REPORTABLE

THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.6685 OF 1999

V. Sumatiben Maganlal Manani (dead) by L.R.                     … Appellant

Versus

Uttamchand Kashiprasad Shah and Anr.                 …Respondents

J U D G M E N T

AFTAB ALAM, J.

1. This  appeal  at  the  instance  of  the  landlady  is  directed  against  the  

judgment and order dated July 23, 1999 passed by a learned single judge of  

the Gujarat High Court in Civil Revision Application No.1692/1998. By the  

impugned order, the High Court allowed the revision application filed by  

defendant no.1, the tenant (respondent no.1 before this Court), set aside the  

judgments and orders passed by the trial judge and a division bench of the

Small  Causes  Court  and  dismissed  the  appellant’s  application  claiming  

eviction of defendant No.1 from the suit premises, besides arrears of rent.  

2. The trial judge had allowed the appellant’s application and granted a  

decree of eviction in her favour on the ground that the suit premises had not  

been used by the tenant, without reasonable cause, for the purpose for which  

they were let for a continuous period of six months immediately preceding  

the  date  of  the  suit.  In  appeal  against  the  judgment  of  the  trial  judge  

preferred by defendant no. 1 and the cross-objection filed by the plaintiff-

appellant, the division bench of the Small Causes Court not only affirmed  

the finding of the trial court on non-user of the suit premises for a period of  

six months preceding the filing of the suit but also held the tenant liable for  

eviction on the ground that he had inducted in the suit premises defendant  

no.2 as a sub-tenant. In the revision filed by defendant no.1, however, the  

High Court held that both the findings arrived at by the trial court and the  

appeal court were bad and erroneous.  It, accordingly, set aside the decree of  

eviction passed by the trial court and affirmed by the appeal court against  

defendant no.1 and dismissed the suit of the appellant-plaintiff.

3. The  plaintiff-appellant  is  the  owner  of  bungalow No.6  situated  in  

Pathik Society, Naranpura, Ahmedabad.  A part of the property, being the  

middle garage, bearing M.C. No.145-6-1, and F.P. No.11-11-A-6-1 was let  

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out to defendant no.1 on June 1, 1974 for carrying on grocery business on a  

monthly rent of Rs.100/- plus municipal taxes, education cess etc. On June  

9, 1977, a notice (Exh.68) was given to defendant No.1 on behalf of the  

appellant stating that he was in default in payment of the monthly rent and  

the demised shop was not  in use since one year prior  to the date of  the  

notice.   He was, accordingly, asked to vacate the shop and hand over its  

possession to the plaintiff.  The notice did not have the desired result and,  

consequently,  on  July  18,  1977,  the  appellant  filed  the  suit  (H.R.P.  Suit  

No.2866/1977) seeking a decree of eviction and for payment of arrears of  

rent  and  mesne  profits  against  defendant  no.1  on  grounds  of  default  in  

payment of rent, bonafide personal need and non-user of the suit shop by  

defendant no.1, without any reasonable cause, for a period of six months  

immediately preceding the filing of the suit.  It was after the filing of the suit  

but before the summons was served on defendant no.1 that, he gave his reply  

(Exh.67) to the plaintiff’s notice on August 23, 1977.  In the reply, he did  

not expressly controvert the allegation that the suit premises were not in use  

since one year before the date of the notice.   

4. Later on, after the service of summons of the suit, defendant no.1 filed  

a written statement controverting all the allegations made by the plaintiff in  

the plaint. He denied any default on his part in payment of rent and also  

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denied that the plaintiff-appellant was in bonafide personal need of the suit  

shop. He also denied the allegation of non-user and asserted that he carried  

on his business from the suit shop. Here, it may be noted that, in the plaint as  

it was originally filed, there was no allegation of any subletting of the shop  

by defendant no.1 but during the pendency of the suit, the plaintiff made an  

application stating that defendant no.1 had acquired a shop in Sardar Patel  

Colony, where he carried on his grocery business under the name and style  

of  “Mahavir  Provision  Stores”.  He  had  acquired,  yet  another  shop  in  

Chandlodia area. The suit shop that was not in use by him was sublet by him  

to  one  Kishanchand  Chandansingh  Rao  who  was  carrying  on  his  milk  

business under the name and style of “Chandrika Dudh Ghar” in the shop  

adjoining the suit shop. Defendant no.1 was realising rental of the plaintiff’s  

shop from him. After being inducted in the suit  shop, the sub-tenant was  

using it for carrying on his business and was keeping his articles there. The  

application seeking amendment in the plaint was allowed by the trial judge  

by order dated December 11, 1981, following which necessary amendments  

were carried out in the original plaint and the aforementioned Kishanchand  

Chandansingh Rao was impleaded in the suit as defendant no.2. On notice  

being issued, defendant no.2 filed a written statement denying the allegation  

of being inducted in the suit shop as a sub-tenant and stating that he was  

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dragged in the suit unnecessarily only with a view to harass him. Defendant  

no.1 filed additional written statement,  denying the allegation that he had  

inducted  defendant  no.2  in  the  suit  shop  as  sub-tenant  or  that  he  was  

realising any rent from him.  

5. On the basis of the pleadings of the parties, the trial judge framed a  

large number of issues of which issue numbers (3), (4) and (4)(A) are of  

relevance for the present.  Those are as under:

“(3) Whether  the  plaintiff  proves  that  the  defendant  has  acquired a suitable alternative accommodation as alleged?

“4) Whether the defendant keeps the suit premises closed and  does  not  use  for  more  than  six  months  prior  to  the  suit  as  alleged?

“(4)(A) Whether the plaintiff  proves that defendant No.1 has  sublet, assigned or transferred the suit premises to the defendant  No.2 and is profiteering thereby?”

6. On issue No.3, the trial judge gave a finding in the negative.  On issue  

no.(4)(A)  he  held  that  though  there  appeared  some  substance  in  the  

plaintiff’s  case  that  the  suit  premises  were  in  the  use  and occupation  of  

defendant no.2, there was no evidence that it was in his exclusive possession  

and that he paid some consideration or any monthly rent to defendant no.1  

for being inducted in the suit  premises and, hence, the plea of subletting  

could not be a ground for eviction.  On issue No.(4), however, he held in  

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favour  of  the  plaintiff  and  found  that  defendant  no.1  had  kept  the  suit  

premises  closed,  without  any reasonable  cause  for  more than six months  

preceding the date of the filing of the suit.  It, accordingly, gave a decree of  

eviction against defendant No.1 on that basis.   

7. Against the judgment and decree passed by the trial judge, defendant  

no.1  preferred  an  appeal  before  the  division  bench  of  the  Small  Causes  

Court.  The appellant-plaintiff too filed her cross-objections.   The appellate  

court examined the evidences adduced by the two sides in support of their  

respective cases with great care and thoroughness and it is to the appellate  

order that we propose to refer here in some detail.  The appellate court noted  

that the ground of subletting was raised on behalf of the plaintiff at a later  

stage  through an amendment  in the  plaint.  It  referred to the  evidence of  

Maganbhai Rambhai Manani, the husband and power of attorney holder of  

the plaintiff who was examined at Exh. 101 and who fully supported the  

plaintiff’s case in all particulars. It also referred to the evidence of defendant  

no. 1 at Exh.344.  Defendant no. 1 denied all the allegations made in the  

plaint,  including  the  allegation  of  subletting.  He  maintained  that  he  was  

carrying on his business from the suit shop through an employee, Damodar.  

The appellate court found that the plaintiff’s case of subletting of the shop  

by defendant  no.1 to defendant  no.2 was greatly  supported by the report  

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prepared by  the  Court  Commissioner  who was appointed in  another  suit  

being  H.R.P.  Suit  No.3291/81  and  who  visited  the  suit  premises  on  

September  22,  1981.   The  Court  Commissioner  did  not  find  there  any  

grocery items but he found lying in the suit shop six empty milk cans and  

some  glass  show-cases  containing  small  card-board  boxes  used  for  

packaging sweets, bearing the name “Chandrika Dudh Ghar”.  In the loft of  

the shop there were five more milk cans and some 150 to 250 empty sweet  

boxes were also lying there.   Interestingly,  the Court  Commissioner  also  

found there certain books of accounts but before he could examine those  

books of accounts the inspecting party was attacked by four or five people  

coming from the adjoining shop of defendant no.2. The intruders assaulted  

Maganbhai  Manani  and disrupted the inspection being held by the Court  

Commissioner. The inspection, thus, came to an abrupt end.   

8. In  regard  to  the  incident  Maganbhai,  the  husband  and  power  of  

attorney holder of the plaintiff who had faced the main brunt of the assault,  

filed  a  criminal  complaint  against  Kishanchand,  defendant  no.2.  It  is  

admitted  that  in  the  criminal  case,  Kishanchand  was  sentenced  by  the  

Metropolitan  Magistrate  to  undergo  imprisonment  for  a  certain  period.  

Against the judgment and order passed by the Magistrate, he preferred an  

appeal  before  the  Sessions  Court.  In  the  appeal  his  conviction  was  

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maintained though the sentence was reduced to imprisonment till the rising  

of the court. Against the order passed by the Sessions Court, Kishanchand  

did  not  prefer  any  revision  before  the  High  Court  and  the  order  of  

conviction, thus, attained finality. In those circumstances there is no reason  

to doubt that the inspection by the Court Commissioner was obstructed at  

the instance of Kishanchand, defendant no.2 and the persons who came to  

the suit shop, the site of inspection, and assaulted Maganbhai, had come at  

his behest.

9. On behalf of defendant no.1 a rather lame plea was taken to try to  

explain away the findings of the Court Commissioner. It was stated on his  

behalf  that  the  marriage  of  his  nephew Ashokbhai  was  to  take  place  in  

August  or  September,  1981  and  he  had  given  an  order  for  sweets  to  

defendant No.2.  It was put to the plaintiff’s witness Maganbhai Rambhai  

Manani  that  the  sweet  boxes  found  at  the  suit  premises  by  the  Court  

Commissioner in course of his visit there on September 22, 1981 would be  

bearing the inscription, “On the marriage of Ashok”.  The witness, of course,  

denied the suggestion.  But the defendant did not stop there.  He, later on,  

filed  another  suit  being  H.R.P.  Suit  No.70/83  in  which  a  Court  

Commissioner was appointed who visited the suit premises on February 24,  

1983.   The Court  Commissioner  conveniently  found at  the  suit  premises  

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sweet boxes with the inscription “At the occasion of the marriage of nephew  

Shri Ashok Kumar”.  The appellate court rightly rejected the explanation  

furnished by defendant no.1 relying on the report of the Court Commissioner  

observing that there should be no reason for empty sweet boxes to be lying  

at the shop after two years of the marriage.  But, we see something more in  

the conduct of defendant no.1. He not only fabricated evidence by later on  

keeping  in  the  suit  shop  the  sweet  boxes  with  the  inscription  about  his  

nephew’s wedding but also abused the process of the court for his purpose  

by filing a separate suit and getting a Court Commissioner appointed in that  

suit for the discovery of the fake sweet boxes.  

10. On a detailed consideration of the materials on record, the appellate  

court came to find and hold that the suit premises were in fact in the use and  

occupation of defendant no.2 and in the facts of the case it was not necessary  

for the landlady to prove the monetary consideration between the tenant and  

the sub-tenant. In support of the view taken by it, the appellate  court relied  

upon a  decision  of  this  Court  in  Bharat  Sales  Limited  v. Life  Insurance  

Corporation  of  India,  AIR  1998  SC  1240  and  in  paragraph  38  of  the  

judgment observed as follows:-

“38. In view of our earlier discussion and even in view of the  finding  of  the  learned  trial  Judge,  it  can  be  safely  said  that  defendant  No.2  is  found  in  use  and  occupation  of  the  suit  

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premises.   In  that  case,  according  to  our  view,  it  is  not  necessary for the landlord to prove the monetary consideration  by sub-tenant to the tenant.  We are also of the opinion that in  case  of  subletting  or  in  case  of  illegal  transfer,  such  consideration  can  be  presumed.   In  this  connection,  our  attention  is  drawn  by  Mr.  Pandya,  learned  advocate  who  appears on behalf of the appellant, to a decision of M/s. Bharat   Sales Limited v. Life Insurance Corporation of India, reported  in A.I.R. 1998, Supreme Court, page-1240.  In this decision, it  has been observed by Their Lordships that:

“..  To  prove  subletting  production  of  affirmative  evidence  showing payment of monetary consideration by sub-tenant to  the tenant is not necessary.  Inference as to subletting can be  drawn from proof  of  delivery  of  exclusive  possession of  the  premises  by  tenant  to  sub-tenant.   Sub-tenancy  or  subletting  comes into existence when tenant gives up possession of the  tenanted  accommodation  wholly  or  in  part  and  puts  another  person  in  exclusive  possession  thereof.   This  arrangement  comes about mutual  agreement or understanding between the  tenant and person to whom possession is so delivered.  In this  process,  landlord  is  kept  out  of  the  scene.   Rather  scene  is  enacted behind the back of the landlord, concealing overact and  transferring possession to a person who is utter stranger to the  landlord….”

11. Coming to the issue of non-user of the suit shop for the purpose it was  

let  out,  the  appellate  court  noted  that  according  to  the  plaintiff  the  suit  

premises  were  rented  out  to  defendant  no.1  in  June,  1974  for  grocery  

business.  But the business of grocery evidently did not succeed and since a  

few months after it was taken on rent, the shop was kept closed.  Then, in the  

amendment petition filed on behalf of the plaintiff, it was expressly alleged  

that defendant no.1 was carrying on his grocery business under the name and  

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style  of  “Mahavir  Provision  Stores”  from  another  shop  in  Sardar  Patel  

Colony and later on he had set up yet another shop in Chandlodia area and  

the suit premises were sublet to defendant no.2.   

12. Maganbhai Manani, the husband and the power of attorney holder of  

the plaintiff in his deposition before the court fully supported the case of the  

plaintiff on the question of non-user as well. Apart from the evidence of the  

plaintiff, there were two sets of photographs, one taken on January 4, 1977  

and the other on January 3, 1981 in which the suit shop appeared closed.  

The photographs taken on January 4,  1977, at  exhibits  301 to 304, were  

formally proved by one Mr. Narendrabhai Madhavlal  Gajjar at (Exh.300)  

who is a professional photographer and has a shop under the name and style  

of  Gajjar  Studio.  He  stated  before  the  court  that  he  had  taken  the  

photographs on the instructions of the husband of the landlady on January 4,  

1977 at about 10 to 11 in the morning and had issued the bill, Exh.201.  The  

other set of photographs, dated January 3, 1981, were taken by Vinodbhai  

Boria, who is also a professional photographer.  In regard to the two sets of  

photographs the appellate court rightly said that those would, at best, show  

that the shop was closed on the dates on which the photographs were taken.  

The photographs, therefore, could not form conclusive evidence of non-user  

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of the shop over a period of six months and, at best, they could be used as a  

piece of corroborative evidence.  

13. Apart  from  the  photographs,  there  was  the  report  of  the  Court  

Commissioner  who  visited  the  suit  shop  on  July  23,  1977  and  found  it  

closed.  The explanation of defendant no.1 was that on that date his maternal  

uncle had died and the shop was not opened for that reason. His witness  

Maheshkumar  Trivedi,  at  Exh.  404,  who  was  writing  the  accounts  of  

business of defendant no.1, however, had a different explanation.  According  

to  him,  the  shop  was  not  opened  on  July  23,  1977  because  that  was  a  

holiday.  The court  has observed that  grocery shops are not  known to be  

closed on holidays. But the matter does not end there. After finding the suit  

shop  closed,  the  Court  Commissioner  proceeded  to  visit  the  shop  of  

defendant  no.1 called ‘Mahavir Provision Stores’ at  Sardar Patel  Colony.  

There the shop was not only open but defendant no.1 was himself present in  

the shop.  The court has observed, and rightly so, that on account of the  

death of the maternal uncle it cannot be that one shop would open and the  

other would remain closed.   

14. The  most  clinching  evidence  on  the  issue  of  non-user  of  the  suit  

premises,  however,  comes in  the  form of  the  electricity  bills.  Electricity  

bills, Exhs. 172 to 177, are dated 10.1.1977, 23.2.1977, 25.3.1977, 2.5.1977,  

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2.6.1977 and 2.9.1977 respectively. These electricity bills clearly show that  

in the suit shop there was no consumption of electricity for the period of six  

months before the filing of the suit. In order to prove non-consumption of  

any  electricity  at  the  suit  shop,  the  plaintiff  also  examined  Rameshbhai  

Patel,  at  Exh.332,  who  was  an  employee  of  the  Ahmedabad  Electricity  

Company, as a Senior Clerk, for 12 years before his examination in court.  

He produced before the court statement of electric service number 149090  

(of the suit shop) with his list Exh.74/1.  He also produced other statements  

with lists, Exh.74/2 and Exh.74/3, containing record of metre readings of the  

suit premises showing electric consumption for different periods.  He also  

referred to an application submitted by defendant no.1 for transfer of electric  

service in his name and for resuming electric supply in the suit premises.

15. The explanation of defendant no.1 for non-consumption of electricity  

was that being a devout Jain he closed the shop at 5:30 P.M. before the day  

getting dark. He, therefore, did not need any electric light (or for that matter  

any electric fan) and hence, there was no consumption of electricity in his  

shop. The falsehood of the explanation, however, was exposed by the fact  

that  the  electric  supply  to  the  demised  shop  was  disconnected  for  non-

payment of the minimum charges. Defendant no.1 then made an application,  

Exh.198, for resumption of the supply and transfer of the service from the  

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name of  the  landlady  to  his  own name.  On  his  application,  the  electric  

supply was restored in the year 1979 and then the monthly bills, Exh.199  

and Exh.200, dated December, 2, 1980 and January 2, 1981 showed normal  

consumption of electricity  in the suit  shop. There was no explanation by  

defendant  No.1  how  and  why  the  suit  shop  that  showed  no  electric  

consumption in earlier years started showing normal electric consumption  

from December 1979. The resumption of electric consumption in the suit  

shop also lends credence to the case of the plaintiff  that  after  remaining  

closed  for  two-three  years,  the  shop  was  sublet  by  defendant  no.  1  to  

defendant no. 2 who used it for his milk business.

16. The appellate court also referred to the book of account, in the form of  

“Rojmel” produced by defendant no.1 in support of his claim that the suit  

shop was in  his  occupation and he carried on his  grocery  business  from  

there.  The appellate court on a detailed examination of the entries made in  

the “Rojmel” found that it was a crude and clumsy fabrication made for the  

purpose of the suit.

17. Thus, in addition to its own finding on the question of subletting, the  

appellate  court,  on a  careful  consideration of  all  the materials  on record,  

affirmed the finding recorded by the trial judge that the suit premises were  

not used by the appellant-tenant for the purpose for which it was let for a  

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continuous period of more than six months immediately preceding the date  

of the suit. It, accordingly, confirmed the decree of eviction passed by the  

trial court.   

18. Against the order passed by the appellate court defendant no.1 filed a  

revision  before the High Court and the High Court, we are sorry to say,  

taking a rather perfunctory view of the matter interfered with and set aside  

the findings of fact arrived at by the appellate court in a very well reasoned  

judgment.  On the issue of  non-user of the  suit  premises,  the High Court  

made the following observations:

“….It  appears  that  the  Trial  Court  as  well  as  the  Appellate  Bench of the Small Causes Court have taken the pieces of the  fact which are segregated and placed them in the juxtaposition,  and from that the Appellate Bench inferred and presumed that  the suit shop was closed for continuous period of six months  prior  to  the  filing  of  the  suit;  and  this  is  the  error  of  law  apparent on the face of the record, and it goes to the root of the  cause.   It  is  a  celebrated  principle  of  law  that  the  word  “continuous” applied in Section 13(1)(k) of the Bombay Rent  Act  clearly  denotes  that  the  premises  must  not  have  been  opened for a day even, and what is found from the evidence is  that the day on which the Commissioner visited the suit shop  was found closed.  The photographs taken by the photographer  on a stray day shows that the suit shop was found closed and  the oral evidence of the plaintiff was believed.”

19. In our view, the criticism by the High Court of the appellate court  

judgment is unwarranted. The appellate court did not arrive at its finding on  

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a juxtaposition of segregated pieces of fact but it took into consideration the  

overall  picture  emerging  from  all  the  material  facts  and  circumstances  

relating to the case.  The appellate court expressly said that the two sets of  

photographs would only show that  the  shop was closed on the dates the  

pictures were taken and those pictures alone were not sufficient  to prove  

non-user of the suit premises over a period of six months and they could, at  

best, be used as corroborative evidence.  It, however, took into consideration  

the circumstance that apart from the suit premises defendant No.1 had set up  

another shop called “Mahavir Provision Stores” at Sardar Patel Colony and  

yet another shop in Chandlodia area.   It  also took into consideration that  

when the Court Commissioner visited the suit shop on July 23, 1977 it was  

found closed. What is of greater significance in that regard, however, is that  

defendant no.1 gave a false explanation for not opening the shop, stating that  

it was not opened due to the death of his maternal uncle  even though the  

other  shop  at  Sardar  Patel  Colony  was  not  only  open  but  he  was  also  

personally present there on that date.  The court also took into consideration  

the false “Rojmel” filed by defendant No.1 in support of the plea that he  

continued  to  run  the  grocery  business  at  the  suit  premises  through  an  

employee. The court also noticed that another Court Commissioner had gone  

to the suit premises on September 22, 1981.  He did not find in the shop any  

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grocery articles but found there articles  belonging to defendant no.2 who  

carried on his milk business from the adjoining shop.  Besides all this, the  

appellate court had taken into consideration the electricity bills that showed  

that there was no consumption of electricity over a period of six months  

immediately preceding the filing of the suit.

20. As  regards  the  electricity  bills,  the  High  Court  had  to  make  the  

following comments:

“Defendant  No.1 has offered his  explanation for  this  that  he  being  a  Jain,  before  the  sun  set,  he  closes  his  shop.   The  defendant No.1 has also produced electric bills of six months  prior to the six months prior to the date of the filing of the suit.  These bills have not been considered by any of the courts below  properly.  In those six months bills, which the defendant No.1  has produced, the charges of the electricity are minimum and  there is no consumption.  On the contrary, from this explanation  of the defendant No.1 that he is not using the electricity……”.

21. Here again, the High Court failed to appreciate all the material facts  

and circumstances. The High Court thought that the electricity bills showing  

no  consumption  of  electricity  for  the  period  of  six  months  immediately  

preceding the filing of the suit were of no consequence because the bills for  

even the period prior to the period of six months preceding the suit showed  

no consumption of electricity. The High Court overlooked the fact that even  

though in terms of Section 13(1)(k) of the Bombay Rent Act, the plaintiff  

was  required to  prove non-user of  the shop premises  for  a  period of  six  

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months immediately preceding the filing of the suit, as a matter of fact, the  

case of the plaintiff was that defendant No.1 was not using the shop and  

keeping it closed for a much longer period starting from or about June, 1976.  

Thus,  the  bills  produced  by  defendant  no.1  showing  no  consumption  of  

electricity in fact supported the case of the plaintiff.  The High Court also  

overlooked  that  later  on  in  the  year  1979  defendant  no.1  had  got  the  

electricity connection to the suit shop restored and thereafter the electricity  

bills were showing normal consumption of electricity. The High Court also  

overlooked  that  defendant  no.1  had  resorted  to  many  falsehoods  in  his  

attempt  to  wriggle  out  of  facts  and  circumstances  established  by  the  

plaintiff’s evidence.  

22. In  the  same  way  on  the  issue  of  subletting  the  High  Court  was  

dismissive of the finding of the appellate court observing as follows:-

“On scrutinizing the record, it is clearly found that reliance has  been  placed  on  the  testimony  of  the  plaintiff’s  power  of  attorney  holder  and  panchnama  prepared  by  the  Court  Commissioner.  What is found by the Court Commissioner is  only some milk cans in the suit premises.  Some of the milk  cans carried the name of defendant No.2 and also some sweet  boxes.  From this mere fact, a very serious presumption of the  exclusive possession of the defendant No.2 has been drawn by  both the courts below.  The finding of the exclusive possession  must be based on evidence and that factum of possession must  be  proved.   From  this  only,  no  prudent  man  can  infer  the  presence of a third party.”

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23. We are unable to subscribe to the view taken by the High Court.  On  

the basis of the materials available on record, as discussed in detail in the  

judgment of the appellate court, it was perfectly justified in arriving at the  

finding of subletting against defendant no.1.  On a careful consideration of  

the  matter,  we  find  that  the  High  Court,  in  exercise  of  its  revisional  

jurisdiction, committed a mistake in interfering with and setting aside the  

findings of fact properly arrived at by the courts below.  The judgment and  

order  passed  by  the  High Court  is  unsustainable  by  any  reckoning.  We,  

accordingly, set aside the judgment of the High Court and restore the decree  

passed by the trial court as affirmed by the appellate court.  

24. In the result, the appeal is allowed with costs throughout.  

         …………………… ……J.

(AFTAB ALAM)

       …………………… ……J.

(R.M. LODHA) New Delhi; July 4, 2011.  

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