Gujarat High Court
L H And Representative Of Decd. ... vs L H And Representative Of Decd. ... on 12 August, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 123 of 2020
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L H AND REPRESENTATIVE OF DECD. MOHANBHAI TULSIBHAI
GANGANI, VASANTBHAI MOHANBHAI GANGANI
Versus
L H AND REPRESENTATIVE OF DECD. DHIRAJLAL VIKANI - SAROJBEN
ALIAS SAVITABEN DHIRAJLAL VIKANI
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Appearance:
VMP LEGAL(7210) for the Applicant(s) No. 1
MR P S DATTA(11324) for the Opponent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 12/08/2025
ORAL ORDER
1. The present Revision Application is filed under Secion
29(2) of the Bombay Rents, Hotel & Lodging House Rates
Control Act, 1947 (for short "the Bombay Rent Act"),
challenging the judgment and order dated 23.10.2019, passed by
the 12th Additional District Judge, Rajkot, dismissing the
Regular Civil Appeal No.88 of 2015, filed by the landlord and
confirming the judgment and decree dated 21.08.2015, passed
by the Small Causes Court, Rajkot whereby the eviction suit
being Regular Civil Suit No.88 of 2009, has been allowed.
2. Both the parties have argued only on the point of
subletting and the issue of arrears of rent has not been argued
before this Court.
3. For the sake of convenience, the parties are referred to as
per their original status as that in the suit.
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4. The brief facts arising in the present Revision Application
are that, the plaintiff being the owner of the suit property, filed a
Suit for eviction on the ground that the suit property was given
on rent to the defendant to carry out business in the name of
Bharat Cycle Auto Service and as per terms and conditions of
the rent note produced vide Exhibit-22, the defendant is not
entitled to sublet the suit property and in complete breach of rent
note, the defendant has sublet the said shop and the defendant is
not doing business in the suit shop since last five years and that
the defendant has not paid the rent since last six months, hence,
notice was served upon the defendant on 20.08.2008, and
thereafter, the plaintiff filed the suit for eviction on the ground
of subletting of the suit premises by the defendant and on the
ground that the defendant is in arrears of rent for more than six
months and that the defendant has committed breach of terms of
tenancy, the trial Court framed following issues, vide Exhibit-13
as under:-
(i) Whether the plaintiff proves that defendant has subleted
the rented premises?
(ii) Whether the plaintiff proves that the defendant is a tenant
in arrears of rent for more than 6 months and on ground of non-
payment of rent plaintiff is entitled to get possession of rented
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shop?
(iii) Whether the plaintiff proves that the defendant has
committed breach of terms of tenancy by doing other business?
(iv) Whether the defendant proves that his younger brother is
doing business as member of joint family and on that ground he
has right to use the rented shop?
(v) Whether defendant proves that he is/was ready and willing
to pay the rent?
(vi) Whether the plaintiff is entitled to get relief as prayed for in
para-10(1) to (3) of the plaint?
(vii) What order and decree?
5. It was the case of the defendant that the suit property has
not been sublet by the defendant and that his brother is only
assisting in his business because of ill health of the defendant.
6. The plaintiff entered witness box, vide Exhibit-15, the
defendant examined himself, vide Exhibit-33 and wife of the
defendant was examined, vide Exhibit-52 and after taking into
consideration the oral evidence and documentary evidence and
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giving findings on all the issues, the trial Court dismissed the
said suit filed by the plaintiff-landlord.
7. Aggrieved by the said judgment and decree, the plaintiff-
landlord filed appeal before the appellate Court and after
reappreciating the evidence the first appellate Court dismissed
the said appeal. Hence, the present Civil Revision Application.
8. Learned advocate for the plaintiff has mainly argued that
the rent note produced, vide Exhibit-22 clearly indicates that the
possession of the suit property is given to the defendant and that
he himself will have to do the business in the suit premises and
that the defendant shall not sublet or shall not enter into any
partnership and/or permit any other person to do business in the
suit premises and it is the case of the plaintiff that original
defendant himself was not doing business in the suit premises
and that his brother has been occupying the premises, and
therefore, the defendant without the consent of the plaintiff has
sublet the suit pemises to his brother and defendant himself is
not doing business in the suit premises since five yeas. It has
been argued by learned advocate for the plaintiff that the rent
note, produced vide Exhibit-22 is very clear and as per condition
No.2, the defendant himself was allowed to do business in the
suit premises and that he is not allowed to sublet the same. The
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learned advocate for the plaintiff has also argued that in view of
the fact that the original tenant was doing another travelling
business can clearly be established from the newspaper article
produced, vide Exhibit-26, and therefore, the trial Court and the
appellate Court could not have dismissed the claim of the
plaintiff for eviction under section 13(1)(E) of the Bombay
Rentt Act. The learned advocate for the plaintiff has also argued
that the trial Court has come to the conclusion that the defendant
has proved that his younger brother was doing his business as a
member of joint family, but the fact remains that at the time
when the suit was filed and a decree was passed, the original
tenant i.e. Dhirajlal Dayalal Vikani was alive, and therefore, the
question of considering the defendant's brother as a tenant could
not have arisen.
9. Moreover, it has been argued that the trial Court could not
have come to the conclusion that younger brother of the original
tenant i.e. the original tenant/defendant was doing business as a
member of joint family and he has right to use the rented shop
for the time original tenant is alive. Learned advocate for the
plaintiff has argued that the trial Court could not have come to
the said conclusion in view of the fact that the rent note
specifically states that the original tenant i.e. Dhirajlal Dayalal
Vikani was considered a tenant of the suit premises. It is not the
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case that the suit premises was given to the HUF Dhirajlal
Dayalal Vikani. Moreover, it has also been argued that during
the lifetime of the original tenant, the povisions of Section-5(11)
(C)(1) of the Bombay Rent Act could not be considered.
Moreover, the trial Court has taken into consideration the
provisions of section-5(11)(C)(1) of the Bombay Rent Act could
not be considered, in view of the fact that, the suit property is
not a residential premises, and therefore, it has been argued that
the judgment and decree passed by the trial Court and confirmed
by the appellate Court are required to be quashed and set aside.
10. Per contra, learned advocate for the defendant has mainly
argued that the entire case of the plaintiff is on the ground that
the defendant has sublet the suit property to his brother, but
there is no iota of evidence produced by the plaintiff to show
and suggest the said fact, that the original defendant has sublet
the suit property and that suit property is being used by the
brother of defendant. Learned advocate for the defendant has
also argued that even in the cross-examination of the plaintiff,
produced vide Exhibit-15, he himself has stated that since last
five years, he has seen defendant's brother Jagdishbhai Vikani
@ Brajlal in the suit premises. The witness of the defendant,
vide Exhibit-52 has also deposed before the Court that original
tenant Dhirajlal Dayalal Vikani is doing the cycle repairing
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work in the name of Bharat Cycle Auto Service, since 28 to 30
years and his brother Jagdishbhai Vikani is also doing the same
work from the suit property. Moreover, it has been argued that
no any cognate evidence is poduced by the plaintiff to show that
the suit premises has been sublet by the defendant to his brother.
It has also been argued by the learned advocate for the defendant
that, the judgment and decree passed by the trial Court and
confirmed by the first appellate Court does not require any
interference and in view of the same, the present Revision
Appliction requires to be rejected.
11. Having heard learned advocate for the parties and having
considered the judgment and decree passed by the trial Court
and confirmed by the first appellate Court, the fact remains that
as per the rent note produced, vide Exhibit-22, the suit property
was given on rent by the plaintiff to the original tenant i.e.
Dhirajlal Dayalal Vikani and the terms and conditions of the
said rent note very clearly states that the original tenant will do
the business himself in the suit property in the name of Bharat
Cycle Auto Service and he will not sublet the suit property
and/or enter into a partnership.
12. At the time when the appeal was filed and the appeal was
decided, the original defendant had expired, and thereafter, the
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wife of the original tenant has been joined in the appeal. The
fact remains that if the entire defence of the defendant, oral
evidence and documentry evidence of the defendant are perused,
it is the case of the defendant in his written statement that the
original tenant i.e. defendant himself is doing business in the
suit premises and that his brother is assisting in the said
business. The fact remains that the burden to prove that the
defendant has sublet the suit property is on the plaintiff and even
in the oral evidence and/or by any documentry evidence, the
plaintiff has not proved the said fact that the suit property is
sublet by the original tenant to his brother. Even in the oral
evidence of Dhirajlal Dayalal Vikani, he has stated that he has
started business in the suit premises in the name of Bharat Cycle
Auto Service and since the year 1982 his brother is sitting with
him and is doing the cycle repairing work in the suit premises
with him and has stated that the possession of the suit premises
is with the defendant and that his brother is a member of joint
hindu family.
13. In view of the aforesaid fact, the issue before this Court is
that, in the facts of the present case, the plaintiff has miserably
failed to prove that the defendant original tenant has sublet the
suit property to his brother but at the same time, the trial Court,
duing the lifetime of original tenant could not have come to the
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conclusion that, under the povision of Section-5(11)(C)(1) of the
Bombay Rent Act, the brother of the original tenant is a tenant
as he is a member of joint hindu family of the original tenant.
14. The fact remains that the povision of Section-5(11)(C) of
the Bombay Rent Act only come into operation after the death
of original tenant and the suit property admittedly being not a
residential property, the provision of Section-5(11)(C)(1) of the
Bombay Rent Act could not have been taken into consideration
by the trial Court. Section-5(11)(C)(1) of the Bombay Rent Act
is reproduced herein as under:-
"Section-5(11)(c)(i) - in relation to premises let for
residence, any member of the tenants' family residing
with the tenant at the time of, or within three months
immediately preceding, the death of the tenant as may
be decided in default of agreement by the Court."
15. Therefore, provisions of Section-5(11)(C)(1) of Bombay
Rent Act will have to be taken into conisderation after the tenant
expires and even if the property is a residential property, the
legal heirs of deceased tenant will have to prove that they were
residing with the original tenant at the time of his death and
under Section-5(11)(C)(2) of the Bombay Rent Act, the legal
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heir of deceased tenant will have to prove that at the time of
death of original tenant they were doing business with the
original tenant. The facts of the present case are that the wife of
original tenant is alive, and therefore, it is not disputed that the
original tenant Dhirajlal Dayalal Vikani has expired, thereafter
the fact of Section-5(11)(C) of the Bombay Rent Act will only
come into existance on the death of Dhirajlal Dayalal Vikani,
therefore, the said observations with respect to issues No.4 are
as under:-
"[14.7] At this stage it is required to red the sec.
5(11)(c)(i) of the Bombay Rent Act., which is as
under:-
Section - 5 : Definition:-
In this Act unless there is anything
repugnanat to the subject or context-
(11) "tenant" means any person by whom or on
whose account rent is payable for any premises and
includes -
(c)(i) in relation to premises let for residence, any
member of the tenan's family residing with the
tenantt at thetime of, or within three months
immediately preceding, the death of the tenant as
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may be decided in default of agreementt by the
Court, and
[14.8] In light of the aforesaid provision and
as Having perused the evidence, I am of the
considered opinion that, defendant proved that, his
younger brother is doing business as member of
jont family and he has right to use the rented
shop."
16. The findings of Issue No.4 on the fact that the plaintiff has
not proved the fact that the defedant No.1 has sublet the suit
property to his brother, and therefore, there are concurrent
findings to that effect, the said findings are not required to be
disturbed.
17. The trial Court could not have come to the conclusion that
during the life time of the original tenant his brother assisting
him also cannot be considered as a tenant in view of the fact that
he was assisting the original tenant and in view of the fact that
the original tenant has expired there are change of circumstances
by which niether his wife is doing business in the suit premises
nor any other family members are doing business, and therefore,
the fact remains that even after the death of the original tenant,
can the brother still be considered as a tenant under the
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provisions of secion 5(11)(C) of the Bombay Rent Act or a
trespasser and in view of the changed circumstance the said
observaions made by the Court while deciding Issue No.4 could
not have been taken in view of the fact that at the time of the
suit the original tenant was alive, in view of the same, the said
issue "whether the brother of the original tenant can be
considered as a tenant under the provision of section 5(11)(C) of
the Bombay Rent Act and/or as a trespasser after the death of
original tenant" can only be decided in another proceedings that
may be filed by the plaintiff and the said findings arrived at by
the Court will not come in the way of plaintiff.
18. In view of the above, the judgment and decree passed by
the trial Court and confirmed by the first appellate Court are
required to be modified to the extent of issue No.4 and in view
of the fact that original tenant has expired and only after his
death, the provision of Section-5(11)(C) of the Bombay Rent
Act can be considered, this Court is of the view that the trial
Court and the first appellate Court could not have given findings
that the brother of the defendant being a member of the joint
hindu family can be considered as a tenant, and therefore, on the
death of the original tenant a new right accrued on the landlord
to seek eviction of the person holding possession of the
premises. The landlord can initiate a fresh suit for evicion on the
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ground that after the death of the original tenant, no family
member was at the time of the death of the tenant, carrying of
business in the said premises, and therefore, the said liberty is
given to the landlord to initiate appopriate proceedings against
the person occupying the pemises on the ground and if the said
suit is filed, the trial Court to decide the same taking into
consideration whether the said person can be considered as a
family member of the original tenant and whether he was doing
business with the tenant at the time of his death.
19. In view of above findings, present Civil Revision
Application is dismissed.
(SANJEEV J.THAKER,J)
Manoj Kumar Rai
