M/S Ashokkumar Sanjivkumar A Firm vs Lh Of Lakshmichand Kevalchand Kothari

Gujarat High Court

M/S Ashokkumar Sanjivkumar A Firm vs Lh Of Lakshmichand Kevalchand Kothari on 15 October, 2025

                                                                                                              NEUTRAL CITATION




                             C/CRA/596/2025                                 JUDGMENT DATED: 15/10/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                                       R/CIVIL REVISION APPLICATION NO. 596 of 2025


                       FOR APPROVAL AND SIGNATURE:


                       HONOURABLE MR.JUSTICE SANJEEV J.THAKER
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                                    Approved for Reporting                  Yes           No

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                                     M/S ASHOKKUMAR SANJIVKUMAR A FIRM & ANR.
                                                       Versus
                                   LH OF LAKSHMICHAND KEVALCHAND KOTHARI & ORS.
                       ================================================================
                       Appearance:
                       MR UMANG R VYAS(5595) for the Applicant(s) No. 1,2
                       DHRUVIK K PATEL(7769) for the Opponent(s) No. 1,1.1,1.2
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                          CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER

                                                        Date : 15/10/2025
                                                        ORAL JUDGMENT

1. The present Civil Revision Application is filed under Section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the Rent Act), challenging the judgment and decree dated 08.09.2025 passed by the Appellate Bench of the Small Causes Court, Ahmedabad, in Regular Civil Appeal No. 90 of 2018, whereby the Appellate Bench confirmed the judgment and decree dated 27.07.2018, passed by Small Causes Court No. 8, Ahmedabad, in HRP Suit No. 539 of 2014, directing the defendants to hand over vacant and peaceful possession of the suit premises to the plaintiff.

2. For the sake of brevity and convenience, the parties are referred to as per their original status in the suit.

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3. The brief facts giving rise to the present Civil Revision Application are that the plaintiff, being the owner of the suit property, filed the suit for eviction against the defendants on the grounds that the defendant was a tenant in arrears; the defendant had sublet the suit property; the defendant had not used the suit premises without reasonable cause for the purpose for which it was let for a continuous period of six months immediately preceding the date of the suit (non-user); and the plaintiff required the suit premises for his reasonable and bona fide requirement.

4. The suit property was given on rent to Defendant No. 1 at a monthly rent of Rs. 300/- along with Municipal Tax, Education Cess, and Electricity Bill. Defendant Nos. 2 to 4 were impleaded as partners of Defendant No. 1. Defendant Nos. 1 and 2 appeared and filed a written statement (Exh. 44). The plaintiff contended that Defendant Nos. 5 to 7 were sub-tenants. The Trial Court, upon considering the oral and documentary evidence, allowed the suit and granted a decree of eviction primarily on the ground that the plaintiff had proved that Defendant Nos. 1 to 4 had sublet the suit property to Defendant Nos. 5 to 7. The issue of non-user was also answered partly in the affirmative, noting that Defendant Nos. 3 and 4 were not doing business in the premises.

5. Aggrieved by this judgment, Defendant Nos. 1 and 2 preferred an appeal RCA No. 90 of 2018, which was dismissed after re- appreciation of the evidence.

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6. The learned advocate for the defendants advanced the following arguments:

(a) The Trial Court and the Appellate Court erred in granting a decree of eviction, given that Issue No. 1, concerning whether the plaintiff had proved the terms of tenancy, was decided in the negative. If the terms were not proven, the question of granting a decree on the ground of subletting does not arise.

(b) The Trial Court relied solely on the Court Commissioner's report (Exh. 63 and 64), which was drawn up in the absence of the defendants.

(c) The order appointing the Court Commissioner stipulated that an effort be made to issue notice to the defendants prior to the execution of the commission, and there is nothing on record to show that such an effort was made.

(d) The Court Commissioner's work, as per the report, was conducted at 15:45 hours on what was stated to be a public holiday/off day, which should preclude the report from being the basis for the eviction decree.

7. Per contra, the learned advocate for the plaintiff submitted the following arguments :

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(a) Although the defendants now objects to the Court Commissioner's report, they never filed any objections before the Trial Court, nor did they make an application to examine the Court Commissioner. Hence, the belated objection regarding the report being prepared ex parte cannot be considered.

(b) The Court Commissioner's report specifically noted that business in the name of Saloni Enterprise was being carried out, and documents pertaining to S. Sudharshan Kumar and Co., Cloth Merchant and Commission Agent, and Shri Nakoda Fabrics Cloth Merchants were recovered, thereby proving the presence of sub-

tenants.

(c) There is no evidence on record to prove that Defendant Nos. 1 to 4 are conducting business in the suit premises. No documents were brought on record to show that they were doing business for the last six months, nor the said fact was proved by oral evidence.

8. Having heard the learned advocates for the parties and having considered the concurrent judgment and decree passed by the Trial Court and confirmed by the First Appellate Court, the following facts stand out:

(I) It is an admitted position that the suit property was given on rent to Defendant No. 1, with Defendant Nos. 2 to 4 being partners.

NEUTRAL CITATION C/CRA/596/2025 JUDGMENT DATED: 15/10/2025 undefined (II) The Court Commissioner's report confirms that Defendant Nos. 5 to 7 are doing business in the suit premises, proving that the actual and exclusive possession of the suit premises was transferred to them by the original tenant.

(III) The Trial Court and the First Appellate Court correctly held that there is no iota of evidence from the defendants to prove that Defendant No. 1 is conducting its business in the suit premises.

(IV) The plaintiff has proved subletting by by proving the fact that Defendant Nos. 1 to 4 parted with the exclusive possession in favour of Defendant Nos. 5 to 7. Defendant Nos. 1 to 4 failed to produce any documentary evidence of a contract permitting the defendant, the right to sublet the premises.

(V) The cross-examination of Defendant No. 2 (Exh. 71) established that he resides in Mumbai, Defendant No. 3 does business in Rajasthan, and Defendant No. 4 is not doing any business.

(VI) The defendants' reliance on payment receipts (Exh. 73 to

75) cannot be considered, as they are issued in the name of the plaintiff. The documents produced (Exh. 87 to 90) pertain to a Page 5 of 9 Uploaded by MANOJ KR. RAI(HC01072) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:28:58 IST 2025 NEUTRAL CITATION C/CRA/596/2025 JUDGMENT DATED: 15/10/2025 undefined business named Manan Fabrics and the same is not Defendant No. 1's business.

(VII) The defendants' belated objection to the Court Commissioner's report is not sustainable, as no objection was filed during the trial or thereafter. Furthermore, if the defendants were truly occupying the premises, the grievance of non-issuance of notice of the commission's visit would be questionable.

(VII) The reliance on the judgment AIR 2019 SC 729 is misplaced, as the defendants failed to avail themselves of the remedy to object to or seek the examination of the Court Commissioner at the appropriate stage. The plaintiff has conclusively proved subletting and the parting of possession without the landlord's consent.

9. 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 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 Page 6 of 9 Uploaded by MANOJ KR. RAI(HC01072) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:28:58 IST 2025 NEUTRAL CITATION C/CRA/596/2025 JUDGMENT DATED: 15/10/2025 undefined 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.

10. The High Court can not interfere with the finding of facts recorded by the first Appellate Court. The consideration or examination of the evidence by the High Court in revisional jurisdiction under this Act is confined to find out that finding recorded by the courts below is according to Law and does not suffer from any error of Law and only if the finding of facts recorded by the courts below, is perverse or has been arrived at without consideration of the material evidence or that such finding is based on no evidence, or misreading of the evidence, or is grossly erroneous that, if allow to stand, it would result in gross miscarriage of justice and the same is open to correction as the same is not Page 7 of 9 Uploaded by MANOJ KR. RAI(HC01072) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:28:58 IST 2025 NEUTRAL CITATION C/CRA/596/2025 JUDGMENT DATED: 15/10/2025 undefined treated as findings according to Law and in the present case, the finding of facts recorded by the trial Court and the appellate Court is 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 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.

11. 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 acquired suitable alternative accommodation 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.

12. 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 Page 8 of 9 Uploaded by MANOJ KR. RAI(HC01072) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:28:58 IST 2025 NEUTRAL CITATION C/CRA/596/2025 JUDGMENT DATED: 15/10/2025 undefined passed by the trial Court, the present Revision Application requires to be dismissed and it is dismissed accordingly.

13. In the present case, the concurrent findings of fact by both Courts below are based on a critical appreciation of the evidence and suffer from no error or material irregularity.

14. In view of the aforesaid facts and the established proposition of law, and in light of the concurrent findings of fact by both Courts below, no ground is made out to call for any interference in the judgment and order passed by the Appellate Court upholding the decree of the Trial Court. The present Civil Revision Application is accordingly dismissed.

(SANJEEV J.THAKER,J) Manoj Kumar Rai Page 9 of 9 Uploaded by MANOJ KR. RAI(HC01072) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:28:58 IST 2025