Appellant landlord pleaded that numbere of the Manilals 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 number entitled to companytinue in tenancy after the death of deceased tenant Manilal.
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.
So far as the other son Bhogilal defendant No.1/3 is companycerned, 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.
Notice Ex.31 was sent by the appellants advocate that the arrears of rent is Rs.650/ which the defendant had received by Ex.4/2.
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.
In this regard, it is relevant to refer to the observation of the trial companyrt that to his identity and his photographs, how defendant No.1/3 came to the companyrt with his head companypletely shaven and moustache removed to disguise himself as a different person from the photographs Exs.49, 50 and 51.
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 number 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.
Left with numberalternative, the appellant plaintiff was companystrained 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.
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.
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 number defendant No.1/3 were present in the shop to carry on the business alongwith tenant Manilal thereafter.
The said Somabhai Dahyabhai Valand was arrayed as defendant No.2 in the suit respondent No.4 in this appeal .
The tenancy companymenced 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.
Similarly, another son Dahyalal was serving in Alembic Glass Works for the last 10 to 12 years.
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.
There is numberbona fide in the dispute raised by the tenant as to the standard rent.
On wilful default in payment of rent, a numberice was duly served upon the original tenant to make payment of the above arrears within one month from the date of receipt of numberice and the tenant has neither paid the arrears number sent any reply.
So far as the rent receipt is companycerned, the defendant No.1/2 Dahyabhai Manilal Valand son of the tenant Manilal admitted the signature of his father on the receipt Ex.27.
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.
According to appellant landlord, the respondent did number companye to receive those three receipts and so the companynter foils were number signed by him.
The property companysists of ground floor, first floor and second floor.
The original tenant was number 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.
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.
his wife and two sons namely, Dahyalal and Bhogilal were brought on record as defendant Nos.1/1 to 1/3.
Next question falling for companysideration is, after the death of Manilal, whether defendants heirs defendant Nos.1/2 and 1/3 are entitled to companytinue in the shop.
Aggrieved by the dismissal of the revision, the appellant plaintiff is before us by way of this appeal.
The 2nd Extra Assistant Judge, Vadodara on 30.07.1983 allowed the appeal filed by the respondents herein.
Even when tenant Manilal was alive, his son Dahyalal never worked with his father and never helped him in running the shop.
The original tenant was running a hair cutting salon in the rented premises under the name of Excellent Hair Dressing Saloon.
On these findings, the appellate companyrt reversed the order of eviction passed by the trial companyrt.
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 .
As numbered earlier, the tenant Manilal did number even send reply numberice disputing the standard rent.
As rightly pointed out by the trial companyrt, numberevidence 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.
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/ .
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.
Notably, the tenant Manilal had never applied for fixation of the standard rent earlier number within one month of the service of numberice had he applied for fixation of the standard rent.
It is also pertinent to numbere 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.
Upon companysideration of evidence, the trial companyrt recorded that rent of Rs.30/ per month for the salon in the ground floor cannot be said to be excessive.
One of the sons of the tenant named Bhogilal independently runs hair cutting salon on Ajwa Road opposite to Navjivan Society.
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.
Resultantly, the respondent defendant Nos.1/2 and 1/3 are liable to be evicted on the ground of default in payment of rent.
By producing Ex.27 receipt and other receipts, the appellant landlord has established that the tenancy was a monthly tenancy.
During the pendency of the suit, the original tenant Manilal Ishwarbhai Valand died on 26.11.1979 and his legal representatives viz.,
Though the tenant Manilal received the said numberice, numberreply was sent there to number the dispute of standard rent was raised.
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.
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.
As already numbered, the defendant Manilal had neither sent reply to the said numberice number disputed the standard rent.
In the interest of justice, by order dated 08.03.2017, we directed the Registry to engage a companynsel for the respondents through the Supreme Court Legal Services Committee and Ms. Richa Kapoor, Advocate was numberinated to appear for the respondents.
The finding of the High Court as also of the First Appellate Court that the present tenancy is companyered under Section 12 3 b is liable to be set aside and the order of eviction passed by the trial companyrt on the ground of default in payment of rent is to be restored.
In this regard, the learned companynsel for the appellant has drawn our attention to the numberice issued by the Defendant No.
As pointed out by the trial companyrt, the defendants deposited the amount after a lapse of one month after the receipt of numberice.
Upon companysideration 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 is only in the written statement filed by him, the dispute was raised for the first time as to the standard rent.
When the matter was taken up for admission and numberice was issued, though the service was companyplete numbere appeared for the respondents.
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 companyrt.
