1999 Supreme(Guj) 84

Gujarat High Court
Judgename :D.C.Srivastava
MANJIBHAI SHAMJIBHAI - Appellant
Versus
NATRAJ THEATRE - Respondent
Civil Revision 2018 of 1982
Decided On : 03/01/1999

Headnote:(a) Bombay Rent Hotel & Lodging House Rates Control Act, 1947 - Sec. 29(2) - Revisional jurisdiction under - Scope of - Limited for the purpose of correcting substantial error of law which goes to the root of decision - At the same revisional Court is not debarred from perusing the evidence adduced by parties but that also is permissible for a limited purpose for satisfying whether it is a case of misreading of evidence or that the finding is based on evidence which is totally inadmissible otherwise interference in revision on concurrent findings of fact & law is not permissible.

       The first point for consideration is as to what extent the revisional Court will be inclined to interfere with the concurrent finding of fact. The Supreme Court in latest pronouncement in Patel Valmik Himatlal & Ors. vs. Patel Mohanlal Muljibhai, 1998 (2) GLH 736 has held that the revisional powers are to be exercised only for a limited purpose of correcting a substantial error of law which goes to the root of the decision. It further observed that the High Court cannot substitute its own finding on reappraisal of evidence, even though different view is possible. This was also a case under Sec. 29(2) of the Bombay Rent Control Act, 1947.

       [Para 7]

       Interference by the High Court in revision of this nature can be done only for a limited purpose of correcting errors of law in the judgments of the two Courts below. It has therefore, to be seen whether the judgments and decrees of the Courts below are in accordance with law or not. Finding of fact howsoever erroneous cannot be corrected in revision of this nature. At the same time, it is also difficult to accept the contention that the revisional Court is debarred from perusing the evidence adduced by the parties. Perusal of evidence of the parties is permissible for a limited purpose for satisfying whether it is a case of misreading of evidence or that the finding is based on evidence which is totally inadmissible. To this extent perusal of evidence is possible. Likewise perusal of evidence is possible if conjectural findings have been recorded by the two Courts below, otherwise, normally interference in revision on concurrent findings of fact and law is not permissible.

       [Para 8]

       (b) Bombay Rent Hotel & Lodging House Rates Control Act, 1947 - Sec. 13 - Eviction - Ground of sub-letting - In order to succeed the landlord is required to establish (i) transfer of exclusive possession to sub-tenant & (ii) that for valuable consideration - In the case there is categorical acceptable finding recorded by two Courts below that the relationship of landlord & tenant between plaintiffs & Defendant No. 1 is established - Defendant No. 1 committed default in payment of six months rent on date of notice - In the facts the contention of revisionist that he was licensee can not be accepted - The payment of rent at the rate of Rs. 250 p.m. by revisionist Defendant No. 2 to Defendant No. 1 is also borne out from the concurrent findings on record - Thus transfer or exclusive possession for valuable consideration is established - There is no merit in the revision.

       For establishing subtenancy, the landlord has to establish two things. The first is transfer of exclusive possession to the alleged subtenant and the second is that such transfer should be for valuable consideration. Valuable consideration need not necessarily mean cash consideration in the shape of rent. Once transfer of exclusive possession is established the Court can, on the facts and circumstances of the case, draw inference that such transfer was for valuable consideration. Reason for drawing such inference is that it is almost impossible for the landlord to establish by direct evidence payment of rent by subtenant to the tenant in chief in as much as such contract is always secret and the landlord remains unaware of such contract.

       [Para 12]

       There is categorical finding recorded by the two Courts below that the relationship of landlord and tenant between the plaintiff and the defendant No. 1 is established and the defendant No. 1 committed default in payment of six months rent on the date of service of notice. If this is so, then the question of revisionist being licensee stands ruled out. If the revisionist alleges to be in possession then it is for him not only to disclose but to establish by cogent evidence in what capacity he is in possession. The payment of rent at the rate of Rs. 250/- p.m. by the defendant No. 2 to the defendant No. 1 is also borne out from the concurrent findings on record. This, therefore, establishes the second ingredient viz., transfer or exclusive possession for valuable consideration.

       [Para 13]

       In view of the aforesaid discussions, it can be said that the respondent No. 1 succeeded in establishing that the defendant No. 1 had illegally sublet the suit accommodation to the revisionist in as much as the revisionist was put in exclusive possession of the demised premises for valuable consideration viz on payment of rent @ Rs. 250/- p.m.

       [Para 14]

       (c) Court of Small Causes - Jurisdiction - Contention of revisionist that he is licencee and therefore suit for eviction against him cannot be tried by Court of small causes and suit must have been filed in Civil Court is devoid of any force in the case - Revisionist on facts has failed to establish that he was licencee on the suit premises - Suit is rightly filed in the Court of small causes.

       If this is the net result from the material on record then it is difficult to say that the revisionist was at any point of time licencee of the plaintiff. The contention of Mr. Shah that the defendant No. 2 was paying licence fee to the landlord seems to be unacceptable because no documentary evidence has been filed to show that he was paying licence fee to the landlord.

       [Para 15]

       If the theory of licence set up by the revisionist goes then automatically the plea of want of jurisdiction in the Small Causes Court in a suit of this nature is bound to fail. It is, therefore, held that Small Causes Court had jurisdiction to entertain and try the suit of this nature.

       [Para 16]