[Cites 7, Cited by 0]
Gujarat High Court
Kamleshbhai Baldevbhai Bhavsar vs Prafulbhai Gordhanbhai Patel on 5 December, 2025
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Reserved On : 21/11/2025
Pronounced On : 05/12/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 370 of 2019
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 1 of 2019
In R/CIVIL REVISION APPLICATION NO. 370 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
No
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KAMLESHBHAI BALDEVBHAI BHAVSAR & ANR.
Versus
PRAFULBHAI GORDHANBHAI PATEL & ANR.
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Appearance:
MS SD RAMI(1983) for the Applicant(s) No. 1,2
MR MRUGEN K PUROHIT(1224) for the Opponent(s) No. 2
REFUSED SERVED (N)(10) for the Opponent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
CAV JUDGMENT
1. This Revision under section 29(2) of the Bombay Rents,
Hotel and Lodging House Rates Control Act (for short "the Rent
Act") challenges the judgment and decree passed by learned
First Appellate Court in Regular Civil Appeal No.30 of 2010,
whereby, learned Appellate Court reversed judgment and decree
passed in regular Civil Suit No.134 of 2006 whereby learned
Trial Court has dismissed the suit, however, learned Appellate
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Court in appeal did not consider defendant of the suit to be
tenant of rented premises and directed him to hand over
peaceful and vacant possession within one month from the date
of order.
2. The appellant is original defendant and respondent is
original plaintiff. For convenience, they are referred as per their
status before the learned Trial Court.
3. Facts of the case are as under :-
3.1. Regular Civil Suit has been filed by the plaintiff landlord
before the learned Principal Senior Civil Judge, Nadiad under the
provisions of Rent Act for getting peaceful and vacant possession
of the suit shop which was rented to deceased Baldevbhai
Bhavsar. Suit shop is situated in Ward No.10 in Municipal
House No.1218. Plaintiff is owner of the suit shop. He had rented
suit shop to deceased Baldevbhai at monthly rent of Rs.300/-.
Deceased Baldevbhai died on 13.03.2001. According to plaintiff,
defendant - Kamleshbhai who is son of deceased Baldevbhai did
not carry bussiness of deceased Baldevbhai who was carrying
business of "Sweets and Savories". Thus, according to landlord,
in view of section 5(11)(c)(ii) of the Rent Act, Kamleshbhai son of
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deceased ceased to be tenant of the suit shop.
3.2. Upon aforesaid pleadings, plaintiff landlord claims
possession of suit shop from Kamleshbhai - appellant.
3.3. In written statement, contention has been denied. It is
further claimed that the rent of suit shop was Rs.200/- instead
of Rs.300/-. It is further stated that suit shop was given to
deceased Baldevbhai to do business not the exclusive business
of Sweets and Savories. It is contended that at the time of death
of tenant - Baldevbhai, defendant no.1 was carrying business in
suit shop and sitting with him; later on since business of Sweets
and savorier did not yield favourable, defendant started another
business of selling tea, which he has continued till filing of the
suit. Therefore, it is submitted that there is no breach of tenancy
condition nor provision of section 5(11)(c)(ii) of the Rent Act are
attracted and therefore, it was contended that suit be dismissed.
4. Learned Trial Court upon pleadings of parties framed
issues and ultimately believed that plaintiff has failed to prove
case and therefore, dismissed the civil suit filed by landlord on
30.03.2010. Being aggrieved and dissatisfied by judgment and
decree rendered by learned Civil Court, original plaintiff
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preferred Regular Civil Appeal No.30 of 2010 under the
provisions of Rent Act. Learned Appellate Court by judgment and
decree dated 30.03.2019 allowed the appeal and quashed and
set aside the judgment and decree passed in Regular civil Suit
and allowed the suit in tune of directing defendant Kamleshbhai
to hand over peaceful and vacant possession of suit ship to the
plaintiff and pay cost.
5. Being aggrieved and dissatisfied by judgment passed by
learned Appellate Court, defendants - Kamleshbhai and
Dineshbhai have preferred this Revision inter-alia on the
grounds mentioned in revision memo.
6. I have heard learned advocate Ms.Rami for the appellant -
original defendant and learned advocate Mr. Purohit for
respondent - original plaintiff also paid anxious consideration to
rival submission as well as records, also gone through the paper
book supplied.
7. Learned advocate Ms. Rami mainly contended that learned
Appellate court has misread the provisions of section 5(11)(c)(ii)
of the Rent Act. It is submitted that Kamleshbhai being son of
the tenant - Baldevbhai admittedly was doing business along
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with tenant at the time of his death and carried business,
thereafter, however, he could not continue business of sweets
and farsan on the ground that it did not yield any profit and
therefore, he started business of selling tea in the suit shop.
Learned advocate Ms.Rami further submitted that learned Trial
Court had discussed the issue in background of evidence led by
both sides and believed that plaintiff has failed to prove that on
operation of section 5(11)(c)(ii) of the Rent Act, defendant did not
get status of tenant. Further she submitted that learned
Appellate Court in its cursory reading of evidence erroneously
believed that defendant Kamlesh did not carry business of
sweets and savorier in the suit shop, thus, it amounts to change
of use as well as it amounts to breach of section 5(11)(c)(ii) of the
Rent Act. It is further submitted that landlord has not placed on
record rent note, alleged to have been executed between landlord
and tenant to say that only business of sweets and savorier can
be carried in the suit shop and no other business can be carried
in suit shop. She submits that in these circumstances, learned
Appellate Court has committed serious error in believing that on
operation of section 5(11)(c)(ii), the appellant - original defendant
did not get status of tenant and hence, liable to be evicted.
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7.1. In view of above submissions, it is submitted to allow the
Revision Application.
8. As against aforesaid arguments, learned advocate Mr.
Purohit submits that reading of evidence indicates that after
death of tenant - Baldevbhai in the year 2001, for considerable
long time, suit shop was closed. License to do business in the
suit shop was obtained in the year 2006 (Exh.26) which
indicates that after death of Baldevbhai his son has not carried
business and started another business in the year 2006. Thus,
word 'continue' employed in provision of section 5(11)(c)(ii) does
not satisfy. Deceased Baldevbhai was contractual tenant. Son of
Baldevbhai in order to claim tenancy under operation of section
5(11)(c)(ii) was required to establish that he was doing business
along with his father in father's life time and continued said
business after demise of his father. Further reading of evidence,
he would submit that learned Appellate Court rightly arrived to
conclusion that after demise of contractual tenant Baldevbhai
his son did not carry business and failed to meet with criteria
laid down in section 5(11)(c)(ii) of Rent Act and therefore, learned
Appellate Court has rightly passed decree of eviction. It is further
submitted that it is specific case of the plaintiff that suit shop
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was rented for the purpose of business of carrying sweets and
savorier, it could be established from deposition of plaintiff
which remained unchallenged in cross examination. Thus, son of
deceased Baldevbhai cannot carry any other business except
sweets and savorier, changing business thereof would amount to
not carrying business for which suit shop was rented. Therefore,
he submits that learned Appellate Court has rightly assessed
entire issue in favour of landlord. It is submitted that in limited
revisional jurisdiction, this Court may not interfere with the
findings arrived by learned Appellate Court.
9. Since entire issue revolves around section 5(11)(c)(ii) of the
Rent Act, let refer provision of Rent Act as under :-
(ii)in relation to any permission let for the purposes of
education, business, trade or storage, when the tenant dies,
whether the death has occurred before or after the
commencement of the said Act, any member of the tenant's
family using the premises for the purposes of education of
carrying on business, trade or storage in the premises, with
the tenant at the time of his death, or, in the absence of such
member, any heir of the deceased tenant, as may be
decided in default of agreement by the Court."
10. It is admitted position that suit shop was let for business.
It is again admitted position that appellant defendant is tenant's
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family. He is son of deceased - Baldevbhai. In view of section
5(11)(c)(ii) of Rent Act, this Court has to find out that whether
son of deceased Baldevbhai - tenant was doing business
alongwith prior to Baldevbhai's death and continued business
thereafter, in the suit shop.
11. To cater rival submission, let go to the oral evidence which
is pertinent in matter. Plaintiff landlord - Prafulbhai
Gordhanbhai entered into witness box at Exh.24. He has
deposed as per plaint. He has admitted in cross examination
that suit shop was let to deceased Baldevbhai, Kamleshbhai is
son of Baldevbhai. He has further admitted that when suit shop
was let to Baldevbhai, no rent agreement was executed. It is
further admitted that suit shop was let to deceased Baldevbhai
for doing business (not to do any particular business). It is
further admitted that initially suit shop was given on rent of
Rs.200/- per month but later on it is increased. He has further
admitted that as on date, Kamleshbhai being son of deceased is
doing business of selling tea in the suit shop. Apt to note that in
oral deposition, plaintiff tried to lead ground of sub-letting,
however, that ground was not pleaded in the plaint.
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12. Another witness examined by the plaintiff is Kamlesh Soni
at Exh.35. He is owner of business in name and style of 'New Art
Jewelry' situated near suit shop. In chief examination, he has
stated that when deceased Baldevbhai was doing business in
suit shop, defendant Kamleshbhai was sitting along with him. In
cross examination, he has sated that plaintiff - landlord has
helped him in getting shop on rent. Specific question was asked
to him that after death of Baldevbhai, his son Kamlesh is doing
business in suit shop, he replied that Kamleshbhai is doing
business jointly with another person. It is further admitted that
Dilipbhai - defendant no.2 is doing work of preparing tea. He
does not know whether Dilipbhai is employee of Kamleshbhai or
not.
13. To counter evidence of plaintiff, defendant no.1 -
Kamleshbhai entered into witness box at Exh.40. He deposed
that deceased Baldevbhai was contractual tenant in suit shop
and carrying business of sweets and savorier. He has further
admitted that after death of his father he closed business of
sweets and savorier as it did not yield any profit and started
business of selling tea. He further deposed in chief examination
that rent of suit shop initially was Rs.200/-. Firstly, his father
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and thereafter, his mother and thereafter plaintiff is paying rent
to landlord. After the year 2001, landlord has refused to accept
rent from him. Thereafter, he has send rent through money
order and he is ready and willing to pay entire rent. It is further
deposed in chief examination that he was doing business along
with his father since his age was 20 years and he continued
sitting with his father Baldevbhai till his father expired. He
continued doing business of sweets and savorier even after his
father passed away but due to loss he could not continue that
business, therefore, he changed business to selling tea. Dilipbhai
- appellant no.2 has been kept as servant and he is preparing
tea. He has further deposed that he has also obtained license
under Shop Establishment Act (Exh.27).
14. Now it is important to refer cross examination of appellant
- defendant no.1. Suggestion of landlord that father of appellant
- defendant no.1 was doing business of selling sweets and
savorier in the suit shop till his demise, is accepted. However, he
denied that business of selling sweets and savorier was done
only by his father. He has further admitted that after demise of
his father, he has not carried business of selling sweets and
savorier. He further denied that during life time of his father,
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business of selling sweets and savorier was closed. Suggestion
that presently, in the suit suit, Tea Post is running under name
of appellant - defendant no.1 is accepted.
15. Appellant - defendant no.1 has examined Chandrakant
Shah at Exh.49. He deposed that Kamleshbhai was sitting with
late Baldevbhai - contractual tenant. He further deposed that
Baldevbhai expired in the year 2001 and thereafter,
Kamleshbhai continued his business and since his business
suffered loss, he thereafter started business to sale bakery items
and thereafter, he has started business of selling tea. Going by
cross examination of this witness at nowhere it is suggested that
Kamleshbhai was not doing business with his father prior to or
subsequent to death of Baldevbhai.
16. Apart from above, no other significant evidence has been
placed on record.
17. Given the facts of the case, it remains undiluted that
Kamleshbhai is family member of deceased who was contractual
tenant. In the case of Sudalaimuthu v/s. Palaniyandavan [AIR
1966 SC 469], Hon'ble Apex Court relying on Webster's New
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World Dictionary observed that "family" would include a group of
people related by blood or marriage or relatives. Halsbury's Laws
of England referred in Brock v/s. Wollams [(1949) 2 KB 388], it
is stated that the expression 'member' of tenant's family' is
broadly construed, the test being whether an ordinary man
would answer affirmatively the question 'whether the person was
a member of the tenant's family?. The test is to be applied as at
the date of the tenant's death.
18. In the present case, it is admitted position that appellant is
son of deceased tenant and is member of tenant's family. He is
class I heir of deceased Baldevbhai. Examination of the
deposition of witness in this regard for more than one reason
indicates that he was doing business with his father and
continued business. In absence of contract creating tenancy
placed on record viz. Rent agreement, landlord cannot say that
son of tenant should not carry business other than business
carried by his father. Deceased tenant was doing business of
selling sweets and savorier but it is not incumbent upon his son
to continue same business to come within criteria of section
5(11)(c)(ii) of Rent Act.
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19. Admittedly, the appellant was paying rent, no other
member of family of deceased tenant claims tenancy rights. It is
to be inferred that normal mode of succession stated in CPC or
personal law would not be applicable in case of Rent Act. The
question arises that in case of death of tenant which of his
family member succeeds to his tenancy rights has to be decided
under section 5(11)(C)(ii) of Rent Act.
20. In view of aforesaid discussion, what could be noticeable
that landlord failed to establish operation of section 5(11)(c)(ii) in
the matter on hand. There is no evidence on record to say that
Kamleshbhai son of Baldevbhai did not carry business or was
not in business along with his father.
21. Judgment of learned Appellate Court is based upon
cursorily reading of evidence. Learned First Appellate Court
picked up certain statements from oral evidence of party and
perhaps carried away by the aspect that son of deceased is
carrying business of selling tea in suit shop instead of doing
business of selling sweets and savorier which his father was
doing, as such cannot be termed as tenant within purview of
section 5(11)(c)(ii) of Rent Act.
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22. At the cost of repetition, it has to be observed that in
absence of contract creating tenancy which may specify that
tenant has to carry any particular business in suit shop,
continuance of another nature of business in suit shop does not
imply that appellant who is carrying another business fails to fall
within definition of tenant in 5(11)(c)(ii). Learned Appellate Court
unfortunately could not read provisions of law on true
perspective.
23. It is to be noticed that landlord has not filed suit for
eviction on any other grounds available under section 12 and 13
of the Rent Act on the grounds alike change of use or non use of
suit shop. Landlord did not asked eviction of tenant on any
other grounds available under Rent Act, say ground of non use
or change of use etc. Apposite to note that in absence of
particular grounds, learned Appellate Court found that last since
four to five years, suit shop is closed and no business was
carried out, tenant has to vacate the possession of suit shop,
however, such finding is wholly erroneous. It is not even case of
plaintiff.
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24. In view of above, according to this Court, learned Appellate
Court has committed serious error in interpreting section 5(11)
(c)(ii) of Rent Act. Noticed that premises was let for business (not
of any particular business). Appellant - defendant no.1 was
member of tenant's family. Sift and weight of evidence on record
indicates that appellant was doing business since long time
along with his father and after demise of his father, he carried on
business of selling tea. Thus, the findings of learned Appellate
Court found perverse and arbitrary.
25. This Court is quite conscious that High Court has limited
jurisdiction in revision under section 29(2) of the Rent Act. This
Court could not re-appreciate the evidence but if learned first
appellate Court has committed mistake of law or decision is
based on no evidence, High Court may interfere with learned
Appellate Court's decision. In case on hand Findings of learned
Appellate Court is purely on conjunctures and surmises and
based on no evidence or based on total misreading of evidence.
Important evidence has not been attended by learned Appellate
Court in its true perspective which has been discussed
comprehensively by learned Trial Court. Thus finding of learned
Appellate Court is found perverse / erroneous.
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26. For the reasons stated herein-above, this Court finds that
judgment of learned Appellate Court is perverse and against
settled principle of law and thus, requires to be quashed and set
aside. Accordingly, present Revision Application is allowed.
Impugned judgment and decree passed by learned Appellate
Court in Regular Civil Appeal No.30 of 2010 dated 30.04.2019 is
hereby quashed and set aside and consequently, judgment and
decree passed by learned Trial Court in Regular Civil Suit
No.134 of 2006 dated 30.03.2010 is hereby restored. Record
and proceedings, if any, be send to learned Trial Court
concerned.
Order in Civil Application
Present Civil Application for additional evidence under
revisional jurisdiction is not maintainable. Learned advocate Ms.
Rami does not press present application. Accordingly, present
application stands disposed of.
(J. C. DOSHI,J)
SATISH
