ABDULKADAR AHMED TURAVA Vs. LALLA ABDULRASHID

JUDGEMENT

(1.) This is a landlords Revision Application directed against the judgment of the learned Assistant Judge Surat in Appeal No. 56 of 1976 whereby he reversed the decree of eviction passed by the learned Judge of the Court of Small Causes Surat in Suit No. 896 of 1975. The brief facts leading to this Revision Application may be stated as under:

(2.) the petitioner is the landlord of a shop situate in Nondh No. 2227 of Ward No. 7 in Surat. He let it out to the respondent under a rent note dated 1/10/1963 Exhibit 25. According to the terms of the said rent note the tenant agreed to pay Rs. 15.00 per month as rent for the shop leased to him. Condition No. 5 of the rent note which is in Gujarati language reads as under: ***

(3.) The learned Assistant Judge came to the conclusion that a casual display of an advertisement board on the roof of the premises cannot constitute parting of possession of the portion of the roof either by lease or licence within the meaning of sec. 13(1)(ee) of the Act. According to him the evidence clearly disclosed that this was a stray or casual display and not a continuous or regular one so as to attract the provisions of sec. 13(1) (ee) of the Act. He also found that no payment was being made to the tenant by the proprietor of Moti Theatres but at the most the tenant was allowed to see a show in the cinema house gratis presumably on a complementary pass. This according to the learned appellate Judge did not constitute monetary consideration within the meaning of sec. 13(1) (ee) of the Act and therefore the decree in ejectment passed on that ground could not be sustained. So far as subletting is concerned the learned appellate Judge came to the conclusion that the shop was being used for the purpose of cycle repairs since almost the inception of the tenancy and that original defendant No. 2 Ahmad Suleman was in charge of the shop for about two years in his capacity as the employee of the tenant on payment of Rs. 4.00 per day as deposed by the tenant as well as Ahmad Suleman and therefore there was no subletting of the demised premises within the meaning of sec. 13(1)(e) of the Act. In this view that he took he reversed the finding recorded by the learned trial Judge on the question of subletting. So far as the change of user is concerned the learned appellate Judge came to the conclusion that even though no specific issue on this point appears to have been raised by the learned trial Judge the parties have adduced evidence and therefore the point can be answered on the evidence on record. He found on scrutiny of the evidence that even though Condition No. 5 of the rent note prohibits the use of the shop for any business other than the one mentioned namely running a tailoring shop in fact from the very inception the shop was being used as a cycle repair shop to the knowledge of the landlord and yet no action whatsoever was taken by the landlord till he issued the notice of 16th February 19/0 to which the tenant replied by Exhibit 33 on 7/03/1970. Even thereafter the landlord did not file any suit but instead issued another notice Exhibit 29 dated 1/06/1971 which was received by the tenant on 3/06/1971 to which the tenant replied by Exhibit 34 dated 1/07/1971. He therefore took the view that the landlord had tolerated the change of user for almost seven years and had continued to accept the rent from the tenant and therefore waiver or acquiescence on the part of the landlord can clearly be inferred. In this view that he took he came to the conclusion that no decree for eviction could be passed against the tenant on the ground that he had committed a breach of Condition No. 5 of the rent note Exhibit 25. An additional contention was urged before the lower appellate Court namely that the tenant had failed to deposit or tender in Court regularly the rent in respect of the demised premises after the filing of the appeal and was therefore liable to be evicted under sec. 12 (3) (b) of the Act. This contention was repelled by the learned appellate Judge on the ground that the tenant was always ready and willing to pay the standard rent in respect of the demised premises but the landlord was deliberately refusing to accept rent as is clear from the fact that his advocate refused to accept the rent when it was tendered to him on 3/07/1971 vide the endorsement on Exhibit 34 and the landlord himself refused to accept the Money Order sent on the very next day that is on 4/07/1971 as is evidenced by Exhibit 39. The learned appellate Judge therefore came to the conclusion that the landlord was not entitled to institute a suit on the ground of non payment of standard rent because the tenant had shown his readiness and willingness to pay the same and had in fact tendered the same to the landlords advocate and thereafter to the landlord by Money Order. He therefore came to the conclusion that the omission on the part of the tenant to regularly deposit the rent in the appellate Court would not entitle the landlord to a decree under sec. 12(3)(b) of the Act. In this view that the learned appellate Judge took he allowed the tenants appeal and set aside the decree for eviction. He however confirmed the finding regarding standard rent. The landlord feeling aggrieved by the reversion of the decree for eviction has filed the present Revision Application