Manoramaben Bachubhai Kanjiya vs Vajiben Maganbhai and Another

K.S. Jhaveri, J.—Heard learned advocates for the respective parties at length.

The present Revision Application is directed against the judgment and decree dated 27.11.1998 passed by the Assistant Judge, Rajkot in Civil Appeal No. 76 of 1991 as well as the judgment and decree dated 20.03.1989 passed by the Small Causes Court, Rajkot in Civil Suit No. 293 of 1984 whereby the suit as well as appeal were dismissed by the courts below.

It is the case of the original Plaintiff-present Petitioner who had filed suit for recovery of possession and arrears of rent stating that the Defendant No. 1 -Respondent No. 1 Maganlal Shivabhai is the tenant of the suit premises though he has sublet the suit shop to the Defendant No. 2 Pragji Shivabhai and rent was due for the period of more than six months on the date of the suit notice. The suit was basically filed on the ground of arrears of rent, non-user, subletting and arrears of rent. The trial court vide impugned order passed dismissed the said suit. The appellate court after hearing the parties confirmed the order of the trial court and dismissed the appeal. Being aggrieved by the said orders, the Petitioner has preferred the present appeal.

Mr. A.R. Thakker, learned advocate appearing for the Petitioner submitted that the courts below have not properly appreciated that the rent note Ex. 39 executed by late Maganbhai clearly indicates that the said Maganbhai had taken shop on rent basis only for his own purpose and not for joint family. He submitted that the rent note as well as the panchnama Ex. 47 prepared by the Commissioner clearly proves the case of the Petitioner that the said late Maganbhai had sublet the suit premises to said Pragjibhai.

4.1 Mr. Thakker further submitted that the trial court has not framed issues in the judgment and instead delivered the Judgment. He submitted that the courts below erred in holding that the Respondents were not in arrears of rent.

4.2 In support of his submissions, Mr. Thakker has relied upon the following decisions:

Harshachandra Narsibhai Patel and Ors. v. Ibrahim Haji Khubanbhai reported in 1984 GLH 965 wherein it is held that if tenant has assigned or transferred in any manner his interest, then also the landlord will become entitled to a decree for possession. The words "transfer in any other manner" are much wider and that they would include transfer made in favour of a relative or a known person if he has left premises and transferree is put in exclusive possession.

Mohammed Kasam Haji Gulambhai v. Bakerali Fatehali (deceased) by L.Rs. reported in 1998 (2) GLH 655 wherein considering Section 13(1)(e) it is held that there is absolute prohibition on the tenant from subletting, assigning or transferring in anymanner his interest in the tenanted premises. There appears to be no way around this subject of course if there is any contract to the contrary between the landlord and the tenant. In partnership where tenant is a partner, he retains legal possession of the premises as partnership is a compendium of names of all the partners. In partnership the tenant does not divest himself of his right in the premises. On the question of subletting etc the law is now very explicit. There is prohibition in absolute terms on the tenant from subletting, assignment or disposition of his interest in the tenanted premises.

Mahmadbhai Ahmadbhai v. Fatmaben Abdulla reported in 2007(4) GLR 2789 wherein the matter was remanded to the court below for framing points as the points for determination were not framed.

Mr. C.L. Soni, learned advocate appearing for the Respondents supported the orders of the courts below and submitted that the Defendants are real brothers and residing in a joint family. He submitted that the suit shop is taken on rent for the business of the joint family and the income of the suit shop maintained the members of the joint family and from the beginning the use of the suit shop is same and not changed or sublet.

5.1 He submitted that prior to the suit notice the Respondents sent the rent by money order several times which was not accepted by the Plaintiffs. He submitted that the rent is already deposited in the court.

5.2 Mr. Soni, in support of his submissions relied upon a decision of the Apex Court in the case of G. Amalorpavam and Others Vs. R.C. Diocese of Madurai and Others, wherein it is held that where there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate court, it would be a valid judgment even though it does not contain the points for determination.

5.3 Mr. Soni has also relied on a decision in the case of Jayshreeben Vasantkumar Vithlani v. Manjibhai And Co. and Anr. reported in 2007 (1) GLH 248 wherein it is held that in a case where the appellate court accepts and endorses the reasons and findings of the trial court, it is not necessary for the Appellate Court to undertake the entire exercise once again in detail. Suffice it to state that the impugned judgment must reflect that the appellate court is aware of what were the points of determination after framing them record the contentions of both sides in brief and lay down its reasons as to why the appellate court agrees with the views expressed by the trial court and/or disagrees with the views expressed by the trial court. The appellate court cannot be expected to undertake a retrial in case where it endorses and accepts the reasons expressed by the trial court.

The trial court framed issues at Ex. 25 and came to the conclusion that the Respondent No. 1 is not a tenant in arrears of rent and that the Plaintiff has failed to prove that the suit premises have not been used without reasonable cause for the purpose for which they were let out for continuous period of six months immediately preceding the date of the suit and that the Respondent No. 1 has not sublet the suit premises to the Respondent No. 2 and that the Plaintiff is not entitled to possession of suit shop u/s 13(1)(i).

From the records if is borne out that both the Respondents have deposed that they are the members of joint family and 20 members are residing together in the said family in one building and that the income of both the shops including the suit shop is the main source of income. It is borne out that the Respondent No. 1 executed a rent note on behalf of the joint family and the Respondent No. 2 is eldest amongst all the four brothers. The appellate court has considered the evidence more particularly the copy of ration card Ex. 79 and aother documentary evidence Ex. 80 to 125.

As a result of hearing and perusal of records, it is clear that the Plaintiff failed to prove that there is non user or change of user inasmuch as from the cross examination of the Respondents it is clear that Gordhan and Dhiraj are other two brothers of the Respondents and residing together. The Respondent No. 1 is spending major time at another shop because Gordhan and Dhiraj are both unfamiliar with such new business and under such circumstance though the Respondent No. 1 is looking after the business of the suit shop the Respondent No. 2 is sitting for most of the time in the suit shop. Therefore considering the oral as well as documentary evidence on record, the courts below have come to the conclusion that the Petitioners failed to prove the ground of non user, change of user and subletting.

8.1 The Respondents have also deposed that they are doing same business of radio, T.V. Repairing and also electrical instruments repairing in the suit shop. It appears that prior to the suit notice the Respondents had sent the arrears of rent by money orders which were not accepted by the Petitioners and thereafter the Respondents deposited the rent in the trial court and appellate court. In that view of the matter, considering the evidence on record, the courts below observed that on the date of the suit notice the rent for the period of six months was not due and the amount was due on account of non-co-operation on the part of the Petitioner.

In the case of Harshachandra Narsinhbhai Patel (supra), it is observed that the words "transfer in any other manner" would include transfer made in favour of a relative or a known person if he has left premises and transferree is put in exclusive possession. However in the present case it cannot be said that the person has left the premises and the transferree is put in exclusive possession. The Respondent No. 1 did look after the business and did not totally abandon it. Hence the said decision shall not be applicable to the facts of the present case.

9.1 In the case of Mohammed Kasam Haji Gulambhai (supra), the tenant therein could not exercise his power throughout the suit premises at his pleasure to the exclusion of his two sons who were running their business in partnership there and it could not be said that he continued to exercise control over the suit premises as he had no concern with the partnership business. However, the facts of the present case are different. Here the Respondent No. 1 could exercise his control on the shop premises.

9.2 The decisions of the Apex Court and this Court in the cases of G. Amalorpavam and Ors. (supra) as well as Jayshreeben Vithlani (supra) respectively clearly bring forth the law on the subject of the appellate court framing or failing to frame points of determination. Hence the case of Mahmadbhai Ahmadbhai (supra) shall not be applicable.

Even otherwise, it is required to be noted that the scope of exercise of revisional jurisdiction is very limited. The concurrent findings arrived at by both the courts below are given on appreciation of evidence which cannot be said to be perverse or illegal or resulting into miscarriage of justice. This Court is in complete agreement with the reasonings adopted and findings arrived at by the courts below.

In view of foregoing reasons, Revision Application is devoid of any merits and is therefore dismissed accordingly. Rule is discharged. Interim relief, if any, stands vacated.