Gujarat High Court
Pushpaben Vishnubhai Amin (Deceased) vs Baman R. Kama on 15 October, 2025
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Reserved On : 24/07/2025
Pronounced On : 15/10/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 424 of 2024
With
R/CIVIL REVISION APPLICATION NO. 425 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
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Approved for Reporting Yes No
YES
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PUSHPABEN VISHNUBHAI AMIN (DECEASED) & ORS.
Versus
BAMAN R. KAMA & ORS.
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Appearance:
MR V Z BHARDA(12667) for the Applicant(s) No. 1,2,3
MR. VIVEK J BAROT(14202) for the Applicant(s) No. 1,2,3
MR JAMSHED KAVINA(11236) for the Opponent(s) No. 3
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
CAV JUDGMENT
1. With the consent of learned advocates appearing for the respective
parties, matter is taken up for final disposal. Hence, Rule returnable
forthwith. Mr.Kavina, learned advocate waives service of notice of Rule
on behalf of respondent - Trust.
2. The present Civil Revision Applications have been filed under Section
29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act,
1947 ('the Rent Act', for short), challenging the order dated 30.04.2024,
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passed in Regular Civil Appeal No.356 of 2018, whereby 4th Additional
District Judge, Vadodara, has allowed the appeal filed by the original
plaintiff against dismissal of the rent suit i.e. Rent Suit No.512 of 1999,
which was dismissed by the Additional Judge, Small Cause Court
Vadodara on 26.11.2018 and dismissed the cross-objections filed by the
tenant.
3. For the sake of brevity, the parties herein are referred to as per their
original status before the trial Court.
Facts :-
4.1 Civil Revision Application No.425 of 2024, has been filed,
challenging the judgment and order dated 30.04.2024, passed by the 4 th
Additional District Judge, Vadodara, in Regular Civil Appeal No.356 of
2018, whereby the first appellate Court was pleased to set aside the
judgment and decree, dated 26.11.2018, passed by the Additional Judge,
Small Cause Court, Vadodara, in Rent Suit No.512 of 1999, and in Civil
Revision Application No.424 of 2024, the challenge is against the order
in cross objections vide Exh:6, filed by the tenant on certain issues which
were held against the defendant before the trial Court and the trial Court
framed issues vide Exh.103, which read as under:
"(1) Whether the plaintiff proves that the defendant is a
monthly tenant of the suit property at a monthly rent of
Rs.115/- plus tax extra ?
(2) Whether the plaintiff proves that defendant is in arrears
of rent for more than six months ?
(3) Whether the suit notice is legal and valid ?
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(4) Whether the plaintiff proves that the suit premises is not
used by the defendant without reasonable cause ?
(5) Whether the defendant proves that the is bad for non-
joinder of necessary parties ?
(5-A) Whether the defendant proves that he has already paid
the rent to the plaintiff. But the plaintiff never issued
receipts thereof to the defendant?
(5-b) Whether the defendant proves that the plaintiff has,
wuith bad intention removed the part of the suit
property?
(5.C) Whether the defendant proves that the present suit is
barred by the provision of the Bombay Public Trust
Act ?
(5.D) Whether the defendants prove that the suit premises is
in use and they have not changed the mode of use ?
(6) Whether the plaintiff proves that the defendant has
changed the use of the rented premises therefore, he is
entitled to get vacant possession u/s 13 (1) (a) of the act
?
(7) Whether the plaintiff is entitled for the possession ?
(8) What order and decree ?"
4.2 The plaintiff examined himself vide Exhs.102 & 120. The
defendant examined himself vide Exh.162 and after taking into
consideration the oral and documentary evidence and giving findings on
all the issues, the trial Court dismissed the said suit.
4.3 Being aggrieved by the said judgment passed by the trial Court, the
landlord filed Regular Civil Appeal No.356 of 2018, and after re-
appreciating the evidence, the first appellate Court, on the ground that the
plaitniff has proved that, the defendant is tenant in arrears and that
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defendant has not been occupying in suit premises for the purpose for
which it was let for the last six months immediately preceding the suit,
allowed the said appeal and set aside the judgment and decree passed by
the trial Court in Rent Suit No.512 of 1999 and directed the defendants to
handover peaceful and vacant possession of the suit premises and the
cross-objections of the defendants were dismissed.
SUBMISSIONS OF THE DEFENDANT - PETITIONER :
5.1 It is the case of the defendant that the Statutory Notice under
Section 12(2) of the Bombay Rent, Hotel and Lodging House Rates
Control Act, 1947, which was dated 22/05/1997, was issued to the
Proprietor of Amin Automobiles viz. Vishnubhai Kashibhai Amin, who
had already expired on 07/07/1980 and therefore, the Statutory Notice
was issued to a dead person which is non-est in the eyes of law
5.2 It has been argued by the learned advocate for the defendant that it
has always been the case of the defendant that, Amin Automobiles was a
'Partnership Firm' and not a 'Proprietary Business'. The learned advocate
for the defendant relied on documents produced at Exhs. 151 & 152,
which pertains to the Register of Firms, as well as the entries, pertaining
to retirement and addition of new partners, at Exh. 153, which states
about notice of change of constitution of partnership business, the present
defendants joined as partners upon the death of Vishnubhai vide Exhs.
148 and 150. The defendant has produced the Deed of Retirement, which
makes it clear that "Amin Automobiles" was always a "Partnership
Business" and not a "Proprietary Business" since its inception dated
23.10.1965.
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5.3 Learned advocate for the defendant has argued that the suit for
eviction was filed against a Dead person and as the suit was brought
against him in the name in which he carried on business, therefore, the
suit being against a dead man, was itself a nullity from its inception.
Therefore, once the suit being a nullity, the writ of summons, issued in
the suit, by whomsoever accepted, is also a nullity. Similarly, any order
made in the suit allowing the amendment of the plaint, by substituting the
legal representative of the deceased and allowing the suit to proceed
against him, is also a nullity and therefore, it is immaterial that, the suit
was brought bona-fide and in ignorance of death of such a person. In the
Cross-examination of the Plaintiff/landlord had also admitted the said fact
that they had filed the suit against the dead person.
5.4 Moreover the learned advocate for the defendant has also argued
that, there was no valid service of the Statutory notice and in-spite of it
being served by way of R.P.A.D, with the endorsement 'Left', the same
can be no presumption of service under Section 27 of the General Clauses
Act 1897, to a dead person. Further, the appellate Court failed to
appreciate the fact that in the Cross-examination of the present
Applicants, it has been admitted that the present defendants had never
been served with any notice before the suit was filed and therefore, under
such circumstances, once the presumption stood rebutted, the burden
shifted on the plaintiff to examine the post-master and prove that there
was valid service of the said statutory notice.
5.5 It has been argued by learned advocate for the defendant that the
Appellate Court has arrived at an erroneous conclusion that since the
defendants had appeared before the Ld. Trial Court, when summons
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notice was issued on the same address where the statutory notice was
issued, it was to be presumed that the statutory notice was served, which
is not only factually incorrect, but has also led the Appellate Court to
reach upon a perverse finding, for the reason being that, when the suit
was filed by the Plaintiff landlord, the address supplied in the suit was the
address of the tenanted premises and when the Ld. Trial Court had issued
summons notice, dated 03/12/1999, which returned unserved dated
08/12/1999, thereafter, again the summons notice came to be issued by
the plaintiff landlords which returned unserved dated 21/01/2000, the
Plaintiff then on 07/02/2000, supplied new address, on which summons
notice came to be issued after which on 22/02/2000, the bailiff report
showed that the original defendant Vishnubhai Kashibhai Amin had
turned deceased, therefore, it is clear that the summons notice was served
on the new address and not on the address where the statutory notice was
served, thereby making it clear that no statutory notice was ever served to
the defendant.
5.6 Moreover it has been argued that since the statutory notice under
Section 12(2) was never served to the defendants, the question pertaining
to invoking Section 12(3)(a) and 12(3)(b) would itself not arise.
Therefore, it has been argued that once the Trial Court had arrived at the
correct conclusion that, the notice was not to a living person but to a dead
person, the Appellate Court ought not to have upset the findings of the
Trial Court to the effect that since, the summons notice was issued on the
same address, where the statutory notice was issued, it was to be
presumed that the statutory notice was served, which per se is not
factually incorrect, but a perverse finding reached upon by the Appellate
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Court. It has also been argued that it needs to be considered that the
Appellate Court, ought to have appreciated the fact that the defendants
being a partnership firm were always ready and willing to pay the rent
qua which a communication had also been issued to the plaintiff
landlords by Exh.140, which had been delivered, but had been refused by
the present plaintiff landlords and therefore, the Appellate Court ought to
have considered the fact that Section 12(1) of the Rent Act, would have a
pervading effect in construing and applying the subsequent rest of the
provisions of the section dealing with landlords right to seek decree of
eviction on the ground of arrears.
5.7 It has been argued that defendant had preferred an application dated
11/06/2012, before the Ld. Small Causes Court, below Exh. 114, for
opening an account and depositing the rent. It has also been argued that
the aspect that also needs to be considered is that the Ld. Small Causes
Court by way of an order dated 27/06/2012, passed below Exh. 114,
directed the Nazir to open a bank account after which the present
defendants have diligently been paying the rent and have paid it up till
31/12/2000. This shows that the defendants have always been ready and
willing to pay the rent and that there [was no negative approach] of the
defendants so as to show that they were never ready and willing to pay
the rent. This ought to have been made good by the respondent/plaintiff
landlords which they have failed to do so.
5.8 It has also been argued that it is the case of the Defendants that,
they had preferred a communication to the Parsi Panchayat, which was
dated 23/11/1993, which is adduced below Exh.141, the said
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communication emphatically stated that the Defendants had paid the rent,
but receipts had yet not been issued by the plaintiff and, therefore, it was
requested of the plaintiff to issue the said receipts. It has been argued that
what is important is that the defendants had communicated the concern
regarding the fact that the property needed urgent repair work, to the
Parsi Panchayat to which the Parsi Panchayat, had also endorsed of
receiving the said communication by issuing pavtis which have been
adduced below Exh. 136 & 137.
5.9 It has been argued that it needs to be considered that the
Plaintiff/landlord trust has surfaced mutually destructive pleas there-by
disentitling them of any relief. They in their own cause of action as well
as in the averments made in their plaint have stated that from 01/04/1994,
the property was not being used and then in their own Examination-in-
Chief, not once but twice they have stated that the property was not used
before the death of Vishnubhai Kashibhai Amin (i.e.) before 1980.
5.10 It has also been argued that it needs to be taken into consideration
that in their Examination-in-Chief on one hand they have stated that the
property had stopped being used before Visnubhai turned deceased (i.e.)
before 1980 and on the other hand in their own Cross-examination they
have stated that they were unaware of the death of Vishnubhai. Therefore,
it has been argued that if the Plaintiffs were unaware of the death of
Vishnubhai, then how they could emphatically state that property had
stopped being used before the death of Vishnubhai, thereby meaning that
they were aware of his death and before the appellate Court, one of the
grounds which has been raised by the Plaintiff again creates an absolute
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contradistinctive stand to what had been stated in Examination- in-Chief
as now the Plaintiffs emphatically state that after the death of Vishnubhai
Kashibhai Amin (i.e.) after 1980, the property was not in use.
5.11. It has been further argued that even after the communication below
Exh. 141 (i.e.) dated 23/11/1993 was issued by the defendants to the
Plaintiffs, no steps were taken by the Plaintiff-Landlord so as to see that
the premises are kept in a good and tenantable repair. The learned Small
Causes Court had reached upon the correct conclusion that the Plaintiff
had with a mala-fide intention neglected to keep the property in a good
and tenantable repair condition there-by which the Vadodara Municipal
Corporation issued notice dated 17/09/1998 so as to demolish the
dilapidated portion of the subject property.
5.12 It is further argued by learned advocate for the defendant that
assuming but not admitting about the fact that the Defendants had to
prove or show that they were using the suit property after the death of
their father in the year 1980, then it is the Plaintiff-Landlord's case itself
from the averments in their plaint as well as from their cause of action
that the suit property was never used from 01/04/1994, which constitutes
an unequivocal admission about the fact that the property was being used
from 1980 to 01/04/1994, there-by satisfying the ingredients under
Section 5(11)(c)(2). Also, what needs to be considered is the fact that no
statutory notice under Section 12(2) was ever issued to the present
defendants and, therefore, on the basis of a notice to a dead person, the
suit itself was not maintainable.
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5.13 It has also been argued that the defendants had joined the
partnership firm in 08/07/1980. It is further argued that after the year
2000, after the first floor and second floor was demolished, no business
could be carried out and therefore, the defendant No.2 joined the legal
profession in the year 2006. What also needs to be considered is that as
per the Bar Council of India Rules, Section 50 unequivocally states that
an advocate who has inherited or succeeded to a family business may
continue it, but they are not permitted to personally participate in the
management of that business. The said rule ensures that advocates
maintain their professional conduct and avoid conflict of interest that
arises from directly managing the business while practicing law.
Therefore, it has been argued that it is an undisputed fact that the business
premises could not be used after the two floors were demolished, after the
year 2000 and as there was no business being carried out, the question
pertaining to direct participation in the management would not come into
play and therefore, there was no such breach committed by the defendant
no.2. Also, it is further argued that no such ground was ever pleaded
before any of the Ld. Courts below and therefore, the same cannot pass
muster before this hon'ble court. It is further submitted that assuming
without admitting that due to some inadvertence in recording an incorrect
deposition, it would not be a ground per-se on the basis of which an
eviction decree could be passed. It is further argued that the Plaintiff-
Landlord would still have to make out a case qua eviction and solely
cannot rely upon a discrepancy in the Applicant-Defendants deposition.
5.14 It has been argued by the learned advocate for the defendant that
the Appellate Court has not considered the Cross-objections in their
correct perspective regarding the fact that Amin Automobiles was a
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partnership firm and not a proprietary business. It has also been argued
that in the present Civil Revision Applications, the defendants have
pleaded the ground on non-joinder of necessary parties, which pertains to
the partnership firm not being a party to the said suit filed by Plaintiff-
Landlord. Also, in the Cross-objections it had been stated that no delay
application had also been preferred while bringing the applicants on
record and that the suit was filed against a dead person.
5.15 It is further stated and submitted that the when the Court
Commission was carried out and upon realizing that no written statement
had been filed by the earlier Ld. Advocate till date, the present Applicant-
Defendants had preferred an application so as to reopen their right to file
written statement which came to be granted by the Ld. Small Causes
Court dated 20/03/2012 which is below Exh. 111. It has also been argued
that, a fine to the tune of Rs 1000/- had been deposited by the Defendants
before the Baroda District Bar Library after which the right to file
written-statement was reopened and after which the Defendants have not
only been paying rent diligently but have paid it up till 31/12/2000.
5.16 It has been argued by learned advocate for the defendants that, they
have adduced the Sales-tax receipts as well as the Electricity Bill at Exh.
143-147 and Exh. 142, which shows that in-spite of the subject-property
being in a dilapidated condition, the defendants tried using it, until it
became impossible to use it, and which could only be used after structural
changes were undertaken qua which the permission of the Plaintiff-
Landlord was necessary. It is also argued by the learned advocate for the
defendant that it was also the case of Plaintiff-Landlord that the
Defendants had carried out permanent construction, however, both the
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courts have concurrently held against the Plaintiff-Landlord, it makes the
said fact unequivocally clear that the Plaintiff-Landlord would never have
given permission to carry out structural changes, until which the subject-
property could never have been used.
5.17 It has been argued by the learned advocate for the defendant that
no points of determination had been framed by the Ld. Appellate Court
under Order 41 Rule 11,14,15 & 31 of the Code of Civil Procedure along
with Rule No.414 of the Bombay Civil Manual, which makes it
obligatory in nature for the Ld. Appellate Court to frame suitable points
of determination. It has been argued that in the present case not a single
point of determination had been framed by the Ld. Appellate Court. In-
fact what also needs to be considered is the fact that the Ld. Appellate
Court in its judgement has stated that in-spite of the Ld. Trial Court not
framing an issue on Section 5(11)(c), the Ld. Appellate Court had under
Order 14 Rule 5 treated it as an additional issue without framing the same
which practically amounts to passing the judgement/decree on a claim or
relief without framing an appropriate issue on the said subject.
5.18 Learned advocate for the defendants has relied on the following
authorities with respect to Section 12, of the Bombay Rent Act.
(i) Mohmmed Sabir Ibrahim Byavarwala VS Yusufbhai
Noormohmmed Jodhpurwala, 2013 (0) AIJEL - HC
230160;
(ii) Madhuriben Shashikant Joshi VS Sarlaben Yashchandra
Desai, 2006 (0) AIJEL - HC 216151;
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(iii) Jabal C. Lashkari VS Official Liquidator, 2016 (0)
AIJEL - SC 58097;
(iv) Sevumal Topandas Sadhwani VS Jaynomal Nanomal,
1993 (0) AIJEL - HC 211107;
(v) Udyomal Nathumal VS Premchand Trikamdas Baswani,
1980 (0) AIJEL - HC 213162;
(vi) Vadhere Devabhai Govindji VS Rameshwapuri
Ratanpuri, 1983 (0) AIJEL - HC 213461;
(vii) Oza Kumbhar Naran VS Mehta Nanalal Jethabhai, 1986
(0) - AIJEL - HC 208893; and
(viii) State of Andhra Pradesh, Rep by Its Prl Secretary Vs
A.Bharathi, 2002 (0) AIJEL - AP 408154.
5.19 Learned advocate for the defendants has relied on the following
judgments with respect to Section 13(1)(k) of the Rent Act in the case of
Gopal Dattaraya Chapahlkar Vs Govind Yashwant Borkar, 1997 (0)
AIJEL - MH 121204.
5.20 With respect to issue pertaining to 'Framing of Issue', learned
advocate for the defendant has relied on the authority in the case of Shah
Nagindas Vadilal Vs Heirs of Decd. Mohanlal Bapuji Patel, reported in
2025 (0) AIJEL - HC 250278.
5.21 It has been argued by learned advocate for the defendants that in
view of the above, the judgment and decree passed by the first appellate
Court is required to be quashed and set aside and the present Civil
Revision Application is required to be allowed.
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SUBMISSIONS OF THE PLAINTIFF - RESPONDENT :
6.1 Per contra, learned advocate for the plaintiff has mainly argued
that suit property was let out at the rate of Rs.115/- per month to the
original defendant, Lt. Vishnubhai Kashibhai Amin who was running
Amin Automobiles. The shop, including the liability to pay Municipal
Tax, Electricity Bill etc. was let out only for business purpose and rent
was to be paid every month.
6.2 It has been argued by learned advocate for the plaintiff that it is the
case of the plaintiff that the suit property was never let out to Amin
Automobile as a partnership firm, it was only let out to Vishnubhai Amin
in his personal capacity. Moreover, the plaintiff Trust was never aware of
the existence of partnership firm and the factum of death of Vishnubhai
Amin, was never communicated by the Defendants, by any letter or
communication and it was only after the bailiff's endorsement in the rent
suit, that the plaintiff Trust became aware of the death of the tenant
Vishnubhai Amin and the case of the plaintiffs was that taxes were to be
paid by the tenant, in fact, to date, the pending property tax dues for the
suit property are amounting to Rs.4,48,663/-.
6.3 With respect to fact that defendant is trying to rely on Exh.141, i.e.
letter sent by Shailesh Amin, on behalf of Amin Automobiles, that the
property had become weak and there is termite problem and therefore, the
trust should give some solution for the same, in the said letter also there is
no mention of Shailesh Amin being a partner of Amin Automobiles and
that said Amin Automobile is a partnership or a proprietorship and it has
been argued that the said letter is simply on behalf of Amin Automobiles,
moreover, even from the said letter, there is nothing that has been stated
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to prove that the plaintiff was aware of the death of Vishnubhai.
6.4 Learned advocate for the plaintiff has argued that, with respect to
document produced vide Exh.137, the same is letter written by the
plaintiff endorsing the receipt of rent, till 31.12.1993 and the said letter is
addressed to Shaileshbhai Amin "Shri Amin Automobile" and the said
document also does not mention the word ' parternership or propreitor'
and the plaintiff trust addressed the said letter to Shaileshbhai Amin, as
last letter from Amin Automobile was from Shaileshbhai Amin and even
from the said letter it cannot be concluded that the plaintiff was aware
that, Vishnubhai had expired and that Amin Automobile is a partnership
firm and that Shaileshbhai is partner of the said Partnership firm.
Therefore, even on the said date, the plaintiff was under impression that
Vishnubhai Amin was tenant of the property.
6.5 It has been argued by learned advocate for the plaintiff that the fact
remains that Vishnubhai Amin had not made payment of rent which was
due since 01.01.1994 and, therefore, plaintiff had issued notice to
Vishnubhai Amin (proprietor of Amin Automobile ) whice is produced
vide Exh.104, the said notice was sent through R.P.AD. at the suit
property. Moreover, the cover of the said notice indicates that it was
addressed to Vishnubhai Kashiji Amin, Amin Automobile and in the
said cover also there is no mention of word "proprietor" or "partner" and,
therefore, plaintiff-trust issued notice to Vishnubhai Amin as proprietor
of Amin Automobile, as on the date, when the said notice was issued, the
plaintiffs were not aware of death of Vishnubhai Amin or that Amin
Automobile being partnership firm. Moreover, the said notice was
returned with the endorsement 'left' therein and it is an admitted fact that
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at that time, shop was not being used by the defendants. Therefore, the
plaintiff has fulfilled requirement of serving notice under Section 12(2)
before instituting the suit.
6.6 It has been argued by learned advocate for the plaintiffs that the
palintiffs filed rent suit on 25.11.1999, the said suit was filed against
Vishnubhai Amin, proprietor of Amin Automobile and it has been argued
by learned advocate for the plaintiff that on the date when the suit was
filed, plaintiff was not aware that Vishnubhai Amin had expired and that
Amin Automobile is partnership firm. Therefore, it has been argued that
the plaintiff trust served a legal and valid notice under Section 12(2) of
the Rent Act as per its knowledge and information and, therefore, in view
of the fact that Vishnubhai Amin had expired on the date when the notice
was issued cannot be a ground that the ntoice was not properly served and
the suit would fail for arrears of rent.
6.7 It has been argued by learned advocate for the plaintiff that it is
only on 22.02.2000, that in the Rojkam, the entry is made for the first
time, which showed that, the original defendant Vishnubhai Amin had
passed away and, therefore, this is for the first time that the plaintiff came
to know that Vishnubhai Amin had expired and, therefore, the plaintiff
filed an application below Exh.15 on 15.04.2000, to bring the legal heirs
of deceased - defendant (opponent). Thereafter on 14.06.2000, an order
was passed below Exh.15 whereby legal heirs of Vishnubhai Amin have
been impleaded as party defendant as legal heirs of deceased defendant
Vishnubhai Amin and at that stage also the legal heirs of Vishnubhai
Amin had not come forward with the case that they are not tenants in the
suit premises and the suit property was given on rent to Amin
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Automobiles partnership firm and after death of Vishnubhai Amin, the
partners of Amin Automobiles shall be the tenants in the suit premises.
6.8 It has been argued that it is only on 11.08.2000, that a letter is sent
by Amin Automobile to the plaintiff which is produced vide Exh.140,
that a Money Order dated 10.08.2000, is sent for rent till 31.12.2000, and
the same should be accepted and thus it was for the first time that only
after filing of the suit, that the defendants used stamp of partner of Amin
Automobile. The defendants never proved that the amount was accepted
by the plaintiff. Moreover, there is nothing on record to prove that as the
plaintiff refused to accept the said amount, the defendant attempted to pay
the said amount in the Court.
6.9 It has been argued by learned advocate for the plaintiff that issues
were framed on 16.09.2009, vide Exh.81 and thereafter examination-in-
chief was filed by the plaintiff on 19.1.2012, vide Exh.102, the same was
affirmed on 22.12.2011 and filed on 19.01.2012. It is only thereafter, on
09.02.2012, that the defendants filed an application to condone the delay
in filing the written statement and thereafter written statement is filed
vide Exh.113, on 20.03.2012. In the said written statement the defendants
have not taken the contention that the defendants are partner of Amin
Automobile and that notice was not sent to partnership firm of Amin
Automobile or that the defendants have been impleaded in the wrong
capacity. Thereafter the issues were re-cast on 12.06.2012 and it is only
on 12.06.2012, that Vide Exh.114, that the defendants tried to tender the
rent in Court and on 27.06.2012, the application of defendants to tender
the rent in the Court was allowed and for the first time, the rent was
deposited by the defendants on 16.07.2012, therefore, it is the case of the
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plaintiff, that rent was not deposited on first date of hearing and
defendants vide Exh.164, deposited the rent before the trial Court for the
first time on 16.07.2012.
6.10 Learned advocate for the plaintiff has also argued that if the oral
evidence of the defendant is taken into consideration which has been
produced vide Exh.162, the defendant has not taken a contention that no
statutory notice under Section 12 of the Rent Act has been served on the
partnership firm or that partners have not been impleaded in the suit.
Therefore, the said contention cannot be raised at a belated stage in the
present proceedings. Moreover, it has also been argued by learned
advocate for the plaintiff that even in the cross-examination, the
defendant has categorically stated that in his written statement he has not
taken a plea that the suit property, was given on rent to partnership firm
and has admitted that rent was first deposited by the defendant on
16.07.2012.
6.11 Learned advocate for the plaintiff has also argued that, it is the case
of the defendant that notice dated 22.05.1997, was issued to dead person
and the fact remains that notice was served at the shop and the said shop
was shut because the defendant was not using the said shop and the fact
that the plaintiffs were not aware that Vishnubhai Amin had passed away
and only in view of the fact that Vishnubhai Amin had passed away could
not be a ground that the notice was not served in accordance with the
provisions of Section 12 of the Rent Act.
6.12 Learned advocate for the plaintiff has also argued that cross-
objections that are filed also have rightly been decided by the first
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appellate Court, in view of the fact that there was no claim in the said
cross objection that the partnership firm was not served with the notice of
the suit, therefore, the notice dated 22.05.1997, is valid and deemed to be
served on the defendants and, therefore, fulfilling requirement of Section
12(2) of the Act. The defendants have not produced any bank statement
to show any payment of rent prior to 2012 and even in the cross-
examination the defendant has admitted that the rent was paid for the first
time in the Court in the year 2012 and therefore also the appellate Court
has rightly passed the judgment and decree of eviction against the
defendant. Moreover, requirement of Section 12(3)(b) of the Rent Act
were not fulfilled by the defendant as no rent was paid within the period
of six months from the date of service of notice and instead the defendant
deposited the amount of rent after 13 years of institution and, therefore,
defendants are tenant in arrears.
6.13 With respect to the service of notice and no requirement of
examination of Postman, learned advocate for the plaintiff relied on
judgment reported in 1974 (0) AIJEL HC 207686 : 1974 (0) GLR 655
in the case of Memon Adambhai Haji Ismail vs. Bhaiya Ramdas Badiudas
and the judgment reported in 2021 (0) AIJEL SC 67807 : 2021 (19)
SCC 549 in the case of Vishwabandhu vs. Krishna and Anr.
6.14 With respect to the argument of learned advocate for the plaintiff
that under the provisions of Section 12(3) of the Rent Act, the plaintiff is
entitled for eviction. Learned advocate for the plaintiff has relied on
judgment reported in 2015 (6) SCC 526 : 2014 (0) AIJEL-SC 56383 in
case of Yusufbhai Noormohammed Jodhpurwala Versus Mohmmed
Sabir Ibrahim Byavarwala so also on judgment (no.4) reported in 2000
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(0) AIJEL-HC 201899 : 2001 (2) GLR 1144, in case of Brahmanand
Layakram Versus Shah Natwarlal Harakhlal.
6.15 With respect to argument of learned advocate for the plaintiff that
under the provisions of Section 12(2) notice being sent by registered post
the same is proved by the plaintiff to have been served, learned advocate
for the plaintiff relied upon 1988 (0) AIJEL SC 16260 : 1989 (1) SCC
264 in case of Madan And Company Versus Wazir Jaivir Chand.
Similarly, learned advocate for the plaintiff has also relied on 1990 (0)
AIJEL SC 9961 :1990 (4) SCC 497 in case of Green View Radio
Service Versus Laxmibai Ramji wherein in para:5, it has held that "In
view of these circumstances, we hold that the mere denial by Amarjeet
Singh that he did not receive the notice cannot be believed and as such
there is no rebuttal of the presumption drawn against him under Sec.
114 of the Evidence Act." and also relied on judgment reported in 2019
SCC Online Bom 1878 in case of Sunanda Ramkrishna Ayare and
Others ... Applicants. Versus Harishchandra Gopal Parab (Since
Deceased) Through His Heirs and L. Rs. Deepak Harishchandra
Parab and Others ... Respondents, more particularly paras:15, 16 and
17, which read as under:
"15. Here, the landlords served the statutory notice, received a
reply, and then sued. It is one continuous process. Incidentally, in
the meanwhile, the tenant died. But with him, the cause of action,
too, did not die. So the landlords sued the tenant's legal
representatives, who continued to occupy the leased property only
being the original tenant's legal heirs.
16. So, I am afraid the applicants' contention that they should have
been notified under section 15 of the MRC Act afresh does not pass
the judicial muster. There is no privity of contract between the
landlords and the applicants 1 and 2. They only trace their right
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through their deceased ancestor, the original tenant. Then they
take those rights with all the liabilities or burdens as well. As the
legal heirs, they could press forward only the plea available to the
deceased original tenant. In other words, they have simply stepped
into the original tenant's shoes. Nothing more.
17. In that context, I reckon the notice issued to the original tenant
binds his legal representatives. So long as they have no
independent claim of tenancy vis-a-vis the landlords, their
insistence on having a fresh notice to quit does not arise. I,
therefore, hold that the law does not mandate that the legal
representatives of the deceased tenant should be put to a fresh
notice on the original tenant's death. To that extent, the concurrent
findings of the Courts below cannot be interfered with."
6.16 Moreover, it has been argued by learned advocate for the plaintiff
that no evidence can be led beyond pleading and, therefore, in view of the
fact that defendants have not taken any ground of non-service of statutory
notice to the partnership firm and the same is served on a dead person, no
evidence can be led beyond pleadings, learned advocate for the plaintiff
has relied on the judgment reported in 2008 (0) AIJEL HC 42971 : 2008
(17) SCC 491 in the case of Bachhaj Nahar v. Nilima Mandal.
6.17 With respect to the judgment in the case of Yusufbhai
Noormohammed Jodhpurwala Versus Mohmmed Sabir Ibrahim
Byavarwala (supra) relied upon by learned advocate for the defendants,
it has been argued by the learned advocate for the plaintiff that in the said
case the tenant was evicted and contention was raised that notice was
served at the daughter at the residence and, therefore, is not proper notice.
The said judgment will not be applicable to the facts of the present case.
6.18 With respect to the fact that the plaintiff is entitled for possession
of the property under Section 13(1)(k) of the Rent Act and defendants are
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not tenants under Section 5(11)(c) of the Rent Act, it has been argued by
learned advocate for the plaintiff that in the entire pleadings there is no
averment that the defendants were conducting business with their father
at the time of his death, which is required under Section 5 (11)(c) (ii) of
the Rent Act. Even in the letter that has been written by defendants on
23.11.1993, which is produced vide Exh.141, there is no proof of any
business being conducted from the year 1980 i.e. from the year
Vishnubhai Amin expired till the year 1993.
6.19 Moreover, it has been argued that there is no proof before the letter
produced vide Exh.193, by defendant of any grievance of non-usability of
the property, nor any letter or communication written by the defendant,
seeking permission for repair, nor during the pendency of the suit or
independently also the defendants have repaired the property under
Section 23(2) of the Rent Act and under the said provisions also the
defendants could have made repairs in the property and deducted
expenses from the rent. Therefore, defendants cannot taken the ground
that suit property was in a bad condition and, therefore, it is not being
used.
6.20 Moreover, learned advocate for the plaintiff has also argued that if
documents produced vide Exh.157, dated 17.09.1998, is taken into
consideration, notice was issued by the Corporation that condition of the
suit property is dilapidated, the said letter was addressed to the plaintiff
under Section 264 of the Bombay Provincial Municipal Corporation Act,
the said letter has been produced by the defendants in the suit. However,
the defendants have not taken any steps to make property useable and
there is no request made to the plaintiff to repair nor any permission was
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sought to repair the same. Moreover, if the documents, produced vide
Exh.139, dated 17.07.2000, is taken into consideration, by the letter
written by the plaintiff, to proprietor of Amin Automobile, which states
that notice has been received by the Corporation for demolition of the
building, the defendants had not disputed having received such letter and
did not dispute that the letter being addressed to them as proprietor of the
Amin Automobile.
6.21 Learned advocate for the plaintiff has also argued that if documents
produced vide Exh.140, is taken into consideration, the same is letter
which has been sent by Amin Automobile and that is for the first time
defendant stated that the roof is removed, the same is after filing of the
suit on 25.11.1999. Moreover, no electricity bill has been produced by the
defendant till the year 2001, to show that the defendants are using the
premises more particularly in view of the fact that defendant - original
tenant had expired in the year 1980, there is nothing on record to show
that the defendants are tenant under Section 5(11)(c) (ii) of the Rent Act.
The plaintiff has also made a clear contention that in the examination-in-
chief that the defendants are not using the said premises and that the
defendants have not remained in the property, the plaintiff has also
reiterated that the defendants are not using the premises since years.
6.22 Learned advocate for the plaintiff has also argued that in the
examination-in-chief which is produced, vide Exh.162, the legal heirs of
deceased - defendant has stated that he has been using shop after the year
1990-91 to help their father in the business, in view of the fact that the
original tenant Vishnubhai Amin had expired in the year 1980, the
question of Shaileshbhai Amin helping him in his business in the year
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1991, cannot be believed. Moreover, there is no proof of any sales or
purchases by the alleged partnership firm. There is nothing on record to
show and to prove that the defendants had a reasonable cause for keeping
the suit premises closed. It has also been argued that on going through the
testimony of the defendant, there is clear admission that the defendant
no.3 is residing in foreign country, defendant no.2 is practicing Advocate
and defendant no.3 has died and defendant in his evidence has not
produced any Income Tax return of Amin Automobile after the year
1980. The defendant failed to produce any invoice or document which
may establish that they have been carrying on business in the suit
premises. It has been argued that even the Panchnama vide Exh.166, it
has been observed that since considerable period of time suit property is
lying vacant.
6.23 Learned advocate for the plaintiff has argued that onus was on the
defendants to prove that the suit property has been consistently in use to
seek protection in view of the Section 13 (1) (k) of the Rent Act and in
the present case, defendants have failed in proving the said fact and,
therefore, Regular Civil Appeal No.356 of 2018 has rightly been allowed
by the first appellate Court. Moreover, with respect to the fact that the
plaintiffs is entitled for possession of the suit premises under Section
13(1)(k) of the Rent Act, learned advocate for the plaintiff has relied on
the judgment reported in 2012 (0) AIJEL-HC 228907 in case of
Rameshvar Madhulal Shah Versus Gordhanbhai Kacharabhai
Decd.Thro Heirs.
6.24 With respect to the fact that the Rent Court has exclusive
jurisdiction to decide the issue under the provisions of Section 5 (11) (c)
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of the Rent Act, learned advocate for the plaintiff has relied upon the
1980 (0) AIJEL HC 208183 in case of Nafisaben W/o Badrudin
Tofafarosh Versus John Alias Zenub Abdulkadar Babuji.
6.25 With respect to the fact that there is sufficient compliance of Order
41 Rule 31 of CPC, learned advocate for the plaintiff has relied upon the
judgment reported in (2024 (0) AIJEL SC 73647(judgment no.11) in
case of Mrugendra Indravadan Mehta And Others Versus Ahmedabad
Municipal Corporation.
ANALYSIS :
6.26 Having heard learned advocate for the parties and having
considered the judgment and decree passed by the trial Court and the
appellate Court, the plaintiff had filed a Civil Suit for eviction on the
ground that the tenant is in arrears of rent and that the tenant has not used
the suit properties for the purpose for which it was let for last six months
preceding the date of filing the suit, and therefore, the plaintiff has
claimed that he was entitled for possession of the suit property, under the
provision of section 13(1)(k) of the Rent Act. In the present case, if the
case of the plaintiff is taken into consideration, the plaintiff has come
forward with a case before the Court that, Vishnubhai Amin proprietor of
Amin Automobile is the tenant of the plaintiff and the suit property was
let to Vishnubhai Kashibhai Amin, proprietor of Amin Automible, at the
rate of Rs.115/- per month and he was tenant in arrears, a notice was
issued, vide Exhibit-104, dated 22.05.1997 and as the tenant did not
comply with the said notice, the plaintiff filed a suit for eviction under
Section 12(2) of the Bombay Rent Act. Moreover, the plaintiff had also
filed suit on the ground that the suit property is not used for the purpose
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for which it was let for last six months preceding the date of filing the
suit, and therefore, the plaintiff is entitled to the suit property under
section 13(1)(k) of the Rent Act.
6.27 If the defence of the legal heirs of Vishnubhai Amin are taken into
consideration, they have put forward a defence, that the tenant of the suit
property was, partnership firm "Amin Automobile" and the suit property
was not given on rent to Vishnubhai Amin in his personal capacity, and
the notice that has been served under section 12 of the Rent Act, was,
against a dead person, in view of the fact that on 07.07.1980, Vishnubhai
Amin had expired, and therefore, the notice served under section 12 of
the Rent Act being bad, illegal and against the provision of law, the
appellate Court could not have granted a decree of eviction under section
12 of the Bombay Rent Act. Moreover, it has been argued that the
appellate Court has wrongly taken into consideration that the notice under
section 12 of the Rent Act and summons of the suit, both were served at
the same address. In view of the fact that the plaintiff has served the
notice to a dead person, and therefore, the appellate Court could not be
granted a decree.
6.28 With respect to the contention of the plaintiff that the defendant is
not occupied the premises for the purpose for which it was let for last six
months preceding the date of filing of the suit. The defendant has mainly
relied on the examination-in-chief filed by the plaintiff, wherein, it has
been stated that defendants have stopped using the suit premises before
Vishnubhai passed away in the year 1980, and in the cross-examination,
the plaintiffs have stated that they are not aware as to on which date
Vishnubhai had expired. Moreover, it has also been argued that the suit
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property was in a dilapidated condition and the plaintiff had not taken any
steps to keep the same in good and tenantable repair and in view of the
fact that after the year 2000, as the first floor and second floor portion
was demolished, no business has been carried out, and therefore, the
plaintiff is not entitle for possession of the suit premises under section
13(k) of the Rent Act.
6.29 The other submission that has been made by learned advocate for
the defendant is that though the tenant of the suit property was of the
partnership firm, as the partnership firm is not joined in the suit, no
decree could have been passed by the Court under section 13(1)(k) of the
Rent Act.
6.30 Considering the submissions made by the parties, the first
submission is with respect to the fact of tenant being in arrears of rent, the
fact remains that if the entire correspondence between the plaintiff and
Shailesh Amin i.e. son of Vishnubhai Amin, are taken into consideration,
there is not even a whisper in the said communication that the same is
made by Shaileshbhai Amin, as a partner of Amin Automobile, nor there
is a mention that Vishnubhai Amin had expired in the year 1980.
6.31 If the letter produced, vide Exhibit-141, dated 23.11.1993, is
taken into consideration, from the said letter, it cannot be established that
Vishnubhai Amin had expired and that Amin Automobile was a
partnership firm, and therefore, on 23.11.1993, the plaintiff was not
aware that Vishnubhai Amin had expired. Even in the letter produced
vide Exhibit-137, dated 14.01.1994 in the said letter which is written by
the plaintiff trust and which has been addressed to Shaileshbhai Amin, in
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the said letter also, there is absolutely nothing on record that the plaintiff
was aware that Amin Automobile is a partnership firm and the said letter
has been addressed by the plaintiff to Shaileshbhai Amin.
6.32 The fact remains that the rent that was due was from 01.01.1994,
and thereafter, on 22.05.1997, the plaintiff issued a notice to the tenant
Vishnubhai Kashibhai Amin, proprietor of Amin Automobile, by
registered Speed Post, at the suit property which is produced vide
Exhibit-104, wherein it has been specifically stated that the rent is due
from 01.01.1994 to 30.04.1997, i.e. 40 months, rent at the rate of Rs.115/-
per month. The cover of the said notice, which is produced, vide Exhibit-
105, states that the same is addressed to Vishnubhai Kashibhai Amin,
"Amin Automobile" and the said cover does not mention the word
proprietor or partnership firm, on the said cover and the said notice was
addressed to Vishnubhai Amin, as proprietor of Amin Automobile and
the said envelop returned with an endorsement left therein and the
defendant has not produced any evidence to show and prove that they
were occupying the premises from the year 1980, till the date of filing the
suit.
6.33 If the Civil Suit filed by the plaintiff is taken into consideration, the
said suit is filed by the plaintiff, against Vishnubhai Amin, after serving a
notice to Vishnubhai Amin, in view of the fact that the plaintiff was not
aware of the death of Vishnubhai, the said notice was as per law, in view
of the fact that it is only when, the notice is served of the present
proceedings i.e. on 02.02.2000, the plaintiff came to know for the first
time that Vishnubhai Amin had passed away, and therefore, on
15.04.2000, vide Exhibit-15, the plaintiff filed an application to bring the
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legal heirs of defendant Vishnubhai Amin, on record and the fact remains
that though the defendant has come forward with a case that the partners
of Amin Automobile were tenant in the suit property, the application that
was filed, was filed by the plaintiff to add the legal heirs of Vishnubhai
Amin as party defendant and the order passed by the trial Court, vide
Exhibit-15 is also to join the present defendants as legal heir of
Vishnubhai Amin and the said order has not been challenged by the
defendants on the ground that, the legal heirs are not proper party in view
of the fact that partnership firm was a tenant in the property, and that, the
plaintiff ought to have joined the partners of Amin Automobile. It is only
after filing the suit that, a letter is written by Amin Automobile, to the
plaintiff, dated 11.08.2000, produced, vide Exhibit-140, states that by
Money Order dated 10.08.2001, rent till 31.12.2000, has been sent and
the same should be accepted and receipt to be issued and it is for the first
time that the tenant has come forward with a stamp of partnership firm,
Amin Automobile, but there is nothing on record that the defendants have
accepted the rent from the partnership firm.
6.34 In the said suit, the issues were framed, vide Exhibit-81 on
16.09.2009, which is first date of hearing under section 12(3)(b) of the
Rent Act. The examination-in-chief was filed by the plaintiff, vide
Exhibit-102 on 19.01.2012 and it is only after the filing of examination-
in-chief, that an application was given by the defendant, to condone the
delay in filing written statement, the said application was given, vide
Exhibit-111 and written statement, therefore, is filed, vide Exhibit-113,
the defence that has been taken in the written statement were that, the
plaintiff did not accept the rent and in the said written statement also
there are no contentions raised by the defendants that they are the partners
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of Amin Automobile and that the statutory notice produced vide Exhibit-
104, are not sent to partners of Amin Automobile or that the defendants
have been wrongly impleaded in the suit proceedings and it is only after
the issues having been framed and the examination-in-chief, having been
filed i.e. on 12.06.2012, vide Exhibit-114. For the first time, defendants
have come forward with a case of tendering rent in the Court and on
27.06.2012, defendants were permitted by the Court to tender rent in the
Court, therefore, on the date of framing all the issues i.e. on 16.09.2009,
defendants had not deposited the rent, and thereafter, even in the
examination-in-chief, filed by the defendants they have not stated that
partnership firm was not served with the notice or that partners have not
been impleaded in the said suit and even in the cross-examination,
defendants have categorically admitted that they had not stated in the
written statement that the property was let out to the partnership firm and
that no notice was issued to the partnership firm.
6.35 In the present case, if the entire case of the defendants is taken into
consideration, defendants have not come forward with a case that the
defendants in their personal capacity or as legal heirs of Vishnubhai
Amin were not the tenants of the suit property and that the suit property
was given on rent to, "Amin Automobile", partnership firm and that the
partners of "Amin Automobile" have to be considered as tenant in the suit
property, if the said facts have to be considered, neither the said defence
has been taken by the defendants in the capacity of partners of Amin
Automobile nor have the defendants filed an application before the trial
Court or the appellate Court to be joined as party defendants in their
capacity as partners of Amin Automobile.
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6.36 If the entire case of the defendants before the trial Court and
appellate Court are taken into consideration, the fact remains that vide
Exhibit-1, the trial Court had come to the conclusion that the plaintiff has
proved that the defendants are tenant of suit property at a monthly rent of
Rs.115/- plus extra tax and the said issue has not been challenged by the
defendants before the appellate Court, and therefore, the said finding that
the defendants are monthly tenant of the suit property had become final.
6.37 The plaintiff, in his cross-examination, had denied about the
knowledge of death of Vishnubhai Amin at the time of filing of the suit.
The fact that defendants have not paid rent till the year 2012, and more
particularly, after the issues were framed and after the examination-in-
chief of the plaintiff was filed in the suit.
6.36 In the present case, under the provisions of section 27 of the
General Clauses Act, which reads as under:-
"27. Meaning of service by post
.Where any [Central Act] [Substituted by A.O.1937, for " Act
of the Governor General-in-Council.] or Regulation made
after the commencement of this Act authorizes or requires any
document to be served by post, whether the expression serve or
either of the expressions give or send or any other expression
is used, then, unless a different intention appears, the service
shall be deemed to be effected by properly addressing, pre-
paying and posting by registered post, a letter containing the
document, and, unless the contrary is proved, to have been
effected at the time at which the letter would be delivered in
the ordinary course of post."
6.37 Therefore, under section 27 of the General Clauses Act, if the letter
pre-paid is properly addressed and is sent through registered post, then
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the same shall be deemed to have been served at the time when the letter
would be delivered in ordinary course of post, and therefore, the letter so
posted, has to be received by the addressee unless the contrary is proved
and the Court has given effect to the presumption that arises under section
27 of the General Clauses Act, even in a case where the registered letter
has been returned unopened that itself is sufficient to rebut the
presumption of the letter being received by the addressee. In view of the
fact that one who challenges the endorsement made by the postal
authority has to lead evidence to rebut the presumption arising because of
endorsement. The learned advocate for the plaintiff had relied on the
judgment reported in 1974 (0) AIJEL-HC 207686 in the case of Memon
Adambhai Haji Ismail Versus Bhaiya Ramdas Badiudas, wherein the
Court held that;
"..... the presumption arising under sec. 114 relates to an official
act being done in a regular manner and is the Court is not in a
position to raise such a presumption in respect of the
endorsement the Court should not exhibit the endorsement but
exhibit only the returned envelope and in that case the evidence
of returned envelope is itself sufficient to rebut the presumption
of the letter being received by the addressee which arises under
sec. 27 of the General Clauses Act and sec. 114 of the Indian
Evidence Act. Once presumptions arise under sec. 27 of the
General Clauses Act and sec. 114 of the Indian Evidence Act the
burden to rebut the said presumptions would be on the addressee
in case where the letter is returned back with an endorsement of
Refused. One who challenges an endorsement made by the postal
authority in discharge of the duties has to lead evidence to rebut
the presumption arising because of the endorsement. The
question then is one of rebuttal by leading evidence and such
question can be raised only at the stage of trial of the suit. Such
a question which depends upon of leading evidence cannot be
raised for the first time in appeal or revision. If the registered
envelope containing the endorsement is received in evidence and
marked as an exhibit in the case the endorsement made thereon
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cannot be questioned in appeal or revision arising out of the suit
in which the envelope is exhibited."
6.38 The learned advocate for the plaintiff had relied on the judgment
reported in 2021 (19) SCC 549 in case of Vishwabandhu Versus Sri
Krishna, wherein also the Court has held that the Court will have to take
presumption under section 27 of the General Clause Act that the service
of notice has been affected when it is sent to the correct address by
Registered Post. In the present case, it is not the case of the defendant that
the said notice was not sent at the true and correct address, nor it is the
case of the defendants that the said address stated to be in the said notice,
was not the address of the defendants, and therefore, presumption has to
be raised under Section 27 of the General Clauses Act that the said notice
was duly sent and served.
6.39 In the present case, it has come on record that the defendants have
not deposited the amount on the first date of hearing, and therefore, the
plaintiff has proved that the defendants are tenants in arrears of rent, prior
to filing of the suit and continue to be in arrears on the date of first
hearing of the suit i.e. on 16.07.2012, when the issues are framed vide
Exhibit-164, the rent was not paid by the tenant, and therefore, under
section 12(3)(b) the protection to the tenant was on certain conditions of
depositing the rent on the first date of hearing and the said condition had
to be strictly observed by the tenant to seek benefits of the said section.
6.40 In the present case, even after the defendants were joined as party
defendants, in place of deceased Vishnubhai Amin, by order dated
14.06.2000 and a written statement has filed on 20.03.2012 and issues are
framed vide Exhibit-164 on 16.07.2012, only on 16.07.012 the defendants
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have deposited the rent vide Exhibit-164, therefore, it is clear from the
evidence on record that the issues were framed on 16.09.2009 and on the
said date, written statement was not filed by the tenant and even
considering the date of framing the issues, Exhibit-81 and the date of
filing written statement, Exhibit-113, on 20.03.2012, the defendants were
tenant in arrears, in the present case.
6.41 The first date of hearing will be on the date which the Court applies
his mind towards the controversy involved in the case, since the written
statement was not filed, the trial Court applied its mind to the controversy
involved in the case on 27.07.2007 i.e. on the date when the issues were
framed and the same will be the first date of hearing and it has come on
record that the defendant has not deposited the rent on the first date of
hearing i.e. on 27.07.2007.
6.42 Learned advocate for the plaintiff relied on the judgment in the
case of Yusufbhai Noormohammed Jodhpurwala Versus Mohmmed
Sabir Ibrahim Byavarwala reported in 2013 (0) AIJEL-HC 230160
and in 2001(2) GLR 1144 in the case of Brahmanand Layakram
Versus Shah Natwarlal Harakhlal and the said judgment will be
applicable to the present case in view of the fact that defendants were
tenants in arrears on the first date of hearing i.e. the date on which the
issues were framed.
6.43 In the present case, notice that was produced vide Exhibit-104,
was sent by registered post on the correct address and it has returned with
a note "left", the plaintiff had sent the registered letter at the defendant's
correct address and the said letter was sent through post office, the
plaintiff will have no control over the said letter and the same is
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presumed to have been delivered to the defendant, under section 27 of the
General Clause Act and under the rules of the post office. The letter is to
be delivered to the addressee or the person otherwise by him.
6.44 Section 106 of the Transfer of Property Act, requires that the
notice to evict has to be sent either by post to the party, or be tendered or
delivered personally to such party, or to one of his family members or
servant at his residence, or if such tender or delivery is not practicable
affixed to a conspicuous part of the property and the service is complete
as the said notice is sent by post. In the present case, the plaintiff has sent
the notice vide Exhibit-104, by post and there can be a presumption that
the service of notice was sent and served on the defendant. In the present
case, the notice was sent at the proper address.
6.43 Learned advocate for the plaintiff has relied on the judgments
reported in 1988 (0) AIJEL-SC 16260 in case of Madan And Company
Versus Wazir Jaivir Chand, 1990 (0) AIJEL-SC 9961 in case of
Green View Radio Service Versus Laxmibai Ramji, 2019 SCC
OnLine Bom 1878 in case of Sunanda Ramkrishna Ayare and Others
... Applicants. Versus Harishchandra Gopal Parab (Since Deceased)
Through His Heirs and L. Rs. Deepak Harishchandra Parab and
Others ... Respondents, will be applicable to the facts of the present
case as per the observations made herein below.
6.45 In the present case, the plaintiff has proved that the notice under
section 12 of the Rent Act was sent at the address which is true and
correct address of the defendant, and therefore, the said notice issued to
the original tenant Vishnubhai Amin, shall bind to his legal
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representatives as they have no independent claim of tenancy against the
landlord, and therefore, it was not necessary for the plaintiff to give a
fresh notice of eviction after they came to know about the fact that the
original tenant Vishnubhai Amin had expired.
6.46 With respect to the judgment that has been relied on by the learned
advocate for the defendant reported in 2006 (0) AIJEL-HC 216151 in
case of Madhuriben Shashikant Joshi Versus Sarlaben Yashchandra
Desai in the said case, the landlord had not produced notice, under
section 12(2) of the Rent Act before the Court, and therefore, the Court
came to the conclusion of non issuance of notice, under section 12(2) of
the Rent Act and in the present case the said notice and the cover has
been produced by the plaintiff, vide Exhibit-104 and 105, and therefore,
the said judgment will not be applicable to the facts of the present case.
6.47 In the judgment relied on by the learned advocate for the
defendant in the case of 2016 (0) AIJEL-SC 58097 in case of Jabal
C.Lashkari Versus Official Liquidator, no notice for rent was ever sent
by the landlord to the tenant and therefore, also the said judgment will not
be applicable to the facts of the present case. In view of the fact that the
plaintiff by producing Exhibit-104, has in the present case, proved that
the notice under section 12 of the Rent Act had been sent to the tenant.
6.49 With respect to the judgments reported in 1998 (0) AIJEL-HC
201145 in case of Babulal D.Dave Versus Kirtilal Babulal, the said
judgment will not be applicable to the facts of the present case in view of
the fact that in the said judgment the tenant was evicted and contention
was raised that, the notice which was sent at the residence of daughter
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was not proper.
6.50 With respect to the judgments reported in (i) 1986 (0) AIJEL-HC
208893 in case of Oza Kumbhar Naran Ala Versus Mehta Nanalal
Jethabhai, (ii) 2000 (0) AIJEL-HC 201899 in case of Brahmanand
Layakram Versus Shah Natwarlal Harakhlal, (iii) 1988 (0) AIJEL-SC
16260 in case of Madan And Company Versus Wazir Jaivir Chand, (iv)
1990 (0) AIJEL-SC 9961 : 1990 (4) SCC 497 in case of Green View
Radio Service Versus Laxmibai Ramji, (v) in the said case it was the case
of refusal of notice and the same is not the case like the present case that
the statutory notice is received with an endorsement 'left' in view of the
fact that in the present case the plaintiff has proved that the tenants were
not using the premises at the time of notice and there is nothing on record
that has proved by the defendant that at the time when the notice was sent
the tenant was using the suit premises.
6.51 With respect to the judgment in 1980 (0) AIJEL-HC 213162 in
case of Udyomal Nathumal Versus Premchand Trikamdas Baswani,
the said judgment will not be applicable to the facts of the present case in
view of the fact that in the said case the tenant was willing to pay the
remaining amount of rent, the landlord was willing to exonerate the
tenant.
6.52 With respect to the judgment reported in 2013 (0) AIJEL-HC
230160 in case of Mohmmed Sabir Ibrahim Byavarwala Versus
Yusufbhai Noormohmmed Jodhpurwala , in the said case, the tenant
had paid the rent on the first date of hearing i.e. framing of issue but had
felt short of Rs.270/- and therefore, the trial Court conclude the said fact,
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in the present case, if the facts are taken into consideration the defendant
has not paid any amount of rent, on the date when issues were framed,
and therefore, the said judgment will not be applicable to the facts of the
present case.
6.53 In view of the said fact, the plaintiffs have proved that the notice
has been duly sent to the tenant, which is produced vide Exhibit-104 and
the fact that the defendant has come forward with a case that the suit
property was given on rent to the partnership firm there is nothing on
record to prove the fact that on the date of death of Vishnubhai Amin the
suit property was occupied by Vishnubhai Amin as partner of Amin
Automobile and the fact that the plaintiffs were aware that Amin
Automobile was the partnership firm and when the trial Court has already
reached a finding that as the defendants are tenant of the suit property, the
question that the notice not being served under section 12 of the Rent Act
could not arise, and therefore, the appellate Court has rightly passed a
decree of eviction under section 12 of the Rent Act and that the findings
of the appellate Court that the defendants have not paid the rent on the
first date of hearing does not require any interference, and therefore, the
judgment and decree of eviction is not required to be interfered.
With respect to NON-USER (Section 13 (1) (K) of the Rent Act):-
6.54 With respect to the fact that the original tenant Vishnubhai
Kashibhai Amin has not been using the premises for the purpose for
which it was let for the last six months, presiding the date of filing the
suit, the fact remains that Vishnubhai Amin expired, on 07.07.1980 and it
is the case of the plaintiff that when the suit was filed, the suit premises
was not used by original tenant, for the last six months and, therefore, the
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plaintiff is entitled for possession of the suit premises under Section 13(1)
(k) of the Rent Act.
6.55 The fact also remains that though legal heirs of Vishnubhai
Kashibhai Amin, who were brought on record after the death of
Vishnubhai, have not produced any document to prove the fact that any
business has been conducted from the suit premises from 1980 till the
year 1993, if the letter produced vide Exh.141 dated 23.11.1993 is taken
into consideration, Shaileshbhai Amin on behalf of Amin Automobile has
stated in the said letter that the property has become weak and that there
is problem of termite in the suit property, if the said letter is taken into
consideration, the same letter will not justify the defendant's claim of
non-suitability of the property. The defendants could have reparied the
suit property under Section 23(2) of the Rent Act which reads as under:
"23. Landlord's duty to keep premises in good repair.
(1) XXX ...
(2) [If the landlord neglects to make any repairs, which he is
bound to make under sub-section (1), within a reasonable time
after a notice is served upon him by post or in any other manner
by a tenant or jointly by tenants interested in such repairs, such
tenant or tenants may themselves make the same and deduct the
expenses of such repairs from the rent or otherwise recover them
from the landlord:Provided that where the repairs are jointly made
by the tenants the amount to be deducted or recovered by each
tenant shall bear the same proportion as the rent payable by him in
respect of his premises bears to the total amount of the expenses
incurred for such repairs:[Provided further that the amount so
deducted or recoverable in any year shall not exceed one-fourth of
the rent payable by the tenant for that year, excluding therefrom
one-fourth of the proportionate taxes in respect of his premises
payable to a local authority for that year.] [This portion was
substituted for the original sub-section (2), by Bombay 61 of
1953, section 15.]"
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And after getting the suit property repaired, the defendants could
have also deducted the said expenses from the rent, which the defendants
might have paid and if the defendants felt that plaintiff has neglected to
make repairs, which the plaintiff was bound to make, the defendants
could have served a notice to the plaintiff and thereafter got the said
repairs done and deducted the said expenses of such repair from the rent.
Therefore, the fact that the defendant was justified in not using the suit
property in view of the fact that the suit property was in a dilapidated
state, was also not proved by the defendants while issuing the letter
produced, at Exh.141, dated 23.11.1993.
6.56 Thereafter in the year 1998 i.e. 17.09.1998, a notice was issued by
the Corporation that the condition of the suit property was in a dilapidated
condition, the said letter was addressed to the plaintiff, under Section 264
of the Bombay Provincial Municipal Corporation Act and the said letter
has been produced by the defendant in the suit, therefore, the defendant
was aware of the said fact, in the year 1998 and even in the year 1998, the
defendant has not taken any step to get the property repaired and to
request the plaintiff trust to repair it and / or has sought permission to get
it reparied. Thereafter, after filing the present suit also, on 17.07.2000, the
plaintiff has written a letter to the proprietor of Amin Automobile, stating
that notice has been received from the corporation to demolish the suit
premises, the said letter is produced vide Exh.139 and defendant did not
challenge the fact that the defendant has not received the said letter nor
has defendant stated that the said letter is not sent to partnership firm and
is addressed to proprietor Amin Automobile.
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6.57 On 11.08.2000 i.e. for the first time vide Exh.140, the letter has
been sent by Amin Automobile to plaintiff that Corporation have finished
their work and out of negligence of the Corporation, the shutter and roof
have been damaged and that the the tenant should be permitted to repair
the same. The said fact had taken place after filing of the suit and after
requesting the plaintiff to repair the same, no steps have been taken by the
defendant to repair the suit premises.
6.58 Moreover, there is are documents produced by the defendants to
prove the fact that the defendants have been using the suit premises, if the
oral evidence of the plaintiff is taken into consideration, the plaintiff has
categorically stated that the suit property has not been used by the
original defendants and that the legal heirs of original tenant Vishnubhai
Amin have not used the suit premises. Moreover, if the oral evidence of
the defendants filed vide Exh.162 is taken into consideration, the said
defendant No.2 has stated that he is a practicing Advocate and that he has
been using the suit premises after 1990-91, to help his father in the
business, the said fact is clearly a false statement made by the defendants
before the Court of Law, in view of the fact that, the father of defendant
Vishnubhai Amin had expired in the year 1980 and, therefore, question of
assisting his father in the year 1990-91, does not arise.
6.59 Moreover, in the cross-examination of the said witness, he has
categorically stated that he has no proof of Income-tax return after the
year 1980 and that he has not produced any electricity bill after the year
2001 and in the said cross-examination he has also admitted that he has
no proof of any sales or purchase by parternship firm.
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6.60 The appellate Court has rightly held that there was no reasonable
cause for the defendants for getting suit premises closed. If the letter
produced, vide Exh.141, dated 23.11.1993, is taken into consideration,
the said letter has been written on 23.11.1993, whereby the defendants
had informed the plaintiff that the suit property has become weak and
there was termite problem, but the fact remains that thereafter neither any
application has been made by defendants to repair the said premises nor
in the year 2000, when a notice was issued by the Corporation to
demolish the suit premises. If the cross-objection of the defendant is
taken into consideration, in the cross-examination of the defendants also,
no contention has been raised by the defendant regarding the fact that the
trial Court has vide Issue No.1 held that defendants being legal heirs are
monthly tenant of the suit property, at monthly rent of Rs.115 plus tax
etc. Therefore, the fact of partnership firm being a tenant in the suit
premises and that partner of said partnership firm were necessary and
property party and that suit is filed against the dead person were already
decided by the Court while deciding Issue No.1 and the said cross-
objection was not on the ground that, defendants are not tenant of the suit
property and, therefore, the said Issue No.1 having become final, the
question of partnership firm being tenant in the property does not arise.
6.61 Moreover, if the testimony of the defendants is taken into
consideration, there is a clear admission that, defendant no.3, is residing
in foreign country and that the defendant no.2, is a practicing Advocate
and defendant no.1 is home maker, who has expired. Therefore, in view
of the fact that there is no evidence that has been produced by the
defendants to establish that after the year 1980, the defendants have been
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using the suit premises for their business, onus was on the defendants to
prove that they have been using the suit premises, but from the evidence
on record, the defendants have failed to prove the said fact. The
defendants had written letter in the year 1993 and till the property was
demolished in the year 2000, the defendants had not taken any action for
getting the suit premises repaired. If the defendants had been using the
suit premises, the defendant would have given an application in the rent
suit no.512 of 1999, that the Corporation has issued a notice to demolish
the premises and, therefore, to direct the plaintiff - landlord either to
repair the same and / or grant permission to defendant to repair the said
premises, but the fact remains that no action has been taken by the
defendants even when plaintiff has informed the defendants about the
said notice, that has been issued by the Corporation to demolish the said
premises in the year 2000. Therefore, the plaintiff has proved that the
defendants have, without reasonable cause, not used the suit property for
the purpose for which it was let for the last six months preciding the date
of filing the suit.
6.62 The other factor which also requires to be taken into consideration
is that though in the written statement, the defendant has not raised issue
that "Amin Automobile" partnership firm is a tenant in the suit premises.
The fact will also have to be taken into consideration that even while an
application was filed to join legal heirs of deceased defendant Vishnubhai
Amin, whereby defendants i.e. present appellants have been joined in the
said proceedings, the legal heirs of Vishnubhai Amin have not taken
contention that they should not be joined as party defendant and the
partners of defendants have to be joined as defendants in the said suit and
while deciding Issue No.1, the trial Court had held that the defendants are
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tenants of the property and that had become final and there is nothing on
record to establish the fact that on the date when defendant Vishnubhai
Amin was occupying the premises, the legal heirs i.e. defendants were
carrying on busiess with deceased tenant Vishnubhai Amin. Moreover,
the fact remains that though defendant has put forward a case that the
partners of Amin Automobile have become tenants after the death of
deceased tenant Vishnubhai Amin, neither the present Civil Revision
Applications have been filed by partners, nor leave has been sought by
said partners challenging the judgment and decree passed by the appellate
Court and, therefore, in view of these facts, the judgment and decree
passed by the appellate Court is as per provisions of Law.
6.63 In the present case, if the tenants wanted to prove that the suit
property was in continuous use by the defendants, the onus shifted from
the plaintiff who was successful in, prima facie, establishing his case of
non -user by the fact that since 1980 till 1993 there was no documentary
evidence to support the case of the defendant that the defendant has been
using the suit property and even thereafter in the year 2000 when the
Corporation issues notice on demolishing the suit property, the
defendants has not taken any step to repair the suit property. Though it
has been argued by defendant that the tenant of the suit property was
partnership firm Amin Automobile and not Vishnubhai Amin in his
individual capacity or proprietor of Amin Automobile, but the fact
remains that defendant has been joined as legal heirs of Vishnubhai Amin
and the plaintiff has established his case of non-user by leading evidence
with sufficient material which has proved his assertion and it is the
defendant i.e. legal heirs of Vishnubhai Amin, who have come forward
with the case that they have been carrying on business in the suit
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property, after death of Vishnubhai Amin, though it has been stated in the
oral evidence of the defendant vide Exh.162, that he has been using suit
shop from the year 1990-91 to help his father in the business though no
documentary evidence has been produced by the defendant to prove the
said fact. However, even otherwise, if the defendant Shaileshbhai Amin is
claiming to be partners of Amin Automobile along with his father
Vishnubhai Amin who has also claimed to be owner of Amin
Automobile, there was no question of helping his father in business, in
view of the fact that if defendant is claiming to be partner of Amin
Automobile, he would be occupying premises as partners of Amin
Automobile and not as the person who would help his father in the suit
premises in the year 1990-91 and, therefore, the onus shifted to the
defendants to establish that they have been using the suit premises, at the
time of filing of the suit or even before the said date of filing the suit, or
that there was reasonable cause of not using the suit premises but from
the record, it can be clearly established that neither the defendants have
proved the fact that they have been using the suit premises, nor they had
reasonable cause of not using the suit premises. The defendants have
neither produced any document to prove the fact that they have been
using the suit premises.
6.64 Learned advocate for the plaintiff has relied upon the judgment
reported in 2012 (0) AIJEL-HC 228907 in case of Rameshvar Madhulal
Shah Versus Gordhanbhai Kacharabhai Decd.Thro Heirs, relevant
paras of which read as under:
"14. When the plaintiffs, prima facie, could establish that the shop
was not used by the defendant - tenant since last more than six
months without any reasonable cause, the onus shifts to the
petitioner/tenant to establish that the shop was used at the time of
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filing of the suit or even before the date of filing of the suit or there
was reasonable cause and, therefore, he has to establish the same,
by producing sufficient evidence in support of his contention raised
in the written statement. It is an admitted position that if the shop
was being used, the defendant - tenant ought to have produced
evidence, like, the bill books of the shop, municipal receipts with
regard to the payment of municipal taxes which was required to be
paid by the defendant - tenant as per the agreement, accounts
books, etc. Even if, as stated by the defendant that the goods were
delivered from the said shop, delivery challans, etc. could have
been produced by the defendant. In my opinion, when the onus
shifted to the defendant, it was his duty to establish that the
plaintiff was not entitled for the relief as claimed by him in the
plaint. In the present case, defendant has miserably failed to prove
the contentions raised in his written statement. On the contrary,
there is evidence on record that the tenant had removed the electric
connections from the suit premises.
16. In my opinion, the decisions of the Apex Court In the case Anil
Rishi V/s. Gurbaksh Singh (supra) and in the case of A.
Raghavamma & Anr. (supra) would squarely apply to the facts of
the present case when the plaintiffs have established, prima facie,
case about non-user of the suit property by the defendant -tenant,
the onus would shift to the defendant-tenant to produce sufficient
evidence so as to establish that the assertions made by the plaintiff
about non-user of the property is not correct. In my opinion, when
the onus shifted to the defendant, it was his duty to establish that
the plaintiff was not entitled for the relief as claimed by him in the
plaint. In the present case, defendant has miserably failed to
disprove the assertions made in the plaint.
The said judgment will be applicable to the facts of the
present case in view of the fact that in the present case also the defendant
has not produced any document to prove the fact that he has been using
suit premises.
6.65 Moreover, the fact that the defendants being legal heirs of
Vishnubhai Amin had to prove that they are tenants under Section 5 (11)
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(c) of the Rent Act and in the present case, the defendants have miserably
failed to prove that they were carrying on business with the deceased
Vishnubhai Amin at the time of his death. On this issue, the judgment
relied upon by the learned advocate for the plaintiff in case of Nafisaben
W/o Badrudin Tofafarosh Versus John Alias Zenub Abdulkadar Babuji,
(supra), wherein it has been held that "it is only the Court of Small
Causes which had the exclusive jurisdiction to decide whether the
defendants who were the daughter and other heirs of the deceased were
within the definition of "tenant" as set out in sec. 5(11)(c) of the Act. No
other Court had jurisdiction to decide this question u/s. 5(11) (c) of the
Act.
This judgment will be applicable to the facts of the present case in
view of the fact that defendants have not proved that on the day when
Vishnubhai Amin expired, they were carrying on business with him in the
suit premises. The other contentions which have been raised by
defendants is with respect to the fact of non-complying with the
provisions of Order 41 Rule 31 of the CPC, however, if the facts of the
present case are taken into consideration, the first appellate Court has
taken all the issues that have been considered by the trial Court and,
therefore, in view of the fact that in the present case the appellate Court
has decided all the issues in dispute there has been substantial compliance
with the provisions of Order 41 Rule 31 of CPC.
6.66 Moreover, the judgment that have been relied upon by the
defendants more particularly in 959 WLR 985, will not be applicable in
the facts of the present case in view of the fact that in the said case the
issue was of an elderly lady who had abondoned the possession because
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of her illness and the Court considered the fact of abondonedness of the
proeprty. In the present case, the fact remains that there is nothing on
record that the legal heirs of Vishnubhai Amin have been carrying on
business, after the death of Vishnubhai Amin and that they were carrying
on business with Vishnubhai Amin, at the time when Vishnubhai Amin
had expired and the fact that the suit property had been demolished in the
year 2000 and in the year 1993, the defendant had stated that the suit
property needs repair. The said fact clearly establishes that the defendant
had abondoned the suit property with an intention of not returning to the
suit property and, therefore, the said judgment will not be applicable to
the facts of the present case.
6.67 The other judgment on which the defendant has relied upon in the
case of in the case of Gopal Dattaraya Chapahlkar Vs Govind Yashwant
Borkar (supra).
This judgment will not be applicable to the facts of the present case
in view of the fact that in the said case, the tenant had repeatedly
requested the landlord to repair the suit premises despite which landlord
refused to repair and prevented the tenant from repairing the suit
premises. In the present case, the defendant has not made any effort to
repair the suit premises nor has he applied under Section 23(2) of the
Rent Act to repair the suit property and, therefore, the said judgment will
not be applicable to the facts of the present case.
6.68 Learned advocate for the plaintiff has relied on judgment reported
in case of Mangaldas Devjibhai Vs Lalitkumar N. Doshi (supra). In the
said judgment, the Court has held that the scope of revision under Section
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29(2) of the Rent Act is extremely limited in view of the fact that in the
present case the Court has held that the plaintiff has proved that the
defendants are tenant in arrears of rent and that the plaintiff has proved
that the suit property has not been used by the defendant for the purpose
for which it was given on rent. The said findings are as per provisions of
law and High Court cannot appreciate or re-appreciate evidence as the
appellate Court was the last Court of facts. In the facts of the present case,
the order that has been passed by the appellate Court is in accordance
with law and the conclusion arrived at are keeping in mind legal position
of law.
6.69 Moreover, if the cross-objections filed by the defendants in the
appeal are taken into consideration, the said cross-objections are also not
that the partnership firm was the partner in the suit premises and that the
trial Court has not taken into consideration the documents that have been
produced by the defendant and has not taken into consideration the fact
that the original defendant had expired even before suit was filed and,
therefore, statutory notice under Section 12 of the Rent Act has been
issued against the dead person.
6.70 If the entire cross-objection is taken into consideration, the
defendant has not taken ground that the partnership firm was tenant of the
property and cross-objection also did not have any merits and rightly
have been dismissed by the Court.
7. In view of the above referred facts, it has been argued that the
present Revision Application is required to be dismissed and it is
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dismissed accordingly. Rule is discharged. The tenant is herebty given
two months time to vacate the suit premises and and to handover peaceful
possession of the suit premises to the plaintiff.
(SANJEEV J.THAKER,J)
MISHRA AMIT V.
