IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No 1242 of 1982 For Approval and Signature: Hon'ble MR.JUSTICE H.R.SHELAT ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? -------------------------------------------------------------- ARVIND JAYANTILAL TALATI Versus MANDAKINIBAN KESHAVLAL SHAH -------------------------------------------------------------- Appearance: MR SK ZAVERI for Petitioner MR RA MISHRA for Opponent No. 1 SERVED BY RPAD - (N) for Opponent No. 2 -------------------------------------------------------------- CORAM : MR.JUSTICE H.R.SHELAT Date of decision: 10/03/98 ORAL JUDGEMENT Being aggrieved by the judgment and decree dated 25th June, 1982, passed by the Appellate Bench of the Small Causes Court at Ahmedabad, in Regular Civil Appeal No. 181 of 1981, dismissing the appeal and confirming the judgment and decree passed by the learned Judge of the Small Causes Court, Ahmedabad, on 24th April, 1981, in Regular Civil Suit No.494 of 1977, ordinarily called as H.R.P.Suit, directing to hand over peaceful and vacant possession of the western portion of the premises let to the opponent No.1, the original defendant No.2 has preferred this Revision Application. 2. In order to appreciate the rival contentions, necessary facts may in brief be stated. The opponent No.1 (original plaintiff in the suit) is the owner of a building called Balentine Haveli situated near Teen Darwaja in the city of Ahmedabad. The opponent No.2 (original defendant no.1) was the head tenant. The second floor of that building bearing Mun.C.No.3078 (hereinafter referred to as the suit premises) was let to him at the monthly rent of Rs.125/- plus other taxes and charges. That second floor is divided into three portion, ordinarily described by the parties as Cabins. The petitioner joined as defendant no.2 in the suit, is in possession of the western portion of the suit premises and he is using & occupying the said premises. On 1.1.1957, the suit premises came to be let to the opponent No.2. In or after 1960, the opponent No.2 sublet the western portion of the suit premises to the present petitioner at the rent of Rs.125/- per month, and thereby committed the wrong under the Bombay Rents, Hotel and Lodging House Rates (Control) Act 1947, (for short the Bombay Rent Act). The opponent No.1 knew that the opponent No.2 had unlawfully sublet the western portion of the suit premises. She was therefore entitled to have the possession of the suit premises. A notice was then given on 7th August, 1970, calling upon the opponent No.2 and the petitioner to hand over the possession. On 28th August, 1970, the opponent No.2 replied the notice, but, the petitioner did not reply the same. No one handed over the possession of the suit premises. The opponent no.1 then filed Regular Civil suit No.4945 of 1997 before the Small Causes Court at Ahmedabad, to recover the possession of the suit premises on the ground of subletting, non-user, and bonafide requirements. At the time of hearing the ground of bonafide requirement was not pressed before the trial Court. 3. The opponent No.2 appeared before the trial Court and filed the written statement Exh.19, wherein, he has denied every allegation levelled against him. He has come forward with the case that the suit premise were let to him from 1st January, 1957. As per the agreement between him and the opponent No.1, he was free to sublet whole or part of the suit premises or give it on license, and therefore, rent was increased. After January, 1957, he permitted Balkrishna V. Doshi to use and occupy the western portion of the suit premises on `leave and license base' which was within the knowledge of the opponent No.1. From 1st January, 1959, within the knowledge of the opponent No.1, the petitioner was doing his work in the western portion and the opponent No.1 also consented to such use being made by the petitioner. From 1st February, 1959, the opponent no.1 gave the western portion of the suit premises to the petitioner on leave and license base. It was not therefore just and proper on the part of the opponent No.2 to allege that he had sublet the western portion of the suit premises to the petitioner after 1960. He had permitted the petitioner to use his furniture and telephone bearing No.53169. One key of the western portion remains with him. The petitioner was not put into the exclusive possession of the western portion of the suit premises. In short, he has alleged that he was not his sub-tenant but a licensee. 4. The petitioner filed the written statement Exh.19. He has also denied the allegations levelled against him. According to him he received the copy of the notice, and therefore, he was not bound to reply the same. For want of a notice the suit against him was not maintainable. He was using and occupying the western portion ad-measuring 16 feet x 32 feet. If he is regarded as the trespasser, the court is not competent to hear and decide the suit because the court exercising jurisdiction under the Bombay Rent Act is not competent to hear and decide the suit against the trespasser. After January, 1957, the opponent No.2 within the knowledge of the opponent No.1 permitted Balkrishna V. Doshi to use and occupy the western portion of the suit premises. He was then put into the possession of the western portion, and rent thereof was fixed at Rs.115/- per month. He is an Architect. He stayed at Bombay with Balkrishna V. Doshi. By passage of time both became the fast friends. Both were also together in Paris for their study and business too. As they had come closer, Balkrishna V. Doshi permitted him to use the western portion of the premises as his associate partner from 1957 and thus he came into the possession of the western portion of the premises, wherein, he and Balkrishna V. Doshi were carrying on their business. Thereafter, Balkrishna V.Doshi stopped working in the western portion because he had to go to abroad. After Balkrishna went abroad, he continued to use and occupy the western portion and work as Architect. In 1959, Balkrishna V. Doshi came back to India. Both then separated settling the accounts, and he continued to be in possession of the western portion of the suit premises. From October 1959, therefore, he is using the western portion and he is also enjoying possession thereof at the monthly rent/license fee of Rs.115/-per month. He is from October 1959, continued as tenant/licensee by the opponent No.1 and he has been paying the license fee/rent of Rs.115/- to the opponent No.2. Thus, the opponent No.1 has accepted Balkrishna V. Doshi and him as his sub-tenants from 1955-57. The opponent No.1 therefore was bound to accept him as her direct tenant. He is not the trespasser etc. 5. The learned Judge then framed necessary issues at Exh.26 and fixed the suit for hearing. During the course of the hearing, the opponents interse settled their dispute and filed the statements of compromise (Exh.33) wherein, opponent No.2 admitted that the claim of the opponent No.1 relating to the amount of rent stating that the same was true and genuine; and accepted his liability to pay the amount of rent. He in the said compromise statement further admitted that he was having no interest in the suit premises. He was the tenant in arrears of rent and he did not wish to pay the amount of rent. He had from 1962 given the western portion of the suit premises to the petitioner under leave and license agreement. He then urged the court to pass the decree of eviction. The statement of compromise dated 18th November 1980 is signed by opponent no.2 and Kiran J. Shah who is the power of attorney holder of opponent no.1. On the basis of such compromise statement, the trial court ordered to pass the decree in terms of compromise against the opponent No.2, and further ordered to proceed with the suit against the petitioner. The decree (Exh.34) was then drawn directing the opponent no.2 to hand over the possession. Thereafter the petitioner on 2nd December, 1980, presented a purshish (Exh.35) wherein he stated that after the decree in terms of compromise was passed, he on record remained a formal party, because against him no cause of action had arisen to file the suit and no relief was also sought against him. In the plaint, when he was described to be a person in unlawful possession of the western portion of the suit premises, under Bombay Rent Act the court had no jurisdiction to hear and decide the suit against him. He therefore urged to dismiss the suit against him and award compensatory costs. The learned trial Judge simply put up the endorsement "recorded" on the purshish. Appreciating the evidence before him, the learned Judge held that the opponent No.2 had unlawfully sublet the western portion of the suit premises to the present petitioner, but the case of bonafide requirement and non-user was not established. As the case of unlawful subletting was established, the learned Judge passed the decree on 24th April, 1981, directing the petitioner as well as the opponent No.2 to hand over the possession of the suit premises inclusive of the western portion to the present opponent No.1. 6. Being aggrieved by such judgment and decree, the petitioner preferred Regular Civil appeal No.181 of 1981 before the Appellate Bench of the Small Causes Court at Ahmedabad, against the present opponent No.1. After hearing the parties on 25th January, 1982, the Appellate Bench of the Small Causes Court at Ahmedabad, dismissed the appeal and confirmed the judgment and decree passed by the trial Court. It is against that judgment and decrees, the present Revision Application has been filed. 7. Assailing the judgments and decrees, it is contended on behalf of the petitioner that the trial Court acted illegally in proceeding with the suit after the compromise decree (Exh.34) came to be passed, because in the plaint the petitioner is alleged to be in unlawful possession of the western portion of the suit premises. After the compromise decree was passed the suit ceased to be the suit between the landlord and tenant, and it eventuated a suit between the owner of the premises and the trespasser, or in the alternatively a suit between the licensor and the licensee for which the court exercising the power under Section 28 of the Bombay Rent Act, was not competent to hear and decide the suit. The Appellate Bench of the Small Causes Court ought to have, therefore, considering this aspect of the case, allowed the appeal and set aside the judgment and decree passed by the trial Court. It is also contended that within the knowledge of the opponent No.1, and her acquiescence, the petitioner continued to be in possession of the western portion of the suit premises alongwith Balkrishna V. Doshi since 1957. When that is the case, the petitioner was in fact not the trespasser, but a lawful sub-tenant because from May 1959, sub-tenancy created till then came to be legalised by the Government making necessary amendments in the Bombay Rent Act. The opponent No.1, was therefore, bound to accept the petitioner as lawful tenant rather than describing him to be the trespasser. The petitioner had entered into the partnership with Balkrishna V. Doshi, and the partnership business was being carried on in the name and style `Vastu-Shilpa'. After Balkrishna V. Doshi left the business and started his own elsewhere, the petitioner alone remained in the western portion of the suit premises within the knowledge of opponent No.1, and as he was in possession of the western portion of the suit premises right from 1957, he had became a legal tenant of the opponent No.1. Both the Courts below, missing to take a note of such aspect of the case and evidence thereof on record, erroneously held that the petitioner was the unlawful sub-tenant and was liable to vacate. I will deal with this contention in detail hereinbelow at the proper stage. 8. On behalf of the opponent No.1, Mr. R.A. Mishra, the learned advocate has supported the judgments and decrees of both the Courts submitting that neither the error of law nor the error of facts has been committed by both the Courts below. The judgments and decrees passed by both the Courts are quite in consonance with law and there is no justifiable reasons to interfere with the judgments and decrees passed. He also submitted that when there is concurrent findings of both the Courts below, this Court may be slow in interfering with the findings & upsetting the decrees. In Revision, the scope of inquiry is very limited, and this court would not be able to interfere with the decrees passed by both of Courts below in Revision easily, going into the factual aspect because this is not the appellate jurisdiction the Court is exercising. 9. It may be stated that the Revisional Jurisdiction of the Court is not as wider as appellate Jurisdiction is. The scope of inquiry in Revision is limited. The Revisional Jurisdiction is to be exercised only for the purpose of satisfying that the decision of the lower court is in accordance with law. If there is miscarriage of justice owing to the error of law, I can interfere with the decision of the lower court. I cannot reassess the evidence and interfere with the finding of fact for evenif on the question of fact I am of a different view, I cannot substitute my view holding that the same is better than the view of the lower court. Looking to my such limited scope of inquiry, I have with meticulous care and finicky details, keeping of course the rival contentions in mind, perused the evidence, and I find no justification to interfere with the decree passed, for the reasons stated hereinbelow. 10. Before I proceed, it may be stated that I am in general agreement with the reasons assigned and conclusions drawn by both the courts below, and therefore, it is not necessary to restate the same. For my such view, a reference of a case of Girijanandini Devi and others V/s. Bijendra Narain Choudhary, A.I.R. 1967 Supreme Court 1124 may be made. However, I will deal with the questions raised before me for the purpose of assailing the judgments and decrees of both the courts below. 11. It is the contention of the learned advocate for the petitioner that there can be only one decree in the suit; more than one decree in the suit is foreign to law. The contention is misconceived. Section 2(2) of the C.P.Code provides the definition of the decree. As per that provision "decree" means the formal expression of an adjudication conclusively determining the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. The expression "with regard to all or any of the matters in controversy" in Section 2(2) C.P.Code indicates that if on some of the points the parties settle the dispute or on some points the dispute is settled between the plaintiff and some of the defendants, a decree can be passed, and later on the court can proceed with the suit and pass the decree qua other points in controversy between the parties. In a suit therefore there may be more than one decrees, not in conflict with the other one. It may be stated what is held by the Supreme Court in Bai Chanchal & Others Vs Syed Jalaluddin and Others A.I.R. 1971 S.C. 1081. It is laid down that there can be more than one decree in the suit, making it clear that in the suit if the decree is passed, on the basis of compromise, against some of the defendants at one stage, another decree at a later stage determining the rights of the remaining defendants qua other points in issue is permissible. It is also held therein that the two decrees passed, were separate & independent, and neither was a nullity. In this case therefore passing of two decrees is not illegal; and neither of the decrees is nullity and one does not conflict with another. The contention therefore fails. 12. In plaint it is alleged that the petitioner is in use and occupation of the western portion of the suit premises illegally and he is joined as party to avoid complications in the matter in future. The opponents settled their dispute interse and filed the statement of compromise at Exh.33. The decree (Exh.34) in terms of compromise was drawn and the suit was ordered to be proceeded with against the petitioner. As the petitioner is described to be the trespasser and not the tenant in the plaint, after the decree in terms of compromise came to be passed, the suit ceased to be the rent & possession suit under the Bombay Rent Act and fell off the ambits of Section 28 of the Bombay Rent Act. The Court under Bombay Rent Act therefore lost the jurisdiction to proceed with the suit and decide the same, because after the decree came to be passed in terms of compromise, the suit stood converted into the suit between the owner of the suit premises and the trespasser for possession. The Civil Court acquired the jurisdiction to hear and decide the suit. However the trial court vested with jurisdiction under the Bombay Rent Act heard and disposed of the suit passing the decree against the petitioner. The decree passed being without jurisdiction is therefore a nullity. This Revision application is on this ground therefore deserves to be allowed is the contention advanced on behalf of the petitioner. 13. Whether settlement on some issues between plaintiff and some of the defendants interse and consequential decree when passed, would convert the nature of the suit having impact on the jurisdiction of the court is the question raised for consideration. The jurisdiction of the court has to be determined on the basis of the case pleaded in the plaint and not in written statement by the defendant. If some of the issues are set at rest at any stage of the hearing, and decree qua these issues is passed, it will not have the effect of changing the nature of the suit, the suit will essentially remain to be the same and will not have any trasmutative effect provided the decree passed does not altogether alters the nature of the suit. It may be noted that in the plaint the opponent no.1 has come forward with the case of sub-letting alleging that the suit premises were let to the opponent no.2 who later on without her consent unlawfully sublet to the petitioner. The petitioner is thus described to be the sub-tenant and not the trespasser in the plaint. The suit initially filed against the tenant and sub-tenant to recover the possession of the premises on the grounds of arrears of rent and sub-tenancy did not stand converted into the suit of a different nature after the decree in terms of compromise came to be passed. Having regards to the case pleaded in plaint and aforesaid defence raised by the petitioner in his written statement as well as statement made in the statement of compromise (Exh.33), the trial court had to determine whether the petitioner was the sub-tenant or the licensee, and whether decree on the ground of sub-letting should be passed. Adjudication of such issue was within the competence of the trial court under Bombay Rent Act and no other. The suit therefore essentially remained to be the Rent & Possession suit under the Bombay Rent Act, and did not stand converted into the suit of different nature or characteristic; consequently decree passed against the petitioner cannot be held to be a nullity as canvassed before me. 14. It is the next contention, of course in the alternative, that the decree (Exh.34) came to be passed in terms of compromise arrived at between the opponents. In the statement of compromise (Exh.33) presented before the trial court pursuant to which the compromise decree came to be passed is signed by Shri Kiran J. Shah, the power of attorney holder of the opponent no.1, and opponent no.2. In that statement as stated in para 5 herein above, it is mentioned that opponent no.2 from 1962 permitted the petitioner to use & occupy western portion of the suit premise under leave and license agreement. By such statement the opponent before the court declared that the petitioner was the licensee and not the sub-tenant as alleged in the plaint. When accordingly the opponent no.1 accepted and admitted the status of the petitioner as the licensee, the suit then came to be converted into the suit between the licensor and licensee and did not continue to be the suit between landlord and sub-tenant. The operation of Section 28 of the Bombay Rent Act therefore discontinued and came to an end. The trial court vested with jurisdiction to hear and decide the suit under Bombay Rent Act then lost the jurisdiction. Under general law, the suit then fell within the competence of the Civil Court. The trial court should have then put off it's hand directing the parties to pursue the matter before the competent Civil Court; instead that it proceeded to decide the suit and in fact passed the decree against the petitioner and opponent no.2 as well, on 24-4-81. The said decree dated 24-4-1981 passed without jurisdiction is a nullity and so on this ground also this Revision application deserves to be allowed. 15. Whether the statement made in the statement of compromise (Exh.33) describing the petitioner to be the licensee of the western portion of the suit premises should be construed to be the admission of the opponent no.1 is the question that now arises for consideration. In other words, the opponent no.1, who has come forward with the case in plaint that the petitioner is a sub-tenant, can be said to have admitted by the statement (Exh.33) that the petitioner was the licensee of the western portion renouncing or disowing his case pleaded in plaint is the question now posed before me for determination. 16. Before I proceed, what is the law on admission is required to be stated. Reading Section 17 of the Indian Evidence Act, what is clear is that the admission made must be clear unequivocal and conclusive as well as precise or specific by the party. It should not be vague or ambiguous or doubtful. The contents must be clearly examined so as to determine whether admissions is in fact made. In law no inference about the admission can be drawn. It is for the court to decide whether in the facts and circumstances on record the admission in fact is made and should be acted upon, or it should proceed to decide the suit or issue on the basis of other materials on record, for admission is not the conclusive proof but may operate as estoppel. It is pertinent to note that the whole of the statement (Exh.33) is made by opponent no.2 and he then urged to pass the decree against him. The power of attorney holder of the opponent no.1 has then signed the statement signifying waiver of costs, and also the consent to pass the decree against opponent no.1, without prejudice to the case alleged in plaint against the petitioner. It is because of this reason the trial court ordered to proceed against the petitioner and passed the decree (Exh.34) in terms of compromise. Reading the statement (Exh.33) it becomes clear that nowhere the opponent no.1