[1.0] Present Civil Revision Application under Section 29(2) of the Bombay Rent Act has been preferred by the petitioner herein – M/s. M.N. Gandhi to quash and set aside the impugned judgment and order / decree dated 21.04.2012 passed by the learned Appellate Court – learned Additional District Judge, Surendranagar in Regular Civil Appeal No.1 of 2009 by which the learned Appellate Court has allowed the said Appeal preferred by the respondent herein by quashing and setting aside the impugned judgment and decree dated 28.11.2008 passed by the learned trial Court – learned Principal Senior Civil Judge, Surendranagar in Regular Civil Suit No.95 of 2004 by which the learned trial Court dismissed the said suit preferred by the respondents herein – original plaintiffs which was filed for recovery of the possession of the suit premises on the ground of subletting. [2.0] That the respondents herein – original plaintiffs instituted Regular Civil Suit No.95 of 2004 against the defendant for recovery of the possession/eviction decree on the ground of subletting as well as on the ground of arrears of rent and also on the ground that the defendant is not using the suit premises. It was the specific case on behalf of the plaintiffs that suit premises was let to the defendant Manubhai Nanchand Gandhi only in his individual capacity and the same has not be used by the defendant and has been sublet to one Hasmukhlal Nanchand Gandhi who is found to be in occupation and possession of the suit premises and therefore, it was requested to pass the eviction decree.
[2.1] That the defendant appeared in the suit and resisted by filing the written statement at Exh.14 stating that he is not the tenant. It was the case on behalf of the defendant that M/s. M.N. Gandhi – a partnership firm was the tenant of the suit premises and thereafter the said Hasmukhlal N. Gandhi was inducted as a partner and the partnership firm came to be dissolved in the year 1992 and therefore, the Hasmukhlal N. Gandhi continued to be in occupation and possession of the suit premises as a tenant as on dissolution of the partnership firm he alone become the tenant.
[2.2] That the learned trial Court framed the issues at Exh.18. That on behalf of the plaintiff, the plaintiff himself came to be examined at Exh.25. He produced various documentary evidences such as rent receipts etc. issued by the plaintiff in the name of M.N. Gandhi at Exhs.35 to 74 and also produced various other documentary evidences. On behalf of the defendant, M.N. Gandhi came to be examined at Exh.91. Hasmukhlal N. Gandhi who was found to be in occupation and possession of the suit property also came to be examined at Exh.111. On behalf of the defendant two rent receipts issued by the plaintiff to show that the said rent receipts were issued in the name of M/s. M.N. Gandhi also came to be produced at Exhs.100 and 101. On behalf of the defendant the partnership deeds of M/s. M.N. Gandhi came to be produced at Exhs.113 and 112 and dissolution of partnership firm also came to be produced at Exh.115. That on appreciation of evidence the learned trial Court dismissed the suit by holding that the plaintiffs have failed to prove that the defendant has sublet the suit premises to Hasmukhlal N. Gandhi. That the learned trial Court also refused to pass the eviction decree on the ground of arrears of rent.
[2.3] Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court dated 28.11.2008 in Regular Civil Suit No.95 of 2004 in dismissing the same and refusing to pass the eviction decree on the ground of arrears of rent as well as on the ground of subletting, the original plaintiff preferred Regular Civil Appeal No.1 of 2009 before the learned District Court, Surendranagar and the learned Appellate Court – learned Additional District Judge, Surendranagar by impugned judgment and order / decree dated 21.04.2012 has allowed the said Appeal by quashing and setting aside the judgment and decree passed by the learned trial Court dismissing the suit and consequently decreeing the suit and passing the eviction decree against the original defendant i.e. Hasmukhlal N. Gandhi.
[2.4] Feeling aggrieved and dissatisfied with the impugned judgment and order / decree passed by the learned Appellate Court in passing the eviction decree on the ground of subletting, the petitioner herein – M/s. M.N. Gandhi has preferred the present Civil Revision Application under Section 29(2) of the Bombay Rent Act.
[3.0] Shri Tarak Damani, learned advocate appearing on behalf of the petitioner herein – M/s. M.N. Gandhi has vehemently submitted that the learned Appellate Court has materially erred in passing the eviction decree on the ground of subletting by holding that the defendant has subletted the suit premises to Hasmukhlal N. Gandhi. It is submitted that the learned Appellate Court has materially erred in holding that the suit premises was let to Manubhai Nanchand Gandhi in his individual capacity despite two rent receipts produced at Exhs.100 and 101 showing that the rent was paid by M/s. M.N. Gandhi – a partnership firm. It is submitted that as such the property was let to the partnership firm M/s. M.N. Gandhi and Hasmukhlal N. Gandhi became the partner of M/s.
M.N. Gandhi on 21.04.1992 and thereafter the said partnership firm M/s. M.N. Gandhi came to be dissolved on and from 01.07.1992 and Hasmukhlal N. Gandhi became the proprietor of the said firm and therefore, Hasmukhlal N. Gandhi remained in occupation and possession of the suit property and therefore, Hasmukhlal N. Gandhi cannot be said to be a subtenant of defendant.
[3.1] It is submitted by Shri Damani, learned advocate appearing on behalf of the petitioner that the learned Appellate Court has not properly appreciated and/or considered the documentary evidences on record i.e. the Deed of Partition dated 21.04.1992 as well as Deed of Dissolution of the partnership firm M/s. M.N. Gandhi dated 01.07.1992 and thereby has materially erred in quashing and setting aside the judgment and decree passed by the learned trial Court and has materially erred in directing to pass the eviction decree on the ground of subletting.
Making above submissions, it is requested to admit/allow the present Civil Revision Application.
[4.0] Present Civil Revision Application is opposed by Shri Vimal Patel, learned advocate appearing on behalf of the original plaintiffs. It is submitted that the finding given by the learned Appellate Court that the suit property was given on lease to Shri Manubhai Nanchand Gandhi in his individual capacity and not to the partnership firm M/s. M.N. Gandhi and the said finding is on appreciation of evidence which is not required to be interfered by this Court in exercise of powers under Section 29(2) of the Bombay Rent Act. It is submitted that the learned Appellate Court has considered number of documentary evidences produced at Exhs.35 to 74 i.e. rent receipts which were issued in favour of Manubhai Nanchand Gandhi in his individual capacity only. It is further submitted that even in the partnership deed dated 21.04.1992 and even the dissolution of the partnership dated 01.07.1992 there is no mention with respect to the suit property and the suit property was never considered to be the rented premises in favour of partnership firm. It is submitted that as such the rent receipt produced at Exhs.100 and 101 in which the name of M/s. M.N. Gandhi is mentioned cannot be said to be rent receipts. It is submitted that as the rent might have been paid by M/s. M.N. Gandhi for two months and by that M/s. M.N. Gandhi – partnership firm would not become the tenant when on record there are number of documentary evidences/ rent receipts in which name of Manubhai N. Gandhi only has been mentioned as a tenant. Therefore, it is submitted that as such no illegality has been committed by the learned Appellate Court in holding that the suit premises was let to Manubhai N. Gandhi in his individual capacity and therefore, he had no right to part with the possession in favour of Hasmukhlal N. Gandhi and as Hasmukhlal N. Gandhi was found to be in possession of the suit premises, the learned Appellate Court has rightly passed the decree on the ground of subletting.
Making above submissions it is requested to dismiss the present Civil Revision Application.
[5.0] Heard learned advocates appearing on behalf of respective parties at length and considered the impugned judgment and order passed by both the Courts below as well as the evidence on record, documentary as well as oral, from the R & P received from the learned trial Court. This Court has considered in detail the rent receipts produced at Exhs.35 to 74 as well as rent receipts produced at Exhs.100 and 101 as well as partnership deed of M/s.
M.N. Gandhi dated 21.04.1992 as well as deed of dissolution of partnership firm M/s. M.N. Gandhi dated 01.07.1992. The short question which is posed for consideration of this Court is whether the suit premises was leased/let to Manubhai N. Gandhi in his individual capacity or the same was leased/let to partnership firm M/s. M.N. Gandhi (as alleged and contended by the petitioner herein). Considering the evidence on record it appears that M/s.
M.N. Gandhi – partnership firm was constituted in the year 1967 and there were four partners namely Dhirajlal Gandhi, Mansukhlal Gandhi, Popatlal Laxmichand and Raichand Laxmichand. It appears out of which, Popatlal Laxmichand and Raichand Laxmichand retired in the year 1980 and Dhirajlal Gandhi and Mansukhlal Gandhi remained as partners of M/s. M.N. Gandhi. It is the case on behalf of the petitioner and even the defendant that Mansukhlal Gandhi retired as a partner of M/s. M.N. Gandhi on 21.04.1992 and on the very day Hasmukhlal Gandhi and Jayantilal Gandhi were inducted as partners of M/s. M.N. Gandhi. However, it is required to be noted that as such there is no document on record to show that Mansukhlal Gandhi retired on 21.04.1992 as alleged. Be that as it may, it appears that by partnership deed dated 21.04.1992, Hasmukhlal N. Gandhi and Jayantilal Gandhi were inducted as partners of M/s. M.N. Gandhi. It appears from the evidence on record i.e. Exh.114 that Hasmukhlal N. Gandhi and Jayantilal Gandhi brought some tenanted premises into the partnership firm. In the partnership deed dated 21.04.1992, there is no reference to the suit premises. The partnership firm M/s.
M.N. Gandhi came to be dissolved by deed of dissolution of the partnership firm dated 01.07.1992 and it is the case on behalf of the petitioner that Hasmukhlal N. Gandhi became the proprietor of firm M/s. M.N. Gandhi. It appears that at the time of dissolution of the partnership firm by executing deed dated 01.07.1992, the tenanted premises which were brought by Hasmukhlal N. Gandhi and Jayantilal Gandhi were returned to them and in the document produced at Exh.115 there is a specific mention to various rented premises situated at Ajmera Chambers etc. which are other than the suit property. Thus, in the deed of dissolution of partnership firm, there is no reference to the suit premises at all and there is a reference to other properties/rented premises. Thus, at no point of time the suit property was considered to be the rented / tenanted premises of the partnership firm M/s. M.N. Gandhi. From the documentary evidences on record it appears that Manubhai N. Gandhi was the tenant of the suit premises in his individual capacity and infact he was the tenant of the suit premises who had subletted the same to Hasmukhlal N. Gandhi. It is not in dispute that Hasmukhlal N. Gandhi was found to be in occupation and possession of the suit property without consent of the landlord and Manubhai N. Gandhi had inducted the said Hasmukhlal N. Gandhi and handed over the possession of the suit property to him without the consent of the landlord, which he was not entitled to. Under the circumstances, no illegality has been committed by the learned Appellate Court in holding that the suit property was given on lease to Manubhai N. Gandhi in his individual capacity and the partnership firm M/s. M.N. Gandhi was never considered to be the tenant and therefore, when Hasmukhlal N. Gandhi who was not the tenant of the suit premises was found to be in occupation and possession of the suit premises, the learned Appellate Court has not committed any error and/or illegality in decreeing the suit by passing the eviction decree on the ground of subletting. The learned Appellate Court has rightly quashed and set aside the judgment and decree passed by the learned trial Court dismissing the suit and consequently decreeing the suit on the ground of subletting, which on facts is not required to be interfered by this Court in exercise of revisional jurisdiction under Section 29(2) of the Bombay Rent Act.
[6.0] In view of the above and for the reasons stated above, present Civil Revision Application fails and the same deserves to be dismissed and is, accordingly, dismissed. Notice discharged. No costs.
Sd/ (M.R. Shah, J.) menon