Gujarat High Court
Shri Bharatbhai Ratilal Popat vs Dineshchandra Vrandavan Samani on 24 November, 2025
NEUTRAL CITATION
C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025
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Reserved On : 11/11/2025
Pronounced On : 24/11/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 167 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
Yes
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SHRI BHARATBHAI RATILAL POPAT & ORS.
Versus
DINESHCHANDRA VRANDAVAN SAMANI & ANR.
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Appearance:
MR PARTH S TOLIA(5617) for the Applicant(s) No. 1,2,3,4
SHIRISHCHANDRA B TOLIA(8163) for the Applicant(s) No. 1,2,3,4
MR DIGANT B KAKKAD(6523) for the Opponent(s) No. 1
NOTICE SERVED for the Opponent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
CAV JUDGMENT
1. Instant Revision Application under section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act (for short "the Rent Act") questions, legality and propriety of judgment and decree dated 18.03.2021 passed in Regular Civil Appeal No.34 of 2013 by which learned Principal District Judge, Porbandar in turn confirmed the judgment and decree dated 28.06.2013 passed in Regular Civil Suit No.1250 of 2022 by learned Trial Court by which the suit of the plaintiff was decreed and he was held entitled to get eviction and peaceful possession Page 1 of 24 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Nov 25 2025 Downloaded on : Tue Nov 25 22:28:16 IST 2025 NEUTRAL CITATION C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025 undefined of suit shop from defendant and it was further directed to hand over peaceful and vacant possession of suit shop to the plaintiff within 60 days from the date of judgment.
2. Respondent herein is "plaintiff landlord" and appellant herein is "tenant defendant". For convenience, they are referred as per their status before the learned Trial Court.
3. Factual aspects of the case pleaded by plaintiff are as under
:-
3.1. Shop in house situated on street no.4, Sutharwadi, Porbander (suit shop) was rented to deceased - Ratilal on monthly rent of Rs.18. The plaintiff purchased the house along with rented suit shop from erstwhile owner. The plaintiff filed Regular Civil Suit under the provisions of Rent Act claiming possession of suit shop on various grounds viz. Personal and bona-fide requirement of suit shop; suit shop was kept non use for more than six months prior to filing of the suit and thirdly that tenant has sublet suit shop to third party by executing partnership firm and handed over possession of the suit shop to the partners.Page 2 of 24 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Nov 25 2025 Downloaded on : Tue Nov 25 22:28:16 IST 2025
NEUTRAL CITATION C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025 undefined
4. Summons of the suit was served to the defendants. Tenant appeared through power of attorney who is partner in partnership firm and filed written statement at Exh.14 to set up total case of denial. Relationship of landlord and tenant was accepted but three grounds pleaded by the plaintiff - landlord has been strenuously objected on the ground that plaintiff landlord has other premises to do business; rent shop is not kept closed and it is used for business in name and style of K.Popat and Company and there is no arrears of rent. No subletting in partnership firm 'K.Popat and company' tenant is active partner.
5. Learned Trial Court fixed issues at Exh.43 and thereafter, permitted both the parties to lead evidence in support of their pleadings. Ultimately, after hearing learned advocates for both the sides, learned Trial Court believed that plaintiff - landlord succeeded in proving all three grounds upon which he has sought peaceful and vacant possession of suit shop. By judgment and decree dated 28.06.2013, learned Trial Court directed defendant to hand over vacant and peaceful possession of suit shop. Being aggrieved, the tenant filed Regular Civil Appeal No.34 of 2013 before the learned Principal District Judge, Porbander under the provisions of Rent Act but did not succeed. Hence, being Page 3 of 24 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Nov 25 2025 Downloaded on : Tue Nov 25 22:28:16 IST 2025 NEUTRAL CITATION C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025 undefined aggrieved, the tenant has preferred this Revision inter-alia on the grounds mentioned in the Revision Application.
6. Learned advocate Mr.Parth Tolia for the appellant - tenant assailing concurrent findings arrived by both the Courts below would mainly submit that learned Trial Court has committed serious error of understanding facts and law. It is further submitted that ground of personal and bona fide requirement of suit shop for personal reason is defined in section 13(1)(g) of the Rent Act, however, said ground is not available to the plaintiff as he was not landlord of the suit shop on 01.01.1964. The plaintiff admittedly purchased the suit shop subsequently, therefore, he would submit that finding of learned Trial Court under section 13(1)(g) of the Rent Act is erroneous finding. He referred to explanation (a) of section 13(2) of Rent Act and submitted that in the aforesaid legal proposition, learned Trial Court has committed serious error in granting decree for possession in favour of landlord on the ground of personal and bona fide requirement. 6.1. As far as two other grounds upon which learned Trial Court has passed decree i.e. ground of subletting and non use, learned advocate Mr.Tolia submits that finding of learned Trial Court on Page 4 of 24 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Nov 25 2025 Downloaded on : Tue Nov 25 22:28:16 IST 2025 NEUTRAL CITATION C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025 undefined these two grounds are inter-se contradictory. He would submit that on one hand, learned Trial court believed that suit shop was non use for more than six months prior to filing of suit and on the other hand, learned Trial Court believed that suit shop has been sublet to third party and that third party was doing business, therefore, he submits that finding of learned Trial Court is serious flaws of understanding of factual aspects. 6.2. It is further submitted that deceased Ratilal was tenant of the suit shop. He entered into partnership firm with third party vide Exh.73. Third party along with deceased were carrying business in suit shop. After death of tenant Rantilal, his son entered into partnership firm and continue doing business in name and style of K.Popat and company. It is submitted that plaintiff failed to bring any evidence on record which establish that possession of suit shop was exclusively parted to other partners of the firm and in that circumstances, finding of learned Trial Court that subletting has been done on the ground that deceased Ratilal entered into partnership firm is complete erroneous.
6.3. It is further submitted that voluminous documentary Page 5 of 24 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Nov 25 2025 Downloaded on : Tue Nov 25 22:28:16 IST 2025 NEUTRAL CITATION C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025 undefined evidence are produced on record to show that K.Popat and company partnership firm was doing active business in suit shop, however, since it was open for few hours, there was no electricity use. Oral evidence of officer of Electricity company to that extent, learned Trial Court has committed serious error in drawing conclusion that suit shop is non use preceding six months of filing of suit.
6.4. Lastly, it is submitted that other partners of partnership firm are not joined as party, they are in possession of suit shop and in absence thereof, no decree for possession can be passed. 6.5. It is argued by learned advocate Mr.Tolia that learned Appellate Court has not framed proper point of determination to cater arguments canvassed by both the sides and in absence thereof, clear breach of Order 41 Rule 31 of CPC could be noticed. Therefore, it is submitted that learned Appellate Court has committed statutory breach in confirming eviction decree. Therefore, it is submitted that Revision Application deserves consideration and the matter is required to be remanded back to the learned Appellate Court for fresh consideration. Learned advocate Mr. Tolia in support of his submission relied on following judgments :-
Page 6 of 24 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Nov 25 2025 Downloaded on : Tue Nov 25 22:28:16 IST 2025
NEUTRAL CITATION C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025 undefined (1) Dalwadi Maganlal Vaghjibhai v/s. Jijibhai Dayabhai Mori [2012 GLHEL HC 227511].
(2) United Engineers and Contractors v/s. Secretary to Govt., AP [AIR 2013 SC 2239] (3) Prajapati Ambaram Nagarbhai v/s. Prajapati Harjibhai [2010 (2) GLH 551] (4) Nagjibhai Savabhai v/s. Sarabhai Bhavanbhai [Second Appeal No.260 of 2012 before Hon'ble Gujarat High Court] (5) Ajitsin Babubhai Jadav v/s. Wadhwan Mahajan Panjarapol [Second Appeal No.231 of 2007 before Hon'ble Gujarat High Court] 6.6. In view of above arguments, learned advocate Mr.Tolia submitted to allow the Revision Application.
7. Learned advocate Mr. Kakkad appearing for the plaintiff landlord in his utter fairness accepted that since plaintiff purchased the suit shop after 01.01.1964, in view of explanation
(a) of section 13(2) of the Rent Act, ground of personal and bona fide requirement cannot be pleaded or pressed and no possession of rented premises can be claimed on the said ground, however, he submits that two other grounds i.e. non use and subletting of rented premises have been squarely proved before the learned Trial Court. It is submitted that well reasoned order has been Page 7 of 24 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Nov 25 2025 Downloaded on : Tue Nov 25 22:28:16 IST 2025 NEUTRAL CITATION C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025 undefined passed by the learned Trial discussing all the issues. Learned Appellate Court re-appreciated the evidence and please to believe that plaintiff successfully establish ground of subletting and non use. He referred to deposition of Officer of Electricity Company at Exh.66 and submitted that according to this deposition, undisputed truth comes on record which establish that electricity usage of the suit shop was 'zero' for time commencing from March / April, 2002 to March / April 2010 it remains in same status and till the date on which deposition of officer was recorded. He submitted that ledger account produced at Exh.67 by Electricity officer has recorded that suit shop was "locked".
Thus, this unimpeachable evidence demonstrate that suit shop was closed; no business was carried prior to six months or subsequent to filing of suit in suit shop. By this evidence, plaintiff has successfully established his case of non use of suit shop. 7.1. So far as ground of subletting is concerned, he submitted that deceased Ratilal was tenant of suit shop in his personal capacity; he moved from Porbandar to live at Keshod long back which is reflecting from deposition of defendant. He would submit that interpretation of Exh.73 - partnership deed which is on record establish that tenant has not thrown suit shop as he has Page 8 of 24 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Nov 25 2025 Downloaded on : Tue Nov 25 22:28:16 IST 2025 NEUTRAL CITATION C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025 undefined capital in the business but remain one of the partner with 1% profit or loss in the business which establish that tenant has parted away suit shop to partners of partnership firm and those persons were in exclusively possession of suit shop. It is submitted that such fact is strengthen by reading cross examination of the defendant Bharat at Exh.70. 7.2. In aforesaid circumstances, he would submit that learned Courts below have not committed any error in passing decree, therefore, he submitted to dismiss the Revision Application. 7.3. To buttress his submission, learned advocate Mr. Kakkad relied on following judgments :-
(1) Patel Kanjibhai Ambalal v/s. Modi Manjulaben Babulal wd/o Babulal Chunilal [(2011) 52 (1) GLR 253] (2) Yuvraj alias Munna Pralhad Jagdale v/s. Janardan Suajirao Wide [2023 SCC Online SC 308].
8. I have heard learned advocates for the parties, gone through Record and Proceedings and judgments cited at bar. At the outset, let me observe that Revision has been filed challenging the concurrent findings arrived at the Courts below, whereby, decree Page 9 of 24 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Nov 25 2025 Downloaded on : Tue Nov 25 22:28:16 IST 2025 NEUTRAL CITATION C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025 undefined of eviction passed by learned Trial Court under the provisions of Rent Act has been confirmed by learned Appellate Court. In this circumstances, scope of interference under section 29(2) of the Rent Act is very limited. Hon'ble Apex Court in the case of Patel Valmik Himatlal vs. Patel Mohanlal Muljibhai (Dead) Through Lrs. - 1998 (7) SCC 383 examined the ambit and scope of Section 29 of the Rent Act. Honble Supreme Court has observed as under :
"5. The ambit and scope of the said section came up for consideration before this Court in Helper Girdharbhai V/ s. Saiyed Mohamad Mirasaheb Kadri and Ors. (JT 1987 (2) SC
599) and after referring to a catena of authorities, Sabyasachi Mukharji, J. drew a distinction between the appellate and the revisional jurisdictions of the courts and opined that the distinction was a real one. It was held that the right to appeal carries with it the right of rehearing both on questions of law and fact, unless the statute conferring the right to appeal itself limits the rehearing in some way, while the power to hear a revision is generally given to a particular case is decided according to law. The Bench opined that although the High Court had wider powers than that which could be exercised under Sec. 115 of the Code of Civil Procedure, yet its revisional jurisdiction could only be exercised for a limited purpose with a view to satisfying itself that the decision under challenge before it is according to law. The High Court cannot substitute its own findings on a question of fact for the findings recorded by the courts below on reappraisal of evidence. Did the High Court exceed its jurisdiction.
6. The powers under Sec. 29(2) are revisional powers with which the High Court is clothed. It empowers the- High Court to correct errors which may make the decision contrary to law and which errors go to the root of the decision hut it Page 10 of 24 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Nov 25 2025 Downloaded on : Tue Nov 25 22:28:16 IST 2025 NEUTRAL CITATION C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025 undefined does not vest the High Court with the power to rehear the matter and reappreciate the evidence. The mere fact that a different view is possible on reappreciation of evidence cannot be a ground for exercise of the revisional jurisdiction."
9. Keeping in mind revisional scope of this Court, let examine whether learned Trial Court below committed any error which may be decision contrary to law and error going to root of decision. Apt to note that appreciation of evidence is totally impermissible under Revisional jurisdiction.
10. Undisputed facts on record is that plaintiff is landlord. He has purchased suit shop along with entire demise premises from erstwhile owner on 23.08.2001 by executing registered sale deed Exh.56. Thus, admittedly, plaintiff become owner of entire premises including suit shop in the year 2001. At the time of purchasing entire house, suit shop was admittedly rented to deceased Ratilal at monthly rent of Rs.18/-. In this undisputed facts, let refer explanation (a) to section 13(2) of the Rent Act as under :-
(2) No decree for eviction shall be passed on the ground specified in clause (g) of sub-section (1) if the Court is satisfied that, having regard to all the circumstances of the case including the question whether other reasonable accommodation is available for the landlord or the tenant, greater hardship would be caused by passing the decree than by refusing to pass it.Page 11 of 24 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Nov 25 2025 Downloaded on : Tue Nov 25 22:28:16 IST 2025
NEUTRAL CITATION C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025 undefined Where the Court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the Court shall pass the decree in respect of such part only. Explanation.- For the purposes of clause (g) of sub-section (1)-
(a) a person shall not be deemed to be a landlord unless he has acquired his interest in the premises at a date prior to the beginning of the tenancy or the first day of January, 1964, whichever is later, or if the interest has devolved on him by inheritance or succession, his predecessor in title has acquired the interest at a date prior to the beginning of the tenancy or the first day of January, 1964, whichever is later.
11. To get eviction on the ground of personal and bona fide requirement defined in section 13(1)(g) of the Rent Act, person shall have to be landlord either on 01.01.1964 or date prior to the beginning of the tenancy. Plaintiff landlord failed to meet with either of the criteria. He becomes owner only when sale deed was executed but tenancy was prior to it. Thus, there is substance in the submission of learned advocate Mr.Tolia. The Court cannot pass decree of eviction on personal and bona-fide requirement. However, learned advocate Mr.Kakkad for respondent plaintiff has fairly accepted this proposition of law.
12. Insofar as two other grounds pleaded by plaintiff viz. subletting and other non use are concerned, these grounds are governed by section 13(1)(e) and section 15 of the Rent Act and second ground that premises has not been used without Page 12 of 24 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Nov 25 2025 Downloaded on : Tue Nov 25 22:28:16 IST 2025 NEUTRAL CITATION C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025 undefined reasonable cause for the purpose for which they were let for a continuous period of six months immediately preceding the date of suit is governed by section 13(1)(k) of the Rent Act. Let refer section 13(1)(e), 13(2)(k) and section 15 of the Rent Act, which reads as under :-
13(1)(e) that the tenant has, since the coming into operation of this Act, unlawfully sub-let the whole or part of the premises or assigned or transferred in any other manner his interest therein; or 15 [ In absence of contract to the contrary tenant not; to sublet or transfer. [(1)] Notwithstanding anything contained in any law [but subject to any contract to the contrary], it shall not be lawful after the coming into operation of this Act for any tenant to sublet the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein:
(2) The bar against sub-letting, assigning or transferring premises contained in subsection (1) shall be deemed not to have had any effect before the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959, in any area in which this Act was in operation before such commencement; and accordingly, notwithstanding anything contained in any contract or in the judgement, decree or order of a Court any sub-lease, assignment or transfer in favour of such persons as have entered into possession despite the bar as sub-lessees, Page 13 of 24 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Nov 25 2025 Downloaded on : Tue Nov 25 22:28:16 IST 2025 NEUTRAL CITATION C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025 undefined assignees or transferees; and have continued in possession at the commencement of the said Ordinance, shall be deemed to be valid and effectual.] 13(1)(k) that the premises have not been used without reasonable cause for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit; or
13. In context of aforesaid legal provisions, if we examine rival submissions, undisputed facts remain that tenancy was created in favour of Ratilal and not in favour of partnership firm. Bharat Ratilal Popat son of deceased Ratilal entered into witness box as DW-1 at Exh.70. He has admitted that they were living in Keshod (village far away from Porbander where suit shop is situated) since more than 25 years and doing business in name and style of "Bharat Trading Company". In further cross examination, he admitted that he or his father have not actively participated in business of 'K.Popat and Company'. He does not know accounts of K.Popat and Company. He does not know what goods are sold in name of 'K.Popat and Company'. He has not taken any decision to do business. Apt to note that as per case of tenant, K.Popat and Company is doing business in suit shop. In Page 14 of 24 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Nov 25 2025 Downloaded on : Tue Nov 25 22:28:16 IST 2025 NEUTRAL CITATION C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025 undefined regard to this deposition, if we go through Exh.73 - partnership firm deed executed between deceased - Ratilal along with other persons, terms of partnership firm do not plead or establish that suit shop along with its tenancy rights has been created in favour of partnership firm or by throwing the tenancy rights on capital. Rather, partnership deed state that tenant would be partner of one percent in profit or loss of business. It is admitted in the cross examination by defendant that partners of 'K.Popat Company' belongs to same caste and they are in blood relationship. It is admitted that possession of suit shop was given to them as they wanted the same for business purpose. It is further admitted that since partners were required suit shop, father of the deceased i.e. Ratilal admittedly has accepted 1% profit and loss share in partnership firm. He has further admitted that he is not active partner nor his father and have entrusted any capital in the partnership firm.
14. Test of mischief of subletting has been elaborately discussed by Hon'ble Apex Court in the case of Celina Coelhi Pereia v/s. Ulhas Mahabaleshwar Kholkar [(2010) 1 SCC 217]. Legal position was summarized as under :-
"The legal position that emerges from the aforesaid decisions Page 15 of 24 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Nov 25 2025 Downloaded on : Tue Nov 25 22:28:16 IST 2025 NEUTRAL CITATION C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025 undefined can be summarised thus :
(i) In order to prove mischief of subletting 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 tenant in favour of a third party with exclusive right of possession and (two) that such parting with possession has (2008) 7 SCC 722 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 subletting. 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 tenant and alleged sub-tenant or ostensible transaction in any other form would not preclude the landlord from bringing on record material and circumstances, 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 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 subletting is on landlord but once he is able to establish that a third party is in exclusive Page 16 of 24 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Nov 25 2025 Downloaded on : Tue Nov 25 22:28:16 IST 2025 NEUTRAL CITATION C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025 undefined possession of the premises and that tenant has no legal possession of the tenanted premises, the onus shifts to 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 landlord would stand discharged by adducing prima facie proof of the fact that a party other than tenant was in exclusive possession of the premises. A presumption of sub-letting may then be raised and would amount to proof unless rebutted.
15. Deposition of defendant establish that possession of tenancy was parted in favour of third party (other partners of partnership firm) and they have been given exclusive right of possession. It is no one's case that landlord's consent was taken to part with the possession or tenancy rights or part thereof. In line of legal proposition settled by Hon'ble Apex Court, from Exh.73 it appears that other partners were not inducted to do business along with tenant but partnership was created with intention to part possession of suit shop to third party. In this situation, the Court is required to tear the veil of partnership to find out the real nature of transaction. The Courts below have discussed this issue in concurrent findings. It also establish on record that tenant is not associated with partnership business Page 17 of 24 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Nov 25 2025 Downloaded on : Tue Nov 25 22:28:16 IST 2025 NEUTRAL CITATION C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025 undefined and has no control over the suit shop. All these findings are sufficient to say that tenant by creating illusion of partnership has parted possession exclusively to third party, which clearly fall in term mischief of sub-letting. Learned Courts below have rightly tear the veil.
16. In view of aforesaid, this Court does not find any reason to interfere with the judgment and decree passed by Courts below to believe that defendant landlord has committed mischief of subletting.
17. So far as ground of non use is concerned, suffice to refer deposition of independent witness PW-3 - Pratikbhai Dandhaniya at Exh.66. He is Deputy Engineer, PGVCL. Plaintiff has examined him to ascertain whether consumer No.35111/00164/6 being electricity connection on the suit shop is consumed or not. Officer came to the Court with documents viz. Ledger account etc. and deposed on oath that since March - April 2002 till date on which he gave deposition, there was no use of electricity and it was 'zero' use of electricity on the suit shop and PGVCL has stated that suit shop is locked. This evidence is incontrovertible and irrefutable. However, against Page 18 of 24 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Nov 25 2025 Downloaded on : Tue Nov 25 22:28:16 IST 2025 NEUTRAL CITATION C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025 undefined this evidence, it is submitted by learned advocate Mr.Tolia that since suit shop was used for few hours in day time, it did not consume electricity. Submission since does not make sense, found a complete falsehood. There is no gainsaying that learned advocate Mr.Tolia hopelessly attempted to get out from establishment of non use, which is squarely proved in the case on hand. When question was put to DW-1 why electricity is not consumed, he deposed that suit shop is open between 10.00 to 12.00 in morning and between 4.30 to 6.30 in evening. However, cogent and undeniable evidence proved non consumption of electricity for more than 8 years itself proves that suit shop was closed preceding six months of filing of suit and subsequent thereto.
18. In regard to ground pleaded under section 13(1)(k) of the Rent Act, Hon'ble Apex Court in case of V. Sumatiben Maganlal Manani (Dead) by Lrs. v/s. Uttamchand Kashiprasad Shah [2011 (3) GLR 2726] in para 23 held as under :-
"23. The explanation of defendant No.2 for non- consumption of electricity was that being a devout Jain he closed the shop at 5-30 p.m. before the day getting dark. He, therefore, did not need any electric light (or for that matter any electric fan), and hence, there was no consumption of electricity in his shop. The falsehood of the explanation, however, was Page 19 of 24 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Nov 25 2025 Downloaded on : Tue Nov 25 22:28:16 IST 2025 NEUTRAL CITATION C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025 undefined exposed by the fact that the electric supply to the demised shop was disconnected for non-payment of the minimum charges. Defendant No.1 then made an application, Exh.198, for resumption of the supply and transfer of the service from the name of the landlady to his own name. On his application, the electric supply was restored in the year 1979 and then the monthly bills, Exh.199 and Exh.200, dated 2-12-1980 and 2-1- 1981 showed normal consumption of electricity in the suit shop. There was no explanation by defendant No.1 how and why the suit shop that showed no electric consumption in earlier years started showing normal electric consumption from December, 1979.
The resumption of electric consumption in the suit shop also lends credence to the case of the plaintiff that after remaining closed for two-three years, the shop was sub-let by defendant No.1 to defendant No.2 who used it for his milk business".
19. In view of above, what inspires that both the grounds were squarely established by the plaintiff before the learned Trial Court. Learned advocate Mr.Tolia failed to point out that learned Courts below have failed to consider evidence in its true perspective leads to erroneous judgment which goes to the root of the case.
20. Two other grounds canvassed by learned advocate Mr.Tolia that other partners are not joined party in suit, therefore, suit suffers from mischief of non joining of necessary party. I fail to countenance any fathom in such argument. Other partners have got possession under mischief of subletting. Other partners of 'K.Popat and Company' have been inducted by tenant and since Page 20 of 24 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Nov 25 2025 Downloaded on : Tue Nov 25 22:28:16 IST 2025 NEUTRAL CITATION C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025 undefined he has exclusively part with possession, they become sub tenant. Hence they are not necessary party to be joined in suit between landlord and tenant under rent jurisdiction.
21. So far as submission that learned Appellate Court has not framed issued and as such it is breach of Order 41 Rule 31 of CPC is concerned, identical situation was pleaded before Hon'ble Apex Court in the case of Nafees Ahmad v/s. Soinuddin [2025 INSC 520]. Hon'ble Apex Court referred judgment in case of Mt. Fakrunisa v/s. Moulvi Izarus [AIR 1921 PC55]; Three Judge Bench of Hon'ble Apex Court in the case of Thakur Sukpal Singh v/s. Thakur Kalyan Singh [(1963) 2 SCR 733 and also judgment in case of Sangram Singh v/s Election Tribunal, Kotah, Bhurey Lal Baya [(1955) 2 SCR 1], in para 12 to 14 held that provision of Rule 31 should be reasonably construed and should be held to require the various particulars to be mentioned in the judgment. Relevant observations of Hon'ble Apex Court reads as under :-
"12. The provisions of Rule 31 should therefore be reasonably construed and should be held to require the various particulars to be mentioned in the judgment only when the appellant has actually raised certain points for determination by the Appellate Court, and not when no such points are raised.Page 21 of 24 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Nov 25 2025 Downloaded on : Tue Nov 25 22:28:16 IST 2025
NEUTRAL CITATION C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025 undefined
13. We must also look into the provisions of Rule 30 of Order 41 for the purpose of fortifying our interpretation of Rule 31. Order 41 Rule 30 CPC reads thus:
"30. Judgment when and where pronounced.─ (1) The Appellate Court, after hearing the parties or their pleaders and referring to any part of the proceedings, whether on appeal or in the court from whose decree the appeal is preferred, to which reference may be considered necessary, shall pronounce judgment in open Court, either at once or on some future day of which notice shall be given to the parties or their pleaders.
(2) Where a written judgment is to be pronounced, it shall be sufficient if the points for determination, the decision thereon and the final order passed in the appeal are read out and it shall not be necessary for the Court to read out the whole judgment, but a copy of the whole judgment shall be made available for the perusal of the parties or their pleaders immediately after the judgment in pronounced."
14. Thus, this Rule does not make it incumbent on the Appellate Court to refer to any part of the proceedings in the court from whose decree the appeal is preferred. The Appellate Court can refer, after hearing the parties and their pleaders, to any part of these proceedings to which reference be considered necessary. It is in the discretion of the Appellate Court to refer to the proceedings. It is competent to pronounce judgment after hearing what the parties or their pleaders submit to it for consideration. It follows therefore that if the appellant submits nothing for its consideration, the Appellate Court can decide the appeal without any reference to any proceedings of the courts below and, in doing so, it can simply say that the appellants have not urged anything which would tend to show that the judgment and decree under appeal were wrong. [See : "Thakur Sukhpal Singh" (supra)]"
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NEUTRAL CITATION C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025 undefined
22. In recent past, the Hon'ble Apex Court in case of Mrugendra Indravadan Mehta And Others Versus Ahmedabad Municipal Corporation reported in 2024 (0) INSC 401 addressed this issue. The relevant para is 14 and 27, which reads as under:-
"14. Perusal of the impugned judgment reflects that the High Court noted the contentions of both parties and then extracted the issues framed by the Trial Court in extenso. The High Court, however, did not frame the points that arose for determination in the appeal, in terms of Order 41 Rule 31 CPC. The High Court then referred to the arguments advanced on behalf of the parties and started the discussion on merits from para 5.1 of the judgment. The High Court observed that compensation had been paid for the shortfall of 974 sq. mts. @ Rs. 25/- per sq. mt. and noted that it was not in dispute that the said compensation amount had been accepted without protest. The High Court also noted that the plaintiffs had not challenged the second varied Town Planning Scheme No. 6, Paldi, under which they were allotted Final Plot No. 187, admeasuring 2278 sq. mts., in lieu of the originally allotted Final Plot No. 463, admeasuring 3890 sq. yds. The High Court also took note of the fact that the plaintiffs supported the second varied scheme before the Division Bench of the High Court in Special Civil Application No. 3980 of 1992 and concluded that they could not make out a grievance with regard to the non- delivery of the remaining 974 sq. mts. of land.
27. This being the legal position vis-a-vis the Act of 1976, it was contended before us by the plaintiffs that the impugned judgment of the High Court is liable to be set aside on the short ground that no points for determination were framed therein, as required by Order 41 Rule 31 CPC. Reliance was placed on Malluru Mallappa (Dead) through Lrs. vs. Kuruvathappa and others, (2020) 4 SCC 313 wherein this Page 23 of 24 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Nov 25 2025 Downloaded on : Tue Nov 25 22:28:16 IST 2025 NEUTRAL CITATION C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025 undefined Court observed that the first appellate Court is required to set out the points for determination, record the decision thereon and give its own reasoning. It was further observed that, even when the said Court affirms the judgment of the Trial Court, it has to comply with the requirements of Order 41 Rule 31 CPC as non-observance thereof would lead to an infirmity in its judgment. However, it may be noted that no absolute proposition was laid down therein to the effect that failure to frame points for determination, in itself, would render the first appellate Courts judgment invalid on that ground."
23. In view of above, according to this Court, learned Courts below have not committed any error in passing judgment and decree. This Revision Application stands dismissed with throughout cost. Notice is discharged. Interim relief granted earlier, if any, stands vacated. Record and Proceedings, if any, be send back to learned Trial Court concerned.
(J. C. DOSHI,J) After pronouncement of judgment, learned advocate Mr.Tolia submits to continue interim relief to avail remedy. Reasons stated herein-above is not making applicant entitle for interim relief, more particularly when he has already sublet and non use rented premises to third party.
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