Gujarat High Court
Jayantilal Chimanlal Shah vs Ahmedabad Sheth Anandji Kalyanji Firm, ... on 12 August, 2025
NEUTRAL CITATION
C/CRA/207/2018 JUDGMENT DATED: 12/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 207 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER Sd/-
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Approved for Reporting Yes No
✔
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JAYANTILAL CHIMANLAL SHAH & ORS.
Versus
AHMEDABAD SHETH ANANDJI KALYANJI FIRM, AHMEDABAD & ORS.
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Appearance:
MR NILESH M SHAH(780) for the Applicant(s) No. 1,1.1,1.2
DELETED for the Opponent(s) No. 1.1,1.2,1.4,1.5
MR VIMAL A PUROHIT(5049) for the Opponent(s) No. 1.3
NOTICE SERVED for the Opponent(s) No. 1.10,1.11,1.6,1.7,1.8,1.9,2
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 12/08/2025
ORAL JUDGMENT
1. The present Revision Application is filed under Section29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short "the Rent Act" ), aggrieved by the judgement and decree passed in Regular Civil Appeal No.99 of 2004 dated 27.10.2017, whereby the Appellate Bench of the Small Causes Court, Ahmedabad has dismissed the appeal on 27.10.2017 and confirmed the judgement and decree passed by Page 1 of 16 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 23:01:48 IST 2025 NEUTRAL CITATION C/CRA/207/2018 JUDGMENT DATED: 12/08/2025 undefined Trial Court No.9, Small Causes Court, Ahmedabad in HRP suit No.1353 of 1995 dated 20.07.2004.
2. For the sake of brevity and convenience, the parties are referred to as per their original status as that in the suit.
3. The brief facts arising in the present Civil Revision Application are that the plaintiff filed the suit of eviction on the ground that the defendant has acquired alternative accommodation at Vardhmaan Flat, III Floor, Paldi, Ahmedabad, and therefore, as a defendant No.1 has found alternative accommodation, the plaintiff has sought for relief of eviction under the provisions of Section 13(1)(l) of the Rent Act, moreover, it is the case of the plaintiff that defendant no.1 has sublet the property to defendant no.2, and therefore also the plaintiff is entitled for possession of the property under Section 13(1)(e) of the Rent Act and that as the suit premises has not been used without reasonable cause for the purpose for which it was let for a continuous period of six months, Page 2 of 16 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 23:01:48 IST 2025 NEUTRAL CITATION C/CRA/207/2018 JUDGMENT DATED: 12/08/2025 undefined immediately preceding the date of suit, the plaintiff is entitled for possession of the premises under Section 13(1)(k) of the Rent Act.
4. The plaintiff examined-Purshottambhai Hargovinddas Patel, vide Exhibit 42, the Court Commissioner and the Officer of Ahmedabad Electricity Company and the liftman and pumpman were examined vide Exhibit 48, 63 and 68 respectively. The defendant no.1 examined himself vide Exhibit 75, the Trial Court framed issues vide Exhibit 39 which are as under:
"1.Whether the plaintiff proves that defendant no.1 has acquired vacant possession of suitable residence as alleged?
2. Whether the plaintiff proves that defendant no.1 has unlawfully sublet, assigned or otherwise transferred the suit-premises to defendant no.2 and thereby profiteering?
3. Whether the plaintiff no.1 proves that Page 3 of 16 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 23:01:48 IST 2025 NEUTRAL CITATION C/CRA/207/2018 JUDGMENT DATED: 12/08/2025 undefined the premises have not been used without reasonable cause for the purpose for which it was let out for a continuous period of six months immediately preceding the date of suit?
4. What order and decree?"
5. After considering the oral evidence and the documentary evidence and giving finding on all issues, the Trial Court decreed the said suit and held that the defendant no1 has sublet the suit property to defendant no.2, the defendant No.1 has an alternative accommodation and that the defendant no.1 is not using the suit premises for the purpose for which it was let, for a continuous period of six months immediately preceding the date of suit and therefore, a decree was passed under Sections 13(1)(e), 13(1)(k) and 13(1)(l) of the Rent Act. Aggrieved by the said order, the defendant filed Regular Civil Appeal No.99 of 2004 and after appreciating the evidence, the Appellate Court dismissed the said appeal, hence, the present Civil Revision Application.
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NEUTRAL CITATION C/CRA/207/2018 JUDGMENT DATED: 12/08/2025 undefined Submissions of the learned advocate for the defendant:
6. Learned advocate for the defendant has mainly argued that the Trial Court and the Appellate Court have not considered the oral evidence and the documentary evidence produced by the defendant and have come to an erroneous finding that the plaintiff has proved that the defendant has an alternative accommodation. The Trial Court and the Appellate Court have not considered the fact that the plaintiff has not proved that the said alternative accommodation i.e. property situated at Vardhmaan Flat, III Floor, Paldi, Ahmedabad does not belong to the defendant no.1, and the same belongs to the son of defendant no.1, and therefore, the said property cannot considered as alternate accommodation.
7. The Trial Court and the Appellate Court have also not considered the fact that the entire property has not been given to defendant no.2, and the defendant no.1 still occupies the suit property and therefore also, it cannot be said that defendant no.1 has sublet the suit property to defendant no.2. Page 5 of 16 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 23:01:48 IST 2025
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8. With respect to the fact that the plaintiff is not using the suit property for the purpose for which it was let for a continuous period of six months preceding the filing of the suit, the Trial Court and the Appellate Court have not taken into consideration that defendant no.1's son had a kidney problem, and his wife had donated kidney to the son, and therefore the defendant no.1 had to go to Nadiad to take medicine for his wife at regular interval and therefore, he was not occupying the suit premises. The Trial Court and the Appellate Court could not have relied on the statement of accounts of electricity burning of the suit property produced vide Exhibits 65 and 66 to prove that the suit property was not used from 04.08.1993 to 04.12.1996, and therefore, the Trial Court and Appellate Court could not have allowed the said suit and granted a decree of eviction.
Submissions of learned advocate for the plaintiff:
9. Per contra, learned advocate for the plaintiff has argued that there are concurrent finding of the Trial Court and the Page 6 of 16 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 23:01:48 IST 2025 NEUTRAL CITATION C/CRA/207/2018 JUDGMENT DATED: 12/08/2025 undefined Appellate Court on the fact that the plaintiff has proved that the defendant has not used the suit premises for the purpose for which it was let for the last six months preceding the date of filing the suit, the plaintiff has also proved that the defendant has an alternative accommodation and that the defendant no.1 has sublet the suit property to defendant no.2 and therefore as all the above referred are on factual aspect, the scope of the revision under Section 29(2) of the Rent Act being very limited, the present Civil Revision Application is required to be dismissed.
Analysis:
10. Having heard learned advocates appearing for the respective parties and having considered the judgment and decree passed by the Trial Court and confirmed by the Appellate Court, the fact remains that defendant no.1 himself in his Cross-examination, admitted the fact that the alternative premise at the Vardhmaan Flat is running in his name, though it has been argued that the said premises at Vardhmaan Flat Page 7 of 16 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 23:01:48 IST 2025 NEUTRAL CITATION C/CRA/207/2018 JUDGMENT DATED: 12/08/2025 undefined has been acquired by his son Dakshesh and that defendant's son has gone to reside at the alternative premises at Vardhmaan Flats, but the fact remains that there are no evidence on record to show that defendant's son has built the premises of Vardhmaan Flat from his own income. The other fact that has been stated is that the said alternative premises at Vardhmaan Flat is sufficient for the entire family to be accommodated, from the Court Commissioners Report produced vide Exhibits 49 and 50, it has come on record that the alternative premises at Vardhmaan Flat is consisting of three rooms, kitchen, bathroom and latrine and therefore, it cannot be said that the said premises is not sufficient for the defendant no.1's family to be accommodated. Moreover, it has also come on record that the size of defendant's family and premises at Vardhmaan Flat is sufficient for the needs of the family and therefore, the Trial Court has rightly held that in view of the fact that defendant No.1 has acquired vacant possession of suitable residence, the plaintiff is entitled for a decree of eviction under the provisions of Section 13(1)(l) of Page 8 of 16 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 23:01:48 IST 2025 NEUTRAL CITATION C/CRA/207/2018 JUDGMENT DATED: 12/08/2025 undefined the Rent Act.
11. The Trial Court has also passed a decree on the ground that the defendant no.1 has sublet the suit property to defendant no.2. The fact remains that from the evidence, it is proved that defendant no.2 is exclusively occupying the suit premises. The defendant himself has admitted in his cross-
examination that defendant no.2 has been residing in the suit premises with his wife and children though, the defendant no.1 has tried to establish that defendant no.2 is not exclusively occupying the suit premises, but there is nothing on record to show that defendant no.2 is not exclusively occupying the premises. Moreover, with respect to the consideration.
12. In the present case, there is a clear evidence that defendant no.2 is in possession of the suit property. In the present case, it has been proved beyond doubt that exclusive possession of the suit premises has been handed over by defendant No.1 to defendant No.2, it would be difficult fo the Page 9 of 16 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 23:01:48 IST 2025 NEUTRAL CITATION C/CRA/207/2018 JUDGMENT DATED: 12/08/2025 undefined landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and the sub- tenant. It would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sub-let had paid monetary consideration to the tenant. Since, payment of monetary consideration may have been made secretly, the law does not require such payment to be proved by the affirmative evidence and the Court is permitted to draw its own inference upon the facts of the case proved at the trial including the delivery of exclusive possession to infer that the premises were sub-let. Therefore, as in the present case exclusive possession was established. It would not be impermissible for the Court to draw an inference that the transaction was entered into with the monetary consideration in mind. The transaction in the present case is of sub-letting between the tenant and the sub-tenant and there cannot be furnished direct evidence in every case. In this case, it has been established by the plaintiff as a fact that the tenant has parted with the possession of the suit premises and defendant Page 10 of 16 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 23:01:48 IST 2025 NEUTRAL CITATION C/CRA/207/2018 JUDGMENT DATED: 12/08/2025 undefined No.2 has exclusive possession of the premises, and therefore, the Court can draw an inference that the transaction must have been entered into for monetary consideration.
13. In view of the said fact, the Trial Court has rightly granted decree of eviction of the defendant from the suit property under the provision of Section 13(1)(e) of the Rent Act.
14. With respect to the fact that the plaintiff has proved that defendant has not been using the property for the purpose of which it was let for a continuous period of six months preceding the filing of the suit, the same can be proved by the electricity consumption statement produced vide Exhibits 65 and 66 wherein from Exhibit 65, it can be seen that the suit property not used from 04.08.1993 to 04.12.1996, moreover, defendant no.1 has also admitted in his cross-examination that nobody has used the suit property from 01.01.1995 to 08.09.1995, therefore, it can be clearly established that when Page 11 of 16 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 23:01:48 IST 2025 NEUTRAL CITATION C/CRA/207/2018 JUDGMENT DATED: 12/08/2025 undefined the suit was filed on 08.09.1995, the suit premises has not been used for the purpose for which it was let out for a continuous period of six months immediately from the date of suit.
15. The fact remains that initial burden to show that the tenant has seized to occupy the suit premises continuously for period of 6 months is always on the landlord and he has to adduce tangible evidence to prove the fact that as on the date of filling the petition, the tenant was not occupying the suit premises continuously for the period of 6 months. Once such evidence is adduced, the burden shifts on the tenant to prove that there was reasonable cause for him having ceased to occupy the tenanted premises for continuous period of 6 months and once the premises have been shown by evidence to be not in occupation of the tenant, the pleading of the landlord that such non-user is without reasonable cause has the effect of putting the tenant on notice to plead and prove the availability of reasonable cause for ceasing to occupy the tenancy premises.
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16. In the present case, the plaintiff had only to satisfy the court that he has pleaded and proved the non-user of the suit premises for a continuous period of 6 months immediately preceding the date of filing of the suit and as the plaintiff has established his claim, the onus shifts to the tenant to establish that his default which rendered him liable to eviction was condonable by the Court because of reasonable cause.
17. In the present case, the defendant did not take defense in the pleading that the suit premises remained unused because of the reasonable cause, but his case is that the business never remained closed, nor there was any non-use till the date of institution of the suit. The tenant tried to lead evidence to prove that the suit property was continuously in use.
18. In view of the same, the Trial Court has rightly granted a decree of eviction under Section 13(1)(k) of the Rent Act.
19. Therefore, on the basis of overall analysis of the material on record, on the basis of conclusion that has been referred to Page 13 of 16 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 23:01:48 IST 2025 NEUTRAL CITATION C/CRA/207/2018 JUDGMENT DATED: 12/08/2025 undefined by the Court below, the Court is of the opinion that there is no material irregularity nor any perversity reflecting which would permit this Court to exercise revisional jurisdiction. The entire reasoning of the Court below are based upon clear analysis of the testimony of the witnesses for either side and also in consonance with documentary material and according to this Court it cannot be said that there is any perversity in the said order. Moreover, while deciding the Revision Application by the High Court in revisional jurisdiction under this Act is confined to find out that findings of fact recorded by the courts below are according to law and does not suffer from any abuse of law. The findings recorded by the Court below if perverse or have been arrived at without consideration of material evidence or such finding is based on no evidence or misreading of evidence or grossly erroneous that, if allowed to stand, would result in gross miscarriage of justice. The same is open for correction because it is not treated as finding according to Law and in that event the High Court, in exercise of its revisional jurisdiction under the Bombay Rent Act, is Page 14 of 16 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 23:01:48 IST 2025 NEUTRAL CITATION C/CRA/207/2018 JUDGMENT DATED: 12/08/2025 undefined entitled to set aside the impugned order as being not legal or proper.
20. The High Court can not interfere with the finding of facts recorded by the first Appellate Court. In revisional jurisdiction, the High Court can not exercise its powers as an appellate power to reappreciate or reassess the evidence for coming to a different finding of facts. Revisional jurisdiction is not and can not be equated with the powers of reconsideration of all questions of fact as a court of first appeal.
21. The findings recorded by both the courts below are based on critical appreciation of the evidence led by the parties on record and does not suffer any error or material irregularities. The Court below has rightly come to the conclusion that the tenant has not used the suit premises for the purpose for which it was let without reasonable cause for a period of six months immediately preceding the date of suit, and has sublet the property to defendant no.2 and that the defendant no.1 has acquired suitable alternative accomodation Page 15 of 16 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 23:01:48 IST 2025 NEUTRAL CITATION C/CRA/207/2018 JUDGMENT DATED: 12/08/2025 undefined and therefore, there was no error committed by the courts below which requires any correction at the hands of the High Court in exercise of revisional jurisdiction.
22. Under the revisional jurisdiction, the High Court is entitled to satisfy itself as to the correctness or legality or propriety of any decision or order impugned before it as indicated above. In view of the aforesaid facts and proposition of law and in view of the concurrent findings of fact by both the Courts below, since no case is made out to call for any interference in the judgment and order passed by the appellate Court upholding the judgment and decree passed by the Trial Court, the present Revision Application requires to be dismissed and it is dismissed accordingly.
Sd/-
(SANJEEV J.THAKER,J) URIL RANA Page 16 of 16 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 23:01:48 IST 2025