1. Both these matters involve common questions on law and facts and hence, they are disposed of by this common judgment.
2. Civil Revision Application No.160/2007 has been preferred against the judgment and order passed by the learned Presiding Officer, F.T.C. No.3, Gondal, Camp at Upleta in Regular Civil Appeal No.35/2003 dated 29.08.2007 whereby, the said appeal was dismissed and the judgment and decree passed by the learned Civil Judge (J.D.), Upleta in Regular Civil Suit No.26/1999 dated 22.10.2003 was confirmed.
Whereas, Second Appeal No.244/2007 has been preferred against the judgment and order passed by the learned Presiding Officer, F.T.C. No.3, Gondal, Camp at Upleta in Regular Civil Appeal No.36/2003 dated 29.08.2007 whereby, the said appeal was dismissed and the judgment and decree passed by the learned Civil Judge (J.D.), Upleta in Regular Civil Suit No.98/1998 was confirmed.
3. The petitioner herein, original plaintiff, had preferred Regular Civil Suit No.98/1998 before the trial Court inter alia stating that he is occupying the premises belonging to respondent no.1 herein, original defendant, on a monthly rent of Rs.70/-. However, since respondent no.1 was trying to evict the petitioner from the suit premises illegally by closing down the gate used by the petitioner, he filed the suit in question praying that respondent no.1 be restrained from closing the gate and from disturbing him in the smooth functioning of his business. However, the said suit was dismissed vide judgment and order dated 22.10.2003.
4. In the meantime, respondent no.1 herein had also preferred Regular Civil Suit No.26/1999 before the trial Court inter alia stating that he had rented the premises, consisting of a single room, to respondent no.2 herein, original defendant no.1, on a monthly rent of Rs.70/-. It was alleged that respondent no.2 started the business of soda-bottling in the suit premises and also sub-let the said premises to the petitioner herein, original defendant no.2, which was contrary to the terms and conditions of the rent note. It was alleged that the original defendants had also carried out illegal construction in the suit premises and that they were also in arrears of rent. It was, therefore, prayed that a decree of eviction be passed against the defendants along with a direction regarding payment of arrears on rent. The said suit was decreed in favour of respondent no.1 vide judgment and decree dated 22.10.2003 and the petitioner herein was directed to vacate the suit premises and to hand-over the possession thereof to respondent no.1 and also to pay the amount of rent for three years prior to the date of institution of the suit and also rent for the period from the date of institution of suit till handing over the possession of the rented premises and costs.
5. Being aggrieved by the judgment and order passed by the trial Court in R.C.S. No.98/1998 and 26/1999, the petitioner herein preferred Regular Civil Appeals No.36/2003 and 35/2003. Both the appeals came to be rejected vide judgment and order dated 29.08.2007. Being aggrieved by the same, the petitioner has preferred C.R.A. No.160/2007 against the judgment and order passed in R.C.A. No.35/2003 and S.A. No.244/2007 against the judgment and order passed in R.C.A. No.36/2003.
6. Mr.
T.L. Sheth, learned counsel for the petitioner, submitted that the suit being R.C.S. No.26/1999 filed by respondent no.1 was time barred inasmuch as in the Notice issued by respondent no.1, rent was demanded for the period from 01.04.1986 to 28.02.1998 whereas, the suit in question was filed on 15.02.1999. He submitted that the cause of action arose in April 1986 but, the suit came to be filed only in February 1999, i.e. after a period of almost thirteen years. Hence, the suit in question was barred by limitation.
6.1 In support of his submission, reliance has been placed on a decision of this Court in the case of Suryakant Kanji Bheda V. Hemlataben Indukumar Rajani, 1998 (1) G.L.H. 138 wherein, it has been held that the cause of action in a suit filed to recover possession of the premises let to a tenant arises when the incident attracting any of the grounds available to the landlord to seek decree of eviction occurs and that under Articles 66 & 67 of the Limitation Act, the period of limitation for such suit would be 12 years from the date the cause of action has arisen.
6.2 Learned counsel Mr. Sheth submitted that respondent no.1 has not proved the contents of the Notice issued to the petitioner. He submitted that no specific demand was raised and that the excessive demand of time barred rent, viz. of 143 months, is not legal as per Article 52 of the Limitation Act. In spite of that both the Courts below directed the petitioner to pay rent for three years prior to the date of institution of suit.
6.3 Learned counsel Mr. Sheth further submitted that both the Courts below have erred in holding that the plaintiff has proved the ground of sub-letting. It is submitted that respondent no.1 has admitted in his deposition before the trial Court that he has not seen respondent no.2 herein in the rented premises since 1984 and that from 1984 the petitioner was having electric connection in his name at the rent premises. It is also admitted by respondent no.1 that he had received rent up to March 1986 and the suit is filed in 1999. Moreover, in the House Tax Valuation Report also, the petitioner was shown as occupier of the rented premises. Therefore, it was well within the knowledge of respondent no.1 since 1984 that the petitioner was in possession of the suit premises. It was only in the year 1998 that respondent no.1 stated that the petitioner is a sub-tenant. He submitted that there is nothing on record to show that the petitioner had given any consideration to respondent no.2 herein for the act. Therefore, both the Courts below have serious erred in holding that the ground of sub-letting was proved by the plaintiff.
6.4 In support of the above submission, reliance has been placed on another decision of this Court in the case of Shardaben M. Patel, Heirs of Maganlal Motiram Patel V. Ranjitlal Mansukhlal (deceased), 2002 (2) G.L.H. 73 wherein, it has been held that in a case of sub-letting, the landlord must prove two conditions - (i) exclusive possession has been given to third person (ii) possession has been given for consideration. In the absence of any evidence to prove the same, it cannot be said to be a case of sub-letting.
6.5 Learned counsel for the petitioner also relied upon a decision of the Apex Court in the case of B.V. Nagesh & Anr V. H.V. Sreenivasa Murthy, 2010 A.I.R. S.C.W. 6184 wherein, it has been held that under O-41 R-31 of C.P.C., the whole case is open for rehearing - both on question of law and facts. The appellate Court modifying the decree of the trial Court by a cryptic order, without even noticing relevant aspects, affects the valuable right of the parties and hence, the order of the appellate Court falls short of consideration expected from first appellate Court and is liable to be set aside.
6.5 Learned counsel, therefore, submitted that both the Courts below have committed serious error in law and also on facts in passing the impugned judgment and order against the petitioner.
7. Mr.
N.C. Thakkar, learned counsel for respondent no.1, supported the judgment and decree passed by the trial Court and submitted that this Court may not interfere with the concurrent findings recorded by the Courts below considering the facts and circumstances of the case.
C.R.A.
No.160 of 2007 :-
8. Heard learned counsel for the respective parties and perused the documents on record. Earlier, respondent no.1 had rented the premises in question to respondent no.2 on a monthly rent of Rs.70/- for which a Rent Note was executed. The said Rent Note was produced on record vide Exhibit-28. Before the trial Court, it was the specific case of the defendants that defendant no.1, respondent no.2 herein, handed over possession of the suit premises to the plaintiff, respondent no.1 herein, some where in the year 1984 and thereafter, the possession of the suit premises was handed over to defendant no.2, petitioner herein, on a monthly rent of Rs.70/- in 1984 itself. It was the specific case of the petitioner before the trial Court that after the suit premises was occupied by him in the year 1984, he had secured electricity connection and food licence in his name, after taking necessary consent from respondent no.1-landlord. However, on examination of the witness - Harikanta Girdharlal Raval, who was an employee of G.E.B., it was established that no consent of respondent no.1 was taken before securing the electricity connection. Similarly, on examination of another witness - Vanrajsinh Madhavsinh, it was established that before issuing the food licence, consent of respondent no.1 had not been obtained. Both the witnesses were examined on behalf of the petitioner but, their evidence did not support the case of the petitioner.
9. In the cross-examination before the trial Court (Exhibit-73), respondent no.2 admitted that he was completely unaware as to what happened to the suit premises, after he vacated it. The said evidence contradicts the version of the petitioner that he occupied the suit premises on rental basis, after it was vacated by respondent no.2 in 1984. Apart from that there is contradiction in the evidence led by the petitioner in the proceedings of R.C.S. No.98/1998 filed by the petitioner against the respondents and in the proceedings of R.C.S. No.26/1999 filed by respondent no.1 against the petitioner with respect to the period within which the petitioner had allegedly occupied the suit premises on rental basis, after the same was vacated by respondent no.2 in 1984. There is nothing on record to show that the petitioner herein was a tenant of respondent no.1. In fact, from the evidence on record, it is established that the petitioner was in exclusive possession of the suit premises after the same was vacated by respondent no.2 in 1984. Further, in the cross-examination, respondent no.2 categorically admitted that he had sold the machines of soda-bottling, etc. to the petitioner while he was occupying the suit premises as a tenant. In the background of the above fact and when it is established that the petitioner was occupying the suit premises, it has to be said that respondent no.2 had sub-let the suit premises to the petitioner. The petitioner has not been able to produce any cogent evidence on record to show that he was occupying the suit premises as a tenant on a monthly rent of Rs.70/-. Hence, both the Courts below were completely justified in concluding that the petitioner was is unauthorized occupation of the suit premises since 1984.
10. So far as the contents of the Notice (Exhibit-29) is concerned, I find that there is nothing ambiguous in it. The terms of the Notice is clear. Merely because of some error in usage, it could not be said that the Notice is illegal. The Notice in question contains all the important / necessary facts. Hence, in my opinion, the Notice issued by respondent no.1 was just and legal.
11. On the issue of arrears of rent, it is required to be noted that neither the petitioner nor respondent no.2 has produced any cogent evidence on record to show that they were not in arrears of rent. It was the specific defence of the petitioner that respondent no.1 was making an endorsement towards the rent received in the diary maintained by him. However, no such diary has been produced on record by the petitioner. Moreover, the defendants had also not made any averments regarding the diary in the reply to the Notice or in their written statement. Therefore, the defence regarding diary appears to be a concocted story put up by the petitioner.
12. Before the trial Court, respondent no.2 admitted that he was issued receipts by respondent no.1-landlord towards the payment of rent made by him. However, no such receipt was produced on record by respondent no.2. No evidence has been produced on record by either of the defendants to show that rent was paid regularly since 1986 or for that matter since 1984. Thus, when the defendants have failed to prove that they have paid rent up to September 1997 and when it is established from the evidence of respondent no.1 that the defendants are in arrears of rent since 1986, I am of the considered view that the defendants are in arrears of rent for the period from 01.04.1986 to 28.02.1998.
13. So far as the decisions relied upon by learned counsel for the petitioner is concerned, in my opinion, the same shall not apply to the case on hand since the facts in those cases and the facts in the case on hand are totally different. In the present case, I do not find the statutory Notice issued by respondent no.1 to be improper. It is established from the evidence on record that defendant no.1 had sub-let the suit premises to defendant no.2-petitioner for certain consideration. It is also established that the defendants are in arrears of rent. Hence, none of the decisions relied upon by the petitioner shall apply to the present case.
14. In view of the above discussion, I find no merits in the present revision application. I am in complete agreement with the concurrent findings arrived at by both the Courts below. Merely because the lower appellate Court has not given sufficient reasons while rejecting the appeal, it would not render the order improper. The crux of the matter is that the lower appellate Court has appreciated the evidence on record in its entirety while rejecting the appeal of the petitioner. Therefore, the petitioner cannot pray for remand, at this stage, on the ground that the judgment of the lower appellate Court is non-speaking by relying upon the decision of the Apex Court rendered in the case of B.V. Nagesh (supra).
15. For the foregoing reasons, the revision application is rejected. Rule is discharged. Interim relief stands vacated.
At this stage, learned counsel Mr. Sheth requests to extend the interim relief for a further period of three months. Considering the facts of the case and in view of the concurrent findings recorded by both the Courts below, the interim relief granted by this Court is extended only up to August 31 st 2011.
[K.
S. JHAVERI, J.] SECOND APPEAL No.244/2007 :-
In view of the order passed in C.R.A. No.160/2007, the second appeal also stands rejected. Notice is discharged.
[K.
S. JHAVERI, J.] Pravin/* Top