IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.460 OF 1992 1.Shankar Vithoba Patil, since deceased through his heirs and legal representatives : 1-A.Smt.Parvatibai Shankar Patil, 1-B.Kamalakar Shankar Patil, 1-C.Krishna Shankar Patil 1-D.Eknath Shankar Patil All residing at Makhamalbad Road, Panchavati, Nashik-3. 1-E.Mrs.Kusum Dattatraya Valunj, Age Major, R/o.Satpur Colony, Nashik. 1-F.Mrs.Vidya Prabhakar Varkhede, Age Major, Upnagar Colony, Nashik - 7. 2.Patil Engineering Industries, Proprietor Madhav Vithoba Patil, since deceased through his heirs and legal representatives: 2A) Shri.Vivek Madhavrao Patil, age 38 yrs., occ: Business, r/o.Mahatma Nagar, Satpur, Nashik. 2B) Sou.Meena Dattatraya Gorade, age 47 yrs. Occ: Household, R/o.Narhari Nagar, Dachakpachak, Jail Road, Nashik Road, Nashik. 2C) Sou.Suchila Mahadeo Narsekar, Age 45 yrs. occ: Household, R/o.Siddhivinayak Bungalow, At & Post:Vadgaon, Dist.Belgaon. : 2 : 2D) Sou.Suhasini Dyneshwar Gorade, age 40 yrs. occ: Household, R/a.Sambhaji Chowk, Unrwadi Shriya Apartment, Nashik. 2E) Smt.Jayamala Anil Patil, Age 42 yrs. Occu: Household, R/a.Gharpure Ghat, Sanap Chawl, Nashik. 2F) Smt.Leelabai Kashinath Patil, age 50 yrs. occ: Household, R/a.Mahatmanagar, Satpur, Nashik. 2G) Shri.Harshal Kashinath Patil, age 24 yrs. occ: Business, R/a. as above. 2H) Sou.Shobha Vikas Raut, age 28 yrs., occ: Household, R/a.98/B, Thakre Road, Main Road, Kalpana Press, Nashik. 2I) Sou.Ranjeeta Shivaji Gaikwad, age 26 yrs., occ: Household, R/a.Jawahar Colony, Bhanudas Nagar, Akashwani Vatsalaya Niwas, Aurangabad. 3. Patil Grinding & Iron Works Nivrutti Fakira Patil, 4. Maharashtra Krushi Industries, Kamlakar Shankar Patil, 5. Patil Iron & Brass Works - firm all are residents of Makhamalabad ...Petitioners Road, Panchavati, Nashik 422 003. (Ori.Defdts.) Versus Shri Ramji Premji Javeri, residing at Panjarapol Compound, ...Respondent Panchavati, Nashik. (Ori.Plff.) : 3 : WITH WRIT PETITION NO.3923 OF 1997 Shri Ramji Premji Javeri, residing at Panjarapol Compound, ...Petitioner Panchavati, Nashik. (Ori.Plff.) Versus 1.Shri Shankar Vithoba Patil, since deceased through his heirs and legal representatives : 1.a.Parvatibai Shankar Patil, 1.b.Kamalakar Shankar Patil, 1.C.Krishna Shankar Patil 1.d.Eknath Shankar Patil All residing at Makhamalabad Road, Panchavati, Nashik-3. 1.e.Mrs.Kusum Dattatraya Valunj, Age Major, R/o.Satpur Colony, Nashik. 1.f.Mrs.Vidya Prabhakar Varkhede, Age Major, Upnagar Colony, Nashik - 7. 2.M/s.Patil Engineering Industries, Proprietor Madhav Vithoba Patil, 3. Patil Grinding & Iron Works Nivrutti Fakira Patil, 4. Maharashtra Krushi Industries, Kamlakar Shankar Patil, 5. Patil Iron & Brass Works - firm All are residents of Makhamalabad ...Respondents Road, Panchavati, Nashik 422 003. (Ori.Defdts.) : 4 : ...... : 5 : Mr.Girish S.Godoble with Mr.Nitin Muley for Petitioners in WP/460/1992 & for Respondents in WP/3923/1997. Mr.R.M.Hardas i/b Mr.P.N.Joshi for Respondent in WP/460/1992 and for Petitioner in WP/3923/1997. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. JANUARY 9, 2009. JANUARY 9, 2009. JANUARY 9, 2009. JUDGMENT : JUDGMENT : JUDGMENT : 1. These are cross-Petitions filed by the landlord and the tenant against the Judgment and decree passed by the Court below. The landlord has challenged the opinion of the lower Court rejecting the ground of permanent construction and subletting. On the other hand, the tenant has challenged the decree for possession passed by the lower Courts on the ground of arrears of rent. 2. Briefly stated, the Suit premises were open plot leased by the landlord to the tenant forming part of City Survey No.5879/1A situated at Malegaon Motor Stand, Panchavati, Taluka and : 6 : District Nashik for shop and business. It is the case of the landlord that the same was let out to the tenant on monthly rent basis to be used for shop or business purpose. It is the case of the landlord that the lease was granted to Defendant No.1, who, later on started using the same for manufacturing activity. Besides, the tenant constructed permanent structure without the prior permission of the landlord as also sublet the suit premises to Defendants 2 to 5. It is the case of the landlord that the tenant has changed the original user of the demised premises. In addition, the landlord in the Suit filed before the Civil Judge, Senior Division, Nashik asserted that the tenant was in arrears for a period of more than six months from 1st August 1977, for which reason, had issued demand notice to the tenant on 14th July 1978 which was duly served on the Defendant No.1/tenant. However, the tenant failed and neglected to pay the arrears as demanded within the stipulated time, thereby, committing default and liable to be evicted on that count. Broadly on these allegations, the Suit came to be filed against the tenant for eviction and for vacant and : 7 : peaceful possession of the Suit premises. It is common ground that after receipt of the notice dated 14th July 1978, the tenant did not raise any dispute regarding standard rent by filing application in that behalf. 3. The Defendants filed written statement and contested the Suit for eviction. The written statement was later on amended. As per the amended written statement, the Defendants asserted that though tenant was monthly tenant and the rent was payable monthly, the same were let out for the purpose of manufacturing activity. It is the case of the Defendants that even before taking the demised premises on lease, the tenant and his family members were engaged in business of casting, turning, running, iron smith, machine turning and making of spare parts of machinery which was a joint family activity. The lease was taken in the name of Defendant No.1 as the karta of the joint family. It is then asserted that in due course, the brothers formed a partnership firm, which, however, was dissolved on 15th February 1969. It is the case of the Defendants that after : 8 : dissolution of the firm, there was separation of the joint family and each brother thereafter carried on independent business from the suit premises. According to the Defendants, since the premises were let out for manufacturing process, the provisions of Bombay Rents, Hotel & Lodging House Rates (Control) Act, 1947 (hereinafter referred to as ‘the Bombay Rent Act’) had no application. For that reason, the demand notice sent by the landlord was invalid. Inasmuch as, if it is a case of manufacturing process, in that case, the tenancy would be on year-to-year basis and the termination notice could not have been less than six month’s tenure. The Defendants denied that any unauthorised permanent structure has been erected in the suit premises or that the tenant has sublet the suit premises. It is the case of the Defendants that the brothers of the Defendant No.1 continued to remain in occupation of the suit premises along with the Defendant No.1 even after the separation of the joint family. In that sense, it was not a case of unlawful subletting as alleged. : 9 : 4. Insofar as ground of default is concerned, it is the case of the Defendants that after receipt of the suit notice, the tenant made attempt to get in touch with the landlord and offered the amount referred to therein, however, the landlord declined to accept the same on one pretext or the other. Since the amount could not be personally handed over to the landlord, the tenant was advised to remit the same by money order which was sent on 4th September 1978, but was refused by the landlord and returned on 12th September 1978. In other words, according to the tenant, it is not a case of wilful default or neglect to pay the rent as demanded. 5. Both sides produced oral as well as documentary evidence. Plaintiff examined himself whereas Defendant No.1 examined himself and one Mr.Shinde in support of their respective cases. The Trial Court, on analysing the pleadings and evidence on record, rejected the case of the Plaintiff about ground of termination of permanent construction and unlawful subletting. The Trial Court, however, answered the ground of wilful default and arrears of rent against the : 10 : Defendants/tenants. Consistent with the said finding, the Trial Court by Judgment and Decree dated 30th June 1986 in regular Civil Suit No.898 of 1978 ordered Defendants to handover vacant and peaceful possession of the Suit premises to the Plaintiff/landlord and to pay monthly rent of Rs.105.20 ps. inclusive of permitted increase per month from 1st August 1997. 6. Against the said decree, the tenant carried the matter in Appeal before the District Judge, Nashik in Civil appeal No.334 of 1986. The landlord, on the other hand, filed cross-objections questioning the view taken by the Trial Court in relation to ground of permanent construction and unlawful subletting. The Appeal Court dismissed both the Civil Appeals as well as cross-objections and maintained the decree of eviction on the same ground of wilful default and arrears of rent as ordered by the Trial Court. 7. Once again, both the parties have challenged the said decision of the Appeal Court dated 27th November 1991 by way of present cross : 11 : Writ Petitions filed before this Court. 8. After having considered the rival submissions, the first question that arises for consideration is about the factum of purpose for which the Suit premises were let out at the inception. If it were to be found that the same were let-out for manufacturing process, the next question would be: whether provisions of the Bombay Rent Act would be applicable to such premises. If the Court were to hold that the provisions of the Bombay Rent Act have no application to said premises, it would necessarily follow that the Rent Court had no jurisdiction to try and entertain the Suit. In the event, the Court were to hold that the purpose for which the suit premises were let out was not manufacturing process but shop or business purpose as is asserted by the landlord, in that case, the next question would be about the issue regarding validity of the suit notice and if it is found that the suit notice was valid, then whether the tenant had committed wilful default so as to attract the rigours of Section 12(3)(a) of the Act as applicable at the : 12 : relevant time of the Act. The next question is: whether the Plaintiff has succeeded in establishing the ground of permanent construction and that of unlawful subletting. : 13 : 9. Reverting to the principal question as to whether the provisions of Bombay Rent Act have application to the case on hand, it is relevant to keep in mind the purport of Section 6 in Part-II of the Act. Part-II of the Act deals with residential and other premises. Section 6(1) postulates that in areas specified in Schedule I, Part-II of the Act shall apply to the premises let or given on licence for residence, education, business, trade or storage. Referring to this provision, the Defendants would argue that the premises let out for manufacturing process falls outside the scope of Section 6 of the Act, for which reason, provisions of Bombay Rent Act will have no application. On the other hand, according to the landlord even if it were to be held that the premises were let out or given for manufacturing process, even in that case, the provisions of the Bombay Rent Act would very much apply to the case on hand, in that, even in case of activity of manufacturing process, the same would involve activity of business, trade and/or storage. According to the landlord, the expression : 14 : ‘business’ occurring in Section 6 of the Act will have to be given wider meaning by applying contextual interpretation. It was also argued that even if it were to be held that the premises were let out for manufacturing process, the same not being dominant user of the premises but the dominant user of the premises were to be for business, trade or storage, the provisions of Section 6 of the Bombay Rent Act will have full application to the case on hand. Counsel for both sides relied on the decision of the Apex Court in the case of Allenbury Engineers Pvt.Ltd. v. Allenbury Engineers Pvt.Ltd. v. Allenbury Engineers Pvt.Ltd. v. Ramkrishna Dalmia & Ors. reported in (1973) 1 SCC Ramkrishna Dalmia & Ors. reported in (1973) 1 SCC Ramkrishna Dalmia & Ors. reported in (1973) 1 SCC 7 to buttress their respective argument. Besides, my attention was invited to the decision of the Apex Court in the case of State of Maharashtra v. State of Maharashtra v. State of Maharashtra v. Central Provinces Manganese Ore Co.Ltd. reported Central Provinces Manganese Ore Co.Ltd. reported Central Provinces Manganese Ore Co.Ltd. reported in (1977) 1 SCC 643, Osman Fakir Mahomed Divecha v. in (1977) 1 SCC 643, Osman Fakir Mahomed Divecha v. in (1977) 1 SCC 643, Osman Fakir Mahomed Divecha v. Ali Akbar Javed Sadakya & Anr Ali Akbar Javed Sadakya & Anr Ali Akbar Javed Sadakya & Anr. reported in AIR reported in AIR reported in AIR 1970 SC 1893, Idandas v. Anant Ramchandra reported 1970 SC 1893, Idandas v. Anant Ramchandra reported 1970 SC 1893, Idandas v. Anant Ramchandra reported in AIR 1982 SC 127, Vasantham Foundry v. Union of in AIR 1982 SC 127, Vasantham Foundry v. Union of in AIR 1982 SC 127, Vasantham Foundry v. Union of India reported in (1995) 5 SCC 289 India reported in (1995) 5 SCC 289 India reported in (1995) 5 SCC 289 as well as decision of our High Court in the case of Yeshavadabai Shankar Dongare & Ors. v. Yeshavadabai Shankar Dongare & Ors. v. Yeshavadabai Shankar Dongare & Ors. v. : 15 : Bhagirathibai Appaji Patil reported in 1995 (2) Bhagirathibai Appaji Patil reported in 1995 (2) Bhagirathibai Appaji Patil reported in 1995 (2) Mh.L.J.674 Mh.L.J.674 Mh.L.J.674 and of Gujarat High Court in the case of Minor Anish Achyut Chinubhai v. M/s.Manikram Minor Anish Achyut Chinubhai v. M/s.Manikram Minor Anish Achyut Chinubhai v. M/s.Manikram Sobhraj Mills Pvt.Ltd. reported in (1994) Bom.R.C. Sobhraj Mills Pvt.Ltd. reported in (1994) Bom.R.C. Sobhraj Mills Pvt.Ltd. reported in (1994) Bom.R.C. 18. 18. 18. 10. In my opinion, it would be relevant to analyse these decisions only if this Court were to hold that the premises were let out to the tenant for the purpose of carrying on manufacturing process. However, if this Court were to uphold the concurrent view taken by the two Courts below that the premises were let out originally for shop and business purpose and that the Defendants/tenants have failed to establish that the same was let out for manufacturing process, in that case, it would necessarily follow that the case on hand is covered by the provisions of Bombay Rent Act. It is for that reason, examining the wider questions raised by the parties as to whether the activity of manufacturing process is enveloped within the meaning of expression "business" occurring in Section 6 or that the manufacturing activity was not the dominant activity for which the premises : 16 : were let, will have no relevance at all. In the case of Allenbury Engineers (supra), the Apex Court has restated the established legal principle that the burden of proving that the lease was for manufacturing purposes, must lie on the party who claims it to be so. That burden will be to establish that the exclusive or at least the dominant purpose of the lease was for manufacturing purpose. In the present case, the Plaintiff approached the Rent Court on unambiguous assertion that the suit premises were let out to the tenant (Defendant No.1) for shop and business purpose. It is the case of the landlord that the tenant later on started using the premises for the activity of manufacturing process. Indeed, the landlord has not invoked the ground of change of user. 11. Be that as it may, if this Court were to accept the plea of the landlord/Plaintiff that the suit premises were let out to the tenant for shop and business purposes, it would necessarily follow that the provisions of Bombay Rent Act were applicable to the case on hand. The Defendants/tenants in the written statement have : 17 : admitted that the premises were let out on monthly rent basis. After amendment of the written statement, the Defendants/tenants have asserted that they were engaged in activity of manufacturing process even before leasing of the suit premises and that after the lease, they continued with the same business in the suit premises. The business was essentially a joint family business. It is asserted that in the year 1948, when the tenancy commenced in the month of January, at that time, the Defendants were running the business in the name and style as "M/s.Patil Iron & Brass Works". It is stated that three brothers were engaged in the said business activity together. In 1958, the three brothers formed partnership firm and continued with the same business activity from the suit premises. The partnership firm was later on dissolved on 15th February 1969. It is the case of the Defendants that the tenancy was not created in favour of Defendant No.1 in his individual capacity but was for the benefit of joint family business. Both parties have led oral as well as documentary evidence. It is common ground that there is no document in writing about the agreement of the suit : 18 : premises when the same was originally let out. 12. The core issue is on what terms or purpose the suit premises were let out to the tenant. In absence of agreement in writing, the Court will have to rely upon other evidence such as rent receipts. Notably, the tenant in his evidence, during cross-examination has admitted that he had received the rent receipts for the rent amount paid to the Plaintiff. He has also admitted that he was signing on the duplicate copy as acknowledgement of the rent receipts. He has also admitted the contents of Exhibit 59 and Exhibit 61 as correct and that, he had put his signature thereon. He has also admitted that he did not complain about the contents of Exhibit 59 and Exhibit 61 to the Plaintiff. Indeed, he has denied the suggestion put to him that at the initial stage, only two rooms for the shop and some vacant portion on the back side was let out to him by the Plaintiff. He has denied the suggestion that the suit premises was taken for the purpose of shops only. At the same time, he volunteered to state that the premises were taken for manufacturing purpose while : 19 : conceding that there was no written document to support that position. He ventured to voluntarily state that there was an oral agreement. However, this fact has not been substantiated by the tenant. Indeed, the Defendants have relied on other documents which according to them would establish that the activity carried on in the suit premises was of manufacturing process. Reliance has been placed on documents Exhibits 121 to 158 such as loan application dated 3rd May 1954 (Exhibit 144), letter from the Director of Industries dated 25th May 1955 (Exhibit 145), permission given by Nashik Municipality for 10 H.P. Electric Motor vide letter dated 27th August 1960 (Exhibit 146), letter from Taluka Agriculturist Purchase and Sale Association, Jalgaon dated 7th May 1962 (Exhibit 147), Mortgage Deed executed in favour of Bank of Maharashtra dated 18th September 1963 (Exhibit 148), permission letter issued by Nashik Municipality for increasing the height of the shed dated 19th June 1961 (Exhibit 149), Partnership Deed dated 1st July 1958 (Exhibit 150), two books along with list at Exhibit 106/8/D pertaining to year 1960. Bill book (Exhibits 151 and 152), bill : 20 : book (Exhibit 153), bills book (Exhibits 154, 155, 156, 157) and the book containing office copies (Exhibit 158). Significantly, none of these documents pertain to period of 1947-48 which could have been the crucial contemporaneous evidence to answer point in issue in favour of the Defendants/tenants. The Trial Court has analysed all these aspects meticulously as can be discerned from discussion in Paragraph 14. In Paragraph 14, the Trial Court has noted that rent note at the inception of the tenancy is not in existence. Insofar as document (Exhibit 121), the Trial Court has held that it demonstrates that M/s.Patil Iron & Brass Works under which name and style-the Defendant No.1 was carrying on business has been registered with said institution as manufacturer. This letter is however, dated 16th December 1957. Reference is then made to Exhibit 122 which is a letter dated 15th October 1965 issued by the Director of Industries, which speaks about the renewal licence under the Bombay Weights and Measures (Enforcement) Act, 1964. The said letter dated 30th October 1966 issued by the Director of Industries is purported to be reminder to M/s.Patil : 21 : Iron and Brass Works sent at suit address for renewal of licence under the Bombay Weights and Measures (Enforcement) Act, 1964. Reference is also made to Exhibit 123 being letter dated 23rd September 1966 sent by a private firm K.B.Gandhi & Co. pertaining to import licence from Customs. The Trial Court has also analysed documents at Exhibits 136 to 140 which is for period from 1966 onwards. After having referred to all these documents, it went on to hold that though this evidence goes to show that Defendant No.1 were carrying on business under name and style as M/s.Patil Iron and Brass Works for manufacturing weights and measures and other iron material, however, there is no satisfactory evidence to show that "since beginning", the Defendant was carrying on exclusively manufacturing process in the suit premises. It has found that what was required to be established by the Defendants was that they were doing business of manufacturing process from the suit premises from the date they occupied the suit premises in 1947 or 1948. The Trial Court has also carefully analysed the documents at Exhibit 144, which is a letter dated 3rd May 1954 addressed on : 22 : behalf of the Defendant firm to the Assistant Director of Industries. The letter mentions that the three brothers started a foundry and mechanical repair workshop since 1947. This is the only document which throws light about the activity in or around 1947-48 when the demised premises were let out to the tenant. This document has been discarded by the Trial Court on the finding that it only indicates that initially Defendants were carrying on business of running lathe machines, turning and repairing spare parts. That would not be of any avail to the Defendants to establish the fact that the premises were being so used or let out for such user since beginning. The Trial Court has further held that the initial user of running lathe machine and turning, repairing, etc. cannot be said to be a manufacturing activity. Then the Court proceeded to hold that it cannot be said that the dominant user was of manufacturing. The Trial Court then referred to the rent receipts which indicates that the purpose of letting was for business as the description of the suit premises is shown as "two shops besides rear portion". The Trial Court has also specifically adverted to rent : 23 : receipt (Exhibit 60) which describes the premises in occupation of the Defendant No.1 before 1st June 1969 was shop premises and in occupation of the Defendant No.1 as shop and occupied additional open space for storing materials. On analysing the evidence on record, the Trial Court eventually concluded that the Defendants have failed to establish the fact that the premises were let out for purpose exclusive or at least dominant, of lease for manufacturing process. The Appellate : 24 : Court re-appreciated the evidence on record and arrived at the same conclusion. 13. Having examined the pleadings as well as the evidence on record-both documentary and oral, I have no hesitation in upholding the findings so reached by the two Courts below. Indeed, it is not open to this Court in exercise of writ jurisdiction to reappreciate the evidence so as to take a view different than the one taken by the two Courts below, merely