VITTAL B. SALIAN Vs. ZOEB CHANDABHAI AND OTHERS

JUDGEMENT

(1.) Heard Shri R.S. Deshmukh, the learned counsel for the petitioner and Shri Vadharia, the learned counsel for the respondents.

(2.) There is absolutely no reason to justify interference with the impugned decree under Art. 227 of the Constitution of India, specially when there is error apparent in the face of the record and furthermore there is a concurrent finding of fact entirely on the process of appreciation of evidence. Even otherwise on the fresh assessment also there is no scope for interference. Both the Courts below have properly considered all the facts of the controversy and have reached at a correct conclusion. All the reasons assigned by the Courts below therefore deserve to be endorsed. Only some of the glaring features can be re-stated. It is an accepted position and which is fully borne out by the record that whatever right the petitioner claims it is exclusively through one Suru Shetty who equally admittedly was inducted by the widow of the original tenant Rajaram. The most striking feature is, and which is demonstrated by the material on record, that the original landlord Chandabhai has filed an eviction suit against the heirs and legal representatives of Jankibai seeking eviction of the suit premises. One of the grounds in that substantive suit was that the tenants Daripkar and three others had unlawfully sublet the suit premises to the said Shri Suru Shetty. In view of the allegations the said Shetty was impleaded as co-defendant. Though the suit was dismissed the plaintiff was successful in the appeal, when the appeal was allowed and the trial Court's decree was set aside. The appellate Court recorded a firm finding on facts that the suit premises were unlawfully sublet by the said tenants and a further finding was recorded that the suit premises were required by the landlord reasonably and bonafide. It is interesting to note that the said Suru Shetty was not satisfied by the said decree and he was active enough when he filed writ petitions in this Court challenging that decree. What is of almost importance is that the said petitions were dismissed summarily on Aug. 16, 1979, and significantly though the suit was filed by the petitioner on the 13th of July, 1979, he had not moved the trial Court but he did so on the 17th of Aug., 1979, that is, on the next day after the dismissal of the writ petition and thereunder claim of the interim relief of injunction. It is also relevant to note and which is an accepted position that the present petitioner made no endeavour to get himself impleaded in the said suit. As indicated, a clear finding was recorded which assumed the finality that the original tenants had unlawfully sublet the premises and when it is accepted that the present petitioner can claim interest of the premises only though the said Shri Suru Shetty and when Shri Shetty's capacity itself has been declared to be absolutely unlawful, then it has been rightly held by the Courts below that the petitioner can hardly claim any lawful interest or title in the suit premises. It is interesting to note that admittedly the petitioner was acting as the Constituted Attorney on behalf of the said Suru Shetty and he had assumed that capacity even when the earlier suit was prosecuted by the parties and what is of more interest is that he himself prosecuted that writ petition in this Court on behalf of Suru Shetty as his Constituted Attorney. It is apparent that it is only after the failure on all the forums that a fresh attempt has been made to revive the proceeding though which another label.

(3.) Maybe that on some occasions the landlord had received rent from the petitioner. However, there is a clear finding that these were only rare occasions and what is of importance is that this was merely a mechanical act of handing over money though admittedly it was all along on behalf of the tenant. Maybe that the petitioner used to sit in the premises for some time and may be that he handed over that amount on some occasions this does not bestow on him the right as the capacity of the tenant. This aspect has been rightly considered by the Courts below. It is in that behalf significant to note that inspite of all these features all the rent receipts are entirely in the name of the tenant and it is not even whispered that any receipt was issued in favour of the petitioner. The declaration which had become final that Suru Shetty has unlawfully sublet is a very strong point to non-suit the petitioner rightly held by the Courts below and which is already discussed. There is also a finding by the Courts below that the restaurant known as Durga Bhuvan in the suit premises was conducted by the said Suru Shetty and this is to be read in the context of the other restaurant known as Real Hindu Hotel which is alleged to have been taken over. The further contention that the petitioner has been in exclusive possession with the consent of the original landlord has also been rightly negatived. In fact, there is no privity of contract between the petitioner and the original landlord.