1. The present Civil Revision Application under Section 29(2) of the Bombay Rent Act has been preferred by the applicant- original defendant no. 1-original tenant challenging the impugned judgment and decree passed by the learned 3rd Joint Civil Judge (Senior Division), Surendranagar dated 22/02/2001 in Regular Civil Suit No. 68/1997 by which the learned trial Court has passed the eviction decree against the original defendants on the ground of arrears of rent as well as on the ground of sub letting. The applicant-original defendant no. 1- tenant has also challenged the impugned judgment and order passed by the learned Additional District Judge and Presiding Officer, Fast Track Court No. 2, Surendranagar dated 24/04/2006 in Regular Civil Appeal No. 15/2001 by which the learned appellate Court has dismissed the appeal preferred by the original defendants and has confirmed the judgment and decree passed by the learned trial Court.
2. The respondent-original plaintiff-Smt Kankuben Kalubhai- landlord instituted Regular Civil Suit No. 68/1997 against the applicant-original defendant no. 1 and original defendant no. 2 for recovery of possession of the suit shop on the ground of arrears of rent for more than six months at the time of the suit notice as well as at the time of filing of the suit as well as on the ground of subletting by the applicant-original defendant no.
1 in favour of original defendant no. 2. It was the case on behalf of the respondent-original plaintiff that the suit shop was given on rent to the applicant-original defendant no. 1 at a monthly rent of Rs. 150/- and he was doing the business of grocery etc.. At the time of suit notice, rent was due for 71 months i.e. from 01/01/1991 to 31/01/1997 and the said suit notice was refused by the applicant-original defendant no. 1. It was also the case on behalf of the respondent-original plaintiff that the suit shop has been sublet in favour of original defendant no. 2, who is running the business of dairy in the name of Krishna Dairy. The said suit was resisted by the applicant-original defendant no. 1 by filing the written statement at Exh. 11 denying almost all the averments made in the plaint, however, admitted that the suit shop was given on monthly rent of Rs. 150/- per month and the liability to pay the municipal tax was upon the original defendants-tenant, which was over and above the monthly rent of Rs. 150/-. It was the case on behalf of original defendant no. 1 that in the year 1987-88 for three months he sent the rent by Money Order, which was refused by the respondent-original plaintiff. It was also the case on behalf of the applicant-original defendant no. 1 that he was always ready and willing to pay the rent. The learned trial Court framed the issues at Exh. 14. On behalf of the respondent-original plaintiff, she herself was examined at Exh. 23 and one Ashokbhai Kalubhai was examined at Exh. 33 to prove the sub tenancy in favour of original defendant no. 2. On behalf of the applicant-original defendant no. 1, he himself was examined at Exh. 59. On behalf of the respondent-original plaintiff, documentary evidence was produced at Exhs. 24, 25, 26, 27, 30, 36 and 37, inclusive of the photographs of the suit property (Exhs. 36 and 37) showing that original defendant no. 2 was carrying the business of selling milk in the suit shop and was in possession of the suit shop. The learned trial Court on appreciation of evidence held that the case would fall under Section 12(3)(a) of the Bombay Rent Act and as the dispute of standard rent was raised for the first time in the written statement, the same was not permissible and held that the applicant-original defendant no. 1 was in arrears of rent for more than 71 months and the same was not deposited within one month from the suit notice and, therefore, the learned trial Court decreed the suit on the ground of arrears of rent. The learned trial Court on appreciation of evidence held that the applicant-original defendant no. 1 has sublet the suit shop in favour of original defendant no. 2 and, therefore, the learned trial Court passed the eviction decree on the ground of subletting also. Being aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court original defendants preferred Regular Civil Appeal No. 15/2001 before the learned District Court, Surendranagar and by impugned judgment and order dated 24/04/2006, the learned appellate Court has dismissed the appeal confirming the judgment and decree passed by the learned trial Court. Being aggrieved and dissatisfied with the impugned judgment and order/decree passed by both the Courts below the applicant-original defendant no. 1 only has preferred the present Civil Revision Application under Section 29(2) of the Bombay Rent Act.
3. Shri Kirtidev Dave, learned advocate appearing on behalf of the applicant-original defendant no. 1 has vehemently submitted that both the Courts below have materially erred in passing the eviction decree on the ground of arrears of rent for more than six months as well as on the ground of subletting. It is further submitted by Shri Dave, learned advocate appearing on behalf of the applicant-original defendant no. 1 that the learned trial Court has materially erred in holding that the case would fall under Section 12(3)(a) of the Bombay Rent Act. It is submitted that as the liability to pay the municipal tax was upon the tenant, the case would fall under Section 12(3) (b) of the Bombay Rent Act and as the tenant deposited the entire arrears of rent of the suit premises, considering Section 12(3)(b) of the Bombay Rent Act, no eviction decree could have been passed.
3.1. Shri Dave, learned advocate appearing on behalf of the applicant-original defendant no. 1 has further submitted that the learned trial Court has materially erred in holding that the applicant-original defendant no. 1 has sublet the suit shop in favour of original defendant no. 2 solely relying upon the photographs produced at Exhs. 36 and 37. Making the above submissions, it is requested to allow the present Civil Revision Application.
4. The present Civil Revision Application is opposed by Ms.
V.D. Nanavati, learned advocate appearing on behalf of the respondent-original plaintiff-landlord. It is submitted that there are concurrent findings of fact given by both the Courts below on arrears of rent as well as subletting, which are on appreciation of evidence, which are not required to be interfered with by the revisional Court in exercise of revisional jurisdiction. It is submitted that on appreciation of evidence, the learned trial Court has specifically found that the tenant was in arrears of rent for more than six months on the date of filing of the suit and as the rent was payable monthly and neither the dispute with respect to standard rent was raised within the period of one month from the date of receipt of the suit notice nor the arrears of rent was deposited/paid within the period of one month from receipt of the suit notice, the case would fall under Section 12(3)(a) of the Bombay Rent Act and, therefore, the learned trial Court has rightly passed the eviction decree, which is rightly confirmed by the learned appellate Court.
5. Ms. Nanavati, learned advocate appearing on behalf of the respondent-original plaintiff has relied upon the decision in the case of Ravjibhai Gigabhai vs. Virjibhai Ravjibhai & Ors. reported in 2009 (1) GLR 407 in support of the above submission that the case where the liability to pay municipal tax upon the tenant is over and above the monthly rent, in that case, the case would fall under Section 12(3)(a) of the Bombay Rent Act.
5.1. Now with respect to subletting it is submitted by Ms. Nanavati, learned advocate appearing on behalf of the respondent-original plaintiff that on appreciation of evidence the learned trial Court has specifically found that original defendant no. 2 was found to be in possession of the suit land carrying business of selling milk etc. in the name of Krishna Dairy and the same is established by documentary evidence and the applicant-original defendant no. 1 has failed to explain the possession of original defendant no. 2 and when notice of the suit was served upon original defendant no. 2 at the address of the suit shop and the learned trial Court has passed the eviction decree on the ground of subletting it is submitted that no illegality has been committed by the learned trial Court in passing the decree on the ground of subletting, which is rightly confirmed by the learned appellate Court. Making the above submissions and relying upon the above decision, it is requested to dismiss the present Civil Revision Application.
6. Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that the learned trial Court has passed the eviction decree on the ground of arrears of rent as well as on the ground of subletting, which has been confirmed by the learned appellate Court. As such, there are concurrent finding of facts given by both the Courts below holding that the applicant- original defendant no. 1 was in arrears of rent for more than six months at the time of the suit notice as well as at the time of filing of the suit i.e more than 71 months and the case would fall under Section 12(3)(a) of the Bombay Rent Act. However, it is the case on behalf of the applicant-original defendant no. 1 that as the liability to pay the municipal tax was upon the tenant the case would not fall under Section 12(3)(a) of the Bombay Rent Act and the case would fall under Section 12(3) (b) of the Bombay Rent Act. However, it is required to be noted and it is an admitted position that the liability to pay the municipal tax upon the applicant-original defendant no. 1 is over and above the monthly rent of Rs. 150/-. Under the circumstances, despite the fact that the liability to pay the municipal tax is upon the tenant, still as the liability to pay the municipal tax is over and above the rent, the rent would be considered to be payable monthly and, therefore, the case would fall under Section 12(3)(a) of the Bombay Rent Act. Identical question came to be considered by this Court in the case of Ravjibhai Gigabhai (Supra) and it is held by this Court that in a case where the liability to pay the municipal tax is upon the tenant over and above the monthly rent in that case the case would fall under Section 12(3)(a) of the Bombay Rent Act. Under the circumstances, when all other ingredients/conditions of Section 12(3)(a) of the Bombay Rent Act are satisfied there is no other alternative but to pass the eviction decree. Under the circumstances, the Courts below have not committed any error and/or illegality in passing the eviction decree under Section 12(3)(a) of the Bombay Rent Act.
7. It is also required to be noted that even the decree has been passed on the ground of subletting. There are concurrent finding of facts given by both the Courts below that the applicant-original defendant no. 1 has sublet the suit premises to original defendant no. 2, who was found to be in possession of the suit shop carrying the business of selling milk etc. in the name of Krishna Dairy. The applicant-original defendant no. 1 has failed to explain the presence of original defendant no. 2. The findings of fact given by both the Courts below on subletting are on appreciation of evidence, which are not required to be interfered with by this Court under section 29(2) of the Bombay Rent Act.
8. In view of the above and for the reasons stated hereinabove, there is no substance in the present Civil Revision Application, which deserves to be dismissed and is accordingly dismissed. Rule is discharged. Ad-interim relief granted earlier, if any, stands vacated forthwith.
(M.R. SHAH, J.) siji