1.00. Present Civil Revision Application under section 29(2) of the Bombay Rent Act has been preferred by the petitioner - original plaintiff to quash and set aside the impugned judgement and decree passed by the learned Small Causes Court, Ahmedabad in HRP Civil Suit No.983 of 1995 dtd.15/12/2003 as well as the impugned judgement and decree passed by the learned appellate court - learned Bench of the Small Causes Court at Ahmedabad dtd.14/5/2010 in Civil Appeal No.8 of 2004 by which both the courts below have refused to pass eviction decree against the respondents – defendants – tenants on the ground of arrears of rent as well as on the ground of subletting. 2.00. That the petitioner herein – original plaintiff instituted HRP Civil Suit No. 938 of 1995 in the court of learned Small Causes Court at Ahmedabad for recovery of possession and eviction decree on the ground that the original defendant No.1 – Alabhai Somabhai - tenant has sublet the suit premises in favour of defendant Nos.2 to 4 as well as on the ground of arrears of rent.
2.01. It was the case on behalf of the plaintiff that the suit premises was let to the defendant No.1 only and that he has sublet the same in favour of the defendant Nos.2 to 4. It was also the case on behalf of the plaintiff that rent is due for six months. It was also the case on behalf of the plaintiff that the original defendant No.1 has acquired suitable residential accommodation at Sayla and he has shifted his residence there.
2.02. The said suit was resisted by the defendants by filing written statement denying the allegations of subletting, arrears of rent etc. It was the case on behalf of the defendants that the suit premises was let to Somabhai Vastabhai – father of the defendant No.1 before 50 years and that he along with his three sons namely [1] Punjabhai [2] Alabhai and [3] Bhalabhai were residing in the suit premises jointly and thereafter Alabhai and Punjabhai were residing jointly in the suit premises and rent receipt was issued in the name of Alabhai, he being elder brother in the family. It was the case on behalf of the defendants that Punjabhai had died just before 5 years and at that time along with him his sons Ganeshbhai, Punjabhai's son, Natvarbhai and and Pravinbhai were residing jointly in the suit premises and therefore, it was denied that the defendant No.1 has sublet the suit premises in favour of the defendant Nos.1 to 4, as alleged.
2.03. The learned trial court framed issues at Ex.22. On behalf of the plaintiff, the plaintiff himself entered into witness box and he was examined at Ex.57. He also examined one Suleman Mohit at Ex.94. The plaintiff also led documentary evidences at Ex.Nos.61 to 69. On behalf of the defendants, defendant No.2/1 entered into witness box and he was examined at Ex.73. On behalf of the defendants, one Pravinbhai also came to be examined at Ex.90 and defendant No.1/3 was also examined. The defendants also led documentary evidences at Ex.141 and 142. On appreciation of evidence, the learned trial court held that the plaintiff has failed to prove arrears of rent. The learned trial court also held that there was no subletting as defendant Nos.2 to 4 were residing with their father and the defendant No.1 since 1948 and thereafter as a joint family members, therefore, there was no subletting. The learned trial court also negatived the case on behalf of the plaintiff that the defendant No.1 has acquired alternative suitable accommodation at Sayla. The learned trial court dismissed the suit by judgement and decree dtd.15/12/2003.
2.04. Being aggrieved by and dissatisfied with the judgement and decree dtd.15/12/2003 passed by the learned Small Causes Court at Ahmedabad in HRP Civil Suit No.983 of 1995 in dismissing the suit, and not passing eviction decree against the defendants, the original plaintiff preferred Civil Appeal No.8 of 2004 before the Appellate Bench of the Small Causes Court at Ahmedabad and the learned Appellate Bench by the impugned Judgement and Order has been pleased to dismiss the appeal confirming the judgement and decree passed by the learned Small Causes Court at Ahmedabad.
2.05. Being aggrieved by and dissatisfied with the Judgement and Orders / decree passed by both the courts below in not passing eviction decree against the defendants, petitioner - original plaintiff has preferred the present Civil Revision Application under section 29(2) of the Bombay Rent Act.
3.00. Mr.Motiramani, learned advocate appearing on behalf of the petitioner has appeared on behalf of the petitioner. He has vehemently submitted that both the courts below have materially erred in not believing the subletting and not passing eviction decree against the respondents. It is submitted that as the original defendant No.1 has shifted to Sayla, the learned trial court ought to have passed eviction decree on the ground that the original defendant – tenant has acquired alternative suitable accommodation.
By making above submissions, it is requested to admit/allow the present Civil Revision Application.
Except subletting, no other submissions have been made.
4.00. Heard the learned advocates appearing on behalf of the respective parties at length and considered and gone through the judgement and orders / decrees passed by both the courts below.
5.00. At the outset, it is required to be noted that there are concurrent finding of facts given by both the courts below that the original defendant No.1 has not sublet the suit premises. There are also concurrent finding of facts given by both the courts below on appreciation of evidence that as such the suit premises was let to Somabhai Vastabhai – father of the defendant No.1 and all three brothers and sons of Somabhai inclusive of Bhalabhai and Punjabhai were residing together. Both the courts below also considered the fact that Punjabhai along with his sons were residing in the suit premises since many years (since last more than 40 years) and therefore, there is no question of subletting of the suit premises in favour of the defendant Nos.2 to 4 as alleged. The findings of fact given by both the courts are on appreciation of evidence which are not required to be interfered with by this Court in exercise of revisional jurisdiction.
5.01. Even otherwise, considering the fact that the rent receipt produced at Ex.74 dtd.11/12/1960 was issued in the name of Bhalabhai Somabhai and another rent receipt Ex.80 dtd.22/4/1948 was issued in the name of Alabhai and Punjabhai and considering the other documentary evidences, it appears that the suit premises was let to Somabhai Vastabhai and all three brothers and sons of Somabhai namely [1] Punjabhai Somabhai [2] Alabhai Somabhai and [3] Bhalabhai Somabhai were residing in the suit premises jointly and thereafter, Alabhai and Punjabhai Somabhai and their sons were residing jointly in the suit premises and therefore, it cannot be said that the defendant No.1 has sublet the suit premises to Nos.2 to 4, who are sons of Punjabhai Somabhai. On appreciation of evidence, both the courts below have rightly held that the defendant Nos.2 to 4 cannot be said to be sub-tenant. Considering the facts and circumstances of the case, when both the courts below have concurrently held that the defendant No.1 has not sublet the suit premises in favour of the defendant Nos.2 to 4 and all were joint tenants and when eviction decree is refused, it cannot be said that both the courts below have committed any error and/or illegality and hence no interference of this Court is called for in exercise of revisional jurisdiction under section 29(2) of the Bombay Rent Act.
6.00. In view of the above, there is no substance in the present Civil Revision Application and the same deserves to be dismissed and is accordingly dismissed. Notice is discharged. No costs.
[M.R. SHAH, J.] rafik