Gujarat High Court
Nikhil Dilipkumar Trivedi vs Indiraben Wd/O Pramukhlal Chimanlal ... on 5 February, 2025
NEUTRAL CITATION
C/CRA/41/2025 ORDER DATED: 05/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 41 of 2025
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NIKHIL DILIPKUMAR TRIVEDI & ORS.
Versus
INDIRABEN WD/O PRAMUKHLAL CHIMANLAL PATE & ORS.
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Appearance:
MR JK PARMAR(587) for the Applicant(s) No. 1,2,3
MR HASMUKH C PATEL(1040) for the Opponent(s) No. 1,2,3
SIDDHARTH G PATEL(8880) for the Opponent(s) No. 1,2,3
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 05/02/2025
ORAL ORDER
1. The present Civil Revision Application has arisen
challenging the Judgment and decree passed in Civil
Appeal no.92 of 2011 by the Appellate Bench of Small
Cause Court, Ahmedabad wherein by an order dated
18.10.2024, the said appeal was allowed and the order
passed by the Trial Court in HRP Suit no.1085 of 2008
was quashed and set aside and the applicants were directed
to handover, vacant and peaceful possession of the
premises to the respondents within 90 days henc the
present Civil Revision Application under Section 29 of the
Bombay Rents, Hotel and Lodging House Rates Control
Act, 1947.
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2. For the sake of brevity and convenience. the parties are
referred to as plaintiff and defendants.
3. The plaintiffs had filed HRP Suit no.1085 of 2008, under
Bombay Rents, Hotel and Lodging House Rates Control
Act, 1947 (for short "the Act"). It was the case of the
plaintiff before the Trial Court that the plaintiff is the
owner of the suit property and the tenant of the property
was one Dilipbhai Mahendrabhai Trivedi and the property
was given to Dilipbhai Mahendrabhai Trivedi at monthly
rent of Rs.150/- and the suit premises was used for
commercial purpose by late Dilipbhai Mahendrabhai
Trivedi and the said premises was a shop which was to be
used for radio sales and services. The said suit was filed
for eviction on the following grounds (i) The defendant
has made unlawful structure and alteration without the
plaintiff's consent and cannot be removed without causing
serious damage to the premises (ii) The defendant nos.1
and 2 have unlawfully sublet the suit premises and have
committed breach of the tenancy (iii) The plaintiff
reasonably and bonafidely requires the suit premises for
his own use and occupation.
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4. After leading oral evidence and considering the
documentary evidence and after framing issues vide
Exhibit-20 the HRP Suit no.1085 of 2008 was dismissed
and therefore the plaintiffs filed Civil Appeal no.92 of
2011 and the Appellate Court after re-appreciating the
evidence allowed the appeal and quashed and set aside the
order passed in HRP Suit no.1085 of 2008 and directed the
defendant to handover the peaceful possession of premises
within a period of 90 days under the provisions of Section
13(1)(e) of the Act as the Court on re-appreciating the
evidence came to a finding that the defendant has sublet
the suit premises to defendant no.3 hence, the present Civil
Revision application.
5. Heard learned advocate for the defendant who has mainly
argued that order dated 18.12.2024 is illegal and Appellate
Court has decided the same without following the
principles of natural justice. It has also been argued that
the suit premises have been given on rent to defendants
and the defendants are paying regular rent before the Court
and the defendants are carrying on business in the
premises and that the suit premises is not vacant. The
defendant has also argued that the Appellate Court has not
considered that the father of the defendant nos.1 and 2 has
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executed a power-of-attorney in favour of defendant no.3
and thereby the defendants are tenants of the premises and
therefore, it has been argued that the Trial Court after
appreciating evidence has come to a right conclusion that
the plaintiff has miserably failed to prove that the suit
property has been sublet by the tenant.
6. Learned advocate for the plaintiff Mr.Hasmukh C.Patel
has relied upon the judgment passed by the Appellate
Court and has stated that the Appellate Court after
re-appreciating the evidence has come to the right
conclusion and therefore judgement and decree passed by
the Appellate Court cannot be quashed and set aside.
7. Having heard learned advocates for the parties and after
perusing the judgement and decree in Civil Appeal no.92
of 2011, the undisputed facts are that the suit property was
let to Dilipbhai Mahendrabhai Trivedi and said Dilipbhai
Mahendrabhai Trivedi carried out business in the name of
M/s. Mahendra Radio Sales and Service and his son
defendant no.1 and 2 did not carry out any business in the
suit property at any point of time. Defendant nos.1 and 2
have got no tenancy rights under the provisions of Section
5 (11)(c)(2) of the Act. It is also an admitted position that
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during the lifetime of late Dilipbhai Mahendrabhai Trivedi
by way of power-of-attorney executed on 31.01.2000, he
handed over the possession of the suit premises and
business of M/s.Mahendra Radio Sales and Service to his
uncle i.e. defendant no.3 and defendent no.3 is doing
business in the suit premises in the name of M/s.Mahendra
Radio Sales and Service and Mahendra Electronics
Services. Vide Exhibit-48, the power-of-attorney that has
been executed by Dilipbhai Mahendrabhai Trivedi in
favour of the defendant no.3 is produced wherein the
tenant Dilipbhai Mahendrabhai Trivedi states that the suit
premises is in possession of Dilipbhai Mahendrabhai
Trivedi as a tenant and he is doing business as a proprietor
and by way of the said power-of-attorney, late Dilipbhai
Mahendrabhai Trivedi had given the possession and
business to defendant no 3, thereby handing over the
possession of the premises to defendant no.3 by way of
power-of-attorney and by the said power-of-attorney the
entire business of Mahendra Sales and Service was handed
over by the tenant to defendant no.3 giving all the power
of the business of M/s.Mahendra Radio Sales and Service
and thereby the defendant no.3 got exclusive possession of
the premises from the original tenant by way of power-of-
attorney exhibit-48 31.01.2000.
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8. In the deposition of defendant no.3 vide Exhibit-51,
defendant no.3, has stated that defendant no.3 used to sit in
the suit premises to assist tenant Dilipbhai Mahendrabhai
Trivedi and the said business was carried out by Dilipbhai
Mahendrabhai Trivedi and at present defendant nos.1 and
2 are carrying on the business. It has also been admitted in
the the deposition of the defendant no.3, vide Exhibit-51
that the business of M/s.Mahendra Radio Sales and
Service and Mahendra Electronics Services was in the
name of tenant Dilipbhai Mahendrabhai Trivedi and till
the death of late Dilipbhai Mahendrabhai Trivedi the
administration of business was with Dilipbhai
Mahendrabhai Trivedi.
9. It was also admitted in the said deposition by the
defendant that since the year 1977 till the death, the
business was carried out by late Dilipbhai Mahendrabhai
Trivedi.
10. In the said proceedings vide Exhibit-40 a bill issued
by Bharat Sanchar Nigam Limited with respect to the
telephone no.27680218 which is shown in the name of
M/s.Mahendra Radio Sales and Service, wherein the name
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of defendant no.3 is mentioned as proprietor of
M/s.Mahendra Radio Services.
11. In the said suit, vide Exhibit-41, the bank account
details of Mahendra Electronics Services, in HDFC bank is
mentioned wherein the name of defendant no.3 is
mentioned as the account holder for Mahendra Electronics
Services. In the present case, looking at the document,
more particularly Exhibit-40 i.e. a telephone bill which is
in the name of defendant no.3, the bank account which is
in name of defendant no.3 and the power-of-attorney vide
Exhibit-48, if it can be seen, the same proves that
dependent no.3 has got the possession of the suit premises
to carry out the business and the said business is
exclusively done by the defendant no.3 even after the
death of tenant late Dilipbhai Mahendrabhai Trivedi and
defendant no.3 carried out business in his own name and
therefore the Appellate Court has rightly held that
defended no.3 is subtenant of suit premises.
12. In the present case Section 5(11)(c)(2) of the Act will
not come in force as it has been proved that at the time of
death of deceased Dilipbhai Mahendrabhai Trivedi,
defendant nos.1 and 2 who are son of late Dilipbhai
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Mahendrabhai Trivedi were studying and there is no
document to prove that defendant nos.1 or 2 were carrying
on business along with his father in the suit premises at the
time when Dilipbhai Mahendrabhai Trivedi expired and
therefore the plaintiff has proved that there is a breach of
the terms of tenancy and the plaintiff has proved that the
suit property is used by defendant no.3 to carry out his
business and therefore the judgement and decree passed by
the Appellate Court does not require any interference.
Moreover, the finding of the fact recorded by the
Appellate Court is according to law and does not suffer
from any error of law.
13. Moreover, the finding recorded by the Appellate
Court are not perverse and the First Appellate Court has
arrived at a finding on proper oral and documentary
evidence and the said finding is not erroneous and
moreover the judgment and decree passed by the First
Appellate Court is legal and proper. Moreover, in exercise
of powers under the revisional jurisdiction, in the present
proceedings, the High court cannot exercise its power as
an Appellate power to reappreciate or reassess the
evidence for coming to a different finding of facts as the
revisional power is not and cannot be equated with the
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power of reconsideration of all questions of fact as the
Court of the First Appeal. In the present case, the
judgement and decree passed in Civil Appeal no.92 of
2011 is according to law and does not suffer from
procedural illegality or irregularity. In the present case, the
First Appellate Court relied on Exhibit-40 i.e. the
telephone bill which mentions the name of defended no.3
as proprietor of M/s.Mahendra Radio Services, the bank
account of HDFC produced vide Exhibit-41 wherein the
name of defendant no.3 as account holder of messrs
M/s.Mahendra Radio Services is mentioned and the fact
that vide Exhibit 48, during the lifetime of the tenant
Dilipbhai, he executed power-of-attorney and the entire
business of M/s.Mahendra Radio Services in favour of the
defendant no.3, it cannot be said that there is any
perversity in the finding of the fact.
14. In view of the said facts, the present Civil Revision
Application is dismissed.
(SANJEEV J.THAKER,J)
URIL RANA
