N. H. BHATT, S. L. TALATI, J. ( 1 ) THE next question which is required to be considered is whether the plaintiff could validly create lawful tenancy in his specified portion which was allotted to the defendants. According to the plaintiff the property belongs to Katpitia Mahajan. In his evidence at Exh. 91 the plaintiff stated that the said place was kept on rent by Shri Ramchandra Kanayalal who was his grand father. He further stated that the place which was kept on rent from Katpitia Mahajan was on open place without any walls. According to him he had constructed a roof in the said place. That roof was constructed of corrugated iron sheets. According to him he was in possession of the entire place. From this place he carved out as specified portion which was handed over to the defendants. According to him he was paying rent of Rs. 150/per month for the whole portion According to his own admission he had inducted at least 4 such persons and he was earning about Rs. 20 0 to Rs. 95 0 per year. ( 2 ) SEC. 15 of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 provided that no sub tenancy could he created in absence of the contract to the contrary. The relevant part of sec. 15 reads as under :-"15. (1) Notwithstanding anything contained in any law but subject to any contract to the contrary it shall not be lawful after the coming into operation of this Act for any tenant to sublet the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein. PROVIDED that the State Government may by notification in the Official Gazette permit in any area the transfer of interest in premises held under such lease or class of leases and to such extent as may be specified in the notification. " it is nobodys case that the case is governed by that proviso. This section came into force in 1959. Now therefore unless the plaintiff had a right from his original landlord he could not lawfully sublet the whole or any of the premises let to him or in any other manner his interest therein. This difficulty was experienced and the question was whether the plaintiff had a right to create a sublease. This section came into force in 1959. Now therefore unless the plaintiff had a right from his original landlord he could not lawfully sublet the whole or any of the premises let to him or in any other manner his interest therein. This difficulty was experienced and the question was whether the plaintiff had a right to create a sublease. That would depend upon the contractual rights entered into between Katpitia Mahajan and the plaintiff. The learned advocate Miss Shah therefore with permission of the Court amended the written statement and thereafter the following issue was added :- "13a. Whether the defendants proved that the alleged sublease was created as per the contract between the plaintiff and their landlords and hence it was not hit by sec. 15 (1) of the Bombay Rent Act?"thereafter summons was issued to the conversant person of Katpitia Mahajan. On behalf of defendant no. 1 Indravadan Thakore was examined at Exh. 208. He is serving in Katpitia Mahajan from 1-5-1948 and at present is Manager of that Mahajan for the last five years. He produced a rentnote Exh. 209 and that rent note is dated 22-6-1949. It is signed by one Navrangrai Banwari partner of Ramchandra Kanayalal. Paragraph 6 of that rentnote provides that the tenant shall not be entitled to sublet any part of the lot and that the tenant shall not permit any other person to use any part of the lot in any other manner. The evidence of Indravadan Thakore Exh. 208 also establishes the fact that Katpitia Mahajan bad not only constructed the walls but also had put a roof of corrugated sheets. The question therefore of dual ownership never arose in this matter in the sense that the tenant originally kept open place and put construction thereon and thereafter let out the same. Therefore what we find is that instead of permission granted there was clear prohibition for the grant of subtenancy. It also appears that there was some litigation and Civil Suit No. 2697 of 1958 was fled and the decree of that suit is produced at Exh. 210. The suit was filed against Ramchandra Kanayalal the firm of Ramchandra Kanayalal and one Lala Kashiram. In that suit ultimately there was compromise. In the compromise it was stated that Babulal Rameshwardas and Kashiram Gajanand were the partners of the firm and that defendant no. 2 was not subtenant. 210. The suit was filed against Ramchandra Kanayalal the firm of Ramchandra Kanayalal and one Lala Kashiram. In that suit ultimately there was compromise. In the compromise it was stated that Babulal Rameshwardas and Kashiram Gajanand were the partners of the firm and that defendant no. 2 was not subtenant. It was also mentioned that there was a partnership deed entered into between the parties. The standard rent was fixed at Rs. 98 The evidence therefore showed that the plaintiff was tenant the standard rent was fixed and it was agreed between the parties viz. Katpitia Mahajan and the plaintiff that the plaintiff will not create any sublease. Now the plaintiff created sublease. Therefore that sublease in view of the provisions contained in sec. 15 (1) of the Bombay Rent Act was unlawful. The question therefore which is required to be determined is whether the plaintiff is entitled to get possession from his subtenants which he unlawfully created. The learned advocate Miss Shah who appeared on behalf of the defendants submitted that the plaintiff should not be allowed to take advantage of his own wrong. According to her the plaintiff did an unlawful act by creating subtenancy. Now therefore the plaintiff has come to this Court with unclean hands and therefore the plaintiff should not be allowed to succeed. Our attention was drawn to a case BOWMAKERS LIMITED V. BARNET INSTRUMENTS LIMITED REPORTED IN 1945 KING BENCH DIVISION VOLUME 1 AT PAGE 65. The observations are as under :- "no claim founded on an illegal contract will be enforced by the Court but as a general rule of mans right to possession of his own chattels will be enforced against one who without any claim of right is detaining them or has converted them to his own use even though it may appear from the pleading or in the course of the trial that the chattels in question came into the defendants possession by reason of an illegal contract between himself and the plaintiff provided that the plaintiff does not seek and is not forced either to found his claim on the illegal contract or to plead its illegality in order to support his claim. An exception to this general rule arises in cases in which the goods claimed are of such a kind that it is unlawful to deal in them at all. An exception to this general rule arises in cases in which the goods claimed are of such a kind that it is unlawful to deal in them at all. " ( 3 ) ANOTHER case which was referred to was a case of WAMAN SHRINIWAS KINI V. RATILAL BHAGWANDAS AND CO. , AIR 1959 SC 689 . In paragraph 7 of that Judgment it was observed as under :-"sec. 15 prohibits subletting and makes it unlawful for a tenant to assign or to transfer his interest in the premises let to him. The nonabstante clause Notwithstanding anything contained in any law would mean that even if any other law allowed subletting e. g. Sec. 108 of the Transfer of Property Act the subletting would because of sec. 15 be unlawful. This would apply to contracts alse as all contracts would fall under the provisions of law relating to contracts i. e. Contract Act. An agreement entered into after the Act has come into force contrary to the provisions of that section (sec. 15) would be unenforceable as being in contravention the express provision of the Act which prohibits it. It is not possible to any person to rely upon a contract the making of which the law prohibits. "in paragraph 11 of that judgment it was observed as under :- "the maxim "in pari delicto melior est conditio possidentis" must not be understood as meaning that where a transaction is vitiated by illegality the person left in possession of goods after its completion is always and of necessity entitled to keep them. Its true meaning is that where the circumstances are such that the court will refuse to assist either party the consequence must in fact follow that the party in possession will not be disturbed. " it may here be stated that it would be necessary to refer to the following passage occurring in paragraph 11 of the said judgment. "there is a manifest distinction between a case where the plaintiff landlord asked the court to afford him a remedy against one who by contravening sec. 15 of the Act has made himself liable to eviction and those cases where the Court was called upon to assist the plaintiff in enforcing an agreement the object of which was to do an illegal act. 15 of the Act has made himself liable to eviction and those cases where the Court was called upon to assist the plaintiff in enforcing an agreement the object of which was to do an illegal act. The landlord is only seeking to enforce his rights under the statute and the tenant cannot be permitted to assert in a court of justice any right founded upon or growing out of an illegal transaction namely the agreement to allow the tenant to sublet. Sec. 15 is based on public policy and if public policy demands it even an equal participant in the illegality is allowed/relief by way of restitution on rescission though not on the contract. " the facts of that case show that the appellant of that case was a tenant for about 20 years in the premises known as Fida Ali Villa in Kalyan. The appellant had four subtenants three of them also shifted to the new premises which were let to the appellant by the respondent. The 4th a Bohri was fixed up by the respondent in some other place. There was some dispute as to the date when these new premises were let to the appellant the appellant alleging that they were let on July 1 1948 and the respondent that they were let on June 1 1948 The trial Court found that they were let on June 1 1948 The terms of the lease are contained in a document dated June 7 1948 which is a letter in Marathi written by the respondent to the appellant and contains the following terms as to subtenancy :- "in the shops in the old chawl which are with you have kept subtenants. We are permitting you to keep subtenants in the same manner in this place also. "thereafter on April 20 1949 the respondent brought a suit for ejectment on the ground of nonpayment of rent and subletting of the premises. The defence of the appellant was that under the terms of the lease he had the right to sublet the premises. The trial Court held that subletting was lawful in spite of sec. 15 of Bombay Hotel and Lodging House Rates Control Act 1947 He also held that the appellant did not occupy the premises on the same terms and conditions on Which he occupied the old premises in Fida Ali Villa. He passed a decree for Rs. The trial Court held that subletting was lawful in spite of sec. 15 of Bombay Hotel and Lodging House Rates Control Act 1947 He also held that the appellant did not occupy the premises on the same terms and conditions on Which he occupied the old premises in Fida Ali Villa. He passed a decree for Rs. 445 on account of rent remaining due and dismissed the respondents suit for ejectment. On appeal the Assistant Judge at Thana reversed the decree holding that sec. 15 of the Act completely prohibited subletting and under sec. 13 (1) (e) of the Act the landlord had the right to evict the tenant on account of subletting. The appellant then went in revision to the High Court of Bombay but it affirmed the order of ejectment. Thereafter the appellant went to the Supreme Court by special leave and the Supreme Court came to the conclusion that the judgment of the High Court was sound and the appeal was required to be dismissed with costs. ( 4 ) ANOTHER ruling which is required to be referred to is a case H. H. SIR JIWANJIRAO SCINDIA V. MUZAMMIL KHURSHID, 59 BLR 1011. It was a case where the plaintiff who was a tenant of a flat created a subtenancy in favour of the defendant and put him in possession of his flat. After sometime the plaintiff filed a suit against the defendant alleging that the plaintiff was the lawful tenant of the flat and if there was an agreement between him and the defendant for subletting the flat the subtenancy was illegal by virtue of sec. 15 of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 The plaintiff relying on his own title submitted that he was entitled to get back possession of the flat since the defendant had no lawful right or interest therein. It was held that the plaintiff was entitled to get back the possession of the flat from the defendant. It was held that the plaintiff was entitled to get back the possession of the flat from the defendant. In that case also the argument was advanced that the plaintiff was a tenant of a flat and because he had no right to sublet and unlawfully he created subtenancy he should not be entitled to get possession because he was himself in the wrong The Bombay High Court considered that aspect and discussed the same as under :- "it is common ground that the subtenancy is illegal being contrary to the provisions of Saw and one which is expressly prohibited by sec. 15 of the Rent Act Can the tenant in such a case get relief from the Court if he only seeks possession of the flat by relying on his own title and on the footing that the defendant has no lawful right or interest in the flat ? Can it be said in such a case that though the tenant does not want to rely on the agreement or factum of subtenancy and merely seeks possession of the flat he is disentitled to any relief by operation of the maxim in pari delicto melior est conditio possidentis. The maxim is to the effect that where both parties are equally in the wrong the position of the possessor is the more favourable. But the merits and demerits of these pithy statements of law which constitute a species of legal short hand are well known. A maxim of law always requires to be understood and applied with its necessary qualifications and limitations The other maxim often referred to in the same context is ex turpi causa non ortur actio no right of action arises from a base cause e. g. on a contract founded on an immoral consideration or the object of which was illegal or immoral. But can it be said that the owner of a property who lets it out in violation of the Rent laws loses not merely all rights arising under the agreement of the parties and the tenancy intended to be created but also his right to get back possession of the property from one who has not acquired any right or interest in the same? That in such case the so called tenant should have the right to squat on the flat indefinitely and that seems to be the suggestion of learned counsel appearing for the defendant sounds to me a startling contention. There is neither principle nor authority in support of the proposition. "we are conscious of the fact that in both the Cases cited above there was absolute prohibition regarding subletting. Here there is no absolute prohibition because sec. 15 as amended in 1959 as it stands in Gujarat which we have quoted above speaks of the contract to the contrary. Therefore if the original tenant has a right to create subtenancy and he creates a subtenancy that subtenancy would be lawful. In this particular case therefore written statement was allowed to be amended. The evidence was allowed to be led and ultimately on evidence it clearly appears that the original tenant was prohibited from subletting. Now can it be said because he has committed a wrong the subtenant who is not entitled to possession should be continued to be in possession when the tenant based his suit on the basis that he is entitled to remain in possession because he is a tenant ? The answer is simple and the answer would be that the plaintiff would be entitled to possession because the tenant based his suit on the basis that he is entitled to remain in possession because he is a tenant. The subtenants are not the persons who are entitled to remain in possession. Therefore they are as good as trespassers. The plaintiff therefore will be entitled to possession. ( 5 ) THE learned advocate Miss Shah drew our attention to a judgment in First Appeal No. 168 of 1976 decided by this Court on 21-3-1979 in a case M/s. PANAJI DAMANI and CO. AHMEDABAD AND OF HERS V. SHRI BABULAL RAMESHWAR. We may say that that was a case where the parties had arrived at compromise at the intervention of Katpitia Mahajan and a fresh agreement on 12-2-1963 was executed by the parties. Therefore the Court had to interprete the fresh argument and it was clear from the start that the original landlord Katpitia Mahajan was very much concerned about the fresh agreement. At the intervention of Katpitia Mahajan that fresh agreement was entered into. Here the facts are otherwise. Therefore the Court had to interprete the fresh argument and it was clear from the start that the original landlord Katpitia Mahajan was very much concerned about the fresh agreement. At the intervention of Katpitia Mahajan that fresh agreement was entered into. Here the facts are otherwise. When the defendants came into possession of the property in question Katpitia Mahajan was not in picture and consent of Katpitia Mahajan was never obtained and it is nobodys case that the plaintiff with the consent of Katpitia Mahajan created subtenancy in favour of the defendants. It is not the case of the defendants that they became subtenants because the original plaintiff tenant created subtenancy with the consent of Katpitia Mahajan. ( 6 ) THE next question is question regarding mesne profits. The learned City Civil Judge has allowed the mesne profits from 2-2-1970 till the date of the decree and from the said decree to the date of handing over the possession at the rate of Rs. 500/per month. That decree is required to be set aside. The mesne profits are required to be determined by recourse to Order XX Rule 12 of the Civil Procedure Code and all the circumstances appearing in the case may be taken into consideration viz. as to what rent the tenant was paying what part i. e. how much area out of that area was allotted to the subtenants and having regard to the considerations as to what were the taxes and the provisions of law mesne profits will be required to be determined. ( 7 ) THE result would be that the appeal is partly allowed and the decree so far as it directs the payment of Rs. 31 0 is set aside. The decree for possession is maintained. ( 8 ) THE Cross objections are dismissed. The decree for possession shall stand and the trial Court shall determine from 2-2-1970 the mesne profits in accordance with law the possession is handed over. Appeal partly allowed: Cross objections dismissed. .