Bombay High Court
Trikamdas Khimji Kotecha (Dece) Thr. ... vs Bharat Ramji Vora And Anr on 5 May, 2025
Author: Madhav J. Jamdar
Bench: Madhav J. Jamdar
2025:BHC-AS:21864 31 CRA 294.23 WITH IA 12674.23.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.294 OF 2023
Trikamdas Khimji Kotecha (deceased) ...Applicant
thru' /Smt. Yeshoda Trikamdas Kotecha
Versus
Bharat Ramji Vora & Anr. ...Respondents
WITH
INTERIM APPLICATION NO.12674 OF 2023
IN
CIVIL REVISION APPLICATION NO.294 OF 2023
Trikamdas Khimji Kotecha (deceased) ...Applicant
thru' /Smt. Yeshoda Trikamdas Kotecha
Versus
Bharat Ramji Vora & Anr. ...Respondents
Mr. Pradeep Thorat i/by Mohanish Ghatge, Advocate for Applicant
Mr. Surel Shah, Senior Counsel a/w Mr. Neel Gala, Mr. Kaivalya
Raul, Ms. Gomathi Chettiyar i/by Mr. Neel Gala, for Respondent
No.1.
CORAM: MADHAV J. JAMDAR, J.
DATED : 5th May 2025
JUDGMENT :
1. By the present Civil Revision Application, challenge is to the
legality and validity of the Judgment and Decree dated 18 th April
2023 passed in Appeal No.135 of 2018 in R.A.E. Suit No.528/796
of 2011 by the learned Appellate Bench of the Small Causes Court
at Mumbai.
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2. The said R.A.E. Suit No.528/796 of 2011 has been filed inter
alia on the ground of sub-letting. The learned Trial Court by the
Judgment and Decree dated 13th August 2018 decreed the Suit and
passed the eviction Order. However, the learned Appellate Court by
the impugned Judgment and Decree dated 18 th April 2023 has set
aside the Judgment and Decree dated 13 th August 2018 passed by
the learned Trial Court.
3. The learned Trial Court has passed the decree inter alia on
the ground that the Defendant No.1 i.e. DW-1 admitted in his
cross-examination that the business of mobile was running on in
the name of 'Cells N Solutions' in the suit premises, the DW-1 has
admitted that Kalpesh Maru was in possession of the suit premises
for about 12 months, VAT certificate (Exhibit 44) dated 7th July
2011 shows name of Kalpesh Maru and he has been shown as a
proprietor and address of business is mentioned as that of the Suit
Premises. As far as Exhibit-55 Leave and License Agreement is
concerned, the learned Trial Court held that although the
genuineness of the same has been challenged by the Respondent,
however, as the VAT Certificate issued by the Sales-Tax Department
is genuinely issued, the said aspect is not of much significance. The
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learned Trial Court has also given various other reasons for passing
the decree of eviction on the ground of sub-letting.
4. As far as learned Appellate Court is concerned, learned
Appellate Court has held that Exhibit -55 Agreement was wrongly
exhibited and as the said Exhibit-55 Agreement is neither
registered nor a notarised document and on the basis of admission
given by the PW-2- Sales-Tax Department Officer, it is observed
that as Sales-Tax/VAT Certificate has been issued on the basis of
said Exhibit-55, the same is not legal and therefore no reliance can
be placed on said Sales-Tax/VAT certificate.
5. On the earlier occasion, I have heard submissions of Mr.
Thorat, learned Counsel for the Petitioner and Mr. Surel Shah,
learned Senior Counsel for the Respondent.
6. Mr. Thorat, learned Counsel submitted that the Respondent
No.1/Original Defendant No.1 subletted the Suit Premises in
favour of Respondent No.2/ Original defendant No.2 and the
Defendant No.2 had conducted mobile shop in the name and style
as 'Cells N Solutions'. He pointed out Form No.101 (Exh.-54)
submitted to the Registering Authority under Section 16 of The
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Maharashtra Value Added Tax Act, 2002 specifically showing the
name of the Applicant as 'Kalpesh Vinod Maru' i.e. Defendant No.2
stating that the constitution of said business is in the
proprietorship being carried out under the name and style as 'Cells
N Solutions'. In the said application, address of the said premises is
mentioned as the principal place of business. He pointed out
Agreement for Leave and License, (Exhibit- 55). He also pointed
out page-62 of the compilation of document where Roznama (Exh-
45) maintained by the Sales-Tax Department is produced. In the
said Roznama, signature of Kalpesh Vinod Maru is appearing. He
also pointed out check-list maintained by the Sales-Tax Inspector
(Pages 95 to 97 of the Compilation of Documents). He also pointed
out notice dated 27th January 2006 issued by the Advocate of the
Plaintiff to the Defendant No.2 alongwith the acknowledgment
received from Bharat Ramji Vora (Exh-34) (pages 24-29 of
Compilation of Documents). He also pointed out notice dated 25 th
March 2006 issued by the Advocate of the Plaintiff to the
Defendant No.1 alongwith the acknowledgment bearing signature
of the Defendant No.1 (Exh-35) (pages 30-35 of Compilation of
Documents). He also pointed out admissions given by the DW-1 in
the cross-examination, wherein DW-1 has admitted that Kalpesh
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Vinod Maru was in possession of the suit premises for about 12
months. He pointed out observations of the learned Trial Court
regarding VAT/Sales Tax Certificate (Exh-44) and also of the
Appellate Court. He also pointed out evidence affidavit of the
Respondent No.1 and more particularly paragraphs 7 and 8 on
page-118. He therefore submitted that the impugned Order of the
Appellate Court is totally perverse as various relevant documentary
and oral evidence has not been considered.
7. On the other hand, Mr. Surel Shah, learned Senior Counsel
for Respondent No.1 pointed out cross-examination of PW-2 i.e.
Sales-Tax Officer and submitted that the learned Appellate Court
was justified in not taking into consideration the said documents.
He also pointed out Registration Certificate of Establishment under
Bombay Shops and Establishments Act, 1948 issued by the
Inspector under the said Act, wherein name of employer is
mentioned as Bharat Ramji Vora i.e. the Tenant. It is also stated in
the said Certificate that the nature of business is mobile sales and
services. He submitted that as far as admission of DW-1 in Cross-
examination admitting that Kalpesh Vinod Maru was in possession
of the suit premises for about 12 months, there is no supportive
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evidence with respect to the said admission and therefore the
learned Appellate Court has rightly not taken into consideration
the same. He relied on the judgment of the Supreme Court in the
case of Celina Coelho Pereira (Ms.) Vs. Uhas Mahabaleshwar
Kholkar1 and more particularly on paragraph-25 of the same. He
therefore submitted that the learned Appellate Court has rightly set
aside the eviction decree passed by the learned Trial Court as
ingredients of sub-letting are not proved.
8. Before considering the rival submissions, it is necessary to
set out the Supreme Court judgment in the case of Celina Pereira
(supra) and more particularly paragraph-25 of the same, which
reads as under:-
"25. The legal position that emerges from the aforesaid
decisions can be summarised thus:
(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.
1 (2010) 1 SCC 217
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(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, 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
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exclusive possession of the premises. A presumption of
sub-letting may then be raised and would amount to
proof unless rebutted."
(Emphasis added)
9. Thus, what the Supreme Court has held that in order to
prove mischief of sub-letting as a ground for eviction under rent
control laws, following two ingredients have to be established:-
(i) Parting with possession of tenancy or part of it by
the tenant in favour of a third party with exclusive right
of possession, and
(ii) That such parting with possession is without the
consent of the landlord and in lieu of compensation of
rent.
It has also been held by the Supreme Court that initial burden of
proving sub-letting is on the landlord but once he is able to
establish that third party is in exclusive possession of the premises,
the onus shifts to the tenant and in that event a presumption of
sub-letting is raised and would amount to proof unless rebutted.
10. Thus, what is to be shown by the Applicant-landlord is
parting with possession of the tenanted premises or part of it by
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the tenant in favour of a third party with exclusive right of
possession and if the same is proved then a presumption of sub-
letting is raised and would amount to proof unless rebutted.
11. In this particular case, it is not the contention of the
Defendant No.1 that the Defendant No1 is doing the said business
of mobile in partnership with said Kalpesh Maru. It is his
contention that said Kalpesh Maru is the employee working with
him and he is paying salary to him. In this background of the
matter, it is required to be noted that the said Defendant No.2-
Kalpesh Maru has filed written statement, however thereafter he
has not participated in the trial. Exhibit-54 Application, which is an
application submitted by said Kalpesh Maru with the registering
authority under Section 16 of The Maharashtra Value Added Tax
Act, 2002 specifically showing the name of the Applicant as
'Kalpesh Vinod Maru' i.e. Defendant No.2 and specifically showing
the address of the suit premises as the place of business and stating
that the constitution of said business is in the proprietorship being
carried out under the name and style as 'Cells N Solutions'. The
Challan dated 12th July 2011 of the payment made towards
registration fees of Rs.5030/- and VRS Deposit of Rs.25,000/- are
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signed by the Defendant No.2 which has been exhibited as Exhibit-
46 (1)(2). Certificate of Registration issued by Sales Tax Officer
dated 7th July 2011 concerning "Cells N. Solutions" i.e. Exhibit - 47
is in the name of Kalpesh Vinod Maru i.e. Defendant No.2 and
showing the constitution as proprietory. In fact the Roznama,
which has been produced at Exhibit 45 and Exhibit 51 maintained
by the Registering Authority also shows his signature and that he
has appeared before the Sales-Tax Officer. The only reasoning
given by the learned Appellate Court to discard this documentary
evidence is that the Agreement for Leave and License (Exhibit-55)
which is produced alongwith the record of the Sales Tax Office is
signed by the licensor- Ramji Lalji Shah in favour of Kalpesh Vinod
Maru on 2nd July 2011, whereas, said Ramji Lalji Shah passed away
on 23rd February 2002. It is further observed by the learned
Appellate Court that all documents including Registration
Certificate etc. are issued on the basis of said Agreement of Leave
and License (Exh-55) and therefore, the said documents are not
legal and cannot be relied on. However, it is required to be noted
that said Agreement for Leave and License has been produced by
said Kalpesh Vinod Maru before the Sales-Tax Authorities and
therefore the Plaintiff is not concerned with the same. However,
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what is important is that said Kalpesh Maru filed application at
Exhibit-54 seeking registration under Section 16 of The
Maharashtra Value Added Tax Act, 2002 specifically mentioning
that he is the proprietor of said 'Cells N. Solutions' and mentioning
place of the business as the Suit Premises. In this background of
the matter, it is required to note the admission given by DW-1 on
page-184, which reads as under:-
"Further cross-examination of D.W. No.1 by advocate
Mr. S.J. Ghatge for the plaintiff (contd) :-
On S.A
Now shown to me Article X-4. The address mentioned
in this document is of suit premises. It is correct to say
that business in the name of Cell N Solutions was being
conducted in the suit premises.
Ques: I put to you that in this document it is mentioned
that Kalpesh Maru is the proprietor of the said Cells N
Solutions?
Ans: I do not know.
I do not have account in Sarvodaya Co-operative Bank
Ltd. Kalpesh Maru was in possession, in suit premises
for about 12 months. I know Kalpesh Maru."
(Emphasis added)
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12. Mr. Surel Shah, learned Senior Counsel submitted that as far
as this admission of DW-1 is concerned, there is no corroborative
evidence. However the documentary evidence as set out
hereinabove and other evidence is very important.
13. Perusal of the record shows that although it is the contention
of learned Counsel for the Respondent No.1 that the notices issued
by the learned Advocate of the Plaintiff has been received by the
Respondent No.1- Bharat Ramji Vora at the said address and
acknowledgments produced by the Plaintiff shows that the
Defendant No.1 in possession of the Suit Premises, however,
perusal of said acknowledgments on pages 34 and 28 of the
compilation of documents creates doubt regarding the aspect that
the Respondent No.1 -Bharat Ramji Vora has signed the said
acknowledgments.
14. Perusal of record shows that the learned Appellate Court has
not taken into consideration various aspects of the matter and
voluminous documentary and oral evidence and therefore the
impugned judgment and Order passed by the learned Appellate
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Court is perverse. It is settled legal position that the First Appeal
has to be decided on the facts as well as law.
15. The Supreme Court in the case of Santosh Hazari Vs.
Purushottam Tiwari (Deceased) by LRs2, in paragraph No.15 has
held as follows :
"15. A perusal of the judgment of the trial court shows
that it has extensively dealt with the oral and
documentary evidence adduced by the b parties for
deciding the issues on which the parties went to trial. It
also found that in support of his plea of adverse
possession on the disputed land, the defendant did not
produce any documentary evidence while the oral
evidence adduced by the defendant was conflicting in
nature and hence unworthy of reliance. The first
appellate court has, in a very cryptic manner, reversed
the finding on question of possession and dispossession
as alleged by the с plaintiff as also on the question of
adverse possession as pleaded by the defendant. The
appellate court has jurisdiction to reverse or affirm the
findings of the trial court. First appeal is a valuable right
of the parties and unless restricted by law, the whole
case is therein open for rehearing both on questions of
fact and law. The judgment of the appellate court must,
therefore, reflect its conscious application of mind and
record findings d supported by reasons, on all the issues
arising along with the contentions put forth, and
pressed by the parties for decision of the appellate
court. The task of an appellate court affirming the
findings of the trial court is an easier one. The appellate
2 (2001) 3 SCC 179
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court agreeing with the view of the trial court need not
restate the effect of the evidence or reiterate the reasons
given by the trial court; expression of general
agreement with reasons given by the court, decision of e
which is under appeal, would ordinarily suffice (See
Girijanandini Devi v. Bijendra Narain Choudhary). We
would, however, like to sound a note of caution.
Expression of general agreement with the findings
recorded in the judgment under appeal should not be a
device or camouflage adopted by the appellate court for
shirking the duty cast on it. While writing a judgment of
reversal the appellate court must remain conscious of
two principles. Firstly, f the findings of fact based on
conflicting evidence arrived at by the trial court must
weigh with the appellate court, more so when the
findings are based on oral evidence recorded by the
same Presiding Judge who authors the judgment. This
certainly does not mean that when an appeal lies on
facts, the appellate court is not competent to reverse a
finding of fact arrived at by the trial Judge. As a matter
of law if the appraisal of the evidence by the trial g
Court suffers from a material irregularity or is based on
inadmissible evidence or on conjectures and surmises,
the appellate court is entitled to interfere with the
finding of fact. (See Madhusudan Das v. Narayanibai)
The rule is and it is nothing more than a rule of practice
that when there is conflict of oral evidence of the
parties on any matter in issue and the decision hinges
upon the credibility of witnesses, then unless there is
some special feature about the evidence of a particular
witness which has escaped the trial Judge's notice or
there is a sufficient balance of improbability to displace
his opinion as to where the credibility lie, the appellate
court should not interfere with the finding of the trial
Judge on a question of fact. (See Sarju Pershad Ramdeo
Sahu v. Jwaleshwari Pratap Narain Singh10) Secondly,
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while reversing a finding of fact the appellate court
must come binto close quarters with the reasoning
assigned by the trial court and then assign its own
reasons for arriving at a different finding. This would
satisfy the court hearing a further appeal that the first
appellate court had discharged the duty expected of it.
We need only remind the first appellate courts of the
additional obligation cast on them by the scheme of the
present Section 100 substituted in the Code. The first
appellate court continues, as before, to be a final court
of facts; pure findings of fact remain immune from
challenge before the High Court in second appeal. Now
the first appellate court is also a final court of law in the
sense that its decision on a question of law even if
erroneous may not be vulnerable before the High Court
in second appeal because the jurisdiction of the High
Court has now ceased to be available to correct the
errors of law or the erroneous findings of the first
appellate court even on questions of law unless such
question of law be a substantial one."
(Emphasis added)
16. The Supreme Court in the case of Vinod Kumar Vs.
Gangadhar3 has held as follows:
"15. Again in B.V. Nagesh v. H.V. Sreenivasa Murthy,
this Court taking note of all the earlier judgments of this
Court reiterated the aforementioned principle with
these words: (SCC pp. 530-31, paras 3-5)
"3. How the regular first appeal is to be disposed of
by the appellate court/High Court has been considered
by this Court in various decisions. Order 41 CPC deals
3 (2015) 1 SCC 391
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with appeals from original decrees. Among the various
rules, Rule 31 mandates that the judgment of the
appellate court shall state:
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or
varied, the relief to which the appellant is entitled.
4. The appellate court has jurisdiction to reverse or
affirm the findings of the trial court. The first appeal is
a valuable right of the parties and unless restricted by
law, the whole case is therein open for rehearing both
on questions of fact and law. The judgment of the
appellate court must, therefore, reflect its conscious
application of mind and record findings supported by
reasons, on all the issues arising along with the
contentions put forth, and pressed by the parties for
decision of the appellate court. Sitting as a court of first
appeal, it was the duty of the High Court to deal with
all the issues and the evidence led by the parties before
recording its findings. The first appeal is a valuable
right and the parties have a right to be heard both on
questions of law and on facts and the judgment in the
first appeal must address itself to all the issues of law
and fact and decide it by giving reasons in support of
the findings. (Vide Santosh Hazari v. Purushottam
Tiwari³, SCC p. 188, para 15 and Madhukar v. Sangram
SCC p. 758, para 5.)"
(Emphasis added)
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17. If the judgment of the learned Appellate Court is considered,
on the touchstone of above legal position, then it is clear that the
Appellate Court Judgment does not fulfill the above requirements.
The reasons of the Appellate Court are to be found in paragraphs-
15 to 20. The most relevant paragraph No.20, which reads as
under:
" 20. After going through the entire material placed
before us, especially the oral and documentary
evidence, we have reached to the conclusion that
Learned Trial Court has grossly erred in relying upon
the document at Exhibit 55 and documents
subsequently obtained based upon Exhibit 55. Learned
Trial Court should have asked defendant No. 1 to
compound Exhibit 55 if it was permissible. When a
document which is required to be registered
compulsorily and same is not so registered, then such a
document is not a good piece of evidence. The oral
evidence of PW2 is also of no use to plaintiff. There is
no explanation by PW2 as to why the Sales Tax
Department which generally never entertain
unregistered documents has entertained Exhibit 55 and
issued VAT Certificate in the name of Kalpesh Maru.
Hence, considering all these aspects, we answer Point
Nos. 1 to 4 in negative and Point No. 5 in affirmative.
Resultantly, we pass the following order."
18. Thus, it is clear that various crucial aspects are not taken
into consideration by the learned Appellate Court. The very
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important point for determination before the learned Appellate
Court is whether Defendant No.1 has sub-let the suit premises in
favour of the Defendant No.2 and parted with possession and not
whether the Sales-Tax Department has validly issued VAT
Certificate in the name of Defendant No.2- Kalpesh Maru. Thus,
the learned Appellate Court has completely mis-directed from the
point requiring determination before the learned Appellate Court.
19. For the above reasons, the Civil Revision Application is
disposed of by passing following Order:-
(i) The Judgment and Decree of the learned Appellate
Court dated 18th April 2023 passed in Appeal No. 135 of
2018 is quashed and set aside and said Appeal No.135 of
2018 is restored to the file of the Appellate Court of the
Small Causes Court, Mumbai.
(ii) Both the parties to appear before the learned
Appellate Court on 16th June 2025 and the learned Appellate
Court is requested to fix the schedule of hearing of the
Appeal.
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(iii) As the Appeal is of the year 2018, the learned
Appellate Court is requested to dispose of the Appeal
expeditiously on or before 31st December 2025.
20. It is clarified that the observations made in this Order are
with a view to consider the legality and validity of the Judgment
and Decree passed by the learned Appellate Court and all
contentions on merits of both the parties are expressly kept open.
21. Accordingly, Civil Revision Application is disposed of in
above terms, however, with no order as to costs.
22. At this stage, learned Counsel for the Respondent No.1 seeks
stay of this Order, however, in the facts and circumstances no case
is made out for grant of stay.
23. Respondent No.1 shall deposit before the learned Appellate
Court compensation fixed by the learned Appellate Court on or
before 10th day of each month. First such deposit shall be made on
or before 10th June 2025. The Respondent No.1 shall pay arrears
within a period of four months from today.
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24. As the Civil Revision Application is disposed of, nothing
survives in the Interim Application and same is also disposed of.
BHALCHANDRA (MADHAV J. JAMDAR, J.)
GOPAL
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