It is, thus, clear that the extra judicial confession of Sunil Rai could not be fastened upon the other two appellants for holding them guilty of murder and the High Court was quite wrong in using the confessional statement of Sunil Rai as a circumstance against the other two appellants. 38. Recovery of the bloodstained jacket of Sunil Rai, the third circumstance obviously does not relate to appellant nos.2 and 3 in any 18 manner. Equally, the theft of the money and clothes of Sunil Rai would be no motive for the other two accused to assault Dile Ram, much less to kill him. 39. Thus, seen for any angle the conviction of the appellants cannot be sustained. The judgments and orders of the High Court and the trial court are completely unsustainable. The two judgments are set aside. The appellants are acquitted of the charges and are directed to be released forthwith unless required in connection with any other case.

                                                                              REPORTABLE


                        IN THE SUPREME COURT OF INDIA


                     CRIMINAL APPELLATE JURISDICTION


                CRIMINAL APPEAL NOS. 1254-1255   OF 2011

               (Arising out of S.L.P. (Crl.) Nos.7110-7111 of 2010)




Sunil Rai @ Paua & Ors.                                                     .......Appellants


                                              Versus


Union Territory, Chandigarh                                                 .......Respondent





                                        J U D G M E N T


AFTAB ALAM, J.





1.      Leave granted.


2.      The three appellants are serving life sentences for committing murder


of one Dile Ram. They were never on bail and have, thus, completed over


ten years of incarceration. We, therefore, intended to grant leave in the case


and release the appellants on bail. But, the counsel for the respondent stated


that   once   released   on   bail   it   will   be   almost   impossible   to   get   hold   of   the


appellants.   We,   accordingly,   proceeded   to   hear   the   case   on   merits   at   the


stage of special leave itself and at the conclusion of hearing we are dismayed


                                                 2



to   find   that   the   appellants   were   convicted   and   sentenced   on   completely


insufficient evidence.


3.      The   appellants   are   migrant   workers   who   came   to   Chandigarh   from


different parts of the country in search of livelihood and were trying to eke


out a living by working as rickshaw pullers. Appellant no.1, Sunil Rai alias


Paua (accused no.1) had his money and clothes stolen by someone breaking


open the lock of the box under the passenger seat of the rickshaw and the


quarrel that took place, as a result of it, is said to be at the root of the alleged


offence.


4.      According   to   the   prosecution   case,   on   March   29,   2001   at   about


8:30 p.m. Arun Kumar (PW-14), Shailendra Kumar Pandey (PW-9) and one


Jaspreet   Singh   alias   Chikna   were   present   near   the   GPO,   Sector   17,


Chandigarh.   Appellant   no.2,  Sher  Bahadur   alias  Sheru   (accused   no.2)  was


also   present   there.   At   that   time   Sunil   Rai   and   appellant   no.3,   Ram   Lal


(accused no.3) came there. Sunil Rai was agitated as his money and clothes


were   stolen.   He   accused   Sher   Bahadur   of   committing   the   theft   and   an


altercation   took   place   between   them.   Sher   Bahadur   told   Sunil   Rai   that   he


had   not   stolen   his   money   or   the   other   articles   and   it   might   have   been   the


work   of   Dile   Ram.   He   also   told   Sunil   Rai   that   he   would   make   Dile   Ram


return his money and clothes. It was at this stage that Dile Ram also arrived


                                               3



at the scene coming from the side of Jagat Cinema. Sunil Rai caught hold of


Dile   Ram   by   his   neck   and   asked   him   to   return   his   money   and   clothes


otherwise   he   would   kill   him.  A   scuffle   took   place   between   Sunil   Rai   and


Dile Ram but the latter got himself freed and ran away from there. The three


accused went after him yelling and shouting that they would not spare him.


12   hours   later,   at   about   8:30   in   the   morning   of   March   30,   2001,   an


unidentified person was found lying in a badly injured  condition at a spot


near the local bus stand on the rear side of Neelam Cinema,  situate at the


sector   17   market.   There   were   injuries   on   his   head   and   face.   At   the   spot


where he lay there was a pouch of liquor (Ex. P32), a piece of brick (Ex.


P1), a piece of stone (Ex. P2) and another piece of hard concrete. The blood


flowing from the injuries had stained the earth at the spot, a sample of which


was collected and produced in court as Ex. P3.


5.      The injured was sent to hospital where he died. He was later identified


as Dile Ram who, according to the prosecution, was last seen the previous


evening,   fleeing   away   with   the   appellants   in   pursuit   yelling   and   shouting


threats at him.


6.      The three accused were put on trial for the murder of Dile Ram before


the   Sessions   Judge,   Chandigarh,   who   by   judgment   dated   June   12,   2006


passed in Sessions Case no.02 of July 30, 2001 convicted all of them under


                                             4



section 302 read with section 34 of the Penal Code and by orders dated June


13 & 15, 2006, sentenced them to rigorous imprisonment for life and a fine


of Rs.5,000/- each with the direction that in default of payment of fine they


would undergo rigorous imprisonment for 1 year. The appellants went to the


High   Court   in   two   separate   appeals,   one   by   Sunil   Rai   (Criminal   Appeal


no.580-DB   of   2006)   and   the   other   by   the   other   two   appellants   (Criminal


Appeal no.523-DB of 2006). Both the appeals were heard together and were


dismissed   by   a   division   bench   of   the   High   Court   by   judgment   and   order


dated March 5, 2008. The matter is now before this Court in appeal by grant


of special leave.


7.     From the ante mortem injuries on the body of Dile Ram as coming to


light from the medical evidence and the objective findings at the spot where


the body was found lying, it is quite clear that his death was homicidal. But,


the question remains regarding the culpability of the three appellants.


8.     It may be stated at the outset that there is no ocular evidence of the


commission   of   the   offence   and   the   prosecution   case   is   based   entirely   on


circumstantial   evidence.   There   are   four   circumstances   relied   upon   by   the


prosecution and accepted by the trial court and the High Court to hold the


appellants guilty of the offence. These are as under:


                                                  5



       I.   The   deceased   was   last   seen   being   chased   by   the   appellants


       yelling   at   him   and   shouting   that   they   would   not   spare   him


       (paragraphs 20 and 21 of the High Court judgment).


       II.   Sunil   Rai   made   an   extra   judicial   confession   before   PW-10,


       Chander Shekhar, President of the Rickshaw Pullers' Union telling


       him that he along with Sher Bahadur and Ram Lal hit Dile Ram


       with   brickbats   and   stones   at   about   9:00pm   in   the   night   between


       March   29   and   30,   2001,   causing   injuries   to   him   that   led   to   his


       death (paragraphs 22, 23 and 24 of the High Court judgment).


       III. The recovery of the blood-stained jacket (Ex. P8) of Sunil Rai,


       appellant no.1 from under the seat of the rickshaw on the basis of


       the disclosure statement (Ex. PU) made by him and that was seized


       under   seizure   memo   (Ex.   PV)   (paragraph   27   of   the   High   Court


       judgment).


       IV.  There  was  motive  for  the  accused  to  beat   and  even  kill   Dile


       Ram (paragraph 25 of the High Court judgment).


9.         Let   us   now   examine   the   evidences   in   support   of   each   of   the   four


circumstances enumerated above.


10.    On the issue of last seen, the prosecution examined Shailendra Kumar


Pandey as PW-9, Arun Kumar as PW-14 and Harish Kumar Bansal as PW-


                                                            6



15. Though Jaspreet Singh had also been cited earlier as one of the witnesses


on this point, he was not examined before the Court.


11.       PW-9,   in   course   of   his   examination-in-chief   stated   that   as   he   (Dile


Ram) was able to free himself from the hold of Sunil Rai:


          "Dile   Ram   ran   towards  Jagat   Theatre.   Pauya   and   Sheru   and

          Ram Lal ran after Dile Ram."

         

In cross examination he stated as follows:


          "Dile Ram went towards  Neelam Theatre  whereas Sheru and

          Pauya went towards Jagat theatre."


In reply to a question by the court, he said:


          "Chikna and Arun ran towards Jagat theatre. Pauya, Sheru and

          Ram Lal ran after the deceased towards Neelam theatre."


                                                                               (emphasis added)


12.       It needs to be recalled here that the spot where Dile Ram was found


next morning lying in an injured condition, was near the local bus stand, on


the rear side of Neelam Cinema. It has also come on record that the place


where   the   quarrel   took   place   between   the   accused   and   the   Dile   Ram   and


from where Dile Ram ran away, allegedly being chased by them, is at a large


square and Neelam theatre and Jagat theatre are at its two opposite ends, at a


distance   of   about   1km   from   each   other.   Sub-Inspector,   Ramesh   Chand


Sharma, PW-17 in his deposition said:


                                             7



        "... It is correct that if one comes from Jagat Theatre and goes

        to   Neelam   Theatre   he   has   to   pass   police   post   of   Neelam

        Chowki. Subway of Neelam is at a distance of 50 yards from

        the   police   post.   Some   one   always   remains   at   police   post   of

        Neelam.   After   8/9p.m.   only   1/2   persons   remain   in   the   police

        post. It is wrong to say that 12 persons remain deputed at the

        police post...."




13.     Thus, the first statement of PW-9 suggests that the deceased and the


accused   had   gone   in   the   direction   completely   opposite   to   where   his   body


was found 12 hours later. His second statement is that the deceased and the


accused  had  gone in opposite directions.  His  third statement,  in answer to


the court question, is of course that the deceased and the accused had gone in


the direction of Neelam Cinema. It is also to be noted that in his first two


statements he only mentions the names of accused nos.1 and 2, that is, Sunil


Rai and Sher Bahadur but does not name Ram Lal whom he mentions only


in his third statement in reply to the question by the court.


14.     The High Court has tried to explain the vacillating statements of PW-


9 by observing as follows:


        "It appears that Shailender Kumar Pandey, PW9, inadvertently

        made  a statement  that Dile Ram (deceased) ran towards Jagat

        Cinema,   instead   of   Neelam   Cinema   and   the   accused   chased

        him.   Such   a   minor   discrepancy,   cannot   be   given   any   weight,

        since a period of more than one year, and four months, from the

        date   of   altercation,   referred   to   above,   had   lapsed   when

        Shailender   Kumar   Pandey   PW9   appeared   in   the   court   as   a

        witness."


                                                   8



15.     To   our   mind   the   vacillations   in   the   deposition   of   PW-9   cannot   be


brushed aside as "minor discrepancy" especially when it is to form the basis


for life sentences to three persons.


16.     With all the inconsistencies, on the issue of last seen PW-9 happens to


be the best prosecution witness and the position becomes far worse when we


come to the other two witnesses. PW-14 was first examined on January 14,


2003. In course of his examination-in-chief, he stated as follows:


        "... all of a sudden Diley Ram freed himself from the clutches

        of Pauya and ran towards Neelam Cinema located in sector 17.

        All the three accused i.e. Pauya alias Sunil Rai, Sheru and Ram

        Lal also chased Diley Ram and as they were chasing they said

        they will kill him...."


17.     His cross examination did not take place on that date but it was done


later on April 8, 2003. In cross examination he stated as follows:


        "... The deceased was under the influence of liquor on the day

        of   occurrence   and   some   others   had   also   taken   liquor.   It   is

        correct   that  Dilay   Ram  was  insisting   for  more   liquor  whereas

        the others were saying that they will not consume liquor. Dilay

        Ram was demanding money for buying more liquor. Then they

        all   left   that   place.  Dilay   Ram   left   towards   Neelam   theatre

        and   the   accused   present   in   the   court   went   towards   Jagat

        theatre...."

                                                                                  (emphasis added)


18.         After  his cross examination,  the prosecution declared  him `hostile'


and   filed   a   petition   seeking   permission   to   cross   examine   him.   The   court


allowed the petition by order dated July 11, 2003 and granted permission to


                                                9



the prosecution to cross examine PW-14, whereupon his cross examination


by the prosecution took place on September 18, 2003. In this round he again


went back to his earlier statement and stated as follows:


        "... Dilay Ram ran towards Neelam Theatre and all the accused

        present in the court today ran after him...


        ...   I   say   that   deceased   ran   towards   Neelam   theatre   and   the

        accused followed him. It is correct that earlier I had mentioned

        in my statement regarding Jagat Theatre."


19.     The only explanation for these contrary statements appears to be that


each time during the gap between his depositions in court he came under the


influence of the one or the other side and made the statements to please the


respective sides. To us, he is not a trustworthy witness and we are unable to


place any reliance on his testimony.


20.     PW-15 did not at all support the prosecution case on the point of last


seen   and   he   did   not   even   identify   the   accused   present   in   court.   He   was


declared   hostile   by   the   prosecution.   There   is   one   thing,   however,   quite


significant   about   PW-15.   In   cross   examination   by   the   defence,   it   was


suggested that he was a tout and a stock witness for the police. In reply to


the suggestion, he stated as under:


        "... It is wrong to say that I am a police tout. It is correct that I

        have been shown as a witness in case FIR.52 dt.12.8.2K under

        NDPS   Act.   It   is   correct   that   I   also   appeared   as   a   prosecution

        witness   registered   under   NDPS   Act   under   FIR   No.228

        dt.15.5.2000.   It   is   correct   that   both   these   cases   were


                                               10



        investigated   by   S.I.   Ramesh   Chand.   It   is   correct   that   the   spot

        where the injured was running does not have any light point. I

        have not seen any person hitting the injured."


21.     Ramesh Chand Sharma, S.I. was the investigating officer of the case


before the investigation was taken over by DSP Arjun Singh Jaggi, PW-20.


Ramesh Chand Sharma was examined in the case as PW-17.


22.     On a careful consideration of the evidences of PWs 9, 14 and 15, we


are   unable   to   see   how   the   accused   can   be   said   to   be   connected   with   the


commission  of  the  offence  on  the   basis  of the  quarrel   that  is  said   to  have


taken place in the evening of March 29, 2001 between Sunil Rai and Dile


Ram. On the basis of the depositions of PWs 9 and 14 what can be said to


have been established is only that while they were all present near the GPO,


Sector   17,   a   quarrel   and   a   scuffle   had   taken   place   between   Sunil   Rai   and


Dile   Ram   whom   he   accused   of   stealing   his   money   and   clothes.   But   the


further story that when Dile Ram freed himself from the grip of Sunil Rai


and ran away from there to-wards Neelam Cinema he was pursued by all the


accused   who   were   shouting   that   they   would   not   spare   him   is   completely


unacceptable on the basis of their evidences. The failure to establish that part


of   the   story   leaves   a   wide   gap   in   the   prosecution   case   and   weakens   it


considerably.


                                                11



23.       Coming now, to the extra judicial confession said to have been made


by Sunil Rai before Chander Shekhar, President, Rickshaw Pullers' Union,


Sunil   Rai,   in   his   statement   under   section   313   of   the   Code   of   Criminal


Procedure,   of   course,   denied   having   made   any   confessional   statement.


Chander  Shekhar  was  examined as   PW-10.  In  the examination-in-chief  he


stated that on April 1, Sunil Kumar went to him at about 3 in the afternoon


and disclosed  that he along with some  others had committed  a blunder by


killing Dile Singh in course of a fight. He added that Sunil disclosed to him


that Jaspreet Singh and Sher Bahadur had also joined him in assaulting the


deceased.


24.       It is, thus, evident that in course of his examination-in-chief, he was


trying to implicate Jaspreet Singh (who was not an accused in the case) and


was trying to save Ram Lal who, according to the prosecution, was accused


no.3.


25.       At that stage he was declared hostile and on being cross examined by


the   prosecution,   he   said   that   Sunil   had   told   him   that   he   along   with   Sher


Bahadur and Ram Lal had caused injuries to Dile Ram by hitting him with


brickbats and stones.


26.       In   further   cross   examination   by   the   defence,   he   admitted   that   Sunil


was   not   known   to   him   personally   but   all   rickshaw   pullers   were   known   to


                                              12



him as he was the President of one of the three Unions of Rickshaw Pullers


of Chandigarh. In cross examination by the defence, he once again replaced


Ram Lal by Jaspreet Singh and stated that Sunil Rai had disclosed to him


that he along with Sher Bahadur and Jaspreet Singh had thrown stones at the


deceased   causing   injuries   to   him   leading   to   his   death.   Evidently,   PW-10


does not have much regard for truthfulness.


27.     Admittedly, the alleged confessional statement was oral and it was not


recorded   in   writing.   Admittedly,   Sunil   Rai   had   no   personal   acquaintance,


much   less   any   intimacy   with   PW-10.   An   extra   judicial   confessional


statement   made   orally   before   a   person   with   whom   the   maker   of   the


confession has no intimate relationship is not a very strong piece of evidence


and in any event it can only be used for corroboration (See  S. Arul Raja  v.


State of Tamil Nadu, (2010) 8 SCC 233 paragraphs 48-56). In this case with


PW- 10 appearing particularly anxious to implicate Jaspreet Singh in place


of   Ram   Lal,   it   further   loses   any   credibility.   Further,   in   the   confessional


statement allegedly made before PW-10 there is an inherent improbability.


The "disclosure" made by Sunil Rai before PW-10 did not indicate the place


where the assault on Dile Ram took place but it gave the time of the assault


as   9.00pm.   In   the   evidence   of   PW-17   it   has   come   that   Neelam   Police


Chowki is at a distance of 50 yards from the Neelam sub-way. The police


                                             13



post is naturally manned twenty four hours even though, according to PW-


17, after 8-9 pm only one or two persons remain on the post. The occurrence


took place on March 29. At the end of March, 9.00pm is not a very late hour


when an occurrence of this kind taking place near the local bus stand and the


parking place for rickshaws, behind a cinema theatre and at a distance of no


more than 50 yards should normally go completely unnoticed by any one,


including the policemen at the police post.


28.     For   the   aforesaid   reasons   we   find   it   impossible   to   rely   upon   the


evidence of PW-10 and, thus, goes the extra judicial oral confession by Sunil


Rai.


29.     This leaves us with the remaining two circumstances,  that is to say,


the recovery of the bloodstained jacket of Sunil Rai from under the seat of a


rickshaw   and   motive.   According   to   the   report   of   the   Central   Forensic


Science Laboratory (Ext. PA) the pair of pants, shirt, vest, and under-pants


taken off from the body of Dile Ram were stained with human blood of  'B'


group; the blood group of the sample of blood taken from the deceased was


also `B'. And the stains on the jacket recovered from under the seat of the


rickshaw were also of the same group of human blood. The report  further


indicated that though there were stains of human blood on the piece of brick


and the sample of earth collected from the spot where the body of Dile Ram


                                               14



was   found   it   was   not   possible   to   ascertain   the   blood   group.   The   piece   of


concrete and the stone piece had no blood stains.


30.     No effort was made to take the blood sample of Sunil Rai and it is not


known what is his blood group. Moreover, the jacket was recovered from a


rickshaw standing out in the open where it was accessible to anyone. In the


aforesaid circumstances, the recovery of the bloodstained jacket, on its own


is a circumstance too fragile to bear the burden of the appellants' conviction


for murder.


31.     Likewise, the fact that Sunil Rai had got his money and clothes stolen


and he believed that Dile Ram had committed the theft, normally, cannot be


said to make out sufficient motive for him to kill Dile Ram. In any event,


motive alone can hardly be a ground for conviction.


32.     On the materials on record, there may be some suspicion against the


accused   but   as   is   often   said   suspicion,   howsoever,   strong   cannot   take   the


place   of   proof.   We,   therefore,   find   and   hold   that   the   conviction   of   the


appellants   is   based   on   completely   insufficient   evidence   and   is   wholly


unsustainable.


33.     It is seen above that the quality of the prosecution evidence is too poor


to satisfactorily establish any of the first three circumstances for holding the


appellants   guilty   of   the   offence   of   murder.   As   none   of   the   three


                                               15



circumstances were sufficiently proved, there is no question of taking them


as   links   forming   an   unbroken   chain   that   would   lead   to   the   only   possible


inference regarding the appellant's guilt. But before parting with the records


of the case, we must sadly observe that so far as appellant nos.2 and 3 are


concerned,  it's  a  case   of  no evidence  inasmuch as   apart  from  the  first  the


remaining three circumstances are not relatable to them at all.


34.     The   second   circumstance   in   the   case   as   noted   above   was   the   extra


judicial confession made by Sunil Rai, appellant no.1. It is seen above that


PW-10,  before whom the confession  was allegedly  made,  tried  his  best to


shield Ram Lal and to implicate in his place Jaspreet Singh. Nonetheless, the


High Court deemed fit to use the extra judicial confessional statement made


orally by Sunil Rai as substantive evidence not only against him but against


appellant nos.2 and 3 as well. In our view, the High Court was completely


wrong in using the alleged confessional statement made by Sunil Rai against


appellant   nos.2   and   3.   For   taking   into   consideration   the   confessional


statement of Sunil Rai against the other two appellants the High Court has


relied upon two decisions of this Court. One in  Ammini  v.  State of Kerala


(1998) 2 SCC  301 and the other  in  Prakash Dhawal  Khairnar  v.  State of


Maharashtra,   (2002)   2   SCC   35.   In   our   view,   both   the   decisions   have   no


application   to   the   facts   of   this   case.   In   both   cases   the   confessions   were


                                              16



neither   oral   nor   extra   judicial.   In   both   cases   confessional   statements   were


made before a Magistrate and were reduced to writing. In Prakash Dhawal


Khairnar, the Judicial Magistrate, first class, before whom the maker of the


confession   was   produced   not   only   gave   him   the   due   warning   but   also


allowed him 24 hours time to think over the matter. It was only after he was


produced the following day that the Magistrate recorded his statement under


section   164   of   the   Code   of   Criminal   Procedure.   In  Prakash   Dhawal


Khairnar, the confessional statement was not retracted either.


35.      In  Ammini,   the   facts   were   entirely   different   from   the   present.   The


accused   had   entered   into   a   conspiracy   in   pursuance   of   which   several


unsuccessful attempts were earlier made before the victims were eventually


killed. In the trial for the crime the accused were charged separately under


section   120-B,   apart   from   section   302   read   with   section   34   of   the   Penal


Code.   One   of   the   charges   being   under   section   120-B,   the   confessional


statement by one accused was used against the others on the basis of section


10 of the Indian Evidence Act. In the present case there was no allegation of


any conspiracy  and there was no charge under section 120-B of the Penal


Code.


36.      In  Prakash Dhawal Khairnar  too, one of the charges against the two


accused  being father and son was under section 120-B of the Penal Code.


                                              17



But the son, the maker of the confession was acquitted of the charge under


section   120-B   of  the   Penal  Code.   In  that   circumstance,   the   question   arose


whether the confessional statement of the son could be used against the other


co-accused,   his   father   for  maintaining   his   conviction   under  section   302  of


the   Penal   Code.   This   Court   pointed   out   that   the   conviction   of   the   father


under   section   302   of   the   Penal   Code   was   based   on   a   number   of


circumstantial   evidences   that   were   independently   established   and   the


confessional   statement   of   the   son   was   not   used   as   a   substantive   piece   of


evidence. In paragraph 20 of the judgment, this Court observed as follows:


        "20.   In   this   case,   the   High   Court   has   not   relied   upon   the

        confessional   statement   as   a   substantive   piece   of   evidence   to

        convict Accused 1. It has been used for lending assurance to the

        proved   circumstances.   The   High   Court   held   that   the   proved

        circumstances   would   not   involve   Accused   2   for   the   offence

        punishable   under   Section   302   IPC   and   the   circumstantial

        evidence   does   not   establish   that   there   was   any   common

        intention   or   conspiracy   between   the   father   and   the   son   to

        commit the offence...."


37.     It is, thus, clear that the extra judicial confession of Sunil Rai could


not   be   fastened   upon   the   other   two   appellants   for   holding   them   guilty   of


murder   and   the   High   Court   was   quite   wrong   in   using   the   confessional


statement of Sunil Rai as a circumstance against the other two appellants.


38.     Recovery   of   the   bloodstained   jacket   of   Sunil   Rai,   the   third


circumstance   obviously   does   not   relate   to   appellant   nos.2   and   3   in   any


                                              18



manner. Equally, the theft of the money and clothes of Sunil Rai would be


no motive for the other two accused to assault Dile Ram, much less to kill


him.


39.     Thus,   seen   for   any   angle   the   conviction   of  the   appellants   cannot   be


sustained. The judgments and orders of the High Court and the trial court are


completely unsustainable. The two judgments are set aside. The appellants


are acquitted of the charges and are directed to be released forthwith unless


required in connection with any other case.


40.     In the result the appeals are allowed.





                                                              .........................................J

                                                                (AFTAB ALAM)





                                                              .........................................J

                                                                (R.M. LODHA)


New Delhi,

July 4, 2011.

how to assess the evidence - Here again, the High Court failed to appreciate all the material facts and circumstances. 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 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 18 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 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 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 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. 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 plaintiff's power 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 presumption of the exclusive possession of the defendant No.2 has been drawn by both the courts below. The finding of the exclusive possession must be based on evidence and that factum of possession must be proved. From this only, no prudent man can infer the presence of a third party." 19 23. We are unable to subscribe to the view taken by the High Court

                                                                                REPORTABLE


                       THE SUPREME COURT OF INDIA

                       CIVIL APPELLATE JURISDICTION




                        CIVIL APPEAL NO.6685 OF 1999





V. Sumatiben Maganlal Manani (dead) by L.R.                                          ... Appellant




                                           Versus




Uttamchand Kashiprasad Shah and Anr.                                          ...Respondents





                                    J U D G M E N T





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   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


                                               2



Small   Causes   Court   and   dismissed   the   appellant's   application   claiming


eviction of defendant No.1 from the suit premises, besides arrears of rent.


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   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 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.  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 the property, being the


middle garage, bearing M.C. No.145-6-1, and F.P. No.11-11-A-6-1 was let


                                                 3



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   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,


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


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 plaintiff's notice on August 23, 1977.   In the reply, he did


not expressly controvert the allegation that the suit premises were not in use


since one year before the date of the notice.


4.      Later on, after the service of summons of the suit, defendant 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


                                               4



denied that the 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 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 carried 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   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 plaintiff's


shop   from   him.   After   being   inducted   in   the   suit   shop,   the   sub-tenant   was


using it for carrying 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 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


                                                5



dragged in the suit unnecessarily only with a view to harass him. Defendant


no.1   filed   additional   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 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?


        "4)     Whether the defendant keeps the suit premises closed and

        does   not   use   for   more   than   six   months   prior   to   the   suit   as

        alleged?


        "(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 negative.  On issue


no.(4)(A)   he   held   that   though   there   appeared   some   substance   in   the


plaintiff's   case   that   the   suit   premises   were   in   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   of   subletting


could not be a ground for eviction.    On issue No.(4), however, he held in


                                               6



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 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 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 raised on behalf of the plaintiff at a later


stage   through   an   amendment   in   the   plaint.   It   referred   to   the   evidence   of


Maganbhai Rambhai Manani, the husband and power of attorney holder of


the   plaintiff   who   was   examined   at   Exh.   101   and   who   fully   supported   the


plaintiff's 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,   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 plaintiff's case of subletting of the shop


by   defendant   no.1   to   defendant   no.2   was   greatly   supported   by   the   report


                                             7



prepared   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   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   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


Maganbhai   Manani   and   disrupted   the   inspection   being   held   by   the   Court


Commissioner. The inspection, thus, came to an abrupt end.


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   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


                                                8



maintained though the sentence was reduced to imprisonment till the rising


of the court. Against the order 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 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 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  plaintiff's  witness Maganbhai  Rambhai


Manani   that   the   sweet   boxes   found   at   the   suit   premises   by   the   Court


Commissioner in course of his visit there 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,


filed   another   suit   being   H.R.P.   Suit   No.70/83   in   which   a   Court


Commissioner was appointed who visited the suit premises on February 24,


1983.     The   Court   Commissioner   conveniently   found   at   the   suit   premises


                                                 9



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 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 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, 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 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.  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   that

        defendant   No.2   is   found   in   use   and   occupation   of   the   suit


                                                10



        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   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 M/s. Bharat

        Sales Limited  v.  Life Insurance Corporation of India, reported

        in A.I.R. 1998, Supreme Court, page-1240.   In this decision, it

        has been observed 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  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   possession   thereof.     This   arrangement

        comes   about   mutual   agreement   or   understanding   between   the

        tenant and person to whom 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 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   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 his grocery business under the name and


                                             11



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.


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   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


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


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


                                                12



of the shop over a period of six months and, at best, they could be used as a


piece of corroborative evidence.


13.     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.   His   witness


Maheshkumar   Trivedi,   at   Exh.   404,   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.   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,   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   has   observed,   and   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.


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 10.1.1977, 23.2.1977, 25.3.1977, 2.5.1977,


                                            13



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   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 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 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 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   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


                                               14



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 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   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.


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 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 trial judge that the suit premises were


not used by the appellant-tenant for the purpose for which it was let for a


                                                   15



continuous period 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 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   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 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  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 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 did not arrive at its finding on


                                                16



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


photographs   would   only   show   that   the   shop   was   closed   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 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, 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   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


                                               17



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 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.


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.     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  electricity   are   minimum   and

        there is no consumption.  On 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 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 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


                                               18



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 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   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


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.


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   plaintiff's   power   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 presumption of the

        exclusive possession of the defendant No.2 has been drawn by

        both the courts below.  The finding of the exclusive possession

        must be based on evidence and that factum of possession must

        be   proved.     From   this   only,   no   prudent   man   can   infer   the

        presence of a third party."


                                              19





 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 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   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 throughout.





                                                                       ........................

......J.

                                                               (AFTAB ALAM)





                                                                       ........................

......J.

                                                               (R.M. LODHA)

New Delhi;

July 4, 2011.