Gujarat High Court
Jayantilal Chimanlal Shah vs Ahmedabad Sheth Anandji Kalyanji Firm, ... on 12 August, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 207 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER Sd/-
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Approved for Reporting Yes No
✔
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JAYANTILAL CHIMANLAL SHAH & ORS.
Versus
AHMEDABAD SHETH ANANDJI KALYANJI FIRM, AHMEDABAD & ORS.
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Appearance:
MR NILESH M SHAH(780) for the Applicant(s) No. 1,1.1,1.2
DELETED for the Opponent(s) No. 1.1,1.2,1.4,1.5
MR VIMAL A PUROHIT(5049) for the Opponent(s) No. 1.3
NOTICE SERVED for the Opponent(s) No. 1.10,1.11,1.6,1.7,1.8,1.9,2
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 12/08/2025
ORAL JUDGMENT
1. The present Revision Application is filed under Section29(2)
of the Bombay Rents, Hotel and Lodging House Rates Control
Act, 1947 (for short "the Rent Act" ), aggrieved by the
judgement and decree passed in Regular Civil Appeal No.99
of 2004 dated 27.10.2017, whereby the Appellate Bench of the
Small Causes Court, Ahmedabad has dismissed the appeal on
27.10.2017 and confirmed the judgement and decree passed by
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Trial Court No.9, Small Causes Court, Ahmedabad in HRP
suit No.1353 of 1995 dated 20.07.2004.
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 the suit of eviction on
the ground that the defendant has acquired alternative
accommodation at Vardhmaan Flat, III Floor, Paldi,
Ahmedabad, and therefore, as a defendant No.1 has found
alternative accommodation, the plaintiff has sought for relief
of eviction under the provisions of Section 13(1)(l) of the Rent
Act, moreover, it is the case of the plaintiff that defendant no.1
has sublet the property to defendant no.2, and therefore also
the plaintiff is entitled for possession of the property under
Section 13(1)(e) of the Rent Act and that as the suit premises
has not been used without reasonable cause for the purpose for
which it was let for a continuous period of six months,
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immediately preceding the date of suit, the plaintiff is entitled
for possession of the premises under Section 13(1)(k) of the
Rent Act.
4. The plaintiff examined-Purshottambhai Hargovinddas Patel,
vide Exhibit 42, the Court Commissioner and the Officer of
Ahmedabad Electricity Company and the liftman and
pumpman were examined vide Exhibit 48, 63 and 68
respectively. The defendant no.1 examined himself vide
Exhibit 75, the Trial Court framed issues vide Exhibit 39
which are as under:
"1.Whether the plaintiff proves that
defendant no.1 has acquired vacant
possession of suitable residence as
alleged?
2. Whether the plaintiff proves that
defendant no.1 has unlawfully sublet,
assigned or otherwise transferred the
suit-premises to defendant no.2 and
thereby profiteering?
3. Whether the plaintiff no.1 proves that
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the premises have not been used without
reasonable cause for the purpose for
which it was let out for a continuous
period of six months immediately
preceding the date of suit?
4. What order and decree?"
5. After considering the oral evidence and the documentary
evidence and giving finding on all issues, the Trial Court
decreed the said suit and held that the defendant no1 has sublet
the suit property to defendant no.2, the defendant No.1 has an
alternative accommodation and that the defendant no.1 is not
using the suit premises for the purpose for which it was let, for
a continuous period of six months immediately preceding the
date of suit and therefore, a decree was passed under Sections
13(1)(e), 13(1)(k) and 13(1)(l) of the Rent Act. Aggrieved by
the said order, the defendant filed Regular Civil Appeal No.99
of 2004 and after appreciating the evidence, the Appellate
Court dismissed the said appeal, hence, the present Civil
Revision Application.
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Submissions of the learned advocate for the defendant:
6. Learned advocate for the defendant has mainly argued that the
Trial Court and the Appellate Court have not considered the
oral evidence and the documentary evidence produced by the
defendant and have come to an erroneous finding that the
plaintiff has proved that the defendant has an alternative
accommodation. The Trial Court and the Appellate Court have
not considered the fact that the plaintiff has not proved that the
said alternative accommodation i.e. property situated at
Vardhmaan Flat, III Floor, Paldi, Ahmedabad does not belong
to the defendant no.1, and the same belongs to the son of
defendant no.1, and therefore, the said property cannot
considered as alternate accommodation.
7. The Trial Court and the Appellate Court have also not
considered the fact that the entire property has not been given
to defendant no.2, and the defendant no.1 still occupies the suit
property and therefore also, it cannot be said that defendant
no.1 has sublet the suit property to defendant no.2.
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8. With respect to the fact that the plaintiff is not using the suit
property for the purpose for which it was let for a continuous
period of six months preceding the filing of the suit, the Trial
Court and the Appellate Court have not taken into
consideration that defendant no.1's son had a kidney problem,
and his wife had donated kidney to the son, and therefore the
defendant no.1 had to go to Nadiad to take medicine for his
wife at regular interval and therefore, he was not occupying
the suit premises. The Trial Court and the Appellate Court
could not have relied on the statement of accounts of
electricity burning of the suit property produced vide Exhibits
65 and 66 to prove that the suit property was not used from
04.08.1993 to 04.12.1996, and therefore, the Trial Court and
Appellate Court could not have allowed the said suit and
granted a decree of eviction.
Submissions of learned advocate for the plaintiff:
9. Per contra, learned advocate for the plaintiff has argued that
there are concurrent finding of the Trial Court and the
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Appellate Court on the fact that the plaintiff has proved that
the defendant has not used the suit premises for the purpose
for which it was let for the last six months preceding the date
of filing the suit, the plaintiff has also proved that the
defendant has an alternative accommodation and that the
defendant no.1 has sublet the suit property to defendant no.2
and therefore as all the above referred are on factual aspect,
the scope of the revision under Section 29(2) of the Rent Act
being very limited, the present Civil Revision Application is
required to be dismissed.
Analysis:
10. Having heard learned advocates appearing for the
respective parties and having considered the judgment and
decree passed by the Trial Court and confirmed by the
Appellate Court, the fact remains that defendant no.1 himself
in his Cross-examination, admitted the fact that the alternative
premise at the Vardhmaan Flat is running in his name, though
it has been argued that the said premises at Vardhmaan Flat
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has been acquired by his son Dakshesh and that defendant's
son has gone to reside at the alternative premises at
Vardhmaan Flats, but the fact remains that there are no
evidence on record to show that defendant's son has built the
premises of Vardhmaan Flat from his own income. The other
fact that has been stated is that the said alternative premises at
Vardhmaan Flat is sufficient for the entire family to be
accommodated, from the Court Commissioners Report
produced vide Exhibits 49 and 50, it has come on record that
the alternative premises at Vardhmaan Flat is consisting of
three rooms, kitchen, bathroom and latrine and therefore, it
cannot be said that the said premises is not sufficient for the
defendant no.1's family to be accommodated. Moreover, it has
also come on record that the size of defendant's family and
premises at Vardhmaan Flat is sufficient for the needs of the
family and therefore, the Trial Court has rightly held that in
view of the fact that defendant No.1 has acquired vacant
possession of suitable residence, the plaintiff is entitled for a
decree of eviction under the provisions of Section 13(1)(l) of
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the Rent Act.
11. The Trial Court has also passed a decree on the ground
that the defendant no.1 has sublet the suit property to
defendant no.2. The fact remains that from the evidence, it is
proved that defendant no.2 is exclusively occupying the suit
premises. The defendant himself has admitted in his cross-
examination that defendant no.2 has been residing in the suit
premises with his wife and children though, the defendant no.1
has tried to establish that defendant no.2 is not exclusively
occupying the suit premises, but there is nothing on record to
show that defendant no.2 is not exclusively occupying the
premises. Moreover, with respect to the consideration.
12. In the present case, there is a clear evidence that
defendant no.2 is in possession of the suit property. In the
present case, it has been proved beyond doubt that exclusive
possession of the suit premises has been handed over by
defendant No.1 to defendant No.2, it would be difficult fo the
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landlord to prove, by direct evidence, the contract or
agreement or understanding between the tenant and the sub-
tenant. It would also be difficult for the landlord to prove, by
direct evidence, that the person to whom the property had been
sub-let had paid monetary consideration to the tenant. Since,
payment of monetary consideration may have been made
secretly, the law does not require such payment to be proved
by the affirmative evidence and the Court is permitted to draw
its own inference upon the facts of the case proved at the trial
including the delivery of exclusive possession to infer that the
premises were sub-let. Therefore, as in the present case
exclusive possession was established. It would not be
impermissible for the Court to draw an inference that the
transaction was entered into with the monetary consideration
in mind. The transaction in the present case is of sub-letting
between the tenant and the sub-tenant and there cannot be
furnished direct evidence in every case. In this case, it has
been established by the plaintiff as a fact that the tenant has
parted with the possession of the suit premises and defendant
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No.2 has exclusive possession of the premises, and therefore,
the Court can draw an inference that the transaction must have
been entered into for monetary consideration.
13. In view of the said fact, the Trial Court has rightly
granted decree of eviction of the defendant from the suit
property under the provision of Section 13(1)(e) of the Rent
Act.
14. With respect to the fact that the plaintiff has proved that
defendant has not been using the property for the purpose of
which it was let for a continuous period of six months
preceding the filing of the suit, the same can be proved by the
electricity consumption statement produced vide Exhibits 65
and 66 wherein from Exhibit 65, it can be seen that the suit
property not used from 04.08.1993 to 04.12.1996, moreover,
defendant no.1 has also admitted in his cross-examination that
nobody has used the suit property from 01.01.1995 to
08.09.1995, therefore, it can be clearly established that when
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the suit was filed on 08.09.1995, the suit premises has not been
used for the purpose for which it was let out for a continuous
period of six months immediately from the date of suit.
15. The fact remains that initial burden to show that the
tenant has seized to occupy the suit premises continuously for
period of 6 months is always on the landlord and he has to
adduce tangible evidence to prove the fact that as on the date
of filling the petition, the tenant was not occupying the suit
premises continuously for the period of 6 months. Once such
evidence is adduced, the burden shifts on the tenant to prove
that there was reasonable cause for him having ceased to
occupy the tenanted premises for continuous period of 6
months and once the premises have been shown by evidence to
be not in occupation of the tenant, the pleading of the landlord
that such non-user is without reasonable cause has the effect of
putting the tenant on notice to plead and prove the availability
of reasonable cause for ceasing to occupy the tenancy
premises.
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16. In the present case, the plaintiff had only to satisfy the
court that he has pleaded and proved the non-user of the suit
premises for a continuous period of 6 months immediately
preceding the date of filing of the suit and as the plaintiff has
established his claim, the onus shifts to the tenant to establish
that his default which rendered him liable to eviction was
condonable by the Court because of reasonable cause.
17. In the present case, the defendant did not take defense in
the pleading that the suit premises remained unused because of
the reasonable cause, but his case is that the business never
remained closed, nor there was any non-use till the date of
institution of the suit. The tenant tried to lead evidence to
prove that the suit property was continuously in use.
18. In view of the same, the Trial Court has rightly granted a
decree of eviction under Section 13(1)(k) of the Rent Act.
19. Therefore, on the basis of overall analysis of the material
on record, on the basis of conclusion that has been referred to
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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 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 are according to law and does not suffer from any abuse
of law. The findings recorded by the Court below if perverse
or have 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
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entitled to set aside the impugned order as being not legal or
proper.
20. The High Court can not interfere with the finding of
facts recorded by the first Appellate Court. 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.
21. 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 not used the suit premises for
the purpose for which it was let without reasonable cause for a
period of six months immediately preceding the date of suit,
and has sublet the property to defendant no.2 and that the
defendant no.1 has acquired suitable alternative accomodation
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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.
22. 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 passed by the Trial
Court, the present Revision Application requires to be
dismissed and it is dismissed accordingly.
Sd/-
(SANJEEV J.THAKER,J)
URIL RANA
