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CRA/196/1993 45/ 45 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
REVISION APPLICATION No. 196 of 1993
WITH
CIVIL
APPLICATION No. 10830 of 2005
IN
CIVIL
REVISION APPLICATION No. 196 of 1993
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.A.PUJ Sd/-
===================================
1.
Whether
Reporters of Local Papers may be allowed to see the judgment ?
YES
2.
To
be referred to the Reporter or not ?
YES
3.
Whether
their Lordships wish to see the fair copy of the judgment ?
NO
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 ?
NO
5.
Whether
it is to be circulated to the civil judge ?
NO
===================================
PATEL
KANJIBHAI AMBALAL & 7 – Applicants
Versus
MODI
MANJULABEN BABULAL WD/O.BABULAL CHUNILAL – Opponents
===================================
Appearance
:
MR
KV SHELAT WITH MR SURESH M SHAH for Petitioners.
MS JIRGA D
JHAVERI for Opponents.
===================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 22/10/2010
CAV JUDGMENT
The
petitioners – original defendants have filed this Civil
Revision Application under Section 29 (2) of the Bombay Rent Control
Act challenging the judgment and order dated 13.11.1992 passed by
the learned Extra Assistant Judge, Mehsana Camp at Patan in Regular
Civil Appeal No. 70 of 1989 dismissing the said appeal and
confirming the judgment and order passed by the learned Trial Judge
on 31.07.1989 in Regular Civil Suit No.181 of 1983. The learned
Trial Judge has directed all the defendants to hand over the vacant
and peaceful possession of the suit shop to the respondents who are
the legal heirs of the original plaintiff.
This Civil
Revision Application was admitted and rule was issued on 18.06.1993.
At the time of admission of the Civil Revision Application, the
Court has passed detailed order observing therein that the Trial
Court’s finding is that the partnership is sham and bogus and on
that point, reliance was placed on Clause 19 in the Partnership Deed
at Exh.76. On reading the Partnership Deed as a whole, it is clear
that it is not a clear cut clause specifying that the original
tenant i.e. defendant No.3 has thrown the tenancy rights of the suit
shop expressly in the assets of the firm. However, Clause 19 speaks
about the cooperation to be given by the said defendant whenever the
suit rent note is to be transferred in the name of the firm. There
is also Clause 20 which says that if at all the landlord files a
suit for the purpose of possession, partner No.4 i.e. the tenant
Ambalal Prabhudas will have to bear expenses. Therefore, that
Clause has not been considered at all by the learned Appellate
Judge. The Court was, therefore, of the view that the present Civil
Revision Application requires some consideration by this Court. The
Court has also prima facie found that if at all it was the asset of
the partnership firm, then, it was not necessary to put this clause
because when the partnership firm is getting benefits of tenancy
rights, why partner No.4 alone should bear the expenses. That
indicates that still the tenancy rights are intact with the
defendant No.3. But that aspect requires consideration. The Court
has also considered the point that the Appellate Court has confirmed
the finding with regard to the bonafide and reasonable requirement
of the plaintiff and the point of hardship is also answered in
favour of the plaintiff under the inference on the point of
subletting and bogus partnership. The Court, therefore, granted
interim relief against eviction.
Civil
Application No.10830 of 2005 is filed by the applicants –
original petitioners seeking permission to produce the documents
referred to in the Civil Application and to consider the changed
circumstances pleaded. Alternatively, it is prayed that the matter
may be sent to the lower Court for re-trial and for consideration of
the additional evidence in the interest of justice. The additional
evidence sought to be produced are (1) an order passed by the Income
Tax Officer under Section 185 (1) of the Act on 05.09.1986 and (2)
the Income-tax returns of Shri Laxmi Plywood Center for A.Y. 1991-92
along with statement of income. This application was strongly
opposed by the learned advocate appearing for the respondents.
The brief
facts giving rise to the present Civil Revision Application are that
the suit property is suit shop situated in village Patan in
Hinglachachar area, Tika No.111/2, Survey No.12, ground floor
Municipal Census No.1/6/12. As per the case of the plaintiff –
landlord, the defendant No.1 firm in the name of Patel Kanjibhai
Ambalal and Company was doing the business at Patan and its
partners, defendant Nos.2 & 3, namely, Mulchandbhai Valabhai and
Patel Ambalal Prabhudas had taken on rent the suit shop from the
plaintiff on 03.12.1973 for 11 months and 29 days, with monthly rent
of Rs.100/-. The tenant had to pay rent regularly with municipal
tax and Govt. tax of the suit shop. The suit shop was taken on rent
for running the business of grocery shop. There was a clear cut
term that after expiration of the lease period, the tenant had to
give possession back to the landlord and the tenant had not to
sublet, assign or transfer the suit shop etc. The tenant had not
handed over the possession of the suit shop as per the terms of the
rent note and hence, the tenant became statutory tenant. The
defendant Nos.2 & 3 have thereafter closed the business of
grocery and have sublet the suit shop to defendant No.4 Laxmi
Plywood Center and their Partners. The have handed over the
absolute and exclusive possession of the suit shop to defendant No.4
and its partners. The defendant Nos.2 & 3, therefore, have lost
the protection as tenant. The business of the suit shop was also
changed from grocery to selling materials of construction. Thus,
the plaintiffs have demanded possession of the suit shop under
Section 13 (1) (a) of the Rent Control Act. The plaintiffs have
also demanded the possession of the suit shop under Section 13 (1)
(g) for reasonable and bonafide requirement as plaintiff’s son was
major and he was not keeping good health and the plaintiff was also
an aged person. The defendant Nos.1 to 3 had paid rent upto
02.01.1983 and they were tenants in arrears of rent for more than
six months. The tenancy was, therefore, terminated. The defendant
Nos.4 to 8 are not the tenants of the suit shop and they have no
legal right. Since they were in physical possession of the suit
shop, the defendants were served with notice dated 15.07.1983 and
thereafter the plaintiffs have filed the suit to recover vacant and
peaceful possession of the suit shop from all the defendants and
Rs.1,000/- for arrears of rent from the defendant Nos.1 to 3 and
demanded mesne profits upto the date of receiving possession.
It appears
from the record that the defendant Nos.1 & 2, though were duly
served, remained absent and hence, ex-parte decree was passed
against them. The defendant Nos.3 to 8 had filed their written
statement at Exh.12 and have raised several disputes. As per the
defence raised by the defendants, the defendant No.3 was the subject
tenant and he had not sublet the suit property to the defendants.
The defendant No.3 was in physical possession of the suit property
and he was doing the business in the name of defendant No.4 firm,
namely, Laxmi Plywood Center. The defendant Nos.5 to 8 are partners
with defendant No.3 in the partnership firm of defendant No.4. They
have also raised a defence that the plaintiffs have fixed the rent
at Rs.100/- per month which is exclusive and previously the rent of
the suit was less. Hence, they have also made the request to fix
the standard rent. It is also their defence that the original
partnership had come to an end on 06.09.1980 and thereafter, the
defendant No.3 became sole owner of the firm. The defendant No.3
alone continued the business in the suit shop and since he was not
successful in the business and suffered financial loss, he had
started the business in partnership from 11.02.1983 in the name of
M/s. Laxmi Plywood Center and started business of hardware, plywood,
glassware etc. The defendant Nos.5,6 & 7 were partners along
with defendant No.3 and the defendant No.8 was minor at that time.
Hence, he was admitted to the benefits of the partnership. The
defendant No.8 after he became major, was made the partner in the
partnership firm. It is also their defence that the defendant No.3
was continued even after expiration of the period of rent note and
under the consent of the plaintiff. The defendant No.3 had not
sublet, transferred or assigned the possession of the suit shop as
alleged by the plaintiff. They have also raised the defence that
the plaintiff was not physically weak and he was in service in the
Ganj Bazaar with Dalal Nagardas Firm. They have sufficient income
to maintain their family and they are not required the possession of
the suit shop for business for himself or his son. The plaintiffs
wanted more rent and the defendants had refused to increase the rent
and it is only because of that, a false suit was filed against them.
The Trial
Court after framing issues at Exh.14 and after appreciating the oral
as well as documentary evidence on record had come to the conclusion
that the defendant Nos.1 to 3 are tenants of suit property and the
plaintiffs have proved that defendant Nos.2 & 3 have sublet,
transferred and assigned the suit premises to defendant Nos.4 to 8.
The Trial Court has further held that the plaintiffs have proved
that the possession of the suit shop is required by them reasonably
and bonafide for business. The Trial Court further held that the
defendant No.3 had failed to prove that defendant Nos.5 to 8 are
partners and doing business in partnership firm with him. Thus, the
Trial Court had granted possession decree in favour of the
plaintiffs – landlord.
This judgment
and decree was confirmed by the learned Extra Assistant Judge,
Mehsana in Regular Civil Appeal No.70 of 1989 and the defendants
were directed to hand over the vacant and peaceful possession of the
suit shop to the plaintiffs.
It is this
order which is under challenge in the present Civil Revision
Application.
Mr. Suresh M.
Shah, learned advocate appearing with Mr. K. V. Shelat for the
petitioners has submitted that the plaintiff – landlord has
got other premises where he was actually residing and there was no
existing bonafide need of the landlord to occupy the suit premises
and the landlord has not led any evidence worth its name. The lower
Appellate Court has misread and misunderstood the documentary
evidence consisting of the books of accounts of defendant No.1 firm
which clearly shows that the defendant No.3 is a genuine partner of
defendant No.4 and the legal possession of the suit premises have
not been parted with at all. He has further submitted that the
lower Appellate Court has given undue weightage to the evidence of
the plaintiff and has drawn illegal presumptions inferences which
are in the nature of conjectures. The lower Appellate
Court has considered the question of bonafide and reasonable
personal requirement and hardship from a wrong angle and applied a
wrong test to decide the said question. There is nothing on record
to show that alternative accommodation is available to the
defendants. There is no bonafide and reasonable personal
requirement on the part of the plaintiffs to occupy the suit
premises. The concept of legal possession and parting with
possession as contemplated under Section 13 (1) (e) of Rent Control
Act has not been correctly appreciated by the lower Appellate Court.
The defendant No.1 firm was a registered partnership firm paying
income tax and the sale tax and also taken huge loan from the Banks
and in all departments, the defendant No.3 is shown and has acted as
the legal partner of the firm. He has, therefore, submitted that
the judgment and decree passed by the lower Courts are absolutely
erroneous, improper and unjust and, therefore, require to be set
aside.
In support of
Civil Application filed for production of additional evidence, Mr.
Shah relied on the decision of the Apex Court in the case of Adil
Jamshed Frenchman (Dead) by Lrs., V/s. Sardar Dastur Schools Trust
and others, (2005) 2 SCC 476, wherein it is held that while
considering the bonafide requirement of landlord, subsequent events
are required to be taken into consideration. Production of
additional evidence before the Appellate Court is permissible.
Eviction suit based on bonafide need of landlord and decree was
passed on that ground. Tenant in appeal seeking to adduce two
documents which came into existence after passing of said decree,
and third document relating to correspondence of landlord with third
parties, it is held that document sought to be produced by tenant
were material and if substantiated, would have a material effect on
the case of the landlord of their bonafide need of the suit
premises. One document relating to sale of suit premises by
landlords, second to a change in construction plans from those
placed before Trial Court to establish bonafide need, the change
being the decision not to demolish superstructure raised by tenant,
and third document indicating lack of funds for said construction on
the part of landlord. Correspondence entered into by landlord with
a third party could not have been within knowledge of tenant and the
other two documents having come into existence after decree of trial
court, tenant’s statement that said documents could not have been
produced before trial court, inspite of exercise of due diligence,
is accepted as credible. In such circumstances, the High Court
under Section 115 of Code of Civil Procedure was not justified in
interfering with the discretion exercised by the first Appellate
Court, permitting production of additional evidence.
In the case of
Wadi V/s. Amilal and others, JT 2002 (6) SC 16, it is held
that Rule 27 deals with production of additional evidence in the
appellate Court. The general principle incorporated in sub-rule (1)
is that the parties to an appeal are not entitled to produce
additional evidence (oral or documentary) in the appellate court to
cure a lacuna or fill up a gap in a case. The exceptions to that
principle are enumerated thereunder in clauses (a), (a) and (b). If
the appellate court requires any document to be produced or any
witness to be examined to enable it to pronounce judgment, it may
allow such document to be produced or witness to be examined. The
requirement or need is that of the appellate Court bearing in mind
that the interest of justice is paramount. If it feels that
pronouncing a judgment in the absence of such evidence would result
in a defective decision and to pronounce an effective judgment
admission of such evidence is necessary, clause (b) enables it to
adopt that course. Invocation of clause (b) does not depend upon
the vigilance or negligence of the parties for it is not meant for
them. It is for the appellant to resort to it when on a
consideration of material on record, it feels that admission of
additional evidence is necessary to pronounce a satisfactory
judgment in the case.
In support of
his submission that creating of partnership and use of the suit
premises by the firm and other partners along with the petitioner,
would not amount to subletting, Mr. Shelat relied on the following
decisions :-
In the case of
Helper Girdharbhai V/s. Saiyed Mohmad Mirasaheb Kadri and others,
(1987) 3 SCC 538 wherein it is held that the tenant becoming a
partner of the partnership firm and allowing the firm to carry on
business in the demised premises while himself retaining the legal
possession thereof, does not amount to subletting.
In the case of
Mohmmedkasam Haji Gulambhai V/s. Bakerali Fatehali (Dead) by
Lrs., (1998) 7 SCC 608, it is held that on the question of
subletting etc. law is now very explicit. There is prohibition in
absolute terms on the tenant from subletting, assignment of
disposition of his interest in the tenanted premises. Clause (e) of
Section 13(1) of the Act is couched in widest terms. There is
absolute prohibition on the tenant from subletting, assigning or
transferring in any other manner his interest in the tenanted
premises. There appears to be no way around this subject of course
if there is any contract to the contrary between the landlord and
the tenant. In partnership where tenant is a partner, he retains
legal possession of the premises as partnership is a compendium of
names of all the partners. In partnership the tenant does not divest
himself of his right in the premises.
In the case of
Shah Chatrabhuj Narshi and another V/s. Nensibhai Shavanjibhai
Gohil and another, 1980 (21) GLR 377, the Division Bench of this
Court has held that the real crux of the problem under Section 13
(1) (e) of the Rent Act, is whether the tenancy rights are thrown
into partnership assets or for that matter any interest is created
therein in favour of the incoming partners. The question has to be
decided in accordance with the Transfer of Property Act and the
Bombay Rent Act. The Court further held that the real test is the
intention of the parties, and if the document creates an interest in
the property, it is a lease, and the factum of exclusive possession
of a property by a person, prima facie, indicates that he is
a tenant. The test of exclusive possession, therefore, cannot be
conclusive. Ultimately, it is the intention of the parties, whether
they intend to create an interest in the property and that would be
determined along with the other circumstances when a question arises
whether a lease or sub-lease is created or not.
In the case of
M/s. Madras Bangalore Transport Company (West) V/s. Inder Singh
and others, AIR 1986 SC 1564, it is held that there was no
subletting, assignment or parting with possession of the premises by
the firm to the Limited Company so as to attract Section 14 (1) (b).
The firm continued to be in occupation of the premises even after
the private limited company came in. The firm never effaced
themselves. The firm allowed the private limited company to
function from the same premises but the private limited company,
though a separate legal entity, was in fact a creature of the
partners of the firm and was the very image of the firm. The
limited company and the partnership firm were two only in name but
one for practical purposes. There was substantial identity between
the limited company and the partnership firm. As such even though
the firm and company were distinct legal entities there was no
subletting or assignment etc.
In the case of
Mehta Jagjivan Vanechand V/s. Doshi Vanechand Harakhchand and
others, 1971 (2) GLR 487, wherein this Court has held that
merely because the tenant continues to carry on the business in the
same shop as hither to, but takes in two partners, the legal
possession of the shop does not change hands. Legal possession is a
concept which must be distinguished from the concept of physical
occupation or user. One who occupies or uses a premises is not
necessarily in legal possession of the premises. Even if the
partners of the firm attend the shop and do business along with the
tenant, it cannot be said that they are in legal possession of the
shop. Therefore, taking in a partner in a business does not amount
to subletting the premises. Subletting postulates two distinct
persons – the head tenant and the sub-tenant. Their rights
and obligations are different. One cannot be one’s own sub-tenant.
If the transaction of taking in partners constitutes subletting, the
tenant will be head-tenant and he himself along with his two
partners will be the sub-tenants. The Court took the view that
there had been no assignment or subletting in favour of the partners
of the firm by the tenant so as to attract the bar of Section 13 (1)
(e) of the Saurashtra Rent Control Act.
In support of
his submission that grant of relief dehorse the pleadings in the
plaint is impermissible, Mr. Shelat relied on the following
decisions :-
In the case of
Sayed Muhammed Mashur Kunhi Koya Thangal V/s. Badagara
Jumayathpalli Dharas Committee and others, (2004) 7 SCC 708 wherein
it is held that when the plaintiff came forward specifically
pleading that he was entitled to declaration of title and for
recovery of possession of the plaint schedule property based on the
agreement deed, it could succeed only on the basis of validity of
that document and the validity of transfer of mutawalliship in its
favour. Since all the Courts have concurrently found that
mutawalliship could not be validly transferred in favour of the
plaintiff Committee under the said document, the suit filed by the
plaintiff ought to have been dismissed. The plaintiff could only
succeed on the strength of its case and not on the weakness found in
the case of the defendant, if any. Even otherwise, the finding of
the High Court on question 3 cannot be sustained when such a case
did not arise for consideration in the absence of necessary pleading
in the plaint in that regard.
In the case of
State Bank of India and others V/s. S. N. Goyal, (2008) 8 SCC 92
wherein it is held that in absence of appropriate pleading on a
particular issue, there can be no adjudication of such issue.
Adjudication of a dispute by a Civil Court is significantly
different from exercise of power of judicial review in a writ
proceedings by the High Court. In a writ proceedings, the High
Court can call for record of the order challenged, examine the same
and pass appropriate orders after giving an opportunity to the State
or the statutory authority to explain any particular act or
omission. In a civil suit, parties are governed by rules of
pleadings and there can be no adjudication of an issue in the
absence of necessary pleadings. The Court further held that the
Code of Civil Procedure contains appropriate provisions relating to
interrogatories, discovery and inspection (Order 11, Rules 1, 12 and
15) to gain access to relevant material available with the other
party. A party to a suit should avail those provisions and if any
new ground becomes available on the basis of information secured by
discovery a party can amend its pleadings and introduce new facts
and grounds which were not known earlier. The difficulty in
securing relevant material or ignorance of existence of relevant
material will not justify introduction of such material at the stage
of evidence in the absence of pleadings relating to a particular
aspect to which the material relates. If a party should be
permitted to rely on evidence led on an issue / aspect not covered
by pleadings, the other side will be put to a disadvantage.
In the case of
Vasudev Dhanji Varu – Decd. Through heirs and
representative and others V/s. Bhogilal Manohardas Vaishnav, 1998
(1) GLH 728 wherein it is held that no evidence can be looked
into for establishing a fact not pleaded. The Court cannot grant
relief to the plaintiff on a case for which there was no foundation
in the pleadings and which the other side was not called upon or had
an opportunity to meet with.
In the case of
Abdul Samad Makhadum Baksh Sheikh and etc. V/s. Sau Sudha Anant
Parakhe, AIR 1982 BOMBAY 585 wherein it is held that it is
elementary in civil cases that no party should be taken by surprise
and whatever case he has, has to be made out in the pleadings so
that the defendant or the adversary has an adequate and reasonable
opportunity to meet that case. In the absence of any such pleading,
the adversary would not be in a position to meet such a case. No
case, which is not pleaded in civil cases, is or can be allowed to
be made out by any amount of evidence. Such evidence has really to
be ignored.
In the case of
Hemaji Waghaji Jat V/s. Bhikhabhai Khengarbhai Harijan and
others, (2009) 16 SCC 517, the appellant – plaintiff filed
a suit for permanent injunction to declare him as the lawful owner
and occupier in respect of the suit land. The appellant though was
in forcible possession of the suit land since 1960 till the decision
of the Trial Court in 1986, neither pleaded adverse possession nor
did the trial court frame an issue of adverse possession. The
appellant – plaintiff also failed to prove his title over the
suit land before the first appellate court and the High Court in
Second appeal. The Apex Court while dismissing the appeal held that
a person who basis his title on adverse possession must show by
clear and unequivocal evidence that his title was hostile to the
real owner and amounted to denial of his title to the property
claimed. The ordinary classical requirement of adverse possession
is that it should be established that the possession required must
be adequate in continuity, in publicity and in extent to show that
it is possession adverse to the competitor.
Ms. Jirgha D.
Jhaveri, learned advocate appearing for the respondents –
landlord submitted that there are concurrent findings in favour of
the plaintiffs. The plaintiffs require the suit premises for
personal occupation. The rented premises where the original
plaintiffs and family reside are not sufficient to accommodate them.
While the tenant is not using the suit premises personally and has
sublet the same to a firm dealing in Plywood. She has, therefore,
submitted that no such indulgence be given to the petitioners,
particularly in view of the fact that they have not deposited any
rent since 12.01.1993 and have committed breach of the general
condition of payment of rents every month. She has further
submitted that in view of the fact that they have committed default
in not depositing the rents since January 1993, they are deemed to
have lost protection of stay and execution and hence, the Civil
Revision Application deserves to be rejected. Apart from the
bonafide personal requirement, the decree is passed for eviction for
unlawful and subletting and hence, the Civil Revision Application
ought not to be entertained and allowed. As regards occupation for
personal requirement, the material facts are that the original
plaintiffs required the suit premises to carry on business in the
front part and reside in the back part of the house. At present,
the respondent No.1 is serving whereby he is not able to meet the
needs of the family and he also requires to carry on business in the
shop. The same requirement continues and, therefore, the Civil
Revision Application should not be entertained or allowed by this
Court. She has further submitted that there is no substance in the
plea of challenging the findings in this Civil Revision Application
as there are concurrent findings of facts. No person should suffer
due to delay caused in Court proceedings and the petitioner –
tenant should not be allowed to take advantage from the fact of
inability of the Court to decide the same suit. The respondent No.1
being the grandson of the original plaintiff, is not in any
established job to enable him to match with the needs and
requirements of the family. She has, therefore, submitted that the
requirement to have his own business is paramount consideration and
he should not be compelled to carry on service. The Courts below
have decided the subletting issue after considering the evidence
taken on record. The personal bonafide requirement means it is for
himself, family members and his HUF. The respondent No.1 is not
much educated. The shop is situated in prime location at Patan
where he can start small business and on the back side, his family
can stay. At present, he is not having any suitable accommodation
and he has to stay in rented premises. She has, therefore,
submitted that the Civil Revision Application should not be
entertained. The suit premises remained closed for three years
initially and thereafter, it was sublet to a new partnership firm.
The original tenant – Ambalal Patel and Mulchandbhai Patel are
residing at Rubi village and never come to the suit shop. Even on
this ground, the Civil Revision Application deserves to be rejected.
Ms. Jhaveri in
support of her submission that the original tenant has sublet the
suit premises, relied on the decision of the Apex Court in the case
of Celina Coelhi Pereira (Ms.) and others V/s. Ulhas
Mahabaleshwar Kholkar and others, (2010) 1 SCC 217, it is held
that the legal position that emerges from case law can be summarised
thus
In
order to prove mischief of sub-letting as a ground for eviction
under rent control laws, two ingredients have to be established, (1)
parting with possession of tenancy or part of it by the tenant in
favour of a third party with exclusive right of possession, and (2)
that such parting with possession has been done without the consent
of the landlord and in lieu of compensation or rent.
Inducting
a partner or partners in the business or profession by a tenant by
itself does not amount to sub-letting. However, if the purpose of
such partnership is ostensible and a deed of partnership is drawn to
conceal the real transaction of sub-letting, the Court may tear the
veil of partnership to find out the real nature of transaction
entered into by the tenant.
The
existence of deed of partnership between the tenant and alleged
sub-tenant or ostensible transaction in any other form would not
preclude the landlord from bringing on record material and
circumstances, by adducing evidence or by means of
cross-examination, making out a case of sub-letting or parting with
possession in tenancy premises by the tenant in favour of a third
person.
If
the tenant is actively associated with the partnership business and
retains the control over the tenancy premises with him, may be along
with partners, the tenant may not be said to have parted with
possession.
Initial
burden of proving subletting is on the landlord but once he is able
to establish that a third party is in exclusive possession of the
premises and that tenant has no legal possession of the tenanted
premises, the onus shifts to the tenant to prove the nature of
occupation of such third party and that he (tenant) continues to
hold legal possession in tenancy premises.
In
other words, initial burden lying on the landlord would stand
discharged by adducing prima facie proof of the fact that a party
other than the tenant was in exclusive possession of the premises.
A presumption of subletting may then be raised and would amount to
proof unless rebutted.
Ms. Jhaveri in
support of her submission on bonafide requirement of the landlord,
relied on the following decisions :-
In the case of
Ramkubai (Smt.) Deceased by Lrs. And others V/s. Hajarimal
Dhokalchand Chandak and others, (1999) 6 SCC 540, it is held
while considering the question of bonafide need of the landlord that
the right of individual members of landlord’s family to set up any
independent business can certainly fall within the scope of bonafide
need of landlord. The bonafide need of setting up business of
anybody as son in suit premises cannot be negatived on grounds that
such person, has since the litigation begin, taken up other
employment or work, or that another son already has a business or
that landlord is a partner in another business. The Court held that
the High Court has wrongly confirmed the judgment of First Appellate
Court setting aside the decree of eviction awarded by the Trial
Court.
In the case of
Deep Chandra Juneja V/s. Lajwanti Kathuria (Smt.) Dead through
Lrs., (2008) 8 SCC 497, it is held that while deciding the
bonafide requirement of landlord, the landlord is the best judge of
his requirement. The Courts have no concern to dictate how and in
what manner he should live. It is further held by the Court that
the bonafide need of landlord asserted by prescribed authority,
Appellate Authority and High Court in writ petition does not call
for an interference. There is no illegality, infirmity or error of
jurisdiction. Hence, it is required to be confirmed. It is further
held that the bonafide requirement of landlord is a question of fact
which cannot be gone into by the High Court.
In the case of
Ashok Kumar V/s. Ved Prakash and others, (2010) 2 SCC 264,
the appeal is filed by the appellant – tenant and in this
context, the Court held that it is not in dispute that the original
landlord died during the pendency of the Civil Revision Application
in the High Court. There is a faint argument of the learned counsel
for the appellant that on such date, the requirement of the landlord
had perished. The Court held that there is no merit in this
submission of the learned counsel for the appellant. Looking at the
averments made in the eviction petition, where the original landlord
has categorically pleaded that the requirement was for his son who
presently is the landlord because of the death of the original
plaintiff, the question of abatement of the eviction proceeding
cannot arise at all. That apart, the submission so made by the
learned counsel for the appellant was not even raised by the
appellant before the High Court where the original landlord died and
the respondents have been substituted in his place. The Court,
therefore, did not find any substance in the said submission of the
learned counsel for the appellant – tenant and dismissed the
appeal.
In the case of
Sheshambal (Dead) through Lrs., V/s. Chelur Corporation Chelur
Building and others, (2010) 3 SCC 470, the question before the
Apex Court was whether the proceedings instituted by the deceased
owners of the demise property could be continued by the legal heirs
left by them. The Court observed that it is not disputed that in
the eviction petition, the owners had pleaded their own requirements
for the premises to be occupied by them for residential as well as
commercial purposes. The eviction petition was totally silent about
the requirements of any member of the family of the petitioner
owners left alone any member of their family who was dependent upon
them. That being so, the parties went to trial before the Rent
Controller on the basis of the case pleaded in the petition and
limited to the requirement of the owners for their personal
occupation. The Court further observed that neither before the Rent
Controller nor before the Appellate Authority was requirement in
question was not only the requirement of the petitioner owners of
the premises, but also the requirement of any other member of their
family were dependent upon them or otherwise. Not only that, even
in the petition filed before this Court, the requirement pleaded was
that for the deceased widow owner of the demised premises and not of
any member of her family. Such being the position, the Court found
it difficult to see how the legal representatives of the deceased
can be allowed to set up a case which was never set up before the
Courts below so as to bring forth a requirement that was never
pleaded at any stage of the proceedings. The Court further held
that allowing the legal heirs to do so would amount permitting them
to introduce a case which is totally different from the one set up
before the Rent Controller, the Appellate Authority or even the High
Court. The Court, however, made a distinction and observed that the
position may indeed have been differentiated if in the original
petition the petitioner owners had pleaded their own requirement and
the requirement of any member of their family dependent upon them.
In such a case, the demise of the original petitioners or any one of
them may have made little difference for the person for whose
benefit and bonafide requirement the eviction was sought could
pursue the case to prove and satisfy any such requirement.
Ms. Jhaveri,
lastly, in support of her submission that in view of the concurrent
findings given by both the Courts below, the petitioner –
tenant is not entitled to any relief from this Court, relied on the
following decisions :-
In the case of
S. P. Deshmukh V/s. Shah Nihal Chand Waghajibai Gujarati, (1977)
3 SCC 515 wherein it is held that the High Court should not
under Article 227 of the Constitution of India interfere with the
concurrent findings of fact of the Rent Controller and the
Collector. It is further held that normally, monthly tenant is
under an obligation to pay the rent from month to month but this
obligation is subject to a contract to the contrary. Such a
contract need not be reflected in a formal document and can be spelt
out from the conduct of the parties, spread over a fairly long
period of time.
In Patel
Valmik Himatlal and others V/s. Patel Mohanlal Muljibhai, (1998) 7
SCC 383, it is held that 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 rehear the matter
and reappreciate the evidence. The mere fact that a different view
is possible on reappreciation of evidence cannot be a ground for
exercise of the revisional jurisdiction. 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.
Having heard
the learned Counsels appearing for the parties and having considered
their rival submissions in the background of the orders and
judgments passed by the Courts below, as well as the relevant
statutory provisions contained in the Bombay Rent Control Act and
the decided case law on the subject, the Court is of the view that
the concurrent findings of facts given by the Courts below both on
the invocation and applicability of Sections 13 (1) (e) as well as
13 (1) (g) of the Act, dose not call for any interference by this
Court while exercising its revisional jurisdiction under Section 29
(2) of the Act and hence, the Civil Revision Application deserves to
be dismissed and it is accordingly dismissed.
From the
perusal of the issues framed by the Trial Court at Exh.14, it
appears that the Trial Court, in all, framed 13 issues. However,
for the purpose of this revision petition, the relevant issues are
Issue Nos.3,5,6 & 9. Issue Nos.3 and 9 are in relation to
applicability of Section 13 (1) (e) whereas, issue Nos.5 and 6 are
in relation to applicability of Section 13 (1) (g) of the Rent Act.
The lower
Appellate Court, after appreciating the evidence – oral as
well as documentary on record and after considering the issues
framed in relation to Section 13 (1) (e) of the Act, came to the
conclusion that the defendant No.3 – Patel Ambalal Prabhudas
has not proved that he is occupant – partner and the
partnership deed is genuine and not sham or bogus. The Court
further found that the defendant No.3, the sole tenant, remained
with the legal possession of the suit premises and he has never
parted with the possession. The Court has taken into consideration
the evidence of defendant No.3, one more partner of defendant No.4
firm – Shri Chimanlal Balubhai, partnership deed etc. The
very fact that the partnership deed, nowhere clearly states that the
defendant No.3 – original tenant has thrown the tenancy rights
of the suit premises in the assets of the firm. Clause 19 of the
Deed merely states that the defendant No.3 – original tenant –
partner shall give the cooperation whenever the suit rent note is to
be transferred in the name of the firm. Clause 20 of the Deed says
that if at all the landlord files a suit for the purpose of
possession, the partner No.4 i.e. the tenant, Shri Ambalal Prabhudas
Patel will have to bear expenses. If the suit premises were
transferred to the partnership firm and the firm was enjoying the
benefits of tenancy rights, there was no need to bear the expenses
by the original tenant. There is nothing in the partnership deed
which indicates that after dissolution of the firm, the possession
of the suit premises will remain with the defendant No.3 – the
original tenant. It has also come on record that the defendant No.3
is an agriculturist and he is residing at his village Runi. The
lower Appellate Court, while confirming the decree of eviction
passed by the Trial Court under Section 13 (1) (e) of the Act,
clearly held that no oral or documentary evidence reliable is
produced by the defendants to prove that the firm is genuine and the
defendant No.3 has not sublet, transferred or assigned his legal
possession or his interest of suit premises to the firm.
It is true
that merely because the tenant continues to carry on the business in
the same shop as hither to, but takes in other partners, the legal
possession of the shop does not change hands. It is equally true
that taking in a partner in a business does not amount to subletting
the premises so as to attract the bar of Section 13 (1) (e) of the
Act. However, the intention of the parties and purpose behind
creation of partnership firm is an important factor to be taken into
consideration by the Court. The Apex Court, after considering the
entire case law, summarized the correct legal position on this
subject in the case of Celina Coelhi Pereira (Ms.) and others
V/s. Ulhas Mahabaleshwar Kholkar and others (Supra) and, inter
alia, held that if the purpose
of partnership is ostensible and a deed of partnership is drawn to
conceal the real transaction of subletting, the Court may tear the
veil of partnership to find out the real nature of transaction
entered into by the tenant. Both the Courts below have found that
the plaintiff – landlord succeeded in bringing on record
material and circumstances, by adducing evidence and by means of
cross-examination, and in making out a case of subletting or parting
with possession in tenancy premises by the tenant in favour of other
partners. This Court, therefore, does not find any convincing
reason to disturb the said findings recorded by the Courts below and
upturn their decisions. The petition, therefore, fails on this
ground.
The
Courts below have passed and/or confirmed the decree of eviction on
the ground of bonafide requirement of the landlord under Section 13
(1) (g) of the Act. The suit was filed by late Shri Chunibhai
Ujambhai. He was of 65 years age at the time of filing of the
suit. He expired during the pendency of the suit. His elder son,
Babulal Chunilal was brought on record and he continued the suit.
The suit premises came to his possession under the partition. Even
otherwise, it was given to him under the Will. On appreciation of
evidence, the Courts below found that the defendant No.3, the sole
tenant is an agriculturist and he has no interest in keeping
possession as he handed over the possession of suit premises to the
defendant No.4 firm. The Courts have also considered that Shri
Subodhbhai, son of Babulal and Grandson of the original plaintiff
was unemployed and he himself was residing in rented premises. The
Court, therefore, came to the conclusion that the element of
requirement of plaintiff is
continued and that the plaintiff is in dire need of the suit
premises. It is settled position in law and the Courts have taken
the view that while considering the question of bonafide need of the
landlord, that the right of individual members of landlord’s family
to set up any independent business can certainly fall within the
scope of bonafide need of landlord. The Courts have also held that
while deciding the bonafide requirement of landlord, the landlord is
the best judge of his requirement. The Courts have no concern to
dictate how and in what manner he should live. From the record, it
becomes clear that, during the pendency of this petition before this
Court, Shri Babulal Chunilal expired. His legal heirs are brought
on record of this petition. The respondent No.1/2 Shri Subodhbhai
is the son of the deceased. Before the Courts below, it was
specific case of the plaintiff that his son is unemployed and suit
premises is required for his business purpose. In view of the law
laid down by the Apex Court in the case of Ashok
Kumar V/s. Ved
Prakash and others (Supra),
the Court does not accept the submissions of Mr. Shelat that because
of the death of the plaintiff, the requirement of the landlord had
perished. Considering the entire facts and circumstances of the
case and legal position, the Court is of the view that the decree of
eviction passed by the Trial Court and confirmed by the lower
Appellate Court under Section 13 (1) (g) of the Act, does not call
for any interference by this Court.
In view of the
above decision, the Court does not think it necessary to deal with
the judgments cited by Mr. Shelat in relation to pleadings etc. as
they are not applicable to the facts of the present case. The Civil
Application filed by the petitioner – tenants for production
of additional evidence also deserves to be rejected in view of the
fact that the partnership firm itself is held to be not genuine and
sham and hence, its return of income, assessment etc. would not make
any difference for arriving at the conclusion by the Court.
In
the above view of the matter, both these Civil Revision Application
as well as Civil Application are rejected with cost. The cost shall
be borne by the present petitioner No.3 – original defendant
No.3. The present petitioners – original defendants are
directed to evict the suit premises and hand over the possession to
the present respondents within two months from the date of receipt
of certified copy of this judgment or from the date of receipt of
writ from the Court, whichever is earlier.
Sd/-
[K. A. PUJ, J.]
Savariya
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