PATEL CHHAGANBHAI MADHUBHAI Vs. MODI MOTILAL MOHANLAL

JUDGEMENT

(1.) The applicant herein is the original tenant who has filed the present Revision Application under section 29(2) of the Bombay Rent, Hotel and Lodging House Rates Control Act, 1947, (hereinafter referred to as 'the Rent Act for sake of brevity). The challenge is directed against judgment and order dated 7th December 2012 of learned Additional District Judge, Rajula, whereby he dismissed Regular Civil Appeal No. 82 of 2011 confirming the judgment and decree dated 31st December 2010 and 4th January 2011 respectively passed in Regular Civil Suit No. 88 of 2002 passed by the learned Principal Civil Judge, Rajula. By the said judgment and decree, the said court of first instance directed the applicant-tenant to handover vacant and peaceful possession of the suit shop. It further directed that the tenant shall continue to pay Rs.150/- per month as rent till the possession is handed over.

(2.) In the plaint, the landlords case was that shop No. 10 situated at Rajula was rented to the defendant-tenant on monthly rent of Rs.150/-. He pleaded two-fold grounds for seeking tenants eviction. It was the case that the tenant had sub-let and/or otherwise transferred the premises, and further that he was tenant-in-arrears, unable to vacate the suit premises the shop on those grounds. It was pleaded that the tenant had transferred or sub-let the shop rented to him to third parties from time to time. According to the plaintiff, the shop was initially sub-let to one Patel Machinery Store, thereafter , to another Patel of Jivapar, again to one Jivabhai Patel and then to Bhagyashree Saree & Matching Centre. It was thereafter sub-let to one Hareshbhai Govindram Sangtani, who was doing the business of photography therein. Before institution of the suit, notice dated 22nd March, 2002 (Exh.26) was issued by the plaintiff-landlord terminating the tenancy. The tenant replied the said notice on 28th March, 2004.

(3.) Learned advocate for the applicant-tenant submitted that the evidence on record did not prove the ingredients of section 13(1)(e) of the Rent Act. He submitted that there was no evidence to show that tenant had recovered anything as consideration from the sub-tenant. According to him, the finding that the possession of the premises was handed over or transferred to a person named Haresh Sangatani was erroneous because he was not in possession but the tenant himself was in possession of the shop. He submitted that the landlord and sub-tenant had connived against the applicant and said Sangatani had given false evidence. He relied on decisions of this court in Patel Shankarbhai Lallubhai vs. Heirs of Deceased Somabhai Mathurbhai Patel, 2001 1 GLH 665 to submit that as held therein, the transfer of possession was required to be proved to establish act of sub-letting. Another decision of this court in Shardaben M. Patel v. Ranjitlal Mansukhlal (deceased), 2002 2 GLH 73 was relied on for the proposition that the landlord must prove two-fold conditions, namely that exclusive possession of the premises was handed over to third person, and secondly that it was for valuable consideration.