JOSEPH PERCIVAL FRANKLIN FONSECA THR. C.A. FABIAN FONSECAversusGIRIJA RAJU POOJARY AND ORS

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          Digitally
                                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
          signed by
          KANCHAN
KANCHAN   VINOD
VINOD     MAYEKAR
MAYEKAR   Date:
          2026.09.08
          15:04:43
                                          CIVIL APPELLATE JURISDICTION
          +0530



                                    CIVIL REVISION APPLICATION NO. 611/2018

                       JOSEPH PERCIVAL FRANKLIN FONSECA
                       DECEASED THR. L.Rs.
                       CHERYL PEARL FONSECA & ORS.                         ….. APPLICANTS

                             VS

                       GIRIJA RAJU POOJARY AND ORS.                        ….. RESPONDENTS

                       Adv. Kunal Bhange a/w. Adv. Vasim Siddiqui, Adv. Akshay Pawar,
                       Adv.Faiz Ali for the Applicants.

                       Adv. Mandar Soman i/b. Adv. Minakshi Surve for the Respondent
                       No.1.

                                                CORAM:          RAJESH S. PATIL, J.

                                                RESERVED ON : 6 AUGUST, 2026

                                                PRONOUNCED ON : 7 SEPTEMBER, 2026

                       JUDGMENT :-

                       1)           The present civil revision application has been filed by the

                       landlord challenging the Appellate Court judgment and decree, which

                       set aside the trial Court judgment and decree of eviction.

                       2)           The landlord had filed suit for eviction of commercial

                       premises where the tenant was running a business of “restaurant and

                       bar”. Though the suit was filed on four grounds of eviction under the

                       Bombay Rent Act, viz., subletting, bonafide requirement, non-user,
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and nuisance and annoyance, the Trial Court decreed the suit on the

grounds of subletting and bonafide requirement.

3)           Only the defendant no. 1 filed an appeal before the

Appellate Authority. The Appellate Court reversed the decree passed

by the Trial Court. Hence, the landlord has filed the present Civil

Revision Application under Section 115 of the Code of Civil Procedure,

1908. Since the Trial Court granted the decree on two grounds, I am

considering those two grounds for deciding this Civil Revision

Application, i.e., subletting and bonafide requirement.

Subletting

4)           The case of the plaintiff is that the tenant of the suit

premises was one Mr. Raju Pujari, who used to run the business of a

restaurant and bar. He left the premises and went to his hometown in

Karnataka. Thereafter, defendant no. 1 claimed to be the widow of the

original tenant, Raju Poojari. Hence, in the eviction suit, defendant no.

1 was added as a party. The eviction suit was filed in the year 1999,

and the Trial Court decreed the suit in the year 2016. During the

pendency of the suit, defendant no. 1 case that she entered into a

partnership firm on 23 April, 2003 and continued running the

business of “restaurant and bar”. In the plaint filed in 1999, it was
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specifically stated by the landlord that there was subletting in favour

of the defendant nos. 2 to 5 and that Defendant No. 1 was

“profiteering” and part of the suit premises was exclusively given to

the defendant nos. 2, 3, 4, and 5. It has been stated that the defendant

no. 3 was running the business of “Deccan Bidi Shop”, defendant no. 4

was carrying on his business in the name of “Naresh Electrical and

Plumbing”, and the defendant no. 5 was carrying on business in the

name of “R.C. Hair Cutting Saloon”.

5)          The plaintiff entered into the witness box and examined

himself; he was cross-examined by the advocate appearing for the

defendant no. 1. The plaintiff’s son also entered into the witness box

(need of the premises per the plaint was for the son) and was cross-

examined by the advocate appearing for the defendant no. 1.

6)          On behalf of the defendants, only the Constituted

Attorney (CA) of the defendant no. 1 entered the witness box. Nobody

else entered the witness box to lead the evidence.

7)          It is an admitted fact that the defendant no. 4 has handed

over possession of the suit premises to the defendant no. 1.          The

defendant no. 3 claims to be conducting business from the year 1972

from Mr. P. P. Mohari. Neither defendant no. 3 nor Mr. Mohari entered
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the witness box. Though a written statement was filed by the

defendant no. 3, the defendant no. 3 failed to prove the facts stated

therein by entering the witness box. In the written statement, it was

stated that Mr. Mohari came into the suit premises on 18 May, 1959

through one Mr. P.V. Ibrahim.     The documents as stated on 18 May,

1959 and thereafter so called conducting agreement has not been

brought on record. There is no reference to the landlord agreeing to

any of these transactions. Hence, in my view, this is a clear case of

subletting.

8)            As far as defendant no. 5 is concerned, it is his case that

he is having rent receipt from the landlord while running the business

under the name “R.C. Hair Cutting Saloon”. Even, defendant no. 5 did

not enter the witness box, neither the documents called as rent receipt

was on record. In such a situation, in my view, as far as defendant no.

5 is concerned, this is again a clear case of subletting by Defendant

No. 1, who is the tenant of the plaintiff-landlord.

9)            As far as defendant no.4 is concerned, his case is that he

was inducted by the defendant no. 1 and he runs a business of

“Naresh Electrical and Plumbing”. He claims to have handed over

possession of his portion of the suit premises being part of the suit
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premises to the defendant no.1. It is nobody’s case that the landlord

has approved transaction or given permission of transaction of the

defendant no.4 being inducted into the part of the suit premises and

thereafter he handed over possession back to the defendant no. 1 and

not to the landlord. This, in my view, also amounts to subletting.

10)          It is also pertinent to note that during the pendency of the

suit, the defendant no. 1 entered into a partnership deed dated 23

April 2003 without permission of the landlord with three more

persons without permission of the landlord.      Admittedly, the original

tenancy of the suit premises was in the name of Raju Poojari, who

died in the year 1998. His wife, defendant no. 1 claims thereafter that

she was conducting the business of a restaurant and bar in the suit

premises, and only in the year 2003 did she enter into a partnership

deed with three additional partners being added apart from and she

being fourth partner. This, in my view, is nothing but a camouflage to

transfer the premises in favour of third parties without the knowledge

of the landlord and to make profit from the said transaction. Though

this ground of subletting from the defendant no.1 to a new created

partnership is not taken into the plaint as the plaintiff was filed in the

year 1999. The deed of partnership was entered into only on 23 April,

2003 while the suit was pending for hearing.
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11)         It is also pertinent to note that none of the defendants

entered into the witness box, out of five defendants, only the

defendant no.1 through her C.A. led evidence. The written statement

was filed by the defendant no.1, defendant no.3 and defendant no.5

and the matter proceeded ex-parte against the defendant nos. 2 and 4.

The written statement itself were contradictory wherein the defendant

no.3 claims to be conducting business from 1972 from Mr.P. P. Mohari

and Mr.Mohari claiming to becoming tenant through the earlier tenant

Mr. P. V. Ibrahim on 18 May, 1959. The defendant no.5 claiming to be

having rent receipt in his possession from the defendant no.1 which

was without any permission from the landlord, no document was

produced on record in this regard. The defendant no.4 claims to be

inducted by the defendant no.1 and further claimed that he has

handed over possession to the defendant no.1.

12)         Single Judge of Bombay High Court in Shantilal Shah vs.

State of Maharashtra, 1995 SCC OnLine Bom 1 has held that the

landlord has to establish that the tenant has parted with whole or

portion of rented premises. This is a settled law, however in present

proceedings, the landlord’s case is that the original tenant had created

three sub-tenancy, and one of them during pendency of proceedings

before trial, handed back the premises.
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12.1)       In recent judgment of Sri. M.V.Ramchandra vs. Mahendra

Watch Company, 2026 SCC OnLine 582, Supreme Court considered

earlier judgments on the issue of sub-letting, and held that sub-letting

requires parting with legal possession, and mere inducting partners

does not amount to sub-letting so long as the tenant retains control

and legal possession.    In my view, the law as laid down in this

judgment supports the case of landlord in the present proceedings.

13)         In my view, the findings of the Trial Court were based on

a correct appreciation of evidence. The appellate court, without

properly considering the facts and evidence on record, set aside the

findings of the Trial Court. Hence, the ground of subletting, according

to me, has been proved by the landlord. Therefore, the findings of the

Appellate Court are quashed and set aside.

Bonafide Requirement

14)         It is a case of the landlord that he requires the suit

premises for the business of his son, Fabian, and for the residence of

his son, Fabian. At the time of the filing of the suit, the landlord was

residing on the first floor of the suit premises when he was 74 years of

age, and along with him his wife, three unmarried daughters, and one

unmarried son (Fabian) were residing. He had one more son who was
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married and was staying separately with his wife. The landlord was

the original employee, who was retired from the service and the suit

filed by the defendant no.1 was on the ground that the landlord, after

retirement received good retirement benefits. So also, there is enough

FSI balance in the suit premises, hence, the landlord can construct

additional room for himself.

15)          The need of the landlord is a dual purpose. It is a matter

of record that though the landlord and his wife has died, as of now his

son – Fabian alongwith his three unmarried sisters are residing on the

first floor of the suit premises which is a four room flat.

15.1)        The Defendant No. 1 has, during cross-examination,

admitted that Defendant No. 4 was inducted by Orig. Tenant, and now

that portion is used by Defendant no 1 for restaurant business, which

proves subletting.

15.2)        In my view the landlord cannot be dictated how he

should use his own premises.         Neither we can ask the landlord

whether he has fund to start his own business or to expand his own

business.   The law is settled on this issue and in any case, the

defendant no.1, the original tenant was running a business of

restaurant and bar and as of now, even the case of the defendant no.1
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is that he has converted a individual business into a partnership

business, which has four partners, out of which she is one of the

partner. It is not the case of the tenant that during the pendency of

the suit, she made efforts to find a new premises.

16)         In Maganlal, Son of Kishanlal Godha vs. Nanasaheb, Son

of Udhaorao Gadewar, (2008) 13 SCC 758, Supreme Court held in

favour of landlord, the ground of bonafide requirement, wherein the

landlord had pleaded at the time of eviction application, the need for

his son and for himself, by amendment to pleading landlord stated

that his son has now completed his studies, therefore the need is

further expanded, hence the order of High Court passed in L.P.A. was

set aside, and eviction passed by Rent Controller was confirmed. In

my view, the law laid down in this judgment is squarely applicable in

present proceedings in favour of landlord.

16.1)       In Maria Martins vs. Noel Zuzarte – SLP (C) No. 11349 of

2025, Supreme Court held that bonafide need was of family of the

plaintiff, hence death of plaintiff would not change the ground of

relief. Therefore, the judgment of High Court was set aside and the

matter was remanded back to the Small Causes Court. The findings

recorded in this judgment does not help the tenant in the present
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proceedings.

17)         In such a situation, in my view, even the ground of

bonafide requirement needs to be answered in favour of the landlord.

18)         Hence, the civil revision application stands allowed.

19)         The impugned judgment and decree dated 5 July, 2018

passed by the Appellate Court of the Small Causes at Bandra stands

quashed and set aside and the impugned judgment and decree passed

by the Trial Court dated 8 February, 2016 passed in R.A.E. & R. Suit

No. 98/223 of 1999 is confirmed.

                                             [RAJESH S. PATIL, J.]



20)         At this stage, Mr.Mandar Soman, learned counsel

appearing for Respondent No.1 (Thr. V.C.) is seeking stay to the

implementation and execution of this Judgment. Mr.Pawar, learned

counsel appearing for the applicant (Thr. V.C.) has opposed the

request made by Mr.Soman.

21)         Considering     the    request    made    by    Mr.Soman,

implementation and execution of this Judgment is stayed by four

weeks.


                                             [RAJESH S. PATIL, J.]