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CRA/1645/1999 17/ 17 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
REVISION APPLICATION No. 1645 of 1999
With
CIVIL
APPLICATION No. 4315 of 2002
In
CIVIL REVISION APPLICATION No. 1645 of 1999
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.K.RATHOD
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
SANDHI
ABU AHMAD - Applicant(s)
Versus
MEHBOOB
HASINALI BADRUDDIN - Opponent(s)
=========================================================
Appearance
:
MR
NIRAV C THAKKAR for
Applicant(s) : 1,
None for Opponent(s) : 1,
MR MEHUL S SHAH for
Opponent(s) : 1.2.1,1.2.3
MR SURESH M SHAH for Opponent(s) :
1.2.1,1.2.3
SERVED BY AFFIX.(N) for Opponent(s) : 1.2.2
NOTICE
SERVED for Opponent(s) : 1.2.4, 1.2.5, 1.2.6, 1.2.7, 1.3.1,
1.3.2,1.3.3
UNSERVED-EXPIRED (N) for Opponent(s) : 1.2.8
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 01/12/2010
ORAL
JUDGMENT
1. Heard
learned advocate Mr.N.C.Thakkar for petitioner – original
defendant No.2 and learned advocate Mr.Suresh M. Shah for
respondents.
2.
Present Civil Revision Application is filed by tenant. The HRP suit
filed by plaintiff for eviction on the ground of subletting and
tenant is in arrears of rent. The suit has been decreed in favour of
landlord. Thereafter, appeal preferred by tenant which also
dismissed. The contention raised by petitioner is that he is a tenant
and not sub-tenant. The suit was decreed in favour of landlord on
30.4.1986 and appeal preferred by tenant has been dismissed on
31.7.1999.
3. Learned
advocate Mr.N.C.Thakkar has raised contention before this Court that
in fact, suit was filed by landlord on two grounds; one is subletting
and second is that tenant is in arrears of rent. He also submitted
that in fact, there was no subletting and petitioner is not
sub-tenant but, petitioner is tenant. The respondent No.8 (orig.
defendant No.1) – Hasanali Badruddin was original tenant. The
mother of defendant No.2 was working with defendant No.1, who stood
as guarantor of petitioner for payment of rent. The sale deed
executed between Pyarali Jesa and previous owner wherein it was not
mentioned about sitting tenant. The municipal record shows that
petitioner is tenant. The father of petitioner was working in police
department, who died in year 1972. Even in death certificate of
father of petitioner produced on record before trial Court where
residential address has been given of suit premises. The respondent
No.8 (defendant No.1) was not examined before trial Court. He also
submitted that according to Section 13(1)(e) of Bombay Rent Act, if
sub-tenancy is to be proved, then exclusive possession of sub-tenant
and transfer of suit premises after receiving valuable consideration
is must have to be proved by plaintiff which has not been proved by
plaintiff before trial Court, even not pleaded by plaintiff. The rent
note of 1961 has been wrongly considered at Exh.52 which was not
found on the stamp, even though it believed say of plaintiff, then
suit is filed after a period of 8 years from the knowledge of
plaintiff. Therefore, conduct of plaintiff not to immediately filed
suit for possession from petitioner and meanwhile, accepting rent
from petitioner which amounts to accepting petitioner as a tenant by
plaintiff and no notice has been served to petitioner before filing
suit by plaintiff against present petitioner.
4. Learned
advocate Mr.N.C.Thakkar has relied upon decision of this Court in the
case of Bhagwati Spg. @ Wvg. Works v. Ahmedabad New Cotton Mills Co.
Ltd., reported in 1979 GLR 932. Relevant Head Note of aforesaid
decision is quoted as under :
“Bombay
Rents, Hotel and Lodging House Rates Control Act,1947 (LVII of 1947)
– Sec.13(1)(e) – Evidence Act (1 of 1872) – Sec.59
– Question of sub-tenancy – Valuable consideration has to
be proved – Such facts about valuable consideration can be
proved expressly or can be inferred from other facts –
Extremely difficult for landlord to show that there was valuable
consideration in case of sub-letting – Therefore, valuable
consideration can be inferred from other circumstances – Tenant
sub-leasing to a stranger – Valuable consideration can be
inferred in such circumstances.”
4.1 Learned
advocate Mr.Thakkar also relied upon a decision of this Court in the
case of Dahiben Lakhabhai & Anr. v. The Administrative Officer
and Ors., reported in 1980 GLR 90. Relevant Head Note of aforesaid
decision is quoted as under :
“Bombay
Rents, Hotel and Lodging House Rates Control Act,1947 (LVII of 1947)
– Sec.13(1)(e) – In order to prove act of unlawful
sub-letting it must be proved that transfer was for valuable
consideration – Transfer of premises by panchayat to
municipality not accompanied by valuable consideration – sec.
13(1)(e) therefore not applicable.”
4.2 Learned
advocate Mr.Thakkar also relied upon a decision of this Court in the
case of M/S. Rameshchandra K. Patwa & Ors. v. Vithaldas Chimanlal
& Ors, reported in 1993 (1) GLR 193. Relevant Head Note of
aforesaid decision is quoted as under :
“Bombay
Rents, Hotel and Lodging House Rates Control Act,1947 (LVII of 1947)
– Sec.13(1)(e) – To constitute sub-letting, parting of
possession is a sine qua on or condition precedent – If
possession is not proved it is not open to draw any inference or make
any conjecture regarding nature of possession – If possession
is admitted, it is open to infer the nature of possession in absence
of any explanation from tenant or the party in possession –
Factum of possession is required to be established.
Before
landlord is entitled to a decree for possession on the ground of
sub-letting, he will have to satisfy the Court that the tenant has
parted with possession of the entire suit property or part thereof in
favour of a third party who is in exclusive possession thereof and
thereof and there is monetary consideration.”
4.3 Learned
advocate Mr.Thakkar relied upon aforesaid decisions to establish the
fact that while proving sub-tenancy, exclusive possession of
sub-tenancy is necessary to be proved and also transfer made by
tenant to sub-tenant on valuable consideration. These facts neither
pleaded nor proved by plaintiff before trial Court. Therefore,
judgment and decree passed by trial Court as well as confirmed by
appellate Court is required to be set aside.
5. Learned
advocate Mr.S.M.Shah for respondent submitted that there is no need
to give notice to sub-tenant means present petitioner under Section
12(2) of Bombay Rent Act as well as Section 106 of Transfer of
Properties Act because sub-tenant is not a tenant. He further
submitted that rent note at Exh.52 is on stamp paper and also
exhibited before trial Court and now, such dispute cannot be allowed
to be raised by petitioner that Exh.52 is unstamped document. He also
submitted that delay in filing suit after a period of 8 years which
cannot debar landlord for filing suit for possession from
sub-tenant. In fact, according to him, there is no delay at all in
filing civil suit against present petitioner. He also submitted that
merely accepting rent from present petitioner, it cannot be
considered to be a tenant of landlord. The original tenant was
considered to be a surety and guarantor, even that contention was not
established by present petitioner before below Courts. He also
submitted that it is necessary under Section 13(1)(e) of Bombay Rent
Act that landlord must have to prove exclusive possession of
sub-tenant whole or part of premises was assigned or transferred in
any manner his interest but, valuable consideration in monetary terms
is not required to be proved by landlord. He submitted that exclusive
possession of suit premises has been proved by landlord before trial
Court and tenant has transferred his interest of suit premises to
present petitioner. Therefore, he submitted that ingredients of
Section 13(1)(e) of Bombay Rent Act has been fully established and
satisfied by landlord before trial Court. Therefore, according to
him, trial Court as well as appellate Court has not committed any
error of law, therefore, this Court cannot interfere while exercising
power under Section 29(2) of Bombay Rent Act. He submitted that this
Court is having very limited jurisdiction, cannot re-appreciate
evidence which are on record and according to him, unless finding is
given by both below Courts if it is found to be perverse, then only
this Court can interfere in such revision application. But he
submitted that petitioner has not established before this Court that
finding given by Courts below is perverse in any manner.
6. I
have considered submissions made by both learned advocates appearing
for respective parties and also perused judgment and decree passed by
both below Courts.
7. Brief
facts of present Civil Revision Application are that the plaintiff is
landlord of suit premises which was rented to defendant No.1 for his
personal use by preparing rent note dated 29.11.1961 while fixing
rent at Rs.30/- per month. Thereafter, on the basis of relation,
monthly rent has been reduced from Rs.30/- to Rs.22.50. This property
was rented to defendant No.1 by Pyarali Jesa. But subsequently, the
suit premises has been sublet or handed over to defendant No.2
(present petitioner) as a sub-tenant by defendant No.1. Therefore,
notice has been served to defendant No.1 dated 23.2.1981 which was
replied by defendant No.1. The arrears of rent due from defendant
No.1. w.e.f. 1.7.1981 to 31.3.1983 which total amount comes to
Rs.472.50 ps. Therefore, tenant was arrears in rent. The right of
tenancy has been transferred and assigned in favour of respondent
No.2. Therefore, suit has been filed by landlord against defendant
Nos.1 and 2. The defendant No.1 has filed written statement before
trial Court vide Exh.9 and defendant No.2 has filed written statement
vide Exh.17. According to case of defendant No.2 – present
petitioner that defendant No.1 was never be a tenant and this suit
has been filed by landlord with a collusion of defendant No.1.
Therefore, it was a specific case or defence of present petitioner
before trial Court that defendant No.1 was not at all tenant in suit
premises. Therefore, question of transferring or assigning rights of
tenancy in favour of present petitioner does not arise. According to
defendant No.2 – present petitioner, he was residing in the suit
premises since his father was residing in the year 1950-1951. At that
occasion, this suit premises was in the control and administration of
custodian. The father of present petitioner – defendant No.2
was working in police department and on that basis, he was residing
in suit premises and rent was deducted by landlord from salary of
father of present petitioner. This suit premises was purchased by
Chandumal from custodian. Therefore, present petitioner –
defendant No.2 become legal tenant of landlord Chandumal. This suit
premises / property was sold to present plaintiff is father Pyarali
Jesa by Chandumal in the year 1960-1961. According to defendant No.2,
defendant No.1 was a guarantor or surety for giving regular rent to
landlord.
8. The
issues have been framed by trial Court vide Exh.18 where it has been
proved before trial Court that suit property has been given on rent
to defendant No.1 means defendant No.1 was tenant of suit premises.
That fact has been proved by plaintiff before trial Court and
defendant No.1 was tenant in arrears and rent has been found to be
due of more than 6 months and after receiving notice from landlord,
this due rent has not been paid by defendant No.1. The issue in
respect of subletting has also been proved by plaintiff while leading
proper evidence on record as well as producing evidence on record.
The finding given by trial Court that rent note was executed between
landlord and defendant No1. Therefore, defendant No.1 is considered
to be legal tenant of suit premises. But at the time of filing suit,
defendant No.2 is having exclusive possession of suit premises. The
trial Court has considered rent note which was proved before trial
Court at Exh.52 and on that basis, trial Court has come to conclusion
that defendant No.1 is only tenant of suit premises. At the time when
property was purchased by plaintiff from earstwhile owner of the
property, there was no mention about tenant in suit premises.
Thereafter, vide Exh.52 a rent note was executed between landlord and
defendant No.1. Therefore, after appreciating evidence on record, the
trial Court has come to conclusion that defendant No.1 is tenant of
suit premises. The defendant No.2 – present petitioner has not
proved the fact before trial Court that he was a tenant of suit
premises. On the basis of record and evidence, it has been clearly
proved and established by plaintiff that suit premises is now in
exclusive possession of defendant No.2. The real reason is that
mother of defendant No.2 was working in the suit premises for serving
to defendant No.1. Therefore, suit premises was given for some
accommodation to mother of defendant No.2. But, thereafter mother of
defendant No.2 has stopped working with defendant No.1. Therefore,
possession of suit premises of present petitioner – defendant
No.2 is considered to be a subletting and not as a right of tenant.
The plaintiff has proved his case on the basis of Exh.52 where rent
note has been executed between plaintiff- defendant No.1 and there is
no document which has been executed by landlord in favour of
defendant No.2. Therefore, exclusive possession of suit premises of
defendant No.2 it amounts to transferring and assigning tenancy right
by defendant No.1 in favour of defendant No.2. Therefore, question of
valuable consideration in terms of monetary does not arise in each
case because transfer and assign must
be based on some social obligation, relation and for any other
reasons which considered to be valuable consideration. The social
consideration for accommodation for possession of suit premises to
the mother of defendant No.2 has been established by plaintiff. The
mother of defendant No.2 was working in the house of tenant –
defendant No.1. For that some time during that period, accommodation
has been given to mother of defendant No.2 in suit premises.
Therefore, trial Court has rightly considered evidence on record and
rightly appreciated rent note at Exh.52
and tenant was remained in arrears after receiving notice. No due
rent has been paid to landlord by defendant No.1. Therefore, trial
Court has not committed any error of law or finding which has been
given by trial Court is not contrary to law and perverse.
9. The
appeal preferred by petitioner has been examined by appellate Court
and appellate Court has re-appreciated evidence on record and come to
conclusion that on the contrary, on the basis of evidence it goes to
show that defendant No.2 was not residing in the suit premises as a
tenant of the plaintiff. If the defendant No.2 was residing in the
suit premises since last 1950-1951, he would have in possession of
rent note or rent receipts but, nothing has been produced by him to
establish his tenancy rights over the suit premises. Merely producing
documentary evidence to establish tenancy rights, assessment made by
Municipality for the year 1980 at Exh.46 but, on that basis no
tenancy rights in favour of defendant No.2 can be created. From the
sale deed which was produced by plaintiff vide Exh.26, it transpires
that seller had handed over peaceful and vacant possession to the
purchaser – deceased plaintiff (Pyarali Jesa). Therefore, on
27.11.1961, there was no tenants in the suit premises. If the defence
of defendant No.2 is to be believed, then it must have been mentioned
in sale deed at Exh.26 the presence of defendant No.2, who was
residing in suit premises on 27.11.1961. In sale deed at Exh.26, this
fact was not mentioned. Therefore, it falsified the claim of
defendant No.2 as a tenant of the suit premises. In result, defendant
No.2 is not able to establish his tenancy rights over the suit
premises. It is a clear finding of fact found from records
considering documentary evidence as well as admission of defendant
No.1 himself that defendant No.1 was the tenant of plaintiff and he
had hired the suit premises for the purpose of residence of mother of
defendant No.2 because she was working with defendant No.1. Thus, it
is clearly proved that defendant No.1 was tenant of the suit
premises. Merely because defendant No.1 had hired the suit premises
for the residence of mother of defendant No.2, it cannot be said that
defendant No.2 becomes tenant of suit premises. Considering admission
made by defendant No.1 that he has assigned possession of suit
premises to defendant No.2 without consent of plaintiff. The
defendant no.1 has sublet or assigned or transferred the suit
premises to defendant No.2. Therefore, defendant No.1 has committed
breach of terms of agreement and defendant No.2 has no tenancy rights
over suit premises.
10. In
view of aforesaid reasoning given by appellate Court after
re-appreciating oral as well as documentary evidence and admission
made by defendant no.1, the finding of fact has been recorded by both
below Courts and entire matter has been examined by Courts below on
the basis of facts. No question of law has arisen and involved while
deciding suit by trial Court as well as appeal by appellate Court. No
contention has been raised by defendant No.2 before trial Court that
valuable consideration was not there while transferring or assigning
right of tenancy in favour of defendant No.2 by defendant No.1. The
ingredients of Section 13(1)(e) of Bombay Rent Act has been fully
established and justified on the basis of records produced before
trial Court by plaintiff. The decisions which have been relied upon
by learned advocate Mr.Thakkar are not applicable to peculiar
undisputed exclusive possession of present petitioner as facts of
this case because facts have been found from record, is otherwise.
Therefore, contentions which have been raised by learned advocate
Mr.Thakkar cannot be accepted. In this case, there is concurrent
finding of facts from Courts below. After considering reasoning given
by Courts below as well as appreciation of evidence by both below
Courts, according to my opinion, both Courts below have not committed
any error of law or view taken by Courts below is not contrary to
law. This Court is having a limited jurisdiction under Section 29(2)
of Rent Act, cannot re-appreciate the evidence which was already
appreciated by Courts below. The concurrent finding of fact, this
Court cannot disturb in revision application. Therefore, in such
circumstances, the view taken by Apex Court in case of Patel Valmik
Himatlal and Others v. Patel Mohanlal Muljibhai, reported in (1998) 7
SCC 383 in Para.4, 5 and 6 are relevant, which is quoted as under :
“4.
Section 29(2) of the Bombay Rents Act as applicable to Gujarat
amendment reads as follows :-
“29(2).
No further appeal shall lie against any decision in appeal under
sub-section (1) but the High Court may, for the purpose of satisfying
itself that any such decision in appeal was according to law, call
for the case pass such order with respect thereto as it thinks fit.”
5.
The ambit and scope of the said section came up for consideration
before this Court in Helper Girdharbhai vs. Saiyed Mohmad Mirasaheb
Kadri and others: (1987) 3 SCC 538 and after referring to a catena of
authorities, Sabyasachi Mukharji, J. drew a distinction between the
appellate and the revisional jurisdictions of the courts and opined
that the distinction was a real one. It was held that the right to
appeal carries with it the right of rehearing both on questions of
law and fact, unless the statute conferring the right to appeal
itself limits the rehearing in some way, while the power to hear a
revision is generally given to a particular case is decided according
to law. The Bench opined that although the High Court had wider
powers than that which could be exercised under Section 115 of the
Code of Civil Procedure, yet its revisional jurisdiction could only
be exercised for a limited purpose with a view to satisfying itself
that the decision under challenge before it is according to law. The
High Court cannot substitute its own findings on a question of fact
for the findings recorded by the courts below on reappraisal of
evidence. Did the High Court exceed its jurisdiction ?
6.
The powers under section 29(2) are revisional powers with which the
High Court is clothed. It empowers the High Court to correct errors
which may make the decision contrary to law and which errors go to
the root of the decision but it does not vest the High Court with the
power to re-hear the matter and re-appreciate the evidence. The mere
fact that a different view is possible on re-appreciation of evidence
cannot be a ground for exercise of the revisional jurisdiction.”
10.1 This
Court, in the case of Manjibhai Shamjibhai, owner of Maheshkumar &
Co. v. Natraj Theatre & Anr., reported in 1999 (1) GLH 749,
examined aforesaid aspect. Relevant observations of aforesaid
judgment are in Para.8, 9, 12 and 13, which are quoted as under :
8. This
Court in Kusumben wd/o Vasantlal & Others Vs.Shrenikbhai
Kasturbhai & Others, 1998(2) GLH 426 also took similar view.
In view of the Apex Court’s verdict interference by the High
Court in revision of this nature can be done only for a limited
purpose of correcting errors of law in the judgments of the two
Courts below. It has therefore, to be seen whether the judgments
and decrees of the Courts below are in accordance with law or not.
Finding of fact howsoever erroneous cannot be corrected in
revision of this nature. At the same time, it is also difficult
to accept the contention that the revisional Court is debarred from
perusing the evidence adduced by the parties. Perusal of
evidence of the parties is permissible for a limited purpose
for satisfying whether it is a case of misreading of evidence or that
the finding is based on evidence which is totally inadmissible. To
this extent perusal of evidence is possible. Likewise perusal of
evidence is possible if conjectural findings have been recorded by
the two Courts below, otherwise, normally interference in revision
on concurrent findings of fact and law is not permissible.
9. So
far as the question of arrears of rent is concerned, decree on
this point has not been challenged by the learned Counsel for
the revisionist. If the decree for eviction on this ground is to
be confirmed, more particularly, when the tenant in chief has
not contested this revision and further in case the
revisionist is found to be subtenant he has to go along with the
tenant in chief and his independent rights cannot be entertained
at this stage.
13. For
establishing subtenancy, the landlord has to establish two things.
The first is transfer of exclusive possession to the alleged
subtenant and the second is that such transfer should be for valuable
consideration. Valuable consideration need not necessarily mean
cash consideration in the shape of rent. Once transfer of
exclusive possession is established the Court can, on the facts and
circumstances of the case, draw inference that such transfer was for
valuable consideration. Reason for drawing such inference is that it
is almost impossible for the landlord to establish by direct
evidence payment of rent by subtenant to the tenant in chief in as
much as such contract is always secret and the landlord remains
unaware of such contract. However, the question of establishing
valuable consideration does not arise in the remaining two
contingencies as contemplated in section 13 viz. transfer or
assignment otherwise. But even in these contingencies the landlord
has to prove that exclusive possession of the demised premises was
transferred by the tenant in chief to the subtenant.
13. Mr.V.C.Desai
has rightly argued that in this case, on the basis of
evidence on record and the circumstances emerging from the
evidence on record it is established that it was a case of transfer
of exclusive possession and payment of rent by subtenant to the
tenant in chief is also established. As referred to above in the
pursish, exhibit 20 filed by the tenant in chief he admitted that
the revisionist was his subtenant. Mr.Shah has argued that this is
collusive transaction between the parties, but rightly the two
Courts below have repelled this contention. The revisional Court
will be reluctant in substituting its own findings abruptly
without any evidence that this transaction was collusive transaction.
Admission of the tenant in chief in pursish is best evidence
against the maker viz. the defendant no.1 that he had illegally
sublet the suit accommodation without consent or permission of the
landlord to the revisionist. Admission is the best piece of evidence
against its maker unless it is explained to be erroneous or
mistaken. Since the tenant in chief did not contest the suit his
offering any explanation that his admission was either erroneous
or mistaken did not arise. In addition to this the rent receipts
were issued in the name of the defendant no.1 who was said
to be paying rent to the landlord. There is categorical finding
recorded by the two Courts below that the relationship of
landlord and tenant between the plaintiff and the defendant no.1 is
established and the defendant no.1 committed default in payment of
six months rent on the date of service of notice. If this is
so, then the question of revisionist being licensee stands ruled
out. If the revisionist alleges to be in possession then it is
for him not only to disclose but to establish by cogent evidence in
what capacity he is in possession. The payment of rent at the rate
of Rs.250/- p.m. by the defendant no.2 to the defendant no.1
is also borne out from the concurrent findings on record.
This, therefore, establishes the second ingredient viz. transfer or
exclusive possession for valuable consideration. There is also
indication from the evidence on record that the revisionist admitted
that he is carrying on exclusive business in the demised premises
and that the tenant in chief had absolutely no interest in the
business. It therefore, implies that the tenant in chief had parted
with exclusive possession of the demised premises and he had
no control over the business and had lost his interest in the
disputed accommodation. This also amounts to transfer of
exclusive possession in favour of the revisionist.”
11.
In view of above observations made by Apex Court as well as this
Court and considering reasoning and finding given by Courts below
which found according to law and no error of law committed by Courts
below which requires interference by this Court while exercising
power under Section 29(2) of Rent Act. Therefore, there is no
substance in present Civil Revision Application. Accordingly, present
Civil Revision Application is dismissed. Rule is discharged. Interim
relief, if any, granted earlier stands vacated. No order as to costs.
R & P to be sent back forthwith to Courts below.
12.
However, time is hereby granted in favour of petitioner for
vacating suit premises for a period of three months from date of
receiving copy of present judgment and order.
13. In
view of aforesaid order, Civil Application 4315 of 2002 does not
survive and disposed of accordingly. Rule is discharged.
[
H.K.RATHOD, J. ]
(vipul)
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