BHAGWATI SPG AND WVG WORKS Vs. AHMEDABAD NEW COTTON MILLS COMPANY LIMITED
LAWS(GJH)-1979-5-11
HIGH COURT OF GUJARAT
Decided on May 07,1979

BHAGWATI SPG.AND WVG.WORKS Appellant
VERSUS
AHMEDABAD NEW COTTON MILLS COMPANY LIMITED Respondents

JUDGEMENT

S.H.SHETH - (1.) THE plaintiff filed the present suit for recovery of possession against the defendants on two grounds. Defendant No. 1-tenant - had not used the suit premises for a continuous period of six months immediately preceding the date of the suit and he had no reasonable cause to do so. Defendant No. 1 - the tenant - had unlawfully sublet a part of the suit premises to defendant No. 2. THE suit premises are business premises where the powerlooms have been installed. THE suit premises consist of three survey numbers - 16/14 16 and 401/8. THE rent agreed upon between the parties was Rs. 55.00 per month THE plaintiff alleged that survey no. 16/24 a part of the suit premises was unlawfully sublet by defendant no. 1 to defendant no. 2. Similarly survey no. 401/8 another part of the suit premises was unlawfully sublet by defendant no. 1 to defendant no. 2 Survey No 16/24 had not been used by defendant no. 1 within the meaning of sec. 13 (1) (k) of the Bombay Rent Act. 2 In defence it was contended by defendant no. 1 that he had been using and occupying all of them and that his powerlooms were there. It was further alleged by defendant no. 1 that defendant no. 2 had trespassed into survey No. 401/8 a part of the suit premises and that in collusion with the plaintiff he had handed over its possession to the plaintiff soon after institution of the suit. 3 THE learned trial Judge raised necessary issues and recorded his findings as follows: THE Plaintiff had not proved that survey No. 16/24 was unlawfully sublet by defendant no. 1 to defendant no 2. THE plaintiff had proved that defendant no. 1 had not used survey No 16/24 within the meaning of sec. 13 (1) (k) of the Bombay Rent Act. THE plaintiff had proved that defendant no. 1 had unlawfully sublet survey No. 401/8 to defendant no. 2. In view of the findings which he recorded in respect of survey Nos. 16/24 and 401/8 he passed against the defendant no. 1 decree for possession. 4 Defendant no. 1 appealed against the decree to the Appellate Bench of the Court of Small Causes Ahmedabad. In this appeal two findings were challenged by the defendant no. 1. THE first finding related to survey No 16/24 and another finding related to survey No. 401/8. THE plaintiff who was respondent did not try to challenge the finding recorded in respect of survey no. 16/24. THE Appellate Bench confirmed the findings recorded against defendant no. 1 and dismissed the appeal. It is that appellate decree which is challenged by defendant no. 1 in this Civil Revision Application. 5 Mr. Nanavaty who appears on behalf of defendant no. 1 has firstly challenged the finding recorded by the lower appellate court in respect of survey No. 16/24. THE finding as to non user of survey No. 16 recorded by the Appellate Bench is a finding of fact. THE Appellate Bench has observed that all the partners of defendant no. 1 firm have been residing outside Ahmedabad where the suit premises are situate. THEy had not led sufficient evidence to prove what was the actual business which was carried on in survey no. 16/24. THE electric supply in survey No. 16/24 was disconnected for a long time. THE partners of the defendant no. 1 firm had not examined their servant or agent who was alleged by them to be carrying on business in survey No. 16/24. From these facts the lower appellate court has recorded the finding that survey No. 16/24 was not used for very long time more than six months prior to the institution of this suit. THE inference which has been drawn by the lower appellate court is its judgment is an inference of fact with which this Court cannot interfere in exercise of its revisional jurisdiction. 6 However Mr. J. R. Nanavaty has raised a legal contention with regard to the applicability of sec. 13 (1) (k) of the Bombay Rent Act. According to him if it is proved that a part of the suit premises was not used then sec. 13 (1)(k) has no application to the case. In other words according to him non-user contemplated by sec. 13 (1)(k) of the Bombay Rent Act must be the non-user of the entire premises. It is necessary in that behalf to note the language of sec. 13 (1)(k). It reads as follows: 3 (1) Notwithstanding anything contained in this Act but subject to the provisions of sec. 15 a landlord shall be entitled to recover possession of any premises if the Court is satisfied. xx xx xx xx (k) that the premises have not been used 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. According to Mr. Nanavaty the expression premises used is sec. 13 (1)(k) contemplates the entire premises and not a part of it. In that behalf he has invited my attention for the purpose of analogy to sec. 13 (1)(e) and sec. 13 (1)(ee) of the Bombay Rent Act where the Legislature has used different language. Sec. 13 (1)(e) inter alia reads as under: xx xx xx xx (e) that the tenant has since the coming into operation of this Act unlawfully sub-let the whole or part of the premises or assigned or transferred in any other manner his interest therein; Sec. 13 (1)(ee) inter alia provides as follows: xx xx xx xx (ee) that the tenant has after the commencement of the Bombay Rents Hotel and Lodging House Rates Control (Gujarat Extension and Amendment) Act 1963 given the whole or any part of the premises on licence for monetary consideration to any person without the previous permission of the landlord. THE emphasis has been placed by Mr. Nanavaty upon the expression the whole or part of the premises used in sec. 13 (1)(e) and upon the whole or any part of the premises used in sec. 13 (1)(ee). Mr. Nanavaty has argued that whenever the legislature wanted to refer to a part of the premises it has done so. Since according to him in sec. 13 (1)(k) the legislature has used the expression premises without specifying the whole of it or a part of it the expression the premises used in sec. 13 (1)(k) means only the whole premises and not a part of the premises. THE argument which Mr. Nanavaty has raised has a considerable amount of force. When sec. 13 (1)(k) is read in the light of sec. 13 (1)(e) and sec. 13 (1)(ee) no doubt is left in my mind that the use of different expressions in these two sub-sections clearly denotes the intention of the legislature that the expression the premises used in sec. 13 (1)(k) means the entire premises and not a part of it. 7 It is also necessary to examine in this context the consequences which will now if the expression the premises used in sec. 13(1)(k) is held to include a part of the premises. In a good number of cases large premises let out to a tenant may not be put to use by the tenant in its entirety during the course or continuance of his tenancy. This is likely to happen in a case when a person establishes a new business and looks forward to the expansion of his business in future. Any business set up by a businessman or a manufacturer is bound in the beginning to be small depending upon his resources. He may take on rent the premises which are just sufficient for the purpose of his new business or he may take on rent larger or bigger premises in order to provide for future expansion of his business. If he takes on rent the bigger premises than are needed by him at the start of has business a part of the premises may remain unused until his business expands. Can we in such a case say that a businessman who has used only a part of his premises under the aforesaid circumstances for six months or more is liable to be evicted because he could not for the statutory period contemplated by sec. 13(1) (k) make use of the entire premises? To take any such view is to unduly hit the tenants particularly the businessmen. THErefore on analogy of sec. 13(1)(e) and sec. 13(1)(ee) of the Bombay Rent Act and also on account of the social consequences which are likely to flow from the rigid construction of sec. 13(1)(k) I am inclined to hold that the expression the premises used in sec. 13(1)(k) means the entire premises and not a part of it. 8 Mr. Kaji however has argued that survey No. 401/8 was also not used by the tenant. As found by the courts below it was used by defendant no. 2. Advancing his line of argument further Mr. Kaji has contended that non-user by defendant no. 1 of survey No. 401/8 will satisfy the requirements of sec. 13(1)(k). According to him the user of the premises let out to a tenant must be by the tenant himself and not by any one else. In that behalf he has relied on the decision in Dalichand Virchand Shroff (decd. by his legal representatives) and Ors. v. Babulal Rajmal and Ors. 11 G.L.R. 377. It is not open to Mr. Kaji to argue that I must hold that survey No. 401/8 was also not used by defendant no. 1 because that was not the allegation made by the plaintiff in his plaint and no issue was sought thereon. THErefore it is not necessary for me to enter into the merits of decision cited before me. I am therefore? not impressed by the finding recorded by the courts below that within the meaning of sec. 13 the plaintiff has proved that defendant no. 1 had not used the suit premises. It may also be noted that so far as survey No. 16/24 was. concerned the allegation which the plaintiff made against defendant no.1 was that it was unlawfully sublet by him to someone else. THE trial Court held that the plaintiff had failed to prove that allegation. In respect of survey No. 16/24 also there was na allegation of non-user by defendant No. 1. It is necessary to note that the plaintiff as respondent before the lower appellate court could have challenged the finding recorded in respect of survey No. 16/24. However he chose not to do so. THErefore the plaintiff bad not made an allegation that survey No. 16/24 and survey No. 401/8 were not used by defendant no. 1. His case in so far as the non-user was concerned related only to survey No. 16/24 a part of the suit premises. On the construction of sec. 13(1)(k) the finding recorded by the courts below must be set aside and it is ordered accordingly. 9 So far as subletting is concerned it has been found by the courts below that the defendant no. 1 had unlawfully sublet a part of the suit premises to defendant no. 2. THE lower appellate court has taken into account several facts to come to that conclusion. THE allegation made by the defendant no. 1 to the effect that defendant no. 2 was a trespasser has been negatived by the courts below. Defendant no. 1s allegation has been turned down on the basis of certain facts duly proved in the case. Defendant no. 1 had taken no action against the defendant no. 2 for a long time even though defendant no. 2 according to defendant no. 1 was a trespasser. It has also been observed by the courts below that if there was collusion between the Plaintiff and defendant no. 2 defendant no. 1 would have taken steps which he did not do for evicting defendant no. 2. It has also been believed by the courts below that the Manager of the Plaintiff-company had met defendant no. 1 twice in regard to the defendant No. 2 who had been occupying the survey No. 401/8. Mr. Nanavaty has tried to argue that defendant No. 2 had surrendered survey No. 401/8 to the plaintiff directly and that therefore it must be held that there was collusion between the plaintiff on one hand and defendant no. 2 on the other hand. This fact has been taken into account by the courts below. After having considered the circumstances in favour of the plaintiff and against the defendants. THE courts below have recorded the conclusion that it was defendant no. 1 who had inducted the defendant no. 2 into a part of the suit premises. This finding is a finding of fact with which this Court cannot interfere in exercise of its revisional jurisdiction. 10 Mr. Nanavaty has however argued that in order to prove subtenanty two facts must necessarily be proved. THE alleged sub-tenant must be in exclusive possession of the suit premises or a part thereof. Secondly the tenant must have parted with the whole of the premises or a part of the premises for valuable consideration. According to Mr. Nanavaty these two facts have not been proved in this case. So far as exclusive possession is concerned the courts below have come to the conclusion that defendant no. 2 was In exclusive possession or survey NO. 401/8 a part of the suit premises. THEy have relied upon oral evidence as well as upon municipal receipts to show that defendant no. 2 had been in occupation of survey No. 401/8 for five years that is to say from 1968 to 1972-1973 THE courts below have also relied upon other evidence in the case. As against this evidence there is nothing to show that the possession of defendant no. 2 was not exclusive. THErefore the finding recorded by the courts below in that behalf is a finding of fact which this Court must accept. So far as valuable consideration is concerned there is no doubt about the proposition that there cannot be a sub-tenancy between a tenant and a sub-tenant except for valuable consideration. Mr. Nanavaty has relied upon two unreported decisions of Mr. Justice P. D. Desai recorded in Civil Revision Application No. 1188 of 1974 decided by him on 7-9-1977 and in Civil Revision Application No. 891 of 1976 decided by him on 6-10-1977. THE question which was argued before him related to the proof required to be adduced to show that there was valuable consideration on account of which the tenant had parted with the possession of a part of whole of his premises to his sub-tenant. In those two revision applications the learned Judge was not sure whether the sub-tenant was in exclusive possession or not. He has therefore referred in his decisions to his possession in hesitant terms. It is necessary to note a few facts in that behalf. In Civil Revision Application No. 1188 of 1974 the persons who had been occupying the premises were brother and nephews of the tenant. In Civil Revision Application No. 891 of 1976 the brother of the tenant was occupying the premises. In such a case the question of proving whether they were occupying for valuable considera- tion assumes a great importance. It is quite probable under those circumstances that they may be occupying gratis In such a case want of valuable consideration will derogate from the sub-tenanty. However where it is sublet to a total stranger it is necessary to judge the concept of valuable consideration in that context 11 A fact may be proved expressly or it may be inferred from other facts. Though the existence of valuable consideration can be expressly proved by evidence it is extremely difficult for a landlord to show that there was valuable consideration between the tenant and the sub-tenant particularly when the Act of sub-letting prod uses the serious consequences under the Act. THErefore where in a given case the existence of valuable consideration cannot be proved by expressly it can certainly be inferred from other circumstances. It may be a proof by inference. In the instant case there is one strong fact which cannot be controverted. Defendant no. 9 was a total stranGer to defendant no. 1 and yet as found by the courts below defendant no. 2 was inducted in a part of the suit premises by defendant no. 1. It is difficult to imagine that a total stranger will be inducted by a tenant into his lease hold premises or a part thereof without any valuable consideration. That there was relationship of total stranger between defendant no 1 and defendant no 2 is fortified by the allegation made by defendant no. 1 that defendant no. 2 was a trespasser. THErefore there is no difficulty in inferring from the fact that defendant no. 1 had unlawfully sublet survey No. 401/8 a part of the suit premises to the defendant no. 2 for valuable consideration. THE plaintiff therefore is able to prove the ground of unlawful subletting though he has failed to prove his allegation under sec. 13 (1)(k) of the Bombay Rent Act. 12 In this view of the matter the decree passed by the courts below must be confirmed. I do so only on the ground of unlawful sub-letting.
(2.) IN the result Civil Revision Application fails and is dismissed. Rule discharged with costs. 14 Mr. J. R. Nanavaty who appears on behalf of defendant no. 1 applies for time to enable defendant no. 1 to appeal to Supreme Court against this decision Mr. K. H. Kaji has no objection to the grant of time. It is therefore directed that decree passed by the lower courts and confirmed by me shall not be executed until 31st August 1979 Application dismissed.;


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