Case: Anilkumar Dadurao Dhekle Vs. Rukhiben

to the said notice nor disputed the standard rent. By producing Ex.27 receipt and other receipts, the appellant-landlord has established that the tenancy was a ‘monthly tenancy’.16. In this regard, the learned counsel for the appellant has drawn our attention to the notice issued by the Defendant No. 1/2-Dahyalal Manilal Valand dated 27.01.2004, wherein it is clearly stated that the tenancy is a ‘monthly tenancy’ at a monthly rent of Rs.30/-. As pointed out by the trial court, the defendants deposited the amount after a lapse of one month after the receipt of notice. Resultantly, the respondent-defendant Nos.1/2 and 1/3 are liable to be evicted on the ground of default in payment of rent. The First Appellate Court and the High Court erred in ignoring the material evidence that the tenancy was a monthly tenancy and that the case would fall under Section 12(3) (a). The finding of the High Court as also of the First Appellate Court that the present tenancy is covered under Section 12(3)(b) is liable to be set aside and the order of eviction passed by the trial court on the ground of default in payment of rent is to be restored.17. Next question falling for consideration is, after the death of Manilal, whether defendant’s heirs-defendant Nos.1/2 and 1/3 are entitled to continue in the shop. Appellant-landlord pleaded that none of the Manilal’s sons were doing business of hair cutting alongwith the defendant Manilal and under Section 5(11)(c) of the Bombay Rent Control Act, the defendant Nos.1/2 and 1/3 are not entitled to continue in tenancy after the death of deceased-tenant Manilal. Section 5(11)(c) reads as under:-(11) “tenant” means any person by whom or on whose account rent is payable for any premises and includes-(a) xxx(b) xxx(c) (i) any member of the tenant’s family residing with him at the time of his death as may be decided in default of agreement by the Court;(ii) in relation to premises let for business, trade or storage, any member of the tenant’s family carrying on business, trade or storage with the tenant in the said premises at the time of the death of the tenant as may continue, after his death, to carry on the business, trade or storage, as the case may be, in the said premises and as may be decided in default of agreement by the Court."18. It is brought on record that defendant No.1/2 Dahyabhai was serving in Alembic Glass Works as full time worker and, to prove the same Ex.39 Service Card was produced which shows that Dahyabhai was a full time worker and he never carried on business of Barber alongwith the original tenant Manilal. Though in his evidence, defendant No.1/2 Dahyabhai has stated that he was staying in the shop and was doing barber work alongwith his father nothing was produced to prove the same. As rightly pointed out by the trial court, no evidence was produced to show that defendant No.1/2 Dahyabhai had worked alongwith his father or that he had cut hair of even a single person in Baroda in the tenanted shop premises.19. So far as the other son Bhogilal-defendant No.1/3 is concerned, it is brought on record that he was running a separate barber shop in Navjivan Society and to prove the same, appellant-landlord has produced photographs Exs.49-50 which showed that Bhogilal was actually working in his separate shop in Navjivan Society while his father Manilal was alive. In this regard, it is relevant to refer to the observation of the trial court that to his identity and his photographs, how defendant No.1/3 came to the court with his head completely shaven and moustache removed to disguise himself as a different person from the photographs Exs.49, 50 and 51. Nothing was brought on record to show that defendant Nos.1/3 had been doing the business with his father at any point of time. Further, the appellant-landlord has also produced Exs.43 and 44 photographs to show that there was only one chair for the customers in the shop and that neither defendant No.1/2 nor defendant No.1/3 were present in the shop to carry on the business alongwith tenant-Manilal thereafter. The First Appellate Court and the High Court failed to appreciate that the defendant No.1/2 was a full time worker in Alembic Glass works and defendant No. 1/3 was carrying on his business separately. The findings of the trial court that the defendant Nos.1/2 and 1/3 are not entitled to the benefit of Section 5(11)(c), is well reasoned and based on evidence and the same is to be restored.20. So far as the sub-letting is concerned, the defendant No.1/2 stated that the second defendant Somabhai Dahyabhai was engaged as their worker and that he was being paid 50% of the charges as worker and as still Somabhai did not find it profitable and, he had left the job. The fact that a stranger was engaged in the shop and he was being paid 50% labour charges, as rightly observed by the trial court that it must have been either a case of partnership or of sub-letting. That apart, second defendant Somabhai has not been examined to substantiate the version of the defendants that he was engaged by the defendants as their worker. The findings of the First Appellate Court and the High Court on sub-letting is accordingly reversed, restoring the findings of the trial court that the defendants are liable to be evicted on the ground of sub-letting also.21. The findings and the reasonings recorded by the High Court are not based on evidence, cannot be sustained. As rightly held by the trial court, the respondents-tenants are liable to be evicted on three grounds:-(i) default in payment of rent; (ii) defendant Nos.1/2 and 1/3 not being entitled to the benefit of Section 5(11)(c); and (iii) sub-letting. It is unfortunate that the appellant-landlord is litigating for more than four decades to get back possession of his own premises and, therefore, the respondent-tenants are directed to handover vacant possession of the premises immediately.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]12. So far as the first ground of eviction of arrears of rent is concerned, it is an admitted case that the tenant Manilal was in arrears of rent from 06.07.1974 to 05.05.1976 amounting to Rs.660/- and proper notice (Ex.31) was issued asking him to vacate premises in case he fails to make good the arrears of rent. Though the tenant Manilal received the said notice, no reply was sent there to; nor the dispute of standard rent was raised. It is only in the written statement filed by him, the dispute was raised for the first time as to the standard rent. Notably, the tenant Manilal had never applied for fixation of the standard rent earlier nor within one month of the service of notice had he applied for fixation of the standard rent. As noted earlier, the tenant Manilal did not even send reply notice disputing the standard rent.In this regard, thelearned counsel for the appellant has drawn our attention to the notice issued by the Defendant No. 1/2-Dahyalal Manilal Valand dated 27.01.2004, wherein it is clearly stated that the tenancy is a ‘monthlyat a monthly rent of Rs.30/-.As pointed out by the trial court, the defendants deposited the amount after a lapse of one month after the receipt of notice. Resultantly, the respondent-defendant Nos.1/2 and 1/3 are liable to be evicted on the ground of default in payment of rent. The First Appellate Court and the High Court erred in ignoring the material evidence that the tenancy was a monthly tenancy and that the case would fall under Section 12(3) (a). The finding of the High Court as also of the First Appellate Court that the present tenancy is covered under Section 12(3)(b) is liable to be set aside and the order of eviction passed by the trial court on the ground of default in payment of rent is to be restored.17. Next question falling for consideration is, after the death of Manilal, whetherheirs-defendant Nos.1/2 and 1/3 are entitled to continue in theshop. Appellant-landlord pleaded that none of thesons were doing business of hair cutting alongwith the defendant Manilal and under Section 5(11)(c) of the Bombay Rent Control Act, the defendant Nos.1/2 and 1/3 are not entitled to continue in tenancy after the death of deceased-tenant Manilal.It is brought on record that defendant No.1/2 Dahyabhai was serving in Alembic Glass Works as full time worker and, to prove the same Ex.39 Service Card was produced which shows that Dahyabhai was a full time worker and he never carried on business of Barber alongwith the original tenant Manilal. Though in his evidence, defendant No.1/2 Dahyabhai has stated that he was staying in the shop and was doing barber work alongwith his father nothing was produced to prove the same. As rightly pointed out by the trial court, no evidence was produced to show that defendant No.1/2 Dahyabhai had worked alongwith his father or that he had cut hair of even a single person in Baroda in the tenanted shop premises.19. So far as the other son Bhogilal-defendant No.1/3 is concerned, it is brought on record that he was running a separate barber shop in Navjivan Society and to prove the same, appellant-landlord has produced photographs Exs.49-50 which showed that Bhogilal was actually working in his separate shop in Navjivan Society while his father Manilal was alive. In this regard, it is relevant to refer to the observation of the trial court that to his identity and his photographs, how defendant No.1/3 came to the court with his head completely shaven and moustache removed to disguise himself as a different person from the photographs Exs.49, 50 and 51. Nothing was brought on record to show that defendant Nos.1/3 had been doing the business with his father at any point of time. Further, the appellant-landlord has also produced Exs.43 and 44 photographs to show that there was only one chair for the customers in the shop and that neither defendant No.1/2 nor defendant No.1/3 were present in the shop to carry on the business alongwith tenant-Manilal thereafter. The First Appellate Court and the High Court failed to appreciate that the defendant No.1/2 was a full time worker in Alembic Glass works and defendant No. 1/3 was carrying on his business separately. The findings of the trial court that the defendant Nos.1/2 and 1/3 are not entitled to the benefit of Section 5(11)(c), is well reasoned and based on evidence and the same is to be restored.20. So far as the sub-letting is concerned, the defendant No.1/2 stated that the second defendant Somabhai Dahyabhai was engaged as their worker and that he was being paid 50% of the charges as worker and as still Somabhai did not find it profitable and, he had left the job. The fact that a stranger was engaged in the shop and he was being paid 50% labour charges, as rightly observed by the trial court that it must have been either a case of partnership or of sub-letting. That apart, second defendant Somabhai has not been examined to substantiate the version of the defendants that he was engaged by the defendants as their worker. The findings of the First Appellate Court and the High Court on sub-letting is accordingly reversed, restoring the findings of the trial court that the defendants are liable to be evicted on the ground of sub-letting also.21. The findings and the reasonings recorded by the High Court are not based on evidence, cannot be sustained. As rightly held by the trial court, the respondents-tenants are liable to be evicted on three grounds:-(i) default in payment of rent; (ii) defendant Nos.1/2 and 1/3 not being entitled to the benefit of Section 5(11)(c); and (iii) sub-letting. It is unfortunate that the appellant-landlord is litigating for more than four decades to get back possession of his own premises and, therefore, the respondent-tenants are directed to handover vacant possession of the premises immediately.