Gujarat High Court
Dhirajlal Prabhudas Variya @ Kakubhai ... vs Shushilaben Natvarlal Kotecha Since ... on 3 July, 2025
NEUTRAL CITATION
C/CRA/336/2025 JUDGMENT DATED: 03/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 336 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
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Approved for Reporting Yes No
Yes
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DHIRAJLAL PRABHUDAS VARIYA @ KAKUBHAI SINCE DECD THROUGH
HEIRS & ORS.
Versus
SHUSHILABEN NATVARLAL KOTECHA SINCE DECD THROUGH HEIRS &
ORS.
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Appearance:
MR NIRAV C SANGHAVI(5950) for the Applicant(s) No.
1,1.1,1.2,1.3,1.4,1.5,1.6,1.7,2
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 03/07/2025
ORAL JUDGMENT
1. The present Revision Application has been filed under Section 29(2) of the Bombay Rent Act, hereinafter referred to as the "said Act" challenging the judgment and decree passed by Principle District Judge, Junagadh in Regular Civil Appeal No.16 of 2023 dated 11.08.2023 confirming the judgment and decree dated 29.03.2023 in Regular Civil Suit No.79 of 2018 passed by Additional Civil Judge, Junagadh.
2. For the sake of brevity, the parties are referred to their original status as that in the suit.
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3. The brief facts arising in the present Revision Application are that the plaintiff landlord filed Regular Civil Suit No.79 of 2018, against the defendants, on the ground that the suit property was given on rent to one Dhirajlal Prabhudas Variya, who was running jewellary shop and after the death of Dhirajlal Prabhudas Variya, defendant Nos.1 to 7 closed the said shop and said shop remained in unused condition and the defendants have sublet the said shop to defendant No.2 and started business in the name of Harikrishna apartment and also taken electric connection and it is the further case of the plaintiff that the defendant No.2 has taken electric connection in his name and has not given the rent of the suit premises for the last seven years and in view of the same the plaintiffs have sought for eviction of the defendants eviction of the defendants from the suit property, on the ground that the plaintiff is in arrears of rent for more than six months and that without the consent of the plaintiffs, defendant No.1 has sub let the suit property to defendant No.2. The trial Court framed the following issues vide Exhibit-10, as under:-
1. Whether the learned Trial Court has committed any error of law and fact while replying in affirmative that whether the plaintiff proves that defendants of suit property at monthly rate of Rs.31/-?
2. Whether the plaintiff proves that defendant is in arrears of rent for more than six months? And has neglected to pay the due Page 2 of 16 Uploaded by MANOJ KR. RAI(HC01072) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 02:27:09 IST 2025 NEUTRAL CITATION C/CRA/336/2025 JUDGMENT DATED: 03/07/2025 undefined amount of rent within one month from the date of service of notice?
3. Whether the defendant proves that he has already payed the rent to the plaintiff but he never issued receipt thereof to the defendant?
4. Whether the defendant proves that he had also sent the amount of rent by money order dated 15/04/2015 but the plaintiff refused to accept the same?
5. Whether the plaintiff proves that defendant no.1 without his consent for knowledge, has sublet the suit premises to defendant no.2 against the terms and condition of the agreement?
6. Whether the plaintiff is entitled to get vacant possession of the suit premises?
7. Whether the plaintiff is entitled to get his dues alongiwth 24% interest?
8. What order and decree?
4. After taking into consideration the oral evidence and documentary evidence, the trial Court allowed the said suit on the ground of defendant being in arrears and that the defendant No.1 has without the consent and knowledge of the plaintiffs sublet the suit property to defendant No.2. Being aggrieved by Page 3 of 16 Uploaded by MANOJ KR. RAI(HC01072) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 02:27:09 IST 2025 NEUTRAL CITATION C/CRA/336/2025 JUDGMENT DATED: 03/07/2025 undefined the judgment of the trial Court, the tenant filed appeal being Appeal No.16 of 2023, and after reappreciating the evidence, the first appellate court dismissed the said appeal and confirmed the judgment and decree passed by the trial Court. Hence, the present Revision Application.
Submission of Petitioner/Defendant tenant
5. The learned advocate for the defendants has mainly argued that the entire case of the plaintiff is based on the fact that defendant No.1 has sub let the property to defendant No.2 and in the guise of a partnership agreement have handed over the possession of the suit property to defendant No.2, and if the partnership deed between defendant No.1/1 to 1/7 and defendant No.2 which is produced vide Exhibit-54 is taken into consideration the same clearly reflects that the defendant No.1 to 7 have not parted that the exclusive possession of the suit premises and that possession of the suit premises is with the defendant No.1/1 to 1/7. The learned advocate for the defendant has also argued that if the rent agreement produced vide Exhibit- 54, is perused the fact remains that the possession of the suit property was always there with the legal heirs of deceased original tenant Dhirajlal and the defendant No.1 in active business in the said partnership firm and the share of the defendant No.1/1 and 1/6 is 15% in said partnership business, and therefore, it cannot be said that legal heirs of Dhirajlal have handed over the possession of the suit premises of defendant No.2.
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6. It is the case of the defendants that after the death of Dhirajlal, in view of the fact that the defendants No.1/1 and 1/6 were doing business with the deceased original tenant they had become tenant of the suit property and it is only because of the old age of defendant No.1/1, that the partnership firm has been created, but it has been argued that it cannot be said that in view of creation of partnership firm and inducting the partner in the business the same amounts to sub letting, and therefore, the trial Court and the appellate Court could not have come to the conclusion that defendant No.1/1 and 1/7 have sub let the suit property to defendant No.2.
7. The learned advocate for the defendants tenant has also argued that there is nothing on record to establish that defendant No.1 original tenant has handed over the vacant and peaceful possession of the suit property to defendant No.2, even in the oral evidence of defendant No.1, produced vide Exhibit-14, it has been clearly established that the defendant No.1 is going to the suit premises and is taking active part in the partnership business, and therefore, it cannot be said that defendant No.1 is not utilizing the premises as a tenant of the suit premises.
8. With respect to the fact of defendant being tenant in arrears, the learned advocate for the defendants has admitted that the rent of the shop was increased from Rs.15/- to Rs.31/- but the fact is that the defendants have paid rent of Rs.1860/- by money order and plaintiffs have not accepted the same, the Page 5 of 16 Uploaded by MANOJ KR. RAI(HC01072) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 02:27:09 IST 2025 NEUTRAL CITATION C/CRA/336/2025 JUDGMENT DATED: 03/07/2025 undefined plaintiff No.2 Bhavnaben Kotecha has accepted the rent and has not given any receipt for the rent taken. It is the case of the defendant that the defendants were always ready to pay the rent to the plaintiffs but the plaintiffs have not accepted the said rent, and therefore, as the defendant was always ready to pay the remaining amount of rent the trial Court should not have passed any decree of eviction on the ground that the defendants are in arrears of rent, and therefore, it has been argued that judgment and decree passed by the appellate Court and the trial Court are required to be quashed and set aside as both the courts below have material illegality of law and fact in decreeing the suit of the plaintiff and the learned advocate has further argued that in view of the said fact, the present Revision Application is required to be allowed.
9. The case of the plaintiff before the trial Court was that the partnership has entered between defendant No.1 and defendant No.2 was not a real and genuine partnership but was a device and it amounted to subletting and parting of exclusive possession of the suit property.
10. It was the case of the plaintiff before the trial Court that from the fact of the present case, which has been proved by the plaintiff clearly establishes that the said deed of partnership is drawn to conceal the real transaction of subletting and from the evidence on record the plaintiff has clearly proved the case of subletting and defendant No.1 parting with possession to Page 6 of 16 Uploaded by MANOJ KR. RAI(HC01072) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 02:27:09 IST 2025 NEUTRAL CITATION C/CRA/336/2025 JUDGMENT DATED: 03/07/2025 undefined defendant No.2. In the present case, the plaintiff has been able to prove that defendant No.2 is in exclusive possession of the suit property and that though a partnership deed has entered into between the defendant No.1 and defendant No.2. Defendant No.1 has no legal possession of the suit premises. Defendant No.1 has not been able to prove that alongwith defendant No.2 he also has possession of the suit premises.
11. It was the case of the plaintiff before the trial Court that it is the admitted position that the original tenant expired on 10.02.2014 and from the records from documentary evidence, more particularly Exhibit-23 which is the ledger of electric consumption which clearly established that in December - January, 2013 to March-2013, the meter reading is zero thereafter from October - Nover, 2013 till December - January,2015, the meter reading is zero then February to May, 2015 the meter reading of every month is only Rs.20/- and from April, June - July, 2015 and August - September, 2017 it is zero, therefore, it cannot be believed that at the time of death of deceased original tenant defendant Nos.1/1 to 1/7 were doing business with the deceased defendant. Moreover, the fact also remains that the defendant No.1/1 to 1/7 has personally not done any business in the suit property but have entered into a partnership on 31.10.2017 with defendant No.2. It was the case of the plaintiff before the trial Court that during the life time of late Dhirajlal the suit property was exclusively used by Dhirajlal in his personal capacity and not as the partner of a partnership Page 7 of 16 Uploaded by MANOJ KR. RAI(HC01072) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 02:27:09 IST 2025 NEUTRAL CITATION C/CRA/336/2025 JUDGMENT DATED: 03/07/2025 undefined firm, and therefore, the trial Court and the first appellate Court have rightly held that the defendant Nos1/1 to 1/7 have sublet the suit property to defendant No.2.
12. With respect to the contents that the defendant No.1/1 to 1/7 are tenant in arrears, it was the case of the plaintiff before the trial Court that before filing the suit the plaintiff had issued notice vide Exhibit-24 who has been received by the defendant No.1/1 to 1/7 and the acknowledgment slip of registered post was also produced vide Exhibit-25 to 32 and though the defendant has taken contention that defendant has paid to Rs.1850/- towards the arrears of rent but neither any documentary proof to support the fact has been produced. Moreover, even assuming for a moment that the said amount has been paid but the fact remains that the notice which was sent by the plaintiff was for recovery of Rs.2604/- i.e. arrears of rent of Rs.7/- and even assuming for a moment that the defendant has not paid amount of Rs.1860/- to the plaintiff the said amount of Rs.744/- is admittedly not paid by defendant No.1/1 to 1/7, and therefore, the trial Court and the appellate Court have rightly held that defendant No.1/1 to 1/7 is tenant in arrears. it has been argued that the partnership deed entered into between defendant No.1 and defendant No.2 is a sham and bogus partnership and the real intention by way of said partnership by parting with the possession of the suit premises and the same is to conceal the real transaction of sub letting and in that view of the matter, the present Civil Revision Application is required to be dismissed.
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13. The trial Court has allowed the suit that has been filed by the landlord on the ground that the landlord has been able to prove that the defendant No.1/1 to 1/7 are tenant in arrears and also on the ground that defendant No.1/1 to 1/7, sub let the suit property to defendant No.2
14. The first contention that will have to be decided by this Court is on the ground of eviction of the defendant on the ground that the defendant was tenant in arrears. For the same, the plaintiff has before institution of the suit has vide Exhibit-25 issued notice to defendant No.1/1 to 1/7, claiming the amount of Rs.2604/- at the rate of Rs.31/- per month and the said notice has received by defendant Nos.1/1 to 1/7, the defendants have taken a ground that the defendants were always ready and willing to deposit the said amount of arrears and had also sent money order to the tune of Rs.1860/-, but the said was not accepted by the plaintiffs. But the fact remains that neither has the defendant produced the copy of any slip of money order, nor, has the defendant deposited the said amount, at the first hearing of the suit and the admitted position is that even after considering the alleged amount of payment of Rs.1860/-, the defendant No.1/1 to 1/7 were in arrears of Rs.744/- i.e. after deducting the alleged amount of Rs.1860/-, and therefore, the trial Court and the first appellate Court have rightly held that the plaintiff has proved that the defendants are tenant in arrears.
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15. With respect to the issue of subletting, the fact remains that there is nothing on record to show that the plaintiffs have given consent to the defendants to enter into a partnership with the defendant No.2, the defendant had taken a contention that due to financial difficulties the defendants have entered into a partnership with the defendant No.2 and that they are jointly carrying on business in the suit premises. No documentary evidence was produced by the defendant, to prove the fact of executing a partnership deed and it is only in the deposition of the witness of the plaintiffs, vide Exhibit-47 i.e. the Officer of PGVCL produced the copy of the partnership between the defendant No.1/1 to 1/7 and defendant No.2, vide Exhibit-54 and the same was presented by defendant No.2 to the said defendant, while seeking re-connection of the electric connection, which was disconnected by the PGVCL. The fact remains that out of legal heirs of deceased original tenant i.e. defendant No.1/1 to 1/7, who has inherited the tenant right under section 5(11)(c) of the Bombay Rent Act, assuming for a moment that all the defendants No.1/1 to 1/7 had inherited tenancy right under Section 5(11)(c) of the Bombay Rent Act, the fact remains that, only defendant No.1/1 and 1/6 entered into the partnership with the defendant No.2. The defendants have neither produced any documents pertaining to the balance sheet, proof of loss of account, etc. i.e. books of account of partnership firm or statement in the name of partnership firm and the defendant No.2 in the affidavit vide Exhibit-63 has admitted that his share Page 10 of 16 Uploaded by MANOJ KR. RAI(HC01072) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 02:27:09 IST 2025 NEUTRAL CITATION C/CRA/336/2025 JUDGMENT DATED: 03/07/2025 undefined in partnership is 70% and that he is managing affairs of the bank account of the firm.
16. It is true that mere entering into a partnership may not provide a ground of eviction of sub letting and parting that possession, but in the same fact the existance of deed of partnership between the tenant and the alleged sub tenant would not preclude the landlord from bringing on record material and circumstance by adducing evidence or by means of cross- examination making out the case of sub tenancy. The Hon'ble Supreme Court in the case of Celina Coelho Pereira (supra), has held:-
(i) In order to prove mischief of sub-letting as a ground for eviction under rent control laws, two ingredients have to be established, (one) parting with possession of tenancy or part of it by the tenant in favour of a third party with exclusive right of possession, and (two) that such parting with possession has been done without the consent of the landlord and in lieu of compensation or rent.
(ii) Inducting a partner or partners in the business or profession by a tenant by itself does not amount to sub-letting. However, if the purpose of such partnership is ostensible and a deed of partnership is drawn to conceal the real transaction of sub-letting, the court may tear the veil of partnership to find out the real nature of transaction entered into by the tenant.
(iii) The existence of deed of partnership between the tenant and alleged sub-tenant or ostensible transaction in any other form would not preclude the landlord from bringing on record material and circumstances, Page 11 of 16 Uploaded by MANOJ KR. RAI(HC01072) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 02:27:09 IST 2025 NEUTRAL CITATION C/CRA/336/2025 JUDGMENT DATED: 03/07/2025 undefined by adducing evidence or by means of cross-
examination, making out a case of sub-letting or parting with possession in tenancy premises by the tenant in favour of a third person.
(iv) If the tenant is actively associated with the partnership business and retains the control over the tenancy premises with him, may be along with partners, the tenant may not be said to have parted with possession.
(v) Initial burden of proving sub-letting is on the landlord but once he is able to establish that a third party is in exclusive possession of the premises and that tenant has no legal possession of the tenanted premises, the onus shifts to the tenant to prove the nature of occupation of such third party and that he (tenant) continues to hold legal possession in tenancy premises.
(vi) In other words, initial burden lying on the landlord would stand discharged by adducing prima facie proof of the fact that a party other than the tenant was in exclusive possession of the premises. A presumption of sub-letting may then be raised and would amount to proof unless rebutted.
17. Applying the law laid down by the Apex Court in the aforesaid decision to the facts of the present case and upon careful appreciation of the evidence on record, this Court is of the opinion that no genuine partnership exists between the defendnat No.1/1 to 1/7 and defendant No.2. Defendant No.1 has raised plea of partnership solely to circumvent the allegation of subletting. From the documentary evidence, it can be clearly established that the conclusive possession of the suit premises is with defendant No.2 and that defendant No.2 is operating his Page 12 of 16 Uploaded by MANOJ KR. RAI(HC01072) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 02:27:09 IST 2025 NEUTRAL CITATION C/CRA/336/2025 JUDGMENT DATED: 03/07/2025 undefined business in the suit premises as though he was the owner of the premises. The documentary evidence also support the fact that defendant No.2 is in-charge of the exclusive control of the alleged partnership. In this circumstances, a clear case of subletting stand established. The fact emerging from the evidence on record lead to an unfailing conclusion that the original tenant has handed over the exclusive possession to defendant No.2.
18. Both the Courts below recorded concurrent findings that the partnership was not real but was a device and it amounted to subletting and parting of exclusive possession. The powers of this Court while examining these concurrent findings have to be guided by the well established principles regarding the scope of revisional powers under Section 29(2) of the Act and the said powers under Section 29(2) of the Act do not extend to re- examination and re-appreciation of evidence and the said powers can only be exercised to see that the Courts below have acted within the bounds of law and the decision does not suffer from excess of jurisdiction or material irregularity and even if the second view could be plausible or possible this Court while exercising powers under section 29(2) of the Act could not substituted unless the finding is perverse. Such is not a case in the present suit.
19. Therefore, on the basis of overall analysis of the material on record, on the basis of conclusion that has been referred to by the Court below, the Court is of the opinion that there is no Page 13 of 16 Uploaded by MANOJ KR. RAI(HC01072) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 02:27:09 IST 2025 NEUTRAL CITATION C/CRA/336/2025 JUDGMENT DATED: 03/07/2025 undefined 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 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, 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.
20. The High Court can not interfere with the finding of facts recorded by the first Appellate Court. In the present case, the finding of facts recorded by the trial Court and the appellate Court are neither perverse nor arrived at without consideration of the material evidence. In the present case, in revisional jurisdiction, the High Court can not exercise its powers as an appellate power to reappreciate or reassess the evidence for Page 14 of 16 Uploaded by MANOJ KR. RAI(HC01072) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 02:27:09 IST 2025 NEUTRAL CITATION C/CRA/336/2025 JUDGMENT DATED: 03/07/2025 undefined 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 sublet the suit premises to defendant No.2 and the tenant is in arrears of rent 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. In view of the said fact the judgment and decree requires no interference.
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.
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In view of the said fact, the implementation and operation of the order is stayed till four weeks.
(SANJEEV J.THAKER,J) Manoj Kumar Rai Page 16 of 16 Uploaded by MANOJ KR. RAI(HC01072) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 02:27:09 IST 2025