Gujarat High Court
Legal Heirs Of Deceased Ashabhai ... vs Legal Heirs Of Ramanbhai Manilal Pathak on 5 May, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 388 of 2024
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LEGAL HEIRS OF DECEASED ASHABHAI BECHARBHAI PATEL & ORS.
Versus
LEGAL HEIRS OF RAMANBHAI MANILAL PATHAK & ORS.
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Appearance:
MR VIJAL P DESAI(5505) for the Applicant(s) No. 1,1.1,1.2,1.3,1.4
MS ISHITA V DESAI(5975) for the Applicant(s) No. 1,1.1,1.2,1.3,1.4
MR NIRAV C SANGHAVI(5950) for the Opponent(s) No. 4,5,6
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 05/05/2025
ORAL ORDER
1. The present applicant is original defendants challenging the
judgment and order dated 12.03.2024 passed by learned Additional
District Judge, Kheda at Kapadwanj in Regular Civil Appeal No.59
of 2021 whereby the judgment and decree passed in Regular Civil
Suit No.2 of 2012 [Old No.30 of 95] by learned Principal Civil
Judge, Kathlal dated 09.08.2017 has been confirmed.
2. The brief facts arising in the present proceedings are that,-
2.1 the plaintiff being the owner of the suit property had filed Regular
Civil Suit No.2 of 2012 for eviction on the ground that the suit
premises i.e. shop was given on rent to defendant no.1 and
defendant no.1 being in arrears of rent and even after issuance of
statutory notice as defendant no.1 did not pay rent, the plaintiff is
entitled for possession and it is the case of the plaintiff that
defendant no.1 has sublet the suit premises [Section 13 (e) of the
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Bombay Rents, Hotel and Lodging House Rates Control Act, 1947,
('the Rent Act', for short) and, therefore, sought eviction. The trial
Court had framed following issues nos.1 to 7.
(i) Whether plaintiff proves that defendant no.1 has become
become tenant in arrears for six months ?
(ii) Whether plaintiff proves that plaintiff is entitled to recover
amount of unpaid rent of Rs.4795.50 for 139 months ?
(iii) Whether plaintiff proves that the notice is legal ?
(iv) Whether plaintiff proves that the defendant no.1 has sublet the
defendant no.2 against the provisions of Rent Act ?
(v) Whether defendant no.1 proves that he has rented the open
land only ?
(vi) Whether the plaintiff proves that he is entitled to the relief as
sought for ?
(vii) What order and decree ?
2.2 The trial Court has passed decree on the ground that defendant has
sublet the suit property to defendant no.2 attracting the provisions
of Section 13(1)(e) of the Rent Act.
2.3 In the said suit, though defendant no.2 is joined, no prayer is
sought against defendant no.2. The defendant no.1 did not challenge
the said judgment and decree passed by the trial Court and
defendant no.2 challenged the judgment and decree of the trial
Court and by a judgment dated 12.03.2024, the appellate Court
rejected the said appeal.
2.4 Before the trial Court, the plaintiff had examined himself at
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Exh.114 and the plaintiff's witness is examined at Exh130.
Defendant had neither entered witness box nor had given any oral
evidence.
3.1 Learned advocate for the defendant no.2 has mainly argued that as
no relief was sought against defendant no.2 i.e. sub-tenant, trial
Court and the appellate Court could not have passed any order of
eviction against defendant no.2. It has been argued by learned
advocate for the defendant no.2 that even if the averments made in
the plaint are perused, there is no relief sought for of eviction against
defendant no.2 and in the plaint, the plaintiff has stated that the
relief that has been sought is only against defendant no.1 and in the
plaint at para:20, the plaintiff himself has mentioned that defendant
no.2 is not necessary party but a proper party and, therefore, as no
relief was set against defendant no.2, the trial Court could not have
passed judgment and decree against defendant no.2 making him to
handover peaceful vacant possession of the suit property.
3.2 It has also been argued that the trial Court has held that as notice is
illegal, the trial Court could not have granted decree of eviction
against the present defendant. It has also been argued that suit itself
is barred on the ground of limitation as the predecessor of the
petitioners were in possession of the property since 1985 and the suit
is filed in the year 1995 and therefore also suit is not maintainable.
3.3 Learned advocate for the defendant no.2 has argued that trial Court
has not appreciated the arguments of defendant advanced before it
and therefore also judgment and decree passed by the trial Court
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and confirmed by the appellate Court is required to be quashed and
set aside.
3.4 Learned advocate for the defendant has also relied upon judgment in
Rohitsinh Rohit Singh & Ors vs State Of Bihar (Now State Of
Jharkhand) reported in 2006 (12) SCC 734 (para-21), in the case of
Bharat Amratlal Kothari vs Dosukhan Samadkhan Sindhi &
Ors reported in 2010 (1) SCC 234 [para-14] and in the case of Mohd.
Amin & Ors. vs. Vakil Ahmed and Ors. reported in 1952 (SC) AIR
358 [Para-20].
4.1 Per contra, learned advocate for the plaintiff has mainly argued that
it was not necessary for the plaintiff to join defendant no.2 as party
but as defendant no.2 was proper party, defendant no.2 has been
joined as party.
4.2 It has also been argued that defendants have not entered witness
box and have not contradicted statements made by the plaintiff with
respect to subletting and therefore also judgment and decree passed
by the trial Court which is confirmed by the appellant Court is as
per Law.
4.3 Learned advocate for the plaintiff has also argued that from the
facts which have been proved by the plaintiff, it can be clearly
established that the defendant no.2 is in occupation of the premises
and defendant no.1 has sublet property to defendant no.2 and
therefore judgment and decree passed by the trial Court and
confirmed by the appellate Court are as per law. It has also been
argued that trial Court has given findings on all the issues after
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appreciating the evidence and therefore also the present Civil
Revision Application is required to be dismissed.
4.4 Moreover, learned advocate for the plaintiff has also argued that
defendant no.1 is not using suit shop and defendant no.1 has sublet
suit property to defendant no.2. Moreover, it has also been argued
that even in the written statement filed by defendant no.1 vide
Exh.36 and defendant no.2 at Exh.21, the defendants have admitted
that they have entered in unregistered partnership deed with respect
to the suit premises. Moreover, defendants have neither entered
witness box nor have produced partnership deed and, therefore
adverse inference was rightly been drawn by the trial Court. It has
been argued that even the witness of the plaintiff has stated that
there was no partnership between the defendant nos.1 and 2 with
respect to suit property. It is the case of the plaintiff that defendant
no.2 is exclusively using property and defendant no.1 has sublet suit
property to defendant no.2.
5. Having heard learned advocates for the parties, the fact remains
that it was the case of the plaintiff that the suit property was let by
plaintiff to defendant no.1 in his personal capacity on monthly rent
of Rs.31.50 ps. The shop licence and other relevant documents of
the suit premises produced by Shop Inspector vide Exhs.135 to 142
are all in the name of defendant no.2. Moreover, though a stand has
been taken by the defendant no.2 that there is partnership which has
been executed between defendant nos.1 and 2, no document
pertaining to the said partnership has been produced before the
Court. And, therefore, plaintiff has proved that defendant no.1 has
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parted with exclusive possession and control over the suit premises
and has handed over suit property to defendant no.2.
5.1 Learned advocate for the plaintiff has relied upon two judgments :
(i) 2004 (8) SCC 706, Balvant N. Viswamitra vs. Yadav
Sadashiv Mule (Dead) thro' Lrs. and others; and
(ii) 2024 SCC Online Madras 5493, K. Abdul Samad and
ors. vs. St. Peters Church, Royapuram and another
5.2 Learned advocate for the defendant has relied upon the judgment
reported in Rohitsinh Rohit Singh & Ors vs State Of Bihar (Now
State Of Jharkhand) (supra), more particularly para-21 which reads
as under:
"21. We also find that there was no prayer as such by
way of counter-claim. A mere plea that prescriptive title
may be declared and payment of court fee for a
declaratory relief would not suffice. Even assuming that
this could be treated as a prayer for declaration of title
by defendants 3 to 17, there was no warrant for granting
a decree to defendants 3 to 17 for recovery of possession
as was done by the trial court by way of counter-claim
or a decree for permanent injunction as was granted by
the first appellate court. Even the requisite court fees
were not paid. Since the reliefs granted by those courts
are not reliefs prayed for, that part of the decree, in any
event, could not be sustained."
5.3 Learned advocate for the defendant has relied upon the judgment
reported in Bharat Amratlal Kothari vs Dosukhan Samadkhan Sindhi
& Ors (supra), more particularly para-14, which reads thus:
"14. The approach of the High Court in granting relief not
prayed for cannot be approved by this Court. Every petition
under Article 226 of the Constitution must contain a relief
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clause. Whenever the petitioner is entitled or is claiming more
than one relief, he must pray for all the reliefs. Under the
provisions of the Code of Civil Procedure, 1908, if the plaintiff
omits, except with the leave of the court, to sue for any
particular relief which he is entitled to get, he will not
afterwards be allowed to sue in respect of the portion so omitted
or relinquished. Though the provisions of the Code are not
made applicable to the proceedings under Article 226 of the
Constitution, the general principles made in the Civil Procedure
Code will apply even to writ petitions. It is, therefore,
incumbent on the petitioner to claim all reliefs he seeks from the
court. Normally, the court will grant only those reliefs
specifically prayed by the petitioner. Though the court has very
vide discretion in granting relief, the court, however, cannot,
ignoring and keeping aside the norms and principles governing
grant of relief, grant a relief not even prayed for by the
petitioner. In Krishna Priya vs. University of Lucknow [(1984)
1 SCC 307], overlooking the rule relating to grant of admission
to Postgraduate course in medical college, the High Court in
the exercise of powers under Article 226 of the Constitution
directed the Medical Council to grant provisional admission to
the petitioner. This Court set aside the order passed by the High
Court observing that "in his own petition in the High Court, the
respondent has merely prayed for a writ directing the State or
the College to consider his case for admission yet the High
Court went a step further and straightway issued a writ of
mandamus directing the College to admit him to M.S. course
and thus granted relief to the respondent which he himself never
prayed for and could not have been prayed for". Again, in Om
Prakash vs. Ram Kumar [(1991) 1 SCC 441], this Court
observed, "A party cannot be granted a relief which is not
claimed, if the circumstances of the case are such that the
granting of such relief would result in serious prejudice to the
interested party and deprive him of the valuable rights under
the statute". Though a High Court has power to mould reliefs to
meet the requirements of each case, that does not mean that the
draftsman of a writ petition should not apply his mind to the
proper relief which should be asked for and throw the entire
burden of it upon the court. It is relevant to notice that the High
Court was not exercising powers under Article 226 of the
Constitution suo motu but was examining the validity of order
passed by the Additional Chief Judicial Magistrate refusing to
grant custody of goats and sheep to the respondent Nos. 1 to 6,
in the Special Criminal Application, which was filed by them
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under Article 226 of the Constitution through a were
represented by a senior counsel practicing in the Gujarat High
Court and having regard to the facts of the case, the learned
lawyer was justified only in claiming those reliefs to which
reference is made earlier. The respondent Nos. 1 to 6 were
seeking a writ of certiorari or mandamus to declare that order
dated July 5, 2009, passed by the learned Chief Judicial
Magistrate, Deesa, refusing to hand over custody of the goats
and sheep seized to them, was illegal and were also seeking
quashing of the said order. At no point of time, the learned
advocate for the respondent Nos. 1 to 6 had moved any
application seeking permission of the Court to amend the
prayer clause contained in the petition so as to enable the
respondent Nos. 1 to 6 to claim compensation from the
appellant No. 1. A fair reading of the petition makes it more
than clear that no factual data whatsoever was laid by the
respondent Nos. 1 to 6 for claiming compensation from the
appellant No. 1. No facts were mentioned as to in which manner
they or any of them had suffered damage or loss because of the
handing over of custody of goats and sheep to the appellant No.
1 and ultimately to the respondent No. 8 Panjarapole situated at
Patan nor the appellant No. 1 was permitted to controvert that
in fact no damage or loss was suffered by the respondent Nos. 1
to 6 or any of them. There is no manner of doubt that the High
Court was too indulgent in this matter. After all, it was not a
petition from a person languishing in jail or from a bonded
labourer or a party in person or public spirited citizen seeking
to bring a gross injustice to the notice of the court. Here, the
High Court had before it the respondent Nos. 1 to 6 as
petitioners. The question whether the respondent Nos. 1 to 6
suffered damage or loss because of handing over of goats and
sheep to the appellant No. 1 and/or to the respondent No. 8,
depends upon facts to be proved. Normally, such an exercise
cannot be undertaken in a writ filed under Article 226 of the
Constitution. This Court further finds that the appellant No. 1 is
not only directed to pay, by way of compensation and cost, to
each of the respondent Nos. 1 to 6 a sum of Rs.75,000/- but is
further directed to pay on behalf of respondent Nos. 1 to 6 the
cost of maintenance and treatment of the animals in question to
respondent No. 8 in accordance with the provisions of sub-
Section (4) of Section 35 of the Act. To mention the least, it is
evident that the respondent Nos. 1 to 6 are not parties to
Criminal Inquiry Case No. 237 of 2008, which is pending before
the learned Chief Judicial Magistrate, Palanpur. As observed
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earlier, the said inquiry has been initiated at the instance of one
of the aides of the accused. In the said inquiry the question
posed for determination of the learned Chief Judicial
Magistrate, Palanpur, would be whether the appellant No. 1
and others with police personnel had committed loot of trucks
with goats and sheep and also cash amount of Rs.1,11,000. The
said inquiry is not concluded as on today nor any finding is
rendered that the appellant No. 1 and others with the aid of
police personnel had committed loot of the articles mentioned in
the complaint of that case. Therefore, the appellant No. 1 could
not have been directed to pay compensation and cost to 6
without prejudice to their rights and contentions in the criminal
proceedings initiated by way of Criminal Inquiry Case No. 237
of 2008. Moreover, no claim was advanced by the respondent
No. 8 herein that the appellant No. 1 should be directed to pay,
on behalf of the owners, i.e., the respondent Nos. 1 to 6, the
cost of maintenance and treatment of the animals in question in
accordance with the provisions of sub-Section (4) of Section
35 of the Act. Normally, cost of maintenance and treatment of
the animals in such cases would be payable by one who claims
custody or who are the owners of the live stock but not by the
complainant. In the instant case the assertion made by the
appellant No. 1 is that he was handed over custody of goats and
sheep by the police after registration of FIR seems to be that the
appellant No. 1 had taken possession of the live stock and trucks
illegally before the FIR was lodged and had acted in a high
handed manner. The dispute whether appellant No. 1 was
handed over custody of goats and sheep after filing of the
complaint or whether he had obtained custody of goats and
sheep illegally before the complaint was lodged, will have to be
adjudicated upon evidence to be lead by the parties. Such a
highly contentious dispute cannot and could not be resolved in a
petition under Article 226 of the Constitution. Having regard to
the totality of the facts and circumstances emerging from the
record of the case, this Court is of the firm opinion that there
was no justification at all in directing the appellant No. 1 to pay
a sum of Rs.75,000/- towards compensation and cost to each of
the respondent Nos. 1 to 6 and to pay to the respondent No. 8
herein the cost of maintenance and treatment of the animals in
question on behalf of the respondent Nos. 1 to 6. Therefore, this
direction is also liable to be set aside."
The said judgment will not be of any assistance to defendant
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no.2 as those judgments are with respect to the counter claim that
has been filed in respective cases and in the present case, the suit was
filed under the Rent Act and though it is not necessary to join sub-
tenant in the suit proceedings and, therefore as there is no privity of
contract between plaintiff and defendant no.2 and the fact that
defendant no.2 is claiming through defendant no.1, it cannot be said
that the judgment and decree passed in the said proceedings is not
binding to defendant no.2.
5.4 Learned advocate for the defendant has relied upon the judgment
reported in the case of Mohd. Amin & Ors. vs. Vakil Ahmed and Ors.
(supra) more particularly para:20 of the said judgment which reads
as under:
"20. It was however pointed out by Shri S.P. Sinha that the
High Court erred in awarding to the plaintiffs mesne profits even
though there was no demand for the same in the plaint. The learned
Solicitor-General appearing for the plaintiffs conceded that there
was no demand for mesne profits as such but urged that the claim
for mesne profits would be included within the expression
"awarding possession and occupation of the property aforesaid
together with all the rights appertaining thereto." We are afraid
that the claim for mesne profits cannot be included within this
expression and the High Court was in error in awarding to the
plaintiffs mesne profits though they had not been claimed in the
plaint. The provision in regard to the mesne profits will therefore
have to be deleted from the decree. We dismiss the appeal of the
defendants 1 to 5 and affirm the decree passed by the High Court in
favour of the plain- tiffs, deleting therefrom' the provision in regard
to mesne profits. The plaintiffs will of course be entitled to their
costs throughout from the defendants 1 to 5."
The said judgment is also not of assistance as it is on the
issue of mesne profits.
5.5 The judgment that has been relied upon by plaintiff in the case of
Balvant N. Viswamitra vs. Yadav Sadashiv Mule (Dead) thro' Lrs.
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and others (supra). Paras:26, 27 and 28 of the said judgment read as
under:
26. As held by this Court in Udit Narain Singh Malpaharia v. Addl Member,
Board of Revenue, Bihar, [1963] Supp l SCR 676, there is a distinction
between "necessary party" and "proper party" In that case, the Court said:
"The law on the subject is well settled: it is enough if we state
the principle. A necessary party is one without whom no order
can be mode effectively; a proper party is one in whose
absence an effective order can be made but whose presence is
necessary for a complete and final decision on the question
involved in the proceeding." (emphasis supplied)
27. In M/s.Importers and Manufacturers Ltd. v. Pheroze Framroze
Taraporewala and Ors., AIR (1953) SC 73 this Court held that in a suit
for possession by a landlord against a tenant, sub-tenant is merely a
proper party and not a necessary party.
28. In Rupchand Gupta v. Raghvanshi (Pvt.) Ltd. and Another, AIR
(1964) SC 1889 an ex parte decree was passed in favour of the landlord
and against the tenant. An application for setting aside the decree was
made by the sub- tenant by invoking the provisions of Order IX, Rule 13
of the Code of Civil Procedure, 1908, inter alia contending that the
decree was collusive inasmuch as the sub-tenant was not joined as party
defendant. The decree was, therefore, liable to be set aside. Repelling the
contention, this Court observed:
"(I)t is quite clear that the law does not require that the sub-
lessee need be made a party. It has been rightly pointed out by
the High Court that in all cases where the landlord institutes a
suit against the lessee for possession of the land on the basis of a
valid notice to quit served on the lessee and does not implead the
sub-lessee as a party to the suit, the object of the landlord is to
eject the sub-lessee from the land in execution of the decree and
such an object is quite legitimate. The decree in such a suit
would bind the sub-lessee. This may act harshly on the sub-
lessee; but this is a position well understood by him when he took
the sub- lease. The law allows this and so the omission cannot be
said to be an improper act." (emphasis supplied)"
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5.6 The judgment that has been relied upon by the plaintiff in the case
of K. Abdul Samad and others vs. St. Peters Church, Royapuram
and another reported in 2024 SCC Online Madras 5493, more
particularly para:25, which reads thus:
"25. The case of the appellant that the suit is bad
for non-inclusion of sub-tenants as defendants, has
no legal basis on the admitted facts. It is the admitted
position in law that the appellants cannot create a
right more than what they had under the original
lease agreement. After the expiry of lease and
termination of lease agreement, the defendant has no
right to extend the period of tenancy in favour of
others. It is well settled that a judgment against chief
tenant is binding on the sub-tenant, even though he
is not made as party to the suit. It is to be seen that
there is no privity of contract between the plaintiff
and the sub-tenants or sub-lessees."
In view of the fact that the defendant no.2 is claiming through
defendant no.1, and as defendant no.2 is sub-tenant and there is no
privity of contract between the plaintiff and defendant no.2, the
judgment and decree that had been passed by the trial Court is as
per provisions of law and the first appellate Court has rightly
appreciated the evidence and passed the judgment and order.
6. In the present case, as the suit has been filed for eviction, the law in
the said fact is very clear that defendant No.2 being the sub tenant,
defendant No.2 is merely a proper party and not a necessary party
and the said position was well understood by defendant No.2 when
it took possession as a sub tenant. Moreover, the possession was
granted to the defendant No.2 through defendant No.1, and it is not
the case of the plaintiff that the defendant No.2 is a tenant of the
plaintiff there is no privity of contract between the landlord i.e.
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plaintiff and defendant No.2, therefore, defendant No.2 is merely a
proper party in the suit. The fact remains that the plaintiff instituted
the suit against defendant No.1 for possession of the property. The
object of the plaintiff is to eject the defendants from the suit
property even if the sub tenant is not joined in the present suit, the
decree in such suit would bind the sub tenant.
7. Therefore, on the basis of overall analysis of the material on record,
on the basis of conclusion that has been referred to 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 is according to law and does not suffer from
any abuse of law. The findings recorded by the Court below if
perverse or has 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 entitled to set aside the impugned order as
being not legal or proper. The High Court can not interfere with the
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finding of facts recorded by the first Appellate Court. The
consideration or examination of the evidence by the High Court in
revisional jurisdiction under this Act is confined to find-out that
finding recorded by the courts below is according to Law and does
not suffer from any error of Law and only if the finding of facts
recorded by the courts below, is perverse or has been arrived at
without consideration of the material evidence or that such finding
is based on no evidence, or misreading of the evidence, or is grossly
erroneous that, if allow to stand, it would result in gross miscarriage
of justice and the same is open to correction as the same is not
treated as findings according to Law and in the present case, the
finding of facts recorded by the trial Court and the appellate Court
is neither perverse nor arrived at without consideration of the
material evidence. In the present case, 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.
8. 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 subleted the suit
property to other person 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.
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9. 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.
(SANJEEV J.THAKER,J)
MISHRA AMIT V.
