed in this appeal, Civil Application No. 2922 of 1981 is dismissed with costs.