Gujarat High Court
Chandrakant Gangadas Sanghavi vs Hansaben Dhirajlal Jadga Died Through ... on 9 May, 2025
NEUTRAL CITATION
C/CRA/35/2024 CAV JUDGMENT DATED: 09/05/2025
undefined
Reserved On : -24.04.2025
Pronounced On : 09/05/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 35 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/CIVIL REVISION APPLICATION NO. 35 of 2024
With
R/CIVIL REVISION APPLICATION NO. 36 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/CIVIL REVISION APPLICATION NO. 36 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER Sd/-
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Approved for Reporting Yes No
✔
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CHANDRAKANT GANGADAS SANGHAVI & ANR.
Versus
HANSABEN DHIRAJLAL JADGA DIED THROUGH LHR & ORS.
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Appearance:
MR YN RAVANI(718) for the Applicant(s) No. 1,2
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Opponent(s) No. 1
MS MEDHA N PANDYA(6171) for the Opponent(s) No. 1.2,1.3,1.4,1.5,1.6
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
CAV JUDGMENT
1. The present Civil Revision Application is filed under Section 29 of the Bombay Rents, Hotel and Lodging House Rates Control Act Page 1 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:10 IST 2025 NEUTRAL CITATION C/CRA/35/2024 CAV JUDGMENT DATED: 09/05/2025 undefined 1947 (for short "the Rent Act") challenging Judgment and Decree passed by the Second Additional District Judge Rajula in Regular Civil Appeal No.12 of 2022, whereby the judgement and decree passed in Regular Civil Suit No.34 of 2016 by Additional Senior Civil Judge Rajula has been confirmed.
2. Since the substantial questions are involved in Regular Civil Suit No.34 of 2016, the same is considered as the lead suit and the parties of the Civil Suit No.34 of 2016 are referred to at their original status that was there in the Civil Suit No.34 of 2016 and common order is passed inf both the Civil Revision Applications as the point of issue is common in both the Civil Revision Applications.
3. For the sake of brevity and convenience, petitioners are referred to as the original defendant nos.5 and 6 and the respondent no.1 herein is referred to as plaintiff.
4. The brief facts arising in the present Civil Revision Application are as under:
5. The plaintiff has purchased the suit property from one Kishorbhai Makwana on 25.08.2009, it was the case of the plaintiff before the Page 2 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:10 IST 2025 NEUTRAL CITATION C/CRA/35/2024 CAV JUDGMENT DATED: 09/05/2025 undefined Trial Court that the plaintiff is the owner of the suit property and the predecessor in title of the plaintiff had given on rent the suit property to one Bhupatrai Gangadas Sanghvi and that defendant nos.5 and 6 are subtenants of said Bhupatrai Gangadas Sanghvi. It was a case of the plaintiff before the Trial Court that the plaintiff had intimated the legal heirs of deceased late Bhupatrai Gangadas Sanghvi, that the suit property has been purchased by the plaintiff in the year 2009 and that all the transactions with respect to the suit property have to be carried out with the plaintiff. The legal heirs of Bhupatrai Gangadas Sanghvi had filed Regular Civil Suit No.127 of 2015 against the plaintiff for a declaration that after the death of late Bhupatbhai Sanghvi, the plaintiffs of Regular Civil Suit No.127 of 2015 had become the tenants of the suit property.
6. The original defendant nos.5 and 6 i.e. the present petitioner herein had filed Regular Civil Suit No.132 of 2015, and the said suit was filed on the ground that the defendant nos.5 and 6 are in possession of the suit property as per their tenancy rights and after framing issues and after leading oral and documentary evidence, and after giving finding on all the issues, the Trial Court held that the plaintiffs of Regular Civil Suit No.127 of 2015 are the legal tenants in the disputed shop and that the plaintiffs of Regular Civil Suit No.132 of 2015 are in possession of the eastern side of the suit property.
7. It is submitted that the landlord filed a suit for eviction against the legal heirs of Bhupatrai and defendant nos.5 and 6 herein on the Page 3 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:10 IST 2025 NEUTRAL CITATION C/CRA/35/2024 CAV JUDGMENT DATED: 09/05/2025 undefined ground that the defendant nos.1 to 4 are in arrears of rent for more than six months and the defendant nos.1 to 4 have neglected to pay the due amount of rent within one month from the date of service of notice. The said suit was also filed on the ground that defendant nos.1 to 4 have sublet the suit property to defendant nos.5 and 6 and the Trial Court after giving findings on all the issues, decreed the suit on the ground of defendant nos.1 to 4 being arrears of rent for more than six months and also on the ground that the defendant nos.1 to 4 have sublet the suit property to defendant nos.5 and 6
8. Aggrieved by the judgement and decree passed in Regular Civil Suit No.34 of 2016, which was challenged by defendant nos.5 and 6 by filing Regular Civil Appeal No.12 of 2022 and being aggrieved by the judgement and decree passed in Regular Civil Suit No.132 of 2015 and First Appeal original defendant nos.5 and 6 have filed Civil Revision Application.
Submissions of the learned advocate for the petitioner/ defendant nos.5 and 6:
9. Learned advocate for defendant nos.5 and 6 have mainly contended that the suit property was taken on rent by the father of defendant nos.5 and 6 i.e. Gangadas Sanghvi, and it has been argued that in the said premises, the defendant nos.5 and 6 are doing business in the name of Maheshkumar and Brothers.
10. It has been mainly argued by the learned advocate for defendant Page 4 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:10 IST 2025 NEUTRAL CITATION C/CRA/35/2024 CAV JUDGMENT DATED: 09/05/2025 undefined nos.5 and 6 that that Gangadas Sanghvi had four children, Bhupatrai Sanghvi, Chandrakant Sanghvi, Sharadbhai Sanghvi and Maheshbhai Sanghvi and on the death of Maheshbhai Sanghvi, Gangadas Sanghvi had started the business in the name of Maheshkumar and Brothers and on the death of the said Gangadas Sanghvi, the three children of Gangadas Sanghvi, i.e. Bhupatrai Sanghvi (the father of defendant nos.1 to 4), and defendant nos.5 and 6, were doing business in the suit premises. It is a case of the defendant nos.5 and 6 that on the death of late Gangadas Sanghvi, Bhupatrai Sanghvi relinquished his share by executing a relinquishment deed, which is produced vide exhibit-103 and had started his business at a different place, and even after the death of Bhupatrai Sanghvi, defendant nos.5 and 6, i.e. the petitioner herein continued the said business in the name and style of Maheshkumar and Brothers.
11. The suit property has been purchased by the plaintiff in the year 2009 and a notice has been issued in the year 2015 to the heirs of late Bhupatrai Sanghvi. Learned advocate for defendant nos.5 and 6 has also drawn attention of this Court to the notice issued by the plaintiff to the defendant nos.1 to 4 dated 21.03.2016 which is produced vide exhibit 36, the said notice was replied by defendant nos.1 and 4. It is the case of the defendant nos.5 and 6 that there was no notice of attornment issued by the plaintiff to defendant nos.5 and 6 with respect to purchase of the suit property by the plaintiff.Page 5 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:10 IST 2025
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12. Learned advocate for the defendant nos.5 and 6 has also drawn attention of this Court to certain relevant documents, more particularly, relinquishment deed produced at exhibit 103, and the defendant nos.5 and 6 have stated that the said deed clearly states that Bhupatrai Sanghvi relinquished his right with respect to the suit property in favour of defendant nos.5 and 6.
13. Learned advocate for defendant nos.5 and 6 has also relied on the certificate issued under the Shop and Establishment Act, 2019, which shows the name of the owner of the suit property as Gangadas Morarjibhai, i.e. the father of defendant nos. 5 and 6 and late Bhupatrai Sanghvi and the name of the business is also mentioned as Maheshkumar & Brothers, and therefore, it has been argued by the learned advocate for defendant nos.5 and 6 that the tenant of the suit property was actually Gangadas Morarjibhai and not Bhupatrai and the the defendant nos.5 and 6 were doing business with Gangadas Morarji at the time of his death and therefore, as per the provisions of 5(11)(c) of Bombay Rent, Hotel and Lodging, House Rates, Control Act, 1947, the defendant nos.5 and 6 are not sub-tenant of the suit property, but being the legal heirs of late Gangadas Morarjibhai, the defendant nos.5 and 6 are in possession of the property.
14. Moreover, it has also been argued that the plaintiffs are doing business in the nearby vicinity of the suit property, and therefore they were aware that after the death of Bhupatrai Sanghvi, defendant nos.5 and 6 are occupying the premises as tenant, and Page 6 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:10 IST 2025 NEUTRAL CITATION C/CRA/35/2024 CAV JUDGMENT DATED: 09/05/2025 undefined therefore, the suit could not have been filed by the plaintiff in the year 2015.
15. It has also been argued by the learned advocate for defendant nos.5 and 6 that defendant nos.5 and 6 are not strangers to the suit property and defendant nos.5 and 6 are the brothers of late Bhupatrai Sanghvi, whom the plaintiff acknowledges to be the tenant of the suit property and being the brother of Bhupatrai Sanghvi, the defendant nos.5 and 6 will fall in the category of 5(11)(c) of the Bombay Rent, Hotel and Lodging, House Rates, Control Act, 1947, more particularly, in the definition of family as according to the plaintiff, possession of the property as a tenant was of Bhupatrai Sanghvi.
16. Learned advocate for the defendant nos.5 and 6 has relied on the judgment reported in 2013 (1) GLR 726, in the case of Trustees of Gopinathji Devmandir Public Trust V. Legal Heir of Decd. Jadiben Jivabhai Koli. The learned advocate for the defendant nos.5 and 6 has also argued that the original landlord has not entered the witness box and has not given any oral evidence and the oral evidence that have been deposed for and on behalf of the plaintiff is by the power of attorney holder of the plaintiff and therefore also the Trial Court and the Appellate Court could not have passed the judgment and decree of eviction.
17. The learned advocate for defendants nos.5 and 6 have relied on the judgment reported in AIR 2008 Gujarat 44, in case of Ajay Page 7 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:10 IST 2025 NEUTRAL CITATION C/CRA/35/2024 CAV JUDGMENT DATED: 09/05/2025 undefined Kirtakant Ghelani and Ors. Vs. Mathureshnagar Co-operative Housing Society Ltd. and anr and it has been argued that the impugned judgment and decree of the Trial Court is required to be quashed and set aside as the same is against the provisions of law and the facts. It has been argued that the impugned judgment and order passed by the appellate Court confirming the Judgment and decree of the Trial Court is perverse and is required to be interfered by this Court exercising their revisional power under Section 29 of the Rent Act.
18. Learned advocate for defendant nos.5 and 6 has also argued that though the money order was sent by defendant nos.5 and 6, the said money order was refused by the plaintiff and therefore the Trial Court could not have passed a judgement and decree on the ground of defendants being tenant in arrears.
Submissions on behalf of Respondent/ plaintiff:
19. Per contra, the learned advocate for the plaintiff has mainly contended that the tenant of the suit property was Bhupatai Sanghavi and the relinquishment deed has been produced by defendant nos.5 and 6 vide exhibit 103, on which the defendant nos.5 and 6 are relying on, and on the bare perusal of the said document, i.e. the relinquishment deed produced by exhibit 103, it clearly states that the tenant of the suit property, Bhupatrai Gangadas has relinquished his right in the suit property. The fact remains that the said relinquishment deed on which the defendant Page 8 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:10 IST 2025 NEUTRAL CITATION C/CRA/35/2024 CAV JUDGMENT DATED: 09/05/2025 undefined nos.5 and 6 want to rely, specifically states that the tenant of the suit property is Bhupatrai Sanghvi. Moreover, learned advocate for the plaintiff has also argued that there is no documentary evidence to support the case of defendant nos.5 and 6 that in the suit property, Gangadas Morarjibhai was ever the tenant of the suit property. The defendants nos.5 and 6 are relying on document exhibit 99, which is the certificate issued under the Bombay Shop & Establishment Act, 1948 but the said document also does not state anything about the suit property and therefore, it cannot be believed that the said document is with respect to the suit property as the suit property is known as Kava Mansion and in the said document, the word Mahatma Gandhi Road is only mentioned.
20. Learned advocate for the plaintiff has also relied on the oral evidence produced at exhibit 97, i.e. the clerk of Rajula Nagar Palika to prove that the document on which the defendant nos.5 and 6 rely to prove that Gangadas Morarjibhhai was the tenant of the property i.e. exhibit 99 does not mention the description of the suit property.
21. Learned advocate for the plaintiff has also relied on the cross-
examination of defendant no.5, wherein defendant no.5 in his cross-examination has admitted that, the tenant of the suit property was, Bhupatrai Gangadas Morarjibhai.
22. The defendant nos.5 and 6 have produced the rent receipt of the suit property vide exh. 122 and the said rent receipt produced is in Page 9 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:10 IST 2025 NEUTRAL CITATION C/CRA/35/2024 CAV JUDGMENT DATED: 09/05/2025 undefined the name of late Bhupatrai Sanghavi and therefore, it has been argued that, late Bhupatrai Sanghvi was the tenant of the property and that defendant nos.5 and 6 were never the tenants of the suit property. Learned advocate for the defendant nos.5 and 6 has also relied on the judgement reported in 1995 (3) BOMCR 559, in case of Smt. Bhagem Anant Shirodkar Vs. Shri Bascore Vitola Sinai Vaglo And Ors.
23. Learned advocate for the plaintiff has also argued that the plaintiffs are residing at Mumbai and the same can be clearly established from the cause title of the plaint and therefore, it cannot be stated that the plaintiffs were aware that defendant nos.5 and 6 were in possession of the premises since the year 1982 and therefore, it has been argued that the there is no perversity in the order and the findings recorded by the Court below are based on evidence and in view of the said fact, the present Civil Revision Application is required to be rejected.
Analysis and Findings:
24. Having heard learned advocates for the parties, the following facts are undisputed:
(i) There is no rent note which has been executed between the landlord and the tenant produced before the Court.
(ii) The sale deed that has been executed between the predecessor in title of the plaintiff and the plaintiff produced states the name of Bhupatrai Sanghvi as the tenant of the property.Page 10 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:10 IST 2025
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(iii) The defendant nos.5 and 6 have produced the relinquishment deed vide exhibit 103 which has been executed by Bhupatrai Sanghvi.
(iv) The rent receipt produced by defendant nos.5 and 6 also states the name of Bhupatrai Sanghvi as the tenant of the premises.
(v) There is no document coming forward by defendant nos.5 and 6 that Gangadas Morarjibhai was the tenant in the suit property. The document i.e. exhibit 99, which is the certificate under the Bombay Shop and Establishment Act, 1948 also does not state that Gangadas Sanghvi is the tenant of the suit premises.
25. In view of the said fact the disputes between the plaintiff, the legal heirs of Bhupatrai Sanghvi, and defendant nos.5 and 6 are as follows:
(i) Legal heirs of Bhupatrai Sanghvi filed Civil Suit No.127 of 2015 to declare them as the tenant of the suit premises and the Trial Court has declared the plaintiffs as a legal tenants in the suit premises. The said order was challenged by the defendant nos.5 and 6 by filing Regular Civil Appeal No.13 of 2022 and the said appeal is also dismissed.
(ii) The defendant nos.5 and 6 had filed Civil Suit No.132 of 2015, and the Trial Court held that defendant nos. 5 and 6 are in possession of the property.
(iii) The original plaintiff of Civil Suit No.34 of 2016 had filed a Page 11 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:10 IST 2025 NEUTRAL CITATION C/CRA/35/2024 CAV JUDGMENT DATED: 09/05/2025 undefined suit for eviction on the ground of defendant nos.1 to 4 i.e. legal heirs of Bhupatrai Sanghvi being tenants in arrears and also on the ground that defendant nos.1 to 4 have sublet the suit property in favour of defendant no.5 and 6, and the Trial Court has passed a judgement and decree of eviction of defendant nos.5 and 6 from the suit property, and defendant nos.5 and 6 having filed an appeal the same has been dismissed. The issues that were framed in Civil Suit No.127 and 132 of 2015 are as under:
26. The issues that were framed in Civil Suit were framed as under:
"1. Whether the Plaintiff of RCS 127 proves that they are in the possession of the rented shop situated in the eastern side of the properties situated in Rajula Main Bazar, Mahatma Gandhi Road, Kava mantion bearing City Survey No. 47, 48 and 49 which was aggregated vide City survey No. 47 admeasuring 436.24 square meter?
2. Whether the Plaintiff of RCS 132 proves that they are in the possession of disputed shop as per Tenancy rights?
3. Whether the Plaintiffs proves that Page 12 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:10 IST 2025 NEUTRAL CITATION C/CRA/35/2024 CAV JUDGMENT DATED: 09/05/2025 undefined the Defendant are demolishing the rented suit properties and thus are trying to dissolve their Tenancy rights?
4. Whether the Plaintiffs proves that their Suit is in Limitation of Time ?
5. Whether the Plaintiffs proves that they have used proper court fees in their respective Suits?
6. Whether the Plaintiffs proves that they have joined proper and necessary parties ?
7. Whether the Defendant proves that this Court has no Jurisdiction to try this Suit ?"
27. Therefore the Trial Court has granted the decree of eviction on the point of arrears of rent and subletting, we shall not take the issue of defendant nos.1 to 4 being arrears in rent (1).
28. Finding on arrears of rent.
The plaintiff has purchased the suit property in the year 2009.
Page 13 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:10 IST 2025NEUTRAL CITATION C/CRA/35/2024 CAV JUDGMENT DATED: 09/05/2025 undefined The provisions of section 12 of the Bombay Rent Act reads as under:-
"12. (1) A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so tar as they are consistent with the provisions of this Act.
[(1A) Where by reason of any riot or violence of mob any material part of the premises in a disturbed area is wholly destroyed or rendered substantially and permanently unfit for the purpose for which it was let, the landlord shall not be entitled to --
(a) the standard rent and permitted increases due for the premises,
(b) recover possession of such premises merely on the ground of nonpayment of standard rent and permitted increases Page 14 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:10 IST 2025 NEUTRAL CITATION C/CRA/35/2024 CAV JUDGMENT DATED: 09/05/2025 undefined due, during the period in which such premises remain so destroyed or unfit.] [(1B) Notwithstanding anything contained in this Act, where by reason of earthquake or any other natural calamity, any material part of premises is wholly destroyed or rendered substantially and permanently unfit for the purpose for which it was let, the landlord shall not be entitled to--
(a) standard rent and permitted increases due for the premises,
(b) recover possession of such premises merely on the ground of non payment of standard rent and permitted increases due, during the period in which such premises remained so destroyed or unfit.] (2) No suit for recovery of possession shall be instituted by a landlord against a tenant Page 15 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:10 IST 2025 NEUTRAL CITATION C/CRA/35/2024 CAV JUDGMENT DATED: 09/05/2025 undefined on the ground of non payment of the standard rent or permitted increases due, until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in section 106 of the Transfer of Property Act, 1882.
[(3) (a) Where the rent is payble by the month and there is no dispute regarding the amount of standard rent or permitted increases, if such rent or increases, are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub-
section (2), the Court may pass a decree for eviction in any such suit for recovery of possession.
(b) In any other case, no decree for eviction shall be passed in any such suit if, on the first day of hearing of the suit or on or before such other Page 16 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:10 IST 2025 NEUTRAL CITATION C/CRA/35/2024 CAV JUDGMENT DATED: 09/05/2025 undefined date as the Court may fix, the tenant pays or tenders in Court the standard rent and permitted increases then due [and thereafter, -
(i) continues to pay or tender in Court such rent and permitted increases till the suit is finally decided; and
(ii) pays costs of the suit as directed by the Court.]] [(4) Pending the disposal of any such suit, the Court may out of any amount paid or tendered by the tenant pay to the landlord such amount towards payment of rent or permitted increases due to him as the court thinks fit.] Explanation.- In any case where there is a dispute as to the amount of standard rent or permitted increases recoverable under this Act the tenant shall be deemed to be ready and willing to pay such amount if, before the expiry of the period of one month after notice-referred to in sub-
Page 17 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:10 IST 2025NEUTRAL CITATION C/CRA/35/2024 CAV JUDGMENT DATED: 09/05/2025 undefined section (2), he makes an application to the Court under sub-section (3) of section 11 and thereafter pays or tenders the amount of rent or permitted increases specified in the order made by the Court."
29. Therefore, before filing the suit on the ground of tenants being in arrears of rent, the plaintiff will have to issue a notice and in the said notice the specified amount of rent will have to be stated. In the present case, the landlord himself is not aware as to what is the standard rent of the suit premises, the defendant tenants have also not admitted the amount of rent that was agreed between the plaintiff and defendants. Moreover, while deciding issue no.5 and issue no.8 are of 34/2016 which are as under:
Issue no.5: Whether the defendant nos.1 to 4 prove that they send the rent of Rs.500 (Rupees five hundred) but the plaintiff refused to accept it.
And issue no.8: What is the standard rent of the suit premises? and it is only at the time of judgment and decree that the standard rent of the suit premises is fixed by the Trial Court and therefore, as the standard rent was a dispute between the parties, the Trial Court could not have passed a judgment and decree of eviction on the ground that defendant nos.1 to 4 being the tenants of the property are tenant in arrears and the Trial Court could have only passed a Page 18 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:10 IST 2025 NEUTRAL CITATION C/CRA/35/2024 CAV JUDGMENT DATED: 09/05/2025 undefined decree on the ground of defendant nos.1 to 4 being tenant in arrears, if on the first day of hearing of suit or on or before such other date as the Court may fix, the tenant does not pay or does not tender in Court the standard rent and permitted increases due.
30. The defense of defendant nos.5 and 6 to prove their willingness to pay the rent, by sending the money order produced will be of no relevance, as the defendant nos.5 and 6 are not the tenants of the property and the plaintiff is not required to accept the rent from anybody else other than the tenant. But the fact remains that as the standard rent was not even fixed by the Trial Court,the Trial Court could not have granted the judgment and decree on the ground of defendant nos.1 to 4 being tenant in arrears and the judgment and decree passed by the Trial Court and confirmed by the First Appellate Court is required to be quashed and set aside with respect to defendant nos.1 to 4 being tenant in arrears.
The issue of subletting
31. With respect to the issue of subletting though the defendants are relatives but the fact remains that the documentary evidence clearly suggests and shows that the tenant of the suit property was Bhupatrai Sanghvi and not Gangadas Sanghvi. The defendant nos.5 and 6 in their oral evidence have also admitted the fact that the Bhupatrai Sanghvi was the tenant of the property. The rent receipt produced by defendant nos.5 and 6 also show the name of Bhupatrai Sanghvi as the tenant of the property. There is no iota of Page 19 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:10 IST 2025 NEUTRAL CITATION C/CRA/35/2024 CAV JUDGMENT DATED: 09/05/2025 undefined evidence to show and suggest that Gangadas Morarjibhai was ever the tenant of the suit property. The relinquishment deed on which defendant nos.5 and 6 are heavily relying on also shows that the tenant of the property is Bhupatrai Sanghvi and that being the case, though the defendant nos.5 and 6 are brothers of the Bhupatrai Sanghvi they cannot claim any right under the provisions of Section 5(11)(c) of the Bombay Rent Act. The fact remains that Bhupatrai Sanghvi during his lifetime has relinquished his rights in the property thereby it can be clearly seen that Bhupatrai Sanghvi who was the sole tenant of the property has released his tenancy rights in the property in favour of defendant nos.5 and 6 though they are brothers of Bhupatrai Sanghvi but in the guise of relinquishment deed, Bhupatrai Sanghvi has sublet the suit property in favour of defendant nos.5 and 6.
32. The document i.e. exhibit 99 on which the defendants are relying on also will be of no help to defendant nos.5 and 6 as the suit property was known as Kava Mansion and the said document i.e. certificate under Bombay Shop and Establishment Act, 1948 also does not suggest that Gangadas Sanghvi was ever a tenant of the suit premises.
33. The judgment that has been relied on by the learned advocate for the defendant nos.5 and 6 in case of in the case of Trustees of Gopinathji Devmandir Public Trust V. Legal Heir of Decd. Jadiben Jivabhai Koli it is held as under:
Page 20 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:10 IST 2025NEUTRAL CITATION C/CRA/35/2024 CAV JUDGMENT DATED: 09/05/2025 undefined "7. I have heard learned Advocates appearing for the parties. Now, the moot question in the present Revision Application is whether son and grandson of the tenant's husband and his first wife, are part of the family or not, as far as the bombay rent act is concerned.
7.1. The word family is nowhere defined under the Rent Act.
Therefore, the Court has to decide that a particular person can be considered as a member of the family of a tenant or not.
In the case of Taraben D/o Shivshanker Nathji Pandya Through P.O.A. Kaushikbhai M.Bhatt vs. Manubhai Harinarayan Pandya & Ors. as reported in 2012 (2) GLR 1482, the Division Bench of this Court (to which AJ. Desai, J., was a party), the word family is examined in detail with regard Page 21 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:10 IST 2025 NEUTRAL CITATION C/CRA/35/2024 CAV JUDGMENT DATED: 09/05/2025 undefined to the Bombay Tenancy and Agricultural Lands Act, 1948 is concerned. The word family is also not defined in the said Act.
The Division Bench has, after considering several judgments and different dictionary meaning, considered that if by a statue the word of family is not defined, it must be decided on the facts of each case. As per the definition of Black's Law Dictionary, 9th Edition, word family is defined as (1) a group of persons connected by blood, by affinity, or by law, esp. within two or three generations; (2) a group consisting of parents and their children, and (3) a group of persons who live together and have a shared commitment to a domestic relationship.
7.2. As far as a person is a member of the family or not with regard to the Rent Act is concerned, the Apex Court in the Page 22 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:10 IST 2025 NEUTRAL CITATION C/CRA/35/2024 CAV JUDGMENT DATED: 09/05/2025 undefined case of Kailashbhai ShukaramTiwari vs. Jostna Laxmidas Pujara & Anr., as reported in (2006) 1 SCC 524, has held that it would depend upon the facts and circumstances of each case. In para-12 it has been observed as under:
"12.........It is futile to attempt to lay down a straitjacket formula as to who can be considered to be the member of the family of the tenant, particularly in absence of definition of family in the Act. Having regard to relevant considerations, the question must be decided on the facts and circumstances of each case. The High Court has relied upon some decisions of this Court wherein the question raised was whether the {brother was a member of the family, or a case where Page 23 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:10 IST 2025 NEUTRAL CITATION C/CRA/35/2024 CAV JUDGMENT DATED: 09/05/2025 undefined the tenant had to go to a foreign country on business, leaving behind his parents and family members, including brothers and sisters. In such a factual situation, this Court held that the persons who occupied the premises were the members of the family of the tenant."
7.3. 'In the case of Raghavan vs. Kelappan, as reported at 2006 (3) JCR,499, the Larger Bench of the Kerala High Court, while dealing with the word family under the provisions of the Kerala Buildings (Lease and Rent Control) Act, by relying upon several decisions of the said High Court, has held in para-5 as under:
"5 Learned Single Judge of this Court in Muhammad and Ors.
v. Sinnamalu Amma, 1977 KLT Page 24 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:10 IST 2025 NEUTRAL CITATION C/CRA/35/2024 CAV JUDGMENT DATED: 09/05/2025 undefined 795, held that the expression family which is undefined by the Act is elastic and its ambit has to be determined in all the circumstances of the case, having regard to the habits, ideas and socio economic milieu of the parties. Same view has been taken by a Bench of this Court in Balakrishna Menon vs. District Judge, 1994 (1) KLT 102. Another Division Bench of this Court followed the above decision in Krishnan Thampi v. Sankaradas, 2002 (1) KLT 930. Later, a Bench of this Court in Kammancheri Janaki and Ors. v. Karattu Govindan Nair and Ors., to which one of us (Radhakrishnan, J.) was a party, held as follow:
"in the socio condition of our country, the expression 'family' has to be given a wider meaning which is Page 25 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:10 IST 2025 NEUTRAL CITATION C/CRA/35/2024 CAV JUDGMENT DATED: 09/05/2025 undefined elastic and that it has to be determined on the facts and circumstances of each case and the status of the dependent in the family.
Later another Division Bench of this Court in Ismail v. Kesavan, held as follows:
Dependency does not mean financial dependency, but dependency for the building which belongs to the landlord. In our society, generally son, daughter, son-in-law, daughter-in-law, brother, sister, etc are members of the family and would in many cases depend upon the head of the family. The Kerala Rent Control Act does not define the term family . But what constitutes the family in a society depends upon ancestry, birth, blood relations, common lineage, Page 26 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:10 IST 2025 NEUTRAL CITATION C/CRA/35/2024 CAV JUDGMENT DATED: 09/05/2025 undefined line of descent and the habits and ideas of persons constituting the family. In short its ambit has to be determined with regard to the socio-economic milieu of the parties.
In Prathpan vs. Rama Warner, a Bench of this Court while construing the word family took the view that there may also be cases where sisters, brothers, brothers-in-law, sisters-in-law be treated as members of the family and it all depends upon the family relations and family bonds. A domestic servant who has served the family throughout his life could also in a given situation be treated as member of the family Personal laws of the parties as such may not guide us to find out the meaning of the expression family . The expression family Page 27 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:10 IST 2025 NEUTRAL CITATION C/CRA/35/2024 CAV JUDGMENT DATED: 09/05/2025 undefined has been denied in the Chambers 20th Century Dictionary to mean all those who live in one house (as parents, children, servants), the of one common progenitor etc. The word family may also be taken to mean collective body of persons who live in one house under one head or manager and includes within its fold household, children and servants as the case may be. Osborn's Concise Law Dictionary defines the word family so as to include all those persons who were subject to the potestas of the same individual, whether his children, grand children, etc. or unconnected in blood, eg. slaves. Further all descendants of the same ancestors, all persons connected by agnation, slaves of the pater-family or property of a pater-family Various Page 28 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:10 IST 2025 NEUTRAL CITATION C/CRA/35/2024 CAV JUDGMENT DATED: 09/05/2025 undefined High Courts have also given a wider meaning to the expression family as well as the expression dependent . In B. Balaiah v. Chandoor Lachaiah, the Court held that it is not only permissible but it is proper and desirable' for the Court to bear in mind the context of the social order, the habits and ideas of living and the individual concerned belongs. The Delhi High Court in Govind Dass vs. Kuldip Singh, held that the word family must be construed with reference to habits and ideas of the persons constituting the particular society and the religious and the socio custom of the community to which such persons belong. The Bombay High Court in Kamal Chintaman Mithari vs. Ganpatrao Ramachandra Powar, held that the mistress Page 29 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:10 IST 2025 NEUTRAL CITATION C/CRA/35/2024 CAV JUDGMENT DATED: 09/05/2025 undefined of a tenant who was living with him along with their children in the disputed premises at the time of his death must be regarded as a member of his family for the purpose of Section 5(11)(c) of the Bombay Rent Hotel and Lodging House Rates Control Act. Similar view is taken by other High Courts, namely in V.M. Deshmukh v.K.M. Kothari, AIR 1951 Ng. 51, Firm Rajnilal & Co. v. Vithal Pandurang, AIR 1953, 144;
Seshanarayana Rao v.
Venkatesa Rao, AIR 1953 Mad. 531, Kolandavel Chettiar v. Koolayana Chettiar, 1961 Mad.LJ. 184, Runju v. Ahmed Unnisa Begum, 1963 (1) Mad. LJ 970, Bindhubusan v.
Commissioner, Patna Division., etc. Reference be made to a few decisions of English Courts. In Smith v.Page 30 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:10 IST 2025
NEUTRAL CITATION C/CRA/35/2024 CAV JUDGMENT DATED: 09/05/2025 undefined Penny, (1946) 2 All.E.R. 672, it was held that children of landlord's friend and his wife to look after the children are considered to be member of the family. In Jones v. Whitehil 950 (1) All. E.R. 71, it was held that niece of the tenant's wife who had nursed the tenant and his wife is also a member of the family."
The fact is that in the present case according to the defendant themselves Bhupatrai Sanghvi has relinquished his rights in the property and therefore the said judgment will be of no assistance to defendant nos.5 and 6 as they cannot claim any right pursuant to the provisions of Section 5(11)(c) of the Bombay Rent Act as even according to the defendant nos.5 and 6 Bhupatrai Sanghvi was not doing business at the time of his death in the suit property.
34. In case of Chanchalben Wd/o Chaturbhai Babarbhai & 2 Others Vs. Priyakant Chanabhai Patel -Deceased & 2 Others in Civil Revision Application No.79 of 2007 by order dated 24.10.2019 it has held as under:
"14. It is pertinent to note that the brother of the original tenant has no idea regarding Page 31 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:10 IST 2025 NEUTRAL CITATION C/CRA/35/2024 CAV JUDGMENT DATED: 09/05/2025 undefined day to day business of the firm and he has even not signed the balance sheet or any papers thereof. It also appears from the evidence of defendants side that to show that there is a partnership deed have created of accounts wherein only in the ledger account of Priyakantbhai there are corrections made in such accounts, whereas, no such correction or eraser has been made in the ledger account of other partners. Not only that but the amount which was outstanding in ledger account of Priyakantbhai in one year has not been carried forward in the beginning of the next year. All these facts suggest that in reality there is no partnership firm between the Priyakantbhai and other respondents in the name of Vikram Hardware Store. It appears that the sham and camouflage partnership firm has been created to protect Page 32 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:10 IST 2025 NEUTRAL CITATION C/CRA/35/2024 CAV JUDGMENT DATED: 09/05/2025 undefined the possession of the suit shop. It clearly finds that in reality the original tenant has no control over the business and he has parted with the possession in favour of respondents No.2 and
3."
35. In case of Banubibi Ibrahim (Since Decd) Through Legal Heirs & 1 Vs. Abdulkarim Ramzanibhai Shaikh & 1 in Civil Revision Application No.302 of 2012 by order dated 10.01.2014 has held as under:
"8. Both the Courts recorded that defendant No.2 was exclusively in possession of the premises.
Courts below came to the conclusion that possession was transferred by defendant No.1 to defendant No.2 illegally and ingredients of Section 13(1)(e) were satisfied. Exclusive possession of the suit thereby was found with defendant No.2 and it was, therefore, rightly concluded by both the Courts that it attracted Section 13(1)(e) and resultantly liability for eviction. It Page 33 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:10 IST 2025 NEUTRAL CITATION C/CRA/35/2024 CAV JUDGMENT DATED: 09/05/2025 undefined is settled as observed in Dev Kumar [(1996)1 SCC 25] as well as in Nirmal Kant [(2008)7 SCC 722] and catena of other decisions that subtenancy or subletting comes into existence when a third party stranger is inducted into the tenanted premises and the possession is parted with in favour of such third party exclusively. It is also a principle well settled that once exclusive possession of the third party to the demised premise is proved, it was suffice to prove the case within the purview of the provisions.
9. Concurrent findings recorded by both the Courts that there was a subletting and defendant No.2 was in exclusive possession were based on the proper findings emanating from evidence on record, in which no perversity or irregularity was noticed. No ground was shown or existed so Page 34 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:10 IST 2025 NEUTRAL CITATION C/CRA/35/2024 CAV JUDGMENT DATED: 09/05/2025 undefined as to warrant interference in the said findings in exercise of revisional powers by this Court under Section 29(2) of the Bombay Rent Act."
In the present case the defendant nos.5 and 6 themselves have admitted that they are in exclusive possession of the property, it can be clearly established that defendant nos.5 and 6 have been sublet the suit property by late Bhupatrai Sanghvi.
36. Therefore, on the basis of overall material on record, on the basis of conclusion that has been referred to by the Courts below, the Court is of the opinion that there is no material irregularity nor any perversity reflecting which would permit this Court to exercise revisional jurisdiction. The entire reasoning of both the Courts at the findings are based upon clear analysis of the testimony of the witnesses for either side and also in consonance with documentary material and according to this Court it cannot be said that there is any perversity in the said order. Moreover, while deciding the Revision Application by the High Court in revisional jurisdiction under this Act is confined to find out that findings of fact recorded by the courts below is according to law and does not suffer from Page 35 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:10 IST 2025 NEUTRAL CITATION C/CRA/35/2024 CAV JUDGMENT DATED: 09/05/2025 undefined any abuse of law. The findings recorded by the courts below if perverse or has been arrived at without consideration of material evidence or such finding is based on no evidence or misreading of evidence or grossly erroneous that, if allowed to stand, would result in gross miscarriage of justice, the same is open for correction because it is not treated as finding according to Law and in that event the High Court, in exercise of its revisional jurisdiction under the Bombay Rent Act, is entitled to set aside the impugned order as being not legal or proper.
37. The High Court can not interfere with the finding of facts recorded by the first Appellate Court. The consideration or examination of the evidence by the High Court in revisional jurisdiction under this Act is confined to find out that finding recorded by the courts below is according to Law and does not suffer from any error of Law and only if the finding of facts recorded by the courts below, is perverse or has been arrived at without consideration of the material evidence or that such finding is based on no evidence, or misreading of the evidence, or is grossly erroneous that, if allow to stand, it would result in gross miscarriage of justice and the same is open to correction as the same is not treated as findings according Page 36 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:10 IST 2025 NEUTRAL CITATION C/CRA/35/2024 CAV JUDGMENT DATED: 09/05/2025 undefined to Law and in the present case, the finding of facts recorded by the trial Court and the appellate Court is neither perverse nor arrived at without consideration of the material evidence. In the present case, in revisional jurisdiction, the High Court can not exercise its powers as an appellate power to reappreciate or reassess the evidence for coming to a different finding of facts. Revisional jurisdiction is not and can not be equated with the powers of reconsideration of all questions of fact as a court of first appeal.
38. The findings recorded by both the courts below are based on critical appreciation of the evidence led by the parties on record and does not suffer any error or material irregularities. Both the courts have rightly come to the conclusion that the tenant has sublet the suit premises to the defendant nos.5 and 6 and, therefore, there was no error committed by the courts below which requires any correction at the hands of the High Court in exercise of revisional jurisdiction.
39. Under the revisional jurisdiction, the High Court is entitled to satisfy itself as to the correctness or legality or propriety of any decision or order impugned before it as indicated above. In view of the aforesaid Page 37 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:10 IST 2025 NEUTRAL CITATION C/CRA/35/2024 CAV JUDGMENT DATED: 09/05/2025 undefined facts and proposition of law and in view of the concurrent findings of fact by both the Courts below, since no case is made out to call for any interference in the judgment and order passed by the appellate Court upholding the judgment and decree passed by the Trial Court, both the Civil Revision Applications are required to be dismissed and are dismissed accordingly. In view of the dismissal of the Civil Revision Applications, the Civil Applications for stay would not survive and are accordingly disposed of.
Sd/-
(SANJEEV J.THAKER,J) URIL RANA Page 38 of 38 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Fri May 09 2025 Downloaded on : Sat May 10 22:12:10 IST 2025