PATEL VALMIK HIMATLAL AND ORS.versusPATEL MOHANLAL MULJIBHAI (DEAD) THROUGH LRS.

A                   PATEL VALMIK HIMATLAL AND ORS.
                                         v.
       PATEL MOHANLAL MULJIBHAI (DEAD) THROUGH LRS.

                                  AUGUST 26, 1998

B                 [DR. A.S. ANAND AND D.P. WADHWA, JJ.)

            Rent and Eviction :

            Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.
c          S. 29(2)-Revisional jwisdiction of High Cowt-Scope of-Concwrent
    finding of Cozl!1s below that tenant of non- residential premises sublet it
    without pemzission of landlord-He/cl, mere fact that a different view is
    possible 011 re- appreciation of evidence cannot be a ground for exercise of
    revisional jwisdiction-High Cowt fell into en-or in re- appraising the entire
D   evidence and recording a finding without any way pointing any e1mr of law
    or mate1ial iTTegulmity, if any, committed by either of the coults below-Even
    appreciation of evidence by High Cowt was not cmrect-Both the Cowts
    below had Tightly come to the conclusion that tenant had in fact sublet suit
    premises and paned with possession thereof without conse1Zt of landlord.

E         Helper Girdharbhai v. Saiyed Mohmad Mirasaheb Kad1i and Others,
    [1987] 3 sec 538, relied on.

            CIVIL APELLATE JURISDICTION              Civil Appeal No. 7153 of
    1996.
F        From the Judgment and Order dated 23.12.94 of the Gujarat High
    Court in C.R.A. No. 984 of 1981.

            Ranjit Kumar and H.A. Raichura for the Appdlants.

G           The following Order of the Court was delivered :

          Appellant-landlord filed a suit for recovery of a shop situate at Lati
    Bazar in city of Bhavnagar which had been let out to the tenant-respondent
    on a monthly rent of Rs. 111 for the specific purpose of running timber
    business. Various grounds were taken in the suit for eviction but for the
H   purposes of the present appeal by special leave we are concerned only with
                                        126
                   P.V. HIMATLAL v. P.M. MUUIBHAI                         127

the ground of sub- letting.                                                      A
       The case of the appellant-plaintiff in the plaint was that the tenant-
 defendants were not authorised to sublet, transfer or assign or permit
anybody else to make use of the suit property or a part thereof without the
consent of the landlord. It was asserted that the tenant-defendants closed
down their business of timber and thereafter sublet the premises to Patel        B
Transport Company without consent of the landlord. A public declaration
had been made through a newspaper regarding the staring of the business
of PateJ Transport Company from the demised premises. The suit was
contested and insofar as the question of sub-letting is concerned, the
tenant-defendants maintained that there was no sub-letting in favour of          c
Patel Transport Company and that in fact the tel).ant had entered into a
partnership with Patel transport Company for running business in the suit
premises. The trial court after framing of issues and recording evidence
came to the conclusion that sub-letting of the suit premises by the tenant
to Patel Transport Company was established and consequently decreed the          D
suit of the landlord. The tenant filed an appeal which was heard by the
learned Extra Assistant Judge, Bhavnagar. Vide order dated 16th April,
1981 the appeal was dismissed and the decree passed by the trial court
confirmed. The tenant preferred a civil revision application under section
29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act.
The High Court in exercise of its revisional jurisdiction set aside the          E
concurrent findings of fact recorded by the trial court and the first appel-
late court and dismissed the suit filed by the appellant- landlord. By special
leave, the appellant-landlord is before us.

     We have perused the record and heard Mr. Ranjit Kumar, learned              F
counsel appearing for the appellant. The respondent despite service has
chosen to remain absent.

    Section 29(2) of the Bombay Rents Act as applicable to Gujarat
amendment reads as follows :-
                                                                                 G
        "29(2). No further appeal shall lie against any decision in appeal
        under sub-section (1) but the High Court may, for the purpose of
        satisfying itself that any such decision in appeal was according to
        law, call for the case in which snch decision was taken and pass
        such order with respect thereto as it thinks fit."                       H
    128                   SUPREME COURT REPORTS [1998] SUPP. 1 S.C.R.

A       The ambit and scope of the said section came up for consideration
  before this Court in Helper Girdharbhai v. Saiyed Mohmad Mirasaheb Kadri
  and Others, [1987] 3 sec 538 and after referring to a Catena of authorities,
  Sabyasachi Mukherji, J. drew a distinction between the appellate and the
  revisional jurisdictions of the courts and opined that the distinction was a
  real one. It was held that the right to appeal carries with it the right of       .·
B rehearing both on questions of law and fact, unless the statnte conferring
  the right to appeal itself limits the rehearing in some way, while the power
  to hear a revision is generally given to a particular case is decided accord-
  ing to law. The Bench opined that although the High Court had wider
  powers than that which could be exercised under Section 115 of the Code
C of Civil Procedure, yet its revisional jurisdiction could only be exercised for
  a limited purpose with. a view to satisfying itself that the decision under
  challenge before it is according to law. The High Court cannot substitute
  its own findings on a question of fact for the findings recorded by the courts
  below on reappraisal of evidence. Did the High Court exceed its jurisdic-
D tion?

        The powers under section 29(2) are revisional powers with which the
  High Court is clothed. It empowers the High Court to correct errors which
  may make the decision contrary to law and which errors go to the root of
  the decision but it does not vest the High Court with thc: power to re-hear
E the matter and re-appreciate the evidence. The mere fact that a different
  view is possible on re-appreciation of evidence cannot be a ground for
  exercise of the revisional jurisdiction.

           In the instant case we find that the High Court fell into an error in
    re-appraising the entire evidence and recording a finding on the basis of
F   that re-appreciation without in any way pointing out any error of Jaw or·
    material irregularity as may have been committed by the trial court or the
    first appellate court. In our opinion even the appreciation of evidence by
    the High Court was not correct. Certain facts were assumed by the High
    Court which were not on record and generalisation was made without any
G   basis. In this connection a reference to paragraph 12 of the order of the
    High Court would be relevant. It reads:-

             "12. This would clearly mean that starting of the said Branch office
             was clearly recorded in form of a Commission Agency Agreement
             in Exh. 78, another copy of which is at Exh. 110, and that was done
H            openly and publicly inviting particularly the business community
                             P.V. HIMATLAL v. P.M. MUUIBHAI                        129
                  to attend the function. If the idea was to sublet the premises, a       A
                  tenant would hardly be expected to advertise the fact in this
                  manner."

                The question whether or nofthe premises had been sublet could not
......   be decided on the basis whether a tenant generally is "expected to advertise
         the fact in this manner". The findings recorded by both the trial court and      B
         the first appe!late court based on a critical appreciation of the terms of the
         agreement Exh. 78 and the evidence led by the parties on the record
         suffered from no error or material irregularity. Both the courts had rightly
         come to the conclusion that the tenant had in fact sublet the suit premises
         and parted with the possession of the premises without consent of the            C
         landlord. There was no error committed by the courts below which re-
         quired any correction at the hands of the High Court in exercise of its
         revisional jurisdiction. The judgment of the High Court, under the cir-
         cumstances, cannot be sustained.

               Consequently, this appeal succeeds and is allowed. The judgment of D
         the High Court is set aside and those of the trial court and the first
         appellate court are restored. No costs.

         R.P.                                                         Appeal allowed.