Case: V. Sumatiben Maganlal Manani (dead) by L.R Vs. Uttamchand Kashiprasad Shah &amp; Another

The plaintiff-appellant is the owner of bungalow No.6 situated in Pathik Society, Naranpura, Ahmedabad. A part of the property, being the middle garage, bearing M.C. No.145-6-1, and F.P. No.11-11-A-6-1 was let out to defendant no.1 on June 1, 1974 for carrying on grocery business on a monthly rent of Rs.100/- plus municipal taxes, education cess etc. On June 9, 1977, a notice (Exh.68) was given to defendant No.1 on behalf of the appellant stating that he was in default in payment of the monthly rent and the demised shop was not in use since one year prior to the date of the notice. He was, accordingly, asked to vacate the shop and hand over its possession to the plaintiff. The notice did not have the desired result and, consequently, on July 18, 1977, the appellant filed the suit (H.R.P. Suit No.2866/1977) seeking a decree of eviction and for payment of arrears of rent and mesne profits against defendant no.1 on grounds of default in payment of rent, bonafide personal need and non-user of the suit shop by defendant no.1, without any reasonable cause, for a period of six months immediately preceding the filing of the suit. It was after the filing of the suit but before the summons was served on defendant no.1 that, he gave his reply (Exh.67) to the plaintiffs notice on August 23, 1977. In the reply, he did not expressly controvert the allegation that the suit premises were not in use since one year before the date of the notice.4. Later on, after the service of summons of the suit, defendant no.1 filed a written statement controverting all the allegations made by the plaintiff in the plaint. He denied any default on his part in payment of rent and also denied that the plaintiff-appellant was in bonafide personal need of the suit shop. He also denied the allegation of non-user and asserted that he carried on his business from the suit shop. Here, it may be noted that, in the plaint as it was originally filed, there was no allegation of any subletting of the shop by defendant no.1 but during the pendency of the suit, the plaintiff made an application stating that defendant no.1 had acquired a shop in Sardar Patel Colony, where he carried on his grocery business under the name and style ofHe had acquired, yet another shop in Chandlodia area. The suit shop that was not in use by him was sublet by him to one Kishanchand Chandansingh Rao who was carrying on his milk business under the name and style ofin the shop adjoining the suit shop. Defendant no.1 was realising rental of the plaintiffs shop from him. After being inducted in the suit shop, the sub-tenant was using it for carrying on his business and was keeping his articles there. The application seeking amendment in the plaint was allowed by the trial judge by order dated December 11, 1981, following which necessary amendments were carried out in the original plaint and the aforementioned Kishanchand Chandansingh Rao was impleaded in the suit as defendant no.2. On notice being issued, defendant no.2 filed a written statement denying the allegation of being inducted in the suit shop as a sub-tenant and stating that he was dragged in the suit unnecessarily only with a view to harass him. Defendant no.1 filed additional written statement, denying the allegation that he had inducted defendant no.2 in the suit shop as sub-tenant or that he was realising any rent from him.5. On the basis of the pleadings of the parties, the trial judge framed a large number of issues of which issue numbers (3), (4) and (4)(A) are of relevance for the present. Those are asWhether the plaintiff proves that the defendant has acquired a suitable alternative accommodation asWhether the defendant keeps the suit premises closed and does not use for more than six months prior to the suit asWhether the plaintiff proves that defendant No.1 has sublet, assigned or transferred the suit premises to the defendant No.2 and is profiteeringOn issue No.3, the trial judge gave a finding in the negative. On issue no.(4)(A) he held that though there appeared some substance in the plaintiffs case that the suit premises were in the use and occupation of defendant no.2, there was no evidence that it was in his exclusive possession and that he paid some consideration or any monthly rent to defendant no.1 for being inducted in the suit premises and, hence, the plea of subletting could not be a ground for eviction. On issue No.(4), however, he held in favour of the plaintiff and found that defendant no.1 had kept the suit premises closed, without any reasonable cause for more than six months preceding the date of the filing of the suit. It, accordingly, gave a decree of eviction against defendant No.1 on that basis.7. Against the judgment and decree passed by the trial judge, defendant no.1 preferred an appeal before the division bench of the Small Causes Court. The appellant-plaintiff too filed her cross-objections. The appellate court examined the evidences adduced by the two sides in support of their respective cases with great care and thoroughness and it is to the appellate order that we propose to refer here in some detail. The appellate court noted that the ground of subletting was raised on behalf of the plaintiff at a later stage through an amendment in the plaint. It referred to the evidence of Maganbhai Rambhai Manani, the husband and power of attorney holder of the plaintiff who was examined at Exh. 101 and who fully supported the plaintiffs case in all particulars. It also referred to the evidence of defendant no. 1 at Exh.344. Defendant no. 1 denied all the allegations made in the plaint, including the allegation of subletting. He maintained that he was carrying on his business from the suit shop through an employee, Damodar. The appellate court found that the plaintiffs case of subletting of the shop by defendant no.1 to defendant no.2 was greatly supported by the report prepared by the Court Commissioner who was appointed in another suit being H.R.P. Suit No.3291/81 and who visited the suit premises on September 22, 1981. The Court Commissioner did not find there any grocery items but he found lying in the suit shop six empty milk cans and some glass show-cases containing small card-board boxes used for packaging sweets, bearing the nameIn the loft of the shop there were five more milk cans and some 150 to 250 empty sweet boxes were also lying there. Interestingly, the Court Commissioner also found there certain books of accounts but before he could examine those books of accounts the inspecting party was attacked by four or five people coming from the adjoining shop of defendant no.2. The intruders assaulted Maganbhai Manani and disrupted the inspection being held by the Court Commissioner. The inspection, thus, came to an abrupt end.8. In regard to the incident Maganbhai, the husband and power of attorney holder of the plaintiff who had faced the main brunt of the assault, filed a criminal complaint against Kishanchand, defendant no.2. It is admitted that in the criminal case, Kishanchand was sentenced by the Metropolitan Magistrate to undergo imprisonment for a certain period. Against the judgment and order passed by the Magistrate, he preferred an appeal before the Sessions Court. In the appeal his conviction was maintained though the sentence was reduced to imprisonment till the rising of the court. Against the order passed by the Sessions Court, Kishanchand did not prefer any revision before the High Court and the order of conviction, thus, attained finality. In those circumstances there is no reason to doubt that the inspection by the Court Commissioner was obstructed at the instance of Kishanchand, defendant no.2 and the persons who came to the suit shop, the site of inspection, and assaulted Maganbhai, had come at his behest.

Reasoning: Maganbhai Manani, the husband and the power of attorney holder of the plaintiff in his deposition before the court fully supported the case of the plaintiff on the question of non-user as well. Apart from the evidence of the plaintiff, there were two sets of photographs, one taken on January 4, 1977 and the other on January 3, 1981 in which the suit shop appeared closed. The photographs taken on January 4, 1977, at exhibits 301 to 304, were formally proved by one Mr. Narendrabhai Madhavlal Gajjar at (Exh.300) who is a professional photographer and has a shop under the name and style of Gajjar Studio. He stated before the court that he had taken the photographs on the instructions of the husband of the landlady on January 4, 1977 at about 10 to 11 in the morning and had issued the bill, Exh.201. The other set of photographs, dated January 3, 1981, were taken by Vinodbhai Boria, who is also a professional photographer. In regard to the two sets of photographs the appellate court rightly said that those would, at best, show that the shop was closed on the dates on which the photographs were taken. The photographs, therefore, could not form conclusive evidence of non-user of the shop over a period of six months and, at best, they could be used as a piece of corroborative evidence.13. Apart from the photographs, there was the report of the Court Commissioner who visited the suit shop on July 23, 1977 and found it closed. The explanation of defendant no.1 was that on that date his maternal uncle had died and the shop was not opened for that reason. His witness Maheshkumar Trivedi, at Exh. 404, who was writing the accounts of business of defendant no.1, however, had a different explanation. According to him, the shop was not opened on July 23, 1977 because that was a holiday. The court has observed that grocery shops are not known to be closed on holidays. But the matter does not end there. After finding the suit shop closed, the Court Commissioner proceeded to visit the shop of defendant no.1 called `Mahavir Provision Stores at Sardar Patel Colony. There the shop was not only open but defendant no.1 was himself present in the shop. The court has observed, and rightly so, that on account of the death of the maternal uncle it cannot be that one shop would open and the other would remain closed.14. The most clinching evidence on the issue of non-user of the suit premises, however, comes in the form of the electricity bills. Electricity bills, Exhs. 172 to 177, are dated 10.1.1977, 23.2.1977, 25.3.1977, 2.5.1977, 2.6.1977 and 2.9.1977 respectively. These electricity bills clearly show that in the suit shop there was no consumption of electricity for the period of six months before the filing of the suit. In order to prove non-consumption of any electricity at the suit shop, the plaintiff also examined Rameshbhai Patel, at Exh.332, who was an employee of the Ahmedabad Electricity Company, as a Senior Clerk, for 12 years before his examination in court. He produced before the court statement of electric service number 149090 (of the suit shop) with his list Exh.74/1. He also produced other statements with lists, Exh.74/2 and Exh.74/3, containing record of metre readings of the suit premises showing electric consumption for different periods. He also referred to an application submitted by defendant no.1 for transfer of electric service in his name and for resuming electric supply in the suitcriticism by the High Court of the appellate court judgment is unwarranted. The appellate court did not arrive at its finding on a juxtaposition of segregated pieces of fact but it took into consideration the overall picture emerging from all the material facts and circumstances relating to the case. The appellate court expressly said that the two sets of photographs would only show that the shop was closed on the dates the pictures were taken and those pictures alone were not sufficient to prove non-user of the suit premises over a period of six months and they could, at best, be used as corroborative evidence. It, however, took into consideration the circumstance that apart from the suit premises defendant No.1 had set up another shop calledat Sardar Patel Colony and yet another shop in Chandlodia area. It also took into consideration that when the Court Commissioner visited the suit shop on July 23, 1977 it was found closed. What is of greater significance in that regard, however, is that defendant no.1 gave a false explanation for not opening the shop, stating that it was not opened due to the death of his maternal uncle even though the other shop at Sardar Patel Colony was not only open but he was also personally present there on that date. The court also took into consideration the falsefiled by defendant No.1 in support of the plea that he continued to run the grocery business at the suit premises through an employee. The court also noticed that another Court Commissioner had gone to the suit premises on September 22, 1981. He did not find in the shop any grocery articles but found there articles belonging to defendant no.2 who carried on his milk business from the adjoining shop. Besides all this, the appellate court had taken into consideration the electricity bills that showed that there was no consumption of electricity over a period of six months immediately preceding the filing of thethe basis of the materials available on record, as discussed in detail in the judgment of the appellate court, it was perfectly justified in arriving at the finding of subletting against defendant no.1. On a careful consideration of the matter, we find that the High Court, in exercise of its revisional jurisdiction, committed a mistake in interfering with and setting aside the findings of fact properly arrived at by the courts below. The judgment and order passed by the High Court is unsustainable by any reckoning. We, accordingly, set aside the judgment of the High Court and restore the decree passed by the trial court as affirmed by the appellate court.