IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No 375 of 1988 For Approval and Signature: Hon'ble MR.JUSTICE H.H.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO 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? : NO -------------------------------------------------------------- MANJULABEN WD/O RAMANLAL NATHALAL Versus BAI GAJIBEN WD/O RAMANLAL PURSHOTTAM -------------------------------------------------------------- Appearance: MR NAGIN N GANDHI for Petitioners MR MB GANDHI for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE H.H.MEHTA Date of decision: 06/09/2000 CAV JUDGEMENT This is a Civil Revision Application filed under Sec.29(2) of the Bombay Rents Hotel & Lodging House Rates Control Act, 1947 (same will be referred to hereinafter as the Act for the sake of brevity and convenience), directed against the judgment Ex.10 dated 22nd February, 1988 rendered by the Appellate Bench of the Court of Small Causes Court at Ahmedabad in Civil Appeal No. 209 of 1981 by which the Appellate Bench set aside the judgment Ex.100 and decree dated 30th April, 1981 passed by the learned Judge, Court No.7, Small Causes Court, Ahmedabad (who will be referred to as learned Judge of the trial Court) in H.R.P.Suit No. 5083 of 1977. By allowing the said appeal, the learned Judges of the Appellate Bench, Small Causes Court, Ahmedabad decreed the suit in favour of the present revision opponents (plaintiffs) directing the revision petitioners (defendants) to hand over the vacant and peaceful possession of the suit premises to the plaintiffs i.e. revision opponents on or before 31st July, 1988. By that judgment, the Appellate Bench of the Small Causes Court, Ahmedabad, made the plaintiffs entitled to recover Rs.2,113/- being an amount of rent and notice charges. They were also made entitled to recover Rs.81/- per month by way of mesne profits from the date of the suit till recovery of possession of the suit premises. 2. In this Civil Revision Application, the revision petitioners are the heirs and legal representatives of original defendant/tenant Ramanlal Nathalal and the revision opponents are the heirs and legal representatives of the original plaintiff/landlord Ramanlal Purshottamdas in H.R.P.Suit No. 5083 of 1977 which was pending on the file of the learned Judge of the trial court. For the sake of convenience, the parties will be referred to hereinafter as the landlords and tenants respectively, at appropriate places. 3. The facts leading to this present Civil Revision Application, in a nutshell, are as follows:- The original landlord Ramanlal Purshottamdas was a sole owner of the suit premises bearing No. 4824 Municipal Census No. 2976 situated in Kalupur, Ward No.2, Ratanpol at Zaveriwad Naka in Ahmedabad. That suit premises are described in detail with more particulars in para 1 of the plaint. That suit premises were let to the original tenant Ramanlal Nathalal by original landlord Ramanlal Purshottamdas. The original tenant Ramanlal Nathalal had taken the suit premises on rental basis for which he executed a rent note for a limited period of 11 months and 29 days. It is the case of the plaintiffs that the original defendant/tenant Ramanlal Nathalal was using the ground-floor i.e. lower portion of the suit premises for the purpose of business. He was running a Novelty Stores (Cutlery) in lower portion of the suit premises. Two upper portions were being used for ingress and egress. With the consent of the said tenant original landlord was using two upper portions of the property for storing the household goods of the landlord. The original tenant was never using two upper portions of the suit property. He was only using the lower portion for shop purpose. The original tenant, during his life time, was residing with his family members in Devsa's Pada Pol, and therefore, lower portion of the suit property was only used for running a shop of Novelty Stores of which the tenant had executed a rent note on 8th December, 1953. The suit premises were not to be sublet, assigned or transferred to any one else. As the original tenant expired, the defendants shown in the cause-title of the plaint who are the heirs and legal representatives of the original tenant are tenants. The defendants are not living in Ahmedabad and they do not require the suit premises. They all reside permanently at Dahegam. The original landlord died, and therefore, his heirs and legal representatives had no other source of income and as all daughters of the original landlord were aged one, the suit premises are bonafide required by them for their personal use for the maintenance of the family of the plaintiff. It is a specific case of the plaintiffs that one Babulal Nathalal who is running a shop in the name and style of Bombay Fashion Hall, gave a false notice dated 31st December, 1972. He is in illegal possession of the suit premises. He has made a show that he was running a partnership business with the original tenant and he was having possession of the suit premises as a partner. Instead of Novelty Stores, now he has changed the name of business to Bombay Fashion Hall. He has alleged that he is only owner of the suit premises and as such as per the case of the plaintiffs, the defendants have committed the breach of terms and conditions of the tenancy. It is the case of the plaintiffs that original defendant had handed over possession of the suit premises to said Babulal Nathalal by taking a huge amount in form of "Paghadi". Said Babulal Nathalal was never a tenant. Under the circumstances, the plaintiffs served the suit notice dt. 19th August, 1977 on the defendants. The defendants gave evasive reply to the said notice. Thereafter, the plaintiffs i.e. heirs and legal representatives of original landlord filed H.R.P.Suit No. 5087 of 1977 in the Court of the Learned Judge, Small Cause Court No.7, Ahmedabad against the heirs and legal representatives of the original tenant on 13th December, 1977. In that suit, they did not join Babulal Nathalal as one of the parties. 4. In that suit, the defendants appeared and contested the suit by filing a written statement. They have denied practically all the pleadings of the plaintiffs pleaded in the plaint of the suit. Though the rent note was executed in the name of original tenant late Ramanlal Nathalal, the defendants have come with a specific case that Ramanlal Nathalal and Babulal Nathalal (alleged trespasser inducted as the subtenant in the suit premises as alleged by the plaintiffs) were the brothers and they were running the suit shop, jointly. They were carrying on business of cutlery store of Bangles and allied articles in the name and style as Bombay fashion Hall. It is their case that the upper portion of the suit property was also being used by the defendants. The defendants have advanced their case that the husband of the defendant no.1 and brother Babulal were living in Devsa's Pole and running a shop in the name and style as Bombay Fasion Hall and that Babulal Nathalal is the sole owner of it. They have also denied that the defendants have sublet, assigned or transferred the suit premises to said Babulal Nathalal. After the death of defendant no.1's husband i.e. Ramanlal Nathalal, the defendant's brother Babulal Nathalal were living together in Ahmedabad but thereafter the Partnership Deed was executed on 9th November, 1961 and both the brothers were running a shop in partnership and after sometime, the defendants' family went to Dahegam and husband of the defendant no.1 was commuting from Dahegam to Ahmedabad but because of ill-health, he could not attend the business, and therefore, the partnership was dissolved by a Deed of Dissolution dt. 21st October, 1968, and the suit property with all rights of partnership, and the shop materials continued to remain with Ramanlal Nathalal. During the life time of tenant, Babulal passed rent receipts in favour of the husband of the plaintiff No. 1 and the rent receipts were executed by Babulal Nathalal. In short, the defendants have advanced their case that Babulal Nathalal is in possession of the suit premises legally and on dissolution of partnership, he has remained only a sole partner in the business. They requested the learned Judge of the trial court to dismiss the suit as against the defendants. 5. From pleadings of both the parties, the learned Judge of the trial court framed issues at Ex.28. Thereafter by keeping in mind the issues framed by the court, both the parties led their oral as well as documentary evidence in support of their respective cases. It is pertinent to note that in this case, the person who is alleged to be a trespasser as subtenant of original tenant Ramanlal Nathalal, i.e. Babulal Nathalal has given his evidence in detail. The learned Judge of the trial court, after hearing the arguments of the learned advocates of both the parties and after appreciating the evidence on record, did not agree with the case of the plaintiffs and he was pleased to dismiss the suit of the plaintiffs with costs. By rendering his judgment Ex.100 dated 30th April, 1981, the learned Judge of the trial court dismissed the suit of the plaintiffs for possession of the suit premises and also for arrears of rent. Simultaneously, he was pleased to fix the standard rent of the suit premises at Rs.81/- per month inclusive of all taxes. The plaintiffs were made entitled to recover the rent at the rate of Rs.81/- per month from the date of filing of the suit till the date of realisation of rent account. 6. Being aggrieved against and dissatisfied with the said judgment Ex. 100 rendered by the learned Judge of the trial court, original plaintiffs preferred Civil Appeal No.209 of 1981 to the Appellate Bench of the Small Causes Court at Ahmedabad. In that Civil Appeal, the learned Judges of the Appellate Bench heard the arguments of the learned advocates for both the parties and after perusal of record and proceedings of the suit and after appreciating the evidence led by both the parties in the suit before the trial court, the Appellate Bench rendered the judgment Ex.100 on 22nd February, 1988 by which the appeal filed by the original plaintiffs was allowed and the judgment rendered by the learned Judge of the trial court was set aside. The learned Judges of the Appellate Bench did not accept the case of the plaintiffs falling under Sec.13(1)(g) of the Act on the ground that the suit premises are not bonafide and reasonably required by the plaintiffs and their family members. The learned Judges of the Appellate Bench were pleased to accept the case of subletting advanced by the plaintiffs in the trial court. They also refused the case of the defendants that the plaintiffs have no right to file the suit. By giving answer to specific Issue No.5, the learned Judges of the Appellate Bench were pleased to hold that the learned Judge of the trial court has erred in holding that the suit is bad on the ground of nonjoinder of parties, as alleged by the tenants that Babulal Nathalal is not made a party to the suit. Thus, the learned Judges of the Appellate Bench were pleased to allow the appeal and passed a decree for eviction of suit premises by the defendants in favour of the plaintiffs on the ground of subletting. They directed defendants to hand over peaceful possession of the suit premises to the plaintiffs on or before 31st July, 1988. 7. Being aggrieved against and dissatisfied with the said judgment Ex.10 dated 22nd February, 1988 rendered by the learned Judges of the Appellate Bench of Small Causes Court, Ahmedabad in Civil Appeal No. 209 of 1981, the original defendants have preferred this Civil Revision Application to this court challenging the correctness, legality and propriety of the said judgment. It may be noted that the original plaintiffs have not preferred any Civil Revision Application challenging the judgment of the Appellate Bench by which their plea for eviction of suit premises under Sec. 13(1)(a) read with Sec.13(2) of the Act. 8. Here in this Civil Revision Application, the revision opponent no.3 Ranjanben Ramanlal Modi filed one additional affidavit dated 4th July, 2000 along with xerox copies of certain documents. Thereafter one Rameshbhai Nagajihai Patel filed affidavit-in-reply dated 18/7/2000 along with xerox copies of two documents. They were taken on record. Before the learned advocates of both the parties started to advance their arguments, they made statements at the Bar that now they do not want to rely on and refer these additional affidavit and affidavit-in-reply and the documents produced therewith, and therefore, this court has not taken into consideration any of the affidavits and documents produced therewith. 9. I have heard the arguments advanced by Shri N.N.Gandhi, the learned advocate for the revision -petitioners and Shri M.B.Gandhi, the learned advocate for the revision -respondents in detail at length. Shri N.N.Gandhi, the learned advocate for the revision petitioners had read the evidence of almost all the witnesses in between the line examined by the parties in the suit. 10. He has canvassed his arguments mainly on the following points:- (i) Babulal Nathalal has proved that he is a tenant. Eventhough he is in possession of the suit premises, he is not joined as one of the parties in the suit; (ii) As per the case of the plaintiffs, the original defendant has sublet the suit premises to said Babulal Nathalal and therefore, the said subtenant -Babulal Nathalal is required to be joined as one of the defendants. (iii) (A) As observed by the learned Judge of the trial court in his judgment, previously the suit was filed against the original defendant and that suit was registered as Regular Civil Suit No. 2361 of 1973 in which it was a ground with a view to recover arrears of rent and possession and because of some technical defects in the notice, that suit was withdrawn and the defendant was served with notice dt. 19th August, 1977 and thereafter this present suit has been filed. (B) Under the provision of Order 23 Rule 3A of Civil Procedure Code, the present second suit is barred. As per the provisions of Order 23 Rule 3A of Civil Procedure Code, no suit shall lie to set aside any decree on the ground that compromise on which the decree is based was not lawful. (iv) On the facts and circumstances of the case, the judgment is totally perverse and in no case, it can be said that the judgment is according to law. 11. Shri N.N.Gandhi, the learned advocate for the revision petitioners has read the judgment challenged in this Civil Revision Application. Shri Gandhi has vehemently argued that the learned Judges of the Appellate Bench have not appreciated the evidence in its correct perspective in the manner in which they ought to have appreciated the evidence. He has emphatically argued that on reading the judgment, it can safely be said that the judgment is perverse and in no case it can be allowed to be confirmed. 12. As against the arguments of Shri N.N.Gandhi, Shri M.B.Gandhi, the learned advocate for the revision opponents has argued that looking to well settled legal position with regard to scope and ambit of Sec.29(2) of the Act and powers of the High Court which can be exercised in its revisional jurisdiction, now this court cannot rehear the case and reappreciate the evidence and come to a different conclusion other then conclusion arrived at by the learned Judges of the Appellate Bench. 13. Shri M.B.Gandhi, the learned advocate for the revision opponents has cited the following certain authorities in support of his contentions on the point that at a revisional stage, this court cannot rehear the case and reappreciate the evidence and come to a different conclusion:- (i) In case of PATEL VALMIK HIMATLAL AND OTHERS vs. PATEL MOHANLAL MULJIBHAI (DEAD) THROUGH LRS., reported in (1998) 7 SCC 383, the Hon'ble Supreme Court has been pleased to make the legal position clear on the point of powers of this Court under Section 29(2) of the Act. It has been held that- "The powers under Section 29(2) of the Act 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 revisional powers. 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". (ii) In the case of MANJIBHAI SHAMJIBHAI v. NATRAJ THEATRE & ANR, reported in 1999 (1) G.L.H. 749, this court has referred to aforesaid case of Patel Valmik Himatlal (supra) in Para 7 of the judgment and by following the aforesaid Judgment of the Hon'ble Supreme Court, this court has observed in Para 8 on Page 752 as follows:- " This Court in Kusumben Wd/o Vasantlal & Ors. v. Shrenikbhai Kasturbhai & Ors. 1998 (2) GLH 426 also also took similar view. In view of the Apex Court's verdit interference by the High Court in revision of this nature can be done only for a limited purpose of correcting errors of law in the judgments of the Courts below. It has, therefore, to be seen whether the judgments and decrees of the Courts below are in accordance with law or not. "Finding of fact" howsoever erroneous cannot be corrected in revision of this nature. ...................... 14. Shri M.B.Gandhi has cited an authority in case of PAPER PRODUCTS LTD. v. GITA TEA TRADING CO., reported in 1999(2) G.L.H. (U.J.) 20, wherein this court has, after referring aforesaid authority of Patel Valmik Himatlal (supra), held that High Court cannot- (i) function as a court of appeal; (ii) reappreciate the evidence on record; (iii) discard concurrent findings of facts based on evidence recorded by the courts below; (iv) interfere on grounds of inadequacy or insufficiency of evidence; and (v) interfere, except in case where conclusions drawn by the courts below are on the basis of no evidence at all, or are perverse. 15. Shri M.B.Gandhi, the learned advocate for the revision opponents has vehemently argued that in this case, the plaintiffs have proved their case of subletting falling under Sec.13(1)(e) of the Act. He has further argued that to prove a case of subletting, the plaintiffs are required to prove that trespasser who is a sub-tenant of original tenant has come into exclusive possession of the suit premises. For this, he has drawn an attention of this court to Para 14 of the judgment of the Appellate Bench, wherein it is observed that Manjulaben wd/o of original tenant Ramanlal Nathalal has admitted in her evidence at Ex.72 that the suit premises were hired by her husband and brother of her husband Babulal Nathalal were residing together and they started their joint business by hiring the suit shop jointly and subsequently they entered into a partnership business. She has also stated that in the year 1961, her husband and brother of her husband Babulal entered into new Partnership Deed which is produced at Ex.73 in the case, and according to her, said partnership was dissolved in the year 1968 and on the basis of said Dissolution Deed Ex.74, the brother of her husband Babulal Nathalal has come into exclusive possession of the suit shop as a tenant of it, and therefore, now the defendants cannot deny that Babulal Nathalal is not in exclusive possession of the suit shop premises. Now second ingredient which is required to be proved for subletting is that such transfer of possession of suit premises for consideration and for this, Shri M.B.Gandhi has drawn an attention of this court to Para 15 of the judgment of the Appellate Bench. The learned Judges of the Appellate Bench, have observed that Babulal Nathalal has deposed in his evidence that after dissolution of the partnership, his deceased brother Ramanlal Nathalal has no interest or relation with the suit shop and according to his say, as per Dissolution Deed, he has paid the amount of goodwill to his brother Ramanlal Nathalal, and therefore, he has acquired tenancy rights in the suit shop under the Deed of Dissolution Ex.74. Thus the plaintiffs have proved the consideration for transferring the suit premises to Babulal Nathalal. 16. Shri M.B.Gandhi, the learned advocate for the revision opponents has argued that the defence advanced by the defendants that on and from 8/12/1953 vide rent note Ex.40, original defendant and Babulal Nathalal started their business jointly. It is not the case of the defendants pleaded in the written statement that the original defendant tenant and Babulal Nathalal both had jointly taken the suit premises on lease for their joint business. Admittedly rent note had been executed by only defendant Ramanlal Nathalal. Shri M.B.Gandhi has argued that if both were carrying on their business jointly right from 8/12/1953, then there was no necessity of entering into partnership in the year 1961. As stated earlier, the defendants have not produced any books of account of alleged joint business carried on by the original tenant and Babulal Nathalal for the period from 8/12/1953 to 9/11/1961. Even the defendants have not produced any books of account of the partnership business carried on by two brothers in partnership in which the original defendant and Babulal Nathalal were the partners upto Deed of Dissolution i.e. 21/10/1968. The learned Appellate Judges have, after crytically analysing the evidence, come to a conclusion in Para 17 of their Judgment that it is significant to note that the defendants have not produced accounts book to show that the business of both the brothers was joint and for their joint business, the suit premises was jointly taken on lease in the names of deceased tenant Ramanlal Nathalal and Babulal Nathalal. 17. Shri M.B.Gandhi, the learned advocate for the revision opponents has argued that during the course of the trial of the suit, the defendants had produced original certificate under the Bombay Shops & Establishments Act issued by the Ahmedabad Municipal Corporation and that original certificate dated 12/2/1954 was produced at Ex.79. It means, after taking the suit premises on lease by the original defendant, he started the business in the suit shop for which he had obtained a certificate under the Bombay Shops & Establishments Act. It is strange and curious that during the time before the appeal could be taken up for hearing, that Ex.79 was taken away by the defendants from the court proceedings with a condition to produce the same could be produced whenever required. The learned Appellate Judges have observed that the defendants have not cared to produce the said document Ex.79 before the Appellate Bench. They have observed that it appears that the document Ex.79 was the first certificate issued by the department on 12/2/1954 and if this document would have been there before the Appellate Bench, then the certainly that document would have thrown much light on the controversy before the Appellate Bench. They have further observed that as the defendants have not cared to produce the said document, adverse inference was drawn that as the document Ex.79 was going against the defendants, they have taken it back from the record and have not produced the same before the Appellate Bench. 18. The learned Appellate Judges have further observed that there is no evidence to prove the presence