Gujarat High Court
Shri Bharatbhai Ratilal Popat vs Dineshchandra Vrandavan Samani on 24 November, 2025
NEUTRAL CITATION
C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025
undefined
Reserved On : 11/11/2025
Pronounced On : 24/11/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 167 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
==========================================================
Approved for Reporting Yes No
Yes
==========================================================
SHRI BHARATBHAI RATILAL POPAT & ORS.
Versus
DINESHCHANDRA VRANDAVAN SAMANI & ANR.
==========================================================
Appearance:
MR PARTH S TOLIA(5617) for the Applicant(s) No. 1,2,3,4
SHIRISHCHANDRA B TOLIA(8163) for the Applicant(s) No. 1,2,3,4
MR DIGANT B KAKKAD(6523) for the Opponent(s) No. 1
NOTICE SERVED for the Opponent(s) No. 2
==========================================================
CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
CAV JUDGMENT
1. Instant Revision Application under section 29(2) of the
Bombay Rents, Hotel and Lodging House Rates Control Act (for
short "the Rent Act") questions, legality and propriety of
judgment and decree dated 18.03.2021 passed in Regular Civil
Appeal No.34 of 2013 by which learned Principal District Judge,
Porbandar in turn confirmed the judgment and decree dated
28.06.2013 passed in Regular Civil Suit No.1250 of 2022 by
learned Trial Court by which the suit of the plaintiff was decreed
and he was held entitled to get eviction and peaceful possession
NEUTRAL CITATION
C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025
undefined
of suit shop from defendant and it was further directed to hand
over peaceful and vacant possession of suit shop to the plaintiff
within 60 days from the date of judgment.
2. Respondent herein is "plaintiff landlord" and appellant
herein is "tenant defendant". For convenience, they are referred
as per their status before the learned Trial Court.
3. Factual aspects of the case pleaded by plaintiff are as under
:-
3.1. Shop in house situated on street no.4, Sutharwadi,
Porbander (suit shop) was rented to deceased - Ratilal on
monthly rent of Rs.18. The plaintiff purchased the house along
with rented suit shop from erstwhile owner. The plaintiff filed
Regular Civil Suit under the provisions of Rent Act claiming
possession of suit shop on various grounds viz. Personal and
bona-fide requirement of suit shop; suit shop was kept non use
for more than six months prior to filing of the suit and thirdly
that tenant has sublet suit shop to third party by executing
partnership firm and handed over possession of the suit shop to
the partners.
NEUTRAL CITATION
C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025
undefined
4. Summons of the suit was served to the defendants. Tenant
appeared through power of attorney who is partner in partnership
firm and filed written statement at Exh.14 to set up total case of
denial. Relationship of landlord and tenant was accepted but
three grounds pleaded by the plaintiff - landlord has been
strenuously objected on the ground that plaintiff landlord has
other premises to do business; rent shop is not kept closed and it
is used for business in name and style of K.Popat and Company
and there is no arrears of rent. No subletting in partnership firm
'K.Popat and company' tenant is active partner.
5. Learned Trial Court fixed issues at Exh.43 and thereafter,
permitted both the parties to lead evidence in support of their
pleadings. Ultimately, after hearing learned advocates for both
the sides, learned Trial Court believed that plaintiff - landlord
succeeded in proving all three grounds upon which he has sought
peaceful and vacant possession of suit shop. By judgment and
decree dated 28.06.2013, learned Trial Court directed defendant
to hand over vacant and peaceful possession of suit shop. Being
aggrieved, the tenant filed Regular Civil Appeal No.34 of 2013
before the learned Principal District Judge, Porbander under the
provisions of Rent Act but did not succeed. Hence, being
NEUTRAL CITATION
C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025
undefined
aggrieved, the tenant has preferred this Revision inter-alia on the
grounds mentioned in the Revision Application.
6. Learned advocate Mr.Parth Tolia for the appellant - tenant
assailing concurrent findings arrived by both the Courts below
would mainly submit that learned Trial Court has committed
serious error of understanding facts and law. It is further
submitted that ground of personal and bona fide requirement of
suit shop for personal reason is defined in section 13(1)(g) of the
Rent Act, however, said ground is not available to the plaintiff as
he was not landlord of the suit shop on 01.01.1964. The plaintiff
admittedly purchased the suit shop subsequently, therefore, he
would submit that finding of learned Trial Court under section
13(1)(g) of the Rent Act is erroneous finding. He referred to
explanation (a) of section 13(2) of Rent Act and submitted that in
the aforesaid legal proposition, learned Trial Court has committed
serious error in granting decree for possession in favour of
landlord on the ground of personal and bona fide requirement.
6.1. As far as two other grounds upon which learned Trial Court
has passed decree i.e. ground of subletting and non use, learned
advocate Mr.Tolia submits that finding of learned Trial Court on
NEUTRAL CITATION
C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025
undefined
these two grounds are inter-se contradictory. He would submit
that on one hand, learned Trial court believed that suit shop was
non use for more than six months prior to filing of suit and on
the other hand, learned Trial Court believed that suit shop has
been sublet to third party and that third party was doing
business, therefore, he submits that finding of learned Trial Court
is serious flaws of understanding of factual aspects.
6.2. It is further submitted that deceased Ratilal was tenant of
the suit shop. He entered into partnership firm with third party
vide Exh.73. Third party along with deceased were carrying
business in suit shop. After death of tenant Rantilal, his son
entered into partnership firm and continue doing business in
name and style of K.Popat and company. It is submitted that
plaintiff failed to bring any evidence on record which establish
that possession of suit shop was exclusively parted to other
partners of the firm and in that circumstances, finding of learned
Trial Court that subletting has been done on the ground that
deceased Ratilal entered into partnership firm is complete
erroneous.
6.3. It is further submitted that voluminous documentary
NEUTRAL CITATION
C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025
undefined
evidence are produced on record to show that K.Popat and
company partnership firm was doing active business in suit shop,
however, since it was open for few hours, there was no electricity
use. Oral evidence of officer of Electricity company to that extent,
learned Trial Court has committed serious error in drawing
conclusion that suit shop is non use preceding six months of
filing of suit.
6.4. Lastly, it is submitted that other partners of partnership
firm are not joined as party, they are in possession of suit shop
and in absence thereof, no decree for possession can be passed.
6.5. It is argued by learned advocate Mr.Tolia that learned
Appellate Court has not framed proper point of determination to
cater arguments canvassed by both the sides and in absence
thereof, clear breach of Order 41 Rule 31 of CPC could be
noticed. Therefore, it is submitted that learned Appellate Court
has committed statutory breach in confirming eviction decree.
Therefore, it is submitted that Revision Application deserves
consideration and the matter is required to be remanded back to
the learned Appellate Court for fresh consideration. Learned
advocate Mr. Tolia in support of his submission relied on
following judgments :-
NEUTRAL CITATION
C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025
undefined
(1) Dalwadi Maganlal Vaghjibhai v/s. Jijibhai Dayabhai
Mori [2012 GLHEL HC 227511].
(2) United Engineers and Contractors v/s. Secretary to
Govt., AP [AIR 2013 SC 2239]
(3) Prajapati Ambaram Nagarbhai v/s. Prajapati Harjibhai
[2010 (2) GLH 551]
(4) Nagjibhai Savabhai v/s. Sarabhai Bhavanbhai [Second
Appeal No.260 of 2012 before Hon'ble Gujarat High Court]
(5) Ajitsin Babubhai Jadav v/s. Wadhwan Mahajan
Panjarapol [Second Appeal No.231 of 2007 before Hon'ble
Gujarat High Court]
6.6. In view of above arguments, learned advocate Mr.Tolia
submitted to allow the Revision Application.
7. Learned advocate Mr. Kakkad appearing for the plaintiff
landlord in his utter fairness accepted that since plaintiff
purchased the suit shop after 01.01.1964, in view of explanation
(a) of section 13(2) of the Rent Act, ground of personal and bona
fide requirement cannot be pleaded or pressed and no possession
of rented premises can be claimed on the said ground, however,
he submits that two other grounds i.e. non use and subletting of
rented premises have been squarely proved before the learned
Trial Court. It is submitted that well reasoned order has been
NEUTRAL CITATION
C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025
undefined
passed by the learned Trial discussing all the issues. Learned
Appellate Court re-appreciated the evidence and please to believe
that plaintiff successfully establish ground of subletting and non
use. He referred to deposition of Officer of Electricity Company at
Exh.66 and submitted that according to this deposition,
undisputed truth comes on record which establish that electricity
usage of the suit shop was 'zero' for time commencing from
March / April, 2002 to March / April 2010 it remains in same
status and till the date on which deposition of officer was
recorded. He submitted that ledger account produced at Exh.67
by Electricity officer has recorded that suit shop was "locked".
Thus, this unimpeachable evidence demonstrate that suit shop
was closed; no business was carried prior to six months or
subsequent to filing of suit in suit shop. By this evidence, plaintiff
has successfully established his case of non use of suit shop.
7.1. So far as ground of subletting is concerned, he submitted
that deceased Ratilal was tenant of suit shop in his personal
capacity; he moved from Porbandar to live at Keshod long back
which is reflecting from deposition of defendant. He would submit
that interpretation of Exh.73 - partnership deed which is on
record establish that tenant has not thrown suit shop as he has
NEUTRAL CITATION
C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025
undefined
capital in the business but remain one of the partner with 1%
profit or loss in the business which establish that tenant has
parted away suit shop to partners of partnership firm and those
persons were in exclusively possession of suit shop. It is
submitted that such fact is strengthen by reading cross
examination of the defendant Bharat at Exh.70.
7.2. In aforesaid circumstances, he would submit that learned
Courts below have not committed any error in passing decree,
therefore, he submitted to dismiss the Revision Application.
7.3. To buttress his submission, learned advocate Mr. Kakkad
relied on following judgments :-
(1) Patel Kanjibhai Ambalal v/s. Modi Manjulaben Babulal
wd/o Babulal Chunilal [(2011) 52 (1) GLR 253]
(2) Yuvraj alias Munna Pralhad Jagdale v/s. Janardan
Suajirao Wide [2023 SCC Online SC 308].
8. I have heard learned advocates for the parties, gone through
Record and Proceedings and judgments cited at bar. At the
outset, let me observe that Revision has been filed challenging the
concurrent findings arrived at the Courts below, whereby, decree
NEUTRAL CITATION
C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025
undefined
of eviction passed by learned Trial Court under the provisions of
Rent Act has been confirmed by learned Appellate Court. In this
circumstances, scope of interference under section 29(2) of the
Rent Act is very limited. Hon'ble Apex Court in the case of Patel
Valmik Himatlal vs. Patel Mohanlal Muljibhai (Dead) Through
Lrs. - 1998 (7) SCC 383 examined the ambit and scope of
Section 29 of the Rent Act. Honble Supreme Court has observed
as under :
"5. The ambit and scope of the said section came up for
consideration before this Court in Helper Girdharbhai V/ s.
Saiyed Mohamad Mirasaheb Kadri and Ors. (JT 1987 (2) SC
599) and after referring to a catena of authorities,
Sabyasachi Mukharji, J. drew a distinction between the
appellate and the revisional jurisdictions of the courts and
opined that the distinction was a real one. It was held that
the right to appeal carries with it the right of rehearing both
on questions of law and fact, unless the statute conferring
the right to appeal itself limits the rehearing in some way,
while the power to hear a revision is generally given to a
particular case is decided according to law. The Bench
opined that although the High Court had wider powers than
that which could be exercised under Sec. 115 of the Code of
Civil Procedure, yet its revisional jurisdiction could only be
exercised for a limited purpose with a view to satisfying
itself that the decision under challenge before it is according
to law. The High Court cannot substitute its own findings on
a question of fact for the findings recorded by the courts
below on reappraisal of evidence. Did the High Court exceed
its jurisdiction.
6. The powers under Sec. 29(2) are revisional powers with
which the High Court is clothed. It empowers the- High Court
to correct errors which may make the decision contrary to
law and which errors go to the root of the decision hut it
NEUTRAL CITATION
C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025
undefined
does not vest the High Court with the power to rehear the
matter and reappreciate the evidence. The mere fact that a
different view is possible on reappreciation of evidence
cannot be a ground for exercise of the revisional jurisdiction."
9. Keeping in mind revisional scope of this Court, let examine
whether learned Trial Court below committed any error which
may be decision contrary to law and error going to root of
decision. Apt to note that appreciation of evidence is totally
impermissible under Revisional jurisdiction.
10. Undisputed facts on record is that plaintiff is landlord. He
has purchased suit shop along with entire demise premises from
erstwhile owner on 23.08.2001 by executing registered sale deed
Exh.56. Thus, admittedly, plaintiff become owner of entire
premises including suit shop in the year 2001. At the time of
purchasing entire house, suit shop was admittedly rented to
deceased Ratilal at monthly rent of Rs.18/-. In this undisputed
facts, let refer explanation (a) to section 13(2) of the Rent Act as
under :-
(2) No decree for eviction shall be passed on the ground
specified in clause (g) of sub-section (1) if the Court is
satisfied that, having regard to all the circumstances of the
case including the question whether other reasonable
accommodation is available for the landlord or the tenant,
greater hardship would be caused by passing the decree
than by refusing to pass it.
NEUTRAL CITATION
C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025
undefined
Where the Court is satisfied that no hardship would be
caused either to the tenant or to the landlord by passing the
decree in respect of a part of the premises, the Court shall
pass the decree in respect of such part only.
Explanation.- For the purposes of clause (g) of sub-section (1)-
(a) a person shall not be deemed to be a landlord unless
he has acquired his interest in the premises at a date prior to
the beginning of the tenancy or the first day of January,
1964, whichever is later, or if the interest has devolved on
him by inheritance or succession, his predecessor in title has
acquired the interest at a date prior to the beginning of the
tenancy or the first day of January, 1964, whichever is later.
11. To get eviction on the ground of personal and bona fide
requirement defined in section 13(1)(g) of the Rent Act, person
shall have to be landlord either on 01.01.1964 or date prior to the
beginning of the tenancy. Plaintiff landlord failed to meet with
either of the criteria. He becomes owner only when sale deed was
executed but tenancy was prior to it. Thus, there is substance in
the submission of learned advocate Mr.Tolia. The Court cannot
pass decree of eviction on personal and bona-fide requirement.
However, learned advocate Mr.Kakkad for respondent plaintiff
has fairly accepted this proposition of law.
12. Insofar as two other grounds pleaded by plaintiff viz.
subletting and other non use are concerned, these grounds are
governed by section 13(1)(e) and section 15 of the Rent Act and
second ground that premises has not been used without
NEUTRAL CITATION
C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025
undefined
reasonable cause for the purpose for which they were let for a
continuous period of six months immediately preceding the date
of suit is governed by section 13(1)(k) of the Rent Act. Let refer
section 13(1)(e), 13(2)(k) and section 15 of the Rent Act, which
reads as under :-
13(1)(e) that the tenant has, since the coming into
operation of this Act, unlawfully sub-let the whole or part of
the premises or assigned or transferred in any other manner
his interest therein; or
15 [ In absence of contract to the contrary tenant not; to
sublet or transfer. [(1)] Notwithstanding anything contained
in any law [but subject to any contract to the contrary], it
shall not be lawful after the coming into operation of this Act
for any tenant to sublet the whole or any part of the
premises let to him or to assign or transfer in any other
manner his interest therein:
(2) The bar against sub-letting, assigning or transferring
premises contained in subsection (1) shall be deemed not to
have had any effect before the commencement of the Bombay
Rents, Hotel and Lodging House Rates Control (Amendment)
Ordinance, 1959, in any area in which this Act was in
operation before such commencement; and accordingly,
notwithstanding anything contained in any contract or in the
judgement, decree or order of a Court any sub-lease,
assignment or transfer in favour of such persons as have
entered into possession despite the bar as sub-lessees,
NEUTRAL CITATION
C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025
undefined
assignees or transferees; and have continued in possession
at the commencement of the said Ordinance, shall be deemed
to be valid and effectual.]
13(1)(k) that the premises have not been used without
reasonable cause for the purpose for which they were let for
a continuous period of six months immediately preceding the
date of the suit; or
13. In context of aforesaid legal provisions, if we examine rival
submissions, undisputed facts remain that tenancy was created
in favour of Ratilal and not in favour of partnership firm. Bharat
Ratilal Popat son of deceased Ratilal entered into witness box as
DW-1 at Exh.70. He has admitted that they were living in
Keshod (village far away from Porbander where suit shop is
situated) since more than 25 years and doing business in name
and style of "Bharat Trading Company". In further cross
examination, he admitted that he or his father have not actively
participated in business of 'K.Popat and Company'. He does not
know accounts of K.Popat and Company. He does not know what
goods are sold in name of 'K.Popat and Company'. He has not
taken any decision to do business. Apt to note that as per case of
tenant, K.Popat and Company is doing business in suit shop. In
NEUTRAL CITATION
C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025
undefined
regard to this deposition, if we go through Exh.73 - partnership
firm deed executed between deceased - Ratilal along with other
persons, terms of partnership firm do not plead or establish that
suit shop along with its tenancy rights has been created in
favour of partnership firm or by throwing the tenancy rights on
capital. Rather, partnership deed state that tenant would be
partner of one percent in profit or loss of business. It is admitted
in the cross examination by defendant that partners of 'K.Popat
Company' belongs to same caste and they are in blood
relationship. It is admitted that possession of suit shop was
given to them as they wanted the same for business purpose. It
is further admitted that since partners were required suit shop,
father of the deceased i.e. Ratilal admittedly has accepted 1%
profit and loss share in partnership firm. He has further
admitted that he is not active partner nor his father and have
entrusted any capital in the partnership firm.
14. Test of mischief of subletting has been elaborately
discussed by Hon'ble Apex Court in the case of Celina Coelhi
Pereia v/s. Ulhas Mahabaleshwar Kholkar [(2010) 1 SCC 217].
Legal position was summarized as under :-
"The legal position that emerges from the aforesaid decisions
NEUTRAL CITATION
C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025
undefined
can be summarised thus :
(i) In order to prove mischief of subletting as a ground for
eviction under rent control laws, two ingredients have to be
established, (one) parting with possession of tenancy or part
of it by tenant in favour of a third party with exclusive right
of possession and (two) that such parting with possession
has (2008) 7 SCC 722 been done without the consent of the
landlord and in lieu of compensation or rent.
(ii) Inducting a partner or partners in the business or
profession by a tenant by itself does not amount to
subletting. However, if the purpose of such partnership is
ostensible and a deed of partnership is drawn to conceal the
real transaction of sub-letting, the court may tear the veil of
partnership to find out the real nature of transaction entered
into by the tenant.
(iii) The existence of deed of partnership between tenant and
alleged sub-tenant or ostensible transaction in any other
form would not preclude the landlord from bringing on record
material and circumstances, by adducing evidence or by
means of cross-examination, making out a case of sub-
letting or parting with possession in tenancy premises by the
tenant in favour of a third person.
(iv) If tenant is actively associated with the partnership
business and retains the control over the tenancy premises
with him, may be along with partners, the tenant may not be
said to have parted with possession.
(v) Initial burden of proving subletting is on landlord but once
he is able to establish that a third party is in exclusive
NEUTRAL CITATION
C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025
undefined
possession of the premises and that tenant has no legal
possession of the tenanted premises, the onus shifts to
tenant to prove the nature of occupation of such third party
and that he (tenant) continues to hold legal possession in
tenancy premises.
(vi) In other words, initial burden lying on landlord would
stand discharged by adducing prima facie proof of the fact
that a party other than tenant was in exclusive possession
of the premises. A presumption of sub-letting may then be
raised and would amount to proof unless rebutted.
15. Deposition of defendant establish that possession of
tenancy was parted in favour of third party (other partners of
partnership firm) and they have been given exclusive right of
possession. It is no one's case that landlord's consent was taken
to part with the possession or tenancy rights or part thereof. In
line of legal proposition settled by Hon'ble Apex Court, from
Exh.73 it appears that other partners were not inducted to do
business along with tenant but partnership was created with
intention to part possession of suit shop to third party. In this
situation, the Court is required to tear the veil of partnership to
find out the real nature of transaction. The Courts below have
discussed this issue in concurrent findings. It also establish on
record that tenant is not associated with partnership business
NEUTRAL CITATION
C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025
undefined
and has no control over the suit shop. All these findings are
sufficient to say that tenant by creating illusion of partnership
has parted possession exclusively to third party, which clearly
fall in term mischief of sub-letting. Learned Courts below have
rightly tear the veil.
16. In view of aforesaid, this Court does not find any reason to
interfere with the judgment and decree passed by Courts below
to believe that defendant landlord has committed mischief of
subletting.
17. So far as ground of non use is concerned, suffice to refer
deposition of independent witness PW-3 - Pratikbhai
Dandhaniya at Exh.66. He is Deputy Engineer, PGVCL. Plaintiff
has examined him to ascertain whether consumer
No.35111/00164/6 being electricity connection on the suit shop
is consumed or not. Officer came to the Court with documents
viz. Ledger account etc. and deposed on oath that since March -
April 2002 till date on which he gave deposition, there was no
use of electricity and it was 'zero' use of electricity on the suit
shop and PGVCL has stated that suit shop is locked. This
evidence is incontrovertible and irrefutable. However, against
NEUTRAL CITATION
C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025
undefined
this evidence, it is submitted by learned advocate Mr.Tolia that
since suit shop was used for few hours in day time, it did not
consume electricity. Submission since does not make sense,
found a complete falsehood. There is no gainsaying that learned
advocate Mr.Tolia hopelessly attempted to get out from
establishment of non use, which is squarely proved in the case
on hand. When question was put to DW-1 why electricity is not
consumed, he deposed that suit shop is open between 10.00 to
12.00 in morning and between 4.30 to 6.30 in evening. However,
cogent and undeniable evidence proved non consumption of
electricity for more than 8 years itself proves that suit shop was
closed preceding six months of filing of suit and subsequent
thereto.
18. In regard to ground pleaded under section 13(1)(k) of the
Rent Act, Hon'ble Apex Court in case of V. Sumatiben Maganlal
Manani (Dead) by Lrs. v/s. Uttamchand Kashiprasad Shah
[2011 (3) GLR 2726] in para 23 held as under :-
"23. The explanation of defendant No.2 for non- consumption
of electricity was that being a devout Jain he closed the shop
at 5-30 p.m. before the day getting dark. He, therefore, did
not need any electric light (or for that matter any electric
fan), and hence, there was no consumption of electricity in
his shop. The falsehood of the explanation, however, was
NEUTRAL CITATION
C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025
undefined
exposed by the fact that the electric supply to the demised
shop was disconnected for non-payment of the minimum
charges. Defendant No.1 then made an application,
Exh.198, for resumption of the supply and transfer of the
service from the name of the landlady to his own name. On
his application, the electric supply was restored in the year
1979 and then the monthly bills, Exh.199 and Exh.200,
dated 2-12-1980 and 2-1- 1981 showed normal
consumption of electricity in the suit shop. There was no
explanation by defendant No.1 how and why the suit shop
that showed no electric consumption in earlier years started
showing normal electric consumption from December, 1979.
The resumption of electric consumption in the suit shop also
lends credence to the case of the plaintiff that after
remaining closed for two-three years, the shop was sub-let
by defendant No.1 to defendant No.2 who used it for his
milk business".
19. In view of above, what inspires that both the grounds were
squarely established by the plaintiff before the learned Trial
Court. Learned advocate Mr.Tolia failed to point out that learned
Courts below have failed to consider evidence in its true
perspective leads to erroneous judgment which goes to the root
of the case.
20. Two other grounds canvassed by learned advocate Mr.Tolia
that other partners are not joined party in suit, therefore, suit
suffers from mischief of non joining of necessary party. I fail to
countenance any fathom in such argument. Other partners have
got possession under mischief of subletting. Other partners of
'K.Popat and Company' have been inducted by tenant and since
NEUTRAL CITATION
C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025
undefined
he has exclusively part with possession, they become sub
tenant. Hence they are not necessary party to be joined in suit
between landlord and tenant under rent jurisdiction.
21. So far as submission that learned Appellate Court has not
framed issued and as such it is breach of Order 41 Rule 31 of
CPC is concerned, identical situation was pleaded before Hon'ble
Apex Court in the case of Nafees Ahmad v/s. Soinuddin [2025
INSC 520]. Hon'ble Apex Court referred judgment in case of Mt.
Fakrunisa v/s. Moulvi Izarus [AIR 1921 PC55]; Three Judge
Bench of Hon'ble Apex Court in the case of Thakur Sukpal
Singh v/s. Thakur Kalyan Singh [(1963) 2 SCR 733 and also
judgment in case of Sangram Singh v/s Election Tribunal,
Kotah, Bhurey Lal Baya [(1955) 2 SCR 1], in para 12 to 14
held that provision of Rule 31 should be reasonably construed
and should be held to require the various particulars to be
mentioned in the judgment. Relevant observations of Hon'ble
Apex Court reads as under :-
"12. The provisions of Rule 31 should therefore be
reasonably construed and should be held to require the
various particulars to be mentioned in the judgment only
when the appellant has actually raised certain points for
determination by the Appellate Court, and not when no such
points are raised.
NEUTRAL CITATION
C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025
undefined
13. We must also look into the provisions of Rule 30 of Order
41 for the purpose of fortifying our interpretation of Rule 31.
Order 41 Rule 30 CPC reads thus:
"30. Judgment when and where pronounced.─ (1)
The Appellate Court, after hearing the parties or
their pleaders and referring to any part of the
proceedings, whether on appeal or in the court
from whose decree the appeal is preferred, to
which reference may be considered necessary,
shall pronounce judgment in open Court, either at
once or on some future day of which notice shall
be given to the parties or their pleaders.
(2) Where a written judgment is to be pronounced,
it shall be sufficient if the points for determination,
the decision thereon and the final order passed in
the appeal are read out and it shall not be
necessary for the Court to read out the whole
judgment, but a copy of the whole judgment shall
be made available for the perusal of the parties or
their pleaders immediately after the judgment in
pronounced."
14. Thus, this Rule does not make it incumbent on the
Appellate Court to refer to any part of the proceedings in the
court from whose decree the appeal is preferred. The
Appellate Court can refer, after hearing the parties and their
pleaders, to any part of these proceedings to which reference
be considered necessary. It is in the discretion of the
Appellate Court to refer to the proceedings. It is competent to
pronounce judgment after hearing what the parties or their
pleaders submit to it for consideration. It follows therefore
that if the appellant submits nothing for its consideration,
the Appellate Court can decide the appeal without any
reference to any proceedings of the courts below and, in
doing so, it can simply say that the appellants have not
urged anything which would tend to show that the judgment
and decree under appeal were wrong. [See : "Thakur
Sukhpal Singh" (supra)]"
NEUTRAL CITATION
C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025
undefined
22. In recent past, the Hon'ble Apex Court in case of
Mrugendra Indravadan Mehta And Others Versus Ahmedabad
Municipal Corporation reported in 2024 (0) INSC 401
addressed this issue. The relevant para is 14 and 27, which
reads as under:-
"14. Perusal of the impugned judgment reflects that the High
Court noted the contentions of both parties and then
extracted the issues framed by the Trial Court in extenso.
The High Court, however, did not frame the points that arose
for determination in the appeal, in terms of Order 41 Rule 31
CPC. The High Court then referred to the arguments
advanced on behalf of the parties and started the discussion
on merits from para 5.1 of the judgment. The High Court
observed that compensation had been paid for the shortfall
of 974 sq. mts. @ Rs. 25/- per sq. mt. and noted that it was
not in dispute that the said compensation amount had been
accepted without protest. The High Court also noted that the
plaintiffs had not challenged the second varied Town
Planning Scheme No. 6, Paldi, under which they were
allotted Final Plot No. 187, admeasuring 2278 sq. mts., in
lieu of the originally allotted Final Plot No. 463, admeasuring
3890 sq. yds. The High Court also took note of the fact that
the plaintiffs supported the second varied scheme before the
Division Bench of the High Court in Special Civil Application
No. 3980 of 1992 and concluded that they could not make
out a grievance with regard to the non- delivery of the
remaining 974 sq. mts. of land.
27. This being the legal position vis-a-vis the Act of 1976, it
was contended before us by the plaintiffs that the impugned
judgment of the High Court is liable to be set aside on the
short ground that no points for determination were framed
therein, as required by Order 41 Rule 31 CPC. Reliance was
placed on Malluru Mallappa (Dead) through Lrs. vs.
Kuruvathappa and others, (2020) 4 SCC 313 wherein this
NEUTRAL CITATION
C/CRA/167/2021 CAV JUDGMENT DATED: 24/11/2025
undefined
Court observed that the first appellate Court is required to
set out the points for determination, record the decision
thereon and give its own reasoning. It was further observed
that, even when the said Court affirms the judgment of the
Trial Court, it has to comply with the requirements of Order
41 Rule 31 CPC as non-observance thereof would lead to an
infirmity in its judgment. However, it may be noted that no
absolute proposition was laid down therein to the effect that
failure to frame points for determination, in itself, would
render the first appellate Courts judgment invalid on that
ground."
23. In view of above, according to this Court, learned Courts
below have not committed any error in passing judgment and
decree. This Revision Application stands dismissed with
throughout cost. Notice is discharged. Interim relief granted
earlier, if any, stands vacated. Record and Proceedings, if any, be
send back to learned Trial Court concerned.
(J. C. DOSHI,J)
After pronouncement of judgment, learned advocate
Mr.Tolia submits to continue interim relief to avail remedy.
Reasons stated herein-above is not making applicant entitle for
interim relief, more particularly when he has already sublet and
non use rented premises to third party.
(J. C. DOSHI,J)
SATISH
