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Judgment
Abhilasha Kumari, J.—Rule. Ms. K.J. Brahmbhatt, learned Counsel, waives service of notice of Rule on behalf of the respondents.
This petition has been filed under Article 227 of the Constitution of India with a prayer to quash and set aside the judgment and order dated 08.05.2008 rendered by the learned Presiding Officer, Fast Track Court No. 2, Gandhinagar Camp at Kalol, in Miscellaneous Civil Appeal No. 138 of 2004 whereby order dated 27.02.2004 of the Trial Court rejecting the application at Exhibit 5 in Regular Civil Suit No. 67 of 2003 has been confirmed and the appeal of the petitioner, dismissed.
The brief facts of the case, relevant for the decision of the petition are that the petitioner, who is the plaintiff in the above-mentioned suit, is one of the co-owners of the suit premises, which is an HUF property and the defendants are the tenants of the said property. A rent note was executed on 12.05.1950 to this effect. According to the petitioner, the tenants are in arrears since 01.01.2000 to 31.01.2003. The father of the defendants was engaged in the business of manufacturing incense sticks and was not entitled to transfer or assign the suit property. In spite of this, the defendants sublet the property to Barot Mahendrakumar Ranchhodbhai for consideration. It is further the case of the petitioner that due to negligence of the defendants, the property was destroyed due to fire and the tenancy was terminated on 31.03.2003. The defendants have reconstructed the property without consent and as there is a likelihood that they shall make an additional construction, the petitioner has been constrained to file the suit. Along with the suit, an application at Ex.5 was filed which has been rejected by order dated 27.02.2004 by the Trial Court. Being aggrieved thereby, the petitioner approached the lower Appellate Court by filing an appeal which has been dismissed by passing the impugned order, giving rise to the filing of this petition.
Ms. Lopa Bhatt, learned advocate for Mr. N.C. Nayak, learned Counsel for the petitioner, has made the following submissions:
(i) The impugned order whereby the order of the Trial Court rejecting the application for grant of interim injunction has been confirmed, is erroneous and has been passed without taking into consideration the evidence on record.
(ii) The Court below have ignored the aspect that the respondents were making construction on the suit premises and that the said premises were sublet to one Barot Mahendrakumar Ranchhodbhai, who was found to be in occupation of the suit premises. Further, both the Courts below have not properly appreciated the documentary evidence on record and the findings arrived at are not in consonance with the legal and factual position and therefore the impugned order may be set aside and the petition allowed.
(iii) The Trial Court has wrongly rejected the application of the petitioner on the ground that the person to whom the premises has been sublet has not been made party-defendant to the suit.
In support of this submission, the learned Counsel for the petitioner has placed reliance upon a judgment of the Supreme Court in Balavant Balvant N. Viswamitra and Others Vs. Yadav Sadashiv Mule (dead) through Lrs. and Others,
The petition has been opposed by Ms. K.J. Brahmbhatt, learned Counsel for the respondents, who has supported the impugned judgment and order by making the following submissions:
(a) The petitioner has not made any specific prayer in the Plaint regarding the aspect that the premises have been sublet by the defendants to another person and this aspect has only been mentioned in the application at Ex.5 for grant of injunction, and that too, in a cursory manner, therefore, the petitioner cannot sustain the application for grant of temporary injunction on a ground that has not been pleaded in the Plaint and the courts below have rightly rejected the said application of the petitioner.
(b) The relief prayed for in the Plaint is only regarding arrears of rent and the said arrears have already been deposited in the Court long back therefore, the said relief does not survive.
(c) There are no pleadings regarding relief on the ground of construction having been made upon the suit premises without consent of the petitioner and the provisions of Section 13(1)(b) of the Bombay Rents, Hotel And Lodging House Rates Control Act, 1947, have not been invoked either in the Plaint or in the application at Ex.5. Therefore, the said application for grant of interim injunction has been rightly rejected by the Trial Court and the order of the Trial Court rightly confirmed by the lower Appellate Court.
(d) Both the Courts below have returned concurrent findings of fact to the effect that there is no material on record to show that the premises have been sublet. In fact Mahendrakumar Ranchhodbhai Barot is the brother of the original tenant and was staying with him as a member of his family and was engaged in the business of manufacture of incense sticks, for which purposes, the premises were let out by the petitioner to the predecessor-in-title of the respondents, Shri Vishnubhai Ranchhoddas Barot. Further, both the courts below have come to the conclusion that there is sufficient material on record to show that the property was damaged during the post Godhara riots and the respondents have reconstructed the rented premises after giving intimation to the plaintiff and therefore, the grounds for grant of temporary injunction have not been made out by the petitioner. As there is no prima-facie case, balance of convenience or irreparable loss in favour of the plaintiff, the lower Appellate Court has rightly dismissed the appeal and confirmed the order of the Trial Court, which may not be interfered with in exercise of supervisory jurisdiction.
Having heard the learned Counsel for the respective parties, perused the averments made in the petition, contents of the impugned order and other documents on record, it is clear that the Courts below have scrutinized the evidence on record minutely before coming to a finding that the petitioner has not been able to produce any evidence to the effect that the suit premises have been sublet to Mahendrakumar Ranchhodbhai Barot. It has been held by the lower Appellate Court that as per the case of the respondents, said Mahendrakumar Ranchhodbhai Barot is a family member of the tenant Vishnubhai Ranchhoddas and was residing with him in the suit premises. There is also evidence on record to the effect that the business of manufacture of incense sticks was being carried on by Mahendrakumar Ranchhodbhai Barot in the suit premises which were let out to Vishnubhai for the said purpose, and that the petitioner has not been able to produce any evidence to the contrary.
On the aspect of carrying out construction in the suit premises without the consent of the petitioner, the Courts below have taken note of the aspect that it is undisputed that the suit premises have been damaged during the post Godhara riots, and intimation to this effect has been given by the respondents to the petitioner. On the above facts and evidence, the petitioner has not been able to establish the existence of a prima-facie case on this ground as well, as the petitioner would be in the knowledge of the events that took place in the said riots, especially with regard to his property. Moreover, the respondent had intimated the petitioner in writing in this regard.
Taking into consideration the aspect that the Courts below have meticulously scrutinized the evidence on record and have returned findings of fact to the effect that the premises have not been sublet or construction made therein, without the knowledge of the petitioner, and that the petitioner has not been able to establish a prima-facie case for grant of temporary injunction, this Court, in exercise of supervisory jurisdiction, does not think it proper to interfere with the same. The impugned order contains cogent reasons and as it has been passed after appreciation of evidence and does not suffer from any legal infirmity or manifest error, the petition does not deserve acceptance.
Insofar as Balavant N. Viswamitra and Ors. v. Yadav Sadashiv Mule (deceased by L.R.s.) and Ors. (supra) is concerned, there can be no doubt regarding the proposition of law enunciated therein in the peculiar facts and circumstances of that case. The Supreme Court had held therein that a sub-tenant cannot be said to be a necessary party to the suit proceedings, however, the ratio of this judgment will not be applicable to the case in hand as in the present case, there is no finding that the premises have been sublet to Mahendrakumar Ranchhodbhai Barot.
In B.K. Muniraju Vs. State of Karnataka and Others, the Supreme Court has held as under:
It is clear that whether it is a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. It is also clear that the High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
Guided by the above principles of law, and for the aforestated reasons, the petition fails and is dismissed. Rule is discharged.