Gujarat High Court
Maheshbhai Jayantibhai Rana & vs Harshad Jatyantibhai Rana & 8 on 7 April, 2017
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/SA/208/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND APPEAL NO. 208 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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MAHESHBHAI JAYANTIBHAI RANA & 1....Appellant(s)
Versus
HARSHAD JATYANTIBHAI RANA & 8....Respondent(s)
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Appearance:
DARSHAN M VARANDANI, ADVOCATE for the Appellant(s) No. 1 - 2
MR KL PANDYA, ADVOCATE for the Respondent(s) No. 5 , 7
MR SURESH B BHATT, ADVOCATE for the Respondent(s) No. 1 - 4
MR VENUGOPAL PATEL, ADVOCATE for the Respondent(s) No. 5 , 7
NOTICE SERVED BY DS for the Respondent(s) No. 6 , 8
UNSERVED-REFUSED (N) for the Respondent(s) No. 9
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 07/04/2017
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C/SA/208/2014 JUDGMENT
ORAL JUDGMENT
1. The present Second Appeal is preferred under Section 100 of the Code of Civil Procedure posing substantial questions of law as follows:
(i) Whether in the facts and circumstances of the case, the tenancy will devolve on the successors of the tenant on the death of tenant in accordance with the provisions of section 5 (11) (C) (ii) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947?
(ii) Whether in the facts and circumstances of the case, the appellants proved that the appellants are members of the tenant's family carrying on business with the tenant in the said premises at the time of the death of the tenant?
Or in the alternative
(iii) Whether in the facts and circumstances of the case, the appellants proved that tenancy rights will devolve upon the appellants and respondent no.1 and 2 jointly after the death of their father, Jayantibhai?
(iv) Whether in the facts and circumstances of the case, the respondent no.1 and 2 is legally entitled to purchase the suit premises from the land lord without the consent of appellants?
2. Heard learned advocate Ms. Nair for the appellants- original plaintiffs and learned advocate Shri Suresh B Bhatt for respondent nos. 1 to 4.
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C/SA/208/2014 JUDGMENT
3. The background of the facts as narrated are that the appellants-original plaintiffs are the sitting tenants occupying the premises in question as tenants. However, Regular Civil Suit No.128 of 2003 came to be filed by the appellants- original plaintiffs challenging the transaction of agreement to sell and sale deed entered into by the respondent nos.5 to 7
-original owner on the ground that they are the tenants. However, on appreciation of material and evidence the suit of the plaintiffs came to be dismissed vide judgment and order dated 30.06.2009 by the Principal Senior Civil Judge, Nadiad. Therefore, the appellants-original plaintiffs preferred Regular Civil Appeal No.41 of 2009 before the Principle District Judge, Kheda. The First Appellate Court also on appreciation of material and evidence and after hearing the learned advocate for the parties, confirmed the judgment and order passed by the trial court dismissing the appeal which has led to filing of the present appeal posing the substantial questions of law as referred to hereinabove.
4. Learned advocate Ms. Nair has tried to refer to the provisions of Section 5 (11) (C) (ii) of the Bombay Rents, Hotel and Lodging House Rates Control Act and submitted that during the life time and after the death of deceased Jayantibhai, the appellant no.2 was doing business and therefore tenancy right has devolved upon him as per Section 5 (11) (C) (ii) of the Bombay Rents, Hotel and Lodging House Rates Control Act. She tried to submit that rights of the appellants are being affected which has not been appreciated.
5. Learned advocate Shri Bhatt submitted that the plaintiffs referred to the prayer regarding setting aside the sale deed and agreement to sell of the original owner and Page 3 of 5 HC-NIC Page 3 of 5 Created On Tue Aug 15 18:53:19 IST 2017 C/SA/208/2014 JUDGMENT therefore both the courts having considered the relevant issue declined to entertain the suit, and also appeal. He submitted that there is no such provision by which the land lord cannot enter into a transaction with the sitting tenants with regard to the property. He, therefore, submitted that the concurrent finding of facts may not be disturbed as there is no substantial questions of law which could be said to have been involved.
6. In view of the rival submission and having regard to the background of the facts, it is not in dispute that the appellants-original plaintiffs are the tenants. Therefore, the issue of tenancy right or devolvement of the tenancy right qua the plaintiffs is not an issue. The real crux of the matter is with regard to the relief sought in the suit challenging the transaction of transfer of the said suit premises by the original owner in favour of respondent nos.5 to 7. Both the courts have not found on appreciation of material and evidence that there is no such provision by which a person cannot deal with his property even if there is a sitting tenant. In fact, First Appellate Court on appreciation of the evidence has clearly observed that the tenancy or the premises was allowed for the business, which may continue after the death if the business or trade or storage as the case may be is made in the premises. The discussion has been made referring to the issue of the license under the Bombay Shop and Establishment Act, at Exh. 149 and it has been clearly found that the deceased Jayantibhai expired on 29.03.1996 and thereafter the license was issued, however, it is also observed that after some time it has been used.
7. In any view of the matter, the provisions of the Rent Act Page 4 of 5 HC-NIC Page 4 of 5 Created On Tue Aug 15 18:53:19 IST 2017 C/SA/208/2014 JUDGMENT referring to the tenancy right which would not be affected and the issue with regard to challenge to the agreement to sell is a separate issue. Therefore, the findings and conclusion arrived at cannot be said to be erroneous or perverse which would call for any interference in the present Second Appeal.
8. The Hon'ble Apex Court has laid down broad guidelines with regard to the scope of exercise of discretion under Section 100 of the Code of Civil Procedure after the amendment in 1976. A word of caution has been expressed that normally the High Court would not exercise the discretion under Section 100 of the Code of Civil Procedure unless there is a substantial questions of law which can be said to have been involved.
9. Having regard to the background of the fact, the present Second Appeal cannot be entertained and deserves to be dismissed, and accordingly stands dismissed. Notice is discharged.
(RAJESH H.SHUKLA, J.) ABHISHEK Page 5 of 5 HC-NIC Page 5 of 5 Created On Tue Aug 15 18:53:19 IST 2017