- (1.)IN the HRP Suit No.758 of 2001 instituted by the original plaintiff -respondent herein, the Small Causes Court, Ahmedabad passed decree for eviction on the ground under Section 13(1)(e) of the Bombay Rent, Hotel and Lodging House Rates Control Act, 1947. The said judgment and decree dated 17.02.2004 was carried in appeal being Civil Appeal No.53 of 2004 by the applicant -tenant before the Appellate Bench of Small Causes Court. The Appellate Bench by its judgment and decree dated 10.05.2013 dismissed the appeal and confirmed the decree passed by the Trial Court. The applicant -tenant is now before this Court by filing this Revision invoking Section 29(2) of the Bombay Rent, Hotel and Lodging House Rates Control Act, 1947 (hereinafter mentioned as "the Bombay Rent Act" for the sake of brevity).
(2.)ONLY the relevant facts, shorn off unnecessary details, may be stated. The only ground on which the decree was passed by the Small Causes Court answering issue No.4B in affirmative, was under Section 13(1)(e) of the Bombay Rent Act. Stated in that context only, the facts involved were that the suit premises happened to be a private shop No.248 situated in New Cloth Market, Ahmedabad which was in Saher Kotda Sim, T.P. Scheme No.18, F.P. No.16 paiki. The same was used as godown by the tenant who was running his business in the name and style of M/s.Jaikishandas Asharam. It was a cloth business and the firm was a partnership firm. In the rented premises -the godown, the tenant used to store the cloths.
(3.)IN the HRP suit it was the case of the plaintiff that he became owner of the property by virtue of registered sale deed dated 02.03.1994. It was the case that out of the said property, a room situated on the rear portion, on the ground floor, was let -out to the defendant -tenant. The monthly rent fixed was Rs.181.50. It was also the condition of the tenancy that the Municipal Tax, Education Cess and other taxes/charges payable were to be borne by the tenant. It was the further case that in that the rear portion room -the premises, there were bathroom and latrine, however the defendant -tenant had not been permitting the plaintiff to use the same and therefore, the landlord had to instituted HRP Suit No.1526 of 1994. Non -user of the premises for more than six months was the ground initially pleaded in the plaint. By virtue of amendment sought for, a ground relating to nuisance was incorporated.
3.1 The ground under Section 13(1)(e) of the Bombay Rent Act that the tenant had sublet the premises was sought to be pleaded by seeking another amendment during the pendency of the suit, by filing Exhibit 48 application. It was stated therein that from the cross -examination of one of the partners of the defendant -tenant firm as was underway, it was revealed that though tenant had taken the premises for his business of cloths, instead of storing the cloths, the goods like chewing -gums, chocolates and other confectioneries were being stored by the third party in that premises -godown. It was the case pleaded that the premises was sublet or was illegally assigned or transferred to third party. Paragraph No.4B in the plaint was inserted by way of amendment by incorporating pleadings on that line to add the said ground for eviction. Said amendment was granted by the Court on 31.03.2003.

3.2 After the said second amendment, in addition to original written statement (Exh.27), further written statement in response to the said amendment was filed by the tenant. The case pleaded regarding subletting and/or illegal transfer was denied. The Small Causes Court on the evidence before it held that the plaintiff proved that defendant transferred, assigned and sublet the suit premises. The Appellate Bench upheld the findings on that ground and consequently confirmed the Decree.

3.3 It appears that during the pendency of civil appeal before the Appellate Bench of the Small Causes Court, the tenant had filed application under Order XLI Rule 27 of the Code of Civil Procedure, 1908, wanting to produce additional evidence. That application was rejected by the Appellate Bench on 04.01.2008. Against the said order of the Appellate Bench passed below Exhibit 14 application, the applicant tenant had preferred Special Civil Application No.6212 of 2008 before this Court. The said petition came to be dismissed on 05.08.2008.

This court observed that the tenant had an afterthought in producing the additional evidence and it was never his case originally that it was a sister concern.

Learned advocate for the applicant Mr.M.B. Gohil submitted that there was no subletting to the third party as alleged. He submitted that the premises -the room in question was used for storing the confectioneries by sister concern of the tenant in the name and style of M/s.Sanjay Overseas. He submitted that Sanjay was a family member and son of Jaikishandas Asharam. It was submitted that if at all it was a transfer, it was in favour of family member who was permitted to use the premises for storing the goods. It was submitted that it did not amount to subletting. 4.1 Learned advocate further submitted that the tenant had not parted with exclusive control of the premises in favour of the said person, which were essential ingredient for subletting. It was highlighted that business of Sanjay Overseas, the sister concern could be said to be family business. Learned advocate also highlighted that concept of sister concern and submitted that when two companies are owned or controlled by the same person they are called sister company. It was submitted that parting of exclusive possession in favour of M/s.Sanjay Overseas was not proved. Learned advocate also relied on Section 13 of the Bombay Rent Act to point out concept of joint family. He also submitted that learned Small Causes Judge committed error in framing issue No.4B in the facts of the case. It was submitted that the Court could not have presumed the existence of factum of sub -tenancy and further submitted that the plaintiff had not discharged the burden in law. Learned advocate buttressed his contentions with reference to the provisions of the Evidence Act.

4.2 Learned advocate for the applicant placed reliance on decision in M/s.Chocshari Vs Smt. Rajbirkaur, 1982 2 RCR(Rent) 670 to highlight the necessary ingredients required to be proved to be established ground under Section 13(1)(e). He next relied on decision in Bondar Singh Vs Nihal Sing, 2003 4 SCC 161 to submit that there were no proper pleadings with respect to grounds urged and sought to be amended and for which issue No.4B was framed. A decision of this Court in Luhar Jagjivanbhai Ramjibhai Vs Mukundlal, 1987 1 GLH 395 to submit that when there was a lease for the benefit of joint family and the members of the joint family were carrying on business, it could not termed as subletting.

4.3 Learned advocate for the respondent on the other hand submitted that nothing was produced by the tenant on record, nor there was any evidence to show that the business of the tenant and that of M/s Sanjay Overseas was the same. It was submitted that two were different firms. It was submitted that the evidence showed that the tenant had permitted said M/s Sanjay Overseas who stored the goods and handed over the control and possession of suit premises. Learned advocate submitted that in any view it was covered within the phrase "transfer in any other manner" and fell within the ambit of Section 13(1)(e) of the Act.

4.4 He submitted that once the transfer of possession was shown, it was not necessary to prove the presence of valuable consideration. Learned advocate for the respondent lastly submitted that both the courts below recorded concurrent findings to hold that there was subletting and / or illegal transfer or assignment. In support of his submissions, learned advocate for the respondent relied on decisions in case of Joginder Singh Sodhi Vs Amar Kaur, 2005 1 SCC 31, Naniben Vs Gamanlal, 1996 1 GCD 182 as well as in case of Kailash Vs Om Prakash, 2003 12 SCC 728.