1 The petitioner – original defendant- tenant, by way of the present Revision Application under Section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (“the Rent Act” for short), has challenged the judgment and decree dated 28.7.2004, passed by Small Causes Court, Ahmedabad, in HRP Civil Suit No. 812 of 1999, by which the suit filed by the present respondents – plaintiffs, is decreed under Section 13(1)(k) of the Act as well as the judgment and order dated 22.8.2006, passed in Civil Appeal No.108 of 2004 by the Appellate Bench of the Small Causes Court at Ahmedabad, whereby confirmed the judgment and decree of the Trial Court.
2 Brief facts arising from the record of the present case are as under:
That the present respondents – plaintiffs filed a HRP Civil Suit No.812 of 1999 in the Small Causes Court at Ahmedabad, against the present petitioner, who was given a shop on rent for selling of aluminum utensils. The petitioner – tenant had to pay Rs. 48/- per month as rent of the suit premises and all municipal taxes were to be paid by the tenant himself. It was alleged in the plaint that the defendant – tenant had not paid rent since more than six months; had acquired a suitable premises for his business and the disputed property has not been used by the tenant since last more than six months and was kept closed by applying locks without any use. It was also alleged that the tenant had made certain changes of permanent nature on the suit premises and he was trying to hand over the possession of the suit premises to some other person for making illegal profit. It was also alleged in the plaint that the plaintiff – landlord was of bona fide requirements of the suit premises.
That an application was filed by the plaintiff-landlord praying for interim injunction against the defendant–tenant restraining him from transferring the suit premises. The defendant-tenant appeared and filed his written statement at Exhibit-15 and denied the contents of the plaint. He denied that he is not doing the business in the suit premises. He also denied the allegation that he had acquired a suitable premises for his business but had admitted that the other premises acquired by him is for manufacturing purpose and he is selling the utensils from the suit premises. He has categorically stated in the written statement that he is doing the business in the suit premises during 9.00 a.m. to 11.00 a.m. All other contents in the plaint were denied by the defendant – tenant.
3 After considering the pleadings of the parties, the Trial Court framed issues at Exhibit-34. The plaintiff examined himself and other three witnesses in support of his case. The defendant examined himself and one witness in support of his case. After considering the depositions of the witnesses and evidences on record, the learned Trial Court passed a decree in favour of the landlord – plaintiff only on the ground that the suit premises was not used by the defendant–tenant for the purpose for which the premises was let to the defendant without reasonable cause for a continuous period of more than six months immediately preceding the date of filing of the suit. It was held that the suit premises was not at all used by the defendant – tenant since last 7-8 years and accordingly it was held that the landlord is entitled for a decree under Section 13(1)(k) of the Rent Act. Rest of the contentions were negatived by the Trial Court.
4 Being aggrieved and dissatisfied with the said judgment and decree passed the Trial Court, the defendant– tenant preferred a Civil Appeal No.108 of 2004 before the Appellate Bench of the Small Causes Court at Ahmedabad. The Appellate Bench of the Small Causes Court considered the depositions of the witnesses and record and proceedings of the case as well as the reasons assigned by the learned Trial Court and framed points for determination with regard to the correctness of the judgment and decree passed by the Trial Court and, ultimately, came to the conclusion that the Trial Court has not committed any error in passing the judgment and decree under the provisions of Section 13(1)(k) of the Rent Act and dismissed the appeal. Hence, the present Revision Application is filed by the tenant–original defendant.
5 Mr. Suresh M. Shah, learned Advocate, appearing for the petitioner – defendant – tenant has vehemently submitted that both the courts below have committed error in coming to the conclusion that the defendant–tenant had failed to prove that the suit premises was not used for the purpose for which the suit premises was let, without reasonable cause for a continuous period of more than six months immediately preceding the date of filing of the suit. He further submitted that since the burden lies on the plaintiff–respondent to prove that the suit premises, which was let to the defendant–tenant, was not used by him since last six months without any reasonable cause. Mr. Shah has taken me through the entire judgment of the Trial Court and the depositions of the witnesses, who were examined before the Trial Court. It is submitted that when the plaintiff – landlord has come forward with a case that the suit premises was not used by the defendant–tenant for the purpose without reasonable cause for since last more than six months, then, the burden lies on the plaintiff to prove the same, but the plaintiff-landlord has miserably failed in establishing the same. Mr. Shah has further submitted that both the courts below have erred in accepting the depositions of the witnesses, who have been examined by the plaintiff – landlord, in absence of any material, which would show that the suit premises was not used by the defendant–tenant without reasonable cause since last more than six months. Mr. Shah has attacked the credibility of the witnesses by submitting that they are not independent witnesses and they cannot have any personal knowledge about the closure of the shop. He has further submitted that the Trial Court has wrongly observed in paragraph 21 onwards of the judgment that the defendant-tenant had failed in establishing that the suit premises was being used by him, but, the plaintiff has miserably failed in establishing the assertions made in the plaint that the suit premise was not used by the defendant-tenant without any reasonable cause since last six months. He has also attacked the reasons assigned by the Appellate Bench of the Small Causes Court with regard to non-use of the suit premises without any reasonable cause since last six months. He has relied upon a decision of this Court in the case of Luhar Jagjivanbhai Ramjibhai & Ors. vs. Mukundlal Pitambardas Shah, as reported in 1987 (1) GLH 395 and more particularly the observations made in para-5 of the said judgment and submitted that the landlord has to prove not only non-user or change of user, but has also to prove that it is without reasonable cause. Burden lies on the plaintiff to prove his assertion that the property was not in use since last six months.
5.1 The next contention raised is with regard to the reasons assigned by the Appellate Bench of the Small Causes Court while deciding the appeal challenging the judgment and decree passed by the Trial Court. He has submitted that the Appellate Bench has not appreciated the case which is required to be done as per Order-41 Rule-31 of the Civil Procedure Code. The Appellate Bench ought to have assigned its own reasons and ought not to have accepted whatever has been observed by the Trial Court. In support of his contention, Mr. Shah has relied upon the decisions of the Supreme Court in the case of H. Siddiqui (Dead) By L.Rs. vs. A. Ramalingam, as reported at 2011 (2) GLR 1429 as well as in the case of S. Thankamani vs. Great Cochin Development Authority & Anr., as reported in 2008(15) SCALE and has submitted that in the present case, the Appellate Court has not delivered the judgment as per the Order 41, Rule 31 of the Code of Civil Procedure, 1908 and has not decided the case by giving reasons on each point independently and, therefore, the judgment and order passed by the Appellate Court be set aside and the matter may be remanded to the Appellate Court for fresh hearing with direction to decide the matter by giving reasons on each point raised by the appellant – defendant.
5.2 The last submission made by learned Advocate Mr.
Shah for the petitioner is with regard to the judicial comity and submits that if the learned Judge is not in agreement with the ratio laid down by another learned Single Judge of the same High Court , then, the matter shall be referred to the Larger Bench. Mr. Shah further submitted that if this Court is not in agreement with the ratio laid down by the learned Single Judge, the matter may be referred to the Larger Bench for its decision as per the decision of the Apex Court in the case of Somabhai Mathurbhai Patel vs. New Shorrock Mills, as reported at 1983 GLH 273.
6 On the other hand, Mr. M.B. Gandhi, learned Advocate, appearing for the respondents - plaintiffs, has submitted that there are concurrent findings of facts about non-user of the suit property without reasonable cause since more than six months preceding the date of filing of the suit and, therefore, the scope of revision would be very limited and the High Court can only correct an error of law but cannot re-appreciate the evidence on record. In support of his submission, he has relied upon the decision of the Supreme Court in the case of Patel Valmik Himatlal & Ors. vs. Patel Mohanlal Muljibhai (Dead) through LRs, as reported in 1999 (1) GLR 15 and submitted that power under Section 29(2) of the Rent Act does not vest with the High Court with the power to re-hear the matter and re-appreciate the evidence. The mere fact that a different view is possible on re-appreciating of evidence cannot be a ground for exercise of the revisional jurisdiction and, therefore, the present petition requires to be dismissed.
7 It was argued by Mr. Gandhi, learned Advocate, for the respondents – plaintiffs that the plaintiffs have, prima facie, proved their case by leading oral evidence of different witnesses that the suit premises was not used by petitioner – defendant - tenant since last more than six months preceding the date of institution of the suit. He has further submitted that, in fact, the plaintiffs were successful in establishing that the suit premises was not used by the defendant – tenant without reasonable cause since last more than 7 to 8 years. He further submitted that, though, the plaintiff had led the evidence by deposing before the court that the electric meter, which was installed at the suit premises was removed, the defendant had miserably failed by leading any type of oral or documentary evidence to show that the shop was being run by the tenant by using the electric supply of the shop. The defendant - tenant has also failed in establishing that the Municipality Tax, which was required to be paid by the tenant, was regularly paid by him to the Municipal Corporation – the Tax collecting authority. No evidence, whatsoever, in nature is produced by the defendant – tenant which would establish even, prima facie, that the rented shop was used by him. It is submitted that, though, the defendant - tenant has tried to establish that the shop was kept opened from 9.00 to 11.00 a.m. and business was being carried out from the said shop, but has miserably failed to establish the same by producing any books of accounts or any bills, sales tax details etc. which are required to be kept by the shopkeepers in ordinary circumstances. In this factual background of the case, he submitted that, during the course of trial, the onus was shifted to the tenant to prove that the shop was being used since last more than six months and was carrying on business in the said shop.
Except the oral say of the defendant – tenant and his witness that the shop was kept opened from 9.00 a.m. to 11.00 a.m., the defendant – tenant has not come forward with any type of evidence, which would, prima facie, establish that the shop was even kept opened for two/three hours during the course of the day and, therefore, both the courts have rightly come to the conclusion that the plaintiff - landlord was entitled for decree of eviction under Section 13(1)(k) of the Rent Act.
7.1 As far as the ratio laid down by the Apex Court in the case of Luhar Jagjivanbhai Ramjibhai (supra) is concerned, he submitted that, the facts of the said case and the facts of the present case are different. In the said case, as observed by the Court, the landlord has utterly failed even to allege and proof absence of reasonable cause for non-using the property and it has been further held that the defendant had duly established that the land was in use since number of years with some other parties with the knowledge of the landlord and, therefore, the ratio laid down in the aforesaid case would not be applicable in the facts of the present case.
7.2 As far as shifting of burden of proof is concerned, Mr.
Gandhi, has relied upon a decision of the Rajasthan High Court in the case of Kailash Chand vs. Sukh Ram & Anr., as reported at 2004 (1) RCR 375, which has been relied by both the courts below and submitted that the defendant–tenant was bound to establish that the suit premises was used for reasonable cause.
7.3 With regard to dealing with the present case by the Appellate Court, Mr. Gandhi, learned Advocate, for the respondents – plaintiff, has relied upon a decision of the Apex Court in the case of Jayshreeben Vasantkumar Vithlani vs. Manjibhai and Co. and Anr., as reported at 2007 (1) GLH 248 and submitted that, though, the Appellate Court might not have properly framed the points for consideration, but, if reading the entire judgment in toto, it is apparent that the Appellate Court has understood the dispute between the parties and considered the same after perusing the evidence on record. It is not necessary for the Appellate Court to undertake the entire exercise once again in detail. He further submitted that even otherwise the judgment and order of the Appellate Court is in consonance with the provisions of the Order- 41 Rule 31 of the Civil Procedure Code and the Appellate Court has dealt with each and every contentions raised by the appellant – original defendant in his appeal in detail and arrived at a conclusion that the shop was not used by the defendant– tenant without reasonable cause since last more than six months preceding the date of filing of the suit.
8 I have heard learned Advocates appearing for both the parties, perused the judgment and decree delivered by the learned Trial Court as well as the judgment and order passed by the learned Appellate Court and record and proceedings of the case.
9 The most important issue in this civil proceedings would be Chapter-VII of Part-III of the Indian Evidence Act, 1872, which deals with the aspect of burden of proof. In the present case, in my opinion, the relevant Sections would be Sections 101, 102 and 106 of the Evidence Act. Section 101 of the Evidence Act deals with the burden of proof upon a party who asserts before the court about his case. It lies with a person who asserts a particular fact which exists. Section-102 of the Evidence Act makes it clear that if no evidence is given by either side, the person who asserts, would fail. Sections 106 of the Indian Evidence Act deals with the burden of proving a particular fact lies on that person if that particular fact is within his knowledge. It is true that it is the duty of the plaintiff to establish his case with regard to the assertions he has made in the plaint. While dealing with Sections 101 and 102 of the Evidence Act, the Apex Court in the case of Anil Rishi vs. Gurbaksh Singh, as reported in AIR 2006 SC 1971 has held in para -19 as under:
“19. There is another aspect of the matter which should be borne in mind. A distinction exists between a burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is which party is to begin. Burden of proof is under in three ways: (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter evidence; and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule is Section 101 is inflexible. In terms of Section 102, the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would dis-entitle the plaintiff to the same.”
9.1 The aforesaid ratio laid down by the Apex Court is the elementary rule that Section-101 of the Evidence Act is inflexible and the initial onus is always on the plaintiff. However, conjoint reading of Sections 101 and 102 of the Evidence Act, it is amply clear that, if, the plaintiff discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would dis-entitle the plaintiff to the same.
10 In the case of A. Raghavamma and Anr. A. Chenchamma and Anr., as reported at AIR 1964 SC 136, the Apex Court while dealing with the provisions of Section 101 of the Evidence Act, in para-12 has held as under:
“12. .................. There is an essential distinction between burden of proof and onus of proof: burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. The burden of proof in the present case undoubtedly lies upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of a particular case, may shift the onus of proof. Such a shifting of onus is a continuous process in the evaluation of evidence. ”
11 Though, appreciating the evidence in the revisional proceedings under Section 29(2) of the Rent Act would be an exceptional, I have done in the present case, since it was a question of law with regard to the provisions of Sections 101, 102, etc of the Indian Evidence Act .
12 In view of the pronouncements of the Apex Court with regard to Sections 101 and 102 of the Evidence Act, if the present case is examined, the following facts emerges on the record:
• The suit was filed on 6.7.1999. The Court Commissioner visited the shop at 11’O clock on 10.7.1999 and prepared a reported on the same day, which is produced at Exhibit-52.
• The said report clearly indicates that the Court Commissioner visited the shop at 11’O clock on 10.7.1999 and at that time, the shop was closed and locks were applied on the door of the said shop.
• On the same day, the Court Commissioner visited the property, which was acquired by the defendant– tenant at a different place. A panchnama was drawn in the presence of the defendant – tenant, who was present at his new factory, where he was manufacturing the aluminum utensils.
• The plaintiff who has been examined at Exhibit-37 has categorically deposed in paragraph -9 of his deposition that the suit premises was closed since more than six months from the date of filing of the suit and has denied that the defendant – tenant has used to open the shop from 9.00 to 11.00 a.m every day. The plaintiff was exhaustively cross- examined by the defendant – tenant, but nothing fruitful has come from his deposition which would help the tenant. The plaintiff has categorically denied that the shop was being used by the defendant – tenant as godown as stated in his written statement, but has stated that the said shop was not at all used by the defendant - tenant since number of years.
• The plaintiff has examined his own son, who visited the suit premises along with the Commissioner on 10.7.1999. He has categorically deposed that the defendant – tenant himself had removed the electric services from the premises since he was not using the suit premises. On this aspect, there is no cross- examination by the defendant–tenant. Similarly, an independent witness one Chhotalal Venichand Bhavsar, was examined by the petitioner at Exhibit-47. He has deposed that before some years the shop was used by the tenant for selling aluminum utensils, but since last 7-8 years, the premises was not used by the tenant. He has not seen the defendant – tenant in the suit premises since last 7-8 years and has seen the defendant when he was about 25 years and, therefore, he was not able to recognize who is defendant and who is his brother, who are sitting in the court, but that does not lead anyway in favour of the defendant – tenant.
• Similarly, plaintiff has examined one Rasiklal Manilal Modi at Exhibit-48, who is a resident of the area who has supported the case of the plaintiff.
• The defendant examined himself at Exhibit-51. He deposed that since he is not well, he was not sitting in the shop for the entire day but he opens the shop from 9.00 a.m. to 11.00 a.m. and for the rest of the time, his brother used to sit in the shop and was carrying on the business. In his cross- examination, he deposed that, he is using the said shop as go- down and from the said godown, he is delivering goods to different parties. In support of his case, he examined one Kishorbhai Ambalal Rathod at Exhibit-58, who is also a resident of the area where the suit property is situated. He supported the case of the defendant in his chief examination. He has deposed that he purchases stain steel utensils from the said shop every year, but has not produced any bill to support the same. In his cross-examination, he deposed that the said shop is used as godown by the defendant - tenant.
13 Now considering the above factual aspects, it appears that, the plaintiff – respondents could, prima facie, establish that when the Court Commissioner visited the shop that the shop was closed on that day. It is true that on particular day, the shop might have been closed, but as stated by the defendant – tenant himself in his deposition that he used to visit the shop from 9.00 a.m. to 11.00 a.m. and at that time the shop was kept open and thereafter his brother used to sit in the shop. The say of the defendant – tenant becomes doubtful. That when Court Commissioner visited the factory which belongs to the defendant – tenant on the same day, he was present in the said factory. Witnesses examined by the plaintiff, in my opinion, can be treated as trustworthy since their say can be believed in absence of any other evidence produced by the defendant – tenant. As per the ratio laid down by the Apex Court in the judgment of A Raghavamma and Anr. (supra), in cases like one on hand, the shifting of onus, which is a continuous process, shifts to the party, who wants to prove a fact, which is in his personal knowledge. In the present case, if tenant wanted to prove that the shop was in continuous use, onus shifted from plaintiff who was successful in, prima facie, establishing his case of non-user by leading evidence with sufficient material, which would prove that the assertions made against him were without any basis. If the tenant who was carrying on his business from the disputed shop, it is presumed that he only can have different types of documentary material with regard to his business.
14 When the plaintiffs, prima facie, could establish that the shop was not used by the defendant – tenant since last more than six months without any reasonable cause, the onus shifts to the petitioner/tenant to establish that the shop was used at the time of filing of the suit or even before the date of filing of the suit or there was reasonable cause and, therefore, he has to establish the same, by producing sufficient evidence in support of his contention raised in the written statement. It is an admitted position that if the shop was being used, the defendant – tenant ought to have produced evidence, like, the bill books of the shop, municipal receipts with regard to the payment of municipal taxes which was required to be paid by the defendant – tenant as per the agreement, accounts books, etc. Even if, as stated by the defendant that the goods were delivered from the said shop, delivery challans, etc. could have been produced by the defendant.
In my opinion, when the onus shifted to the defendant, it was his duty to establish that the plaintiff was not entitled for the relief as claimed by him in the plaint. In the present case, defendant has miserably failed to prove the contentions raised in his written statement. On the contrary, there is evidence on record that the tenant had removed the electric connections from the suit premises.
15 As far as the decision of this court in the case Luhar Jagjivanbhai Ramjibhai (supra) relied by Mr. Shah appearing for the petitioner – defendant- tenant is concerned, the ratio laid down by this Court is totally on a different facts and circumstances. In the said case a decree was passed on change of user i.e. godown to business and sub-letting the suit premises. It was the case of the plaintiff - landlord that the tenant had changed the use of the property. Considering the facts of the said case, the learned Single Judge has held that the reasonable cause for using the premises for the purpose of business is clearly established by the conduct of the landlord over a number of years with the implied consent of the landlord to the same and, therefore, this aspect of reasonable cause for the alleged change of user clearly dis-entitles the landlord from recovering the possession. It has been held in that case that the landlord has utterly failed even to prove the aspect of any reasonable cause and, therefore, in my opinion, the ratio laid down by the this Court in the case of Luhar Jagjivanbhai Ramjibhai (supra) is not applicable in the present case.
16 In my opinion, the decisions of the Apex Court In the case Anil Rishi vs. Gurbaksh Singh (supra) and in the case of A. Raghavamma & Anr. (supra) would squarely apply to the facts of the present case when the plaintiffs have established, prima facie, case about non-user of the suit property by the defendant - tenant, the onus would shift to the defendant–tenant to produce sufficient evidence so as to establish that the assertions made by the plaintiff about non-user of the property is not correct. In my opinion, when the onus shifted to the defendant, it was his duty to establish that the plaintiff was not entitled for the relief as claimed by him in the plaint. In the present case, defendant has miserably failed to disprove the assertions made in the plaint.
17 As far as the judgment of the Appellate Court is concerned, I have gone through the same and I am of the opinion that the Appellate Court has dealt with the case in accordance with Order-41 Rule-31 of the Code of Civil Procedure, 1908 by giving reasons in detail in para-7 onwards of its judgment after discussing the depositions of the witnesses. As far as the case under Section 13(1)(k) of the Rent Act is concerned, the Appellate Court, after considering the entire case as per the provisions of Sections 3(1)(k) of the Rent Act, has observed that the they did not find any error with regard to passing a decree by the Trial Court under Section 13(1)(k) of the Rent Act in favour of the plaintiff-landlord. It also appears that the Appellate Court is aware about the main dispute between the parties and has dealt with even the question with regard to the burden of proof and onus which was shifted to the defendant – tenant to establish that the suit premises was used by him since last more than six months preceding the date of filing of the suit.
18 Since I have considered the case of Luhar Jagjivanbhai Ramjibhai & Ors. (supra) and I am in agreement with the ratio laid down by the court in that case, in my opinion, the matter is not required to be referred to the Larger Bench.
19 In the result, the present Revision Application deserves to be dismissed and is dismissed accordingly. Rule is discharged. Interim relief granted earlier, if any, shall stand vacated forthwith. There shall be no order as to costs.
20 At this stage, learned Advocate Mr. S.M. Shah, appearing for the petitioner – tenant, has requested to stay the operation of the present decision to enable the petitioner to approach the higher forum. The prayer is accepted. The operation and implementation of the present judgment and order is stayed for eight weeks from today.
pnnair (A.J.DESAI, J.)