Gujarat High Court
Kamleshbhai Baldevbhai Bhavsar vs Prafulbhai Gordhanbhai Patel on 5 December, 2025
NEUTRAL CITATION
C/CRA/370/2019 CAV JUDGMENT DATED: 05/12/2025
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Reserved On : 21/11/2025
Pronounced On : 05/12/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 370 of 2019
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 1 of 2019
In R/CIVIL REVISION APPLICATION NO. 370 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
No
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KAMLESHBHAI BALDEVBHAI BHAVSAR & ANR.
Versus
PRAFULBHAI GORDHANBHAI PATEL & ANR.
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Appearance:
MS SD RAMI(1983) for the Applicant(s) No. 1,2
MR MRUGEN K PUROHIT(1224) for the Opponent(s) No. 2
REFUSED SERVED (N)(10) for the Opponent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
CAV JUDGMENT
1. This Revision under section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act (for short "the Rent Act") challenges the judgment and decree passed by learned First Appellate Court in Regular Civil Appeal No.30 of 2010, whereby, learned Appellate Court reversed judgment and decree passed in regular Civil Suit No.134 of 2006 whereby learned Trial Court has dismissed the suit, however, learned Appellate Page 1 of 16 Uploaded by SATISH C. VEMULLA(HC00206) on Sat Dec 06 2025 Downloaded on : Sat Dec 20 00:49:28 IST 2025 NEUTRAL CITATION C/CRA/370/2019 CAV JUDGMENT DATED: 05/12/2025 undefined Court in appeal did not consider defendant of the suit to be tenant of rented premises and directed him to hand over peaceful and vacant possession within one month from the date of order.
2. The appellant is original defendant and respondent is original plaintiff. For convenience, they are referred as per their status before the learned Trial Court.
3. Facts of the case are as under :-
3.1. Regular Civil Suit has been filed by the plaintiff landlord before the learned Principal Senior Civil Judge, Nadiad under the provisions of Rent Act for getting peaceful and vacant possession of the suit shop which was rented to deceased Baldevbhai Bhavsar. Suit shop is situated in Ward No.10 in Municipal House No.1218. Plaintiff is owner of the suit shop. He had rented suit shop to deceased Baldevbhai at monthly rent of Rs.300/-.
Deceased Baldevbhai died on 13.03.2001. According to plaintiff, defendant - Kamleshbhai who is son of deceased Baldevbhai did not carry bussiness of deceased Baldevbhai who was carrying business of "Sweets and Savories". Thus, according to landlord, in view of section 5(11)(c)(ii) of the Rent Act, Kamleshbhai son of Page 2 of 16 Uploaded by SATISH C. VEMULLA(HC00206) on Sat Dec 06 2025 Downloaded on : Sat Dec 20 00:49:28 IST 2025 NEUTRAL CITATION C/CRA/370/2019 CAV JUDGMENT DATED: 05/12/2025 undefined deceased ceased to be tenant of the suit shop. 3.2. Upon aforesaid pleadings, plaintiff landlord claims possession of suit shop from Kamleshbhai - appellant. 3.3. In written statement, contention has been denied. It is further claimed that the rent of suit shop was Rs.200/- instead of Rs.300/-. It is further stated that suit shop was given to deceased Baldevbhai to do business not the exclusive business of Sweets and Savories. It is contended that at the time of death of tenant - Baldevbhai, defendant no.1 was carrying business in suit shop and sitting with him; later on since business of Sweets and savorier did not yield favourable, defendant started another business of selling tea, which he has continued till filing of the suit. Therefore, it is submitted that there is no breach of tenancy condition nor provision of section 5(11)(c)(ii) of the Rent Act are attracted and therefore, it was contended that suit be dismissed.
4. Learned Trial Court upon pleadings of parties framed issues and ultimately believed that plaintiff has failed to prove case and therefore, dismissed the civil suit filed by landlord on 30.03.2010. Being aggrieved and dissatisfied by judgment and decree rendered by learned Civil Court, original plaintiff Page 3 of 16 Uploaded by SATISH C. VEMULLA(HC00206) on Sat Dec 06 2025 Downloaded on : Sat Dec 20 00:49:28 IST 2025 NEUTRAL CITATION C/CRA/370/2019 CAV JUDGMENT DATED: 05/12/2025 undefined preferred Regular Civil Appeal No.30 of 2010 under the provisions of Rent Act. Learned Appellate Court by judgment and decree dated 30.03.2019 allowed the appeal and quashed and set aside the judgment and decree passed in Regular civil Suit and allowed the suit in tune of directing defendant Kamleshbhai to hand over peaceful and vacant possession of suit ship to the plaintiff and pay cost.
5. Being aggrieved and dissatisfied by judgment passed by learned Appellate Court, defendants - Kamleshbhai and Dineshbhai have preferred this Revision inter-alia on the grounds mentioned in revision memo.
6. I have heard learned advocate Ms.Rami for the appellant - original defendant and learned advocate Mr. Purohit for respondent - original plaintiff also paid anxious consideration to rival submission as well as records, also gone through the paper book supplied.
7. Learned advocate Ms. Rami mainly contended that learned Appellate court has misread the provisions of section 5(11)(c)(ii) of the Rent Act. It is submitted that Kamleshbhai being son of the tenant - Baldevbhai admittedly was doing business along Page 4 of 16 Uploaded by SATISH C. VEMULLA(HC00206) on Sat Dec 06 2025 Downloaded on : Sat Dec 20 00:49:28 IST 2025 NEUTRAL CITATION C/CRA/370/2019 CAV JUDGMENT DATED: 05/12/2025 undefined with tenant at the time of his death and carried business, thereafter, however, he could not continue business of sweets and farsan on the ground that it did not yield any profit and therefore, he started business of selling tea in the suit shop. Learned advocate Ms.Rami further submitted that learned Trial Court had discussed the issue in background of evidence led by both sides and believed that plaintiff has failed to prove that on operation of section 5(11)(c)(ii) of the Rent Act, defendant did not get status of tenant. Further she submitted that learned Appellate Court in its cursory reading of evidence erroneously believed that defendant Kamlesh did not carry business of sweets and savorier in the suit shop, thus, it amounts to change of use as well as it amounts to breach of section 5(11)(c)(ii) of the Rent Act. It is further submitted that landlord has not placed on record rent note, alleged to have been executed between landlord and tenant to say that only business of sweets and savorier can be carried in the suit shop and no other business can be carried in suit shop. She submits that in these circumstances, learned Appellate Court has committed serious error in believing that on operation of section 5(11)(c)(ii), the appellant - original defendant did not get status of tenant and hence, liable to be evicted. Page 5 of 16 Uploaded by SATISH C. VEMULLA(HC00206) on Sat Dec 06 2025 Downloaded on : Sat Dec 20 00:49:28 IST 2025
NEUTRAL CITATION C/CRA/370/2019 CAV JUDGMENT DATED: 05/12/2025 undefined 7.1. In view of above submissions, it is submitted to allow the Revision Application.
8. As against aforesaid arguments, learned advocate Mr. Purohit submits that reading of evidence indicates that after death of tenant - Baldevbhai in the year 2001, for considerable long time, suit shop was closed. License to do business in the suit shop was obtained in the year 2006 (Exh.26) which indicates that after death of Baldevbhai his son has not carried business and started another business in the year 2006. Thus, word 'continue' employed in provision of section 5(11)(c)(ii) does not satisfy. Deceased Baldevbhai was contractual tenant. Son of Baldevbhai in order to claim tenancy under operation of section 5(11)(c)(ii) was required to establish that he was doing business along with his father in father's life time and continued said business after demise of his father. Further reading of evidence, he would submit that learned Appellate Court rightly arrived to conclusion that after demise of contractual tenant Baldevbhai his son did not carry business and failed to meet with criteria laid down in section 5(11)(c)(ii) of Rent Act and therefore, learned Appellate Court has rightly passed decree of eviction. It is further submitted that it is specific case of the plaintiff that suit shop Page 6 of 16 Uploaded by SATISH C. VEMULLA(HC00206) on Sat Dec 06 2025 Downloaded on : Sat Dec 20 00:49:28 IST 2025 NEUTRAL CITATION C/CRA/370/2019 CAV JUDGMENT DATED: 05/12/2025 undefined was rented for the purpose of business of carrying sweets and savorier, it could be established from deposition of plaintiff which remained unchallenged in cross examination. Thus, son of deceased Baldevbhai cannot carry any other business except sweets and savorier, changing business thereof would amount to not carrying business for which suit shop was rented. Therefore, he submits that learned Appellate Court has rightly assessed entire issue in favour of landlord. It is submitted that in limited revisional jurisdiction, this Court may not interfere with the findings arrived by learned Appellate Court.
9. Since entire issue revolves around section 5(11)(c)(ii) of the Rent Act, let refer provision of Rent Act as under :-
(ii)in relation to any permission let for the purposes of education, business, trade or storage, when the tenant dies, whether the death has occurred before or after the commencement of the said Act, any member of the tenant's family using the premises for the purposes of education of carrying on business, trade or storage in the premises, with the tenant at the time of his death, or, in the absence of such member, any heir of the deceased tenant, as may be decided in default of agreement by the Court."
10. It is admitted position that suit shop was let for business. It is again admitted position that appellant defendant is tenant's Page 7 of 16 Uploaded by SATISH C. VEMULLA(HC00206) on Sat Dec 06 2025 Downloaded on : Sat Dec 20 00:49:28 IST 2025 NEUTRAL CITATION C/CRA/370/2019 CAV JUDGMENT DATED: 05/12/2025 undefined family. He is son of deceased - Baldevbhai. In view of section 5(11)(c)(ii) of Rent Act, this Court has to find out that whether son of deceased Baldevbhai - tenant was doing business alongwith prior to Baldevbhai's death and continued business thereafter, in the suit shop.
11. To cater rival submission, let go to the oral evidence which is pertinent in matter. Plaintiff landlord - Prafulbhai Gordhanbhai entered into witness box at Exh.24. He has deposed as per plaint. He has admitted in cross examination that suit shop was let to deceased Baldevbhai, Kamleshbhai is son of Baldevbhai. He has further admitted that when suit shop was let to Baldevbhai, no rent agreement was executed. It is further admitted that suit shop was let to deceased Baldevbhai for doing business (not to do any particular business). It is further admitted that initially suit shop was given on rent of Rs.200/- per month but later on it is increased. He has further admitted that as on date, Kamleshbhai being son of deceased is doing business of selling tea in the suit shop. Apt to note that in oral deposition, plaintiff tried to lead ground of sub-letting, however, that ground was not pleaded in the plaint. Page 8 of 16 Uploaded by SATISH C. VEMULLA(HC00206) on Sat Dec 06 2025 Downloaded on : Sat Dec 20 00:49:28 IST 2025
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12. Another witness examined by the plaintiff is Kamlesh Soni at Exh.35. He is owner of business in name and style of 'New Art Jewelry' situated near suit shop. In chief examination, he has stated that when deceased Baldevbhai was doing business in suit shop, defendant Kamleshbhai was sitting along with him. In cross examination, he has sated that plaintiff - landlord has helped him in getting shop on rent. Specific question was asked to him that after death of Baldevbhai, his son Kamlesh is doing business in suit shop, he replied that Kamleshbhai is doing business jointly with another person. It is further admitted that Dilipbhai - defendant no.2 is doing work of preparing tea. He does not know whether Dilipbhai is employee of Kamleshbhai or not.
13. To counter evidence of plaintiff, defendant no.1 - Kamleshbhai entered into witness box at Exh.40. He deposed that deceased Baldevbhai was contractual tenant in suit shop and carrying business of sweets and savorier. He has further admitted that after death of his father he closed business of sweets and savorier as it did not yield any profit and started business of selling tea. He further deposed in chief examination that rent of suit shop initially was Rs.200/-. Firstly, his father Page 9 of 16 Uploaded by SATISH C. VEMULLA(HC00206) on Sat Dec 06 2025 Downloaded on : Sat Dec 20 00:49:28 IST 2025 NEUTRAL CITATION C/CRA/370/2019 CAV JUDGMENT DATED: 05/12/2025 undefined and thereafter, his mother and thereafter plaintiff is paying rent to landlord. After the year 2001, landlord has refused to accept rent from him. Thereafter, he has send rent through money order and he is ready and willing to pay entire rent. It is further deposed in chief examination that he was doing business along with his father since his age was 20 years and he continued sitting with his father Baldevbhai till his father expired. He continued doing business of sweets and savorier even after his father passed away but due to loss he could not continue that business, therefore, he changed business to selling tea. Dilipbhai
- appellant no.2 has been kept as servant and he is preparing tea. He has further deposed that he has also obtained license under Shop Establishment Act (Exh.27).
14. Now it is important to refer cross examination of appellant
- defendant no.1. Suggestion of landlord that father of appellant
- defendant no.1 was doing business of selling sweets and savorier in the suit shop till his demise, is accepted. However, he denied that business of selling sweets and savorier was done only by his father. He has further admitted that after demise of his father, he has not carried business of selling sweets and savorier. He further denied that during life time of his father, Page 10 of 16 Uploaded by SATISH C. VEMULLA(HC00206) on Sat Dec 06 2025 Downloaded on : Sat Dec 20 00:49:28 IST 2025 NEUTRAL CITATION C/CRA/370/2019 CAV JUDGMENT DATED: 05/12/2025 undefined business of selling sweets and savorier was closed. Suggestion that presently, in the suit suit, Tea Post is running under name of appellant - defendant no.1 is accepted.
15. Appellant - defendant no.1 has examined Chandrakant Shah at Exh.49. He deposed that Kamleshbhai was sitting with late Baldevbhai - contractual tenant. He further deposed that Baldevbhai expired in the year 2001 and thereafter, Kamleshbhai continued his business and since his business suffered loss, he thereafter started business to sale bakery items and thereafter, he has started business of selling tea. Going by cross examination of this witness at nowhere it is suggested that Kamleshbhai was not doing business with his father prior to or subsequent to death of Baldevbhai.
16. Apart from above, no other significant evidence has been placed on record.
17. Given the facts of the case, it remains undiluted that Kamleshbhai is family member of deceased who was contractual tenant. In the case of Sudalaimuthu v/s. Palaniyandavan [AIR 1966 SC 469], Hon'ble Apex Court relying on Webster's New Page 11 of 16 Uploaded by SATISH C. VEMULLA(HC00206) on Sat Dec 06 2025 Downloaded on : Sat Dec 20 00:49:28 IST 2025 NEUTRAL CITATION C/CRA/370/2019 CAV JUDGMENT DATED: 05/12/2025 undefined World Dictionary observed that "family" would include a group of people related by blood or marriage or relatives. Halsbury's Laws of England referred in Brock v/s. Wollams [(1949) 2 KB 388], it is stated that the expression 'member' of tenant's family' is broadly construed, the test being whether an ordinary man would answer affirmatively the question 'whether the person was a member of the tenant's family?. The test is to be applied as at the date of the tenant's death.
18. In the present case, it is admitted position that appellant is son of deceased tenant and is member of tenant's family. He is class I heir of deceased Baldevbhai. Examination of the deposition of witness in this regard for more than one reason indicates that he was doing business with his father and continued business. In absence of contract creating tenancy placed on record viz. Rent agreement, landlord cannot say that son of tenant should not carry business other than business carried by his father. Deceased tenant was doing business of selling sweets and savorier but it is not incumbent upon his son to continue same business to come within criteria of section 5(11)(c)(ii) of Rent Act.
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19. Admittedly, the appellant was paying rent, no other member of family of deceased tenant claims tenancy rights. It is to be inferred that normal mode of succession stated in CPC or personal law would not be applicable in case of Rent Act. The question arises that in case of death of tenant which of his family member succeeds to his tenancy rights has to be decided under section 5(11)(C)(ii) of Rent Act.
20. In view of aforesaid discussion, what could be noticeable that landlord failed to establish operation of section 5(11)(c)(ii) in the matter on hand. There is no evidence on record to say that Kamleshbhai son of Baldevbhai did not carry business or was not in business along with his father.
21. Judgment of learned Appellate Court is based upon cursorily reading of evidence. Learned First Appellate Court picked up certain statements from oral evidence of party and perhaps carried away by the aspect that son of deceased is carrying business of selling tea in suit shop instead of doing business of selling sweets and savorier which his father was doing, as such cannot be termed as tenant within purview of section 5(11)(c)(ii) of Rent Act.
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22. At the cost of repetition, it has to be observed that in absence of contract creating tenancy which may specify that tenant has to carry any particular business in suit shop, continuance of another nature of business in suit shop does not imply that appellant who is carrying another business fails to fall within definition of tenant in 5(11)(c)(ii). Learned Appellate Court unfortunately could not read provisions of law on true perspective.
23. It is to be noticed that landlord has not filed suit for eviction on any other grounds available under section 12 and 13 of the Rent Act on the grounds alike change of use or non use of suit shop. Landlord did not asked eviction of tenant on any other grounds available under Rent Act, say ground of non use or change of use etc. Apposite to note that in absence of particular grounds, learned Appellate Court found that last since four to five years, suit shop is closed and no business was carried out, tenant has to vacate the possession of suit shop, however, such finding is wholly erroneous. It is not even case of plaintiff.
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24. In view of above, according to this Court, learned Appellate Court has committed serious error in interpreting section 5(11)
(c)(ii) of Rent Act. Noticed that premises was let for business (not of any particular business). Appellant - defendant no.1 was member of tenant's family. Sift and weight of evidence on record indicates that appellant was doing business since long time along with his father and after demise of his father, he carried on business of selling tea. Thus, the findings of learned Appellate Court found perverse and arbitrary.
25. This Court is quite conscious that High Court has limited jurisdiction in revision under section 29(2) of the Rent Act. This Court could not re-appreciate the evidence but if learned first appellate Court has committed mistake of law or decision is based on no evidence, High Court may interfere with learned Appellate Court's decision. In case on hand Findings of learned Appellate Court is purely on conjunctures and surmises and based on no evidence or based on total misreading of evidence. Important evidence has not been attended by learned Appellate Court in its true perspective which has been discussed comprehensively by learned Trial Court. Thus finding of learned Appellate Court is found perverse / erroneous. Page 15 of 16 Uploaded by SATISH C. VEMULLA(HC00206) on Sat Dec 06 2025 Downloaded on : Sat Dec 20 00:49:28 IST 2025
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26. For the reasons stated herein-above, this Court finds that judgment of learned Appellate Court is perverse and against settled principle of law and thus, requires to be quashed and set aside. Accordingly, present Revision Application is allowed. Impugned judgment and decree passed by learned Appellate Court in Regular Civil Appeal No.30 of 2010 dated 30.04.2019 is hereby quashed and set aside and consequently, judgment and decree passed by learned Trial Court in Regular Civil Suit No.134 of 2006 dated 30.03.2010 is hereby restored. Record and proceedings, if any, be send to learned Trial Court concerned.
Order in Civil Application Present Civil Application for additional evidence under revisional jurisdiction is not maintainable. Learned advocate Ms. Rami does not press present application. Accordingly, present application stands disposed of.
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