Gujarat High Court
Heirs Of Dece. Kantilal Parsottam Modi vs Yashwant Alias Raju Tulsidas Masla on 13 August, 2019
Author: A.J. Shastri
Bench: A.J. Shastri
C/CRA/219/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 219 of 2014
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HEIRS OF DECE. KANTILAL PARSOTTAM MODI & 1 other(s)
Versus
YASHWANT ALIAS RAJU TULSIDAS MASLA
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Appearance:
DECEASED LITIGANT(100) for the Applicant(s) No. 1
MR MEHUL S SHAH, (772) for the Applicant(s) No. 1.1,1.2,1.3,1.4,1.5,1.6,2
MR JA ADESHRA(107) for the Opponent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 13/08/2019
ORAL ORDER
1. Present Civil Revision Application has been filed by the petitioners- original defendants under Section 29(2) of the Gujarat Rent Act for challenging the legality and validity of the orders which are passed by learned Additional District Judge, Khambalia in Regular Civil Appeal No.85 of 2012 as well as the judgment and order originally passed by learned Principal Civil Judge, Dwarka in Regular Civil Suit No.79 of 1999.
2. The facts out of which the present Civil Revision Application has arisen are that the mother of the present respondent, being original landlady, has rented out the premises, consisting one room and Veranda with a closed window and for the purpose of eviction the said premises, a suit came to be filed, where non-user, acquisition of alternative acquisition, subletting of the premises by the appellant No.1, being tenant, to appellant No.2 and thereby breach of the conditions of tenancy. The said civil suit came to be contested by submitting written statement at Exh.19 inter-alia pointing out that the demised premises were taken on rent by virtue of rent note at Exh.51 in the name of the appellant No.1 for the Page 1 of 20 Downloaded on : Wed Aug 14 20:15:40 IST 2019 C/CRA/219/2014 ORDER benefit of joint family/ HUF, consisting of brothers of the appellant No.1, including the appellant No.2 herein, and their mother and other family members. It was contended that on account of the increase in the number of family members, which went upto 19 members, the demised premises not being sufficient to accommodate, all the members of the family and other members have acquired the said premises for residence as well as for business, whereas the appellant No.2 is said to have been residing in the demised premises from beginning, i.e. from the date of bringing the tenant, and therefore, no eviction was possible as has been contended.
3. The parties to the proceedings led their evidence, oral as well as documentary, and on behalf of the original landlady, oral evidence has been recorded by her power of attorney holder and son namely the present respondent at Exh.41, though he was just 5 to 6 years old at the time of creation of the tenancy and it has been claimed that he had no personal knowledge and therefore, the Trial Court as well as the Appellate Court have not properly appreciated the evidence and erroneously come to the conclusion against the present petitioners, which has led the petitioners to approach this Court by way of the present Civil Revision Application under Section 29(2) of the Gujarat Rent Act against such concurrent decisions.
4. It appears that this Civil Revision Application was adjourned from time to time and after supplying the paper-book, the matter went on for its adjudication and lastly it came up for consideration before this Court and on 4.7.2019, it came to be heard at length.
5. Learned senior advocate Mr. Mehul S. Shah appearing for the petitioners has vehemently contended that the property in question was let out to the family members and not only to the appellant No.1. Though the rent note came to be executed in favour of the appellant No.1, it was meant for the benefit of all family members Page 2 of 20 Downloaded on : Wed Aug 14 20:15:40 IST 2019 C/CRA/219/2014 ORDER and therefore, the issues have not been properly considered by the Court below. As a result of this, the orders are invalid in the eye of law. It has been contended that in case of HUF and joint family, every member is said to have an acquisition right and therefore, simply because one of the members in the family is acquiring a different premises, eviction relief is out of place. It has been further contended that at the time when the premises in question were let out to the defendant No.1, then also, at that time, he has got 7 members in the family and therefore, simply because by virtue of expansion of the family, if the appellant No.1 has given to the appellant No.2 and other family members to reside, the same cannot be said to be subletting in any form. It has further been contended that it was absolutely well within the rights of the defendant No.1 to give the property to the defendant No.2, being family member. Mr. Shah has further submitted that even the suit proceedings itself are beyond the period of limitation since right from 1980, it was well within the knowledge of the original plaintiff that the defendant No.2 is residing in the premises and still however, the suit came to be filed in the year 1999. The issue of tenancy to be governed by the law of limitation for its adjudication, in which Article 67 has a role to play. It has further been contended that the lower Court has not at all assigned any reason on this issue of limitation though the suit was filed in the year 1999. Law of Limitation is prescribing a period of 12 years from the date of cause of action or the knowledge. Now, here, the knowledge was very much from beginning about occupation of the premises by the defendant No.2, still however after a period of more than 12 years, the suit is filed. It has further been contended that here is a case in which the evidence has been erroneously believed and considered by the Court below, especially when on behalf of the original plaintiff, the power of attorney is examined. Now, at that point of time, when the premises were given, the said power of attorney was minor and cannot be said to have any personal knowledge. So, in Page 3 of 20 Downloaded on : Wed Aug 14 20:15:40 IST 2019 C/CRA/219/2014 ORDER absence of any personal knowledge, his deposition will become insignificant and hence, could not have been relied upon. Though the deposition of the power of attorney was very much taken, the landlord was very much available, still have chosen not to examine and therefore, here is a case in which the reliance has been placed on an evidence, which can be said to be irrelevant. According to Mr. Shah, the definition of 'Family' is given a liberal view in view of the construing provisions of the Rent Act. The brother and related family members would definitely fall in the definition of 'Family' as brothers under the provisions of the Gujarat Rent Act. Additionally, learned senior advocate Mr. Shah has further contended that with respect to the mesne profit, without there being any cross-examination nor any independent application or material, the Trial Court raised the mesne profit rate upto Rs.4270/- and in absence of any evidence to the contrary or specific request, these powers could not have been exercised enhancing such rate of mesne profit even in absence of the request. It has further been submitted that here is a case in which the original plaintiff and the landlord were right from beginning aware about the expansion of the family and gradually the occupation of different premises though originally, the defendant No.2 was very much residing in the premises itself. Still however, the Court below was pleased to pass a decree of eviction. It has further been contended that though there was no condition contained in the rent note at Exh.51, handing over and allowing the defendant No.2 being brother to reside is construed as subletting, quite contrary to the construction of Exh.51. The findings which have been arrived at are quite contrary to the material on record and as such, even if this revision is under Section 29(2) of the Gujarat Rent Act, the same deserves to be allowed. Mr. Shah has further contended that for passing a decree of eviction, there must be a satisfaction to be arrived at on suitability of alternative premises even if available. Here is a case in which there is neither any conclusion on suitability established, still however, a decree Page 4 of 20 Downloaded on : Wed Aug 14 20:15:40 IST 2019 C/CRA/219/2014 ORDER came to be passed under Section 13(1)(l) of the Gujarat Rent Act. While coming to the conclusion, who can be said to be a 'tenant', would be a material question which ought to have been decided. Wider meaning ought to have been given by the Court below while deciding this issue and as such, learned senior Counsel Mr. Shah has submitted that the findings which have been arrived are absolutely unjust, arbitrary and contrary to the evidence on record.
6. To strengthen his submission, learned senior counsel Mr. Shah has relied upon the decisions; in the case of Soni Jagjivan Narsi Vs. Manchhaben Odhavji reported in 1974(0) AIJEL-HC 211575 and in the case of Trustees of Gopinathji Devmandir Public Trust Vs. legal Heir of Decd. Jadiben Jivabhai Koli reported in 2012(0) AIJEL 228908. It has been further contended that the findings which are arrived at on the issue Nos.2 and 6 are absolutely perverse and the issue of subletting has not been properly dealt with. The issue of subletting is a question of law to be proved. However, emphatically, the same has not been done in the present case. By citing the decision in the case of Resham Singh Vs. Raghbir Singh and Another reported in (1999)7 SCC 263, Mr. Shah has vehemently contended that both the Courts below have committed gross irregularity in exercising the jurisdiction. Mr. Shah has further submitted that the test of subletting and the scope to evaluate has to be in consonance with the proposition of law which has been laid down in a decision in the case of Dev Kumar (Died) Through LRs Vs. Swaran Lata (Smt) and Others reported in (1996)1 SCC 25. The findings of fact if perverse, the Court can certainly exercise the revisional jurisdiction. It is undisputed proposition that scope of revision application under Section 29(2) of the Rent Act is much wider than Section 115 of the Code of Civil Procedure and therefore, the examinations of witnesses have not so cogently established the case, and therefore, the orders passed by the Courts below based on them are unjust and bad in law. By Page 5 of 20 Downloaded on : Wed Aug 14 20:15:40 IST 2019 C/CRA/219/2014 ORDER referring to page 227, a contention is tried to be supported regarding the manner in which the power of attorney has deposed before the Court. For the purpose of the act of the plaintiff, in letting out the premises, the power of attorney cannot try to substantiate the action by deposing before the Court. By referring to the decision in the case of Janki Vashdeo Bhojwani and Another Vs. Indusind Bank Ltd. And others reported in (2005)2 SCC 217, a contention is raised that the orders are absolutely unjust and deserve to be corrected. It has further been contended that if a person who actually executed the rent note, if not allowed to be examined, a valuable right of cross-examination would be deprived of and therefore, on account of such also, there appears to be a clear error committed by the Court below in not evaluating the evidence from this angle. Further, Mr. Shah has relied upon a decision in the case of Ajay Kiritkant Ghelani and Ors. v. Mathureshnagar Co-operative Housing Society Ltd., reported in 2007(3) GLH 590. Referring to certain documents contained in the paper-book, Mr. Shah has also submitted that the concept of alternative accommodation has to be viewed from exclusive possession and residence. The same is missing in the present case and therefore, the error is committed seriously. The rent note appearing in the name of Kantibhai and brother is very much available in the residence and therefore, the question of non-user also would not arise as the premises in question is occupied. All these important issues have not been gone into. As a result of this, this is a fit case in which the revisional jurisdiction deserves to be exercised and by referring to the decision in the case of Sushila Devi and Others Vs. Avinash Chandra Jain and others reported (1987)2 SCC 219, a request is made to set aside the impugned orders. Alternatively, Mr. Shah has submitted since the Courts below concurrently have not examined and concluded on the issue of suitability of alternative accommodation and deed of subletting is also not considered for reconsideration of such issue Page 6 of 20 Downloaded on : Wed Aug 14 20:15:40 IST 2019 C/CRA/219/2014 ORDER and therefore, order of remand be passed for limited two issues and fresh order be passed upon such reconsideration. Mr. Shah has referred to a decision in the case of Deepak Tandon & Anr. Vs. Rajesh Kumar Gupta, reported in (2019)5 SCC 537 and by referring to the aforesaid contentions, an alternative request is reiterated of remand. No other submissions have been made.
7. To meet with the stand taken by learned senior advocate Mr. Shah for the petitioners, learned advocate Mr. J.A. Adesara appearing for the contesting respondent has vehemently opposed the petition on the ground that a clear dilatory tactic has been adopted in the present proceedings from beginning. It has been submitted that the conclusions arrived at by both the Courts below are not possible to be construed as perverse in any form. On the contrary, how it is perverse is not agitated by learned senior counsel and therefore, the scope of revisional jurisdiction, which has been spelt out by a decision in the case of Rukmini Amma Saradamma Vs. Kallyani Sulochana and others reported in AIR 1993 SC 1616, no interference be made. It has further been contended that both the Courts below have adequately given proper attention to the evidence as a whole and have also examined the evidence minutely and only thereafter, came to the conclusion. Hence, in absence of any perversity, no interference be made. With a view to substantiate his contentions, Mr. Adesara has relied upon following decisions:-
(1) In the the case of Ambadas Khanduji Shinde and Others Vs. Ashok Sadashiv Mamurkar and others reported in 2017(2) CCC 318;
(2) In the the case of Damodar Lal Vs. Sohan Devi and Ors.
reported in 2015(1) SUPREME 105;
(3) In the the case of Kalidas Chunilal Patel (Dead) by LRs.
Vs. Savitaben & Ors. reported in 2016(6) Supreme 117;
Page 7 of 20 Downloaded on : Wed Aug 14 20:15:40 IST 2019 C/CRA/219/2014 ORDER(4) In the the case of Deceased Jagatsinh Fatehsinh Through Heirs and LR Vs. Parvatiben Harishchandra, Through Heirs and LR reported 2000(1) GLH 323.
8. In addition to the aforesaid decisions, it has also been contended by Mr. Adesara that here is a case in which the rent note is absolutely clear and hence, the case is said to have been established, as has been rightly believed by the Courts below concurrently. Here is a case in which in clear terms, the rent note is in favour of the appellant No.1 and the original tenant has assured not to allow anybody to stay in the premises and the ground reality is something different which has been rightly visualized by the Courts below and therefore, by relying upon the decision in the case of Kanaiyalal L. Ranpara and Another Vs. Dahyalal P. Tank reported in 2001(1) GLH 273, a contention is raised that there is no error committed by the Courts below. Mr. Adesara has reiterated that the detailed affidavit-in-reply is filed by the contesting respondent clearly pointing out the sequence of events and have explained at length as to why no interference is called upon and therefore, Mr. Adesara has pressed into service the contents of the affidavit, precisely of para 8 and 9. Mr. Adesara has further submitted that there are two decisions which are also to be taken note of, i.e. the order dated 12.3.2019 passed in Civil Revision Application No.164 of 2006 and order dated 27.9.2013 passed in Civil Revision Application No.361 of 2003 and by referring these two decisions, a contention is raised that no case is made out for interference in any form. Hence, the revision application be dismissed with costs.
9. Having heard learned advocates for the parties and having gone through the material on record, few circumstances and the conclusions arrived at by the Courts below on appreciation of evidence are not possible to be unnoticed by this Court:-
(1) It appears that late Kasturben Tulsidas Masla, who was original owner of the suit premises, filed Regular Civil Suit No.79 of Page 8 of 20 Downloaded on : Wed Aug 14 20:15:40 IST 2019 C/CRA/219/2014 ORDER 1999 against tenant Kantilal Parshottam Modi and Bhanubhai Parshottam Modi. The suit was filed on the ground of breach of the terms of the tenancy, lawful subletting and tenant acquired suitable alternative accommodation. Said Kasturben Tulsidas Masla appears to have expired on 2.1.2006 at an advance age of 89 years who executed a Will on 4.6.1992 and on account of that, the respondent was impleaded as plaintiff in the Regular Civil Suit. On 4.9.2012, a decree came to be passed in favour of the plaintiff mainly on the ground that there was a breach of the terms of tenancy and tenant had acquired alternative accommodation and lawful subletting and as such, these grounds having been proved, the defendant was directed to handover the vacant and peaceful possession of the suit premises within a period of two months. Feeling aggrieved by and dissatisfied with the said judgment and decree passed at length, an appeal came to be filed, which also came to be dismissed vide an order dated 15.2.2014 and it is against this concurrent decision and the finding of facts, the present revision application is filed under Section 29(2) of the Rent Act.
(2) Both the Courts below have believed the factum of tenant having committed a breach of the terms of the tenancy and for that, both the Courts appear to have believed the evidence led before the Courts. The suit premises originally was given to Kantibhai P. Modi on 1.2.1972 at a monthly rent of Rs.39/-, which is at Exh.51. In terms of the rent note, it was clearly provided that Kantilal P. Modi will not sublet the suit premises to any one or permit any other person to use the suit premises. This was the specific condition contained in the rent note, which is established by the original plaintiff.
(3) Undisputedly, it further appears that said Kantilal P. Modi has handed over the possession to the defendant No.2, who is Bhanubhai P. Modi, claiming to be his brother but, nowhere the rent note has permitted the original tenant to divest the possession to Page 9 of 20 Downloaded on : Wed Aug 14 20:15:40 IST 2019 C/CRA/219/2014 ORDER any one and therefore, since that was the position clearly emerging from the record, both the Courts have concurrently held against the petitioners. With a view to this factor of subletting to the defendant No.2, certain circumstances are not possible to be unnoticed; viz.
the defendant Nos.1 and 2 engaged same lawyer, filed common written statement and upon death of the original defendant No.1, legal heirs were brought on record and those legal heirs had given power of attorney to the defendant No.2, which is at Exh.197 and most material thing is that the legal heirs of defendant No.1 have not stepped into the witness box and the deposition was available of defendant No.2. This fact is also clearly emerging that both the Courts did consider the evidence with a view to ascertain the allegations of subletting.
(4) Additionally, the rent note, which is established by the original plaintiff and which is part of the record at Exh.51, has clearly an indication that original tenant Kantilal P. Modi will not sublet or permit any other person to use the premises. The rent note also does not indicate that the suit property was given on lease to HUF or additional family members as well. It was solely given to defendant No.1 and in no case, the defendant No.2 or other family members.
(5) Even during the course of proceedings, on 11.2.1986, the defendant No.1 filed C.M.A. No.4 of 1986 against the original plaintiff - late Kasturben Tulsidas Masla in his personal capacity for standard rent in respect of the suit premises, which also corroborates the version of the original plaintiff that the defendant No.1 was the only tenant who initiated the step for fixation of standard rent and in that application as well, neither any pleadings, nor any circumstance is emerging which would permit the present petitioners now to contend that the suit property was leased out to HUF. Ultimately, the said application came to be withdrawn on 23.10.1994.
Page 10 of 20 Downloaded on : Wed Aug 14 20:15:40 IST 2019 C/CRA/219/2014 ORDER(6) Yet, another circumstance which is also quite clear that from the deposition of Vallabhbhai P. Modi, at Exh.264, wherein it has been clearly asserted that the defendant No.1 had taken the suit property on lease and the rent note came to be executed in defendant No.1's personal capacity. Electoral roll of the defendants for the year 1993, 1994, 1998, 2002, 2006, 2009 as well as 2010 which are produced at Exh.217 are reflecting the different addresses of the defendants. Even the testimony of defendant No.2 at Exh.178 has also indicated that the defendant No.1 has taken the suit premises on lease and the rent note is executed in his favour. Even in Nagar Palika's assessment, which is at Exh.86, it was admitted to be residing at Shetla Sheri. Now, this deposition of defendant No.2 at Exh.176, if to be closely read, it would make clear that what has been given is to the defendant No.1 and not to the defendant No.2 in any form.
(7) Further facts which are also emerging from the other documentary material in addition to oral testimony, wherein the dealer of Indane Gas Agency of the defendant No.2 shows the address of the defendant at Bhadrakali Road, Dasani Building, Dwarka, bearing Consumer No.2821 of defendant No.2, in which the address is not of the suit premises. Surprisingly, a fact is tried to be misled by not clearly disclosing that the defendant No.2 has taken on lease a residential house in the name of his wife, where his wife's sister and husband are residing and as such, though the defendant No.2 is also having an alternative premises to stay, illegally and unauthorizedly, the premises have been retained and therefore, when all these circumstances clearly emerging from the record, it cannot be said in any form that the Courts below have committed any material illegality or the conclusions arrived at are perverse in any form. Hence, here is a case in which both the Courts below, i.e. fact finding competent forums have arrived at a specific conclusion that no case is made out.
Page 11 of 20 Downloaded on : Wed Aug 14 20:15:40 IST 2019 C/CRA/219/2014 ORDER(8) Yet another circumstance which is also not possible to be ignored by the Court is that with a view to ascertain whether the tenant has acquired suitable alternative accommodation, the Court has examined not only the oral evidence but also the documentary evidence as well. The defendant No.1 appears to have purchased a residential house in his name at Dawda Street, Dwarka and has already shifted in his premises with the family members and the said registered sale is produced at Exh.161 dated 3.11.1995 and therefore, a specific registered document on record indicates that the defendant No.1 in whose favour the rent note is executed in personal capacity is having alternative accommodation. When that be so, it cannot be said that both the Courts below have committed any error. In fact the said premises is much bigger than the suit premises. The premises purchased by the defendant No.1 is city Survey Nos.119 and 120, admeasuring 82.41 Sq. Mtrs., in which actual construction according to the record is 80 Sq. Mtrs., at Dawda Street, whereas the suit premises is admeasuring 39.70 Sq. Mtrs. Only. Further, from the day of purchase, the defendant No.1, who is original tenant, has shifted his family members and he as well in the suit premises. Even the said fact is also admitted in the cross- examination by Vallabhdas P. Modi at Exh.264 that the premises at Dawda is bigger than the suit premises.
(9) Further, it appears that in the tax assessment registers at Exhs.73, 74 and 75, the defendant No.1 has shown himself as owner and occupier of the premises and the purpose is also residential premises and the said premises is having modern construction with granite and Kota stone, being used, and therefore, the aspect of alternative premises and suitable premises have been gone into at length by the Courts below. The deposition of one Mr. Jawahar Kakubhai Bavla at Exh.106 also indicates that the defendant No.1 is residing in the new premises since more than 8 years. Even this fact has been supported by an employee of Nagar Palika, Dwarka, whose Page 12 of 20 Downloaded on : Wed Aug 14 20:15:40 IST 2019 C/CRA/219/2014 ORDER deposition is at Exh.112 Devsibhai Bhogabhai Chokda, who has clarified that the tax assessment register, copies of which produced at Exh.73, 74 and 75, is correct. Even vide registered sale deed dated 13.6.1996 produced at Exh.200, the defendant No.1 has purchased yet another premises situated at City Survey Nos.167 to 172 at Teen Batti Chowk, Dwarka, wherein 61.85 Sq. Mtrs. For business purpose and 68.10 Sq. Mtrs. for residential purpose and totaling around 129.95 Sq. Mtrs. Even the ration card is also produced at Exh.295 bearing No.20011 indicating the address at Dawda Street, Dwarka and therefore, all these circumstances are well supported by the documentary evidence as well as by the depositions of the relevant witnesses from which it has been clearly asserted by the both the Courts below against the present petitioners.
(10) Yet another circumstances, which cannot be given go-bye is the conduct of defendant No.2. The defendant No.2 was having a ration card No.10271 wherein the address which has been shown was Aditya Road, Dwarka and during pendency of the suit proceedings, only with a view to misguide the Court, he has got his name removed from the ration card and got it included in the ration card of defendant No.1. This ulterior motive is also a clear indication that somehow, the defendants, i.e. the present petitioners, are inclined to retain the possession though having enough space, better and bigger than the suit premises.
(11) Additionally, further documentary evidence is, which supports the version of the original plaintiff, that the legal heir of deceased defendant No.1, who is Vishal K. Modi (son), who applied to the dealer of Indian Oil Corporation, Dwarka and Cement Work Employees Co-operative Society, Dwarka for getting new gas connection on 3.8.2011 at Exh.301 and 302 and that Vishal K. Modi in his affidavit dated 2.8.2011 at Exh.303 has mentioned his address as near Kanti Lodge, Teen Batti Road, Dwarka. From electoral roll, Page 13 of 20 Downloaded on : Wed Aug 14 20:15:40 IST 2019 C/CRA/219/2014 ORDER even produced by the defendant No.2 at Exhs. 266 and 267, which clearly indicate different addresses of defendant No.1 and 2. In the electoral rolls, produced by the defendant No.2, their appears to be no name either of family members or of defendant No.1. So this is nothing but an attempt on the part of the present petitioners to somehow continue the premises at any cost. It further appears that the petitioners have not intimated to the respondent regarding the deposit of arrears of rent of Rs.4270/-. Therefore, this conduct also is quite surprising and therefore, these are the circumstances which have remained uncontroverted on record and this Court is not in a position to ignore while ascertaining as to any illegality is committed by the Courts below or not.
10. Now, in the background of the aforesaid circumstances, if the finding of facts which have been arrived at and ultimate conclusion made, it was quite clear that the findings arrived at and the conclusion made are based on proper appreciation of facts, proper appreciation of the evidence and the analysis undertaken by the Court below cannot be said to be perverse in any form and when this being so, this Court sitting in revisional jurisdiction has got its own limitation in exercising and interfering with the orders of the Courts below.
11. The scope of revision is well defined by catena of decisions delivered by the Apex Court; one of such is in the case of Rukmini Amma Saradamma (supra). The observations contained in para 21 of the said judgment are quite clear as to what can be done in revisional jurisdiction when the Revisional Court is confronted with the concurrent fundings of fact and therefore, since the said observations are taken into consideration, the Court deems it proper to reproduce the same hereinafter:-
21. We are afraid this approach of the High Court is wrong. Even the wider language of S. 20 of the Act cannot enable the High Court to act as a first or a second court of appeal. Otherwise Page 14 of 20 Downloaded on : Wed Aug 14 20:15:40 IST 2019 C/CRA/219/2014 ORDER the distinction between appellate and revisional jurisdiction will get obliterated. Hence, the High Court was not right in re-
appreciating the entire evidence both oral or documentary in the light of the Commissioner's report (Exts. C1 and C2 Mahazar). In our considered view, the High Court had travelled far beyond the revisional jurisdiction. Even by the presence of the word "propriety" it cannot mean that there could be a re-appreciation of evidence. Of course, the revisional court can come to a different conclusion but not on a re-appreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. Therefore, we are unable to agree with the reasoning of the High Court with reference to the exercise of revisional jurisdiction.
12. In view of the aforesaid limitation, which is visible from the proposition of law by the Apex Court on the issue of exercise of revisional jurisdiction, this Court is also of the considered opinion that not only the observations are binding but these observations are also reiterated on several occasions thereafter as well. With a view to avoid unnecessarily burden of the documents, such reiterated observations are not produced hereinafter but the Court is of the considered opinion that in view of absence of any perversity or material irregularity or illegality, the Revisional Court in a routine manner cannot substitute the findings of fact which have been arrived at by both the Courts below in a casual or in a routine manner. Even if another view is possible, the same is not possible to be substituted. To that extent, the proposition of law has been stretched. Hence, that being so, the impugned orders are not possible to be disturbed.
13. A considered and conscious appreciation of the conclusion of both the Courts below have rather enforced the findings as correct and arrived at with proper application of mind and therefore, this Court is not inclined to disturb the conclusions which have been arrived at. The contention raised by learned advocates is nothing but lacking support from the record and therefore, is not possible to be accepted.
Page 15 of 20 Downloaded on : Wed Aug 14 20:15:40 IST 2019 C/CRA/219/2014 ORDER14. Here is a case in which there is a clear case made out that the original tenant has sub-letted the suit premises to the defendant No.2 and both the defendant Nos.1 and 2 have inter-se made such an attempt to see that somehow the possession may not be parted with for some reason which is unknown to the original plaintiff.
15. So far as the point of limitation is concerned, the said question of limitation is not possible to be so confidently accepted in view of the fact that whenever there is any substantial justice pitted against the technical consideration, substantial justice must be given predominance and further fact that this point of limitation appears to have not been convincingly raised before the Court below and therefore, the point of limitation being mixed question of law is not possible to be so rightly accepted.
16. Further factum of subletting was very much reflecting and it also appears that the original plaintiff might have been kept under impression that the defendants must be residing together. But, the fact that the defendant No.2 having made an attempt to misguide the Courts during the pendency of the proceedings and further, the defendant No.1 originally went on purchasing the alternative accommodation. This continuous retention of the premises having clearly established that the point of limitation may not come in the way in the considered opinion of this Court. The point which has been raised of limitation is made on misconstruction of the relevant Article, i.e. Article 67, which is tried to be relied upon. Further, a point which is raised that the power of attorney is examined, who has no personal capacity whether premises were given on rent to the original tenant or to the family members. But, for this contention, there is a clear answer that Exh.51- rent note is also clearly suggesting that there is no reference of defendant No.2 and therefore, such contention appears to be not logical and further when the examination taken place, no such contention is raised and Page 16 of 20 Downloaded on : Wed Aug 14 20:15:40 IST 2019 C/CRA/219/2014 ORDER therefore, here is a case when entire suit is based upon the ground of subletting as well as having alternative accommodation and both having been proved beyond reasonable doubt, such technical contentions have no legs to stand and the tenants are bound to handover the premises to the original landlord. The provisions of the Bombay rent Act are meant for protecting the tenant and not to allow such kind of tenants to retain possession for some oblique motive though they have alternative accommodation more suitable and bigger than the suit premises and as such, no illegality of any nature is found by this Court in the present proceedings.
17. Few judgments are relied upon. The Court like to deal with the same at appropriate stage in the present proceedings.
(1) Learned senior advocate Mr. Shah has referred to first decision which is in the case of Dev Kumar (supra) for the purpose of substantiating his contention by referring to para 9 and 10. But, if the said paragraphs to be looked from the background of the present facts, the same on the contrary would clearly indicate that here is a case on hand that subjecting is very much established and therefore, the said judgment is of no avail to the petitioners.
(2) Another judgment which is relied upon is in the case of Resham Singh (supra), in which, for the purpose of establishing the subletting, the onus is on the landlord to prove that the sub- tenant was in exclusive possession of the property. But, if this principle is applied over the case on hand, then it would quite clear that the rent note was specifically stood in the name of the defendant No.1 and undisputedly, the defendant No.1 with his family members has already resided to a newly purchased house of his choice and since long, he is residing at that place. Further, even the defendant No.2 is also indicating from the deposition that he is not signatory of the rent note and overall submission indicates that it was merely a permissive use by the defendant No.2 without the Page 17 of 20 Downloaded on : Wed Aug 14 20:15:40 IST 2019 C/CRA/219/2014 ORDER consent of the original plaintiff. No-doubt, the onus is on the landlord to prove and here from the overall material on record, the original plaintiff has successfully proved the issue of subletting and that has been believed by both the Courts below.
(3) Yet another decision in the case of Soni Jagjivan Narsi Vs. Manchhaben Odhavji reported in 1974 (0) AIJEL-HC 211575 (supra), wherein referring to para 8, a contention is tried to be raised that new premises, if not sufficient, then no decree can be passed. Now, for this purpose, on the contrary, the evidence discloses that new premises are much bigger with latest construction with better facilities and therefore, much suitable than what is the suit premises and therefore, this judgment on the contrary will not have a play in the present case. So, without in conflict with the ratio laid down by the High Court, this Court is of the opinion that no case is made out by the petitioners.
(4) Another attempt has also been made by citing some of the decisions which are in the case of Sushila Devi (supra), in which the observations are made in para 3. In the said decision, the landlord applies for eviction of the tenant under Section 14(1)(e) of the Act and essentially, the question cropped up was about the scope of the High Court's power for interference in revision application under Section 29. Now, for this purpose, subsequent to this, the Supreme Court has stated which has been indicated by this Court in earlier paragraphs in the case of Rukmini Amma Saradamma (supra).
(5) So far as the contention with respect to the decision which is delivered by learned Single Judge of this Court in the case of Trustees of Gopinathji Devmandir Public Trust Vs. legal Heir of Decd. Jadiben Jivabhai Koli reported in 2012(0) AIJEL 228908 (supra) wherein the word construction of 'family' was analyzed by the decision and in that context of Section 5(11)(c), the Page 18 of 20 Downloaded on : Wed Aug 14 20:15:40 IST 2019 C/CRA/219/2014 ORDER Court has undertaken an exercise as to whether family should be construed strictly or liberally. But, here is a case in which, the defendant No.1 is having more than one premises, which is much bigger, whereas the defendant No.2 is also having premises but with a view to retain the possession has shown audacity to manipulate the record and therefore, when that be so, the ratio laid down by the Court cannot be applied as the factual background is altogether different from what has been stated in the said decision. Som the judgment which have been relied upon are of no avail to the petitioners.
18. Now, in this context, the judgments which have been relied upon and cited by learned advocate Mr. J.A. Adesara are worth to be taken note of, on the contrary have got effect of more influence than the judgments which have been cited by learned senior counsel for the petitioners. Following are the decisions which have been consciously gone into by the present Court, hence same are enlisted as under:-
(1) In the case of Savitaben Bhailalbhai Brahmbhatt Vs. Dhansukhbhai Chunilal patel and others reported in 2015(1) GLR 135;
(2) In the case of Mohammed Kasam Haji Gulambhai Vs. Bakerali Fatehali (Deceased) by Lrs. reported in 1998(2) GLH 655;
(3) In the case of Lilavatiben Wd/o. Eknath Rana Vs. Urmilaben Satyenkumar Zaveri Through Heirs reported in 2004 (1) GLR 19;
(4) In the case of Heirs of Bhagvanji Vithalaji & Ors Vs. Heirs of Velji Kachrabhai and others reported in 2007(2) GLR 1458;
(5) In the case of State of Maharashtra and Another Vs. M/s. Super Max International Pvt. Ltd. and others reported in AIR 2010 SC 722;
(6) In the case of Ramrameshwari Devi Vs. Nirmala Devi reported in 2011(0) GLHEL-SC 50076;
(7) Order dated 27.3.2012 in the case of R.K. Bansal Vs. Jag Pravesh Sharma in IA No.1 in Special Leave Petition (Civil) No.873 of 2012;
(8) CAV Judgment dated 27.9.2013 in Civil Revision Application No.361 of 2003;Page 19 of 20 Downloaded on : Wed Aug 14 20:15:40 IST 2019 C/CRA/219/2014 ORDER
(9) Order dated 12.3.2019 in Civil Revision Application No.164 of 2006;
(10) In the case of Kanaiyalal L. Ranpara and Another Vs. Dahyalal P. Tank reported in 2001(1) GLH 273;
(11) In the case of Deceased Jagatsinh Fatehsinh Through Heirs and LR Vs. Parvatiben Harishchandra, Through Heirs and LR reported 2000(1) GLH 323;
(12) In the case of Damodar Lal Vs. Sohan Devi and Ors. reported in 2015(1) SUPREME 105;
(13) In the case of Kalidas Chunilal Patel (Dead) by LRs. Vs. Savitaben & Ors. reported in 2016(6) Supreme 117;
(14) In the case of Ambadas Khanduji Shinde and Others Vs. Ashok Sadashiv Mamurkar and others reported in 2017(2) CCC 318 (SC).
19. From the aforesaid analysis of the evidence on record and the proposition of law which has been laid down by the Courts, it clearly transpires that both the Courts below have not committed any error which may call for any interference. Accordingly, no case is made out by the petitioners. Hence, the Court would not like to substantiate the findings in any form. Accordingly, the revision application being devoid of merit stands dismissed hereby.
(A.J. SHASTRI, J) OMKAR FURTHER ORDER After pronouncement of the judgment, learned advocate Mr. V.C. Mehta for learned senior advocate Mr. Mehul Shah has requested to continue the interim arrangement which has been operative during the pendency of the present proceedings.
But, in view of the decision, which has been taken, the Court is not inclined to accept the request. Hence, the request is rejected.
(A.J. SHASTRI, J) OMKAR Page 20 of 20 Downloaded on : Wed Aug 14 20:15:40 IST 2019