RAMMURAT MAHADEV Vs. LALJIBHAI BABURAM SONI

JUDGEMENT

(1.) THE present revision application has been filed by the Petitioner -original Defendant No. 1 under Section 100 of the Code of Code of Civil Procedure read with Section 29(2) of the Bombay Rent Act for the prayer that the judgment and order passed in Civil Appeal No. 36/95 by the Appellate Bench of the Small Causes Court, Ahmedabad, confirming the judgment and order passed by the Small Causes Court, Ahmedabad, in H.R.P. Suit No. 3415/87 may be quashed and set aside on the grounds set out in the memo of the revision application

(2.) IT is contended, inter alia, that both the courts below have failed to appreciate the evidence as well as the documents on record. It has also been contended that both the courts below aver committed an error in appreciating the evidence regarding subletting while passing the decree under Section 13(1)(e) which has been confirmed by the Appellate Bench. It is also contended that both the courts below have failed to consider that if it was a case of non -use of the premises, then, the decree under Section 13(1)(e) could not have been passed and therefore the present revision application has been filed.

(3.) LEARNED advocate Mr. Kinariwala referred to the papers and the judgments of both the court below and tried to submit that the findings are inconsistent inasmuch as on one hand the say of the Petitioner -original Defendant No. 1 with regard to non -use has not bee accepted and the decree has been passed under Section 13(1)(e) regarding subletting. Learned advocate Mr. Kinariwala submitted that the courts below have failed to appreciate that before the decree under Section 13(1)(e) could be passed on the ground of subletting, necessary ingredients are required to be established, that is, it must be shown that the tenant has handed over the exclusive possession to the third person without consent of the landlord. He submitted that in the facts of the present case, there is no such evidence of handing over of exclusive possession in favour of the sub -tenant. Learned advocate Mr. Kinariwala further submitted that as Defendant Nos. 1 and 2 are in relation and when it was specifically contended that wife of Defendant No. 2 is the niece of Defendant No. 1, the Petitioner herein, it would not be covered by subletting. However, the courts below have failed to appreciate this aspect.