HINDUSTAN PETROLEUM CORPORATION LTD. vs MANILAL FULCHAND PARMAR (DECD.THRO' HEIRS)

C/CRA/1295/2002 CAV JUDGMENT DATED: 23/07/2026
Reserved On : 08/07/2026
Pronounced On : 23/07/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 1295 of 2002
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2015
In R/CIVIL REVISION APPLICATION NO. 1295 of 2002
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2016
In R/CIVIL REVISION APPLICATION NO. 1295 of 2002
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2018
In R/CIVIL REVISION APPLICATION NO. 1295 of 2002

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE MAULIK J.SHELAT

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Approved for Reporting Yes No
✓
==========================================================
HINDUSTAN PETROLEUM CORPORATION LTD. & ORS.
Versus
MANILAL FULCHAND PARMAR (DECD.THRO' HEIRS) & ORS.
==========================================================
Appearance:
ADVOCATE NOTICE SERVED for the Applicant(s) No. 2,4
MR K. M. PATEL, SENIOR COUNSEL with MR VICKY B MEHTA(5422) for
the Applicant(s) No. 3.1,3.2,3.3,3.4,3.5
MR.MANAN BHATT(6535) for the Applicant(s) No. 1
DELETED for the Opponent(s) No. 2.1
MR HD VASAVADA(974) for the Opponent(s) No. 1.3,1.4,1.5,1.6.1,1.7,2.5
MR HM JADEJA(2437) for the Opponent(s) No. 1.1,1.2,4
MR NK MAJMUDAR(430) for the Opponent(s) No.
2.2,2.3,2.4,3,4.1,4.2,4.3,5.1,5.2,5.3,5.4,5.5,6
MR UM SHASTRI(830) for the Opponent(s) No. 7
NOTICE SERVED for the Opponent(s) No. 8
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CORAM: HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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C/CRA/1295/2002 CAV JUDGMENT DATED: 23/07/2026
CAV JUDGMENT
1. The present Revision Application is filed under Section 29(2) of
the Gujarat Rents, Hotel and Lodging House Rates Control
Act, 1947 (hereinafter referred to as “the Act, 1947” ), against
the judgment and decree dated 20.12.2002 passed by the Joint
th
District Judge, 7 Fast Track Court at Junagadh, in Regular
Civil Appeal No. 64 of 1997, whereby it has dismissed the said
appeal filed by original defendant nos. 1, 2, 3 and 5, thereby
confirmed the judgment and eviction decree dated 31.03.1997,
passed by the Civil Judge (Junior Division), Keshod in Regular
Civil Suit No. 90 of 1985.
2. The petitioners herein are original defendant nos. 1, 2, 5, and
legal heirs of defendant No. 3, whereas respondent nos. 1 to 6
are original plaintiffs and/or their legal heirs; respondent No. 7
is original defendant No. 6, and respondent No. 8 is original
defendant No. 4. For the sake of convenience, hereinafter, the
parties will be referred to as per their original status in the suit.
SHORT FACTS:
3. The plaintiff happens to be the landlord-lessor of the suit
property, being immovable property, a plot admeasuring
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C/CRA/1295/2002 CAV JUDGMENT DATED: 23/07/2026
10,800 sq.ft. situated at Keshod. The plaintiff has executed a
lease deed in favour of defendant No. 1 on 31.07.1975 for a
period of 5 years, whereby defendant No. 1 became the lessee.
The aforesaid lease deed was registered on 14.08.1975. The
term of lease was expired on 31.12.1979.
3.1. It is not in dispute that as per Clause 3(a) of the lease deed, the
lessee shall be at liberty to license or sublet the premises or part
thereof without the consent of the lessor. The defendant No. 1
happens to be a petroleum company and to run its business at
rented premises (suit premises), it has appointed defendant No.
2 as its dealer vide its appointment letter dated 20.10.1978. The
defendant nos. 3 to 5 are its partners.
3.2. Undisputedly, defendant No. 2 was appointed as a dealer by
defendant No. 1 during the subsistence of the aforesaid lease. It
is not the case of the plaintiff (landlord) that after the expiry of
the lease, any fresh dealership agreement was either executed
by defendant No. 1 with defendant No. 2 or any other person.
3.3. As per the terms of the lease, i.e., Clause 2(c), upon a written
request by the lessee to the lessor, the lease could have been
renewed. Since there was no written request received by the
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C/CRA/1295/2002 CAV JUDGMENT DATED: 23/07/2026
plaintiff-lessor-landlord from the defendant No.1-lessee-tenant,
the plaintiff appears to have sent a legal notice on 11.02.1980,
requesting defendant No. 1 to vacate the suit premises. It
appears from the record that at that point of time, the plaintiff
and the officials of defendant No. 1 tried to negotiate the terms
of renewal of the lease, but it was not materialized; thus, the
lease was not renewed after 31.12.1979.
3.4. Since, the defendants have not vacated the suit premises, the
plaintiff, vide its statutory notice dated 01.01.1985, called upon
defendant No. 1 to pay the arrears of rent and vacate the suit
premises because, according to the plaintiff, defendant No. 1
had breached the lease terms by subletting the suit premises in
favour of defendant nos. 2 to 6. It requires to be noted here
that defendant No. 6 was neither licensee nor proved to have
been sub-tenant of defendant No. 1 or defendant nos. 2 to 5, as
the case may be. Nonetheless, it is the case of the plaintiff that
defendant No.6 is doing tyre repair work on the suit premises
as a sub-tenant of defendant nos. 1 to 5. Defendant No. 1, vide
its reply dated 13.03.1985, refuted the allegations of the
plaintiff made in its said statutory notice. Rather, it has been
mentioned that defendant No. 1 is always ready and willing to
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C/CRA/1295/2002 CAV JUDGMENT DATED: 23/07/2026
pay the rent as per the terms of the agreement and maintained
the stand that it is the plaintiff who does not want to renew the
lease.
3.5. Thus, in light of the aforesaid facts and circumstances, the
plaintiff approached the Rent Court by filing Regular Civil
Suit No. 90 of 1985 on 27.06.1985. The suit was filed on several
grounds, including arrears of rent, bona fide requirement of the
suit premises, and subletting. The defendants appeared and
filed their written statements respectively, except defendant No.
6, who neither appeared nor filed a written statement.
3.6. After framing several issues, the Trial Court, vide its judgment
and decree dated 31.03.1997, passed an eviction decree against
the defendants, having found that defendant No. 1 has sublet
the suit premises in favour of defendant Nos. 2 to 6. In view of
the provisions of Section 13(1)(e) & (ee) read with Section 15A
of the Act of 1947, according to the Trial Court, defendant No.
1 has breached the terms of the tenancy. Nonetheless, the Trial
Court did not believe the reasonable and bona fide requirement
of landlord. As far as the arrears of rent is concerned, such
issue was not pressed by the plaintiff-landlord.
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C/CRA/1295/2002 CAV JUDGMENT DATED: 23/07/2026
3.7. The original defendant nos. 1, 2, 3, and 5 preferred aforesaid
Regular Civil Appeal No. 64 of 1997 against the said judgment
and decree passed by the Trial Court. Whereas, the plaintiff
also filed cross-objections in the aforesaid appeal, because his
case of reasonable and bona fide requirement of the suit
premises was not believed by the Trial Court.
3.8. After hearing the parties, the Appellate Court has not believed
that defendant nos. 1 to 5 have sublet the suit premises in
favour of defendant No. 6 and also not entertained the cross-
objections filed by the plaintiff-landlord. The plaintiff has not
filed any revision against rejection of his cross-objections by
the Appellate Court. The Appellate Court as well as the Trial
Court both have held the defendant No.1 a statutory tenant
after expiry of the lease.
3.9. Yet, the Appellate Court has shown its agreement with the view
taken by the Trial Court so far as the subletting of the suit
premises by defendant No. 1 in favour of defendant nos. 2 to 5
is concerned. According to the Appellate Court, in view of the
provisions of Section 13(1)(e) & (ee) read with Section 15A of
the Act of 1947, defendant No. 1 could not have sublet or
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C/CRA/1295/2002 CAV JUDGMENT DATED: 23/07/2026
licensed the suit premises in favour of defendant nos. 2 to 5
without prior permission of the plaintiff-landlord. Accordingly,
it has confirmed the eviction decree passed by the Trial Court.
Hence, the present revision.
SUBMISSIONS OF THE PETITIONERS-DEFENDANTS:
4. Mr. K. M. Patel, learned Senior Counsel, assisted by Mr. Vicky
B. Mehta, learned Advocate, and Mr. Manan Bhatt, learned
Advocate appearing for the respective petitioners, in support of
this revision, have made the following submissions:
4.1. The Courts below have committed a serious error in law by
arriving at a conclusion that defendant No. 1 has
sublet/licensed the suit premises in favour of defendant nos. 2
to 5 by ignoring the terms of the lease deed on record. The
conclusions reached by the Courts below are not only perverse
but erroneous one, which may be corrected by this Court while
exercising its revisional jurisdiction. The Courts below have not
appreciated that as per Clause 3(a) of the lease, defendant No.
1, being the lessee, had a liberty to license or sublet the suit
premises without consent of the lessor. The plaintiff and
defendant No. 1 entered into a lease agreement, and during the
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C/CRA/1295/2002 CAV JUDGMENT DATED: 23/07/2026
period of the lease, defendant No. 1 has appointed defendant
No. 2 as its dealer on 20.10.1976. Hence, there is no breach of
the conditions of the lease by defendant No. 1 which entitled
the plaintiff to get decree of eviction.
4.2. After the expiry of the lease period on 31.12.1979, defendant
No. 1 became statutory tenant, as has been held by the Courts
below, the plaintiff could not be allowed to claim the
possession of the suit premises from defendant No. 1 merely
because the lease was over and it was not renewed. Defendant
No. 1 was always ready and willing to renew the lease, but for
any reason, the plaintiff did not agree for renewal of the lease.
The plaintiff was aware about the appointment of defendant
No. 2 as its dealer in the year 1976 itself, as the landlord, in his
cross-examination, has admitted such fact. Once the
appointment of defendant No. 2 as dealer by defendant No. 1
was within the knowledge of the plaintiff and for almost nine
years from acquiring such knowledge, no grievance raised by
the plaintiff in this regard, as per the principles of acquiescence
and estoppel, later on, the plaintiff cannot be permitted to say
that without the plaintiff's permission, defendant No. 1
appointed defendant No. 2 as its dealer.
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C/CRA/1295/2002 CAV JUDGMENT DATED: 23/07/2026
4.3. It is an undisputed fact that after the expiry of the lease period,
defendant No. 1 has neither sublet nor issued any license in
favour of either defendant No. 2 or any other person. In such a
factual scenario, defendant No. 1 could not have been held to
have committed a breach of the terms of the lease or Section
13(1)(e) & (ee) read with Section 15A of the Act of 1947.
4.4. As per Section 13(1)(ee) read with Section 15A of the Act of
1947, the tenant is required to obtain previous permission of
the landlord before parting with rented premises to any other
person. As per Clause 3(a) of the lease deed, the defendant No.
1 was authorized to sublet or license the suit premises without
consent of the plaintiff and as such, the appointment of
defendant No. 2 as dealer, who is running petrol pump at the
suit premises, was within the knowledge of the plaintiff since
1976. The evidence of the plaintiff itself proved the case of
defendant No. 1 that with the permission of the landlord,
defendant No. 1 had given the suit premises to defendant No.
2.
4.5. The Courts below have committed a serious error in law by not
appreciating the fact that unlike Section 13(1)(b) of the Act of
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1947, where the tenant is required to obtain the written consent
of the landlord before erecting any permanent structure on the
rented premises, while parting with the rented premises on
license for monetary consideration to any person, as per
Section 13 (1)(ee) of the Act of 1947, the defendant No. 1 was
not supposed to obtain the previous written permission of the
plaintiff before appointing defendant No. 2 as its dealer.
4.6. As per Black’s Law Dictionary, 9th Edition, the word
"permission" is defined as the act of permitting, a license or
liberty to do something; authorization. Conduct that justifies
others in believing that the possessor of property is willing to
have them enter if they want to do so.
4.7. The plaintiff did not refer to anything about breach of the
terms of the lease and/or raise any issue regarding
subletting/license issued by defendant No. 1 in favour of
defendant No. 2 when the plaintiff issued the first notice on
11.02.1980.
4.8. The decision relied upon by the Courts below to arrive at a
conclusion that defendant No. 1 has sublet the premises
without prior permission of the plaintiff is not applicable to the
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C/CRA/1295/2002 CAV JUDGMENT DATED: 23/07/2026
facts of the case, inasmuch as in the present case, during the
subsistence of lease, defendant No. 1 has appointed defendant
No. 2 as its dealer/licensee, whereas in the decision relied upon,
the lessee has sublet/licensed the premises after the expiry of the
lease period.
4.9. To buttress his argument, Mr. Patel, learned Senior Counsel,
would rely upon the following decisions:
(i) Union of India and others V/s. Murugesan and others, reported in
(2022) 2 SCC 25;
(ii) S. J. Pande V/s. P. K. Balakrishnan, reported in (1993) 3 SCC 297;
(iii) D. C. Oswal V/s. V. K. Subbiah and others, reported in (1992) 1
SCC 370.
4.10. Making the above submissions, Mr. Patel, learned Senior
Counsel, would request this Court to allow the present petition.
SUBMISSIONS OF THE RESPONDENTS-PLAINTIFFS:
5. Mr. Nirav K. Majmudar, learned Advocate appearing on
behalf of the respondent-plaintiff, has made the following
submissions:
5.1. This Court should not entertain this revision application as
neither the Trial Court nor the Appellate Court has committed
any error of law while passing the decree of eviction against the
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C/CRA/1295/2002 CAV JUDGMENT DATED: 23/07/2026
defendants. There are concurrent findings of fact recorded
against defendant No. 1 that it has sublet/licensed the suit
premises in favour of the rest of the defendants, such findings
of fact should not be disturbed by this Court while exercising
its revisional jurisdiction.
5.2. The defendant No. 1 has no right to retain the suit premises
upon the expiry of lease period 31.12.1979 and its retention by
the defendants after 01.01.1980 is nothing but an illegal
occupation, whereby, the defendants are all to be treated as
trespassers. The defendant No. 1 has undisputedly not
obtained any prior permission of the plaintiffs before
appointing defendant No. 2 as dealer, thereby violated Section
13(1)(ee) read with Section 15A of the Act of 1947. Once it is
proved on record that defendant No. 1 has sublet/licensed the
suit premises in favour of defendant nos. 2 to 5, as per Section
13(1)(e) of the Act of 1947, the Courts below have not
committed any error in passing decree of eviction in favour of
the plaintiff.
5.3. The Courts below have correctly observed that upon expiry of
the lease period, neither defendant No. 1 nor defendant nos. 2
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C/CRA/1295/2002 CAV JUDGMENT DATED: 23/07/2026
to 5, being sub-tenant, are entitled to retain the suit premises
and as such, defendant No. 1 could not have given the suit
premises to defendant No. 2 on license or any other mode
without taking prior permission of the plaintiff.
5.4. This Court should not entertain this revision, which is filed
against concurrent findings of fact and as per the settled
position of law, this Court, while exercising its revisional
jurisdiction, should not re-appreciate the evidence on record.
5.5. To buttress his argument, Mr. Majmudar, learned advocate
would rely upon the following decisions:
(i) Patel Valmik Himatlal V/s. Patel Mohanlal Muljibhai (Dead)
Through Lrs., reported in 1998 (7) SCC 383;
(ii) Shanti Prasad Devi V/s. Shankar Mahto, reported in 2005 (5) SCC
543;
(iii) Phiroze Bamanji Desai V/s. Chandrakant N. Patel and others,
reported in (1974) 1 SCC 661;
(iv) Hiren Manharlal Dhruv V/s. Manishbhai Bipinchandra Shah,
reported in 2025 (1) GLR 104.
(v) Hindustan Petroleum Corpn. Ltd. V/s. Heirs of Decd. Shishirkumari
Alias Floraben, reported in 2025 GUJHC 71146.
5.6. Making the above submissions, Mr. Majmudar, learned
Advocate, would request this Court to reject the present
petition.
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C/CRA/1295/2002 CAV JUDGMENT DATED: 23/07/2026
6. No other and further submissions are being made by the
learned advocates appearing for the respective parties.
7. Heard learned Advocates appearing for the respective parties at
length and perused the impugned judgement/decree passed by
the Courts below as well as the documentary & oral evidence
brought on the record of the suit.
ANALYSIS AND REASONS:
8. This revision application is filed against concurrent findings of
fact recorded by the Courts below against the
petitioners/revisionists/defendants, whereby, it has been held
that defendant No. 1 has, without prior permission of the
plaintiff, handed over possession of the suit premises (rented
premises) in favour of defendant nos. 2 to 5, whereby,
defendant No. 1 has breached Section 13(1)(e) & (ee) read with
Section 15A of the Act of 1947. Consequently, the plaintiff is
entitled to recover possession of the suit premises.
9. It is a settled position of law that this Court, while exercising its
revisional jurisdiction under the Rent Act, should not interfere
with the findings of fact recorded by the Courts below unless it
is found to be perverse or grossly erroneous or contrary to the
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C/CRA/1295/2002 CAV JUDGMENT DATED: 23/07/2026
provisions of law. Yet, there is no absolute bar under law that
in no case, this Court can interfere with the findings of fact
recorded by the Courts below. If the findings of fact/reasons
recorded by the Courts below are found to be perverse and/or
any egregious error committed by the Courts below in arriving
at such a finding/reason which are contrary to law, this Court
can surely interfere with such perverse or grossly erroneous
finding/reasons. [See-Hindustan Petroleum Corporation Limited
vs. Dilbahar Singh - (2014) 9 SCC 78]. Keeping this distinction
in mind, I would like to appreciate the submissions made by the
learned Advocates appearing for the respective parties.
10. At the outset, I would like to refer few relevant provisions of
the Act of 1947, which are relevant to resolve the controversy
germen to this revision, read thus:
“ Section 13. (1) Notwithstanding anything contained in
this Act 77[but subject to the provisions of section 15],
a landlord shall be entitled to recover possession of
any premises if the Court is satisfied-
(a) .........................
(b) that the tenant has, without the landlord's
consent given in writing, erected on the premises
any permanent structure .........................
(c) .........................
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(d) .........................
(e) that the tenant has, since the coming into
operation of this Act [unlaw-fully sub-let] the whole
or part of the premises or assigned or transferred in
any other manner his interest therein; or
[(ee) that the tenant has, after the commencement of
the Bombay Rents, Hotel and Lodging House Rates
Control (Gujarat Extension and Amendment) Act,
1963, given the whole or any part of the premises
on licence for monetary consideration to any
person, without the previous permission of the
landlord; or ]”
“Section 15A. Notwithstanding anything contained
in any law, it shall not be lawful after the
commencement of the Bombay Rents, Hotel and
Lodging House Rates Control (Gujarat Extension
and Amendment) Act, 1963 for any tenant to give
premises or any part thereof on licence for
monetary consideration without the previous
permission of the landlord.]”
11. The facts set out at the outset of this judgment are undisputed .
The controversy germane to the matter is also in narrow
compass, i.e., whether in the facts and circumstances of the
case, can it be held that defendant No. 1, without the prior
permission of the plaintiff, sublet or licensed the suit premises
(rented premises) in favour of defendant nos. 2 to 5?
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C/CRA/1295/2002 CAV JUDGMENT DATED: 23/07/2026
12. The period of the lease deed was for five years, i.e., between
31.07.1975 to 31.12.1979. As per Clause 2(c) of the said lease,
before the expiry of terms of the lease, defendant No. 1 (lessee)
required to send written request to the plaintiff (lessor) for its
renewal. Undisputedly, no such written request was made by
defendant No. 1. Likewise, as per Clause 3(a), the defendant
No. 1 was at liberty to license or sublet the suit premises or any
part thereof, without the consent of the plaintiff. The aforesaid
Clause 3(a) reads thus:
" Clause 3(a): The Lessee shall be at liberty to licence or sub-let the
demised premises or any part thereof for use for all or any of the
purposes aforesaid, without the consent of the Lessors ."
13. The aforesaid clause entitled defendant No. 1 to either sublet or
license the suit premises without the consent of the plaintiff.
Yet, such liberty to sublet or license available to defendant No.
1 only during the subsistence of the lease period and not
thereafter.
14. It is not in dispute, as recorded by the Appellate Court in its
impugned judgment in Para 12.8, that it is an admitted fact that
defendant No. 2 (M/s. Jyoti Petroleum) was appointed as an
authorized dealer in petrol and high-speed diesel, w.e.f.
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20.10.1976, subject to the payment of service station license fees
at the rate of Rs. 350/- per month. Defendant No. 1 appears to
have issued an appointment letter dated 20.10.1976 in favour of
defendant No. 2, which was produced at Exhibit 233. The
plaintiff-landlord has also admitted in his cross-examination
that it was within his knowledge that defendant No. 1 is
running petrol pump since 1976. Thus, it has come on record
by way of documentary and oral evidence that defendant No. 1
appointed defendant No. 2 as its dealer/licensee during the
subsistence of the said lease deed.
15. It is not the case of the plaintiff that after the expiry of the lease
period, defendant No. 1 has entered into any fresh license
agreement either with defendant No. 2 or anyone else. The
decisions upon which reliance placed by Mr. Majmudar,
learned Advocate for the respondent-plaintiff either before this
Court or the learned advocate of original plaintiff before
Appellate Court, i.e., Heirs of Decd. Shishirkumari Alias
Floraben (Supra), and Vasant Ramchandra Sharma V/s.
Narayanibai Mulchand Agrawal, reported in 1972 SCC OnLine
Bom 84, are not applicable to the facts of the present case.
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15.1. It is specifically recorded in Para 14 of Heirs of Decd.
Shishirkumari Alias Floraben (Supra), that “…..after expiry of
lease on 30th June 1978, the lessee has created lease/sublease in
favour of M/s. Wiping Auto Services on 01.12.1982”. In such a
factual scenario, placing reliance upon the decision of the
Hon'ble Apex Court in the case of S. J. Pande (Supra) , the
Coordinate Bench of this Court has not disturbed the decree of
eviction passed by the Trial Court and accordingly, not
accepted the arguments of the original lessee that there was no
subletting/sublease. The same is the reason assigned in a case of
Vasant Ramchandra Sharma (supra), that as a statutory tenant,
the rented premises was licenced unauthorisedly in favour of
third party.
16. In the case at hand, the plaintiff and defendant No. 1 agreed
that without prior consent of the plaintiff, defendant No. 1 can
sublet or license the suit premises, albeit during lease period.
Once the parties agreed to such terms while executed the lease,
and defendant No. 1, within the subsistence of lease, appointed
defendant No. 2 as its dealer, it cannot be held that defendant
No. 1 has sublet/licensed the premises without the permission
of the plaintiff.
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17. This Court cannot ignore the admission of the plaintiff who has
specifically admitted in his cross-examination that he was
aware about fact that defendant No. 2 is running petrol pump
since 1976, and prior thereto it was run by M/s. P. H. Wadia.
When first notice came to be issued by the plaintiff on
11.02.1980, no grievance raised about subletting / licensed the
suit premises by defendant No. 1 in favour of defendant No. 2.
This would mean that plaintiff was well aware about
subletting/licensed the suit premises by defendant No.1 in
favour of the defendant No.2 during subsistence of lease deed
and having not objected at relevant time, gave his permission to
defendant No.1 to sublet/license the suit premises in favour of
the defendant No.2.
17.1. At this juncture, it would be apt to refer the pertinent
observations made by Hon’ble Apex Court in the case of D. C.
Oswal (Supra) , wherein in Para 6 observed thus:
“ 6. Counsel for the respondents does not dispute that from 1973
there has been change of use. The petition for eviction is of
1980. It follows that for seven years no objection was raised for
change of use and for the first time when eviction was sought,
conversion was made the second ground. In these circumstances,
we are prepared to accept the submission advanced on behalf of
the appellant that the landlords accepted the user to be also
other than residential.”
(Emphasis supplied)
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17.2. The Hon'ble Apex Court in the case of N. Murugesan (supra)
has also explained the principle of acquiescence, held thus:
“ 25. Acquiescence would mean a tacit or passive acceptance. It is
implied and reluctant consent to an act. In other words, such an
action would qualify a passive assent. Thus, when acquiescence
takes place, it presupposes knowledge against a particular act.
From the knowledge comes passive acceptance, therefore
instead of taking any action against any alleged refusal to
perform the original contract, despite adequate knowledge of its
terms, and instead being allowed to continue by consciously
ignoring it and thereafter proceeding further, acquiescence does
take place. As a consequence, it reintroduces a new implied
agreement between the parties. Once such a situation arises, it is
not open to the party that acquiesced itself to insist upon the
compliance of the original terms. Hence, what is essential, is the
conduct of the parties. We only dealt with the distinction
involving a mere acquiescence. When acquiescence is followed by
delay, it may become laches. Here again, we are inclined to hold
that the concept of acquiescence is to be seen on a case-to-case
basis.”
(Emphasis supplied)
17.3. Even as per Black’s Law Dictionary, its 9th Edition , the word
“permission” is defined thus:
“1. The act of permitting.
2. A license or liberty to do something; authorization.
3. Conduct that justifies others in believing that the possessor of the
property is willing to have them enter if they want to do so.”
A bare perusal of the said definition shows that the act of
permitting, or a license to do something, or the conduct that
justifies others in believing that the possessor of the property is
willing to have them enter if they want to do so.
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17.4. Thus, the conduct of the plaintiff, as observed above, itself
suggests that they granted the permission to defendant No. 1 to
license the suit premises in favour of defendant No. 2, being its
dealer. At the cost of repetition, one should not forget that
such appointment as dealer by defendant No. 1 was during the
subsistence of lease deed. As such, as per the terms of the lease,
defendant No. 1 was well within its rights to license or sublet
the suit premises without prior consent of the plaintiff.
18. Furthermore, the plain reading of Section 13(1)(ee) read with
Section 15A of the Act of 1947 would only suggest that without
the prior permission of the landlord after 31st December 1963,
a tenant cannot give or part of the premises on license for
monetary consideration to any person. Whereas, as per Section
13(1)(b) of the 1947 Act, the tenant is supposed to obtain
written consent of landlord before erecting any permanent
structure on rented premises. No such written permission is
required when tenant gives rented premises on license. The
Courts below have lost sight of this distinction, which
ultimately resulted into recording of perverse finding that
defendant No. 1 has, without prior permission of the plaintiff,
given the suit premises on license in favour of defendant nos. 2
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to 5. According to my considered view, as per Section 13(1)(ee)
read with Section 15A of the Act, 1947, defendant No. 1 was
not supposed to obtain prior written permission of the landlord
before giving possession of the suit premises in favour of
defendant nos. 2 to 5 on license. Having so observed above,
that it was within the knowledge of the plaintiff that defendant
No. 2 was running the petrol pump since 1976 and plaintiff did
not object to the presence of defendant No. 2 for more than
eight years as the suit for eviction filed in the year 1985, then
applying the principles of acquiescence as well as estoppel, it
cannot be gainsaid that there was permission of the plaintiff
allowing defendant No. 1 to license the suit premises in favour
of defendant No. 2. Even otherwise, as per the aforesaid terms
of the lease, defendant No. 1 was well within its rights to license
the suit premises in favour of defendant No. 2 without the prior
consent of the plaintiff.
19. Having observed that defendant No. 1 has created license in
favour of defendant No. 2 by appointing as its dealer on
20.10.1976, i.e., before expiry of lease period on 31.12.1979,
and as such, it is not even the case of the plaintiff that after
01.01.1980, defendant No. 1 has created any fresh license or
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sublet the suit premises either in favour of defendant No. 2 or
anyone else, the Courts below have committed egregious error
in law by holding that there is a breach of Section 13(1)(e) &
(ee) read with Section 15A of the Act of 1947 by defendant No.
1. Since, after the expiry of lease period and become a statutory
tenant, defendant No. 1 has neither sublet nor licensed the suit
premises in favour of anyone, the plaintiff is not entitled to
receive possession under Section 13(1)(e) of the Act of 1947.
20. Thus, considering the aforesaid facts and circumstances of the
case, and having found that the Courts below have committed
a serious error in law by holding that defendant No. 1 has
committed a breach of Section 13(1)(e) & (ee) read with Section
15A of the Act of 1947 and the findings of fact recorded in this
regard by the Courts below are not only perverse but contrary
to the provisions of law referred above, according to my view,
this Court well within its revisional jurisdiction requires to
interfere with such perverse, grossly erroneous and
unsustainable findings of fact.
21. In view of the foregoing observations, discussions and reasons,
I am of the considered view that the impugned judgment and
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decree dated 20th December 2002 passed by the Appellate
Court in Regular Civil Appeal No. 64 of 1997 is unsustainable
in law, thus, it is quashed and set aside. Consequently, the
aforesaid Regular Civil Appeal No. 64 of 1997 is allowed,
thereby the judgment and decree dated 31.03.1997 passed by
the Civil Judge (Junior Division) Keshod in Regular Civil Suit
No. 90 of 1985 is also quashed and set aside. Accordingly, the
plaintiff's Regular Civil Suit No. 90 of 1985 is dismissed.
22. In view of the foregoing conclusion, the present revision
application is allowed. Rule is made absolute. No order as to
cost. All civil applications stand disposed of accordingly.
(MAULIK J.SHELAT,J)
NILESH
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