Devilal Babubhai Nagar vs Dhruvkumar Dahyabhai Contractor

Gujarat High Court

Devilal Babubhai Nagar vs Dhruvkumar Dahyabhai Contractor on 9 September, 2025

                                                                                                                 NEUTRAL CITATION




                           C/CRA/37/2024                                        JUDGMENT DATED: 09/09/2025

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                                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                     R/CIVIL REVISION APPLICATION NO. 37 of 2024


                      FOR APPROVAL AND SIGNATURE:


                      HONOURABLE MR.JUSTICE SANJEEV J.THAKER                              Sd/-
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                                  Approved for Reporting                        Yes           No
                                                                                 ✔
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                                            DEVILAL BABUBHAI NAGAR
                                                     Versus
                                    DHRUVKUMAR DAHYABHAI CONTRACTOR & ORS.
                      ==========================================================
                      Appearance:
                      MR GY PATHAN(5372) for the Applicant(s) No. 1
                      MR DIPAN DESAI(2481) for the Opponent(s) No. 1
                      NOTICE SERVED for the Opponent(s) No. 2.1,2.2,2.3
                      ==========================================================

                        CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER

                                                          Date : 09/09/2025

                                                         ORAL JUDGMENT

1. The present Civil Revision Application is filed under Section 29(2)of the Bombay Rents Hotels and Lodging, House Rates Control Act 1947 (herein after referred to as "the Rent Act"), challenging the judgement and order dated 01.12.2023, passed by the Appellate Bench of Small Causes Court at Ahmedabad, in Regular Civil Appeal No.76 of 2011, whereby the Judgement and decree passed by the Small Causes Court No.4 in HRP Suit No.77 of 2004 dated 27.06.2011, was quashed and set aside and the Appellate Court directed defendant nos.1 and 2 to handover the peaceful possession of the suit premises Page 1 of 15 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:01:56 IST 2025 NEUTRAL CITATION C/CRA/37/2024 JUDGMENT DATED: 09/09/2025 undefined to the landlord within 60 days from the date of the order.

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

3. The brief facts arising in the present Civil Revision Application are that the plaintiff filed a suit against defendant no.1 on the ground that the suit property was given on monthly rent of ₹75/- plus all the taxes and electricity burning charges were to be paid by defendant no.1 and that defendant no.1 has closed the said business of Sweet Mart since many years and that defendant no.1 has sublet the suit property to the defendant no.2 who was carrying on business in the name of Shri Krishna Dudhalaya.

4. Essentially, the suit filed by the plaintiff was for recovery of the possession of the suit property on the ground that defendant no.1 has sublet the suit property to defendant no.2 i.e. Section 13 (1)(e) of the Rent Act and in the said suit, the plaintiff also sought eviction of the defendant no.1 on the ground that defendant no.1 without any reasonable cause has not been using the suit property for the purpose for which it was let for a continuous period of six months, immediately proceeding the date of suit i.e. Section 13(1)(k) of the Rent Act and that the plaintiff requires the suit property for his own Page 2 of 15 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:01:56 IST 2025 NEUTRAL CITATION C/CRA/37/2024 JUDGMENT DATED: 09/09/2025 undefined reasonable and bonafide requirement and that the defendant is in arrears of rent and statutory notice to that effect had been issued to the defendant no.1. The defendants appeared in the said and defendants filed written statement vide Exhibit 11, the Trial Court framed issues vide Exhibit 13 as under:

"1. Whether the plaintiff proves that the defendant No.1 has unlawfully sublet or transferred the suit premises to the defendant no.2?

2. Whether the plaintiff proves that the suit premises have not been used by the defendant no.1 without reasonable cause for the purpose for which they have let for a continuous period of six months immediately preceding to the date of the suit?

3. Whether the plaintiff proves that he requires the suit premises reasonably and bonafidely for occupation by his daughter for starting business of Fashion Designing?

4. Whether the plaintiff proves that he is entitled to the decree of eviction under Section 12 of the Bombay Rent Act?

5. Is a legal and valid notice served by the plaintiff to the defendant no.1?

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6. Whether the plaintiff is entitled to the relief as prayed for?

7. What order and decree?"

5. The plaintiff examined himself vide Exhibit 26, the defendant did not enter the witness box and on 25.03.2011, the stage of defendant's oral evidence was also closed and thereafter taking into consideration the oral evidence and the documentary evidence filed before the Trial Court and giving finding on all the issues, the Trial Court dismissed the said suit of the plaintiff by judgement and decree dated 27.06.2011. Aggrieved by the said judgement and decree, the plaintiff filed Regular Civil Appeal No.76 of 2011 and after reappreciating the evidence, the Appellate Court allowed the said appeal and the judgement and decree passed by the Small Causes Court No.4, in HRP Suit No.77 of 2004, was quashed and set aside. Aggrieved by the said judgment and decree passed by the Appellate Court, the present Civil Revision Application is filed.

6. Learned advocate for the defendant has mainly argued that the Appellate Court has decreed the suit only under the provisions of Section 13(1)(e) of the Rent Act and has erroneously come to the conclusion that defendant no.1 has sublet the suit property to defendant no.2. Learned advocate for the defendant Page 4 of 15 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:01:56 IST 2025 NEUTRAL CITATION C/CRA/37/2024 JUDGMENT DATED: 09/09/2025 undefined no.2 has argued that the burden of establishing the fact that the defendant no.1 has sublet the suit property to the defendant no.2 was on the plaintiff and the plaintiff has failed to establish the said fact either from the pleadings or from any documentary or oral evidence. It has also been argued that the plaintiff has never proved the fact that defendant no.2 is in exclusive possession of the suit property and the defendant no.2 is in possession of the property as an administrator of the shop and to manage the same on behalf of defendant no.1 and the engagement of the defendant no.2 in the suit property is an administrator of defendant no.1 and in view of the said fact it can not be said that the suit property has been sublet by defendant no.1.

7. Learned advocate for the defendant no.2 has also argued that the plaintiff has never established the factum of subletting and also the fact that there is nothing on record to establish the fact that defendant no.1 is not occupying the suit property.

8. Moreover, the Appellate Court has also not taken into consideration the fact that the entire rent is paid by the partnership firm and the said has been accepted by the plaintiff-landlord, and therefore also the Appellate Court could not have passed a judgement and decree of eviction.

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9. Moreover, the Appellate Court has taken into consideration the documents produced vide Exhibits 31 and 32, whereby defendant no.1 has written a letter to plaintiff produced vide Exhibit 31, wherein the fact of defendant no.2 being in possession of the property was well within the knowledge of the plaintiff in the year 1996 and document vide Exhibit 32 is a letter written by defendant no.2 to the plaintiff, wherein also it can be established that defendant no.2 is in possession of the property way back in the year 1996, and therefore, all the said facts have not been taken into consideration by the Appellate Court and therefore, the judgement and decree passed by the Appellate Court is required to be quashed and set aside and the judgement passed by the Trial Court is required to be confirmed.

10. Learned advocate for the defendant has argued that it is an admitted position that the rent note produced vide Exhibit 30, specifically states that the tenant of the suit property is defendant no.1 and it is not the case of defendant no.2 also that defendant no.2 is a tenant in the suit property. The only fact that the defendant no.2 has raised is that defendant no.2 is an administrator of defendant no.1 and by virtue of being an administrator of defendant no.1 is in possession of the premises.

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11. Per contra, learned advocate for the plaintiff has argued that the fact remains that the Appellate Court has come conclusion that defendant no.1 has sublet the property to defendant no.2 and the admitted position is that defendant no.1 was a tenant of the suit premises and defendant no.1 has neither challenged the judgement and decree passed by the Appellate Court and it is only defendant no.2, who has challenged the judgement and decree passed by the Appellate Court by filing the present Civil Revision Application and therefore also, it has been clearly proved that defendant no.2 is a sub-tenant of defendant no.1 and the Appellate Court having come to the conclusion that defendant no.1 has sublet the suit property to defendant no.2, the present Civil Revision Application filed by the sub-tenant could not be considered.

12. Learned advocate for the plaintiff has also argued that if document produced vide Exhibit 32 is taken into consideration, the fact remains that even in the year 1996, defendant no.2 has specifically mentioned in the said letter that, defendant no.1 has given the suit property to defendant no.2 on rent, therefore, the entire story of defendant no.2, being an administrator/manager of defendant no.1 is a concocted story and cannot be believed.

13. Moreover, learned advocate for the plaintiff has argued Page 7 of 15 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:01:56 IST 2025 NEUTRAL CITATION C/CRA/37/2024 JUDGMENT DATED: 09/09/2025 undefined that the fact that defendants have neither entered the witness box nor have produced any documentary or oral evidence to prove the fact that defendant no.1 has not sublet the suit property to defendant no.2.

14. The burden of proving the said fact was initially on the plaintiff that defendant no.1 has sublet the property to defendant no.2, but the fact is that defendant no.2 himself has admitted the fact that defendant no.2 is in possession of the property. The fact remains that the tenant of the suit property is defendant no.1. Therefore, in view of the fact that defendant no.2 is claiming to be an administrator of defendant no.1, there are no documentary evidence to support the said fact that defendant no.2 is an administrator of defendant no.1. The fact also remains that in view of the fact that defendant no.2 is in possession of the property, the same has been proved by the plaintiff by the admission of the defendants that defendant no.2 is in possession of the property, therefore, the burden shifts on the defendant no.1 to prove that on what basis defendant no.2 is in possession of the premises.

15. In view the same, it has been argued that the revisional jurisdiction under Section 29 (2) of the Rent Act is very limited and in view of the fact that the Appellate Court is the last Court on facts, the present Civil Revision Application is Page 8 of 15 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:01:56 IST 2025 NEUTRAL CITATION C/CRA/37/2024 JUDGMENT DATED: 09/09/2025 undefined required to be rejected.

16. Having heard learned advocates for the respective parties and having considered the judgement and decree passed by the Trial Court and the Appellate Court, the following are undisputed facts before this court.

(A) By a rent note produced vide Exhibit 30, defendant no.1 is the tenant of the suit property.

(B) It is a case of defendant no.2, that defendant no.2 is the administrator of defendant no.1 and on the basis of being an administrator of defendant no.1 is occupying the premises.

(C) The present Civil Revision Application is not filed by the original tenant i.e. defendant no.1.

(D) Defendant no.2, vide Exhibit 32, had clearly admitted the fact that he is in possession of the suit premises as a tenant of defendant no.1.

17. Considering the above referred facts the entire record and proceedings of the Trial Court are perused, there is nothing on record that can be perused to prove the fact that defendant no.2 is an administrator/manager of defendant no.1 Page 9 of 15 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:01:56 IST 2025 NEUTRAL CITATION C/CRA/37/2024 JUDGMENT DATED: 09/09/2025 undefined and is in occupation of the premises as a administrator of defendant no.1.

18. It is true that even if the case of the defendant no.1 was that defendant no.2 is a partner of defendant no.1, 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 & Ors. Vs. Ulhas Mahabaleshwar Kholkar & Ors, (2010) 1 SCC 217, 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 Page 10 of 15 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:01:56 IST 2025 NEUTRAL CITATION C/CRA/37/2024 JUDGMENT DATED: 09/09/2025 undefined compensation or rent.

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(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."

19. There is nothing on record to show and prove that defendant no.2 is a partner of Kanaiyalal Acharatlal Partnership Firm, wherein defendant no.1 is a partner and it is neither the case of defendant no.2, that he is a partner of the above referred firm.

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20. If the rent note produced vide Exhibit 30 is taken into consideration, the suit property was let to defendant no.1, i.e. Kanaiyalal Acharatlal and Company's partner Kanaiyalal Acharatlal and therefore, only the partners of Kanaiyalal Acharatlal were authorized to carry out business in the suit premises, though Exhibit 30 has not mentioned who are the partners of Kanaiyalal Acharatlal, but the fact remains that, it is not the case of defendant no.2, that defendant no.2 is the partner of the above referred firm. Though defence that has been raised is that defendant no.2 is an administrator of defendant no.1, but neither any documents have been produced to prove the said fact that defendant no.2 is an administrator of defendant no.1 nor defendant no.1 and defendant no.2, filed their examination-in-chief and therefore, the Appellate Court has rightly held that adverse inference will have to be drawn against the defendants, in view of the fact that defendants have not entered the witness box and given an opportunity to the plaintiff to cross examine the defendant.

21. Moreover, by virtue of Exhibit 32, it has come on record the defendant no.2 is in possession of the property and defendant no.2 himself has stated that defendant no.1 has given the suit property to defendant no.2 on rent, therefore, the entire story of defendant no.2 that he is an administrator of Page 12 of 15 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:01:56 IST 2025 NEUTRAL CITATION C/CRA/37/2024 JUDGMENT DATED: 09/09/2025 undefined defendant no.1 is nothing but, an after-thought. Moreover, with respect to the fact of defendant no.1, not using the suit property for the purpose for which it was let for a period of six months preceding the date of filing the suit as per the rent note produced vide Exhibit 30, the suit property was given to the partner of Kanaiyalal Acharatlal Partnership Firm and there is nothing on record that has been proved by defendant no.1, that defendant no.1, is using the suit property and the fact that defendant no.1 has handed over the suit property to defendant no.2 is an admitted position and therefore, the First Appellate Court has rightly passed a judgement and decree of eviction on the ground of subletting i.e. Section 13(1)(e) of the Rent Act and on the ground that defendant no.1 has not used the suit premises for the purpose for which it has been let for a period of six months preceding the date of filing the suit i.e. Section 13(1)(k) of the Rent Act. In view of the same, the present Civil Revision Application is required to be rejected.

22. Therefore, on the basis of overall analysis of the material on record, on the basis of conclusion that has been referred to by the Appellate Court, 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 Appellate Court are based upon clear analysis of the testimony of the witnesses for either side and Page 13 of 15 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:01:56 IST 2025 NEUTRAL CITATION C/CRA/37/2024 JUDGMENT DATED: 09/09/2025 undefined 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 Appellate Court are according to law and does not suffer from any abuse of law. The findings recorded by the Appellate Court are 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.

23. The findings recorded by the Appellate Courts are based on critical appreciation of the evidence led by the parties on record and does not suffer any error or material irregularities. The Appellate Court has rightly come to the conclusion that the tenant i.e. defendant no.1 has sublet the suit property to the defendant no.2 and, therefore, there was no error committed by the Appellate Court, which requires any correction at the hands of the High Court in exercise of revisional jurisdiction.

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24. 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 findings of fact by the Appellate Courts, since no case is made out to call for any interference in the judgment and order passed by the Appellate Court, the present Revision Application is dismissed accordingly.

Sd/-

(SANJEEV J.THAKER,J) URIL RANA Page 15 of 15 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Sep 10 2025 Downloaded on : Thu Sep 11 01:01:56 IST 2025