Gujarat High Court
Gujarat Linkers Sales Division Through ... vs Rashidaben D/O. Nanabhai Gulamali on 2 December, 2025
NEUTRAL CITATION
C/CRA/600/2025 CAV JUDGMENT DATED: 02/12/2025
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Reserved On : 16/10/2025
Pronounced On : 02/12/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 600 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
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Approved for Reporting Yes No
No
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GUJARAT LINKERS SALES DIVISION THROUGH AUTHORIZED
SIGNATORY
Versus
RASHIDABEN D/O. NANABHAI GULAMALI & ANR.
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Appearance:
DHRUVIK K PATEL(7769) for the Applicant(s) No. 1
MR GA KADRI(1876) for the Applicant(s) No. 1
DIPSIKHA P MISHRA(10116) for the Opponent(s) No. 1,2
KALPESHBHAI B BARAIYA(7975) for the Opponent(s) No. 1,2
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
CAV JUDGMENT
1. The present Revision Application is filed under Section 29 (2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 ('Rent Act', for short) challenging judgment and decree, dated 20.08.2025, passed by the Appellate Bench of Small Causes Court, in Regular Civil Appeal No.26 of 2016, confirming the judgment and decree dated 31.12 2015, passed by the Small Causes Court, Ahmedabad in HRP Suit No.609 of 2010.
2. For the sake of the brevity, parties are referred to as per their original status as that of in the suit.
Page 1 of 12 Uploaded by MISHRA AMIT V.(HC00187) on Tue Dec 02 2025 Downloaded on : Tue Dec 02 23:59:40 IST 2025 NEUTRAL CITATION C/CRA/600/2025 CAV JUDGMENT DATED: 02/12/2025 undefined 3.1 The brief facts arising in the present Revision Application are that
plaintiff's father was the owner of the suit property and the said property was given on rent to the defendant, partnership firm on 07.10.1977, vide Exh.40 and it was the case of the plaintiff that defendant is tenant in arrears and a legal notice to that effect had been issued by the plaintiff. It was also the case of the plaintiff that the defendant has left the premises and trying to assign or sublet the premises. The trial Court had passed the decree on the issue of 'non-user' and allowed the suit of the plaintiff and directed the plaintiff to handover the peaceful and vacant possession of the premises within three months from the date of judgment and decree. The said judgment was challenged by defendant by filing Regular Civil Appeal No.26 of 2016 and after re-appreciating the evidence, the appellate Court dismissed the said appeal and confirmed the judgment and decree passed by the Small Causes Court in HRP Suit No.609 of 2010 dated 31.12.2015. The appellate Court relied on the oral evidence of the defendant filed vide Exh.74, that, the defendant firm has been closed for 10-12 years and the fact that the defendant had admitted that the firm, which was the tenant of the suit property, was no longer in existence and was closed before 10 years and, therefore, the said appeal was dismissed.
3.2 Learned senior advocate Mr.Sanjay Mehta for the defendant has mainly argued that if the averments of the plaintiff are taken into consideration, the plaintiffs have themselves not stated that the defendants have not used without reasonable cause the premises for the purpose for which they were left for a continuous period of six months immediately preceding the date of suit and, therefore, the trial Court and the appellate Court could not have granted the judgment and decree of Page 2 of 12 Uploaded by MISHRA AMIT V.(HC00187) on Tue Dec 02 2025 Downloaded on : Tue Dec 02 23:59:40 IST 2025 NEUTRAL CITATION C/CRA/600/2025 CAV JUDGMENT DATED: 02/12/2025 undefined eviction on the ground of 'non-user'.
3.3 Learned advocate for the defendant has also argued that the plaintiff had to prove the case by establishing the fact of 'non-user' by the defendants and if the pleadings are taken into consideration, the plaintiff has miserably failed to prove the said fact.
3.4 Learned senior advocate for the defendant has also argued that plaintiff has to prove his case on his own stand and cannot rely on the pleadings and oral evidence of the defendants and there are no pleadings that the defendant is not using the suit premises and if the oral evidence of the plaintiff is taken into consideration, the plaintiff himself has, in his oral evidence, stated that the defendant is using the suit premises.
3.5 Moreover, it has also been argued by the learned senior advocate for the defendant that even from the evidence of the witness produced by the plaintiff, it cannot be established that the defendant is not using the suit premises. On the contrary, the said pleadings specifically states that the defendants is in business and is doing business of selling ice-cream and cold drinks from the suit premises and, therefore, even from the oral evidence of the plaintiff, it has not been proved by the plaintiff that defendant is not using the suit premises for the last six months preceding the date of filing the suit for the purpose for which the suit property was let.
3.6 Moreover, learned senior advocate for defendant has also argued that the appellate Court could not have granted the decree on the ground of subletting, in view of the fact that there are no averments in the plaint that the suit property has been sublet to a third party and no issue was Page 3 of 12 Uploaded by MISHRA AMIT V.(HC00187) on Tue Dec 02 2025 Downloaded on : Tue Dec 02 23:59:40 IST 2025 NEUTRAL CITATION C/CRA/600/2025 CAV JUDGMENT DATED: 02/12/2025 undefined framed before the trial Court on the ground of seeking eviction that the defendant has sublet the suit premises. The entire case before the trial Court in the plaint was that the defendant is trying to sublet suit property and, therefore, appellate Court could not have come to the conclusion that the defendant has sublet the suit property to a third party and, therefore, on the ground of subletting, more particularly Section 13 (1) (e) of the Rent Act, the appellate Court could not have granted the decree.
3.7 Learned senior advocate for the defendant has further submitted that in the plaint, at para:2, the plaintiff has only stated that the defendant has vacated the suit premises and is trying to sublet the suit property and, therefore, ingredients of Section 13 (1) (k) and 13(1) (e) of the Rent Act were not stated in the plaint and the same has also not been proved by the plaintiff while leading evidence and, therefore, the trial Court and the first appellate Court could not have granted the decree of eviction under Section 13(1) (k) of the Rent Act.
3.8 Learned senior advocate for defendant has relied on the following judgments:-
(i) 1980 MAH LJ 437, C.R.Shaikh vs. Lilabhai D. Rohida and another;
(ii) 2002 (1) Mh.L.J. 262, Shantanu Baburao Palaskhedkar vs. Vinayak Mahadeo Sainkar;
(iii) (2020) 10 SCC 729, Biraji @ Brijraji and another vs. Surya Pratap and others,
(iv) 2001 (0) AIJEL - HC - 200870, Ashvinbhai C. Sheth vs. Bank of Baroda and Page 4 of 12 Uploaded by MISHRA AMIT V.(HC00187) on Tue Dec 02 2025 Downloaded on : Tue Dec 02 23:59:40 IST 2025 NEUTRAL CITATION C/CRA/600/2025 CAV JUDGMENT DATED: 02/12/2025 undefined
(v) 1985 (0) AIJEL-HC - 21150, Shah Ochhavlal Motilal & Anr. vs. Kansara Dhanlaxmi Becharlal.
It has been argued that as the plaintiff has not the proved case of 'non-user' and the pleadings of the plaintiff are contrary to the fact of defendant not using the suit premises for the purpose for which it was let, the burden was on the plaintiff to prove the fact of non-user and the fact that there was no issue with respect to sub-letting, both the the Courts below could not have granted a decree of eviction only on the ground that defendant, in his oral evidence, has stated that the defendant partnership firm has been closed down for last 10 years and, therefore, the present Revision Application is required to be allowed and the judgement and decree passed by the trial Court and the appellate Court are required to be quashed and set aside.
4.1 Per contra, learned advocate for the plaintiff has argued that if the rent note produced vide Exh.40 is taken into consideration, the said rent- note is executed with the defendant partnership firm and Clause-8 of the said rent-note specifically states that, the suit property can be used for business of the defendant partnership firm and other than the business of partnership firm no other business can be done by the defendant in the suit property.
4.2 It has also been argued by the learned advocate for the defendant that if the oral evidence produced vide Exh:74 is taken into consideration, the defendant has specifically stated at para:7 of his oral evidence that the defendant firm has been closed for approximately 10 years and has also started the business in the suit property is done in the name of Tohfa Page 5 of 12 Uploaded by MISHRA AMIT V.(HC00187) on Tue Dec 02 2025 Downloaded on : Tue Dec 02 23:59:40 IST 2025 NEUTRAL CITATION C/CRA/600/2025 CAV JUDGMENT DATED: 02/12/2025 undefined Custom Centre and has also stated that son of Mohammed Sajid is doing business in the said premises. Moreover, the defendant has also stated that he is a partner in Tohfa Custom Centre and that he shall produce documents to prove the said fact 61/A that he is a partner of Tohfa Custom Centre. Moreover, in para:8 of the cross-examination of the defendant, the defendant has further stated that the business of the partnership firm has been closed and he is doing business in the same premises and to support the same documentary proof shall be produced by the defendant. However, the fact remains that defendant has not produced any document to prove that the defendant is a partner in the said partnership firm Tohfa Custom Centre and the fact that defendant has admitted that his son is doing business in the said premises and his son was not partner of the firm, when the suit property was given on rent to the defendant. It has also come on record that at the time of examination- in-chief and at the time of filing of the suit and thereafter, said son Mohmmand Sajid, whom the defendant is saying is sitting and doing business in the premises is not partner of defendant firm and, therefore, defendant having admitted that the defendant himself is not doing business and that the defendant partnership firm has closed down for the last 10 years the first appellate Court has rightly decided the said issue and the said findings of the trial Court and the first appellate Court are legal and does not require any interference and, therefore, the present Revision Application is required to be rejected.
4.3 Learned advocate for the defendant as relied on judgement reported in 2025 (0) AIJEL - HC - 250416 in the case of Baldevbhai Ratnabhai Rabari vs. Bhavarsinh Devisinh Shekhavat and 2025 (0) AIJEL-HC- 250999 in the case of Chandulal Jivrajbhai Padariya vs. Dineshbhai Page 6 of 12 Uploaded by MISHRA AMIT V.(HC00187) on Tue Dec 02 2025 Downloaded on : Tue Dec 02 23:59:40 IST 2025 NEUTRAL CITATION C/CRA/600/2025 CAV JUDGMENT DATED: 02/12/2025 undefined Manilal Desai with respect to the fact that Court can pass a judgement on admission at any stage of the suit relying on oral or written admissions even those made outside the pleadings and without any separate application to invoke provision. Learned advocate has relied on the judgement reported in 2025 LiveLaw (SC) 415 in the case of Rajiv Ghosh vs. Satya Naryan Jaiswal and, therefore, it has been argued that the present Revision Application is required to be rejected. 5.1 Having heard learned advocates for the parties and having considered the judgment and decree passed by the trial Court and confirmed by the first appellate Court, this Court has to consider whether the trial Court and the first appellate Court were right in granting decree of eviction on the ground of non-user and though the issues are not properly worded but the fact remains that both the parties were aware that the plaintiff is seeking possession under Section 13 (1) (k) of the Bombay Rent Act on the ground of non-user.
5.2 The initial burden of proving non-user was on the plaintiff and the plaintiff has, by leading oral evidence and in pleadings has specifically stated that the defendant has vacated the suit premises and is trying to handover the premises to a third party.
5.3 Moreover, if the rent-note produced vide Exh.40 is taken into consideration, the said rent note also states that the partnership firm was entitled to do any kind of business in the suit premises and, therefore, the fact that any other firm cannot do business in the suit premises is evident from the rent-note. If the oral evidence of the witness of the plaintiff, produced vide Exh.51 is taken into consideration, the said witness has also stated in his examination-in-chief that defendant has stopped Page 7 of 12 Uploaded by MISHRA AMIT V.(HC00187) on Tue Dec 02 2025 Downloaded on : Tue Dec 02 23:59:40 IST 2025 NEUTRAL CITATION C/CRA/600/2025 CAV JUDGMENT DATED: 02/12/2025 undefined business for a very long time and that as on date, business of Shri Janta Ice-cream is being done by third party in the suit premises. The plaintiff has also produced evidence vide Exh.66 of the Officer of Ahmedabad Municipal Corporation in Tax Department and vide Exh.67, the tax- receipt shows that the occupier of the suit premises is one Tofa Custom Center. Moreover, if the document produced vide Exhs.68, 69, 70 and 71 are taken into consideration, the same are also produced by the Officer of Ahmedabad Municipal Corporation which shows that the occupier of the suit premises is Tohfa Custom Center. Thereafter, vide Exh.74 the defendant has admitted at para:7 that defendant firm has been closed down for the last 10 years and that the business is being done in the suit premises in the name of Tohfa Custom Center and that his son Mohammed Sajid is doing business in the said premises. The defendant has also stated that the said Tohfa Custom Center is a partnership firm and that he is a partner in the said Tohfa Custom Center. At para:8 the defendant has also once again stated that the said Tohfa Custom Center partnership firm has been closed. Therefore, the initial burden had been proved by the plaintiff that the partnership firm to whom the suit property has been given on rent has been closed down and a third party was doing business in the said premises and, therefore, the burden shifted to the defendant to prove that the defendant partnership firm was doing business in the said premises or name of defendant firm is changed to Tohfa Custom Center and the busines was being done by the partnership firm of defendant firm.
5.4 If the oral evidence of the defendant is taken into consideration, the defendant himself has admitted that his son is doing business in the suit Page 8 of 12 Uploaded by MISHRA AMIT V.(HC00187) on Tue Dec 02 2025 Downloaded on : Tue Dec 02 23:59:40 IST 2025 NEUTRAL CITATION C/CRA/600/2025 CAV JUDGMENT DATED: 02/12/2025 undefined premises. No documentary evidence is produced by the defendant to prove that Tohfa Custom Center is a partnership firm and the partners of the defendant firm are the partners of Tohfa Custom Center and, therefore, when there is a clear admission of defendant that defendant partnership firm has been closed for the last 10 years, the plaintiff did not have proved the said fact, only on the said admission, it can be said that the plaintiff has proved that defendant has not used the suit premises without any reasonable cause for the last six months preceding the date of filing the suit. Though pleadings of the plaintiff are not specific as to giving particulars of not using the premises for the last six months, preceding the date of filing the suit, but the fact remains that when the suit is filed on 20.04.2010, and when the cross-examination of the defendant is on 01.05.2013 and when the defendant states in his cross- examination that the defendant firm has closed for the last 10 years, the fact of proving that the defendant is not using the premises for the last six months, preceding the date of filing the suit has been admitted by the defendant and, therefore, in view of the judgment reported in the case of Rajiv Ghosh vs. Satya Naryan Jaiswal (supra) when the defendant has admitted the fact that the defendant firm is closed for the last 10 years, the said dispute has been clearly admitted by the defendant and, therefore, the trial court and first appellate Court have rightly passed decree of eviction against the defendant directing them to vacate the suit premises.
5.5 With respect to the judgment relied upon by learned senior advocate for the defendant reported in case of C.R.Shaikh vs. Lilabhai D. Rohida and another (supra) wherein the Court, in the said case, observed that the plaintiff has generally alleged that the premises have not been Page 9 of 12 Uploaded by MISHRA AMIT V.(HC00187) on Tue Dec 02 2025 Downloaded on : Tue Dec 02 23:59:40 IST 2025 NEUTRAL CITATION C/CRA/600/2025 CAV JUDGMENT DATED: 02/12/2025 undefined used for the period of six months, the Court in the said case, was taking into consideration the fact that the plainttiff did not disclose that there must be non-user continuously and the word 'continuous' has to be emphasised for a period of six months and that having not been there in the said case, the Court allowed the said petition. However, in the present case, the defendant himself has admitted that the business has been closed for the last 10 years and, therefore, the fact of defendant not using the premises for a continuous period of six months been admitted by the defendant.
5.6 With respect to judgment reported in the case of Shantanu Baburao Palaskhedkar vs. Vinayak Mahadeo Sainkar (supra), the Court, said case, issue was that there was no evidence on record that the premises were kept locked and unused continuously for a period of six months, preceding the date of suit. As stated herein above, the defendant has admitted that the defendant partnership firm has been closed for the last 10 years.
5.7 With respect to decision reported in the case of Biraji @ Brijraji and another vs. Surya Pratap and others (supra) wherein the Apex Court was was taking into consideration the absence of pleadings and no amount of evidence will assist the party, but as stated above, when the defendant himself has admitted of the fact that the defendant firm is closed for the last 10 years, the said fact of plaintiff not pleading that suit premises is not used for a continuous period of six months will be of no assistance to the defendant.
5.8 With respect to the judgement relied on by the learned advocate for
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NEUTRAL CITATION
C/CRA/600/2025 CAV JUDGMENT DATED: 02/12/2025
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the defendant reported in case of Ashvinbhai C. Sheth vs. Bank of Baroda (supra) and in the case of Shah Ochhavlal Motilal & Anr. vs. Kansara Dhanlaxmi Becharlal (supra) and in both the cases, there was absence of supporting documents from the defendant and defendant did not shift the burden onto them as per legal standard established and the burden of proof was on the landlord and the landlord had failed to prove that defendant was not using suit premises for the relevant period, the said judgement will not assist defendant in view of the fact that the defendant himself has stated that defendant partnership firm is closed for the last 10 years.
6. Therefore, on the basis of overall analysis of the material on record, on the basis of conclusion that has been referred to by both the Courts below, this Court is of the opinion that there is no material irregularity nor any perversity reflecting which would permit this Court to exercise revisional jurisdiction. The entire reasoning of both the Courts 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 is according to law and does not suffer from any abuse of law. The findings recorded by the Court below if perverse or has been arrived at without consideration of material evidence or such finding is based on no evidence or misreading of evidence or grossly erroneous that, if allowed to stand, would result in gross miscarriage of justice, the same is open for correction because it is not treated as finding according to Law and in that event the High Court, Page 11 of 12 Uploaded by MISHRA AMIT V.(HC00187) on Tue Dec 02 2025 Downloaded on : Tue Dec 02 23:59:40 IST 2025 NEUTRAL CITATION C/CRA/600/2025 CAV JUDGMENT DATED: 02/12/2025 undefined in exercise of its revisional jurisdiction under the Bombay Rent Act, is entitled to set aside the impugned order as being not legal or proper. 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.
7. 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 Courts below has rightly come to the conclusion that the tenant has not used the suit premises without any cause reasonable for the purpose for which they were let for a continuous period of six months immediately preceding the date of suit 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.
8. 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 at the admission stage and it is dismissed accordingly.
(SANJEEV J.THAKER,J) MISHRA AMIT V. Page 12 of 12 Uploaded by MISHRA AMIT V.(HC00187) on Tue Dec 02 2025 Downloaded on : Tue Dec 02 23:59:40 IST 2025