Case Note & Summary
The case involves a civil revision application filed by the defendants (tenants) against a decree of eviction passed by the trial court and confirmed by the first appellate court. The plaintiff-landlord owned a building named 'Indu Smruti' in Panvel. Shop No. 1 on the ground floor was let to the first defendant in 1981 for running a grocery shop at a monthly rent of Rs.300 plus taxes. The first defendant stopped running the grocery shop from the suit premises in June 2002 and started a new shop at Tapal Naka in his own building 'Thakur Palace'. The suit premises were allegedly used by the second defendant (brother of the first defendant) as a godown for storing goods. The plaintiff filed a suit for eviction on grounds of non-user, change of user, subletting, arrears of rent, and bonafide requirement. The trial court decreed the suit on grounds of non-user and bonafide requirement but rejected subletting. The first appellate court reversed the finding on bonafide requirement but upheld eviction on grounds of change of user and subletting. The defendants challenged the appellate decree in revision. The High Court examined the evidence and found that the first defendant had stopped business in the suit premises and was using it only as a godown, while the second defendant had exclusive access and stored his goods. The court held that using the premises as a godown when the tenant had shifted business elsewhere constituted change of user. The court also held that the second defendant's exclusive possession and use of the premises for his own business amounted to subletting. The court found no perversity in the findings and dismissed the revision application, confirming the eviction decree.
Headnote
A) Civil Procedure - Revision - Section 115 CPC - Interference with concurrent findings - Revision Court can interfere only if findings are perverse or based on no evidence - Held that findings of fact by lower courts on change of user and subletting were based on evidence and not perverse (Paras 1-28).
B) Rent Control - Change of User - Non-user for purpose of letting - Tenant using shop as godown instead of grocery store - Held that using premises as godown for storing grocery items amounts to change of user when tenant has shifted business elsewhere and premises are not used for retail sale (Paras 2-28).
C) Rent Control - Subletting - Exclusive possession - Tenant allowing brother to use premises and store goods - Held that exclusive possession by subtenant is sine qua non for subletting; but here evidence showed brother used premises as godown and tenant had no business there, amounting to subletting (Paras 2-28).
Issue of Consideration
Whether the findings of the Appellate Court on change of user and subletting are perverse and warrant interference under Section 115 of the Code of Civil Procedure, 1908.
Final Decision
The High Court dismissed the Civil Revision Application, confirming the decree of eviction passed by the trial court and first appellate court. The court held that the findings on change of user and subletting were not perverse and were based on evidence. The revision application was dismissed with no order as to costs.
Law Points
- Non-user of premises for purpose of letting
- change of user
- subletting
- exclusive possession
- revisionary jurisdiction under Section 115 CPC
- Order 20 Rule 12 CPC
Case Details
Civil Revision Application No. 343 of 2024 with Interim Application (St.) No. 20513 of 2024
Mr. Drupad Patil a/w. Mr. Namitkumar Pansare for Applicants; Mr. Pankaj Kowli with Mr. Ashok Varma i/by. Dhruva B. Jain for Respondent
Shri. Narayan Damodar Thakur and Shri. Ram Damodar Thakur
Shri. Madanlal Mohanlal Malpani
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Nature of Litigation
Civil revision application against concurrent decrees of eviction passed by trial court and first appellate court.
Remedy Sought
Applicants (original defendants) sought to set aside the decree of eviction and dismissal of the suit.
Filing Reason
Applicants challenged the appellate decree confirming eviction on grounds of change of user and subletting.
Previous Decisions
Trial Court decreed suit on 9 July 2013 on grounds of non-user and bonafide requirement; First Appellate Court on 21 March 2024 upheld eviction on grounds of change of user and subletting but rejected bonafide requirement.
Issues
Whether the findings of the Appellate Court on change of user and subletting are perverse and warrant interference under Section 115 CPC.
Whether using the suit premises as godown for storing grocery items amounts to change of user when the tenant has shifted his business elsewhere.
Whether allowing the second defendant to use the suit premises as godown amounts to subletting.
Submissions/Arguments
Applicants argued that the findings on change of user and subletting are perverse; that the tenant always used the premises as godown with landlord's knowledge; that use as godown is ancillary to grocery business and not change of user; that there was no exclusive possession by second defendant to constitute subletting.
Respondent argued that the tenant stopped business in suit premises and shifted to another location; that the second defendant used the premises exclusively for his own business; that the findings are based on evidence and not perverse.
Ratio Decidendi
The ratio decidendi is that a tenant who stops using the demised premises for the purpose for which they were let and uses them as a godown while carrying on business elsewhere commits a change of user. Additionally, allowing another person to exclusively possess and use the premises for that person's own business amounts to subletting, even if no rent is paid, as exclusive possession is the sine qua non for subletting.
Judgment Excerpts
The Trial Court held that First Defendant-tenant was not conducting any business or trade in the suit premises as on the date of institution of the suit and allowed Second Defendant to illegally use the suit premises.
The Appellate Court, however held that the tenant breached the terms of tenancy by virtue of non-user of the premises for the purpose for which they were let out.
Exclusive possession is a sine qua non for upholding the ground of subletting.
Procedural History
Plaintiff filed Regular Civil Suit No. 51 of 2005 in the Court of Civil Judge Junior Division, Panvel, which was decreed on 9 July 2013. Defendants filed Regular Civil Appeal No. 189 of 2019 before the District Court, Panvel, which was dismissed on 21 March 2024. Defendants then filed the present Civil Revision Application No. 343 of 2024 in the High Court of Bombay, which was dismissed on 7 August 2024.
Acts & Sections
- Code of Civil Procedure, 1908: Section 115, Order 20 Rule 12
