C/CRA/150/2017 ORDER DATED: 13/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 150 of 2017
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RAVI TRANSPORT COMPANY & 2 other(s)
Versus
YOGESH CHANDULAL CHUNILAL MAHETA & 1 other(s)
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Appearance:
MR KASHYAP R JOSHI(2133) for the Applicant(s) No.
1,2,3
DHWANI P LAKHANI(8222) for the Opponent(s) No. 1,2
MR PM LAKHANI(1326) for the Opponent(s) No. 1,2
MRS R P LAKHANI(3811) for the Opponent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 13/03/2023
ORAL ORDER
1. By way of this revision application under Section 29(2) of the Rent Act, the applicant has challenged the order dated 9.12.2016 passed by 3rd Additional District Judge, Bharuch in Regular Civil Appeal No.78 of 2013 whereby he has confirmed the judgment and decree dated 25.10.2013 and 23.11.2013 passed by learned 6th Additional Senior Civil Judge, Bharuch in Regular Civil Suit No.485 of 2003. Page 1 of 7 Downloaded on : Tue Mar 14 20:49:30 IST 2023 C/CRA/150/2017 ORDER DATED: 13/03/2023
2. The facts giving rise to the present civil revision application are as under :- 2.1 The present applicant is the original defendant whereas the present defendant is the original plaintiff. It was the case of the plaintiff before the trial Court that property bearing survey No.1982 was let by the deceased father of the plaintiff and survey No.1983 was let by the deceased grandfather of the plaintiff and after the demise of father and grand father of the plaintiffs, they had become the owner of the said property by way of will and there names were entered into Government record. The defendants who are the tenant of the property were not using said property since last four years from the date of filing of the suit. As the defendants were carrying on their business at the address shown in the cause-title at some other place than the property in question since last four years and therefore, the suit property was lying closed and unused for more than six Page 2 of 7 Downloaded on : Tue Mar 14 20:49:30 IST 2023 C/CRA/150/2017 ORDER DATED: 13/03/2023 months without any reasonable cause, though the defendants were paying the rent through cheque. As the defendant had acquired better and specious place, the plaintiffs informed the defendants to hand over the suit premises but as the respondents did not hand over the suit premises to the plaintiffs as the suit premises was in good locality and was rented at a lower rent. With a view to get a huge amount against the said properties, they were not handing over the suit property to the plaintiffs and hence, the plaintiffs preferred the suit for eviction on the ground of non use of the suit premises. 2.2 After following the due procedure prescribed under the Rent Act and after leading the evidence ultimately, the learned 6th Additional Senior Civil Judge, Bharuch partly allowed the suit vide order dated 25.10.2013 and directed the defendants to hand over the vacant, peaceful and actual possession of the suit premises within a period of 30 days from the Page 3 of 7 Downloaded on : Tue Mar 14 20:49:30 IST 2023 C/CRA/150/2017 ORDER DATED: 13/03/2023 order. The decree dated 23.11.2003 was drawn accordingly.
2.3 The aforesaid judgment and decree was further challenged by way of appeal being RCA No. 78 of 2003 which also came to be dismissed vide order dated 9.12.2016.
2.4 It is against those concurrent findings the present civil revision application is preferred.
3. Considering the limited scope of interference in this civil revision application, learned advocate Mr. Kashyap Joshi appearing for the applicant mainly made submissions on the following two points :-
(i) requirement of Section 13(i)(k) is not fulfilled as the premises is not only required to be not in use but for which there should be a reasonable cause as well and the plaintiffs have failed to show any reasonable cause though the premises was Page 4 of 7 Downloaded on : Tue Mar 14 20:49:30 IST 2023 C/CRA/150/2017 ORDER DATED: 13/03/2023 lying vacant since last four years is admitted.
(ii) Submissions on part of learned advocate Mr. Kashyap Joshi was that the requirement of Section 23 of the Rent Act were not satisfy as the premises in question was not in good repair which compelled the defendant to shift the premises else were and therefore, as the plaintiff failed to keep the premises in good repair the defendant had to shift at some other place to carry on the business.
4. In respect of aforesaid two submissions, this Court specifically asked learned advocate Mr. Kashyap Joshi that whether these two contentions were taken before either the trial Court or the Appellate Court and whether any of these submissions forms the part of their reply or appeal memo or not. However, despite making efforts, learned advocate Mr. Kashyap Joshi Page 5 of 7 Downloaded on : Tue Mar 14 20:49:30 IST 2023 C/CRA/150/2017 ORDER DATED: 13/03/2023 could not point out that any of the aforesaid submissions were ever made before the trial Court or appellate Court.
5. The trial Court or Appellate Court is expected to consider only the submissions which were advanced before the concerned Court. If the submissions were not made before the Courts and contentions which are raised before this Court for the first time were not raised before the trial Court or Appellate Court. It cannot be said that the trial Court or Appellate Court has committed any error of law while adjudicating the issue.
6. Considering the fact that there are concurrent findings of fact recorded by both the Courts as well as considering the fact that the contentions raised before this Court were raised for the first time as well as on perusal of the record, this Court does not find any error committed by the trial Court and Appellate Court in partly allowing the suit and dismissing the Page 6 of 7 Downloaded on : Tue Mar 14 20:49:30 IST 2023 C/CRA/150/2017 ORDER DATED: 13/03/2023 appeal, the present civil revision application stands dismissed.
7. Notice is discharged. No order as to costs.
(NIRZAR S. DESAI,J) Pallavi Page 7 of 7 Downloaded on : Tue Mar 14 20:49:30 IST 2023