Gujarat High Court
Ambika Iron Works & 5 vs Patel Manibhai Jivabhai-Decd on 20 July, 2015
Author: Akil Kureshi
Bench: Akil Kureshi
C/CRA/11/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL REVISION APPLICATION NO. 11 of 2015
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AMBIKA IRON WORKS & 5....Applicant(s)
Versus
PATEL MANIBHAI JIVABHAI-DECD, & 1....Opponent(s)
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Appearance:
MR BD KARIA, ADVOCATE for BHARGAV KARIA & ASSO, ADVOCATE for
the Applicant(s) No. 1 - 6
MR RASESH H PARIKH, ADVOCATE for the Opponent(s) No. 1.1 - 1.3
MR.HEMANG H PARIKH, ADVOCATE for the Opponent(s) No. 1.1 - 1.3
NOTICE SERVED BY DS for the Opponent(s) No. 2.1 - 2.3
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
Date : 20/07/2015
ORAL ORDER
1. This Civil Revision Application is filed by the original contesting defendants. They have challenged judgments passed by the Rent Courts granting decree of eviction of the suit premises to the opponent No.1 herein-original plaintiff.
2. Brief facts are as under:-
2.1 The opponent No.1-Manibhai Jivabhai Patel was owner of a non-agriculture land bearing survey No.668, admeasuring 22 gunthas, which was given Final Plot No.265 of Anand. He had executed a rent agreement on 04.11.1975 Page 1 of 6 C/CRA/11/2015 ORDER with respect to this land in favour of opponent No.2 herein-Ravjibhai Vaghajibhai Patel. Under such rent note, the landlord gave the land on rent to Ravjibhai for a period of 10 years at monthly rent of Rs.360/-. It was agreed that upon completion of the period of 10 years, if the tenant desired, the rent period can be extended by another 5 years, for which the tenant would pay yearly rent of Rs.7,000/-. Conditions No.7 and 8, which are important for our purpose, pertain to the authority of the tenant to put up construction on the said land.
Condition No.7 provided that it would be open for the tenant to carry out construction on such land. Condition No.8 provided that at the end of the lease period, if there was any existing construction put up by the tenant, the landlord would compensate the tenant by paying him the market price of such construction.
2.2 On 01.11.1977, said Ravjibhai Patel executed a rent note in favour of the present petitioners, who were doing small business in the name of "Sharda Engineering Works", a partnership firm. In such rent note, Ravjibhai rented out a portion of the said Final Plot No.265 and gave on rent an area admeasuring 2300 sq. ft. to the present petitioners for a period of 13 years at the monthly rent of Rs.185/-. Here also, conditions No.6 and 7 of the rent note are important. Condition No.6 Page 2 of 6 C/CRA/11/2015 ORDER authorized the petitioners to carry out construction on the rented premises. Condition No.7 provided that upon completion of the lease period, if the tenant has carried out any construction, the tenants would remove such construction at their cost and hand over vacant possession of the rented land.
2.3 The land owner-Manibhai Jivabhai filed Rent Suit No.474 of 1984 seeking eviction of the petitioners and Ravjibhai on the grounds of unpaid arrears of rent, bonafide requirement and most importantly, creating sub- tenancy without the authority of the landlord. The Rent Court decreed the suit on various grounds including on the ground of sub-tenancy. The lower appellate Court dismissed the appeal of the petitioners, upon which the present revision petition has been filed.
3. Having heard learned Advocates for the parties and having perused documents on record, I would like to concentrate on the question of sub-tenancy. Learned Counsel Shri Bhargav Karia submitted that Ravjibhai had been rented out open land, but he had himself constructed small shade after sub-dividing the larger area. Petitioners were given on rent one small such shade. He further submitted that in any case, the tenancy was created with the consent of the landlord-Manibhai Jivabhai. He lastly submitted that Ravjibhai himself had Page 3 of 6 C/CRA/11/2015 ORDER filed suit for eviction against the present petitioners. Such proceedings therefore should have been consolidated in the present Rent Suit. In any case, this would clearly demonstrate collusion between Ravjibhai and Manibhai.
4. Shri Parikh for the opponent No.1-heirs of deceased Manibhai opposed the petition submitting that the two Courts below have given concurrent findings and cogent reasons. In exercise of revisional powers under Section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, this Court therefore would not interfere.
5. Few facts are undisputed. Firstly that Manibhai was the owner of the suit land. Manibhai had leased the property in favour of Ravjibhai under the rent agreement dated 04.11.1975. As per the rent agreement, the land was an open land upon which the tenant was authorized to put up construction. The initial rent period was for 10 years. At the choice of the tenant, it can be extended by another period of 5 years. Ravjibhai, acting under such authority, created rent note in favour of the petitioners. A portion of the entire area was rented out to the petitioner. The area admeasured 2200 sq. fts. This rent note dated 01.11.1977 also referred to the land as open land, authorizing the sub-tenant to Page 4 of 6 C/CRA/11/2015 ORDER put up construction. Condition No.6 pertained to this aspect. Condition No.7 required the tenant to remove construction at the end of the rent period, which was envisaged as 13 years.
6. Contrary to what was canvassed by the Counsel for the petitioners, thus, what Ravjibhai rented out to the petitioners was open piece of land and not any constructed area. Though the defendant in the deposition had tried to suggest that Ravjibhai had constructed shade, there was no evidence to this effect produced on record.
7. It would thus appear that landlord-Manibhai rented the suit land to Ravjibhai and Ravjibhai in turn created a sub-tenancy in favour of the petitioners. If these facts are correct, only question to be decided would be whether such sub-tenancy was created with the permission of the landlord. Here also, the material on record would suggest to the contrary. In the written statement, the present petitioner never contended that the sub-tenancy was created with the consent of the landlord. I have also perused the cross-examination of plaintiff's witness-Harshadbhai Jayeshbhai Patel, where the present petitioners never made any suggestion to this witness regarding any consent or authority given by Manibhai to Ravjibhai to create sub-tenancy. I have also Page 5 of 6 C/CRA/11/2015 ORDER perused the deposition of Prabhubhai Laxmabhai Patel - proprietor of Sharda Engineering Works. In such deposition also, he never asserted that Manibhai had authorized Ravjibhai to create sub-tenancy.
8. In absence of any suggestion by the petitioners, either in the written statement or in the cross-examination of the plaintiff's witness or in their own evidence, any stand orally taken that the sub-tenancy was created with the consent of the landlord, must fail. Merely because Manibhai himself did not enter the witness box as he was 94 years old and plaintiff's deposition revolved round the oral evidence of said Harshadbhai, who was Power of Attorney Holder and grand-son and who claimed to be managing the properties and affairs of the plaintiff, would not destroy the plaintiff's case. What the said witness stated before the Court was what could be of his personal knowledge. Under the circumstances, the revision petition is dismissed.
(AKIL KURESHI, J.) SHITOLE Page 6 of 6