Gujarat High Court
Vankar Kalabhai Dhulabhai vs Panchal Subhadraben ... on 23 July, 2014
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/CRA/146/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL REVISION APPLICATION NO. 146 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed to see Yes
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ? No
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VANKAR KALABHAI DHULABHAI....Applicant(s)
Versus
PANCHAL SUBHADRABEN RATILAL....Opponent(s)
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Appearance:
MR MP SHAH, ADVOCATE for the Applicant(s) No. 1
MS. KRUTI M SHAH, ADVOCATE for the Applicant(s) No. 1
MR MANISH S SHAH, ADVOCATE for the Opponent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 23/07/2014
ORAL JUDGMENT
Page 1 of 9
C/CRA/146/2014 JUDGMENT
The applicant herein is aggrieved by
judgment and decree passed by learned 5th Additional District Judge, Sabarkantha, at Himmatnagar, dismissing his Civil Appeal NO.08 of 2008, and thereby confirming judgment and decree passed by learned Principal Civil Judge, Bhiloda, in Civil Suit No.02 of 2002, requiring the applicant to vacate the premises.
2. The applicant herein is the tenant-original defendant, who has therefore invoked jurisdiction of this Court by filing the present Revision Application under Section 29(2) of the Bombay Rent, Hotel and Lodging House Rates Control Act, 1947.
3. It was on two grounds of arrears of rent and sub-letting that the respondent-landlord initiated the suit for possession of the premises. The plaintiff- landlord was the owner of shop No.2 situated in the market in Govindnagar area opposite the bus stand at Bhiloda. The said shop was rented to the applicant on monthly rent of Rs.103/-. The plaintiff prayed for eviction decree where one of the grounds pleaded was that the suit premises were sub-let to one Keshubhai Javansingh Parmar at monthly rent of Rs.200/- for doing business of printing press. The suit was resisted by the defendant-tenant by filing written statement at Exhibit 13 denying the case of the plaintiff-landlord. Issue No.7 framed by the trial court was with regard to sub-letting. The said ground was held proved and decree for eviction came to be passed by the trial court, mandating the tenant to hand over the possession of the suit shop within one Page 2 of 9 C/CRA/146/2014 JUDGMENT month. As noted, the first appellate court concurred with the findings and conclusions of the trial court and endorsed to the decree.
4. Heard learned advocate Ms.Kruti Shah for the applicant-tenant and learned advocate Mr.Manish S. Shah for the respondent. Record and Proceedings were called for by this Court. The same was perused and referred to, wherever considered necessary, in the context of the grounds of challenge in this Revision Application.
5. Section 13(1)(e) of the Bombay Rent Act provides that the landlord would be entitled to recover the possession of the premises if the tenant has unlawfully assigned or transferred his interest in the rented premises. The provision reads as under:
"13. When landlord may recover possession.-
(1) Notwithstanding anything contained in this Act, but subject to the provisions of Section 15, a landlord shall be entitled to recover possession of any premises if the Court is satisfied-
(e) that the tenant has, since the coming into operation of this Act lawfully sub-let the whole or part of the premises or assigned or transferred in any other manner his interest therein"
5.1 The acid test to constitute an act of sub- letting is that the tenant has parted with exclusive possession in favour of a third party. The Supreme Court in Dev Kumar Vs Swaran Lata [(1996) 1 SCC 25] explained the concept of "exclusive possession" saying that there it is parting of legal possession which in Page 3 of 9 C/CRA/146/2014 JUDGMENT turn means possession with right to include and also right to exclude others. In Nirmal Kanta Vs Ashok Kumar [(2008) 7 SCC 722] the ingredient of sub- tenancy came to be explained by the Supreme Court in the following words.
"... it is now well-established that a subtenancy or a sub-letting comes into existence when the tenant inducts a third party stranger to the landlord into the tenanted accommodation and parts with possession thereof wholly or in part in favour of such third party and puts him in exclusive possession thereof. The lessor and/or a landlord seeking eviction of a lessee or tenant alleging creation of a sub-tenancy has to prove such allegation by producing proper evidence to that effect. Once it is proved that the lessee and/or tenant has parted with exclusive possession of the demised premises for a monetary consideration, the creation of a subtenancy and/or the allegation of subletting stands established."
(para 16)
6. Turning to the present case, the essential ingredients of parting with exclusive possession in favour of the third party was established with cogent evidence. On record was copy of plaint of Regular Civil Suit No.142 of 1991 (Exh.86). The said suit was instituted by the plaintiff-said Keshubhai Javanji Parmar, describing himself as owner of Harisiddh Printing Press. The suit was against the present applicant-tenant and the subject matter property was the very premises rented by the respondent herein to the applicant. In that suit, it was stated by said Keshubhai Javanji that he was in need of place for doing printing press business at Bhiloda, that the Page 4 of 9 C/CRA/146/2014 JUDGMENT applicant had met him and conveyed that he had got property which could be given to him. It was the further case of said Keshubhai that thereafter the suit property was taken on rent at monthly rent of Rs.200/-, whereafter huge expenditure to improve the same was incurred. The plaintiff-Keshubhai asserted that since then he was in possession of the premises and was doing business of printing press therein. In the said suit, Exhibit 5 Application was filed which was initially rejected, but in the Appeal, an injunction was granted by the Court of Assistant Judge. The Court found that the possession of the premises was of said Keshubhai Javanji Parmar, and injunction was granted against the applicant herein- the tenant.
6.1 The aforesaid facts regarding the civil suit instituted by said third party Keshubhai against the applicant-tenant were a clear pointer to the exclusive possession of the suit premises to be of said third party Keshubhai Javanji Parmar. The plaintiff-landlord effectively discharged his initial burden of proof. The case specifically pleaded about sub-tenancy by the plaintiff in his plaint was supported by him in his evidence (Exh.33). He deposed that the tenant discontinued to pay the rent amount since 01st July, 1992. He also deposed about the fact of tenant having given the premises to said third party on a monthly rent and that the tenant had been receiving monetary consideration and profiteering.
6.2 Though the defendant denied it in the
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C/CRA/146/2014 JUDGMENT
written statement, in his evidence (Exh.55), in cross- examination he clearly admitted that shop No.2 in question was given by him to Keshubhai Javanji for doing business but without any monetary consideration. It was tenant's further admission that since said Keshubhai was not vacating the shop premises, he had a quarrel with him and that he put up a heap of bricks in front of the shop so as to obstruct the entry. These were precisely the facts pleaded as the cause of action by said Keshubhai in his aforementioned suit. In his evidence (Exh.55), the tenant accepted also that against him Regular Civil Suit No.142 of 1991 was instituted by said Keshubhai Javanji on 11th July, 1991. He accepted that said Keshubhai preferred Appeal against the order below Exhibit 5.
6.3 Therefore the fact that the possession of the suit premises was with the third party Keshubhai Javanji and further that he was running his printing business in the premises was clinchingly established. The aspect of exclusive possession and use of the premises by the third party were proved from the very admissions of the parties concerned. The document of plaint of Civil Suit No.142 of 1991 (Exh.86) read with evidence of the applicant-tenant (Exh.55) which contained admission about he having given the shop to the third party Keshubhai proved the creation of sub- tenancy. It is trite that admission of a party either in pleadings or in evidence is the best piece of evidence and needs no corroboration.
7. Learned advocate for the appellant tried to Page 6 of 9 C/CRA/146/2014 JUDGMENT submit that the suit of said Keshubhai was later dismissed for default, but, the said aspect was of no consequence because having regard to the phraseology "has sub-let" used in Section 13(1)(e), once the act of sub-letting by the tenant at particular point of time is established, the same would cause a liability for tenant to be evicted. The another contention of learned advocate for the tenant was a feeble attempt when she argued that for creating a sub-tenancy, passing of monetary consideration was also essential, and that the same was not established and that there was no evidence led by the landlord on that count.
7.1 In Smt. Rajbir Kaur and another Vs. M/s. S. Chokosiri and Co. [AIR 1988 SC 1845], the Supreme Court observed with reference to passing of monetary consideration that the transaction of sub-letting was by very nature clandestine arrangements between the tenant and the sub-tenant and it would be difficult to get direct evidence on the same. If exclusive possession of the alleged sub-tenant is established then it may not be impermissible for the Court to draw an inference that the transaction was entered into with mandatory consideration in mind.
7.2 In the present case, the case of the landlord pleaded in the plaint and furthered in his evidence that the tenant was collecting rent of Rs.200/- per month was unrebutted. As discussed hereinabove, the factum of parting of possession by the tenant and the third party is in exclusive possession was clearly shown and proved. In the Page 7 of 9 C/CRA/146/2014 JUDGMENT circumstances, the monetary consideration has to be inferred. The principle was reiterated in Vinaykishore Punamchand Mundhada v. Shri Bhumi Kalpataru [(2010) 9 SCC 129], observed that, "It would be impossible for the landlord to prove, by direct evidence, the arrangement between the tenant and sub-tenant. It would not be possible to establish by direct evidence as to whether the person inducted into possession by the tenant had paid monetary consideration to the tenant. Such arrangement which may have been made secretly, cannot be proved by affirmative evidence and in such circumstances, the court is required to draw its own inference upon the facts of the case proved at the enquiry. Delivery of exclusive possession by the tenant to a stranger to the landlord and without the prior permission of the landlord is one dominant factor based on which the court could infer as to whether the premises were sub-let." (para 19)
8. The findings concurrently recorded by both the Courts below about creation of sub-tenancy on the basis of aforesaid facts and evidence on record were eminently just and legal. The basic ingredients of subletting was proved by the landlord. It rendered the applicant-tenant liable to be evicted from the premises. The decree passed by the trial court and confirmed by the lower appellate court on the ground of Section 13(1)(e) of the Bombay Rent Act did not book any error so as to call for any interference in exercise of revisional jurisdiction of this Court under Section 29(2) of the Bombay Rent Act.
9. As a result, impugned judgment and decree Page 8 of 9 C/CRA/146/2014 JUDGMENT dated 10th January, 2008 passed by Principal Civil Judge, Bhiloda in Regular Civil Suit No.02 of 2002 and confirmed by 5th Additional District Judge, Sabarkantha by judgment dated 20th July, 2013 and decree dated 20th July, 2013/07th August, 2013 (corrected as per order below Exhibit 49) are hereby upheld.
9.1 At this stage, learned advocate Ms.Kruti M. Shah requested the Court to grant six months time to vacate the premises. Having heard submissions of learned advocate for respondent in this respect and having found the request reasonable, the applicant herein is granted time upto 31st January, 2015 to vacate the premises on condition of the applicant filing an undertaking before this Court on all usual terms including to undertake that he will hand over the possession of the suit premises to the respondent- landlord on or before 31st January, 2015, that he will not induct anybody in the premises, will not part with possession and will not create any charge or interest thereon and continue to pay the mesne profits equivalent to the rent amount until the possession is handed over. The undertaking inclusive of all the above and other usual terms shall be filed on or before 14th August, 2014.
10. Subject to above, the Revision Application stands dismissed. Notice is discharged. The office shall send back the Record and Proceedings to the Court concerned.
(N.V.ANJARIA, J.) Anup Page 9 of 9