Case: Anilkumar Dadurao Dhekle Vs. Rukhiben

2. Brief facts which led to filing of this appeal are as follows: The appellant herein is the owner of the property known asa two storeyed building situated on Vadi Rang Mahal, Hathia Khan Road, Vadodara City near Alankar Studio and flour mill. The property consists of ground floor, first floor and second floor. The ground floor of the suit premises was let out to the first respondent-defendant No.1 Manilal Ishwarbhai Valand-the original tenant in the year 1958 on a monthly rent of Rs. 30/-. The original tenant was running a hair cutting salon in the rented premises under the name of ‘Excellent Hair DressingThe tenancy commenced from the 6th day of the month and ended on 5th day of the following month and for payment of rent, receipt was given from time to time. The original tenant was not in the habit of paying the rent regularly, that is, on the due date of each month and he was in arrears of rent for the period ranging from 06.07.1974 to 05.05.1976, amounting to Rs.660/ for twenty two months. On willful default in payment of rent, a notice was duly served upon the original tenant to make payment of the above arrears within one month from the date of receipt of notice and the tenant has neither paid the arrears nor sent any reply. Left with no alternative, the appellant-plaintiff was constrained to file Rent Suit No.499 of 1978 on 29.09.1978 before the Court of Small Causes Judge at Vadodara seeking possession of the property and arrears of rent. During the pendency of the suit, the original tenant Manilal Ishwarbhai Valand died on 26.11.1979 and his legal representatives viz., his wife and two sons namely, Dahyalal and Bhogilal were brought on record as defendant Nos.1/1 to 1/3.3. One of the sons of the tenant named Bhogilal independently runs hair cutting salon on Ajwa Road opposite to Navjivan Society. Similarly, another son Dahyalal was serving in Alembic Glass Works for the last 10 to 12 years. Even when tenant-Manilal was alive, his son Dahyalal never worked with his father and never helped him in running the shop. After the death of the original tenant-defendant No.1 Manilal, the appellant-plaintiff found that one Somabhai Dahiyabhai Valand was inducted into the suit premises by illegal sub-letting of the tenanted premises so as to deprive the appellant-plaintiff of his legal right to seek possession of the suit property. The said Somabhai Dahyabhai Valand was arrayed as defendant No.2 in the suit (respondent No.4 in this appeal).4. Upon consideration of the evidence adduced by the parties and the submissions made by the respective parties, the Small Causes Court allowed the rent suit on the ground of default in payment of rent by the respondents-defendants and also directed them to handover peaceful and vacant possession of the property to the appellant-plaintiff. It was further held by the Small Causes Court that after the death of the original tenant, the defendant Nos.1/2 and 1/3 are not statutory tenants of the said premises and that the defendant Nos.1/2 and 1/3 have unlawfully sub-let the suit property to respondent No.4 herein with an ulterior motive of depriving the appellant-plaintiff from obtaining peaceful and vacant possession of the suit premises.5. Being aggrieved by the order of the Small Causes Court, the legal representatives of the original tenant preferred Civil Appeal No.227 of 1981 before the District Judge, Vadodara. The 2nd Extra Assistant Judge, Vadodara on 30.07.1983 allowed the appeal filed by the respondents herein. The First Appellate Court held that under notice Ex.31, appellant-plaintiff demanded rent and other local taxes and hence the tenancy was not a monthly tenancy but annual, and rent was payable at the end of every year and that the case of the appellant-plaintiff was covered under Section 12(3)(b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 [Bombay Rent Control Act]. The First Appellate Court further held that the appellant-plaintiff failed to prove that defendant Nos.1/1 to 1/3 had sub-let the premise to the second defendant/4th respondent. On these findings, the appellate court reversed the order of eviction passed by the trial court.6. Feeling aggrieved by the order passed by the First Appellate Court, the appellant-plaintiff preferred the revision before the High Court under Section 29(2) of the Bombay Rent Control Act. As noted above, the High Court dismissed the revision holding that there is no default in payment of rent and that the defendants have deposited all the amount due, on the first day of the hearing of the suit and thus, complied with the provisions of Section 12(3)(b) of the Bombay Rent Control Act. Insofar as the sub-letting is concerned, the High Court affirmed the findings of the first appellate court. Aggrieved by the dismissal of the revision, the appellant-plaintiff is before us by way of this appeal.7. When the matter was taken up for admission and notice was issued, though the service was complete none appeared for the respondents. In the interest of justice, by order dated 08.03.2017, we directed the Registry to engage a counsel for the respondents through the Supreme Court Legal Services Committee and Ms. Richa Kapoor, Advocate was nominated to appear for the respondents.

Reasoning:
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.