Dismissed

Shri.Suresh Dalichand Solanki v. Shri.Jeevan Mahadeo Gorade and Ors.

Bombay HC24 Sept 2013CRA/372/2013

Case brief

AI extract

What is this about?

The High Court dismissed an application under section 115 CPC challenging decrees on unlawful subletting. The court held that the lower courts correctly found unlawful subletting established by a bailiff's report and the defendant's failure to explain the third-party occupant's presence.

What did the court decide?

The Civil Revision Application is discharged and dismissed.

Shri.Suresh Dalichand Solanki Vs Shri.Jeevan Mahadeo… — Property and Title | Bombay HC (2013)

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1.cra.390.13

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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CIVIL REVISION APPLICATION NO. 372 OF 2013

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Shri Suresh Dalichand Solanki

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.. Applicant

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Vs.

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Shri Jeevan Mahadeo Gorade and others

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.. Respondents

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Shri R.V.Govilkar, for Applicant. Mr.J.S.Kini i/b Mr.Suresh Dubey, for Respondent No.1.

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CORAM : R.G.KETKAR, J . DATE : 24^th September, 2013

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P.C. :

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. Heard Mr.R.V.Govilkar, learned Counsel for the applicant and Mr.J.S.Kini, learned Counsel for the respondent No.1 at length.

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By this application under section 115 of the Code of Civil Procedure, 1908, (for short 'C.P.C') , the original defendant No.1 has challenged the judgment and decree dated 06/07/2004 passed by the learned 3^rd Additional Judge, Small Causes Court, Pune as also the judgment and decree dated 14/09/2011 passed by the District Judge, 10, Pune, whereby the suit instituted by the respondents on the ground of unlawful subletting by defendant Nos. 1 to 3 in favour of defendant No.4 was decreed.

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In support of this application, Mr.Govilkar invited my attention to i) findings recorded by the learned trial Judge against

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issue No. 4 and in particular, paragraph 12 onwards ii) the findings recorded by the Appellate Court in respect of point no. 1 and in particular, paragraph 17 onwards. He submitted that the respondents / plaintiffs did not lead the cogent and sufficient evidence to substantiate their plea of unlawful subletting. He submitted that the plaintiffs relied upon the bailiff's report which recorded that at the time of effecting service of suit summons, one Mr.Suresh Kothari was found in possession of the suit premises. However, the plaintiffs did not examine the bailiff and consequently, did not prove the bailiff's report. Save and except the bailiff's report, the plaintiffs have not led any evidence to establish the ground of unlawful subletting. He therefore, submitted that application requires consideration.

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On the other hand, Mr.Kini supported the impugned orders. He submitted that the plaintiffs have established the ground of unlawful subletting. The applicant did not challenge the presence of Mr.Suresh Kothari in the suit premises. The applicant did not explain in what capacity said Mr. Suresh Kothari is residing in the suit premises. That apart, even the bailiff's report was not challenged by the applicant. He therefore submitted that no case is made out for invocation of powers under section 115 of the C.P.C..

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I have considered the rival submissions made by the learned Counsel appearing for the parties. I have also perused the material on record. Insofar as the issue of subletting is concerned, the

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learned trial Judge has considered this issue from paragraph 12 of the impugned order. In paragraph 12, the trial Court observed that the plaintiffs had issued notice to defendant No.4 which was produced on record at Exhibit 80. The said notice was duly served on defendant No.4 at the suit address. Even the bailiff's report filed on record shows that suit summons was sent to defendant No.4 on her address at suit premises. The bailiff found that defendant No.4 was not residing in the suit premises and one person by name Mr.Suresh Kothari was found in possession. Defendant No.4 did not appear in the suit and suit proceeded exparte against her. The trial Court considered the pleadings of defendant No.1 and recorded that she did not acknowledge defendant No.4. The learned trial Court while answering issue Nos. 1 & 2 recorded a finding that defendant No.1 is not using the suit premises for business purpose and when some third person is found residing in the suit premises, the onus is upon defendant No.1 to explain the presence of third person. The trial Court further observed that admittedly third persons are not the relatives of defendant No.1. The Appellate Court considered the point of unlawful subletting from paragraph 17 onwards. The Appellate Court confirmed the findings recorded by the trial Court. After considering the material on record, the Appellate Court categorically recorded a finding that in the absence of any cogent and concrete proof, it has no reason to disbelieve the evidence led by the plaintiffs as also the bailiff's report.

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I do not find that the Courts below committed any error in arriving at this conclusion. Though I repeatedly called upon Mr.Govilkar to produce the evidence led by the defendants in support of their plea, Mr.Govilkar was not in a position to show any document or evidence to substantiate their case. Defendant No.1 has not led any positive evidence to substantiate his case.

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In view thereof, it cannot be said that the findings recorded by the Courts below are based upon no evidence or that on the basis of evidence on record, no reasonable or prudent man would come to that conclusion. Merely because another view is possible that itself is not a ground for invocation of powers under section 115 of the C.P.C.

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In the result, the Civil Revision Application fails and the same is dismissed.

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(R.G.KETKAR, J.)

Shri.Suresh Dalichand Solanki v. Shri.Jeevan Mahadeo Gorade and Ors.

Case brief

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Shri.Suresh Dalichand Solanki v. Shri.Jeevan Mahadeo Gorade and Ors.

Case brief

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