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.= 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 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.

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 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  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 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/4th respondent.  On these  findings,

the appellate court reversed the order  of  eviction  passed  by  the  trial

court.

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  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.

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 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 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.

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 6th 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 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

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.

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  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  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 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