Ghanshyambhai Manibhai Patel vs Visandas Thakumal Chelaramani
2021 Latest Caselaw 18535 Guj

    C/CRA/518/2016                                CAV JUDGMENT DATED: 17/12/2021



              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                R/CIVIL REVISION APPLICATION NO. 518 of 2016


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.G.URAIZEE
================================================================

1 Whether Reporters of Local Papers may be allowed No to see the judgment ?

2     To be referred to the Reporter or not ?                             No

3     Whether their Lordships wish to see the fair copy                   No
      of the judgment ?

4     Whether this case involves a substantial question                   No

of law as to the interpretation of the Constitution of India or any order made thereunder ?

================================================================ GHANSHYAMBHAI MANIBHAI PATEL & 1 other(s) Versus VISANDAS THAKUMAL CHELARAMANI ================================================================ Appearance:

MR SHAILESH C SHARMA(3450) for the Applicant(s) No. 1,2

================================================================ CORAM:HONOURABLE MR. JUSTICE A.G.URAIZEE

Date : 17/12/2021 CAV JUDGMENT

1. The judgment and order dated 08.06.2016 passed by 3 rd Additional District Judge, Panchmahals at Godhra in Regular Civil Appeal No.3/2013 whereunder judgment and decree dated 19.12.2012 passed by Additional Civil Judge, Godhra in Regular Civil Suit No.85/2007 came to be set aside and the appellant was directed to handover the possession of suit premises within 3 months is under challenge in this Revision Application under Section 29(2) of the Bombay Rent Act ('Rent Act' for short).

C/CRA/518/2016 CAV JUDGMENT DATED: 17/12/2021

2. The fats giving rise to the present revision as could be gathered from the impugned judgment and connected material are that the respondent is the owner of the property situated at Chitra Cinem Road, Super Market, Shop No.1 in the city of Godhra (hereinafter referred to 'suit premises'). The respondent no.1 let out the suit premises to the applicant No.1 at the rate of Rs.300/- rent per month on 1.10.1983. Rent at Exhibit-21 was executed by the petitioner No.1 in favour of respondent.

3. The respondent filed Regular Civil Suit No.85/2007 in the Court of learned Additional Civil Judge, Godhra against the petitioners for getting the decree of eviction of the suit premises on the ground of sub letting and bona-fide requirements of suit premises and for recovery of means profits at the rate of Rs.600/- till the possession of suit property.

4. Summons and Notices of the suit were duly served upon the appellants. However, they did not file any written statement. The trial Court, therefore, closed their right to file written statement vide order dated 26.11.2007.

5. The trial Court, after considering the oral and documentary evidence adduced by the parties, dismissed the suit. The respondent - landlord, therefore, preferred Regular Appeal No.3/2013 in the District Court, Panchmahals at Godhra. The learned 3rd Additional District Judge, Panchmahals at Godhra by his impugned judgment and order partly allowed the appeal and decreed the suit of the respondent and directed the petitioners to handover the possession within 3 months.

C/CRA/518/2016 CAV JUDGMENT DATED: 17/12/2021

6. The petitioners being aggrieved and dissatisfied with the impugned judgment and order of lower appellate Court have preferred the present Revision Application under Section 29(2) of the Rent Act.

7. I have heard Mr. Shailesh C. Sharma, learned advocate for the petitioners and Mr. Sunil K. Shah, learned advocate for the respondent.

8. Mr. Sharma, learned advocate vehemently submitted that the suit was not filed under Section 13(1)(e) of the Rent Act as there was no sub-tenancy. It is his submission that it was a simple case of assignment, and therefore, the lower appellate Court ought not to have set aside the decree passed by the trial Court and ought not to have decreed the suit. In support of his contention he has relied upon the citation (a) 2013 (2) GLR 1582, (b) 2014 (3) GLH 370, (c) 2007 (3) GLR 2030 for scope of Revision under Section 29 of Rent Act. He further submitted that the matter may be remanded to the trial Court for re-consideration as the right to file written statement by the petitioner No.1 was closed.

9. Mr. Shah, learned advocate has supported the impugned judgment and the lower appellate Court. He submits that the lower appellate Court had relied upon various decisions of Supreme Court and this Court and has recorded conclusion that the respondent landlord has successfully established on record that the petitioner No.1 has sub let the premises to the respondent No.2. It is his further contention that the petitioner No.1 - landlord did not enter into witness box and instead examined petitioner No.2 as his witness to prove that the petitioner No.2 is his servant and no sub tenant. However, neither petitioner No.1

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nor petitioner No.2 could by letting any cogent evidence established on record that the petitioner No.2 is the servant of petitioner No.1. He, therefore, submits that the impugned judgment and order of lower appellate Court does not warrant interference in this appeal.

10. It is an undisputed fact that the petitioner No.1 is the tenant of respondent. It is also an undisputed fact that notice and summons of the suit were served upon the petitioners. However, they had entered their appearance through their advocate. However both of them did not file any written statement. The trial Court, therefore, closed their right to file the written statement. The petitioners had never challenged that order nor had made any application in the trial Court for reopening their right to file written statement. It is also an undisputed fact that the petitioner No.1 tenant did not enter into witness box to give his evidence.

11. The learned trial Judge has exhaustively considered the evidence adduced by the parties and has also in detailed discussed the various decisions of Supreme Court and this Court on the issue of sub letting of the suit premises and has recorded as under:-

"17. Insofar as the ground of sub-letting is concerned, the plea that respondent No.1 - tenant is that the defendant No.2 is only the employees of the tenant who was examined at Ex.54. On appreciation of the testimony, it is found that the parting of possession to original respondent No.1 to 2 is established. Once the presence of third parties was found in the premises, in my view that the onus was on the tenant to explain his presence and in what capacity such person is in occupation of the suit shop.

On consideration of the submissions advanced by learned advocate for the parties, I am of the view

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that the impugned order of the learned Trial Court cannot be sustained. The presence of strangers being original respondent No.2 5 is not in dispute. The defence of the Defendant No.1-tenant is that the said defendant No.2 is his employee. In such a case, it was for the tenant to lead the evidence to show that such defendant No.2 is not sub-tenant but employees. But this plea was not supported by defendant No.1 as he did not enter into the witness box. He did not state the facts stated by D.W. 1 in his chief examination and on oath in the trial Court and avoided the witness box so that he may not be cross examined. This, by itself, is enough to reject the claim that the defendant No.2 is servant o defendant No.1.

18. Looking from different angle the issue for determination, therefore, which remained before the this Court is as to whether G had sub-let the premises to S. Consideration the rent note executed by G, so it can be said that the property was let out to g and without the written consent of the landlord, it was sub-let by G to S. It was also find that G and S were staying separately and S was found to be in exclusive possession of the suit shop and was doing business of milk product. It was further observed that from the rent note (Ex.21) it was clear that the suit shop was to be used by G only, but since he parted with possession thereof and S was found to be in exclusive possession, the case of sub-letting by G in favour of S was established. In the circumstances, the sub letting was duly established by G to S inviting the ground under Section 13(1)(e) of the Act. The defendant No.1- tenant does not enter into the witness box, an adverse presumption has to be draw against him under Sec.114(g) of the Indian Evidence Act. In my view learned trial Judge has not consider this aspect. Therefore, the impugned judgment and decree are erroneous, capricious and perverse. For the discussion herein above, i reply issue No.2 in the affirmative."

C/CRA/518/2016 CAV JUDGMENT DATED: 17/12/2021

12. The submission of Mr. Sharma, learned advocate that the matter may be remanded to the trial Court for fresh consideration as right to file written statement was closed cannot be accepted. It clearly emerges from the orders of the Court below that sufficient opportunity was given to the petitioners to file their written statements. However, except filing of their appearance through advocate, they did not take any steps to file reply. The order closing their right to file reply also attained finality as the petitioners never made any attempt to get the right opened by making an application to the trial Court. If the submission of Mr. Sharma, learned advocate is accepted and matter is remanded to the trial Court, it would give premium to indolent litigants who slept over their right to file reply. The act on the part of the appellants of not filing written statement to oppose the suit is fatal. Effect of non filing of written statement by the appellants amounts to admission under Order 8 Rule 7 of the Code averments made in the plaint.

13. Not only that, the lower appellate Court has exhaustively dealt with the aspect of sub letting and by assigning cogent, convincing and sound reasons relying upon various decisions of the Supreme Court and this Court has recorded a conclusion that the respondent - landlord has successfully established on record that the petitioner No.1 has sub let the suit premises to the petitioner No.2. It also emerges from the impugned judgment of lower appellate Court that though the petitioner No.2 stated in his evidence that he proposed to examination one of the owners of the surrounding shops to establish that he is the servant of petitioner No.1, thereafter he did not examine any of surrounding shops and miserably failed to prove that he is

C/CRA/518/2016 CAV JUDGMENT DATED: 17/12/2021

the servant of petitioner No.1-tenant.

14. Considering the overall facts and evidence available on record, I am of the opinion that the reasons recorded by the lower appellate Court do not warrant interference in this appeal and the impugned judgment and order of the lower appellate Court does not call for any interference in this Revision Application.

15. Considering the overall facts and evidence available on record, I am in complete agreement with the reasons recorded by the lower appellate Court for setting aside the judgment and order of the trial Court. The impugned judgment and order of the lower appellate Court, therefore, does not warrant any interference in this Revision Application.

16. For the foregoing reasons, the Revision Application fails and is hereby dismissed. The petitioners are directed to hand over the possession of the suit premises to the respondent within 4 months from today. The petitioners are directed to file undertaking to this effect in this Court within two weeks from today.

17. The parties are left to bare their own costs.

18. Record and Proceedings, if summoned, be remitted to the trial Court forthwith.

(A.G.URAIZEE, J)

Manoj