http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

PETITIONER: PATEL VALMIK HIMATLAL AND OTHERS

       Vs.

RESPONDENT: PATEL MOHANLAL MULJIBHAI (DEAD) THROUGH L.RS.

DATE OF JUDGMENT:       26/08/1998

BENCH: A.S. ANAND, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      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 purposes  of the  present appeal by special leave we are concerned only with the ground of sub-letting.      The case  of the  appellant-plaintiff in the plaint was that the  tenant-defendants were  not authorised  to sublet, transfer or  assigns 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  Transport Company without consent of the landlord.  A public  declaration had been made through a newspaper regarding  the staring  of the  business of  Patel 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 not sub-letting  in favour  of Patel  Transport Company  and that in  fact the tenant 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 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  concurrent  findings  of  act recorded by  the trial  court and  the first appellate 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 counsel  appearing for the appellant. The respondent

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

depsite service has chosen to remain absent.      Section 29(2)  of the Bombay Rents Act as applicable to Gujarat amendment reads as follows :-      "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 pass such      order with  respect thereto  as  it      thinks fit."      The ambit  and scope  of the  said section  came up for consideration before  this Court  in Helper  Girdharbhai vs. Saiyed Mohmad  Mirasaheb Kadri  and others: (1987) 3 SCC 538 and after  referring to  a catena of authorities, Sabyasachi Mukharji, 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  rehearing both on questions of law and fact, unless the statute 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  according  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 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 jurisdiction ?      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 the power to re-hear 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 that  re-appreciation without in any way pointing out any error of law 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 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 meant 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 openly      and publicly  inviting particularly      the business  community  to  attend      the function.  If the  idea was  to      sublet the premises, a tenant would      hardly be expected to advertise the      fact in this manner."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

    The question  whether or  not  the  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 the first  appellate 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  landlord.  There  was  no  error committed by  the courts below which required any correction at the hands of the High Court in exercise of its revisional jurisdiction. The  judgment of  the High  Court,  under  the circumstances, cannot be sustained.      Consequently, this  appeal succeeds and is allowed. The judgment of  the High  Court is  set aside  and those of the trial court  and the  first appellate court are restored. No costs.