V. SUMATIBEN MAGANLAL MANANI (DEAD) BY L.R.versusUTTAMCHAND KASHIPRASAD SHAH AND ANR.

                     [2011] 8 S.C.R. 943


  V. SUMATIBEN MAGANLAL MANANI (DEAD) BY L.R.                         A
                                V.
     UTIAMCHAND KASHIPRASAD SHAH AND ANR.
            (Civil Appeal No.6685 of 1999)
                         JULY 4, 2011
                                                                      8
           [AFTAB ALAM AND R.M. LODHA, JJ.]

     Rent Control:

       Eviction - On the ground of sub-letting - Case of plaintiff-   c
 landlady that she had let out the shop in question to defendant
 no.1-tenant for running grocery business but the latter sublet
 the same to defendant no.2-milk vendor-Appellate court, on
.the basis of material on record, arrived at the finding of
 subletting against defendant no. 1-tenant ~ High Court, in           0
 revision, was dismissive of the finding of the appellate court
 on the issue of sub-letting - Justification of - Held: Not
 Justified - The plaintiff's case of subletting of the shop by
 defendant no. 1 to defendant no. 2 was greatly supported by
 the report prepared by the Court Commissioner who had                E
 visited the suit shop - The Court Commissioner did not find
 any grocery items in the suit shop but found lying there six
 empty milk cans and some glass show-cases containing
 small card-board boxes used for packaging sweets, bearing
 the name "Chandrika Dudh Ghar'' and in the loft of the shop          F
 five more milk cans and some 150 to 250 empty sweet boxes
 - The Court Commissioner also found there certain books of
 accounts but before he could examine those books of
 accounts the inspecting party was attacked by four or five
 people coming from the adjoining shop of defendant no.2 -
  The intruders assaulted the husband and attorney holder of          G
 plaintiff-landlady and disrupted the inspection. being held by
 the Court Commissioner - The inspection, thus, came to an
 abrupt end - Clearly the inspection by the Court

                               943                                    H
    944       SUPREME COURT REPORTS               [2011] 8 S.C.R.


A   Commissioner was obstructed at the instance of defendant
    no. 2 and the intruders had come at his behest - The
    defendant no. 1 took a rather lame plea to try to explain away
    the findings of the Court Commissioner by stating that the
    marriage of his nephew was to take place and he had given
B   an order for sweets to defendant No. 2 - The appellate court
    rightly rejected the explanation furnished by defendant no. 1
    observing that there should be no reason for empty sweet
    boxes to be lying at the shop after two years of the marriage
    - The defendant no. 1 not only fabricated evidence by later
c   on keeping in the suit shop sweet boxes with the inscription
    about his nephew's wedding but also abused the process of
    the court for his purpose by filing a separate suit and getting
    a Court Commissioner appointed in that suit for the discovery
    of the fake sweet boxes - The appellate court rightly came to
    find and hold that the suit premises were in fact in the use and
0
    occupation of defendant no.2.

         Eviction - On the ground oi' non-user of premises - Suit
    for eviction - Decree passed by trial court - Appellate court
    affirmed the finding of trial court that the suit shop was not
E used by the tenant for the purpose for which it was let--out for     1


    a continuous period of more than six months immed1 ely
    preceding the date of the suit and confirmed the evict1 n
    decree - Tenant filed revision before the High Court - Hig
    Court set aside the findings of fact arrived at by the courts
F below on the issue of non-user of the suit shop - Justification
    of - Held: Not justified - High Court took a rather perfunctory
    view of the matter - The appellate court did not arrive at its
    finding on a juxtaposition of segregated pieces of fact but took
    into consideration the overall picture emerging from all the
G material facts and circumstances relating to the case - Apart
    from the suit shop the tenant had set up two other shops -
    When the Court Commissioner visited the suit shop it was
    found closed - The tenant gave a false explanation for not
  · opening the shop, stating that it was not opened due to the
H death of his maternal uncle even though one other shop set
  V. SUMATIBEN MAGANLAL MANANI (DEAD) BY LR. v.              945
           UTIAMCHAND KASHIPRASAD SHAH

up by him was not only open but he was also personally               A
present there on that date - "Rojmel" filed by tenant in support
of the plea that he ran grocery business at the suit shop
through an employee was false - Electricity bills showed that
 there was no consumption of electricity in the suit shop over
 a period of six months immediately preceding the filing of the      B
 suit - In fact, electric supply to the suit shop was disconnected
 for non-payment of the minimum charges - High Court
 overlooked that later on the tenant had got the electricity
 connection to the suit shop restored and thereafter the
 electricity bills were showing normal consumption of electricity    c
- High Court also overlooked that the tenant had resorted to
 many falsehoods in his attempt to wriggle out of facts and
 circumstances established by the plaintiff-landlady's evidence.

      Code of Civil Procedure, 1908 - s. 115 - Revision -
Eviction decree - Upheld by appellate Court but set aside by D
the High Court in exercise of its revisional jurisdiction - Held:
On facts, the High Court committed a mistake in interfering
with' and setting aside the findings of fact properly arrived at .
by the courts below - Judgment of the High Court is set aside
and the decree passed by the tn·a1 court as affirmed by the E
appellate court is restored.

    The appellant-landlady, who had let out the shop in
question to the defendant no.1-tenant for running grocery
business, filed suit seeking decree of eviction. The trial           F
court allowed the suit and granted decree of eviction in
favour of the plaintiff-appellant on the ground that the suit
shop had not been used by the defendant no.1-tenant,
without reasonable cause, for the purpose for which it
was let out, for a continuous period of six months                   G
immediately preceding the date of the suit. The appellate
court not only affirmed the finding of the trial court on
non-user of the suit shop for a period of six months
preceding the filing of the suit but also held the defendant
no.1-tenant liable for eviction on the ground that he had
                                                                     H
    946       SUPREME COURT REPORTS            [2011] 8 S.C.R.


A inducted defendant no.2-milk vendor as a sub-tenant. In
  revision filed by defendant no.1-tenant, however, the High
  Court held that both the findings arrived at by the trial
  court and the appellate court were bad and erroneous
  and accordingly set aside the eviction decree. Hence the
B present appeal.

          Allowing the appeal, the Court

          HELD:

c Issue of sub-letting
        1.1. The appellate court examined the evidences
    adduced by the two sides in support of their respective
    cases with great care and thoroughness. The appellate
    court noted that the ground of sub-letting was raised on
0   behalf of the plaintiff at a later stage through an
    amendment in the plaint. It referred to the evidence of 'M',
    the husband and power of attorney holder of the plaintiff,
    who fully supported the plaintiff's case in all particulars.
    The appellate court found that the plaintiff's case of
E   subletting of the shop by defendant no.1 to defendant
    no.2 was greatly supported by the report prepared by the
    Court Commissioner appointed in another suit and who
    had visited the suit premises. The said Court
    Commissioner did not find there any grocery items but
F   found lying in the suit shop six empty milk cans and some
    glass show-cases containing small card-board boxes
    used for packaging sweets, bearing the name "Chandrika
    Dudh Ghar". In the loft of the shop there were five more
    milk cans and some 150 to 250 empty sweet boxes were
G   also lying there. The Court Commissioner also found
    there certain books of accounts.but before he could
    examine those books of accounts the inspecting party
    was attacked by four or five people coming from the
    adjoining shop of defendant no.2. The intruders
H   assaulted 'M' and disrupted the inspection being held by
 V. SUMATIBEN MAGANLAL MANANI (DEAD) BY L.R. v.       947
       · UTTAMCHAND KASHIPRASAD SHAH

the Court Commissioner. The inspection, thus, came to A
an abrupt end. In regard to the incident 'M', who had
faced the main brunt of the assault, filed a criminal
complaint against defendant no.2. In the criminal case,
defendant no.2 was sentenced by the Metropolitan
Magistrate to undergo imprisonment for a certain period. B
The conviction of defendant no.2 was upheld by the
Sessions Court, though the sentence was reduced to
imprisonment till the rising of the court. Against the order
passed by the Sessions Court, defendant no.2 did not
prefer any revision before the High Court and the order c
of conviction, thus, attained finality. In these
circumstances there is no reason to doubt that the
inspection by the Court Commissioner was obstructed
at the instance of defendant no.2 and the persons who
came to the suit shop, the site of inspection, and
                                                             0
assaulted 'M', had come at his behest. [Paras 7, 8] [956-
G-H; 957-A-H; 958-A-B]
    1.2. On behalf of defendant no.1 a rather lame plea
was taken to try to explain away the findings of the Court
Com~issioner. It was stated on his behalf that the           E
marriage of his nephew Ashokbhai was to take place and
he had given an order for sweets to defendant No.2. But
the defendant no.1. did not stop there. He later on, filed
another suit in which a Court Commissioner was
appointed who visited the suit premises and conveniently     F
found at the suit premises sweet boxes with the
inscription "At the occasion of the marriage of nephew
Shri Ashok Kumar". The appellate court rightly rejected
the explanation furnished by defendant no.1 relying on
the report of the Court Commissioner observing that          G
there should be no reason for empty sweet boxes to be
lying at the shop after two years of the marriage. The
defendant no.1. not only fabricated evidence by later on
keeping in the suit shop the sweet boxes with the
inscription about his nephew's wedding but also abused       H
     948      SUPREME COURT REPORTS            (2011) 8 S.C.R.

 A the process of the court for his purpose by filing a
   separate suit and getting a Court Commissioner
   appointed in that suit for the discovery of the fake sweet
   boxes. [Para 9] [958-C-G]
        1.3. On a detailed consideration of the materials on
 8
   record, the appellate court came to find and hold that the
   suit premises were in fact in the use and occupation of
   defendant no.2 and in the facts of the case it was not
   necessary for the appellant-landlady to prove the
 C monetary consideration between the tenant and the sub-
   tenant. [Para 10] [958-G-H; 959-A-B]

        1.4. The view taken by the High Court on the issue
    of subletting cannot be accepted. On the basis of the
    materials available on record, the appellate court was
I D perfectly justified in arriving at the finding of su~letting
    against defendant no.1. [Para 23] [966-C]
          Bharat Sa/es Limited v. Life Insurance Corporation of
     India, AIR 1998 SC 1240: 1998 (1) SCR 711 - referred to.

 E Issue of non-user of premises

        2.1. On the issue of non-user of the suit shop for the
   purpose it was let out, the appellate court noted that
   according to the plaintiff the suit premises were rented
 F out to defendant no.1 in June, 1974 for grocery business.
   But the business of grocery evidently did not succeed
   and since a few months after it was taken on rent, the
   shop was kept closed. [Para 11] [960-B]
       2.2. M' in his deposition before the court fully
 G supported the case of the plaintiff on the question of non-
   user as well. Apart from the evidence of the plaintiff, there
   were two sets of photographs, one taken on January 4,
   1977 and the other on January 3, 1981 in which the suit
   shop appeared closed. In regard to the two sets of
 H photographs the appellate court rightly said that those
                       -
 V. SUMATIBEN MAGANLAL MANANI (DEAD) BY LR. v.          949
        UTTAMCHAND KASHIPRASAD SHAH
would, at best, show that the shop was closed on the           A
dates on which the photographs were taken. The
photographs, therefore, could not form conclusive
evidence of non-user of the shop over a period of six
months and, at best, they could be used as a piece of
corroborative evidence. [Para 12) [960-D-H]                    B

     2.3. Apart from the photographs, there was the report
of the Court Commissioner who visited the suit shop on
July 23, .. 1977 and found it closed. The explanation of
defendant no.1 was that on that date his maternal uncle
had died and the shop was not opened for that reason. C
His witness 'MT', who was writing the accounts of
business of defendant no.1, however, had a different
explanation. According to him, the shop was not opened
on July 23, 1977 because that was a holiday. But grocery
shops are not known to be closed on holidays. After D
finding the suit shop Closed, the Court Commissioner
proceeded to visit the shop of defendant no.1 called
'Mahavir Provision Stores' at Sardar Patel Colony. There
the shop was not only open but defendant no.1 was
himself present in the shop. The court observed, and E
rightly so, that on account of the death of the maternal
uncle it cannot be that one shop would open and the
other would remain closed. [Para 13) [961-A-D]

    2.4. The most clinching evidence on the issue of non-
user of the suit premises, however, comes in the form of F
the electricity bills dated 10.1.1977, 23.2.1977, 25.3.1977,
2.5.1977, 2.6.1977 and 2.9.1977 respectively. These
electricity bills clearly show that in the suit shop there
was no consumption of electricity for the period of six
months before the filing of the suit. [Para 14) [961-E-F]    G

    2.5. The explanation of defendant no.1 for non-
consumption of electricity was that being a devout Jain
he closed the shop at 5:30 P.M. before the day getting
dark. He, therefore, did not need any electric light (or for   H
    950     SUPREME COURT REPORTS            [2011) 8 S.C.R.

A that matter any electric fan) and hence, there was no
  consumption of electricity in his shop. The falsehood of
  the explanation, however, was exposed by the fact that
  the electric supply to the demised shop was
  disconnected for non-payment of the minimum charges.
8 Defendant no.1 then made an application, for resumption
  of the supply and transfer of the service from the name
  of the landlady to his own name. On his application, the
  electric supply was restored in the year 1979 and then the
  monthly bills, dated December, 2, 1980 and January 2,
C 1981 showed normal consumption of electricity in the suit
  shop. There was no explanation by defendant No.1 how .
  and why the suit shop that showed no electric
  consumption in earlier years started showing normal
  electric consumption from December 1979. ·The
  resumption of electric consumption in the suit shop also
D lends credence to the case of the plaintiff that after
  remaining closed for two-three years, the shop was
  sublet by defendant no. 1 to defendant no. 2 who used it
  for his milk business. [Para 15] [962-B-E]

E      2.6; The appellate court also referred to the book of
  account, in the form of "Rojmel" produced by defendant
  no.1 in support of his claim that the ~uit shop was in his
  occupation and he carried on his grocery business from
  there. The appellate court on a detailed examination of
F the entries made in the "Rojmel" found that it was a crude
  and clumsy fabrication made for the purpose of the suit.
  [Para 16] [962-F-G]
      2.7. In addition to its own finding on the question of
  subletting, the appellate court, on a careful consideration
G of all the materials on record, affirmed the finding
  recorded by the trial judge that the suit premises were not
  used by the tenant for the purpose for which it was let
  for a continuous period of more than six months
  immediately preceding the date of the suit. It, accordingly,
H
  V. SUMATIBEN MAGANLAL MANANI (DEAD) BY L.R. v.         951
         UTTAMCHAND KASHIPRASAD SHAH

confirmed the decree of eviction passed by the trial court. A
Against the order passed by the appellate court,
defendant no.1 filed revision before the High Court and
the High Court, taking a rather perfunctory view of the
matter interfered with and set aside the findings of fact
arrived at by the appellate court. [Paras 17, 18) [962-H; B
963-A-C]
       2.8. The· criticism by the High Court of the appellate
  court judgment, on the issue of non-user of the suit
  premises, is unwarranted. The appellate court did not
  arrive at its finding on a juxtaposition of segregated        C
  pJeces of fact but it took into consideration the overall
  picture emerging from all the material facts and
  circumstances relating to the case. The appellate court
. expressly s~id that the two sets of photographs would
  only-show that the shop was closed on the dates the           D
  pictures were taken and those pictures alone were not
  sufficient to prove non-user of the suit premises over a
  period of six months and they could, at best, be used as
  corroborative evidence. It, however, took into
  consideration the circumstance that apart from the suit       E
  premises defendant No.1 had set up another shop called
  "Mahavir Provision Stores" at Sardar Patel Colony and
  yet another shop in Chandlodia area. It also took into
  consideration that when the Court Commissioner visited
  the suit shop on July 23, 1977 it was found closed. What      F
  is of greater significance in that regard, however, is that
  defendant no.1 gave a false explanation for not opening
  the shop, stating that it was not opened due to the death
  of his maternal uncle even though the other shop at
  Sardar Patel Colony was not only open but he was also         G
  personally present there on that date. The court also took
  into consideration the false "Rojmel" filed by defendant
  No.1 in support of the plea that he continued to run the
  grocery business at the suit premises through an
I employee. The court also noticed that another Court           H
    952      SUPREME COURT REPORTS             [2011] 8 S.C.R.

A Commissioner had gone to the suit premises on
  September 22, 1981. He did not find in the shop any
  grocery articles but found there articles belonging to
  defendant no.2 who carried on his milk business from the
  adjoining shop. Besides all this, the appellate court had
B taken into consideration the electricity bills that showed
  that there was no consumption of electricity over a
  period of six months immediately preceding the filing of
  the suit. [Para19] [963-G-H; 964-A-E].
       2.9. The High Court failed to appreciate all the material
C facts and circumstances as regards the electricity bills.
  The High Court thought that the electricity bills showing
  no consumption of electricity for the period of six months
  immediately preceding the filing of the suit were of no
  consequence because the bills for even the period prior
D to the period of six months preceding the suit showed
  no consumption of electricity. The High Court overlooked
  the fact that even though in terms of Section 13(1 )(k) of
  the Bombay Rent Act, the plaintiff was required to prove
  non-user of the shop premises for a period of six months
E immediately preceding the filing of the suit, as a matter
  of fact, the case of the plaintiff was that defendant No.1
  was not using the shop and keeping it closed for a much
  longer period. Thus, the bills produced by defendant no.1
  showing no consumption of electricity in fact supported
F the cas~ of the plaintiff. The High Court also overlooked
  that later on in the year 1979 defendant no.1 had got the
  electricity connection to the suit shop restored and
  thereafter the electricity bills were showing normal
  consumption of electricity. The High Court also
G overlooked that defendant no.1 had resorted to many
  falsehoods in his attempt to wriggle out of facts and
  circumstances established by the plaintiff's evidence
  [Para 21] [965-B-E]
         3. The High Court, in exercise of its revisiona
H . jurisdiction, committed a mistake in interfering with anc
 V. SUMATIBEN MAGANLAL MANANI (DEAD) BY LR. v.             953
        UTTAMCHAND KASHIPRASAD SHAH

setting aside the findings of fact properly arrived at by the      A
courts below. The judgment of the High Court is set aside
and the decree passed by the trial court as affirmed by
the appellate court is restored. [Para 23) [966-C-D]
                      Case Law Reference:
                                                                   B
    1998 (1) SCR 711             referred to          Para 10

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
6685 of 1999.

    From the Judgment & Order dated 23.07.1999 of the High         C
Court of Gujarat at Ahmedabad in Civil Revision Application
No. 1692 of 1998.

    Dattatray Vyas, Abhijit P. Medh, Chirag M. Shroff for the
Appellant.                                                         D

    Tarun Kumar V. Shah, H.A. Raichura, Umesh Kumar
Khaitan for the Respondents.

    The Judgment of the Court was delivered by
                                                                   E
      AFTAB ALAM, J. 1. This appeal at the instance of the
landlady is directed against the judgment and order dated July
23, 1999 passed by a learned single judge of the Gujarat High
Court in Civil Revision Application No.1692/1998. By the
impugned order, the High Court allowed the revision application    F
filed by defendant no.1, the tenant (respondent no.1 before this
Court), set aside the judgments and orders passed by the trial
judge and a division bench of the Small Causes Court and
dismissed the appellant's application claiming eviction of
defendant No.1 from the suit premise$, besides arrea~ of rent.     G

      2. The trial judge had allowed the appellant's application
and granted a decree of eviction in her favour on the ground
that the suit premises had not been used by the tenant, without
reasonable cause, for the purpose for which they were let for a
continuous period of six months immediately preceding the 'H
    954       SUPREME COURT REPORTS               [2011] 8 S.C.R.


A date of the suit. In appeal against the judgment of the trial judge
  preferred by defendant no. 1 and the cross-objection filed by
  the plaintiff-appellant, the division bench of the Small Causes
  Court not only affirmed the finding of the trial court on non-user
  of the suit premises for a period of six months preceding the
B filing of the suit but also held the tenant liable for eviction on
  the ground that he had inducted in the suit premises defendant
  no.2 as a sub-tenant. In the revision filed by defendant no.1,
  however, the High Court held that both the findings arrived at
  by the trial court and the appeal court were bad and erroneous.
c It, accordingly, set aside the decree of eviction passed by the
  trial court and affirmed by the appeal court against defendant
  no.1 and dismissed the suit of the appellant-plaintiff.

         3. The plaintiff-appellant is the owner of bungalow No.6
    situated in Pathik Society, Naranpura, Ahmedabad. A part of
D   the property, being the middle garage, bearing M.C. No.145-
    6-1, and F.P. No.11-11-A-6-1 was let out to defendant no.1 on
    June 1, 1974 for carrying on grocery business on a monthly rent
    of Rs.100/- plus municipal taxes, education cess etc. On June
    9, 1977, a notice (Exh.68) was given to defendant No.1 on
E   behalf of the appellant stating that he was in default in payment
    of the monthly rent and the demised shop was not in use since
    one year prior to the date of the notice. He was, accordingly,
    asked to vacate the shop and hand over its possession to the
    plaintiff. The notice did not have the desired result and,
F   consequently, on July 18, 1977, the appellant filed the suit
    (H.R.P. Suit No.2866/1977) seeking a decree of eviction and
    for payment of arrears of rent and mesne profits against
    defendant no.1 on grounds of default in payment of rent,
    bonafide personal need and non-user of the suit shop by
G   defendant no.1, without any reasonable cause, for a period of
    six months immediately preceding the filing of the suit. It was
    after the filing of the suit but before the summons was served
    on defendant no.1 that, he gave his reply (Exh.67) to the
    plaintiffs notice on August 23, 1977. In the reply, he did no!
H   expressly controvert the allegation that the suit premises werf
  V. SUMATIBEN MAGANLAL MANANI (DEAD) BY LR. v. 955
  UTTAMCHAND KASHIPRASAD SHAH [AFTABALAM, J.]

 not in use since one year before the date of the notice.            A

     4. Later on, after the service of summons of the suit,
1defendant no.1 filed a written statement controverting all the
. allegations made by the plaintiff in the plaint. He denied any'
  default on his part in payment of rent and also denied that the
                                                                      8
  plaintiff-appellant was in bonafide personal need of the suit
  shop. He also denied the allegation of non-user and asserted
  that he carried on his business from the suit shop. Here, it may
  be noted that, in the plaint as it was originally filed, there was
  no allegation of any subletting of the shop by defendant no.1 C
  but during the pendency of the suit, the plaintiff made an
  application stating that defendant no.1 had acquired a shop in
  Sardar Patel Colony, where he carri~d on his grocery business
  under the name and style of "Mahavir Provision Stores". He had
  acquired, yet another shop in Chandlodia area. The suit shop
  that was not in use by him was sublet by him to one D
  Kishanchand Chandansingh Rao who was carrying on his milk
  business under the name and style of "Chandrika Dudh Ghar''
  in the shop adjoining the suit shop. Defendant no.1 was
  realising rental of the plaintiffs shop from him. After being
  inducted in the suit shop, the sub-tenant was using it for carrying E
  on his business and was keeping his articles there. The
  application seeking amendment in the plaint was allowed by
  the trial judge by order dated December 11, 1981, following
  which necessary amendments were carried out in the original
  plaint and the aforementioned Kishanchand Chandansingh Rao F
  was impleaded in the suit as defendant no.2. On notice being
  issued, defendant no.2 filed a written statement denying the
  allegation of being inducted in the suit shop as a sub-tenant
  and stating that he was dragged in the suit unnecessarily only
  with a view to harass him. Defendant no.1 filed additional G
  written statement, denying the allegation that he had inducted
  defendant no.2 in the suit shop as sub-tenant or that he was
  realising any rent from him.

      5. On the basis of the pleadings of the parties, the trial     H
    956        SUPREME COURT REPORTS                 [2011] 8 S.C.R.


A   judge framed a large number of issues of which issue numbers
    (3), (4) and (4)(A) are of relevance for the present. Those are
    as under:

          "(3) Whether the plaintiff proves that the defendant has
          acquired a suitable alternative accommodation as alleged?
B
          "4) Whether the defendant keeps the suit premises closed
          and does not use for more than six months prior to the suit
          as alleged?

c         "(4)(A) Whether the plaintiff proves that defendant No.1 has
          sublet, assigned or transferred the suit premises to the
          defendant No.2 and is profiteering thereby?"

         6. On issue No.3, the trial judge gave a finding in the
D   negative. On issue no.(4)(A) he held that though there appeared
    some substance in the plaintiffs case that the suit premises
    were iri the use and occupation of defendant no.2, there was
    no evidence that it was in his exclusive possession and that
    he paid some consideration or any monthly rent to defendant
    no.1 for being inducted in the suit premises and, hence, the plea
E   of subletting could not be a ground for eviction. On issue No.(4),
    however, he held in favour of the plaintiff and found that
    defendant no.1 had kept the suit premises closed, without any
    reasonable cause for more than six months preceding the date
    of the filing of the suit. It, accordingly, gave a decree of eviction
F   against defendant No.1 on that basis.

        7. Against the judgment and decree passed by the trial
  judge, defendant no.1 preferred an appeal before the division
  bench of the Small Causes Court. The appellant-plaintiff too
G filed her cross-objections. The appellate court examined the
  evidences adduced by the two sides in support of their
  respective cases with great care and thoroughness and it is to
  the appellate order that we propose to refer here in some detail.
  The appellate court noted that the ground of subletting was
H raised on behalf of the plaintiff at a later stage through an
 V. SUMATIBEN MAGANLAL MANANI (DEAD) BY LR. v. 957
 UTTAMCHAND KASHIPRASAD SHAH [AFTAB ALAM, J.]

amendment in the plaint. It referred to the evidence of              A
Maganbhai Rambhai Manani, the husband and power of
attorney holder of the plaintiff who was examined at Exh. 101
and who fully supported the plaintiffs case in all particulars. It
also referred to the evidence of defendant no. 1 at Exh.344.
Defendant no. 1 denied all the allegations made in the plaint,       8
including the allegation of subletting. He maintained that he was
carrying on his business from the suit shop through an
employee, Damodar. The appellate court found that the
plaintiffs case of subletting of the shop by defendant no.1 to
defendant no.2 was greatly supported by the report prepared          c
by the Court Commissioner who was appointed in another suit
being H.R.P. Suit No.3291/81 and who visited the suit premises
on September 22, 1981. The Court Commissioner did not find
there any grocery items but he found lying in the suit shop six
empty milk cans and some glass show-cases containing small           0
card-board boxes used for packaging sweets, bearing the
name "Chandrika Dudh Ghar". In the loft of the shop there were
five more milk cans and some 150 to 250 empty sweet boxes
were also lying there. Interestingly, the Court Commissioner
also found there certain books of accounts but before he could       E
examine those books of accounts the inspecting party was
attacked by four or five people corning from the adjoining shop
of defendant no.2. The intruders assaulted Maganbhai Manani
and disrupted the inspection being held by the Court
Commissioner. The inspection, thus, came to an abrupt end.
                                                                     F
     8. In regard to the incident Maganbhai, the husband and
power of attorney holder of the plaintiff who had faced the main
brunt of the assault, filed a criminal complaint against
Kishanchand, defendant no.2. It is admitted that in the criminal
case, Kishanchand was sentenced by the Metropolitan G
Magistrate to undergo imprisonment for a certain period.
Against the judgment and order passed by the Magistrate, he
preferred an appeal before the Sessions Court. In the appeal .
his conviction was maintained though the sentence was reduced
to imprisonment till the rising of the court. Against the order H
    958        SUPREME COURT REPORTS               [2011) 8 S.C.R.


A passed by the Sessions Court, Kishanchand did not prefer any
  revision before the High Court and the order of conviction, thus,
  attained finality. In those circumstances there is no reason to
  doubt that the inspection by the Court Commissioner was
  obstructed at the instance of Kishanchand, defendant no.2 and
B the persons who came to the suit shop, the site of inspection,
  and assaulted Maganbhai, had come at his behest.

          9. On behalf of defendant no.1 a rather lame plea was
    taken to try to explain away the findings of the Court
C   Commissioner. It was stated on his behalf that the marriage of
    his nephew Ashokbhai was to take place in August or
    September, 1981 and he had given an order for sweets to
    defendant No.2. It was put to the plaintiffs witness Maganbhai
    Rambhai Manani that the sweet boxes found at the suit
    premises by the Court Commissioner in course of his visit there
0
    on September 22, 1981 would be bearing the inscription, "On
    the marriage of Ashok". The witness, of course, denied the
    suggestion. But the defendant did not stop there. He, later on,
    fifed another suit being H.R.P. Suit No.70/83 in which a Court
    Commissioner was appointed who visited the suit premises on
E   February 24, 1983. The Court Commissioner conveniently
    found at the suit premises sweet boxes with the inscription "At
    the occasion of the marriage of nephew Shri Ashok Kumar".
    The appellate court rightly rejected the explanation furnished by
    defendant no.1 relying on the report of the Court Commissioner
F   observing that there should be no reason for empty sweet
    boxes to be lying at the shop after two years of the marriage.
    But, we see something more in the conduct of defendant no.1.
    He not only fabricated evidence by later on keeping in the suit
    shop the sweet boxes with the inscription about his nephew's
G   wedding but also abused the process of the court for his
    purpose by filing a separate suit and getting a Court
    Commissioner appointed in that suit for the discovery of the
    fake sweet boxes.

          10. On a detailed consideration of the materials on record,
H
 V. SUMATIBEN MAGANLAL MANANI (DEAD) BY L.R. v.               959
 UTTAMCHAND KASH IPRASAD SHAH [AFTAB ALAM, J.]

the appellate court came to find and hold that the suit premises      A
were in fact in the use and occupation of defendant no.2 and
in the facts of the case it was not necessary for the landlady to
prove the monetary consideration between the tenant and the
sub-tenant. In support of the view taken by it, the appellate court
relied upon a decision of this Court in Bharat Sales Limited v.       8
Life Insurance Corporation of India, AIR 1998 SC 1240 and
in paragraph 38 of the judgment observed as follows:-

     "38. In view of our earlier discussion and even in view of
     the finding of the learned trial Judge, it can be safely said    C
     that defendant No.2 is found in use and occupation of the
     suit premises. In that case, according to our view, it is not
     necessary for the landlord to prove the monetary
     consideration by sub-tenant to the tenant. We are also of
     the opinion that in case of subletting or in case of illegal
                                                                      0
     transfer, such consideration can be presumed. In this
     connection, our attention is drawn by Mr. Pandya, learned
     advocate who appears on behalf of the appellant, to a
     decision of Mis. Bharat Sales Limited v. Life Insurance
     Corporation of India, reported in A.LR. 1998, Supreme
     Court, page-1240. In this decision, it has been observed         E
     by Their Lordships that:

     ".. To prove subletting production of affirmative evidence
     showing payment of monetary consideration by sub-tenant
     to the tenant is not necessary. Inference as to subletting       F
     can be drawn from proof of delivery of exclusive
     possession of the premises by tenant to sub-tenant. Sub-
     tenancy or subletting comes into existence when tenant
     gives up possession of the tenanted accommodation
     wholly or in part and puts another person in exclusive           G
     possession thereof. This arrangement comes about mutual
     agreement or understanding between the tenant and
     person fo wtiom possession is so delivered. In this
     process, landlord is kept out of the scene. Rather scene
     is enacted behind the back of the landlord, concealing
                                                                      H
    960        SUPREME COURT REPORTS                [2011] 8 S.C.R.


A         overact and transferring possession to a person who is
          utter stranger to the landlord .... "
       11. Coming to the issue of non-user of the suit shop for
  the purpose it was let out, the appellate court noted that
  according to the plaintiff the suit premises were rented out to
8 defendant no.1 in June, 1974 for grocery business. But the
  business of grocery evidently did not succeed and since a few
  months after it was taken on rent, the shop was kept closed.
  Then, in the amendment petition filed on behalf of the plaintiff,
  it was expressly alleged that defendant no.1 was carrying on
C his grocery business under the name and style of "Mahavir
  Provision Stores" from another shop in Sardar Patel Colony
  and later on he had set up yet another shop in Chandlodia area
  and the suit premises were sublet to defendant no.2.

0         12. Maganbhai Manani, the husband and the power of
    attorney holder of the plaintiff in his deposition before the court
    fully supported the case of the plaintiff on the question of non-
    user as well. Apart from the evidence of the plaintiff, there were
    two sets of photographs, one taken on January 4, 1977 and
E   the other on January 3, 1981 in which the suit shop appeared
    closed. The photographs taken on January 4, 1977, at exhibits
    301 to 304, were formally proved by one Mr. Narendrabhai
    Madhavlal Gajjar at (Exh.300) who is a professional
    photographer and has a shop under the name and style of
    Gajjar Studio. He stated before the court that he had taken the
F   photographs on the instructions of the husband of the landlady
    on January 4, 1977 at about 10 to 11 in the morning and had
    issued the bill, Exh.201. The other set of photographs, dated
    January 3, 1981, were taken by Vinodbhai Boria, who is also
    a professional photographer. In regard to the two sets of
G   photographs the appellate court rightly said that those would,
    at best, show that the shop was closed on the dates on which
    the photographs were taken. The photographs, therefore, could
    not form conclusive evidence of non-user of the shop over a
    period of six months and, at best, they could be used as a piece
H   of corroborative evidence.
 V. SUMATIBEN MAGANLAL MANANI (DEAD) BY LR. v.                  961
 UTTAMCHAND KASH IPRASAD SHAH [AFTAB ALAM, J.]

     13. Apart from the photographs, there was the report of            A
 he Court Commissioner who visited the suit shop on July 23,
1977 and found it closed. The explanation of defendant no.1
Nas that on that date his maternal uncle had died and the shop
.vas not opened for that reason. His witness Maheshkumar
Trivedi, at Exh. 404, who was writing the accounts of business          B
of defendant no.1, however, had a different explanation.
According to him, the shop was not opened on July 23, 1977
because that was a holiday. The court has observed that
grocery shops are not known to be closed on holidays. But the
matter does not end there. After finding the suit shop closed,          c
the Court Commissioner proceeded to visit the shop of
defendant no.1 called 'Mahavir Provision Stores' at Sardar
Patel Colony. There the shop was not only open but defendant
no.1 wa~ himself present in the shop. The court has observed,
and rightly so, that on account of the death of the maternal uncle      0
it cannot be that one shop would open and the other would
remain closed.

     14. The most clinching evidence on the issue of non-user
of the suit premises, however, comes in the form of the
electricity bills. Electricity bills, Exhs. 172 to 177, are dated       E
10.1.1977, 23.2.1977, 25.3.1977, 2.5.1977, 2.6.1977 and
2.9.1977 respectively. These electricity bills clearly show that
in the suit shop there was no consumption of electricity for the
period of six months before the filing of the suit. In order to prove
non-consumption of any electricity at the suit shop, the plaintiff      F
also examined Rameshbhai Patel, at Exh.332, who was an
employee of the Ahmedabad Electricity Company, as a Senior
Clerk, for 12 years before his examination in court. He
produced before the court statement of electric service number
149090 (of the suit shop) with his list Exh. 74/1. He also              G
produced other statements with lists, Exh.74/2 and Exh.74/3,
containing record of metre readings of the suit premises
showing electric consumption for different periods. He also
referred to an application submitted by defendant no.1 for
                                                                        H
    962       SUPREME COURT REPORTS                [2011] 8 S.C.R.


A transfer of electric service in his name and for resuming electric
  supply in the suit premises.

         15. The explanation of defendant no.1 for non-
    consumption of electricity was that being a devout Jain he
8   closed the shop at 5:30 P.M. before the day getting dark. He,
    therefore, did not need any electric light (or for that matter any
    electric fan) and hence, there was no consumption of electricity
    in his shop. The falsehood of the explanation, however, was
    exposed by the fact that the electric supply to the demised shop
C   was disconnected for non-payment of the minimum charges.
    Defendant no.1 then made an application, Exh.198, for
    resumption of the supply and transfer of the service from the
    name of the landlady to his own name. On his application, the
    electric supply was restored in the year 1979 and then the
    monthly bills, Exh.199 and Exh.200, dated December, 2, 1980
D   and January 2, 1981 showed normal consumption of electricity
    in the suit shop. There was no explanation by defendant No.1
    how and why the suit shop that showed no electric consumption
    in earlier years started showing normal electric consumption
    from December 1979. The resumption of electric consumption
E   in the suit shop also lends credence to the case of the plaintiff
    that after remaining closed for two-three years, the shop was
    sublet by defendant no. 1 to defendant no. 2 who used it for
    his milk business.

F       16. The appellate court also referred to the book of
  account, in the form of "Rojmel" produced by defendant no.1 in
  support of his claim that the suit shop was in his occupation
  and he carried on his grocery business from there. The
  appellate court on a detailed examination of the entries made
G in the "Rojmel" found that it was a crude and clumsy fabrication
  made for the purpose of the suit.

         17. Thus, in addition to its own finding on the question of
  subletting, the appellate court, on a careful consideration of all
  the materials on record, affirmed the finding recorded by the
H trial judge that the suit premises were not used by the appellant-
  V. SUMATIBEN MAGANLAL MANANI (DEAD) BY L.R. v.                963
  UTIAMCHAND KASHIPRASAD SHAH [AFTAB ALAM, J.]

 :enant for the purpose for which .it was let for a continuous          A
 oeriod of more than six months immediately preceding the date
 of the suit. It, accordingly, confirmed the decree of eviction
 passed by the trial court.                 ·

      18. Against the order passed by the appellate court               B
 defendant no.1 filed a revision before the High Court and the
 High Court, we are sorry to say, taking a rather perfunctory view
 of the matter interfered with and set aside the findings of fact
 arrived at by the appellate court in a very well reasoned
 judgment. On the issue of non-user of the suit premises, the           c
 High Court made the following observations:

      " .... It appears that the Trial Court as well as the Appellate
      Bench of the Small Causes Court have taken the pieces
      of the fact which are segregated and placed them in the
      juxtaposition, and from that the Appellate Bench inferred         D
      and presumed that the suit shop was closed for continuous
      period of six months prior to the filing of the suit; and this
      is the error of law apparent on the face of the record, and
      it goes to the root of the cause. It is a celebrated principle
      of law that the word "continuous" applied in Section              E
      13(1)(k) of the Bombay Rent Act clearly denotes that the
       premises must not have been opened for a day even, and
      what is found from the evidence is that the day on which
      the Commissioner visited the suit shop was found closed.
      The photographs taken by the photographer on a stray day          F
       shows that the suit shop was found closed and the oral
      evidence of the plaintiff was believed."

       19. In our view, the criticism by the High Court of the
  appellate court judgment is unwarranted. The appellate court          G
  did not arrive at its finding on a juxtaposition of segregated
  pieces of fact but it took into consideration the overall picture
  emerging from all the material facts and circumstances relating
  to the case. The appellate court expressly said that the two
. sets of photographswould only show that the shop was closed
                                                                        H
    964        SUPREME COURT REPORTS                [2011] 8 S.C.R.


A on the dates the pictures were taken and those pictures alone
  were not sufficient to prove non-user of the suit premises over
  a period of six months and they could, at best, be used as
  corroborative evidence. It, however, took into consideration the
  circumstance that apart from the suit premises defendant No.1
B had set up another shop called "Mahavir Provision Stores" at
  Sardar Patel Colony and yet another shop in Chandlodia area.
  It also took into consideration that when the Court
  Commissioner visited the suit shop on July 23, 1977 it was
  found closed. What is of greater significance in that regard,
c however, is that defendant no.1 gave a false explanation for not
  opening the shop, stating that it was not opened due to the
  death of his maternal uncle even though the other shop at
  Sardar Patel Colony was not only open but he was also
  personally present there on that date. The court also took into
  consideration the false "Rojmel" filed by defendant No.1 in
D support of the plea that he continued to run the grocery
  business at the suit premises through an employee. The court
  also noticed that another Court Commissioner had gone to the
  suit premises on September 22, 1981. He did not find in the
  shop any grocery articles but found there articles belonging to
E defendant no.2 who carried on his milk business from the
  adjoining shop. Besides all this, the appellate court had taken
  into consideration the electricity bills that showed that there was
  no consumptio.n of electricity over a period of six months
  immediately preceding the filing of the suit.
F
       20. As regards the electricity bills, the High Court had to
  make the following comments:

          "Defendant No.1 has offered his explanation for this that
          he being a Jain, before the sun set, he closes his shop.
G         The defendant No.1 has also produced electric bills of six
          months prior to the six months prior to the date of the filing
          of the suit. These bills have not been considered by any
          of the courts below properly. In those six months bills, which
          the defendant No.1 has produced, the charges of the
H
 V. SUMATIBEN MAGANLAL MANANI (DEAD) BY L.R. v. 965
 UTTAMCHAND KASH IPRASAD SHAH [AFTAB ALAM, J.]

    electricity are minimum and there is no consumption. On        A
    the contrary, from this explanation of the defendant No.1
    that he is not using the electricity ...... ".

     21. Here again, the High Court failed to appreciate all the
material facts and circumstances. The High Court thought that
                                                                    8
the electricity bills showing no consumption of electricity for the
period of six months immediately preceding the filing of the suit
were of no consequence because the bills for even the period
prior to the period of six months preceding the suit showed no
consumption of electricity. The High Court overlooked the fact C
that even though in terms of Section 13(1 )(k) of the Bombay
Rent Act, the plaintiff was required to prove non-user of the
shop premises for a period of six months immediately
preceding the filing of the suit, as a matter of fact, the case of
the plaintiff was that defendant No.1 was not using the shop
and keeping it closed for a much longer period starting from D
or about June, 1976. Thus, the bills produced by defendant no.1
showing no consumption of electricity in fact supported the
case of the plaintiff. The High Court also overlooked th~t later
on in the year 1979 defendant no.1 had got the electricity
connection to the suit shop restored and thereafter the E
electricity bills were showing normal consumption of electricity.
The High Court also overlooked that defendant no.1 had
resorted to many falsehoods in his attempt to wriggle out of
facts and circumstances established by the plaintiffs evidence.
                                                                   F
    22. In the same way on the issue of subletting the High
Court was dismissive of the finding of the appellate court
observing as follows:-

    "On scrutinizing the record, it is clearly found that reliance
    has been placed on the testimony of the plaintiffs power G
    of attorney holder and panchnama prepared by the Court
    Commissioner. What is found by the Court Commissioner
    is only some milk cans in the suit premises. Some of the
    milk cans carried the name of defendant No.2 and also
    some sweet boxes. From this mere fact, a very serious H
    966        SUPREME COURT REPORTS                [2011] 8 S.C.R.


          presumption of the exclusive possession of the defendant
          No.2 has been drawn by both the courts below. The finding
          of the excl1,1sive possession must be based on evidence
          and that facrum of possession must be proved. From this
          only, no prudent man can infer the presence of a third
8         party."

         23. We are unable to subscribe to the view taken by the
    High Court. On the basis of the materials available on record,
    as discussed in detail in the judgment of the appellate court, it
    was perfectly justified in arriving at the finding of subletting
C   against defendant no.1. On a careful consideration of the
    matter, we find that the High Court, in exercise of its revisional
    jurisdiction, committed a mistake in interfering with and setting
    aside the findings of fact properly arrived at by the courts below.
    The judgment and order passed by the High Court is
D   unsustainable by any reckoning. We, accordingly, set aside the
    judgment of the High Court and restore the decree passed by
    the trial court as affirmed by the appellate court.

         24. In the result, the appeal is allowed with costs
E   throughout.

    8.8.8.                                           Appeal allowed.