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 order passed by the learned appellate Bench of the Small Cause Court at Ahmedabad dated 22/07/1997 in Regular Civil Appeal No. 212/1986 by which the learned appellate Bench has allowed the said appeal preferred by respondent no. 1/2- original defendant no. 2 quashing and setting aside the judgment and decree passed by the learned trial Court passing the eviction decree vide judgment and decree dated 19/09/1986 in HRP Suit No. 5171/1980 and remanding the matter to the learned trial Court for deciding the same afresh.
2. The facts leading to the present Civil Revision Application in a nutshell are as under;
2.1. The applicant-original plaintiff instituted HRP Suit No. 5171/1980 in the Court of learned Small Cause Court at Ahmedabad for recovery of possession and eviction decree on the ground of arrears of rent, originally against original defendant no. 1. It appears that as the applicant-original plaintiff apprehended that original defendant no. 1-tenant was trying to sublet the suit premises and, therefore, injunction was sought by submitting an application, Exh. 25 and the learned trial Court passed an order with the consent of the applicant-original plaintiff as well as original defendant no. 1 directing the parties to maintain status-quo. Original defendant no. 1 resisted the suit by filing the written statement at Exh.
11. It appears that during pendency of the suit, original defendant no. 1 went to Hyderabad permanently and original defendant no. 2 was inducted in the suit premises and, therefore, an application was submitted to join original defendant no. 2 as party to the suit, which came to be allowed and that is why respondent no. 1/2, who was subsequently inducted in the suit premises by original defendant no. 1 was joined as party to the suit. Original defendant no. 2 filed the written statement at Exh. 43 and adopted the written statement filed by original defendant no. 1. It was specifically denied that the suit shop has been sublet to him by original defendant no. 1. It was the specific case on behalf of original defendant no. 2 that he has started the business in partnership with original defendant no. 1 in the suit premises. It is required to be noted that original defendant no. 2 entered into partnership deed vide dated 30/09/1984, which is admittedly after institution of the suit. It appears that thereafter the learned trial Court framed the issues at Exh. 52. It appears that during pendency of the suit, original defendant no. 1 died and his heirs were brought on record. It appears that thereafter the trial proceeded and on behalf of the applicant- original plaintiff his son came to be examined and he was also cross examined by original defendants nos. 1 and 2. It appears that thereafter nobody appeared on behalf of original defendants nos. 1 and 2 and the learned trial Court passed an order to close the evidence of the original defendants and thereafter on appreciation of the evidence held that original defendant no. 1 was in arrears of rent and, therefore, passed the eviction decree under Section 12(3)(b) of the Bombay Rent Act and vide judgment and order dated 19/09/1986 decreed the suit and directed the original defendants to handover peaceful and vacant possession of the suit shop to the applicant-original plaintiff. It appears that being aggrieved and dissatisfied with the judgment and decree passed by the learned Small Cause Court at Ahmedabad dated 19/09/1986 in HRP Suit No. 5171/1980 only original defendant no. 2 preferred Regular Civil Appeal No. 212/1986 before the learned appellate Bench of the Small Cause Court at Ahmedabad and the learned appellate Bench vide impugned judgment and order dated22/07/1997 has quashed and set aside the judgment and decree passed by the learned trial Court solely on the ground that the applicant-original plaintiff got the decree with no evidence in the suit and, therefore, on the ground of doing substantial justice, the learned appellate Court set aside the judgment and decree passed by the learned trial Court and remanded the matter to the learned trial Court by giving an opportunity to original defendant no. 2 to lead the evidence before the learned trial Court. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned Small Cause Court, Ahmedabad the applicant-original plaintiff has preferred the present Civil Revision Application under Section 29(2) of the Bombay Rent Act.
3. Shir Lalakia, learned advocate appearing on behalf of Shri Hriday Buch, learned advocate appearing on behalf of the applicant-original plaintiff has vehemently submitted that the learned appellate Court has materially erred in allowing the appeal preferred by respondent no. 1/2-original defendant no. 2 and has materially erred in quashing and setting aside the judgment and decree passed by the learned trial Court. It is submitted that though the learned appellate Court has specifically observed that sufficient opportunity was given to the original defendants to lead the evidence and still they have not led the evidence, the learned appellate Court has solely on the ground of doing substantial justice has quashed and set aside the judgment and decree passed by the learned trial Court and has remanded the matter to the learned trial Court by permitting original defendant no. 2 to lead the evidence, which original defendant no. 2 failed to lead. It is submitted that even otherwise as original defendant no. 2 was inducted in the suit shop during the pendency of the suit and when the original defendant has not challenged the judgment and decree passed by the learned trial Curt under Section 12(3)(b) of the Bombay Rent Act even the appeal at the instance of respondent no. 1/2-original defendant no. 2 was not maintainable. Once original defendant no. 1 accepted the judgment and decree passed by the learned trial Court, the person, who was inducted in the suit premises during pendency of the suit, at his instance the appeal was not maintainable. It is further submitted that even considering the case on behalf of original defendant no. 2 that he was inducted in the suit premises as a partner pursuant to the partnership deed entered into between original defendants nos. 1 and 2 subletting is established and proved. It is submitted that admittedly the suit premises was given to original defendant no. 1 in individual capacity and at the time when the suit was filed he was carrying on business and, therefore, by subsequent partnership/alleged partnership in favour of original defendant no. 2, original defendant no. 1 was not authorised to induct original defendant no. 2 in the suit premises. It is submitted that therefore on the aforesaid ground also the impugned judgment and order passed by the learned appellate Court deserves to be quashed and set aside and the judgment and decree passed by the learned trial Court is required to be restored.
4. Shri Vishrut Jani, learned advocate has appeared for Shri R.C. Jani, learned advocate appearing on behalf of respondent no. 1/2-original defendant no. 2. Relying upon the decision of the Hon'ble Supreme Court in the case of Helper Girdharbhai Vs. Saiyed Mohmad Mirasaheb & Ors. rendered in 1987 (2) GLH 261 it is submitted that as original defendant no. 2 was inducted in the suit premises as partner on the basis of the partnership deed entered into between original defendant no. 1 and original defendant no. 2 and, therefore, it cannot be said that original defendant no. 1 has sublet the suit premises in favour of original defendant no. 2.
4.1. It is further submitted by Shri Jani, learned advocate appearing on behalf of original defendant no. 2 that even the heirs of original defendant no. 1 were not brought on record and, therefore, the suit was required to be dismissed on the ground of non-joinder of parties. It is further submitted by Shri Jani, learned advocate appearing on behalf of original defendant no. 2 that even otherwise and considering the fact that the judgment and decree passed by the learned trial Court was ex parte and without the evidence of the original defendants on record, the learned appellate Court is absolutely justified in quashing and setting aside the judgment and decree passed by the learned trial Court and remanding the matter to the learned trial Court giving original defendant no.
2 an opportunity to lead the evidence and, therefore, it is submitted that as such no illegality/irregularity has been committed by the learned appellate Court, which calls for the interference of this Court in exercise of the powers under Section 29(2) of the Bombay Rent Act. Making the above submissions and relying upon the above decisions, it is requested to dismiss the present Civil Revision Application.
5. Heard the learned advocates appearing on behalf of the respective parties at length and considered the impugned judgment and orders passed by both the Courts below. At the outset, it is required to be noted and it is an admitted position that initially the suit was filed only against original defendant no. 1-tenant and the suit premises was let to original defendant no. 1 only. It appears that as the applicant-original plaintiff was apprehending that original defendant no. 1, who had shifted to Hyderabad, was trying to sublet the suit premises an injunction application was given, which was granted in the year 1982 and with the consent all the parties to the suit directed to maintain status-quo. Still in breach of the order of status-quo, original defendant no. 2 was inducted in the suit premises in the year 1984 by original defendant no. 1, who permanently shifted to Hyderabad on the basis of the alleged partnership deed dated 30/09/1984. Thus, admittedly original defendant no. 2 was inducted in the suit premises during pendency of the suit. Still original defendant no. 2 was joined as party to the suit for effective decree. Original defendants nos. 1 and 2 filed the written statement and even cross examined the witness, which was examined by the applicant-original plaintiff. However, despite the fact that though the suit was adjourned time and again and for 59 times after original defendant no. 2 filed the written statement, the original defendants did not led the evidence and, therefore, the right on behalf of the original defendants to lead the evidence was closed. Under the circumstances and considering the aforesaid facts, it cannot be said that the learned trial Court was not justified in closing the right of the original defendants to lead the evidence. Under the circumstances, the learned appellate Court has materially erred in quashing and setting aside the judgment and decree passed by the learned trial Court solely on the ground of doing substantial justice permitting original defendant no. 2 to lead the evidence, which he failed to lead, despite the suit was adjourned for 59 times after he filed the written statement. Under the circumstances, the learned appellate Court has materially erred in quashing and setting aside the judgment and decree passed by the learned trial Court passed against original defendant no. 1-tenant on the ground of arrears of rent.
6. Even otherwise, the learned appellate Court has materially erred in entertaining the appeal preferred by original defendant no. 2, who was inducted in the suit premises during pendency of the suit and that too in breach of the order of status-quo. It is required to be noted that so far as original defendant no. 1-tenant is concerned, his heirs have not questioned the judgment and decree passed by the learned trial Court. Even otherwise, it is required to be noted that original defendant no. 2 claimed to be in possession of the suit premises on the ground that as original defendant no. 1 tenant has entered into partnership with him pursuant to the partnership deed dated 30/09/1984 it is required to be noted that as such the property in question was let to original defendant no. 1 in his individual capacity and, therefore, original defendant no. 1 could not have handed over the possession in favour of original defendant no. 2 even by taking original defendant no. 2 as partner. Under the circumstances, even the issue of subletting has been proved considering the case on behalf of original defendant no. 2 himself.
7. Now so far as the contention on behalf of respondent no. 1/2-original defendant no. 2 that as all the heirs of original defendant no. 1 were not joined in the suit and therefore, the suit was required to be dismissed on the ground of non-joinder of party is concerned, the same cannot be accepted. It is required to be noted that so far as original defendant no. 1 is concerned he had left for Hyderabad permanently and he had handed over the suit premises to original defendant no. 2 in breach of the order of status-quo and the heirs of original defendant no. 1 had not raised any objection. Even if some of the heirs of original defendant no. 1 are joined in the suit, the suit was not required to be dismissed on the ground of non- joinder of proper parties. The reliance placed upon by the learned advocate appearing on behalf of the respondent in the case of Helper Girdharbhai (Supra) shall not be applicable to the facts of the present case and the same shall not be of any assistance to original defendant no. 2. In the case before the Hon'ble Supreme Court at the time of filing of the suit all the original defendants were found to be in possession. It was found that the property was used by the partnership firm of which one of the partner was the tenant (original defendant no. 1) and original defendants nos. 2 to 4, who were alleged to be sub-tenant were inducted as partners in the partnership firm and all of them were found to be continuing with the business and even at the time of filing of the suit all of them were in possession and to that the Hon'ble Supreme Court held that there was no subletting.
8. In view of the above and for the reasons stated hereinabove, the impugned judgment and order passed by the learned appellate Court deserves to be quashed and set aside and the judgment and decree passed by the learned trial Court is required to be restored.
CRA/1138/1997 10/10 JUDGMENT
9. In view of the above and for the reasons stated hereinabove, the present Civil Revision Application succeeds. The impugned judgment and order passed by the learned appellate Bench of the Small Cause Court at Ahmedabad dated 22/07/1997 in Regular Civil Appeal No. 212/1986 is hereby quashed and set aside and the impugned judgment and decree dated 19/09/1986 passed by the learned Small Cause Court at Ahmedabad in HRP Civil Suit No. 5171/1980 is hereby restored. Rule is made absolute accordingly. No cost.
(M.R. SHAH, J.) siji