1. The present Civil Revision Application under Section 29(2) of the Bombay Rent Act has been preferred by the applicant-
original plaintiff to quash and set aside the impugned judgment and decree passed by the learned Civil Judge (Junior Division), Jamnagar in Regular Civil Suit No. 622/1976 by which the learned trial Court has dismissed the said suit as well as the impugned judgment and order passed by the learned appellate Court in Regular Civil Appeal No. 107/1985 by which the learned appellate Court has dismissed the said appeal preferred by the applicant-original plaintiff confirming the judgment and decree passed by the learned trial Court dismissing the suit.
2. The facts leading to the present Civil Revision Application in a nutshell are as under;
2.1. The applicant-original plaintiff instituted Regular Civil Suit No. 622/1976 in the Court of learned Civil Judge (Junior Division), Jamnagar for eviction decree for recovery of possession against the respondents-original defendants on the ground of sub-letting; non-user of the suit premises by original defendant no.1-tenant; arrears of rent etc. It was the case on behalf of the applicant-original plaintiff that the suit premises was let to original defendant no. 1 at the monthly rent of Rs. 41/- and the same has been sub-let to original defendants nos. 2 to 4 and, therefore, the applicant-original plaintiff is entitled to recovery of possession of the suit premises. It was also the case on behalf of the applicant-original plaintiff that original defendant no. 1-main tenant is in arrears of rent for more than six months and, therefore, the tenancy of original defendant no. 1 was terminated by notice. The suit was resisted by original defendant no. 1 by filing the written statement at Exh.
16 and by original defendants nos. 2 to 4 by filing written statement at Exh. 18. Original defendant no. 3 filed separate written statement at Exh. 20. All the original defendants denied the allegations of subletting. It was the case on behalf of original defendants that the suit premises was let to original defendant no. 1 on 01/09/1954 and at that time original defendant no. 2 was one of the partner in the said firm. It was the case on behalf of the original defendants that original defendant no. 1 firm had its head office at Bombay and its Branch office at Rajkot, Surendranagar and Bhavnagar. It was the case on behalf of the applicant-original plaintiff that on constitution of the firm, management of the firm was taken over by original defendant no. 2 and since then he was in exclusive possession of the suit premises. It was also the case on behalf of the original defendants that original defendant no.
3 is the son of original defendant no. 2 and he was also working with original defendant no. 2 in the suit premises and, therefore, it was denied that there was subletting by original defendant no. 1. Original defendants denied that the tenant was in arrears of rent for more than six months as alleged by the applicant-original plaintiff.
2.2. The learned trial Court framed the issues at Exh. 23 and on appreciation of evidence held that original defendant no. 2 was the partner of original defendant no. 1 and thereafter there was change in Constitution of the firm and original defendant no. 2 was continued in possession and, therefore, there was no subletting by original defendant no. 1. The learned trial Court also held that there was no arrears of rent for more than six months as alleged by the applicant-original plaintiff. So far as the issue with respect to non user of the suit premises is concerned, the same was not pressed by the applicant-original plaintiff. Under the circumstances, the learned trial Court dismissed the suit and refused to pass the eviction decree. Being aggrieved and dissatisfied with the impugned judgment and decree passed by the learned trial Court dismissing the suit the applicant-original plaintiff preferred Regular Civil Appeal No. 107/1985 before the learned District Court, Jamnagar and the learned appellate Court-learned 2nd Extra Assistant Judge, Jamnagar vide impugned and order dated 13/02/1995 has dismissed the said appeal confirming the judgment and decree passed by the learned trial Court dismissing the suit. Being aggrieved and dissatisfied with the impugned judgment and orders passed by both the Courts below in refusing to pass the eviction decree on the ground of subletting the applicant-original plaintiff has preferred the present Civil Revision Application under Section 29(2) of the Bombay Rent.
3. Shri Mehul S. Shah, learned advocate appearing on behalf of the applicant-original plaintiff has vehemently submitted that both the Courts below have materially erred in disbelieving the subletting by original defendant no. 1 in favour of original defendants nos. 2 to 4. It is submitted that in absence of rent note and partnership deed of original defendant no. 1 and dissolution of original defendant no. 1 both the Courts below have materially erred in holding that original defendant no. 2 was the partner of original defendant no. 1 and, therefore, there was no subletting. It is submitted that it was not the case on behalf of the applicant-original plaintiff that original defendant no. 1 was a partnership firm and, therefore, it is submitted that unless and until it is proved that original defendant no. 1 was a partnership firm of which original defendant no. 2 was the partner as alleged, both the Courts below ought to have passed the decree on the ground of subletting. No other submissions have been made except the case on behalf of the applicant-original plaintiff on subletting of the suit premises by original defendant no. 1 in favour of original defendant no. 2.
4. The present Civil Revision Application is opposed by Siddharta Dave, learned advocate appearing on behalf of the original defendants nos. 2 and 3. It is submitted that as such there are concurrent finding of fact given by both the Courts below on appreciation of evidence that original defendant no. 2 was the partner of original defendant no. 1 firm, who was in occupation and possession of the suit premises and was running the office and original defendant no. 3 is the son original defendant no. 2 and, therefore, no illegality has been committed by both the Courts below in refusing to pass the eviction decree on the ground of subletting. It is submitted that the finding of fact given by both the Courts below are on appreciation of evidence, which are not required to be interfered with in exercise of revisional jurisdiction. It is submitted that the contention on the part of the applicant- original plaintiff with respect to the rent note and the partnership deed not on record has been elaborately dealt with by both the Courts below. It is submitted that the learned appellate Court on considering the other documentary evidence, Exh. 111 and Exh. 115, the certified copies of the order issued by the Income Tax Officer, who has specifically held that there has been change in the Constitution of original defendant no. 1 with effect from 01/07/1954 and four more partners were admitted in the firm from 01/07/1954 and the name of original defendant no. 2 appeared at page no. 3 of the said order as new partners having 5% share in the partnership firm of original defendants no. 1, it is submitted that as such the fact that original defendant no. 1 was a partnership firm has been established and proved by other documentary evidence and, therefore, merely because the rent note and/or partnership deed of original defendant no. 1 was not on record adverse inference was not required to be drawn and adverse inference is rightly not drawn by both the Courts below and, therefore, it is submitted that as such no illegality has been committed by both the Courts below in refusing to pass the eviction decree on the ground of subletting. Making the above submission, it is requested to dismiss the present Civil Revision Application.
5. Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that the applicant-original plaintiff instituted the suit against the respondents-original defendants for recovery of possession/eviction decree on the ground that original defendant no. 1 has subletted the suit premises to original defendants nos. 2 and 3. However, on appreciation of evidence, both the Courts below have specifically held that original defendant no. 1 has not subletted the suit premises in favour of original defendants nos. 2 and 3 as alleged. Both the Courts below, on appreciation of evidence, oral as well as documentary have specifically come to the conclusion that as such original defendant no. 2 was the partner of original defendant no. 1 firm and was in occupation and possession of the suit premises and was running the office and original defendant no. 3, who is the son of original defendant no. 2, is also using the suit premises and consequently both the Courts below have held that there is no subletting by original defendant no. 1 as alleged. The aforesaid finding of fact given by both the Courts below are on appreciation of evidence, which are not required to be interfered with by this Court in exercise of revisional jurisdiction. Even otherwise, considering the evidence on record, inclusive of Exhs. 111 and 115, certified copies of the order issued by the Income Tax Officer, it has been specifically established that original defendant no. 2 was taken as partner in original defendant no. 1 firm having 5% share in the partnership firm. Even the fact that in the partnership firm, original defendant no. 2 was also the partner has been established and proved by other documentary evidence. Under the circumstances, as such, no illegality has been committed by both the Courts below in dismissing the suit and not passing the eviction decree on the ground that original defendant no. 1 has sublet the suit premises in favour of original defendant no. 2.
6. Now the contention on behalf of the applicant-original plaintiff that neither the rent note nor the partnership deed of original defendant no. 1 was on record, adverse inference is required to be drawn is concerned, considering the evidence on record, it cannot be accepted. As stated hereinabove, by other documentary evidences, it has been proved that original defendant no. 2 was the partner of original defendant no. 1 partnership firm. Under the circumstances, both the Courts below have rightly not drawn the adverse inference as claimed by the applicant-original plaintiff. It is required to be noted that the applicant-original plaintiff has failed to prove by leading evidence that original defendant no. 1 has subletted the suit premises in favour of original defendant no. 2 for consideration. Under the circumstances also, both the Courts below have rightly refused to pass the eviction decree on the ground of subletting.
6. In view of the above, when no illegality has been committed by the learned trial Court in rejecting the suit, the present Civil Revision Application fails and the same deserves to be dismissed and is accordingly dismissed. Rule is discharged.
(M.R. SHAH, J.) siji