VANRAJBHAI JESANGBHAI CHAVDA Vs. ASHOKBHAI KALUBHAI

JUDGEMENT

(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.) 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.