V.Sumatiben Maganlal Manani (D) By Lr vs Uttamchand Kashiprasad Shah And Anr

2. The trial judge had allowed the appellant's application and granted a decree of eviction in her favour on the ground that the suit premises had not been used by the tenant, without reasonable cause, for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit. In appeal against the judgment of the trial judge preferred by defendant no. 1 and the cross-objection filed by the plaintiff- appellant, the division bench of the Small Causes Court not only affirmed the finding of the trial court on non-user of the suit premises for a period of six months preceding the filing of the suit but also held the tenant liable for eviction on the ground that he had inducted in the suit premises defendant no.2 as a sub-tenant. In the revision filed by defendant no.1, however, the High Court held that both the findings arrived at by the trial court and the appeal court were bad and erroneous. It, accordingly, set aside the decree of eviction passed by the trial court and affirmed by the appeal court against defendant no.1 and dismissed the suit of the appellant-plaintiff.

3. 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 3 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 plaintiff's 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.

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 as under:

11. Coming to the issue of non-user of the suit shop for the purpose it was let out, the appellate court noted that according to the plaintiff the suit premises were rented out to defendant no.1 in June, 1974 for grocery business. But the business of grocery evidently did not succeed and since a few months after it was taken on rent, the shop was kept closed. Then, in the amendment petition filed on behalf of the plaintiff, it was expressly alleged that defendant no.1 was carrying on his grocery business under the name and 11 style of "Mahavir Provision Stores" from another shop in Sardar Patel Colony and later on he had set up yet another shop in Chandlodia area and the suit premises were sublet to defendant no.2.

23. We are unable to subscribe to the view taken by the High Court. On the 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.

24. In the result, the appeal is allowed with costs throughout.

......J. (R.M. LODHA) New Delhi;

July 4, 2011.