Gujarat High Court
Guajrat State Civil Supplies ... vs Minaben Rajesh Sanghavi & ... on 23 August, 2016
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
C/CRA/244/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL REVISION APPLICATION NO. 244 of 2013
With
CIVIL REVISION APPLICATION NO. 245 of 2013
TO
CIVIL REVISION APPLICATION NO. 247 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE Z.K.SAIYED
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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GUAJRAT STATE CIVIL SUPPLIES CORPORATION LTD....Applicant(s)
Versus
MINABEN RAJESH SANGHAVI & 1....Opponent(s)
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Appearance:
MR HS MUNSHAW, ADVOCATE for the Applicant(s) No. 1
MRS VD NANAVATI, ADVOCATE for the Opponent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 23/08/2016
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C/CRA/244/2013 CAV JUDGMENT
CAV JUDGMENT
[1] The present Civil Revision Applications are preferred by the applicant challenging the impugned judgment and order dated 12.06.2013 passed by the learned Judge of Small Causes Court, Ahmedabad dismissing the Civil Appeal Nos.100/2011 to 103/2011 and confirming the judgment and decree dated 05.09.2011 in H.R.P. Suit Nos.988/2008, 989/2008, 3262/2004 and H.R.P. Suit No.3263/2004 passed by the learned Judge, Court No.8, Small Causes Court, Ahmedabad. [2] The brief facts of the present case are as under:-
The original plaintiffs - respondents herein leased out the premises i.e. ground floor paiki Block No.A admeasuring about 184 square yard, carpet area 1268 square feet and Block No.B admeasuring about 184 square yard, carpet area 1268 square feet of building known as "Shivprasad' situated at Hindu Colony, bungalow no.7, Opp. Vallabhbhai Stadium, Navrangpura, Ahmedabad which is under T. P. Scheme no.3 of Page 2 of 49 HC-NIC Page 2 of 49 Created On Thu Aug 25 05:25:03 IST 2016 C/CRA/244/2013 CAV JUDGMENT Ahmedabad Municipal Corporation bearing Final Plot Nos.221, 222, 223, 229 and 230 (for short "the suit premises") to the present applicant -
original appellant - defendant on 15.08.1981 by the then owners and now the rent of the said premises is Rs.6902.00 for each month for each block. It is the case of the plaintiffs that the suit premises is leased out for use of office purpose and land of margin is not leased out to the applicant. It is the case of the plaintiffs that the lease period has come to an end. It is further the case of the plaintiffs that the applicant - defendant is using the suit premises in breach of the lease agreement and the suit premises are being used for storage and delivery of gas cylinders to its customers and is using open land for storing gas cylinders. It is the case of the plaintiffs that the applicant -
defendant has erected rooms and made construction of permanent nature. Therefore, the suits being H.R.P. Suit No.989/2008, H.R.P. Suit No.3262/2004 and H.R.P. Suit No.3263/2004 came to be filed Page 3 of 49 HC-NIC Page 3 of 49 Created On Thu Aug 25 05:25:03 IST 2016 C/CRA/244/2013 CAV JUDGMENT with regard to other portions of the suit premises. The plaintiffs claimed the possession of the suit premises from the defendant for breach of the provisions of the Explosive Act, for change of user on the ground of permanent construction and on the ground of nuisance and annoyance. The plaintiffs have also claimed mesne profit and permanent injunction restraining the defendant from storing and distributing gas cylinders from the suit premises and from using open land of the suit premises and from making hurdles on internal road of the society. It is submitted that H.R.P. Suit No.988/2008 came to be filed by the present original plaintiffs to recover the possession and for mense profit and permanent injunction in respect of block no.1 of the suit premises. The learned Judge, Small Cause Court No.8, Ahmedabad vide impugned judgment and order dated 05.09.2011 decreed H.R.P. Suit Nos.988/2008 and 989/2008 whereas H.R.P. Suit Nos.3262/2004 and 3263/2004 for permanent injunction are concerned, instead of granting Page 4 of 49 HC-NIC Page 4 of 49 Created On Thu Aug 25 05:25:03 IST 2016 C/CRA/244/2013 CAV JUDGMENT permanent injunction, the learned Judge ordered that the defendant shall abide and obey the order passed by this Court in Special Civil Application Nos.17281/2005 to 17283/2005 till the possession of the suit premises are handed over by the defendant to the plaintiffs. Being aggrieved and dissatisfied with the judgment and decree dated 05.09.2011 passed by the learned Judge, Small Cause Court No.8, Ahmedabad, the defendant -
Gujarat State Civil Supplies Corporation filed Civil Appeal Nos.100/2011 to 103/2011. The Appellate Bench of Small Cause Court, Ahmedabad, vide common judgment dated 12.06.2013 dismissed the appeals and passed the order of eviction on the ground of nuisance and annoyance as per section 13(1)(c) of the Gujarat Rent, Hotel and Lodging House Rent Control Act, 1947. Hence, these Civil Revision Applications. [3] Heard Mr.K. M. Patel, learned senior counsel with Mr.H. S. Munshaw, learned advocate for the applicant and Mr.S. I. Nanavati, learned senior counsel for Ms.V. D. Nanavati, learned Page 5 of 49 HC-NIC Page 5 of 49 Created On Thu Aug 25 05:25:03 IST 2016 C/CRA/244/2013 CAV JUDGMENT advocate for the respondents.
[4] Mr.K. M. Patel, learned senior counsel for Mr.H. S. Munshaw, learned advocate for the applicant has submitted that both the courts below have erred in passing the impugned judgments which are contrary to law and oral as well as documentary evidence on record. He has submitted that the both the courts have ignored the oral as well as documentary evidence led by the applicant before the trial Court. He has submitted that the courts below ought to have appreciated the fact that in absence of issuance of notice under section 80 of the Civil Procedure Code, the suits were barred by delay, latches and on the ground of estoppel and acquiescence, the suits ought to have been dismissed. It is submitted that the learned Appellate Judge has committed an error in upholding the decree and also ordering the decree of eviction on the ground of nuisance and annoyance. It is submitted by learned senior counsel for the applicant that on 15.08.1981, the suit premises was let out for Page 6 of 49 HC-NIC Page 6 of 49 Created On Thu Aug 25 05:25:04 IST 2016 C/CRA/244/2013 CAV JUDGMENT a period of ten years by original owners Maheshbhai Balchandra Belsare and Sharadbhai Balchandra Belsare. The agreement was executed and signed on 15.08.1981 but the same was not registered as required by section 17 of Indian Registration Act, 1908. It is submitted that on 25.01.1987, the applicant - Corporation was given dealership by Indian Oil Corporation of LPG Cylinders known as "Indane" for Navrangpura area. Since then, apart from the work relating to PDS, ICDS etc., schemes in Ahmedabad District, the work of IOC dealership is being carried out from the suit premises. It may be stated that for storage of Gas Cylinders, the applicant has taken license under the Explosives Act at its godown at Shahibaug and the work relating to booking and other administrative work of IOC dealership is carried out from the suit premises. During pendency of the suit, the Small Causes Court granted permanent injunction, against which SCA No.17281/2005 and 17283/2005 were filed by the applicant Corporation before this Court. It is Page 7 of 49 HC-NIC Page 7 of 49 Created On Thu Aug 25 05:25:04 IST 2016 C/CRA/244/2013 CAV JUDGMENT further submitted that on 23.08.2005, In SCA Nos.17281/2005 and 17283/2005, this Court stayed the order of Small Causes Court and that Appellate Court granting interim injunction against carrying out work of Gas Cylinders with clarification the work of booking etc can be carried out but there shall be no storage of Gas Cylinders filled with LPG at the suit premises. It is submitted that on 14.06.2007, the SCA Nos.17281/2005 and 17283/2005 came to be disposed of by this Court with a direction to dispose of the suit preferably within six months and pending the final disposal of the suit the interim relief granted on 26.07.2005 wsa continued subject to storage of filled cylinders in accordance with Rule 52 (b) and (c) of Gas Cylinders Rules, 1981. It is submitted that on 22.02.2008, the original owners had sold and transferred the suit premises to Mrs.Meenaben Rajeshbhai Sanghvi and Mrs.Jagrutiben Sanghvi. In the year 2008, the said purchasers had filed H.R.P. Suit Nos.988/2008 and 989/2008 for Page 8 of 49 HC-NIC Page 8 of 49 Created On Thu Aug 25 05:25:04 IST 2016 C/CRA/244/2013 CAV JUDGMENT eviction, possession and injunction in relation to suit premises on different grounds, such as change of user, nuisance etc. It is submitted that the original owners Maheshbhai Belsare and Sharad Belsare had also filed H.R.P. Suit Nos.3262/2004 and 3263/2004 were substituted as plaintiffs by purchasers Mrs.Meenaben Rajeshbhai Sanghvi and Mrs.Jagrutiben Sanghvi and all the four suits were consolidated for hearing. It is submitted by learned senior counsel for the applicant that the Small Causes Court decree the suit and passed an order on 05.09.2011 of eviction on the ground of change of user holding that the suit premises were let for office use only and the applicant has used the suit premises for storage of Gas Cylinders. The applicant was directed to hand over vacant and peaceful possession within six months. It is further submitted by learned senior counsel for the applicant that the applicant had filed the abovementioned judgment and decree of the Small Causes Court dated 05.09.2011. The respondents Page 9 of 49 HC-NIC Page 9 of 49 Created On Thu Aug 25 05:25:04 IST 2016 C/CRA/244/2013 CAV JUDGMENT have also filed cross objections against the judgment and order of Small Causes Court in which other grounds of eviction were not accepted. It is submitted that the Appellate Bench of Small Causes Court dismissed the appeals of the Corporation and confirmed the findings of Small Causes Court that there was change of user of suit premises and also allowed the cross objections upholding the ground of nuisance for passing the decree of eviction.
[5] Mr.Patel, learned senior counsel for the applicant has argued that the sole basis on which the Small Causes Court and the Appellate Court arrived at finding for change of user of premises from office use to the Gas Agency Work is clause no.3(ii) of the agreement dated 15.08.1981 (Exhibit 23 and 24) wherein it is mentioned that the suit premises will be used for office use only. It is submitted that those agreements Exhibit 23 and 24 are given exhibit numbers with the consent of the learned advocate for the applicant. The consent was conditional keeping Page 10 of 49 HC-NIC Page 10 of 49 Created On Thu Aug 25 05:25:04 IST 2016 C/CRA/244/2013 CAV JUDGMENT open all contentions of the applicant. It is so recorded by the Appellate Court in its judgment observed that 'further looking to the record of original case, the appellant (defendant) advocate had given permission to exhibit document "subject to standing their disputes" regarding said document'. It is argued that thus, no objection given by the advocate was only to dispense with formal proof of execution of agreement. However, since it is subject to contention and disputes, it is incumbent to examine whether those documents (lease agreements) can be relied as a legal evidence or not. It is argued that the lease as per the agreement was for a period of ten years. It was therefore required to be registered compulsorily as per section 17(i)(d) of the Registration Act, 1908 and since the same was not registered it was not admissible in evidence and could not have been relied as legal evidence as a basis for arriving at a finding that the suit premises were let out only for office purpose. It is argued that the sole basis Page 11 of 49 HC-NIC Page 11 of 49 Created On Thu Aug 25 05:25:04 IST 2016 C/CRA/244/2013 CAV JUDGMENT on which the Small Causes Court arrived at a finding of change of user is the agreements exhibit - 23 and 24 as can be seen from page 25. Similarly appellate bench of user on those two documents as is evident from page nos.98 and 99. The appellate court relied upon decision of the Hon'ble Supreme Court in the case of Raichand Jani Vs. Miss Chandra Kanta Khosla, AIR 1991 SC 744 and held unregistered lease deed can be considered for determining the purpose for which the premises are let out as collateral purpose. It is argued that the said view is erroneous since the terms and conditions of lease are not collateral purpose but they are integral part of lease deed and cannot be looked into as collateral purpose if the document is not registered. The learned senior counsel for the applicant relied upon the decision of the Hon'ble Supreme Court in the case of K. G. Saha and Sons Pvt. Ltd. Vs. Development Consultant Ltd., reported in (2008) 8 SCC 564 more particularly paragraph nos.29 to 35. The Hon'ble Supreme Court Page 12 of 49 HC-NIC Page 12 of 49 Created On Thu Aug 25 05:25:04 IST 2016 C/CRA/244/2013 CAV JUDGMENT in the case of K. G. Saha and Sons Pvt. Ltd (supra) has held in paragraph no.34 that "if a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that too use a document for the purpose of providing an important clause would not be using it as a collateral purpose." The learned senior counsel for the applicant has also relied upon the decision of the Hon'ble Supreme Court in the case of Satish Chand Makhan Vs. Govardhan Das Byas, reported in AIR 1984 SC 143 which takes the same view that a condition of agreement cannot be looked into and relied on as collateral purpose. It is submitted that the finding on which both the courts held that there was change of user for passing a decree of eviction are the agreements Exhibit 23 and 24 which are unregistered documents. The purpose for which the premises was let out is not collateral purpose. Since the documents are not registered the Cort could not have relied on the same as evidence in view of the mandate of section 49 of Page 13 of 49 HC-NIC Page 13 of 49 Created On Thu Aug 25 05:25:04 IST 2016 C/CRA/244/2013 CAV JUDGMENT the Registration Act which is enacted in public interest. A reliance is placed by the respondents that there is admission by the witness of the applicant in his cross examination that the premises were let out for office use is misleading and not specific. It is submitted that in paragraph no.20 of the cross-examination, the witness stated that the premises were taken on lease on the terms and conditions as mentioned in exhibits 23 and 24. There is no specific question and admission that the premises were let out only for office purpose. In the written statement as well as examination-in-chief, the witness has specifically stated that the premises were taken for Gas Cylinders trading work also. In any case, the courts below have not relied on the evidence of the witness of the applicant in support of findings of change of user since both the judgments of the courts below are based solely on agreements at exhibits 23 and 24 which are unregistered documents and not admissible in evidence. Learned senior counsel for the Page 14 of 49 HC-NIC Page 14 of 49 Created On Thu Aug 25 05:25:04 IST 2016 C/CRA/244/2013 CAV JUDGMENT applicant has argued that the suit for eviction could not have been decreed on the ground of change of user since the work of gas agency is being carried out from the suit premises from the year 1983. The dealership agreement with IOC at exhibit 159 shows that the dealership was given on 25.01.1983. Since then the work of gas agency is carried on in suit premises and the original land owners did not object to carry out the work of gas agency. The original owners filed suit in the year 2004 i.e. after 20 years and that too, only for permanent injunction restraining the corporation from carrying out the work of gas agency in the suit premises etc. The suit premises were sold by the original owners to the present respondents after this Court passed the order dated 14.06.2007 in Special Civil Application Nos.17281/2005 and 17283/2005 permitting the corporation to carry work of gas agency from the suit premises with a direction not to store filled up gas cylinders in the suit premises. It is submitted that H.R.P. Suit Page 15 of 49 HC-NIC Page 15 of 49 Created On Thu Aug 25 05:25:04 IST 2016 C/CRA/244/2013 CAV JUDGMENT Nos.988/2008 and 989/2008 for decree of eviction and possession are filed by the purchasers after more than 24 years. The purchasers appeared to be in business as developer of property and had filed the suit for eviction and possession in 2008 (after more than 24 years) obviously with a view to get possession and develop the property. It is submitted that even if it is assumed that the premises were originally let out for office use only, the suit for eviction ought not to have been decreed on the ground of change of user since the original land owners for more than 20 years did not object to the work of gas agency from the suit premises and thereby acquiesced with the change of user. On the principles of acquiescence, estoppel and waiver the courts below ought not to have accepted the change of user as a ground for eviction. Learned senior counsel for the applicant has submitted that except office work of booking no other work relating to gas agency is carried out from the suit premises. The filled up gas cylinders are Page 16 of 49 HC-NIC Page 16 of 49 Created On Thu Aug 25 05:25:04 IST 2016 C/CRA/244/2013 CAV JUDGMENT stored at Shahibaug godown of the corporation for which it has obtained license at exhibit 157. Learned senior counsel for the applicant has relied upon the decisions of the Hon'ble Supreme Court in the case of Hari Rao Vs. N. Govindachari reported in (2005) 7 SCC 643 (para-8), in the case of Gurdial Batra Vs. Raj Kumar Jain reported in (1989) 3 SCC 441, in the case of Jagdish Lal Vs. Parma Nand reported in (2000) 5 SCC 44 and submitted that the change of user of storing cylinder in the past, if any, deserves to be condoned and no decree of eviction and possession deserves to be passed.
[6] Mr.Patel, learned senior counsel for the applicant has argued that the limitation for suit for possession as per Article 66 of the Limitation Act, 1963 is 12 years. The gas agency work is carried out out from the suit premises from 1983. The original owners filed suit for permanent injunction in the year 2004 and purchasers filed suit for eviction in the year 2008. All the suits are much beyond the period of Page 17 of 49 HC-NIC Page 17 of 49 Created On Thu Aug 25 05:25:04 IST 2016 C/CRA/244/2013 CAV JUDGMENT 12 years. The suits were, therefore, barred by limitation. He has further submitted that the Small Causes Court has negatived the ground of delay and latches while dealing with the issue no.B/6 and C/5 at page 39. In appeal, the ground of limitation is expressly taken and argued. It is so reflected in paragraph 4 at page 49 of appeal memo where specific ground of acquiescence, estoppels and limitation is taken. Page 78 of the judgment of the appellate bench shows that contention of limitation was specifically argued. The Appellate Court has not dealt with the issue at all and has dismissed the appeal. It is further submitted that the Courts below have erred in overlooking the ground of limitation and the same is error of law going to the root of the matter. Learned senior counsel for the applicant has relied upon the decisions of the Hon'ble Supreme Court in the case of Heirs of A.I. Mithaiwala Asmai Abdulhusein Vs. Ashwinkumar L. Bhatt, reported in 2000 (2) G.L.H. 356, in the case of Smt. Shakuntala S. Tiwari Vs. Page 18 of 49 HC-NIC Page 18 of 49 Created On Thu Aug 25 05:25:04 IST 2016 C/CRA/244/2013 CAV JUDGMENT Hemchand M. Singhani, reported in AIR 1987 SC 1823 wherein it is held that the period of limitation for filing the suit for possession is 12 years.
[7] Mr.Patel, learned senior counsel for the applicant has argued that the Small Causes Court at page 34 did not accept the nuisance as a ground for passing decree of eviction. However, the appellant bench of Small Causes Court accepted the cross objection and passed the order of eviction on the ground of nuisance. It is submitted that the case of the respondents is that the premises were let out for office purpose. He has argued that the applicant corporation is a public sector and engaged in the work of public distribution system and other related schemes of the government. The work of Ahmedabad District is carried out from the suit premises. It is, therefore, argued that the appellate bench has believed the ground of nuisance on the ground that the customers of gas agency coming to the office of the corporation in Page 19 of 49 HC-NIC Page 19 of 49 Created On Thu Aug 25 05:25:04 IST 2016 C/CRA/244/2013 CAV JUDGMENT the suit premises and created nuisance. It is submitted that the said finding is erroneous and unbelievable. It is further submitted that the ground of nuisance accepted by the appellate bench for passing the decree of eviction is erroneous and unsustainable. It is further submitted that on the aforesaid grounds and premises, the judgment, order and decree of eviction, and possession and injunction passed by the Small Causes Court and confirmed by the Courts below may be quashed and set aside. [8] Per contra, Mr.S. I. Nanavati, learned senior counsel for Ms.V. D. Nanavati, learned counsel for the respondents has drawn the attention of the Court to the facts and contended that the premises i.e. ground floor paiki block no.A admeasuring 184 square yard, carpet area 1268 square feet and block no.B admeasuring about 184 square yard, carpet area 1268 square feet of a building known as 'Shivprasad', situated at Hindu Colony, bungalow no.7, Opp. Sardar Page 20 of 49 HC-NIC Page 20 of 49 Created On Thu Aug 25 05:25:04 IST 2016 C/CRA/244/2013 CAV JUDGMENT Vallabhbhai Patel Stadium, Navrangpura, Ahmedabad, T. P. scheme no.3, F.P. No.221, 222, 223, 227, 229 and 230 are the suit premises which were let out by the original plaintiffs of H.R.P. Suit nos.988/2008 and 989/2008 to the applicant vide agreement dated 15.08.1981. He has drawn attention to the agreement, more particularly, condition no.3 of the agreement which reads thus:
"3(ii) provides that 'to make necessary repairs and the maintenance of the leased property is to be carried out and expenses to be borne by the lessee herein and to allow the user of the premises only for the office purposes."
It is submitted that the said premises were let out only to use the said premises for office purposes. The petitioner started to use the said premises for storing and trading of gas cylinders on the suit premises and, therefore, Suit Nos.3262/2004 and 3263/2004 were filed by Nageshbhai Ramesh Belsare, Mahesh Belsare and one another for granting permanent injunction. During pendency of the suits filed in the year 2004, the original owners had sold the said two blocks to Page 21 of 49 HC-NIC Page 21 of 49 Created On Thu Aug 25 05:25:04 IST 2016 C/CRA/244/2013 CAV JUDGMENT Minaben Rajesh Sanghavi and Jagrutiben Sumirbhai Sanghavi on 22.02.2008 by a registered sale deeds. It is submitted that Minaben and Jagrutiben had filed two suits being H.R.P. Suit No.988/2008 for block no.A and H.R.P. Suit No.989/2008 for block no.B for getting the possession, mesne profit and for permanent injunction on 17.04.2008. Thereafter, Minaben and Jagrutiben have filed applications for substitution and joining as plaintiffs in H.R.P. Suit No.3262/2004 and H.R.P. Suit No.3263/2004 and original plaintiffs of the said two suits of 2004 were removed in the year 2004 as plaintiffs. It is submitted that the defendant has made breach of conditions and the suit premises are used for storage and trading of gas cylinders to its customers. Thus, the defendant changed use of the premises and has committed breach of condition no.3 of the agreement. It is further submitted that the defendant has more than 12000 customers and stores gas cylinders more than 400 in numbers and uses the open land of the premises Page 22 of 49 HC-NIC Page 22 of 49 Created On Thu Aug 25 05:25:04 IST 2016 C/CRA/244/2013 CAV JUDGMENT for keeping gas cylinders. The defendant, without obtaining licence under the provision of the Explosive Act, was storing and distributing the gas cylinders. It is submitted that everyday quarrel has taken place between the customers and created nuisance and annoyance to the owners and neighbours. It is further submitted that the plaintiffs have filed the suit for getting the possession of the suit premises from the defendant on the ground of change of user, for breach of the provisions of the Explosive Act and nuisance and annoyance. It is further submitted by learned senior counsel for the respondents that after the issues were framed and after hearing both the parties to the suit at length, the learned Small Causes Court No.8, Ahmedabad held in favour of the plaintiffs that the defendant has changed the use of the premises and, therefore, the plaintiffs are entitled to get the vacant and peaceful possession of the suit premises. It is further submitted that so far as the issue of limitation is concerned, the Page 23 of 49 HC-NIC Page 23 of 49 Created On Thu Aug 25 05:25:04 IST 2016 C/CRA/244/2013 CAV JUDGMENT same is also decided by the learned Small Causes Court in paragraph no.54 of the judgment and order. So far as the issue of nuisance and annoyance is concerned, the trial Court came to the conclusion that in view of the business activity of the defendant, it is not nuisance but might be giving a reason to nuisance and in the interest of consumers, the point of nuisance and annoyance was considered in negative. [9] Mr.Nanavati, learned senior counsel for the respondents has argued that the lease agreement dated 15.08.1981 is not having evidently value and cannot be considered as an evidence as the same is not a registered document as per section 49 of the Registration Act. Section 49 of the Registration Act reads as under:
49. Effective of non-registration of documents required to be registered. - No document required by section 17 or by any provision of the Transfer of Property Act, 1882, to be registered shall-
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or Page 24 of 49 HC-NIC Page 24 of 49 Created On Thu Aug 25 05:25:04 IST 2016 C/CRA/244/2013 CAV JUDGMENT
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered.
Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877) or as evidence of any collateral transaction not required to be effected by registered instrument."
Learned senior counsel for the
respondents relied upon the decision of the
Hon'ble Supreme Court in the case of Ahmedsaheb (dead) by Lrs. & Ors. Vs. Sayed Ismail, reported in (2012) 8 SCC 516, wherein the Hon'ble Supreme Court, in paragraph nos.5, 6, 11, 12, 16, 17 and 18, has observed as under:-
"5. Having heard learned counsel for the respective parties and having perused the material papers, we are constrained to state that though there can be no two opinions that the rent deed relied upon by the appellants being an unregistered document cannot form the basis to support the claim of the appellants for recovery of the rent due, if we are able to find that in the case on hand there is other uncontroverted evidence available on record to support the claim Page 25 of 49 HC-NIC Page 25 of 49 Created On Thu Aug 25 05:25:04 IST 2016 C/CRA/244/2013 CAV JUDGMENT of the appellants, that would be sufficient to uphold the decree for recovery of rent from the respondent. We also wish to point out that such other materials which existed should have been accepted by the High Court while examining the correctness of the order of the Courts below."
"6. We also wish to state that that the very decision which was relied upon by the High Court, while laying down the principle that an unregistered document cannot be legally accepted in evidence to support the claim of the parties in regard to the respective status as lessor and lessee and vice versa as well as other recitals therein relating to rent, etc., in the light of the provisions contained in the second paragraph of Section 107 of the Transfer of Property Act itself, the status of the parties on the basis of undisputed facts pertaining to the demised premises as landlord and tenant can always be accepted and the rights of the parties can be worked out on that basis."
"11. Keeping the above undisputed facts in mind, when we examine the legal issue, at the very outset, it will have to be stated that even while holding that Exhibits 68-69 being unregistered documents cannot be accepted in evidence, the relationship of the appellants and the respondent as landlord and tenant was not in controversy. Even according to the respondent himself the rent payable was Rs.800 per year which was admittedly not paid by him right from day one when the tenancy commenced. It was an admitted case of the respondent that the rent was due from him from October, 1971 till the Page 26 of 49 HC-NIC Page 26 of 49 Created On Thu Aug 25 05:25:04 IST 2016 C/CRA/244/2013 CAV JUDGMENT third suit was filed. We are unable to appreciate as to how the appellants could have been non-suited solely on the ground that Exhibit 69 was not admissible in evidence."
"12. It is needless to emphasise that admission of a party in the proceedings either in the pleadings or oral is the best evidence and the same does not need any further corroboration. In our considered opinion, that vital aspect in the case viz. the admission of the respondent in the written statement about the rate of rent and the further admission about its non-payment for the entire period for which the claim was made in the three suits was sufficient to support the suit claim. The High Court failed to note the said factor while deciding the second appeal which led to the dismissal of the appeals. Even while eschewing Exhibit 69 from consideration, the High Court should have noted that the relationship of landlord and tenant as between the plaintiffs and the defendants was an established factor and the rate of rent was admitted as Rs. 800 per year."
"16. As far the decision now relied upon viz. Kaladevi is concerned, that was a case where the suit was laid for specific performance and stress was laid on the proviso to Section 49 of the Registration Act which specifically excludes the mandatory requirement of registration in the substantive part of Section 49 read along with Section 17 of the Transfer of Property Act. This Court, therefore, held that the reliance placed upon the unregistered sale deed at least for the purpose of proof of an oral agreement of sale as a collateral Page 27 of 49 HC-NIC Page 27 of 49 Created On Thu Aug 25 05:25:04 IST 2016 C/CRA/244/2013 CAV JUDGMENT transaction was permissible. This Court also made it clear that in such a situation the document in question can be received in evidence by making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section 49 of the Registration Act. Therefore, the said decision in the facts and circumstances of the case is clearly distinguishable."
"17. We are, therefore, of the view that the dismissal of the suit on the simple ground that Exhibit 69 was not a registered document cannot be accepted. Having regard to our above conclusion, the appeals deserve to be allowed."
"18. Since the claim of the plaintiff has been lingering from the year 1971, we do not wish to relegate the parties once again to the court below for the simple purpose of ascertaining the arrears. Since the respondent admitted the annual rent payable as Rs. 800 per year, the claim being from October 1971 to November 1980, namely, for 9 years by simple arithmetic, the arrears can be worked out to a sum of Rs. 2400 in RCS No. 167 of 1974, Rs. 2400 in RCS No. 211 of 1977 and another Rs.2400 in RCS No. 240 of 180, in all a sum of Rs. 7200. "
[10] Mr.Nanavati, learned senior counsel for the respondents has argued that as per the decision of the Hon'ble Supreme Court, when there is an admitted relationship of landlord and tenant and if there is an oral agreement also, Page 28 of 49 HC-NIC Page 28 of 49 Created On Thu Aug 25 05:25:04 IST 2016 C/CRA/244/2013 CAV JUDGMENT the same cannot be considered and has its own evidentiary value though it is not a registered document. In the present case, it is not in dispute that there is a relationship of landlord and tenant between the applicant and the respondents. It is also an admitted fact that there is an agreement between the parties which is at Exhibit 23 and 24. The conditions of the agreement are also admitted and, therefore, it can never be said that only because of the reason the agreement is not registered one, it cannot be considered in evidence and it has no evidentiary value. It is pertinent to note at this juncture that the agreement dated 15.08.1981 was produced vide Exhibit 23 and 24 by the original plaintiff before the trial Court. The said documents were produced by the plaintiff and at the time of exhibiting the documents, the applicant - original defendant made an endorsement 'no objection'. When the original defendant made an endorsement that he has no objection for exhibiting the said documents, then the principle Page 29 of 49 HC-NIC Page 29 of 49 Created On Thu Aug 25 05:25:04 IST 2016 C/CRA/244/2013 CAV JUDGMENT of estoppel is applicable in such type of cases and, thereafter, the defendant cannot be permitted to take another stand about non- registration of documents. It is argued that the said endorsement was made at the time of giving exhibit number to the documents subject to standing their dispute regarding the said document, the said dispute can be raised at the time of cross-examination of the witness. It is argued that the Appellate Court has specifically observed that the defendant made an endorsement that they have no objection if exhibit number is given to the documents below exhibit 23 and 24. It is argued that as per condition no.3, the suit premises were let out only for the office purpose. It is admitted by the applicant - Corporation in para-7 of the affidavit in chief examination that gas cylinders were stored and distributed from the suit premises. It is also admitted by the said witness in his cross examination that the suit premises were let out on the conditions mentioned in the documents Page 30 of 49 HC-NIC Page 30 of 49 Created On Thu Aug 25 05:25:04 IST 2016 C/CRA/244/2013 CAV JUDGMENT agreement which are produced at Exhibit 23 and
24. It is further argued by learned counsel that the petition which came to be filed by the corporation before this Court being Special Civil Application No.17282 of 2005 wherein it has specifically been mentioned by the Court that 'till both the suits are finally disposed of, the interim relief granted by this court which is in operation till this date shall continue subject to the modification that the petitioner shall not store any filled cylinders in the rooms and subject to the applicability and compliance of the provisions contained in Rule 52(b) and (c) of the Gas Cylinder Rules, 1981'. In view of the aforesaid facts, the concurrent findings arrived at by the Courts below on the point of change of user may not be interfered with by this Court. Learned senior counsel for the respondents has referred to section 108(o) of the Transfer of property Act, 1982, which reads as under:
"108. Rights and liabilities of lessor and lessee. - In the absence of a contract or local usage to the contrary, Page 31 of 49 HC-NIC Page 31 of 49 Created On Thu Aug 25 05:25:04 IST 2016 C/CRA/244/2013 CAV JUDGMENT the lessor and the lessee of immovable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased:
(A) Rights and Liabilities of the Lessor.
(a) xxxxx xxxxx
(b) xxxxx xxxxx
xxxxx xxxxx
(o) the lessee may use the property and its products (if any) as a person of ordinary prudence would use them if they were his own; but he must not use, or permit another to use, the property for a purpose other than that for which it was leased, or fell or sell timber, pull down or damage buildings belonging to the lessor, or work mines or quarries not open when the lease was granted, or commit any other act which is destructive or permanently injurious thereto;
(p) xxxxx xxxxx"
Learned senior counsel for the
respondents has referred to section 13(1)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, which reads as under:
"13. When landlord may recover possession (1) Notwithstanding anything contained in this Act but subject to the provisions of Section 15, a landlord shall be entitled to recover Page 32 of 49 HC-NIC Page 32 of 49 Created On Thu Aug 25 05:25:04 IST 2016 C/CRA/244/2013 CAV JUDGMENT possession of any premises if the Court is satisfied -
(a) that, the tenant has committed any act contrary to the provisions of clause (o) of section 108 of the Transfer of Property Act, 1882; or
(b) xxxxx xxxxx"
Learned senior counsel for the
respondents has argued that thus, as per the
provisions of the Transfer of Property Act, 1882 and the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, when change of use of premises is proved, the landlord is entitled to recover the possession of the suit premises. In the present case, as stated hereinabove, the applicant herein changed the use of premises for which it was let out and, therefore, the revision application is required to be dismissed. Learned senior counsel for the respondents has relied upon a judgment by this Hon'ble Court in the case of Hareshbhai Gordhanbhai Amin Vs. Vanmalidas Parmandas Patel reported in 1998 (3) GLR 2427 wherein this Hon'ble Court in Para 12 of the said decision has specifically held that when there is Page 33 of 49 HC-NIC Page 33 of 49 Created On Thu Aug 25 05:25:04 IST 2016 C/CRA/244/2013 CAV JUDGMENT a change of use of the premises let out, the landlord is entitled to a decree for eviction.
[11] Mr.Nanavati, learned senior counsel for the respondents has argued that when there is a concurrent finding of the Trial Court on the issue, the High Court has very limited power to interfere with the concurrent findings in its revisional jurisdiction. Learned senior counsel for the respondents has relied upon the following decisions:
(1) Helper Girdharbhai Vs. Saiyed Mohmad Mirasaheb and others, reported in 1987 (2) GLH 261;
(2) Patel Valmik Himatlal and Others Versus Patel Mohanlal Muljibhai (Dead) through LRS.
reported in (1998) 7 Supreme Court Cases 383; (3) N. Eswari, w/o Adinarayana Versus K. Swarajya Lakshmi, w/o late K.V.L.N.A. Sastry, reported in (2009) 9 Supreme Court Cases 678; [12] Learned counsel for the respondents has submitted that in the case of Helper Girdharbhai Page 34 of 49 HC-NIC Page 34 of 49 Created On Thu Aug 25 05:25:04 IST 2016 C/CRA/244/2013 CAV JUDGMENT (supra), the Hon'ble Apex Court in Paras 16 and 19 has held as under:
"16. We must take note of a decision in the case of Kasturbhai Ramchand Panchal and Brothers v. Firm of Mohanlal Nathubhai AIR 1969 Guj. 110 upon which the High Court had placed great reliance in the judgement under appeal. There the learned Judge relying on S. 29(2) of the said Act held that the revisional power with which the High Court was vested under S. 29(2) was not merely in the nature of jurisdictional control. It extended to corrections of all errors which would make the decision contrary to law. The legislature, the learned Judge felt, further empowered High Court in its revisional jurisdiction to pass Such order with respect thereto as it thought fit. The power according to the learned Judge was of the widest amplitude to pass such orders as the Court thought fit in order to be complete justice. He dealt with the human problem under S. 13(2) of Bombay Rent Act considering the relative hardships of the landlord and the tenant and to arrive at a just solution he was of the opinion that the court should have such wide field. The jurisdiction of the High Court is to correct all errors of law going to the root of the decision which would, in such cases, include even perverse findings of facts, perverse in the sense that no reasonable person, acting judicially and properly instructed in the relevant law could arrive at such a finding on the evidence on the record. In this view in our opinion the ambit of the power was expressed in rather wide amplitude. As we read the power, the High Court must Page 35 of 49 HC-NIC Page 35 of 49 Created On Thu Aug 25 05:25:04 IST 2016 C/CRA/244/2013 CAV JUDGMENT ensure that the principles of law have been correctly borne in mind. Secondly, the facts have been properly appreciated and a decision arrived at taking all material and relevant facts in mind. It must be such a decision which no reasonable man could have arrived at. Lastly, such a decision does not lead to a miscarriage of justice. We must, however, guard ourselves against permitting in the guise of revision substitution of one view where two views are possible and the Court of Small Causes has taken a particular view. If a possible view has been taken, the High Court would be exceeding its jurisdiction to substitute its own view with that of the courts below because it considers it to be a better view. The fact that the High Court would have taken a different view is wholly irrelevant. Judged by that standard, we are of the opinion that the High Court in this case had exceeded its jurisdiction."
"19. In the instant case the basic question is whether keeping in background the partnership deeds referred to hereinbefore and the facts that came to light, was there partnership or not. Sharing of profits and contributing to losses were not the only elements in a partnership, existence of agency was essential and whether there was a partnership or not is a mixed question of law and fact, depending upon the varying circumstances in different cases. This view was reiterated by Chief Justice Beaumont, in Chimanram Motilal v. Jayantilal Chhaganlal, AIR 1939 Bom. 410 Ramaswami, J. in Mohammed Musa Sahib (died) v. N.K. Page 36 of 49 HC-NIC Page 36 of 49 Created On Thu Aug 25 05:25:04 IST 2016 C/CRA/244/2013 CAV JUDGMENT Mohammed Ghouse Sahib, AIR 1959 Mad. 379, observed that whether the relation of partnership between two or more persons does or does not exist must depend on the real intention and contract of the parties and not merely on their expressed intention. He also referred to Section 4 of the Partnership Act about the principles of partnership namely, (1) there must be agreement entered into by all the persons concerned; (2) the agreement must be to share the profits of a business; and (3) the business must be carried on by all or any of the persons concerned acting for all. In the instant case judged by the aforesaid principles, it is possible to hold that this was partnership of which the appellant was a partner. The Court of Small Causes considered these principles, evaluated the evidence and held that there was in fact and in law a partnership. Such a view was not an impossible one or a perverse one. If that was so, there was nothing that could be done about such a view, within the ambit and scope of the power of Section 29 (2) of the Rent Act. We may mention that in Gundalapalli Rangamannar Chetty v. Desu Rangiah, AIR 1954 Mad. 182, Subba Rao, J. as the learned Chief Justice then was, held that there cannot be a subletting, unless the lessee parted with legal possession. The mere fact that another is allowed to use the premises while the lessee retains the legal possession is not enough to create a sub-lease."
[13] Learned senior counsel for the respondents has submitted that in the case of Page 37 of 49 HC-NIC Page 37 of 49 Created On Thu Aug 25 05:25:04 IST 2016 C/CRA/244/2013 CAV JUDGMENT Patel Valmik Himatlal and Others (supra), the Hon'ble Apex Court held in Paras 5 and 6 as under:
"5. The ambit and scope of the said section came up for consideration before this Court in Helper Girdharbhai v. Saiyed Mohmad Mirasaheb Kadri and after referring to a catena of authorities, Sabyasachi Mukherji, J. drew a distinction between the appellate and the revisional jurisdiction of the courts and opined that the distinction was a real one. It was held that the right to appeal carries with it the right of rehearing both on question of law and fact, unless the statute conferring the right to appeal itself limits the rehearing in some way, while the power to hear a revision is generally given to a superior court so that it may satisfy itself that a particular case is decided according to law. The Bench opined that although the High Court had wider powers than that which could be exercised under Section 115 of the Code of Civil Procedure, yet its revisional jurisdiction could only be exercised for a limited purpose with a view to satisfying itself that the decision under challenge before it is according to law. The High Court cannot substitute its own findings on a question of fact for the findings recorded by the courts below on reappraisal of evidence. Did the High Court exceed its jurisdiction?
"6. The powers under Section 29(2) are revisional powers with which the High Court is clothed. It empowers the High Page 38 of 49 HC-NIC Page 38 of 49 Created On Thu Aug 25 05:25:04 IST 2016 C/CRA/244/2013 CAV JUDGMENT Court to correct errors which may make the decision contrary to law and which errors go to the root of the decision but it does not vest the High Court with the power to rehear the matter and reappreciate the evidence. The mere fact that a different view is possible on reappreciation of the evidence cannot be a ground for exercise of the revisional jurisdiction."
[14] Learned senior counsel for the respondents has submitted that in the case of N. Eswari, w/o Adinarayana (supr), the Hon'ble Apex Court has held in Paras 8 to 12 and Paras 13 to 15 as under:
"8. The only ground on which the High Court had set aside the concurrent orders of the courts below is that since the husband of the landlady had retired from service in 1982 and was residing at Hyderabad and she was not having any other residential house at Vijayawada where she was planning to settle, it must be held that the requirement was bona fide. In para 16 of the impugned judgement, the High Court has given the reasons for setting aside the concurrent orders of rejection of the eviction petition.
9. We feel it proper in this case to reproduce the said part of the impugned order which runs as under:
"16. The evidence of PW 1 would go to Page 39 of 49 HC-NIC Page 39 of 49 Created On Thu Aug 25 05:25:04 IST 2016 C/CRA/244/2013 CAV JUDGMENT show that he was retired from service in 1982, that at present he is residing at Hyderabad, that he was not having any other residential house at Vijayawada and he is planning to settle at Vijayawada.
When a suggestion was given to the effect that with a view to evict the tenant so that he would get higher rent, the present petition was filed, but the same was denied. RW 1, who is no other than the tenant stated that she is a tenant right from 1986 and she never committed any default in payment of rents.
Having come to the Court, it is for the petitioner to establish that the premises in question is required for bona fide purpose. PW 1 admitted that he has got two own houses at Hyderabad and at present the landlady is staying with her children at Hyderabad, but at the same time, admittedly, the landlady is not having any residential premises at Hyderabad. She is aged about seventy years. Since the children of landlady are residing at Hyderabad, it cannot be said that there would be no one to look after her. Landlady is the best judge for her residential requirement. It is for the landlady to look after herself at that age. She can choose any place where she wanted to settle down for variety of reasons."
10. On a bare perusal of these findings of the High Court, it appears that PW 1 has categorically admitted that he had got two houses of his own at Hyderabad and at present, the respondent landlady is staying with her children at Page 40 of 49 HC-NIC Page 40 of 49 Created On Thu Aug 25 05:25:04 IST 2016 C/CRA/244/2013 CAV JUDGMENT Hyderabad but since she has no residential house at Vijayawada and her age is about seventy years, she wants to settle herself in Vijayawada in the disputed premises. According to the High Court, the respondent landlady was the best judge for her residential requirement and she can choose any place where she can settle down for various reasons. In view of the above, the High Court had set aside the concurrent orders of the courts below and granted eviction of the appellant.
11. We are unable to accept these findings of the High Court made in the impugned order. It is an admitted position that the landlady, who is permanently residing in Hyderabad with her family consisting of a son and two daughters and she has got two houses there, only because she has expressed her desire to stay at this old age of seventy years in the tenanted premises, it cannot be said that the requirement of the landlady has been proved to be genuine.
12. As noted hereinearlier, the Rent Controller, Vijayawada and the appellate authority concurrently held on facts on proper appreciation of evidence on record that the respondent landlady had failed to prove that she required the premises in question for her bona fide need. This concurrent finding of fact was upset by the High Court in its revisional jurisdiction. In our view, the High Court was not justified in interfering with such concurrent finding of fact in the exercise of its revisional jurisdiction and come to a different finding on the question of bona fide need of the respondent Page 41 of 49 HC-NIC Page 41 of 49 Created On Thu Aug 25 05:25:04 IST 2016 C/CRA/244/2013 CAV JUDGMENT landlady.
13. In Rajbir Kaur v. S. Chokesiri and Co., this Court considered this aspect of the matter and in para 43, as dealt with the aforesaid question elaborately:
(SCC p. 37) "43. When the findings of fact recorded by the courts below are supportable on the evidence of record, the Revisional Court must, indeed, be reluctant to embark upon an independent reassessment of the evidence and to supplant a conclusion of its own, so long as the evidence on record admitted of and supported the one reached by the courts below. With respect to the High Court, we are afraid, the exercise made by it in its revisional jurisdiction incurs the criticism that the concurrent finding of fact of the courts below could not be dealt and supplanted by a different finding arrived at on an independent reassessment of evidence as was done in this case."
14. The Rent Controller and the appellate authority had considered the entire materials on record and the arguments adduced by the parties and came to a finding that the requirement of the respondent landlady was not genuine and there was no need to leave her permanent house at Hyderabad, where she has been living, to come over to Vijayawada to stay alone at the age of seventy years without there being anyone to look after her. This finding of fact arrived at by the Rent Controller and the appellate authority, in our view, cannot be said to be perverse and Page 42 of 49 HC-NIC Page 42 of 49 Created On Thu Aug 25 05:25:04 IST 2016 C/CRA/244/2013 CAV JUDGMENT arbitrary.
15. That being the position, we are of the view that it was not open to the High Court, in the exercise of its revisional jurisdiction, to interfere with the concurrent findings of fact of the Rent Controller as well as of the appellate authority."
[15] In light of the above stated facts and circumstances of the case, the concurrent findings of fact recorded by both the Courts as per the provisions of the Transfer of Property Act, 1882 and the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, Limitation Act and in view of several decisions cited, the learned counsel for the respondents submits that the revisions applications may be dismissed. [16] I have heard learned advocates for the respective parties. I have considered the submissions advanced by both the sides. I have also gone through the documents produced on record. I have further gone through the orders passed by the trial Court as well as Appellate Court. In the present case, it is not in Page 43 of 49 HC-NIC Page 43 of 49 Created On Thu Aug 25 05:25:04 IST 2016 C/CRA/244/2013 CAV JUDGMENT dispute that there is a relationship of landlord and tenant between the applicant and the respondents. It is also an admitted fact that there is an agreement between the parties which is at Exhibit 23 and 24. The conditions of the agreement are also admitted and, therefore, it can never be said that only because of the reason the agreement is not registered one, it cannot be considered in evidence and it has no evidentiary value. It is pertinent to note at this juncture that the agreement dated 15.08.1981 was produced vide Exhibit 23 and 24 by the original plaintiff before the trial Court. The said documents were produced by the plaintiff and at the time of exhibiting the documents, the applicant - original defendant made an endorsement 'no objection'. When the original defendant made an endorsement that he has no objection for exhibiting the said documents, then the principle of estoppel is applicable in such type of cases and, thereafter, the defendant cannot be permitted to take a different stand about non- Page 44 of 49 HC-NIC Page 44 of 49 Created On Thu Aug 25 05:25:04 IST 2016 C/CRA/244/2013 CAV JUDGMENT registration of documents. It is argued that the said endorsement was made at the time of giving exhibit number to the documents subject to their dispute regarding the said document to be raised at the time of cross-examination of the witness. It is argued that the Appellate Court has specifically observed that the defendant made an endorsement that they have no objection if exhibit number is given to the documents below Exhibit 23 and 24. It is argued that as per condition no.3, the suit premises were let out only for the office purpose. It is admitted by the applicant - Corporation in para-7 of the affidavit in chief examination that gas cylinders were stored and distributed from the suit premises. It is also admitted by the witness in his cross examination that the suit premises were let out on the conditions mentioned in the documents agreement which are produced at Exhibit 23 and 24. It is further argued by learned counsel that the petition which came to be filed by the Corporation before this Court being Page 45 of 49 HC-NIC Page 45 of 49 Created On Thu Aug 25 05:25:04 IST 2016 C/CRA/244/2013 CAV JUDGMENT Special Civil Application No.17282 of 2005 wherein it has specifically been mentioned by the Court that "till both the suits are finally disposed of, the interim relief granted by this court which is in operation till this date shall continue subject to the modification that the petitioner shall not store any filled cylinders in the rooms and subject to the applicability and compliance of the provisions contained in Rule 52(b) and (c) of the Gas Cylinder Rules, 1981." In view of the aforesaid facts, the concurrent findings arrived at by the Courts below on the point of change of user may not be interfered with by this Court. Learned senior counsel for the respondents has referred to section 108(o) of the Transfer of property Act, 1982, which reads as under:
"108. Rights and liabilities of lessor and lessee. - In the absence of a contract or local usage to the contrary, the lessor and the lessee of immovable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased:Page 46 of 49
HC-NIC Page 46 of 49 Created On Thu Aug 25 05:25:04 IST 2016 C/CRA/244/2013 CAV JUDGMENT (A) Rights and Liabilities of the Lessor.
(a) xxxxx xxxxx
(b) xxxxx xxxxx
xxxxx xxxxx
(o) the lessee may use the property and its products (if any) as a person of ordinary prudence would use them if they were his own; but he must not use, or permit another to use, the property for a purpose other than that for which it was leased, or fell or sell timber, pull down or damage buildings belonging to the lessor, or work mines or quarries not open when the lease was granted, or commit any other act which is destructive or permanently injurious thereto;
(p) xxxxx xxxxx"
Learned senior counsel for the
respondents has referred to section 13(1)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, which reads as under:
"13. When landlord may recover possession (1) Notwithstanding anything contained in this Act but subject to the provisions of Section 15, a landlord shall be entitled to recover possession of any premises if the Court is satisfied -
(a) that, the tenant has committed any act contrary to the provisions of clause (o) of Page 47 of 49 HC-NIC Page 47 of 49 Created On Thu Aug 25 05:25:04 IST 2016 C/CRA/244/2013 CAV JUDGMENT section 108 of the Transfer of Property Act, 1882; or
(b) xxxxx xxxxx"
I am in agreement with the submissions advanced by learned senior counsel for the respondents as per the provisions of the Transfer of Property Act, 1882 and the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, when change of use of premises is proved, the landlord is entitled to recover the possession of the suit premises. In the present case, from the material on record of the trial Court it is clear that the applicant herein changed the use of premises for which was let out and, therefore, since there is no error apparent in the impugned order and judgment of the Court below, the revision applications are required to be dismissed. They are accordingly dismissed.
(Z.K.SAIYED, J.) KKS After pronouncement of the judgment learned counsel for the applicant has requested to stay this judgment for a period of six weeks. Learned Page 48 of 49 HC-NIC Page 48 of 49 Created On Thu Aug 25 05:25:04 IST 2016 C/CRA/244/2013 CAV JUDGMENT counsel for the respondents has objected to such request. Looking to the facts of the case and circumstances of the case, operation and implementation of present judgment shall stand stayed for a period of four weeks from today.
(Z.K.SAIYED, J.) KKS Page 49 of 49 HC-NIC Page 49 of 49 Created On Thu Aug 25 05:25:04 IST 2016