Friday, 20 December 2019

How to appreciate evidence if landlord takes plea that tenant has voluntarily surrendered tenanted premises?

As against this, the testimony on behalf of the defendant was that of one Prabhudayal Radhakrishnan. Sole reliance placed on the evidence of this witness by the counsel for the applicant is that when Mr. Prabhudayal asked a question to the plaintiff while he was loading the truck, the response that was received from the plaintiff was that he was shifting to a godown at Odhav. Except the evidence which is pressed into service by the applicant's counsel, the learned trial Judge upon appreciation of the evidence of the witness on behalf of the plaintiff came to the conclusion that the defendant failed to discharge his burden of showing that the plaintiff had voluntarily surrendered the possession of the suit premises in favour of the defendant. It has come on record through the railway reservation ticket that the plaintiff was out of station at Mumbai. During that period of time, he received a call from his servant Dineshbhai about the forcible eviction from the suit premises by the defendant. Dineshbhai in his evidence has categorically stated that on 09.12.1993, three persons came over including one Manish who threatened them with a knife. The furniture of the shop was thrown out and since he was scared he fled the shop and made a call to Mohanbhai at Mumbai. The fact that the defendant filed a Civil Suit before the City Civil Court for a restraint order suggests that the conduct of the defendant obviously was to cover up the forcible eviction that he undertook when the plaintiff was out. His case that he had subsequently sub-let the shop to Gujarat Investment and Finance Consultancy also does not stand good in view of the testimony of Mr. Jayantkumar Chimanlal Shah who has testified that he was working with such company which was owned and operated by the plaintiff and he was being remunerated by the plaintiff.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/Civil Revision Application No. 66 of 2005

Decided On: 24.08.2018

Anilbhai Narayanshanker Jani Vs.  Mohanbhai Kakaram Sharma Akashdeep Transport Company

Hon'ble Judges/Coram:
Biren Vaishnav, J.

Citation: 2019(1) RCR(Rent) 45


1. This revision application under Section 29(2) of the Bombay Rents Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as 'the Rent Act') has been filed by the original defendant. The respondent herein is the original plaintiff and they shall be described in the present judgment as defendant and plaintiff respectively. The defendant is constrained to file this revision as by a judgment and decree passed in HRP Suit No. 306 of 1995 dated 22.01.2002, which was confirmed in the appeal being Civil Appeal No. 52 of 2002 by the Appellate Bench on 27.01.2005, the defendant was directed to hand over peaceful possession of the suit premises to the plaintiff - original tenant.

2. The facts in brief are as under:

2.1 The plaintiff - tenant approached the Small Causes Court by filing the suit in respect of a premises situated at Khadia, Ahmedabad comprising of a room. According to the plaintiff he was the tenant occupying the said premises on a monthly rent of Rs. 300/-. He had paid rent by cheques bearing Nos. 158369 and 158370 for the periods from 01.09.1992 to 30.03.1993 and 17.09.1993 to 18.10.1993. In the suit premises, the plaintiff was carrying on the business in the name of Akashdeep Transport. He subsequently switched over to carrying on the business in the name of Gujarat Investment Finance Consultancy. According to the plaintiff - respondent herein, when he was on way to Mumbai on 26.11.1993, the defendant took advantage of his absence and took over the possession of the tenanted premises on 09.12.1993. When the plaintiff returned on 18.12.1993, he was made aware that he was forcibly dispossessed of the said premises. He was served with the process of a civil suit being Civil Suit No. 6627 of 1993 filed by the defendant landlord by which the plaintiff was injuncted from entering the suit premises.

2.2 It was the case of the plaintiff that he had never handed over the possession of the premises and it was illegally taken over by the landlord defendant. With these prayers, the present suit was filed by the plaintiff to recover possession/restore possession of the tenant - original plaintiff. The applicant - defendant resisted the suit by filing written statement at Ex. 15 denying that relationship of landlord and tenant existed between the parties. The defendant came out with a case that the plaintiff himself had handed over actual and vacant possession of the suit premises about two years back. It was therefore necessary for him to approach the Civil Court preventing the tenant from trespassing into the premises. He denied that he had received any cheques for the periods in question as rent and that he had issued any rent receipts. It was his case that the rent receipts produced were fabricated and the cheques produced by the plaintiff were only bogus and fabricated to show the relationship of landlord and tenant.

2.3 The trial Court on the basis of these pleadings framed issues at Ex. 23. Plaintiff Mohanlal Sharma was examined at Ex. 46. He stated that he was paying a monthly rent of Rs. 300/- for the suit premises and since in the transport business he had incurred a loss he started share business in the name of Gujarat Investment and Finance Consultancy. Two cheques were produced at Mark 45/2 together with a certificate of Bank of India, Vatva branch showing that in fact the cheques were issued in favour of the defendant and were deposited by him in his bank account. Rent receipt was produced at Ex. 47. In order to prove that he was absent in the interregnum when the possession was taken over he produced a ticket at Mark 45/4 showing that he had travelled to Bombay and returned on 18.12.1993. He was informed by his servant Dineshbhai that he was beaten up and forced to vacate the shop. A criminal complaint was filed on 13.12.1993 before Astodia Police Station and certified copy of the complaint was produced at Ex. 48. In the cross examination, this witness stated that he had started the partnership business in the name of Gujarat Investment and Finance Consultancy in the year 1992 and that one Jayantibhai Shah and one Jayantibhai Bhatt were with him doing the business of shares. He denied that as the business was not doing well he had handed over the possession of the suit premises to the landlord and that it was the landlord defendant who had let out the suit premises to the Gujarat Investment and Finance Consultancy.

2.4 In support of his claim, the plaintiff also examined one Jayantkumar Chimanlal Shah at Ex. 58. This witness stated that he knew the plaintiff since 1980 when he was running the business of Akashdeep Transport. He denied that the business in the name of Gujarat Investment and Finance Consultancy was being carried out by a person other than the plaintiff. That he was visiting the premises and it was in the end of 1993 that he was informed that the possession of the premises was taken over. He admitted that he was being paid remuneration by the plaintiff which was not on a regular term.

2.5 Shantaben Thakarsingh who was a maid servant at the business premises was examined at Ex. 59. She stated that she would go to the premises to clean the shop; that the son of the defendant had beaten up Dineshbhai, the servant of the plaintiff while the plaintiff was out of station. It was at that point of time that she was engaged in the cleaning work of the shop and she was being paid regular salary by the plaintiff.

2.6 At Ex. 63 the plaintiff examined one Vinod Ramswaroop Sheth. He was the owner of the shop in the neighbouring area and was serving as a Manager of Jayshanker Transport Company. He deposed that when the plaintiff was out of station, the defendant forcibly took over the possession of the suit shop by beating the servant of the plaintiff and when he returned and could not get possession of the suit premises, he was constrained to approach the Court.

2.7 Mr. Dineshbhai Atmaram who was the servant beaten up by the landlord was examined at Ex. 69. According to this witness, while the plaintiff had gone to Bombay, three persons came to the shop on 9th day of 12th month and threw out the tables and furniture. He was threatened and attacked with a knife. He informed Mohanbhai - the plaintiff telephonically that they have forcibly evicted them from the shop, locked the shop and thrown away the furniture outside the shop. In his cross-examination he denied that he was not present at the shop when the incident happened.

2.8 An employee of the Bank of India namely one Rashmikanth Shivlal Parmar was examined at Ex. 57. He admitted that an account in the name of the plaintiff firm was being run and a certificate was produced at Mark 45/2 which confirmed that two cheques towards rent were issued in favour of the landlord. He also came with the original cheques and testified that the cheques which were at Ex. 88 and the cheques at Exs. 89 and 90 were in fact issued in favour of the landlord namely Anilbhai Jani.

2.9 The landlord - defendant deposed at Ex. 92. He denied that the plaintiff was the tenant. It was his case that he had on his own volition vacated the premises and that he had never issued any rent receipt and that he was constrained to file a Civil Suit being Civil Suit No. 6627 of 1993 in the City Civil Court to obtain an injunction to see that the present plaintiff did not trespass into the premises. He admitted that the plaintiff did give the cheques in question and that he had credited the same but they were not towards the rent. He failed to show any written agreement by which the premises were voluntarily handed over by the plaintiff tenant. The versions by other witnesses of the plaintiff were denied by the defendant.

2.10 One Prabhudayal Radhakrishnan was examined as defendant's witness at Ex. 105. It was this witness' case that he was running a Bhojanalaya as a tenant of the landlord defendant herein. That in Survey No. 1152/1, one M.P. Golden Transport Company was the tenant prior thereto. The property was tenanted to one Gujarat Investment and Finance Company and Akashdeep Transport. That the tenant namely Akashdeep Transport had left the suit premises. He on questioning the tenant then as to why he was leaving the premises, the tenant answered that he was moving to an alternative godown at Odhav. It was therefore the case of this witness that the plaintiff herein had shifted his goods in fact by a truck and therefore had voluntarily handed over the possession. However in cross examination he denied having heard of the tenant Mohanbhai being in possession of the suit shop till 1993.

2.11 The trial Court heard the learned advocates appearing on behalf of the respective parties. The learned advocate for the plaintiff drew the attention of the Court to the rent receipt at Ex. 47, the certificate of the bank produced at Ex. 88 and the original cheques brought to the Court and produced at Exs. 90 & 91 to substantiate the plaintiff's stand that the cheques were paid towards rent and thus the cheques were credited by the landlord in his account. According to the learned advocate appearing on behalf of the plaintiff, the case of the defendant that the plaintiff tenant had handed over possession voluntarily was false. Therefore, the oral evidence of the Sweeper Shantaben and the servant Dineshbhai was pressed into service to substantiate the fact that the plaintiff was forcibly evicted from the said premises. The witness Jayantibhai Chimanlal Shah who was examined at Ex. 58 had also categorically stated that the investment consultancy was run by the plaintiff himself. That no rent note or rent receipt had been produced by the defendant to suggest that it was let out to anybody other than the plaintiff and therefore it should be believed that it was the plaintiff who was the occupant of the premises and was carrying on the business in the name of Gujarat Investment and Finance Consultancy.

2.12 The learned advocate appearing on behalf of the defendant tried to contend that the evidence of Dineshbhai and Shantaben could not be believed.

3. The trial Court after considering the evidence on record came to the conclusion that the defendant has not been able to discharge the burden of proof that the plaintiff had voluntarily surrendered the tenancy rights. According to the learned trial Judge, it was evident from the rent receipt at Ex. 47 which was dated 16.09.1993 and from the certificate of the Bank of India at Ex. 88 and the copies of the cheques at Exs. 90 & 91 that the plaintiff had paid the rent and the defendant had deposited the cheques in the account towards such rent. The testimony of the Bank Officers was enough to accept the submission of the plaintiff that the cheques were genuine. The learned trial Judge held that the attempt by the defendant that the suit premises was let out to the Gujarat Investment and Finance Consultancy on the plaintiff surrendering the agency was also not proved because the defendant himself was not consistent in his version. No rent receipt was produced by the defendant to substantiate the stand that the business of Gujarat Industrial and Finance Consultancy was let out to any other tenant. The trial Court believed the version of the plaintiff that he had started a business in investment and finance consultancy due to the slackness in the transport business.

3.1 Shri Jayantkumar Chimanlal Shah was examined at Ex. 58. He has come forth with the evidence that he was attending the shop of the plaintiff and would earn approximately Rs. 5,000/- a year from the share business. The plaintiff's neighbour Vinodbhai Ramswaroop Sheth has also supported the case of the plaintiff. As far as the testimony on the defendant's side i.e. one Prabhudayal Radhakrishnan is concerned, the learned trial Judge found that from the testimony of Dineshbhai and that of Shantaben it was evident that Dineshbhai and Shantaben were not giving false evidence. That both of them were serving in the premises and the fact that the plaintiff had been dispossessed was substantiated through the testimony of Dineshbhai who had stated that he was beaten. On an overall assessment of evidence of the witnesses namely Jayantkumar, Shantaben, Vinodbhai and Dineshbhai, the trial Court came to the conclusion that the plaintiff was wrongly dispossessed from the suit premises.

3.2 As far as the contention raised by the defendant that the Rent Court had no jurisdiction to try the suit, the trial Court held that once it was proved that there was a tenancy right and the relationship of a landlord and tenant existed between the parties, the Rent Court had jurisdiction. The trial Court therefore by its judgment and order dated 22.01.2002 decreed the suit in favour of the original plaintiff - respondent herein.

3.3 The defendant went in appeal before the Division Bench of the Small Causes Court. The Bench of the Small Causes Court considered the evidence on record, reiterated the testimonies of the witnesses that were produced before the trial Court and having considered the submissions made by the learned advocates appearing on behalf of the respective parties, the Court came to the conclusion that there was no iota of evidence to show that the plaintiff had voluntarily handed over the possession of the premises to the defendant. The Appellate Court further held that the defendant had failed to prove that the tenant of the Gujarat Investment and Finance Consultancy was someone other than the plaintiff. No writing was produced to show this. From the testimony of Jayantkumar at Ex. 58 also, the Appellate Court believed the version of the plaintiff that it was he who was carrying out the business of the investment consultancy and that when he was out of station from 26.11.1993 to 09.12.1993, the plaintiff was forcefully evicted and possession was recovered. Based on the cheques at Exs. 90 and 91, the Appellate Court affirmed the finding that the rent was paid and even the testimony of the defendant was not satisfying to prove that the tenancy had infact been transferred to somebody else. The Appellate Court therefore also confirmed the judgment and decree of the trial Court and dismissed the appeal by order dated 27.01.2005.

4. Mr. M.B. Parikh, learned advocate appearing on behalf of the original defendant - landlord has challenged both these orders of the trial Court as well as the Appellate Court. Mr. Parikh submitted that there was substantial evidence on record to suggest that the tenancy infact was surrendered. Strong reliance is placed by Mr. Parikh on the testimony of one Prabhudayal Radhakrishnan at Ex. 105. Mr. Parikh has taken me through his testimony and especially the version where this witness questioned the plaintiff as to why he was removing his luggage from the premises. By reading the evidence led by this witness, Mr. Parikh submitted that the fact that the plaintiff answered that he was shifting to a godown at Odhav was substantial proof of the fact that the plaintiff had voluntarily handed over the possession and therefore the trial Court and the Appellate Court were in serious error in not appreciating or ignoring the testimony of this witness. Mr. Parikh has also taken me to the testimony of Anil Jani at Ex. 98 to suggest that his evidence was vocal enough to suggest that he had been constrained to file a Civil Suit being Civil Suit No. 6627 of 1993 and obtained an interim order. That he had specifically denied that in the rent receipt at Ex. 47 he had signed. He denied that he knew Shantaben who was working with the plaintiff and that there was no rent note or rent receipt in favour of the Gujarat Investment and Finance Consultancy.

4.1 Mr. Parikh further submitted that there was no evidence to suggest that the possession of the property was taken behind the back when the plaintiff was in Mumbai and merely because as evidence tickets were produced it would not substantiate the fact that possession was taken over by the defendant - applicant herein by force. According to Mr. Parikh, unnecessary importance was given to the testimonies of Dineshbhai and Shantaben whereas the star witness on behalf of the defendant - Shri Prabhudayal Radhakrishnan had specifically given testimony that he had seen the plaintiff vacate the shop and move to a godown at Odhav.

5. As against this, Mr. J.F. Mehta, learned advocate appearing on behalf of the respondent - original plaintiff contended that the fact that the defendant filed Civil Suit No. 6627 of 1993 itself suggested that the defendant had taken over possession forcibly and in order to shelter such an illegal act, the suit was filed. Mr. Mehta further submitted that there is substantial evidence on record in terms of the rent receipt, the testimony of the bank officer and the cheques at Exs. 90 & 91 which show that the tenancy was subsisting. Mr. Mehta further submitted that Dineshbhai and Shantaben and the other two witnesses have supported the version of the plaintiff and that the plaintiff was forcibly evicted from the premises. He urged that both the courts below have on appreciation of evidence come to a conclusion, the findings are concurrent and therefore should not be interfered with and the revision application be dismissed.

6. Evidence has come on record and discussed by the trial Court as well as the Appellate Court. Witnesses namely the plaintiff Mohanlal Sharma, the servant Dineshbhai, maid Shantaben and independent witness Jayantilal Chimanlal Shah and Vinod Ramswaroop Sheth have been examined and the learned trial Judge as well as the Appellate Judge on examination of these testimonies and comparing them and assessing them with the testimonies by and on behalf of the defendant namely that of Anilbhai Jani and one Prabhudayal Radhakrishnan has come to the conclusion that the plaintiff deserved to get back the possession as was made out by the defendant. Mohanlal Sharma, the plaintiff was examined at Ex. 46. It has come out from his testimony that initially he was carrying on the business in the suit premises in the name of Akashdeep Transport. Thereafter, since the business was running at a loss he started a share business in the name of Gujarat Investment and Finance Consultancy. Documentary evidence was produced by way of a rent receipt at Ex. 47. Two cheques drawn in favour of the landlord who had issued the said rent receipts was produced at Mark 45/2. It was the case of the plaintiff that while he was at Mumbai, his servant Dineshbhai had called him up informing him that the defendant landlord has forcibly evicted him. That he was out of town was substantiated by the plaintiff by producing the tickets at Mark 45/4. Also was on record the fact that the defendant had filed Civil Suit No. 6627 of 1993 by which he had prayed that the original plaintiff be restrained from entering into the premises.

6.1 Jayantilal Chimanlal Shah was an independent witness who was examined at Ex. 58. It came out from his deposition that he was working with the plaintiff, doing the business of share transactions. The case of the defendant in the defence was that the company running in the name of Gujarat Investment and Finance Consultancy was in fact a tenant inducted after the eviction of the plaintiff. Such a stand was proved wrong through the examination of this witness who categorically stated that he knew the plaintiff since 1980 and that he was though not drawing regular salary but he would receive Rs. 5000/- as remuneration for about two years.

6.2 Shantaben has been examined at Ex. 59 who is the lady who was cleaning the said shop. She has stated that she would go to the shop for cleaning daily. The shop was being occupied by the plaintiff. When the plaintiff was out of station, she had seen the son of landlord beating Dineshbhai - the servant.

6.3 Dineshbhai the servant who was working with the plaintiff was also examined at Ex. 69. He stated that he was an illiterate person and was working at the shop of Mohanlal. He was attending the shop when employer Mohanlal the plaintiff was out of Mumbai. At that time, three youths had come on 09th December at 11.00 am. He knew one of them who was the defendant's son. Shantaben also supported the evidence of Dineshbhai when she stated in her testimony that while she was cleaning the shop, she had seen Manish come over and that there was a fight. That the rent was paid through cheques and the cheques were deposited and cleared was a fact proved through the testimony of Mr. Rashmikanth Shivlal Parmar at Ex. 57 who was serving at Bank of India, Vatva Industrial Estate Branch.

6.4 As against this, the testimony on behalf of the defendant was that of one Prabhudayal Radhakrishnan. Sole reliance placed on the evidence of this witness by the counsel for the applicant is that when Mr. Prabhudayal asked a question to the plaintiff while he was loading the truck, the response that was received from the plaintiff was that he was shifting to a godown at Odhav. Except the evidence which is pressed into service by the applicant's counsel, the learned trial Judge upon appreciation of the evidence of the witness on behalf of the plaintiff came to the conclusion that the defendant failed to discharge his burden of showing that the plaintiff had voluntarily surrendered the possession of the suit premises in favour of the defendant. It has come on record through the railway reservation ticket that the plaintiff was out of station at Mumbai. During that period of time, he received a call from his servant Dineshbhai about the forcible eviction from the suit premises by the defendant. Dineshbhai in his evidence has categorically stated that on 09.12.1993, three persons came over including one Manish who threatened them with a knife. The furniture of the shop was thrown out and since he was scared he fled the shop and made a call to Mohanbhai at Mumbai. The fact that the defendant filed a Civil Suit before the City Civil Court for a restraint order suggests that the conduct of the defendant obviously was to cover up the forcible eviction that he undertook when the plaintiff was out. His case that he had subsequently sub-let the shop to Gujarat Investment and Finance Consultancy also does not stand good in view of the testimony of Mr. Jayantkumar Chimanlal Shah who has testified that he was working with such company which was owned and operated by the plaintiff and he was being remunerated by the plaintiff.

6.5 Based on these collective assessment of evidence, the learned trial Judge has come to the conclusion that the suit filed by the plaintiff for restoration of possession of the tenanted premises deserves to be granted. That the defendant had failed to prove voluntary abandonment of the possession at the hands of the plaintiff when the conduct of the defendant showed that he had issued a rent receipt, accepted the cheques deposited for the rents in question. In view of the overwhelming evidence in favour of the plaintiff I find no reason to accept the submission of Mr. Parikh, learned advocate appearing on behalf of the applicant that the trial Court has ignored the evidence of the defendant's witness Mr. Prabhudayal Radhakrishnan. His only case which this witness tried to support was that he had seen the plaintiff vacating the shop and shifting to a godown in Odhav. No other evidence has come on record from the defendant's side to bring home the case that the plaintiff had voluntarily handed over the possession of the premises. Accordingly, the suit was rightly decreed in favour of the plaintiff.

7. The Appellate Court has agreed with the findings of the trial Court. The evidence of the plaintiff and the defendant and their witnesses have been reconsidered and reiterated by the Appellate Court. It will be worthwhile to reproduce paragraphs No. 25 and 26 of the judgment of the Appellate Court which read as under:

"25. Before we go to our final conclusion, we would like to refer the evidence of the appellant - defendant - Mr. Anilbhai Jani, who is examined before the learned trial Judge at Ex. 98. This witness has stated that about two years from the date of filing of the present suit, the possession is handed over by the respondent - plaintiff peacefully and thereafter, the suit premises was let out for the period of about 4 months to Gujarat Investment Financial Consultancy, who also handed over the possession willfully to him. Again we are inclined to repeat that in the oral evidence also, the appellant - defendant is not in a position to say that on which date or in which month, the possession was handed over by the respondent - plaintiff about the specific period of letting of the suit premises by him to Gujarat Investment Financial Consultancy. He is unable to say that at what rent, the premises was let to Gujarat Investment Financial Consultancy, even though, he has admitted in his cross-examination that he maintained the accounts of the properties. However, subsequently he has changed the version that he has not maintained any accounts about the same. The appellant - defendant also examined the witness Mr. Prabhudayal at Ex. 105, who has stated that formerly, Akashdeep Transport was the tenant in the suit premises and then after, Gujarat Investment Financial Consultancy was a tenant in it and at present, M.P. Golden Transport Company is the tenant in the suit premises. We have carefully gone through the evidence of this witness also. But we find that his evidence is not helpful to the appellant - defendant in any manner. This witness does not know that who was doing the business in the Gujarat Investment Financial Consultancy. He has also stated that he has not talked with Anilbhai regarding the suit premises. Furthermore, this witness is a tenant of Anilbhai and therefore, it appears that he has come forward to help the appellant - defendant only.

26. Hence, weighing the oral evidence of both the sides, we find that the evidence led by the respondent - plaintiff does contain a ring of truth. The appellant - defendant is not in a position to prove that the tenancy rights of the suit premises were surrendered by the respondent - plaintiff at any point of time. The appellant - defendant is not in a position to prove that subsequently, the premises was let to Gujarat Investment Financial Consultancy by him as contended. Hence, from the evidence led by the respondent - plaintiff, it becomes crystal clear that the possession of the suit premises has been recovered by the appellant - defendant without due process of law and therefore the respondent - plaintiff being tenant of the suit premises is entitled for the relief of restoration of the possession of the suit premises as prayed in the suit."

8. It is therefore obvious that there is no error of law much less any error of fact so as to disturb the concurrent finding arrived at by both the courts below. Accordingly, Civil Revision Application stands dismissed. Rule is discharged. Interim relief, if any, shall stand vacated.

After the above order was pronounced, Mr. Parikh, learned advocate appearing on behalf of the applicant has requested to suspend the implementation and operation of the present judgment and order for a further period of eight weeks. At his request, the implementation and operation of the judgment and order is suspended for a further period of six weeks from today i.e. upto 05.10.2018.


Print Page

No comments:

Post a comment