1. This is a landlord, Revision Application directed against the Judgment of the learned Assistant Judge, burst in Appeal No. 56 of 1976 whereby he reversed the decree of eviction Passed by the learned Judge of the Court of Small Causes, Surat. in Suit No. M of 1975. The brief facts leading to the Revision Application may be stated as under:-
2. The petitioner is the landlord of a shop situate in Nondh No. 2227 of Ward No. 7 in Surat. He let it out to the respondent under a rent-note dated 1st Oct., 1963. Exhibit 25. According to the terms of the said rent-note the tenant agreed to pay Rs. 15/- per month as rent for the shop leased to him. Condition No. 5 of the rent-note which is in Gujarati language reads as under:-
'5.bhade rakheli milakat harnoe hamars potana DarJina: dhandana upayosa mate bhade rakhi chhe Teno bijo koi upayoga hamare karavo ya kanwa dove naho, teimaje, beeja koi sakhsane bhade ya peta bhade vaparwa apavo nahi Temaja hamara bhadut tarikena ke beeja koi hakko goodwilthi ke beeia kol rite koipan sakhsane transfer ke assisg karava nahi.'
There is dispute that the tenant was Paying the rent at the rate of Rs. 15/-per month after he entered upon the Premises in question till he was served with a notice, Exhibit 33 dated 16th Feb., 1970 terminating his tenancy and calling upon him to vacate and deliver possession of the premises on the ground that he had fallen in arrears of rent; that he had sublet the demised premises to original defendant No. 2 Ahmad Suleman and that he had committed a breach of the terms of tenancy by changing the user of the premises from a tailoring shop. However, that notice was not acted upon. Another notice. Exhibit 29 dated 1st June. 1971, was served on the tenant for eviction on the ground that he had failed to pav the rent from 1st March, 1970 to 30th May, 1971: that he had sublet the shop to original defendant No. 2, that he had given the shop on licence by permitting the proprietor of Moti Theatres to put an advertisement board above his roof and that he had changed the user of the premises in breach of Condition No. 5 of the rent-note Exhibit 25. This notice was admitted received by the tenant on 3rd June, 1971. The tenant gave a reply to the said notice, Exhibit 34 dated 1st Ju1Y, 1971,and tendered it to the landlord's lawyer. Along with the reply he tendered the amount of rent as claimed in the notice. Exhibit 29 to the landlord's lawyers but. the latter refused to accept the rent an the ground that he had so Instructions in that behalf as is clear from the endorsement in the margin Of Exhibit 34 dated 3rd July, 1971. Thereupon the tenant sent the amount of rent which was claimed in the notice Exhibit 29 by Money Order, Exhibit 39 dated 4th July. 1971. It is common ground that this Money Order was refused by the landlord. The landlord then instituted the suit in question on 25th Oct., 1971. The learned trial Judge decreed the suit on the ground that the tenant had sublet the premises to original defendant No. 2 and that by permitting the proprietor of Moti Theatre to place a Board above the roof, he had tendered himself liable to eviction under S. 13(1)(ee) of the Bombay Rents, Hotel and Lodging House Rates Control Act (hereinafter called 'the Act'). He also came to the conclusion. that by subletting the premises. the tenant was profiteering. The learned trial judge also took the view that the tenant was liable to be evicted as he had committed a breach of the terms of tenancy by using the premises for the purpose of cycle repairs in breach of condition No. 5 of the rent note Exhibit 25. In this view that the learned trial Judge took, he decreed the suit and directed the tenant to deliver possession of the premises on or before 15th April, 1976. The tenant feeling aggrieved by the decree and order of the learned trial Judge preferred an appeal which was heard and decided by the learned Assistant Judge, Surat.
3. The learned Assistant Judge came to the conclusion that a casual display of an advertisement board on the roof of the premises cannot constitute Darting of possession of the portion of the roof either by lease or licence within the meaning of S. 13(1)(ee) of the Act. According to him the evidence clearly disclosed that this was a stray or casual display and not a continuous or regular one so as to attract the provisions of S. 13(1)(ee) of the Act. He also found that no payment was being made to the tenant by the proprietor of Moti Theatres but at the most the tenant was allowed to, see a show in the cinema house gratis. presumably on a complimentary pass. This according to the learned appellate Judge did not constitute monetary consideration, within the meaning of S. 13(1)(ee) of the Act and, therefore the decree in Passed on that ground could not be sustained. So far as subletting is concerned, the learned appellate Judge came to the conclusion that the shoo was being used for the purpose, of cycle repairs since almost the inception of the tenancy and that original defendant No. 2 Ahmad Suleman was in charge of the shop for ,about two years in his capacity. as the employee of the tenant-on payment of Rs. 4/- Per day as deposed by the tenant as well as Ahmad Suleman and, therefore., there was no subletting of the demised premises without the meaning of S. 13(1)(ee) of the Act. In this view that he took he reversed the finding recorded by the learned trial Judge on the question of subletting. So far as the change of user is concerned, the learned appellate Judge came to the conclusion that even though no specific issue on this point appears to have been raised by the learned trial Judge. The parties have adduced evidence and, therefore, the point can be answered on the evidence on record. He found on scrutiny of the evidence that even though Condition No. 5 of the rent-note prohibits the use of the shoo for any business other than the one mentioned namely, running a tailoring shop, in fact from the very inception the shop was being used as a cycle repair shoo. to the knowledge of the landlord and yet no action whatsoever was taken by the landlord till he issued the notice of 16th Feb., 1970 to which the tenant replied by Exhibit 33 on 7th Mar., .1970. Even thereafter the landlord did not file any suit but instead issued another notice, Exhibit 29 dated lst June, 1971 which was received by the tenant on 3rd June, 1971 to which the tenant replied by Exhibit34 dated 1st July. 1971. He. therefore, took ,the view that the landlord had tolerated the change of user for almost seven years .and had continued to accept the rent from the tenant and, therefore waiver or acquiescence on the part of the landlord can clearly be inferred. In this view that he took, he came to the conclusion that no decree for eviction could be passed against the tenant on the ground that he had committed a breach of Condition No. 5 of the rent-note. Exhibit 25. An additional contention was urged before the lower appellate Court namely. That the tenant had failed to deposit or tender in Court regularly the rent in respect of the demised premises after the filing of the appeal and was, therefore, liable to be evicted under S. 13(1)(b) of the Act. This contention was repelled by the learned appellate Judge on the ground that the tenant was always ready and willing to pay the standard rent in respect of the demised premises but the landlord was, deliberately refusing to accept rent as is: clear from the fact that his advocate refused to accept the rent when it was tendered to him on 3rd July, 1971 vide the endorsement on Exhibit 34, and the landlord himself refused to accept the Money Order sent on the very next day, that is, on 4th July, 1971 as is evidenced by Exhibit 39. The learned appellate Judge. Therefore, came to the conclusion that the landlord was not entitled to institute a suit on the ground of non-payment of standard rent because the tenant had shown his readiness and willingness to pay the same and had in fact tendered the same to the landlord's advocate and thereafter to the landlord by Money order. He, therefore, came to the conclusion that the omission on the part of the tenant to regularly deposit the rent in the appellate Court would not entitle the landlord to a decree under S. 13(1)(b) of the Act. In this view that the learned appellate Judge took he allowed the tenant's appeal and set aside the decree for eviction. He, however, confirmed the finding regarding standard rent. The landlord feeling aggrieved by the reversion of the decree for eviction has filed the present Revision Application.
4. Miss V. P. Shah the learned advocate for the landlord, raised the very same points before me and took me through the relevant evidence as well as the documents on record for the purpose of 'persuading me to hold that the view taken by the learned Assistant Judge was thoroughly erroneous. The questions whether the tenant bad sublet the premises to original defendant No. 2 or had committed a breach of the terms of the tenancy by changing the user thereof may be convenient taken up together. If we peruse the plaint there is no averment as to from what dale the tenant had started to use the shop in question for cycle repairs. In the written statement filed by the tenant it is contended that he is using the premises for cycle repairs almost since the inception of the lease. In the evidence before the court, the landlord abdul kader, exhibited 24,deposed that the tenancy used the suit shop for tailoring purposes for some time and thereafter he started the cycle repair pair shop and also began to give cycles on hire. He then stated that the defendant started the cycle business about six Months before the notice of action was served upon him. In other words, according to the landlord the tenant started Me cycle repair Work in the demised premises sometime in the lost quarter of 1970. It is also the case of the landlord that this cycle repair shot) was being run by the original defendant No. 2 Ahmed Suleman. According to the landlord the tenant had parted with the possession of the shop to Ahmad Suleman and was charging higher rent from the latter and was thus profiteering. He, however, had to concede that he had never seen Ahmad Suleman paying rent to the tenant at any point of time one cannot expect a landlord to be a witness to the sub-tenant paying rent to the tenant but it would be a matter of influence to be drown from the facts and circumstances of each case. In the instant ease we And that according to the landlord, defendant No. 2 Ahmad Suleman was carrying on the cycle repair business in the shop and he did that business for almost two years. If it is proved that the shop was in the possession of Ahmad Suleman, it would be a matter for the Court .to consider whether an inference of subjecting from that fact should be drawn. Now, the tenant has entered the witness box and has explained the circumstances under which Ahmad Suleman was found in the shop. He has deposed that he was carrying on grocery business at his residence and he had started cycle repair business in the demised premises with a view to engaging his son in business and had employed Ahmad, Suleman on Payment of Rs. 4/- per day as he was conversant with the work of cycle reparing. He has deposed that it was desire that his, son should learn the said work from Ahmad Suleman so that he may be able to carry on business in the shop on his own. . Ahmad Suleman has also been examined as a witness and he has stated in no uncertain terms that lie was employed by the tenant to work in the shop on the daily wage of. Rs. 4/-
In 1971 and 1972. The learned Assistant Judge has accepted this explanation and in my opinion, rightly. There can, therefore, be little doubt that the landlord has failed to Prove that the premises in question were sublet by the tenant to Ahmad Suleman. The evidence also shows that soon after the shop was taken an hire the tenant started cycle repair work in the shop to which the landlord never, objected. The evidence of Ahmed suleman shows that he worked in the shop for about two years Even prior to that cycle repair work was being done in the shop. The learned Assistant judge has found on facts that the shop was being used for cycle repair work for almost seven years. Even the landlord in his evidence states that sometime after the shop was let to the tenant, the tenant started using the shop for cycle repairs. This is a finding of fact which must be accepted and unless found to be perverse. I would not be justified in interfering with the some. There is evidence on record which the learned Assistant Judge has considered and it was not submitted before me by Miss Shah that the finding was perverse or against the weight of evidence, if that is so and if the Premises were being used for cycle repairs since almost the in ception of the tenancy, the conclusion reached by the learned Assistant Judge that the landlord had waived the infraction of Condition No. 5 and had acquiesced in the user of the premises for cycle repair work cannot be assailed.
5. It was next argued by Miss shah that the landlord is entitled to eviction under section 12(3)(b) of the Act as the tenant had failed to deposed the rent in the appeallate court regularly as required by that sub-section. In this behalf she invited my attention to the observation of the learned Assistant Judge who has undoubtedly stated that the tenant had committed default in depositing the rent regularly during the pendency of the appeal. On this statement made by the learned Assistant Judge, miss Shan vehemently argued Judge, Miss Shah vehemently argued that the tenant was not ready and willing to pay the standard rent fixed by the learned trial Judge since he did not desposed or tender the amount of the standard rent regularly during the pendency of the appeal and was, therefore, liable to be evicted under section 12(1) read with section 12(3)(b) of the Act. I am not impressed by this argument for the simple reason that after the service of the suit notice. Exhibit 29, on the tenant on the 3rd June, 1971 he tendered the amount of rent claimed by that notice to the landlord's advocate on 3rd July, 1971 within a period of one month as is clear from the endorsement on the reply Exhibit 34 dated 1st July, 1971. unfortunately, the landlord's advocate for want of instructions from the landlord refused to accept the amount tendered by the tenant and therefore, the tenant was constrained to send the amount by Money order came ton be refused by the landlord as is clear from exhibit 39. It, therefore, becomes obvious that within one month after the receipt of the notice .the tenant tendered the full amount of rent which was claimed by the landlord by his notice Exhibit 29 and, therefore , the tenant could never be said to be not ready and willing to pay the standard rent in respect of the premises occupied by him. Since the tenant had already tendered the amount of rent as claimed by the landlord within one month from the date of service of the notice, the landlord had no cause of action to institute a suit for eviction on the ground of non-payment of rent. If that be so, it is obvious that the landlord cannot claim possession on that ground. I am, therefore in agreement with the conclusion reached by the learned Assistant Judge so far as this contention is concerned.
6. That takes me to the last contention founded on section 13(1)(ee) of the Act. That section provides that the landlord shall be entitled to recover possession of any premises if the court is satisfied that the tenant has. After the commencement of the Bombay Rents, Hotal and lodging and Amendment) Act,1963, given the whole or any part of the premises on licence for monetary consideration to any person, with out the previous permission of the landlord. Miss Shah emphasized that even if a part of the premises is given on licence for monetary consideration to any person. Without the pervious permission the landlord would be entitled to eviction under the said sub-section. In the instant case the evidence shows that the tenant had permitted the proprietor of Moti Theatre to put up a boarding or advertisement board on the roof of the shop let to him for monetary consideration namely, the right to see any show exhibited in Moti Theatre gratis. If we turn to the photographys, Exhibits 26 and 27, we find that the advertisement board is rested on the roof-top occupying the air column above it. The physical condition of the shop shows that there is no construction above the roof and it is open to sky. The question which arises for consideration is whether the installation of an advertisement Board occupying the air column above the roof can amount to giving a part of the premises on licence merely because the board rests on the roof. Under the terms of rent-note Exhibit 25 what has been given on lease is the shop in which the tenant can carry on this avocation as a tailor. The tenant has no right to the air space above the roof. Therefore if a board is permitted to rest on the roof top occupying the air space above it, I do not think that it can be said that tenant has given on licence a part of the premises leased to him Therefore, assuming for the sake of argument that the tenant is allowed to see cinema shows exhibited in a Moti Theatre gratis and that tantamounts to receiving monetary consideration, I do not think that the landlord is entitled to eject him under section 13(1)(ee) of the Act as it cannot be said that the tenant has given any part of the premises let to him on licence to the owner of Moti Theatre. In that view that I take it is not necessary for me to go into the question whether the learned Assistant Judge was right in holding that a casual or stray use of the roof for the purpose of resting an advertisement board is not sufficient to order eviction under section 13(1)(ee) of the Act.
7. As none of the contentions urged before me by Miss Shah hold merit, this Revision Application fails and is dismissed. The rule is discharged with no order as to costs.
8. Revision dismissed.