Gujarat High Court
Dhirubhai Laxmanbhai Dobariya vs Ashwin Jayantilal Doshi on 4 April, 2022
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
C/CRA/309/2019 JUDGMENT DATED: 04/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 309 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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DHIRUBHAI LAXMANBHAI DOBARIYA
Versus
ASHWIN JAYANTILAL DOSHI
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Appearance:
DECEASED LITIGANT for the Applicant(s) No. 1
MR UNMESH SHUKLA, SR. ADVOCATE assisted by Mr.Heet Jhaveri with
MR SHASHVATA U SHUKLA(8069) for the Applicant(s) No. 1.1,1.2,1.3
MR MEHUL SURESH SHAH, SR. ADVOCATE with MR HARESH H
PATEL(611) for the Opponent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 04/04/2022
ORAL JUDGMENT
1. This Revision Application is filed under Section 29(2) of the Gujarat Rents, Hotel and Lodging House Rates Control Act, 1947 (herein after referred to as 'the Rent Act') the applicant-tenant Page 1 of 50 Downloaded on : Sat Dec 24 14:13:29 IST 2022 C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 challenging the judgment and decree passed by the learned Additional Judge, Small Causes Court, Rajkot dated 18.7.2014 in Regular Civil Suit No.76 of 2000 whereby the suit filed by the respondents - original plaintiffs came to be allowed and the defendant was ordered to hand over vacant and peaceful possession of suit premises to the original plaintiffs within a period of 1 month from the date of that order.
2. Being aggrieved by the said judgment and decree, the defendant - tenant in the suit preferred Regular Civil Appeal No.66 of 2014, which also came to be dismissed by the learned appellate Judge vide judgment and decree dated 20.5.2019 confirming the judgment and decree passed by the trial Court.
3. This Revision Application is filed challenging the aforesaid two judgments and decrees passed by the trial Court as also confirmed by the appellate Court, as aforesaid.
4. Parties in this judgment would be referred to as per their original status in the trial.
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C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 5.1 It is the case of the plaintiffs in the trial Court that the suit godown was let to the defendant by executing a rent agreement dated 10.4.1991 for storage of LPG gas cylinders, situated in Rajkot city ad-measuring 1050 Sq. Mtrs. on Gondal Road. The defendant was irregular in payment of rent and there was an arrears of it for about 120 months @ Rs.2500/- per month, which comes to Rs.3 Lacs. It is further the case of the plaintiffs that he issued notice on 23.5.2000 to the defendant purporting to terminate the tenancy. Therefore, plaintiff filed the aforesaid suit for getting the vacant possession of the suit premises on the ground that defendant was in arrears of rent for more than 6 months as provided under Section 12 of "the Rent Act". He also claimed recovery of Rs.3 Lacs towards the rent as also Rs.10,466/- towards the taxes.. Thus in all Rs.3,10,466/- were demanded from the tenant over and above the vacant possession of the suit premises, as aforesaid. It is averred in the suit that on receipt of the notice, the defendant gave evasive reply to the same.
5.2 On filing of such suit and issuance of summons, the defendant appeared and filed his written statement vide Exh.21 Page 3 of 50 Downloaded on : Sat Dec 24 14:13:29 IST 2022 C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 denying each and every allegations of the plaintiffs in toto. The defendant has denied to have taken on rent the suit premises but admitted the execution of the rent agreement. It is further claimed in the written statement that the claim in respect of amount of rent is time barred. It is also contended that if agreement was executed only for 11 months, why plaintiffs had not initiated any action till the date of the suit? On the contrary, as per the case of the defendant, suit premises was not taken on rent but it was purchased from the father of the plaintiffs. Since it was not possible to execute a sale deed, rent agreement came to be executed to give legal identity to the transaction and possession of the suit premises is not handed over as a tenant but as an owner of the property. It is further contended by the defendant that to show the status of possession of the suit premises before gas company, rent agreement came to be executed and therefore provisions of "the Rent Act" are not applicable to the suit premises. He has specifically averred that in the year 1990, defendant was in need of premises for gas agency and as the suit premises was to be declared as surplus land under the provisions of the Urban Land Ceiling and Regulation Act 1976 (for short, "ULC Act"), the father of the Page 4 of 50 Downloaded on : Sat Dec 24 14:13:29 IST 2022 C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 plaintiffs agreed to sell the suit premises with an intention to transfer the possession of the suit premises but since permission to sell the same was not possible and registered sale-deed was also not possible, it was agreed to sell the suit premise for consideration of Rs.5,25,000/- and possession of the same was handed over to the defendant by the father of the plaintiffs. It is further his case that the landlord i.e. father of the plaintiffs recovered Rs.4,25,000/- on 5.4.1990 in presence of one Mr.Shashikant Mehta and no rent on the suit premises was to be paid. Since registered sale-deed was not possible to be executed within the time limit and gas agency was requiring the necessary document to show possession of the suit premises, rent agreement was executed and upon repeal of "the ULC Act", the defendant informed the father of the plaintiffs for execution of registered sale-deed but instead of executing the registered sale-deed, father of the plaintiffs has misused the said information trying to get disadvantage of the circumstances. He has further denied the fact that the defendant is in arrears of rent. He has also denied notice dated 23.5.2000 as statutory and legal one and contended that no tenancy can be terminated by notice of 15 days and the landlord is not entitled to get any Page 5 of 50 Downloaded on : Sat Dec 24 14:13:29 IST 2022 C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 amount including the amount of mesne profit. It is further claimed that towards the consideration for sale-deed of the suit godown, a receipt of Rs.25,000/- also issued in the year 1990 by the father of the plaintiffs. As such, according to the case of the defendant, he was the owner of the suit premises and not the tenant, as claimed in the suit.
5.3 To prove the case, the plaintiffs have examined in all 5 witnesses and produced documents in support of the claim. As against that defendant has examined himself and one witness in support of his case and he produced several documents as narrated in the judgment of the trial Court.
5.4 Neither on receipt of the notice by the plaintiffs nor while appearing before the Court, the defendant shown any readiness and willingness to deposit standard rent and permitted increase. Not only that, it is the case of the defendant that he is the owner of the suit property and therefore, there is no question of relationship of landlord and tenant in respect thereof, and therefore, there is no question of any readiness or willingness to deposit the amount of rent before the Court or determination of Page 6 of 50 Downloaded on : Sat Dec 24 14:13:29 IST 2022 C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 standard rent.
5.5 On appreciation of the evidence led by the parties and considering the documents, the trial Court allowed the suit holding defendant in arrears of rent directing the defendant to handover the vacant and peaceful possession of the suit premises as also to pay Rs.90,000/- to the plaintiffs towards the due amount of rent. Along with that, the defendant was directed to pay Rs.2500/- per month towards the mesne profit for the suit premises to the plaintiffs from the date of filing of the suit till handing over vacant and peaceful possession of the suit premises.
5.6 Leaned Appellate Judge, on an appeal preferred by the defendant, re-appreciating the evidence led before the trial Court and examining in detail the controversy involved and raised in the appeal, confirmed the judgment and decree passed by the Trial Court by dismissing the appeal preferred by the defendant. 6.1 Mr.Unmesh Shukla, Senior Advocate, learned Counsel assisted by Mr.Heet Jhaveri, learned advocate with Mr.Shashvata Page 7 of 50 Downloaded on : Sat Dec 24 14:13:29 IST 2022 C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 U. Shukla, learned advocate for the applicant, submitted that the parties never treated themselves bound by the rent agreement Exh.30 dated 10.4.1991 as it was never intended to be acted upon. In support of the said assertion, it is submitted that it is only because execution of the sale-deed for the suit property was likely to defeat the predominant purpose of purchasing the suit property, which was to obtain the LPG distributorship contract from Bharat Petroleum Corporation Limited, the rent agreement Exh.30 dated 10.4.1991 was executed, however, it was never to be acted upon.
6.2 It is further submitted that the rent agreement, Exh.30, is clearly a sham document. Since the time of its execution and till the filing of the suit, there was no demand for rent from the landlord. It is further submitted the very fact that for 9 long years, father of the plaintiffs, during his lifetime, never demanded any rent from defendant, and therefore, it is submitted that the rent agreement Exh.30 was abandoned as soon as it was executed since it was never to be acted upon. Page 8 of 50 Downloaded on : Sat Dec 24 14:13:29 IST 2022
C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 6.3 It is further submitted that the correspondence, which took place between the father of the plaintiffs - landlord also supported the case that Exh.30 - rent agreement was nominal and a sham document. It is further submitted that the letter, Exh.87, shows that father of the plaintiffs - landlord has acknowledged the receipt of Rs.25,000/- for gas godown. It is further submitted that defendant writing letters to the father of the plaintiffs - landlord with respect to payment received of Rs.4,25,000/- is consistent with the fact that the father of the plaintiffs - landlord not demanding the rent for 10 years. It is submitted that a genuine landlord would not wait for 10 years to demand arrears of rent. Referring to Exhs.88, 89 and 90, it is submitted that only to show the possession of the suit property, nominal rent agreement was executed. It is further submitted that the letter produced by the defendant are not considered by the trial Court as also by the appellate Court while deciding the issue of a sham document. It is further submitted that some of the letters are replied by the father of the plaintiffs -l andlord, have also not been considered by the Courts below. It is asserted that Exhs.91, 92 and 94 are tentative exhibits and rest of them are regular exhibits.
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C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 6.4 It is further submitted that plaintiffs have failed to discharge their burden under Section 101 and Section 92 of the Indian Evidence Act (for short, "the Evidence Act") to prove the genuineness of the document. In support of the said submission, it is submitted that though the appellate Court has discussed Section 101 of "the Evidence Act" with respect to tenant's defence of sham documents. Relying on a decision of the Supreme Court, in the case of Rangammal V/s. Kuppuswami and another reported in (2011) 12 SCC 220, it is submitted that first of all the plaintiffs have to prove genuineness of rent agreement Exh.30 and only thereafter would the defendant be required to discharge the burden in order to dislodge such proof and establish that transaction was sham and fictitious. It is submitted that Courts below have not followed the principle enunciated by the Supreme Court, as aforesaid. To the submission by the learned advocate for the plaintiffs referring to Section 92 of "the Evidence Act", it is submitted that it is misplaced. It is submitted that since a party is not precluded under Section 92 of "the Evidence Act" from leading the evidence to show that the document executed by person was Page 10 of 50 Downloaded on : Sat Dec 24 14:13:29 IST 2022 C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 never intended to operate as an agreement but was brought into existence for the purpose of creating evidence about some other matter, that the agreement was executed by the parties with common intention that the said document was not to create legal rights and obligations which ostensibly appears to be created. 6.5 In support of the said contention, learned advocate for the applicant relied on decisions of the Supreme Court in the case of Gurdial Singh & Ors vs Raj Kumar Aneja & Other reported in (2002) 2 SCC 445 and in the case of Subhra Mukherjee & Anr. C vs Bharat Coking Coal Ltd. & Ors reported in (2000) 3 SCC 312 as also in the case of V. M. Saleem Vs.Fatima Mohd. reported in (2011) 15 SCC 756.
6.6 It is further contended that notice Exh.31 dated 23.5.2000 is illegal, invalid and non est in law. Referring to Sub-Section (2) of Section 12 of "the Rent Act", drawing attention of the Court to the later part of it, it is submitted that as per sub-section (2) of Section 12 of 'the Rent Act" substantive part of Section 106 of the Transfer of Property Act, 1882 (for short, 'the T.P. Act') has to be followed as mentioned in it. It is further submitted that Section 12(2) of "the Rent Act" must be interpreted in light of Page 11 of 50 Downloaded on : Sat Dec 24 14:13:29 IST 2022 C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 beneficial object of statute, which was to protect the tenants from unlawful eviction by the landlord. In this perspective, as further submitted, since "the Rent Act" is designed to protect the tenant and therefore, the words occurring in later part of Section 12(2) "in the manner provided in Section 106 of "the Transfer of Property Act, 1882" incorporate substantive part of Section 106 of 'the T.P. Act' including the requirement of 15 days' notice before which a lease or tenancy, cannot be said to be validly terminated by the landlord. As submitted, in the present case, tenancy was terminated vide notice dated 23.5.2000 and not on the completion of 15 days' as required by Section 106 of 'the T.P. Act' and therefore, notice is clearly invalid and non est in law.
6.7 It is further submitted that the termination of tenancy under the general law i.e. in accordance with Section 106 of "the T.P.Act" is sine qua non before the landlord seeks recovery of possession of the demised premises. It is further submitted that even assuming without prejudice that the words "in the manner provided in Section 106 of "the T.P. Act" relate only to the ministerial act of the service and do not incorporate the substantive part of Section 106 of "the T.P. Act", the requirement Page 12 of 50 Downloaded on : Sat Dec 24 14:13:29 IST 2022 C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 of determination of lease is not done away with under the law. 6.8 It is further submitted that Section 12(2) of "the Rent Act"
provides additional protection to the tenant from eviction by the landlord but it does not do away with the requirement under the general law to terminate the tenancy before seeking to recover possession. It is submitted that in support of the said contention, a view has been expressed by coordinate Bench of this Court in the case of Shantaben Harilal Brahmbhatt vs Hasmukhlal Maneklal Chokshi reported in 2001 (2) GLR 1615 more particularly para 17 thereof.
6.9 Therefore, it is submitted that if Section 12(2) of "the Rent Act" were to be interpreted so as not to incorporate substantive requirement of giving 15 days' notice before termination of tenancy, decision of the coordinate Bench of this Court in the case of Shantaben (Supra) has held that it does not mean that Section 12(2) of "the Rent Act" does not contemplate the termination of tenancy at all. In short, relying on the aforesaid decision, a submission is made that termination of the tenancy and determination of lease in accordance with law is sine qua non before seeking recovery of possession and neither the Page 13 of 50 Downloaded on : Sat Dec 24 14:13:29 IST 2022 C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 language of Section 12(2) of "the Rent Act" nor the decision of the Supreme Court in the case of V. Dhanapal Chettiar vs Yesodai Ammal reported in (1979) 4 SCC 214, does away with the requirement of determination of lease in accordance with law i.e. Section 106 of 'the T.P. Act".
6.10 In answer to the reliance placed by the learned advocate for the respondent on a decision in the case of Surjitsing Acchalsing vs Motilal Hiralal Warehouse And Estate Ltd. reported in 2004 (1) GLR 4 it is submitted that it has not expressed any view to the effect that the judgment rendered in the case of Shantaben (Supra) is wrong nor has the judgment of Shantben (Supra) been overruled by them in the aforesaid judgment. Furthermore, it is submitted that the case of Surjitsing (Supra) does not deal with the Section 12 of 'the Rent Act' but it only deals with Section 13 thereof. 6.11 It is further submitted that insofar as any observation of this Court in the case of Surjitsing (Supra) appears to be inconsistent with decision of the coordinate Bench of this Court in the case of Shantaben (Supra), the same are obiter dictum as no issue pertaining to the validity of a notice under Section Page 14 of 50 Downloaded on : Sat Dec 24 14:13:29 IST 2022 C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 12(2) of 'the Rent Act" was before the Hon'ble Division Bench in that case. To buttress the said argument further, it is submitted that reliance placed by the opponent - respondent in the case of Surjitsing (Supra) is not well placed as any observation contrary to the decision in the case of Shantaben (Supra) are obiter in so far as law with respect to the validity of the notice under Section 12 of 'the Rent Act' is concerned. In short, it is submitted that the High Court in the case of Surjitsing (Supra) was not concerned with the case under Section 12 of 'the Rent Act' and is therefore, not a binding precedent on the issue of validity of a notice under it. Thus, it is submitted that the case of Shantaben (Supra) is binding to this Court.
6.12 Attacking the validity of the notice dated 23.5.2000 Exh.31 it is submitted that since it purports to terminate the tenancy in praesenti and not on expiry of 15 days' notice as required by Section 111(h) read with Section 106 of "the T.P. Act" it is invalid. In support of the said submission, reliance is placed on a decision in the case of Hakim Ziaul Islam vs Mohd. Rafi reported in AIR 1971 All. 302 more particularly, para-5 thereof, to assail the validity of notice as it terminated tenancy in praesenti, it was held to be not valid. He has further Page 15 of 50 Downloaded on : Sat Dec 24 14:13:29 IST 2022 C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 relied on decisions in the case of Yerrabhothula Krishna Murthy & Ors. Vs. Addepalli Subba Rao reported in AIR 1988 Andhra Pradesh 193 and in the case of Khimji Bhimji Majithia vs Taraben Lalji Soni reported in AIR 1983 GUJ. 18 again para-5 thereof as also the case of Shantaben (Supra) for assailing the notice to be invalid as it terminated the tenancy forthwith on issuance of notice itself. 6.13 On the aforesaid submissions, Mr.Shukla, Senior Advocate, learned counsel submitted that the present Civil Revision Application deserves to be allowed and impugned judgment and order passed by trial Court as also confirmed by the appellate Court requires to be quashed and set aside.
No other submissions are made by the learned advocate for the applicant.
7.1 As against that, Mr.Mehul Suresh Shah, Senior Advocate, learned counsel assisted by Mr.Haresh H. Patel, learned advocate for the respondents submitted that this Revision Application filed by the tenant against the concurrent findings of facts by two Courts below is not required to be Page 16 of 50 Downloaded on : Sat Dec 24 14:13:29 IST 2022 C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 entertained under the Revisional jurisdiction. It is further submitted that the trial Court as also the appellate Court have appreciated and re-appreciated respectively all the documentary and oral evidences on record and since the findings recorded by them cannot be said to be perverse, no interference under Revisional Jurisdiction is required by this Court. Drawing attention of the Court to page No.117, para-19 to page No.120, para-21, trial Court concluded that there is relationship of landlord and tenant between the plaintiffs and defendant and a finding is recorded that the rent is due as claimed in the suit but in view of the fact that such dues can be recovered for last 3 years under Article 52 of the Limitation Act, the trial Court restricted payment of rent due for last 3 years to the date of suit. He has further submitted that an issue of validity of notice as also service of it upon the tenant is dealt with by the trial Court at page No.122. It has been concluded by it that vide notice Exh.31, there is a demand of arrears of rent and intimation with regard to termination of a tenancy and as it is served to the tenant, he has not disputed the same and on the contrary, claimed that he has suitably replied to the notice which was held to be legal and valid and validly served under Section 12(2) of Page 17 of 50 Downloaded on : Sat Dec 24 14:13:29 IST 2022 C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 "the Rent Act". Referring to the page Nos.67 to 72 of the Revision Application, which is a part of appellate Court decision, he has submitted that the appellate Court has also re- appreciated the evidence starting from para-22 of the evidence of the plaintiffs and the defense raised by the defendant. 7.2 It is further submitted that the learned appellate Court has re-appreciated the evidence in respect of nature of transaction being that of tenancy. It is further submitted that the defendant denied the tenancy and on the contrary, claimed that he is the owner of the property, which he failed to prove. Drawing attention of the Court to the finding recorded on re- appreciation of evidence at para 24 of the appellate Court's judgment, it is submitted that merely because rent amount was not demanded for pretty long 9 years, it will not permit the Court to raise presumption that the rent note was sham and nominal. It is further submitted that considering Section 92 of "the Evidence Act" when rent agreement Exh.30 is not disputed to have been executed by the defendant, any attempt on the part of the defendant to give contrary evidence to the terms of the documents or the contents of the documents cannot be permitted. For the purpose, learned counsel relied on following Page 18 of 50 Downloaded on : Sat Dec 24 14:13:29 IST 2022 C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 decisions.
(I) In the case of S.Saktivel (Dead) By LRs vs M.Venugopal Pillai And Ors. reported in (2000) 7 SCC 104, para-5 thereof for a proposition that when execution of a document not disputed he cannot give contrary evidence to the terms of contract in absence of existence of any distinct subsequent oral argument to rescind or modify any earlier contract, no parol evidence can be let in to substantiate any subsequent oral arrangement which has effect of rescinding a contract.
(II) In the case of Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh reported in (2014) 9 SCC 78, more particularly, para Nos. 30 to 43 for a proposition that, revisional jurisdiction of the High Court is confined to find out that finding of facts recorded by the Court/ Au- thority below is according to law and does not suffer from any error of law as also limitations on exercise of revisional jurisdiction by the High Court.
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C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 (III) In the case of Kalidas Chunilal Patel (Dead) by L.Rs. Vs. Savitaben & Ors. reported in 2017 (1) GLR 51 (SC), more particularly, para 26 thereof, again for a proposition that, unless the finding of fact is found to be wholly perverse or dehors any provision of law is recorded contrary to pleadings and evidence on record, interference in such finding may arise in appropriate cases but not otherwise.
(IV) In the case of Hamidkhan Amirkhan Ghori V/s.Aamadbhai Batavia deceased and another rendered in Civil Revision Application No.12 of 2010 by this Court dated 1.2.2013 for a proposition that, question of legality and validity of statutory notice under Section 12(2) of "the Rent Act" cannot be raised neither before the trial Court nor before the appellate Court.
7.3 Mr.Shah, Senior Advocate, learned counsel has further submitted that rent agreement Exh.30, the execution thereof, is not disputed by the defendant in the written statement Exh.21 and in fact, the defendant has taken benefit of the same for obtaining gas agency from 'Bharat Petroleum Corporation Ltd. (For short, 'BPCL'). The said fact has been Page 20 of 50 Downloaded on : Sat Dec 24 14:13:29 IST 2022 C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 proved by the oral evidences of plaintiff and his witnesses in connection with rent agreement Exh.30, even by examining earlier tenant in the premises and Urban Land Ceiling (for short, 'ULC') Office Mamlatdar at Exh.55. According to the submission of learned counsel, the stand of the defendant that only reason for making the rent agreement was to see that due to the 'ULC' order, the property could not have been sold and therefore, such agreement is entered into clearly stands disproved in view of 'ULC' order produced at Exh.56 by examining the witness from that authority. Considering the said fact, according to the submission of learned counsel, the suit godown was never declared surplus even in the 'ULC' proceedings. 7.4 He has further submitted that defendant in his cross examination at Exh.84 admitted that rent agreement is produced before the 'BPCL' and in cross examination he admits that as per the record of 'BPCL', suit godown is obtained on rent. He has further admitted that he has visited the said godown frequently. 7.5 It is further submitted that the letters Exhs.91, 92 and 94, on which much reliance is placed by the learned counsel for Page 21 of 50 Downloaded on : Sat Dec 24 14:13:29 IST 2022 C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 the defendant, are given tentative exhibits as those documents were not proved by the defendant and therefore, they remained not proved as required by the law and therefore, cannot be read into evidence by the Court.
7.6 Therefore, he has submitted that both the Courts below were justified in recording a finding that transaction between the parties by way of agreement Exh.30 is pertaining to tenancy only, which is not required to be interfered with by this Court in the revisional jurisdiction.
7.7 It is further submitted that notice Exh.31 is a notice terminating tenancy and final notice of payment of arrears of rent, which is admittedly served upon the defendant and it is in consonance with Section 12(2) of "the Rent Act". Referring to a decision in the case of Jenabai Mohmed vs. Gulamabbas Ismailji & Ors. reported in 1971 GLR 819 more particularly para 31, 36 to 38 that the composite notice of termination of tenancy and demanding arrears of rent is a valid notice under the law.
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C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 7.8 It is further submitted that notice as required under Section 12(2) of 'the Rent Act" does not envisage giving of a notice under Section 106 of "the T.P. Act". It is only the service of notice demanding rent has to be served in the manner as prescribed in Section 106 of "the T.P. Act". Therefore, it is submitted that the contention raised by the defendant with regard to notice not meeting with requirement of Section 106 of "the T.P. Act" requires to be rejected outright. 7.9 In support of the aforesaid contentions, learned counsel relied on a Constitution Bench decision of Supreme Court in the case of V. Dhanapal Chettiar vs Yesodai Ammal reported in (1979) 4 SCC 214 for a proposition that a notice under Section 106 of "the T.P. Act" is not necessary pre- requisite for an eviction petition under any of the States' Rent Act and such notice is a mere surplusage.
7.10 Relying on a decision in the case of Surjitsing (Supra) more particularly para 8,9,10 and 11, it is submitted that the decision in the case of Shantaben (Supra) has been read down by the Division Bench of this Court in detail recording Page 23 of 50 Downloaded on : Sat Dec 24 14:13:29 IST 2022 C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 at various places that certain observations made therein by the Single Judge should not be read so as to mean that a notice under Section 106 of "the T.P. Act" is required before filing a suit for eviction under 'the Rent Act'. Drawing attention of the Court to para-10.4 of the decision, it is submitted that as held by the Division Bench, decision of the Single Judge in the case of Shantaben (supra) should not be read so as to mean that notice is required to be issued under the provisions of Section 106 of "the T.P. Act" for terminating the contractual tenancy before institution of any suit under "the Rent Act". It is further held in it that, such reading of judgment in the case of Shantaben (Supra), would be in clear violation of the ratio of the decision of 7 Judges' Bench of the Supreme Court in the case of V. Dhanapal Chettiar (Supra). Referring to the judgment in the case of Kulkarni Patterns Pvt.Ltd. and others v/s. Vasant Baburao Ashtekar and others, reported in AIR 1992 SC 1097 more particularly para 6 and 7 it is submitted that the requirement of sending notice under Section 12(2) of "the Rent Act" is to be done in the manner prescribed under para-2 of Section 106 of "the T.P. Act" as then prevailing. The manner for service of a notice as provided in para-2 is also noted in the said Page 24 of 50 Downloaded on : Sat Dec 24 14:13:29 IST 2022 C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 decision which required notice to quit has to be sent either by post to the party or be tendered or delivered personally to such party or to one of his family members or servants at his residence or affixed to a conspicuous part of the property. He has further relied on a decision in the case of Marwadi Bhawarlal Modilal V/s. Heirs & L.R. of deceased Jiviben wd/o. Lallubhai Ranchhodbhai reported in 2000 (1) GLH 158 more particularly, para 10 thereof to submit that notice should be in writing in which there should be a demand of standard rent or permitted increase of such notice be served upon the tenant in one of the manners provided under Section 106 of 'the T.P. Act'.
7.11 On the aforesaid submissions and the judgments relied on by the learned counsel, he requested that since the revision is meritless, it should be rejected summarily.
8. Having heard learned counsels for the appearing parties and going through the record of the case as produced before the Court along with decisions cited at the Bar, it emerges that while exercising revisional jurisdiction, may be under Section 29(2) of "the Rent Act", re-appreciation of evidence on Page 25 of 50 Downloaded on : Sat Dec 24 14:13:29 IST 2022 C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 facts is not permissible. At the same time, as held by the Supreme Court in the case of Hindustan Petroleum Corporation Ltd. (Supra) analysing language employed by three Rent Control Acts under consideration which provide for revisional jurisdiction and conclusion was expressed by it that the revisional powers of the High Court under these Acts is substantially similar and broadly such power has the same scope save and except the power to invoke revisional jurisdiction suo motu unless so provided expressly. It is concluded therein that those rent restrictions statutes do not confer revisional authority the power as wide as that of the appellate Court or appellate authority despite such power being wider than that provided in Section 115 of the Code of Civil Procedure. But it is not wide enough to make the High Court a second court of first appeal.
9. Keeping in mind the scope exercising revisional jurisdiction under 'the Rent Act', let me consider the arguments advanced on behalf of defendant. First and foremost ground raised by the learned counsel for the defendant that the rent agreement Exh.30 is a sham document. In support of the said contention, it is submitted that the parties never treated themselves bound by Page 26 of 50 Downloaded on : Sat Dec 24 14:13:29 IST 2022 C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 the rent agreement and it was never intended to be acted upon. However, the said contention is fallacious. Having taken the advantage of the said rent agreement, the defendant is using the suit godown for storage of LPG cylinders obtained the gas agency from 'BPCL'. On that basis, if that agreement was not executed to be acted upon or to be bound by it, he could not have taken any advantage of it and then turned round.
10. The execution of rent agreement Exh.30 is not even challenged by defendant in the written statement. On the contrary, he admits execution of the same but claims that it was because sale-deed was likely to defeat the predominant purpose of purchasing suit property, it has been executed. It was only to show the possession of the property, a nominal rent agreement was executed between the defendant and the father of the plaintiffs, appears to be incorrect.
11. As such, the trial Court as also the appellate Court has appreciated and re-appreciated the evidence on facts with regard to execution of a rent agreement Exh.30, there is no need to further elaborate the same. However, plaintiffs have examined Page 27 of 50 Downloaded on : Sat Dec 24 14:13:29 IST 2022 C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 the witness to the rent agreement as their witness in the present case. Not only that, even defendant's own witness at Exh.125 admitted in his cross-examination that as per 'BPCL' record, suit godown obtained on rent.
12. For contending that the rent agreement Exh.30 is a document, which is not acted upon by the parties, it is submitted that despite its execution for pretty long time of 9 years, no rent was ever demanded by the father of the plaintiffs and therefore, on that basis, it is submitted that it is a sham document. It is further submitted that the said agreement was abandoned after execution of it on 10.4.1991 and it was never acted upon. Even if, no rent is demanded for a long period, that would not be a ground to conclude that rent agreement is a sham or fictitious or it is not a document executed for that purpose. The appellate Court on re-appreciation of evidence, as reflected from judgment para-21 of it, in detail, concluded that rent agreement Exh.30 has been proved, execution of which was never disputed by the defendant. To the aforesaid argument, learned appellate Court on re-appreciation of Page 28 of 50 Downloaded on : Sat Dec 24 14:13:29 IST 2022 C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 the evidence led before the trial Court held in para-24 that merely because the rent amount was not demanded, it does not permit the Court to raise the presumption that the rent note was sham and nominal.
13. Not only execution of rent agreement Exh.30 was not disputed to be executed by the defendant, the plaintiffs have, by examining the witnesses to that rent agreement, proved beyond reasonable doubt regarding its voluntary execution, which is supported by even the witness examined on behalf of the defendant at Exh.125. Therefore, there is no merit in the contention that it was never acted upon or abandoned.
14. Another contention raised by the learned advocate for the defendant that since for the suit godown, there was a sale-deed to be executed but in view of the "ULC" proceedings, it was not possible in near future, the rent agreement is executed to provide it to the 'BPCL' to have the gas agency to show the possession of the premises. However, by examining the witness No.5, Vrajlal Page 29 of 50 Downloaded on : Sat Dec 24 14:13:29 IST 2022 C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 Punabhai Radadiya at Exh.55, the plaintiffs have brought on record that suit godown was never under any "ULC" restrictions. Vide Exh.56, the competent authority passed an order on 30.11.1983. It is further the case of the defendant that the correspondence between the defendant and father of the plaintiffs, discloses that sale consideration towards the suit godown was received by father of the plaintiffs. Drawing attention of the Court to Exh.87, which is a receipt claimed to have been signed by father of the plaintiffs evidencing that Rs.25,000/- in cash was received by him on 5.4.1990. Based on it, along with the deposition of defendant himself, it is submitted that part of the sale consideration of Rs.4,25,000/- was already paid to the father of the plaintiffs. However, there is no contemporaneous record produced to support the said oral assertion and Exh.87 receipt which reflects just acceptance of Rs.25,000/- and nothing more. By that, it can never be presumed that said amount is paid to the father of the plaintiffs towards purchase price, that too, for the suit godown itself. Referring to document Exh.88, which is a letter claimed to have been written by the Page 30 of 50 Downloaded on : Sat Dec 24 14:13:29 IST 2022 C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 father of the plaintiffs on 6.4.1990 to the defendant, it is submitted that the said correspondence refers about purchase of the suit godown, as claimed in the said letter. However, reading that very letter from there it cannot be concluded that the plot, which is referred to therein, is in respect of suit godown and even if they had any talk with regard to sale or purchase of any plot, cannot be termed to be a purchase of suit godown. At the same time, even if it is presumed to have been written by the father of the plaintiffs, it talks about some plot and not the suit godown at all. Much reliance is placed on Exh. 89, a letter addressed by the defendant to the father of the plaintiffs, claiming that the day before that letter, Rs.4,25,000/- were paid, that too, unilaterally. For the said amount, no receipts are produced nor it is asserted towards what consideration it is paid. It is claimed to have been paid in presence of one Mr.Shashikant Mehta, who is never examined before the Court. Over and above that, there is no proof produced to show that such letter is ever sent to the addressee or it has ever been acknowledged by the father of the plaintiffs. Several such unilateral Page 31 of 50 Downloaded on : Sat Dec 24 14:13:29 IST 2022 C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 communications are claimed to support the assertion that rent agreement was as such an eye-wash and claimed to have been executed as execution of a sale-deed was delayed because of restrictions under "ULC" proceedings. Even other letters Exhs.91, 92 and 94, out of which, Exh.92 is the letter claimed to be sent by father of the plaintiffs to the defendant communicating that plot No.17 which is under restrictions of "ULC" Act, it is not possible to be sold or any document to be executed. However, despite opportunity is given, no original letter, claimed to have been written by father of the plaintiffs, has been produced before the Court, and therefore it is tentatively exhibited and not proved before the Court. At any rate, from the tenor of the said letter, it can never be concluded that it talks about purchase of suit godown, that too, at the consideration unilaterally claimed to have been paid in cash. It is further submitted that those correspondences have not been referred to at all by the trial Court or the appellate Court. Going through the judgment rendered by the trial Court, though specifically in great detail, as crucial documents are not proved and needed no Page 32 of 50 Downloaded on : Sat Dec 24 14:13:29 IST 2022 C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 reference, it might not have been referred. Nothing much turns on it on the defense raised by the defendant, as aforesaid. At the same time, the Appellate Court has referred those correspondences along with cross examination of the defendant himself at para-22 of the Appellate Court's judgment. As reflected from it, the defendant had to admit that in the year 1990, there was one plot situated near the suit property. He had to admit in unequivocal terms that suit godown was not under "ULC" restrictions but plot situated nearby was under
"ULC" restrictions. Therefore, tall claim made by the defendant that he is the owner of the suit godown as he has paid the consideration for it and for some different purpose, the rent agreement came to be executed and it is not, in fact, rent agreement but it was executed for the purpose of providing it to the 'BPCL' only and it was never acted upon. Defendant has further in his cross examination admitted that he was paying income tax but he did not have any evidence to show that in the year 1990, he has paid Rs.4,25,000/- to the father of the plaintiffs. Specifically referring to Exh.112 learned Judge Page 33 of 50 Downloaded on : Sat Dec 24 14:13:29 IST 2022 C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 has referred the cross examination of the defendant himself where he had to admit that letter Exh.112 there is no reference regarding the suit godown. He had to further admit that for Exh.91 to 94, he did not have any evidence to show that they were received by the father of the plaintiffs. In para-22, appellate Court on re-appreciation concluded that root cause for not executing the sale deed shown by the defendant is not true and the plaintiff proved the execution of rent agreement by cogent evidence. Specifically referring to the exhibited and admitted in evidence correspondence in para-23 of the Appellate Court decision, it is stated that letters, which are produced at Exhs.89, 90, 91 and 92, which are Xerox copies and second copies of the original in which no details about sale transaction of suit property has been narrated, the defendant in his cross examination clearly admitted that he does not have any evidence to show that these letters were ever received by the father of the plaintiffs. Thus, Appellate Court on re-appreciation of evidence concluded that there is no evidence on record even to suggest that the letters were received by the Page 34 of 50 Downloaded on : Sat Dec 24 14:13:29 IST 2022 C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 father of the plaintiffs and he admitted the transaction of sale as claimed by the defendant.
15. I am not further elaborating, as each argument is specifically dealt with by the Appellate Court and documents, which were referred to by the advocate for the defendant, are also specifically re-appreciated and conclusion reached by the appellate Court, while exercising revisional jurisdiction, that too, under Section 29(2) of "the Rent Act" which is not to be exercised by the High Court as a second court of first appeal.
16. Reliance is placed by the learned advocate for the defendant on decisions in the case of Gurdial Singh and others (supra), Rangammal (Supra), Subhra Mukherjee and Another (Supra) and V.M.Salim (Supra) to contend that it is for the plaintiff to prove that transaction in question was bona-fide and genuine one, before calling upon the defendant to adduce the evidence to prove that the transaction or the document is a sham or fictitious. As such, there is no quarrel on the principle Page 35 of 50 Downloaded on : Sat Dec 24 14:13:29 IST 2022 C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 enunciated therein. However, in the present case, genuineness or bona-fide of document was never in question as execution thereof is clearly admitted by the defendant himself since filing of written statement. However, it is his case that same was never acted upon but considering the evidence led before the Court, the defendant himself, after execution of the rent agreement Exh.30, has taken advantage of it by producing it in 'BPCL' for obtaining a gas agency and utilized the suit godown for storage thereof and genuineness of that document was never in dispute. Therefore, when defendant claims that the rent agreement is sham and fictitious document, burden of proof lies upon him to plead, lead and prove by clinching evidence, which defendant has miserably failed in the present case. Once genuineness of a rent agreement is beyond any doubt and the said agreement is executed by the defendant himself with an open eyes, he cannot be permitted to give contrary evidence to the terms of that rent agreement in furtherance of his case. As such, defendant has failed to show that rent agreement Exh.30 was for any other purpose other than the one Page 36 of 50 Downloaded on : Sat Dec 24 14:13:29 IST 2022 C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 mentioned in it. At the same time, the claim made by the defendant that he is the owner of the suit godown is also not proved by the defendant or even attempted to prove the same. Therefore, the contention raised by the defendant with regard to rent agreement Exh.30 being sham and fictitious is without any material on record and cannot be accepted.
17. Another contention raised is in respect of legality and validity of a suit notice Exh.31 issued under Section 12(2) of "the Rent Act". Learned advocate for the defendant submitted that the suit notice terminates tenancy in praesenti, which is invalid. According to his submission, since sub-section (2) of Section 12 of "the Rent Act" refers about substantive compliance of Section 106 of "the T.P. Act", any termination of a tenancy or determination thereof in praesenti can be termed to be an invalid. Relying on decision in the case of Hakim Ziaul Islam (Supra) more particularly para-5 thereof, it is submitted that it does not meet with the requirement of Section 111(h) read with Section 106 of "the T.P.Act". Page 37 of 50 Downloaded on : Sat Dec 24 14:13:29 IST 2022
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18. Elaborating further, it is submitted that later part of sub-section (2) of Section 12 of "the Rent Act", when it says "In the manner provided in Section 106 of "the T.P. Act", incorporates the substantive part of Section 106 of "the T.P. Act" including the requirement of 15 days notice before which a lease or tenancy cannot be said to be validly terminated by the landlord. According to the submission of learned advocate, when notice terminates the tenancy by very notice, it is infraction of the provisions of "the T.P. Act" and therefore, it cannot be termed as legal or valid notice. However, Supreme Court in the case of V. Dhanapal Chettiar (Supra) very clearly stated that a notice to quit Section 106 of "the T.P. Act" is not a necessary pre-requisite for an eviction petition under any of the State Rent Acts. It is further held in it that, such notice is a mere surplusage. The later part of sub-section (2) of Section 12 clearly provides that service of a notice demanding arrears of rent has to be in the manner as provided under Section 106 of "the T.P. Act". Section 106 of "the T.P. Act" provides the manner and mode of service of such notice as stated in it either sent by post to the Page 38 of 50 Downloaded on : Sat Dec 24 14:13:29 IST 2022 C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 party who is intended to be bound by it or by tendering or delivering personally to such party or to one of his family or servants at his residence. The service of notice of demand under Section 12(2) of "the Rent Act" is not disputed having received by the defendant. On the contrary, he has replied to the said demand notice as also given a counter notice to the plaintiffs. Therefore, notice cannot be termed to be illegal as it contained a specific demand of arrears of rent, it is in writing served to the defendant and it fully complies with the provisions as required under sub-section (2) of section 12 of "the Rent Act", it can never be said to be an invalid notice.
19. However, a faint attempt is made by the learned advocate for the defendant relying decision in the case of Shantaben (Supra) submitting that on consideration of the Supreme Court decision in the case of V. Dhanapal Chettiar (Supra), learned Single Judge of this Court has opined that the said decision cannot be read so as to mean that statutory notice under Section 12(2) of "the Rent Act" does not contemplate termination of tenancy under any law or even under "the Rent Act". It is further Page 39 of 50 Downloaded on : Sat Dec 24 14:13:29 IST 2022 C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 opined that "the Rent Act" being State Act, it cannot override the provisions of the Central Act in a case of conflict or inconsistency. For holding that the State Act presupposes termination of tenancy otherwise there is redundancy, it is stated in it that the termination of tenancy under "the T.P. Act" can only be considered superfluous, if such termination of tenancy is necessary under any State Act.
20. It is further submitted that though decision in the case of Shantaben (Supra) has been considered by the Division Bench of this Court in the case of Surjitsing (Supra), it is not overruled and it is still having binding effect and therefore, if this Court is not agreeing with the opinion expressed therein, it has to be referred to a Larger Bench.
21. In the case of Surjitsing (Supra) the Division Bench of the High Court was concerned with seeming inconsistency with the principle enunciated by the Supreme Court in V. Dhanapal Chettiar (Supra) and opinion expressed by Single Judge in the case of Page 40 of 50 Downloaded on : Sat Dec 24 14:13:29 IST 2022 C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 Shantaben (Supra), which came to be referred to it. Therefore, there is no merit in the contention that the case before the Division Bench in Surjitsing (Supra) was concerned with decree of eviction sought for under Section 13 of "the Rent Act" and therefore, there was no question of any notice being issued is not correct. When a case has been referred to a Division Bench for apparent inconsistency with the principle enunciated by Supreme Court and the Single Judge of High Court, the Division Bench was called upon to resolve the said inconsistency. In that context, the Division Bench in the case of Surjitsing (Supra) in para 9.3 concluded that no observation in the case of Shantaben (Supra) can be at all read in conflict with the decision of Supreme Court in V. Dhanapal Chettiar (Supra). The observation of the learned Single Judge in the case of Shantaben (Supra), "the crux of the matter is that a condition precedent to the filing of a suit for eviction (on the ground of arrears) is the issuance and service of a statutory notice" should not be read so as to mean that a notice under Section 106 of "the T.P. Act" is required before filing a suit for eviction under Page 41 of 50 Downloaded on : Sat Dec 24 14:13:29 IST 2022 C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 "the Rent Act".
22. As recorded by the Division Bench, in the case of Shantaben's (Supra), in para-12.2 of the said decision, the observations were made in the context of Section 12(2) of "the Rent Act" and they had no relevance to any other ground on which the suit for eviction could be filed under Section 13(1) of "the Rent Act. As stated by the Division Bench in the case of Surjitsing (Supra) recording the observations of the Single Judge "that the crucial distinction in the case was that section 12(2) of "the Rent Act" did not contemplate determination of the lease in accordance with Section 106 of "the T.P. Act", it merely contemplated that the notice issued under Section 12(2) must be served in accordance with Section 106 of "the T.P. Act". So, learned Single Judge was also conscious of the fact in the case of Shantaben (Supra) that notice of demanding arrears has to be served in accordance with Section 106 of "the T.P. Act". Therefore, it is clear that it is required to be served in the manner and mode as prescribed in "the T.P. Act" and not any determination of lease, as contemplated in it.
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23. The Division Bench, in the case of Surjitsing (Supra) has observed in para-10.3 as under:
"In any event, the position of law is settled in V. Dhanapal's case that in cases where no specific provision is made under the rent law for issuing any notice requiring the tenant either to pay the arrears of rent within specified period or to do any other thing, there is no need to issue any notice under Section 106 of the Transfer of Property Act before misstating a suit for eviction on any of the grounds available under the Rent Act. The Shantaben's case (supra) was decided in context of Section 12(2) of the Bombay Rent Act and the observations made thereunder were as regards notice which was to be issued under that provision and have no relevance to institution of any suit on the grounds mentioned under Section 13(1) of the Bombay Rent Act which do not lay down requirement of issuance of any notice before institution of such suit. In fact, the learned single Judge ought not to have made any effort of reconciling the ratio in Punjalal's case (supra) or in Abdulgani's case (supra), as was sought to be done in Paragraph 12.1 of the judgment, because Punjalal's case (supra) was in terms overruled by the Supreme Court in V. Dhanapal's case (supra). Page 43 of 50 Downloaded on : Sat Dec 24 14:13:29 IST 2022 C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 It is this attempt to reconcile the observations made in Punjalal's case that has led to an argument that the decision of the learned single Judge lays down a proposition that in all cases, notice of termination of tenancy is required to be issued under Section 106 of the Transfer of Property Act before filing any suit for eviction under the Bombay Rent Act. The observation of the learned single Judge in Paragraph 12 that, "the basic principle is that without determination of the tenancy, no suit for eviction is maintainable" sounds as a sweeping observation if read in isolation, but it has to be read in context of provision of Section 12(2) of the Rent Act which was under consideration before learned single Judge. The said observation is preceded and succeeded by a clear reference to the provision of Section 12(2), and therefore, it cannot be construed to be a proposition laid down by the learned single Judge that in all cases, before filing any suit for eviction under the Rent Act, a notice under Section 106 of the Transfer of Property Act is required. The subsequent discussion in Paragraphs 12.2 and 12.3 of the judgment makes it clear that the said observation was in the context of the requirement of a notice under Section 12(2) of the Rent Act".
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24. After recording it, in para-10.4, the Division Bench in the Surjitsing (Supra)concluded as under:
"We are of the view that the decision of the learned Single Judge in Shantben's case (Supra) should not be read so as to mean that notice is required to be issued under the provisions of Section 106 of "the T.P. Act" for terminating a contractual tenancy before institution of any suit under "the Rent Act".
Such a reading of the judgment in Shantben's case would be in clear violation of ratio of the decision of the 7 Judge Bench judgment of the Supreme Court in V. Dhanapal's case (Supra)".
25. So far as the observation of the learned Single Judge in the case of Shantben (Supra) in respect of overriding provisions of Central Act to the provisions of the State Act and concluding that "the termination of tenancy under "the T.P. Act" can only be considered superfluous, if such termination of tenancy is necessary under any State Act. This presupposes that the State Act contemplates termination of tenancy otherwise there is no redundancy". The Division Bench in the case of Surjitsing (Supra), Page 45 of 50 Downloaded on : Sat Dec 24 14:13:29 IST 2022 C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 concluded that "the aforesaid observation appeared to have been made without ascertaining the fact whether requisite assent under Section 107 (2) of the Government of India Act, 1935 which corresponded to Article 254 (2) of the Constitution of India was given or not. If such assent was obtained then the question of redundancy cannot arise". Referring to the case of Kavasji Pestonji Dalal V/ s. Rustomji Sorabji Jamadar reported in 50 BLR 450 "that Bombay Rent Act (Act No.57 of 1947) received assent of the Governor General on January 19, 1948 and was brought into force on February 13, 1948 which fact is mentioned while referring to the contentions of Mr.Seervai. There is no dispute about the fact that assent of the Governor General to the provisions of the Bombay Rent Act was received on 13th January, 1948 and that such assent was first published in Bombay Government Gazette on 19th January, 1948. In view of such assent, Bombay Rent Act would prevail in the State under Article 254(2) of the Constitution of India. Therefore, there was no need to make any observations on the question of redundancy, as was sought to be done by the learned Single Judge in Page 46 of 50 Downloaded on : Sat Dec 24 14:13:29 IST 2022 C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 paragraph No.12.2 of the judgment in Shantaben's case (Supra)".
26. Since the Division Bench of this Court in Surjitsing (Supra), explained and clarified the observations in the case of Shantaben's (Supra), the contention raised by the learned advocate for the defendant that notice as contemplated under Section 12(2) of "the Rent Act" has to be issued under substantive provisions of Section 106 of "the T.P. Act" has no legs to stand, and therefore, there is no question of referring it again to the larger bench.
27. So far as reliance placed on the decisions of Allahbad High Court and Andhra Pradesh High Court in the cases of Hakim Ziaul Islam (Supra) and Yerrabhothula Krishan Murthy and others (Supra), since it were not considering the requirement of notice under any State Rents Act and the proceedings therein were only under the dispute between the landlord and tenant under the Transfer of Property Act, those decisions Page 47 of 50 Downloaded on : Sat Dec 24 14:13:29 IST 2022 C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 cannot be pressed into service for a contention that termination of a tenancy in praesenti by a notice would be invalid. Under "the T.P. Act", no ground of ejection has to be made out for eviction of a tenant. However, it requires only notice to quit as contemplated under Section 111 (h) read with Section 106 of "the T.P. Act" and therefore, compliance therein to term the notice as valid or invalid required to be considered. Whereas, under "the Rent Act", only specified provisions and the grounds must be shown for ejectment of tenant incurring liability to vacate in accordance with law stated in "the Rent Act" itself. Even if a notice terminates the tenancy in praesenti, "the Rent Act" provides under Section 12 of it an opportunity to the tenant to make payment thereof until the expiration of period of 1 month after the notice referred to in sub section (2) of Section 12 of "the Rent Act", before tenant incurs liability for a decree of eviction. At any rate, notice terminating the tenancy in praesenti with demand of arrears of rent could be termed as a composite notice and it is permissible under the law.
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28. The other decisions cited at the Bar and relied on by the learned advocates appearing for the parties are not required and are not specifically dealt with as the controversy in issue in the present case is covered by decision of Constitution Bench of the Supreme Court as also decision of a Division Bench of this Court along with bare provisions as contained under Section 12(2) of "the Rent Act" which requires only service of demand notice of arrears of rent in the manner as provided under Section 106 of "the T.P. Act".
29. Since judgment and decree is passed by the trial Court after appreciation of evidence and it is confirmed by the appellate Court on re-appreciation of it on facts, I see no reason to interfere with it and therefore, this Revision Application is rejected.
30. At this stage, Mr.Shashvata Shukla, learned advocate for the defendant prays for stay of the impugned judgment and decree passed as confirmed by the appellate Court, same cannot be granted as since filing of it and circulated for first hearing on 1.7.2019, no stay Page 49 of 50 Downloaded on : Sat Dec 24 14:13:29 IST 2022 C/CRA/309/2019 JUDGMENT DATED: 04/04/2022 against it was ever granted by this Court, I see no reason to stay it or to stay the present judgment and order.
(UMESH A. TRIVEDI, J) ASHISH M. GADHIYA Page 50 of 50 Downloaded on : Sat Dec 24 14:13:29 IST 2022