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CIVIL APPEAL NO.5284 OF 2006

REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5284 OF 2006

ANIL KUMAR DADURAO DHEKLE        …Appellant  

Versus

RUKHIBEN AND ORS.                         …Respondents

J U D G M E N T

R. BANUMATHI, J.            

This  appeal  arises  out  of  the  judgment  and  order  dated

16.10.2003 in Civil Revision Application No.1517 of 1983 passed

by  the  High  Court  of  Gujarat  at  Ahmedabad,  dismissing  the

revision petition thereby affirming the order of the First Appellate

Court which reversed the order of eviction passed by the trial court.

Vide impugned order, the High Court declined to order eviction on

the ground of default in payment of rent and sub-letting without the

permission of the landlord.  

2. Brief facts which led to filing of this appeal are as follows: The

appellant  herein  is  the owner  of  the property  known as “Radha

Bhuvan”  a  two  storeyed  building  situated  on  Vadi  Rang Mahal,

Hathia Khan Road, Vadodara City near Alankar Studio and flour

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mill.  The property consists of ground floor, first floor and second

floor.  The ground floor of the suit premises was let out to the first

respondent-defendant No.1 Manilal Ishwarbhai Valand-the original

tenant in the year 1958 on a monthly rent of Rs. 30/-. The original

tenant  was  running  a  hair  cutting  salon  in  the  rented  premises

under the name of ‘Excellent Hair Dressing Saloon’.  The tenancy

commenced from the 6th day of the month and ended on 5th day of

the following month and for  payment  of  rent,  receipt  was given

from time to time. The original tenant was not in the habit of paying

the rent regularly, that is, on the due date of each month and he

was in arrears of rent for the period ranging from 06.07.1974 to

05.05.1976, amounting to Rs.660/ for twenty two months.  On wilful

default  in  payment  of  rent,  a  notice  was  duly  served  upon  the

original tenant to make payment of the above arrears within one

month from the date of receipt of notice and the tenant has neither

paid the arrears nor sent any reply.  Left with no alternative, the

appellant-plaintiff was constrained to file Rent Suit No.499 of 1978

on  29.09.1978  before  the  Court  of  Small  Causes  Judge  at

Vadodara seeking possession of the property and arrears of rent.

During  the  pendency  of  the  suit,  the  original  tenant  Manilal

Ishwarbhai  Valand  died  on  26.11.1979  and  his  legal

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representatives viz., his wife and two sons namely, Dahyalal and

Bhogilal were brought on record as defendant Nos.1/1 to 1/3.  

3. One of the sons of the tenant named Bhogilal independently

runs hair cutting salon on Ajwa Road opposite to Navjivan Society.

Similarly,  another  son  Dahyalal  was  serving  in  Alembic  Glass

Works for the last 10 to 12 years.  Even when tenant-Manilal was

alive,  his  son Dahyalal  never  worked with  his  father  and never

helped him in running the shop.  After  the death of  the original

tenant-defendant  No.1  Manilal,  the  appellant-plaintiff  found  that

one  Somabhai  Dahiyabhai  Valand  was  inducted  into  the  suit

premises by illegal sub-letting of the tenanted premises so as to

deprive the appellant-plaintiff of his legal right to seek possession

of  the suit  property. The said  Somabhai  Dahyabhai  Valand was

arrayed  as  defendant  No.2  in  the  suit  (respondent  No.4  in  this

appeal).  

4. Upon consideration of the evidence adduced by the parties

and the  submissions  made by the respective parties,  the  Small

Causes  Court  allowed the  rent  suit  on the  ground of  default  in

payment of rent by the respondents-defendants and also directed

them to handover peaceful and vacant possession of the property

to the appellant-plaintiff.  It was further held by the Small Causes

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Court  that  after  the  death  of  the  original  tenant,  the  defendant

Nos.1/2 and 1/3 are not statutory tenants of the said premises and

that the defendant Nos.1/2 and 1/3 have unlawfully sub-let the suit

property  to  respondent  No.4  herein  with  an  ulterior  motive  of

depriving the appellant-plaintiff from obtaining peaceful and vacant

possession of the suit premises.  

5. Being aggrieved by the order of the Small Causes Court, the

legal representatives of the original tenant preferred Civil Appeal

No.227 of 1981 before the District Judge, Vadodara.  The 2nd Extra

Assistant Judge, Vadodara on 30.07.1983 allowed the appeal filed

by the respondents  herein.   The First  Appellate  Court  held  that

under  notice  Ex.31,  appellant-plaintiff  demanded  rent  and  other

local taxes and hence the tenancy was not a monthly tenancy but

annual, and rent was payable at the end of every year and that the

case of the appellant-plaintiff was covered under Section 12(3)(b)

of the Bombay Rents, Hotel and Lodging House Rates Control Act,

1947 [Bombay Rent Control Act]. The First Appellate Court further

held  that  the  appellant-plaintiff  failed  to  prove  that  defendant

Nos.1/1 to 1/3 had sub-let the premise to the second defendant/4 th

respondent.  On these findings, the appellate court reversed the

order of eviction passed by the trial court.  

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6. Feeling aggrieved by the order passed by the First Appellate

Court, the appellant-plaintiff preferred the revision before the High

Court under Section 29(2) of the Bombay Rent Control  Act.   As

noted above, the High Court dismissed the revision holding that

there is no default in payment of rent and that the defendants have

deposited all the amount due, on the first day of the hearing of the

suit and thus, complied with the provisions of Section 12(3)(b) of

the  Bombay  Rent  Control  Act.   Insofar  as  the  sub-letting  is

concerned,  the  High  Court  affirmed  the  findings  of  the  first

appellate  court.  Aggrieved  by  the  dismissal  of  the  revision,  the

appellant-plaintiff is before us by way of this appeal.  

7. When the matter was taken up for admission and notice was

issued, though the service was complete none appeared for the

respondents.  In the interest of justice, by order dated 08.03.2017,

we directed the Registry to engage a counsel for the respondents

through the  Supreme Court  Legal  Services  Committee  and Ms.

Richa  Kapoor,  Advocate  was  nominated  to  appear  for  the

respondents.  

8. Learned counsel for the appellant submitted that as a matter

of fact respondents were persistent defaulters in payment of rent

for  the period ranging from 06.07.1974 to 05.05.1976 which the

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High Court failed to appreciate properly. It was further submitted

that  the  case  falls  under  Section  12(3)(a)  of  the  Bombay  Rent

Control Act,  as per which if the tenant is in arrears of rent for more

than six months he is liable to be evicted and, therefore, the Rent

Controller  had  rightly  directed  the  respondents  to  vacate  the

premises.  It  was  further  submitted  that  after  the  demise  of  the

original tenant, respondent No.4 Somabhai Dahiyalal Valand was

inducted  into  the  suit  premises  as  sub-lessee  and  thus  the

respondents  are  also  liable  to  be  evicted  on  the  ground  of

subletting without the permission of the landlord.  Learned counsel

for the appellant-plaintiff further submitted that the First Appellate

Court and the High Court failed to properly appreciate the evidence

and materials placed on record and hence the impugned judgment

cannot be sustained.

9. Per  contra,  the  learned  counsel  for  the

respondents-defendants submitted that both the appellate court as

well as the High Court have dealt with all the issues extensively

and  have  rightly  arrived  at  the  conclusion  that  case  would  fall

under     Section 12(3)(b) of the Bombay Rent Control Act and that

the appellant-plaintiff failed to prove the case of sub-letting without

the permission of the landlord.

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10. We  have  carefully  considered  the  rival  contentions  and

perused the impugned judgment and other materials on record.

11. Section  12  of  Bombay  Rent  Control  Act  deals  with  the

ejectment of a tenant.  As per Section 12(1) of the Act, a landlord

shall not be entitled to the recovery of possession of any premises

so long as the  tenant  pays,  or  is  ready  and willing  to  pay, the

amount of the standard rent and permitted increases, if any and

observes and performs the other conditions of the tenancy, insofar

as they are consistent with the provisions of this Act.  Section 12(3)

(a)  deals  with the eviction where rent  is  payable  by the month.

Section 12(3)(b) of the Bombay Rent Control Act deals with other

cases other than monthly tenancy.  Section 12(3)(a) and (b) with

relevant explanations read as under:

“12. No ejectment ordinarily to be made if tenant pays or is ready  and  willing  to  pay  standard  rent  and  permitted increases.            (1)……      (2)……      (3)(a). Where the rent is payable by the month and there is no dispute  regarding  the  amount  of  standard  rent  or  permitted increases, if such a rent or increase are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub-section (2), the Court may pass a decree for eviction in any such suit for recovery of possession.       (b). In any other case no decree for eviction shall be passed in any such suit if on the day of hearing of the suit or on or before such other date as the Court may fix, the tenant pays or tenders in Court  the  standard  rent  and  permitted  increases  then  due  [and thereafter continues to pay or tender in Court Regularly such rent

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and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the Court].

       [and there after,-

      (i) Continues to pay or tender in Court such rent and permitted increases till the suit is finally decided; and

      (ii) pays costs of the suit as directed by the Court.    

     (4) …….

Explanation.- In  any  case  where  there  is  a  dispute  as  to  the amount of standard rent or permitted increases recoverable under this Act the tenant shall be deemed to be ready and willing to pay such amount if, before the expiry of the period of one month after notice referred to in sub-section (2) he makes an application to the Court  under sub-section (3) of section 11 and thereafter pays or tenders the amount of rent or permitted increases specified in the order made by the Court.

Explanation I.- In  any case where there  is  a  dispute as to  the amount of standard rent or permitted increases recoverable under this Act, the tenant shall be deemed to be ready and willing to pay such amount if, before the expiry of the period of one month after notice referred to in sub-section (2), he makes an application to the Court  under sub-section (3) of section 11 and thereafter pays or tenders the amount of rent or permitted increases specified in the order made by the Court.”

12. So far  as  the  first  ground of  eviction  of  arrears  of  rent  is

concerned, it  is an admitted case that the tenant Manilal was in

arrears  of  rent  from  06.07.1974  to  05.05.1976  amounting  to

Rs.660/-  and  proper  notice  (Ex.31)  was  issued  asking  him  to

vacate premises in case he fails to make good the arrears of rent.

Though the tenant Manilal received the said notice, no reply was

sent there to; nor the dispute of standard rent was raised.  It is only

in the written statement filed by him, the dispute was raised for the

first time as to the standard rent.  Notably, the tenant Manilal had

never applied for fixation of the standard rent earlier nor within one

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month of the service of notice had he applied for fixation of the

standard rent.   As noted earlier, the tenant Manilal did not even

send reply notice disputing the standard rent.   

13. According to the appellant-landlord, the property is situated

on main road and Gajrawadi bus stand is also nearby and hence,

the  standard  rent  of  the  demised  property  cannot  be  less  than

Rs.30/- per month.  It is also pertinent to note that at relevant point

of time, first floor of the tenanted premises was let out to another

tenant  namely  Chimanlal  Jaiswal  who  was  using  the  same  for

residence  and  had  been  paying  rent  of  Rs.30/-  per  month.

Likewise,  the  second  floor  was  let  out  to  one  tenant  named

Rikhavchand who was also using it as residence and the ground

floor was let out for hair cutting salon on the rent of Rs.30/- per

month.  Upon consideration  of  evidence,  the  trial  court  recorded

that  rent  of  Rs.30/-  per month for  the salon in the ground floor

cannot  be  said  to  be  excessive.   There  is  no  bona  fide  in  the

dispute  raised  by  the  tenant  as  to  the  standard  rent.  From the

evidence  of  appellant-landlord  admittedly  there  was  default  in

payment of rent for more than six months and the tenant was liable

to be evicted under Section 12(3)(a) of the Bombay Rent Control

Act.  

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14. The First Appellate Court took the view that in Ex.31 Notice,

appellant-plaintiff had demanded not only the rent but also other

local  taxes  with  permitted  increases  and  it  was  not  a  case  of

monthly tenancy; but the rent was payable at the end of every year

and therefore, the case of the appellant-plaintiff was covered under

Section 12(3)(b) of the Bombay Rent Control Act and not covered

under Section 12(3)(a) of the Act.  In our view, the First Appellate

Court  as well  as the High Court did not properly appreciate the

evidence of appellant-plaintiff and other evidence adduced by the

parties.   

15. The appellant-landlord has asserted that the tenancy was a

monthly tenancy, where rent of Rs.30/- was due on 6 th day of each

month and rental receipt was issued accordingly. To substantiate

his  evidence,  the  appellant  has  produced  Ex.27  which  is  the

receipt  No.184.   Ex.27  is  a  receipt  for  payment  of  rent  from

06.03.1974 to 05.04.1974.   So far as the rent receipt is concerned,

the defendant No.1/2 Dahyabhai Manilal Valand son of the tenant

Manilal admitted the signature of his father on the receipt Ex.27.

After  the  said  payment  of  rent,  defendant  paid  an  amount  of

Rs.100/- as rent in lieu of which three other similar receipts were

prepared on 14.08.1974 and in this manner rent upto 05.07.1974

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was  paid,  Rs.10/-  being  remainder  in  credit  of  the  defendant.

According to appellant-landlord,  the respondent  did not  come to

receive  those  three  receipts  and  so  the  counter-foils  were  not

signed by him. The rent was due from 06.07.1974 to 05.05.1976,

amounting  to  Rs.660/-  for  twenty  two  months  and  Rs.10/-  was

already in credit of the defendant, thus an amount of Rs.650/- was

due.  Notice (Ex.31) was sent by the appellant’s advocate that the

arrears of rent is Rs.650/- which the defendant had received by

Ex.4/2.  As already noted, the defendant Manilal had neither sent

reply  to  the  said  notice  nor  disputed  the  standard  rent.   By

producing Ex.27 receipt and other receipts, the appellant-landlord

has established that the tenancy was a ‘monthly tenancy’.   

16. In  this  regard,  the  learned  counsel  for  the  appellant  has

drawn  our  attention  to  the  notice  issued  by  the

Defendant  No.  1/2-Dahyalal  Manilal  Valand  dated  27.01.2004,

wherein it is clearly stated that the tenancy is a ‘monthly tenancy’ at

a monthly rent of Rs.30/-.  As pointed out by the trial  court,  the

defendants deposited the amount after a lapse of one month after

the  receipt  of  notice.   Resultantly,  the  respondent-defendant

Nos.1/2 and 1/3 are liable to be evicted on the ground of default in

payment  of  rent.  The  First  Appellate  Court  and  the  High  Court

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erred  in  ignoring  the  material  evidence  that  the  tenancy  was  a

monthly tenancy and that the case would fall under Section 12(3)

(a).  The finding of the High Court as also of the First Appellate

Court that the present tenancy is covered under Section 12(3)(b) is

liable to be set aside and the order of eviction passed by the trial

court on the ground of default in payment of rent is to be restored.

17. Next question falling for consideration is, after the death of

Manilal, whether defendant’s heirs-defendant Nos.1/2 and 1/3 are

entitled to continue in the shop.  Appellant-landlord pleaded that

none  of  the  Manilal’s  sons  were  doing  business  of  hair  cutting

alongwith the defendant Manilal and under Section 5(11)(c) of the

Bombay Rent Control Act, the defendant Nos.1/2 and 1/3 are not

entitled to continue in tenancy after the death of deceased-tenant

Manilal.  Section 5(11)(c) reads as under:-

(11) “tenant” means any person by whom or on whose account rent is payable for any premises and includes-  (a) xxx  (b) xxx

(c) (i) any member of the tenant’s family residing with him at the time of his death as may be decided in default of agreement by the Court;

(ii) in relation to premises let for business, trade or storage, any  member  of  the  tenant’s  family  carrying  on  business, trade or storage with the tenant in the said premises at the time of the death of the tenant as may continue, after his death, to carry on the business, trade or storage, as the case may be,  in  the  said  premises and as  may be decided in default of agreement by the Court.

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18. It is brought on record that defendant No.1/2 Dahyabhai was

serving in Alembic Glass Works as full time worker and, to prove

the  same Ex.39  Service  Card  was  produced  which  shows  that

Dahyabhai was a full time worker and he never carried on business

of  Barber  alongwith  the  original  tenant  Manilal.   Though  in  his

evidence,  defendant  No.1/2  Dahyabhai  has  stated  that  he  was

staying in the shop and was doing barber work alongwith his father

nothing was produced to prove the same.  As rightly pointed out by

the trial court, no evidence was produced to show that defendant

No.1/2 Dahyabhai had worked alongwith his father or that he had

cut hair of even a single person in Baroda in the tenanted shop

premises.   

19. So  far  as  the  other  son  Bhogilal-defendant  No.1/3  is

concerned, it is brought on record that he was running a separate

barber  shop  in  Navjivan  Society  and  to  prove  the  same,

appellant-landlord  has  produced  photographs  Exs.49-50  which

showed that Bhogilal was actually working in his separate shop in

Navjivan Society while his father Manilal was alive.  In this regard,

it is relevant to refer to the observation of the trial court that to his

identity and his photographs, how defendant No.1/3 came to the

court with his head completely shaven and moustache removed to

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disguise  himself  as  a  different  person  from  the  photographs

Exs.49, 50 and 51. Nothing was brought on record to show that

defendant Nos.1/3 had been doing the business with his father at

any  point  of  time.   Further,  the  appellant-landlord  has  also

produced Exs.43 and 44 photographs to show that there was only

one chair for the customers in the shop and that neither defendant

No.1/2 nor defendant No.1/3 were present in the shop to carry on

the  business  alongwith  tenant-Manilal  thereafter.  The  First

Appellate Court and the High Court failed to appreciate that the

defendant No.1/2 was a full  time worker in Alembic Glass works

and defendant No. 1/3 was carrying on his business separately.

The findings of the trial court that the defendant Nos.1/2 and 1/3

are not entitled to the benefit of Section 5(11)(c), is well reasoned

and based on evidence and the same is to be restored.  

20. So far as the sub-letting is concerned, the defendant No.1/2

stated  that  the  second  defendant  Somabhai  Dahyabhai  was

engaged as their worker and that he was being paid 50% of the

charges as worker and as still Somabhai did not find it profitable

and, he had left the job.  The fact that a stranger was engaged in

the shop and he was being paid 50% labour charges, as rightly

observed by the trial court that it must have been either a case of

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partnership  or  of  sub-letting.  That  apart,  second  defendant

Somabhai has not been examined to substantiate the version of

the defendants that he was engaged by the defendants as their

worker.  The findings of  the First  Appellate  Court  and the High

Court on sub-letting is accordingly reversed, restoring the findings

of the trial court that the defendants are liable to be evicted on the

ground of sub-letting also.

21. The findings and the reasonings recorded by the High Court

are not based on evidence, cannot be sustained.  As rightly held by

the trial court, the respondents-tenants are liable to be evicted on

three grounds:-(i) default in payment of rent; (ii) defendant Nos.1/2

and 1/3  not being entitled to the benefit of Section 5(11)(c); and

(iii)  sub-letting.  It  is  unfortunate  that  the  appellant-landlord  is

litigating for more than four decades to get back possession of his

own premises and, therefore, the respondent-tenants are directed

to handover vacant possession of the premises immediately.   

22. The impugned judgement of the High Court is set aside and

this appeal is allowed and the order of eviction passed by the Court

of  Small  Causes  Court,  Vadodara  is  restored.   The respondent

Nos. 1 to 4 or other person, if any, inducted by the respondents

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Nos.1 to 4 are directed to handover vacant possession within two

months  from  the  date  of  this  judgment,  failing  which  the

respondents shall  be liable for contempt of this court apart from

other remedies available in law.  No costs.

...……………………….J.              [KURIAN JOSEPH]  

                            .………………………..J.  [R. BANUMATHI]

New Delhi; April 12, 2017

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