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Judgment
A.J. Shastri, J
The present Civil Revision Application is filed under Section 29 of the Bombay Rents, Hotels and Lodging House Rates Control Act,1947 (for short
‘the Rent Act’) for the purpose of challenging the decision delivered by the court below.
The case of the applicants â€" original defendants is that respondent No.1 â€" original plaintiff is the owner of shop situated at Mavdi Main Road,
Rajkot, let out to the defendant No.1 at a monthly rent of Rs.275/Â per month + house tax of Rs.50/Â per month and accordingly, total monthly rent
was fixed at Rs.325/Â. It is the case of the applicant that the son, namely, Kishorbhai of defendant No.1 was doing the business of cycle repairing
right from the beginning of tenancy. The defendant No.1 was a tenant in arrears of rent claiming to be from 1.11.1992 to 31.8.1994. Resultantly, a
notice of termination of tenancy was issued to defendant No.1 and his son, namely, Kishorbhai on 10.9.1997. But even after service of notice, since
arrears of rent was not cleared, yet another opportunity was given on 29.7.1997, which notice was received by the defendant on 30.7.1997 and in turn,
the son of the defendant has paid Rs.5200/Â on 7.11.1997 towards the arrears of rent including taxes for the period commencing from 1.11.1997 to
28.2.1997. But the defendant No.1 did not pay the remaining amount of arrears and taxes. Simultaneously, the defendant No.1 has subÂlet or
assigned the suit shop to defendant No.2, as a result of this, by raising ground of arrears of rent and subÂletting of suit shop, the original plaintiff
instituted the suit for recovery of possession and arrears of rent from the defendant.
2.1 Pursuant to the summons having been issued, the defendants did appear and contend that the rent was being regularly paid and also raised a
contention that rent amount is not a standard rent. Resultantly, no decree of possession be provided. It has also been contended that the shop was not
subÂlet, not assigned to defendant No.2, but the defendant No.2 was an employee of defendant No.1. But, later on, the defendant No.2 has left his
services and joined elsewhere and, therefore, there is no cause of action to institute the suit and there appears to be material facts being suppressed,
the suit was requested to be dismissed with cost. The trial court, after framing the issues at Exh.23, has then allowed the parties to lead the evidence.
But then the trial court has passed the judgment and decree by partly allowing the suit of the plaintiff under Section 12(3)(a) of the Rent Act. As a
result of this, feeling aggrieved by and dissatisfied with the said judgment and decree, the Regular Civil Appeal No.64 of 2014 came to be filed before
the learned Additional District Judge, Rajkot which came to be dismissed by way of an order dated 30.12.2017 which is made the subject matter of
present Civil Revision Application.
2.2 This Court, on 22.2.2018, was pleased to issue notice upon the respondents and issued protection by extending the time till next date of hearing and
the same appears to have been continued from time to time and with this background, the present Civil Revision Application has come up for
consideration.
Mr.Sandeep N. Bhatt, learned advocate appearing on behalf of the applicants, has vehemently contended that both the courts below have
concurrently erred in law in appreciating the material and analyzed the evidence in a manner which is not justiciable. It has further been contended
that all the legal heirs of the original tenants are not joined as party defendant and, therefore, the suit itself is not maintainable. It has further been
contended that the appellate court has failed to appreciate the fact that Small Causes Court has no jurisdiction to entertain the suit since the plaintiff
himself challenging the status of defendant and is granting him as illegal occupant trespasser. Now if that be so, the suit under the provisions of the
Rent Act is not maintainable and the point of jurisdiction has not been appreciated by the court below. It has further been contended that the learned
Judge has also not properly construed and understood the provision contained under Section 5(11)(c) of the Rent Act and after relying upon the
decision reported in 1980 (1) GLR 103, a contention is raised that tenancy after the death of deceased tenant is being inherited by the legal heir. Now
this provision has completely not been understood in its proper perspective. Resultantly, both the courts below have committed a gross error in taking
the decision. A further contention is raised by learned advocate that the appellate court having not considered the say of Ketanbhai that the plaintiff
did not pay the taxes of Rajkot Municipal Corporation, though it was recovered from the defendant â€" tenant and, therefore, the Municipal
Commissioner has attached the suit shop which is purchased by father of Ketanbhai in auction proceeding and, therefore, he became the owner of the
suit shop. These circumstances which are touching to the root of controversy have not been properly gone into by both the courts below. As a result
of this, there is a serious error committed by the courts below in exercising the discretion. It has further been contended that necessary ingredients of
Section 12(3)(a) visÂaÂvis Section 12(3)(b) of the Rent Act have not been appreciated and as such, there is a serious error committed by the court
below in passing the decree of eviction. This being the position, such material irregularity in exercising the jurisdiction deserves to be corrected, by
quashing and setting aside the same. No other submissions have been made.
Having heard the learned advocate for the applicants and having gone through the material which has been brought to the notice of the Court, it
appears exÂfacie that both the courts below have concurrently held against the applicants and have clearly concluded that case under Section 12(3)
(a) of the Rent Act is established. On the basis of analysis at length of the evidence which is led before it, a specific conclusion is arrived at by the
court below that issue of nonÂpayment of rent is established which necessitates the court to pass an order of eviction. Both the courts below have at
length construed the provision contained under the Rent Act and after analyzing the evidence at length, have come to the conclusion that case of
eviction is made out.
It also appears first of all from the trial court’s findings that original rent note at Exh.78 which is executed in the name of Ambaram Aaditram
Agravat, in which separate amount of tax was fixed which was required to be paid. Additionally, the trial court has also examined the suit notice
which is the basis of litigation produced at Exh.90 which has indicated that within a period of one month from receipt of the same, the amount is not
cleared by the tenant. Additionally, it is clearly observed by the court below that there is no dispute about the standard rent or permitted increase is
raised and the same was not raised within a period of one month from the date of receipt, as required under Section 12(2) of the Rent Act and as
such, after analyzing everything on record, the case is believed by the trial court that landlord is entitled for eviction decree under Section 12(3)(a) of
the Rent Act and arrived at a specific finding, while disposing of the main suit proceedings.
Additionally, it appears from the record that even the appellate court has also independently gone at length the evidence and has observed the
relevant provision in the context of material produced before it and has specifically come to the conclusion that case is made out for decree of
eviction. Hence, when two concurrent findings of fact are visible in consonance with the evidence on record, there is hardly any case made out to call
for any interference under Section 29 of the Rent Act. The detailed finding which has been arrived at concurrently even by appellate court is also
worth to be quoted hereinafter:
“10. Upon hearing the submissions of both the sides and from the perusal of impugned judgment and decree as well as record and proceedings,
admittedly the defendant No.1 has not denied that the plaintiff is not the owner or landlord of suit shop. Further, the plaintiff had sent first notice on
10091994 demanding arrears of rent and taxes of Rs.7,150/for the period from 01111992 to 31081994 and terminating the tenancy which notice was
duly received and accepted by the defendant on 12091994 according to postal acknowledgment. It appears and proved by the plaintiff that after
receipt of said notice, instead of paying entire due amount, only Rs.975/was paid by Kishorbhai, son of plaintiff, towards rent and taxes for the period
from 01081992 Regular Civil Appeal No.64/2014 to 31101992. It is further admitted fact that second notice dt.29071997 was also sent demanding
arrears of rent and taxes of Rs.19,175 for the period from 01111992 to 30061997 and that notice demanding arrears of rent and termination of tenancy
was also served to defendant No.1 on 30071997 and again instead of payment of entire due amount, the defendant’s son Kishorbhai had paid
Rs.5,200/towards rent and taxes for the period from 01111992 to 28021994. Further during pendency of suit, original defendant Ambarambhai died
and his son Kishorbhai also died and, therefore, his son Ketanbhai has been joined who has denied the fact of both these notices and termination of
tenancy in his oral evidence. Not only that, but he has also denied to have paid Rs.5,200/on 07111997 on receipt of notice dt.29071997. It also reveals
that defendant Ketanbhai has also raised a defence that plaintiff did not pay the taxes of Rajkot Municipal Corporation, however, it was recovered
from the defendant and, therefore, Rajkot Municipal Corporation had attached the property including suit shop and auctioned the same for recovery of
taxes and his father has purchased the suit shop and thereby he tried to prove that he is the owner of suit shop. But such defence was not raised by
the defendant in the written statement and, therefore, Learned Lower Court has not accepted such defence with observation that it is fundamental
principle in the law of pleading that no Regular Civil Appeal No.64/2014 amount of evidence can be looked upon in support of the defence having no
foundation in the pleading except a plea of a pure question of law and accordingly, Learned Lower Court has not looked upon said evidence of auction
while appreciating the evidence and excluded in toto which is proper and justifiable.
It further reveals that plaintiff served two demand notices viz. First notice dt.10091994 and second notice dt.29071997. But no suit for a decree of
eviction was instituted after service of first notice and remained silent for a period of more than two years and ten months. It also appears that plaintiff
served second notice dt.29071997 and defendant was considered to be tenant and not treated as trespasser or in any other capacity and the Learned
Lower Court has held that in the second notice, it was clear intention of the plaintiff to treat the tenancy subsisting and send second notice with a view
to provide an opportunity to pay the arrears of rent of Rs.19,175/for the period from 01111992 to 30061997, the defendant had paid only Rs.5,200/ on
07111997 towards rent and taxes for the period from 01111992 to 28021994 and no entire amount of demand notice was paid within the statutory
period of one month. Therefore, the Lower Court has observed and held that the defendant No.1 had received second notice dt.29071997, but neither
replied the said notice nor paid the entire demanded due amount of rent till institution of suit and only paid Regular Civil Appeal No.64/2014
Rs.5,200/instead of entire amount of Rs.19,725/. It means that the defendant No.1 paid arrears of rent on 07111997 in part only upto 28021994 and
rent from 01031994 to 30061997 was not paid as per second notice and accordingly, Learned Lower Court has rightly held that defendant is a tenant
in arrears of rent for more than six months. It is also rightly held by the Learned Lower Court that according to Section 12(1) of the Rent Act, tenant
can be considered “to be ready and willing to pay the arrears of rent†if before expiry of period of one month after notice under Section 12(2) of
the Rent, the tenant makes an application under Section 11(3) of the Rent Act for the determination of standard rent within one month or raise a
dispute of standard rent in reply of the notice within one month or pay the arrears of rent as demanded in the notice within one month period from the
date of its receipt. It is observed by the Learned Lower Court that defendant tenant had received demand notice on 30071997 and paid part amount of
rent on 07111997 and he neither file any application under Section 11(3) of the Rent Act for determination of standard rent nor raised a dispute of
standard rent or not paid the entire arrears of rent as demanded in the notice within one month from the date of receipt of notice and, therefore,
Learned Lower Court has rightly held that the defendant was not ready and willing to pay the arrears of rent according to evidence Regular Civil
Appeal No.64/2014 produced by both the parties and accordingly, Learned Lower Court has also rightly held that the suit notice is legal and valid.
The defendant had also raised a dispute of standard rent and after appreciating evidence and admission of both the sides, the Learned Lower
Court has observed that Court is bound to fix a standard rent when an application is filed for fixation of standard rent or permitted increase and
provides protection to the tenant if dispute is raised within prescribed time limit. It is important to note here that according to evidence of defendant, he
has raised a dispute of standard rent in the written statement, but not raised the said dispute of standard rent or permitted increase within one month
from the date of receipt of notice under Section 12(2) of the Rent Act either by reply of notice or by filing separate application under Section 11(3) of
the Rent Act and, therefore, the Learned Lower Court has rightly held that defendant tenant cannot avail the protection under Section 12(3)(a) of the
Rent Act. Further the Learned Lower Court has also rightly held that the Court is not at all under obligation to decide the standard rent or permitted
increase under such circumstances.
It is the averment and allegation of the plaintiff before the Learned Lower Court that the defendant No.1 has also sublet the suit shop without the
consent in writing of the plaintiff to the defendant No.2 and then sublet to Mr.Kanaiyalal Regular Civil Appeal No.64/2014 Shambhubhai Vekariya and
then sublet to Mr. Babubhai Bhaiya and defendant No.1 has habit of subletting the suit shop. On the other side, it is the defence of the defendant No.1
that defendant No.2 was his employee and defendant No.2 has left the service and joined in Ramesh Auto Garage and after appreciation of oral and
documentary evidence of both the sides, the Learned Lower Court has observed and held that said evidence of subletting is not pleaded in the plaint
by the plaintiff and, therefore, evidence of subletting is nothing, but a proof without pleading.
It is important to note that Learned Lower Court has discussed in details the issues raised and evidence produced before it by both the sides and
after affording opportunities of being heard and appreciating evidence of both the sides, the Learned Lower Court has rightly held that defendant is a
tenant in arrears of rent for more than six months and Court is not under obligation to fix the standard rent of suit shop when no such dispute was
raised either by reply of demand notice or by separate application under Section 11(3) of the Rent Act. The Learned Lower Court has also minutely
considered both the demand notices and has rightly held that suit notice is legal and valid. The Learned Lower Court has also rightly held that
defendant is not ready and willing to pay the arrears of rent because defendant has not paid entire demanded due amount even after Regular Civil
Appeal No.64/2014 service of two demand notice and also not raised dispute of standard rent either by reply of notice or by filing separate application
and, therefore, subsequent defence of standard rent raised in written statement by the defendant is not tenable and accordingly the Learned Lower
Court has rightly not considered said defence of standard rent. Further, the plaintiff has sought decree of eviction of suit shop on the ground of arrears
of rent and subletting of suit shop, but after appreciating evidence of both the sides, the Learned Lower Court has rightly held that plaintiff is failed to
prove the ground of sublet, but at the same time the plaintiff has proved that defendant is a tenant in arrears of rent for more than six months and,
therefore, the Learned Lower Court has rightly held that plaintiff is entitled to get vacant and peaceful possession of suit shop alone on the ground
arrears of rent and thereby the Learned Lower Court has not committed any error in holding that the plaintiff is entitled to get vacant and peaceful
possession of suit shop.
Further when the defendant is found a tenant in arrears of rent and not willing and ready to pay the arrears of rent then obviously the plaintiff is
entitled to get vacant and peaceful possession of suit shop. Further, plaintiff is also entitled to recover amount of arrears of rent and mesne profit and
as such, the plaintiff has claimed Rs.15,925/towards arrears of rent till institution of suit on 03041998, but the Learned Lower Court Regular Civil
Appeal No.64/2014 has rightly held that plaintiff is entitled for arrears of rent of three years only I. e. 36 months at the monthly rent of Rs.325/Â‐
including taxes and accordingly, plaintiff is entitled for Rs.11,700/Â from the defendant as per Section 52 of the Limitation Act. It is on record that
defendant has paid Rs.5,200/Â which has already been deducted by the Learned Lower Court and accordingly, the Learned Lower Court has rightly
held that the plaintiff is entitled for Rs.6,500/Â till the institution of suit as well as for future rent till the possession of suit shop will not be handed over
to the plaintiff towards mesne profit. Hence, in the aforesaid circumstances, I hold that the Learned Lower Court has rightly partly decreed the suit of
the plaintiff under the provisions of Section 12 (3) (a) of the Bombay Hotel and Lodging House Rates (Control) Act, 1947.
In view of the reasons assigned by me as aforesaid, I hold that the Learned Lower Court has not erred in holding that the defendant is a tenant in
arrears of rent for more than six months and defendant is not ready and willing to pay the arrears of rent and suit notice is legal and valid. The
Learned Lower Court has also not erred in holding that plaintiff is entitled to get vacant and peaceful possession of suit shop and, therefore, the
impugned judgment and decree are just and proper and I find no reason to interfere with or to set aside the same. Regular Civil Appeal
No.64/2014..â€
In view of aforesaid observations concurrent made by the courts below and upon careful analysis of evidence which has been brought to the notice
of the Court, it appears that there is no error committed by the courts blow which may require any interference under Section 29 of the Rent Act.
Resultantly, there appears to be no perversity and no material irregularity in exercising the jurisdiction by both the courts below.
Normally, it is settled position of law that unless and until there is any material error in exercising the jurisdiction or perversity reflecting, in such a
situation the revisional jurisdiction may be exercised. But then the said jurisdiction cannot be exercised in a routine manner nor it is permissible for
revisional Court to reassess the evidence. The scope of Section 29 of the Rent Act is well defined by the Apex Court in catena of decisions and one
of such decisions relevant to the issue is a decision in case of Rukmini Amma Saradamma v. Kallyani Sulochana & Ors., reported in AIR 1993 SC
1616. Relevant Para.21 is quoted, thus;
“21. We are afraid this approach of the High Court is wrong. Even the wider language of Section 20 of the Act cannot enable the High Court to
act as a first or a second court of appeal. Otherwise the distinction between appellate and revisional jurisdiction will get obliterated. Hence, the High
Court was not right in reappreciating the entire evidence both oral or documentary in the light of the Commissioner's report (Ext. C1 and C2 mahazar).
In our considered view, the High Court had travelled far beyond the revisional jurisdiction. Even by the presence of the word ""propriety"" it cannot
mean that there could be a reappreciation of evidence. Of course, the revisional court can come to a different conclusion but not on a reappreciation
of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. Therefore, we are unable to agree
with the reasoning of the High Court with reference to the exercise of revisional jurisdiction.â€
In the wake of aforesaid situation which is prevailing on record and in view of peculiar set of circumstance, there appears to be no error committed
by the courts below in appreciating the evidence and there is no perversity reflecting of any nature, whereby any infirmity can be found from the
orders passed by the courts below. In that view of the matter, keeping in view the scope propounded, the applicants have not made out any case to
interfere with such concurrent findings. Resultantly, the revision petition being devoid of merit, deserves to be dismissed and the same stands
dismissed hereby, with no order as to costs. Notice is discharged. Interim relief, if any, granted earlier stands vacated.