Gujarat High Court
Sanjay Gopalbhai Ashar vs Ramalaxmi Purushottambhai Dave on 7 October, 2025
NEUTRAL CITATION
C/CRA/535/2025 JUDGMENT DATED: 07/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 535 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/CIVIL REVISION APPLICATION NO. 535 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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SANJAY GOPALBHAI ASHAR & ORS.
Versus
RAMALAXMI PURUSHOTTAMBHAI DAVE & ORS.
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Appearance:
MR PREMAL R JOSHI(1327) for the Applicant(s) No. 1,2,3
MR TANMAY B KARIA(6833) for the Opponent(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 07/10/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned Advocate Mr. Tanmay B. Karia waives service of notice of Rule on behalf of the respondent Nos.2 and 3.
2. Heard learned Advocate Mr. Premal R. Joshi for the Page 1 of 10 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:58:32 IST 2025 NEUTRAL CITATION C/CRA/535/2025 JUDGMENT DATED: 07/10/2025 undefined petitioners and learned Advocate Mr. Tanmay B. Karia for the respondents.
3. The petitioners (hereinafter referred to as "tenants") and the respondents (hereinafter referred to as "landlords").
4. THE SHORT FACTS OF THE CASE APPEAR TO BE THAT:
4.1. The present application is filed under Section-29(2) of the Bombay Rents, Hotels and Lodging House Rates Control Act, 1947 (hereinafter referred to as "the Act, 1947"), at the instance of the original defendant happens to be the tenant of the rented premises, whereby, challenged the judgment and decree dated 16th January 2023 passed by the Additional District Judge, Morbi, in Regular Civil Appeal No. 12 of 2012.
4.2. At the outset, it is required to be observed that the respondents herein being the original landlord of the rented premises, filed a suit for eviction on various grounds by filing Regular Civil Suit No. 269 of 2001, which was dismissed by the Trial Court vide its judgment and order dated 17th March 2012. It is to be noted here that there was no counterclaim filed by the petitioner herein.Page 2 of 10 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:58:32 IST 2025
NEUTRAL CITATION C/CRA/535/2025 JUDGMENT DATED: 07/10/2025 undefined 4.3. Nonetheless, apprehending that while answering issue No.4, having so framed by the Trial Court, in negative against the petitioner, they thought it fit to file Regular Civil Appeal No. 12 of 2012 before the Appellate Court.
4.4. At the same time, it is reported to this Court that the respondents/landlord have also preferred independent Regular Civil Appeal challenging the very same judgment and decree passed by the Trial Court, which reported to be dismissed for non-prosecution. Although, respondents have already preferred a restoration application being Civil Misc. Application No. 129 of 2021, which is pending for its adjudication. 4.5. Be that as it may, after hearing the parties, the Appellate Court vide its judgment and decree dated 16th January 2023, dismissed the appeal. Hence, the present revision application.
5. SUBMISSIONS OF THE PETITIONERS:
5.1. Learned Advocate Mr. Joshi, appearing for the petitioners, would submit that as such, there was no need to file an appeal by the original tenant, inasmuch as the suit filed by the landlord was dismissed. But, an apprehension weighed with the tenant in regards to answer given by the Trial Court qua issue Page 3 of 10 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:58:32 IST 2025 NEUTRAL CITATION C/CRA/535/2025 JUDGMENT DATED: 07/10/2025 undefined No. 4, whereby, the right of use of terrace by the tenant is answered in the negative having so held that tenant failed to prove it as a part of rented premises.
5.2. Learned Advocate Mr. Joshi would further submit that when there is no restriction put forward by the landlord on the use of such terrace, it ought to have been observed by courts below in favor of the tenant to use such area i.e. the terrace.
5.3. Learned Advocate Mr. Joshi would respectfully submit that if the appeal filed by the landlord gets restored back on its file, the petitioner-tenant may be allowed to defend such appeal on all counts, including issue No. 4, which was decided by the Trial Court, inasmuch as an appeal is a continuation of the suit.
5.4. Making the above submissions, learned Advocate Mr. Joshi would request this Court to suitably modify the order passed by the Appellate Court.
6. SUBMISSIONS OF RESPONDENTS:
6.1. Per Contra, learned Advocate Mr. Karia would submit that, as such, no appeal could have been filed by the tenant against any Page 4 of 10 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:58:32 IST 2025 NEUTRAL CITATION C/CRA/535/2025 JUDGMENT DATED: 07/10/2025 undefined finding of fact recorded against the tenant, inasmuch as there was no counterclaim filed by the tenant and the suit was dismissed. Thereby, no right available to the tenant being the defendant of the suit, to challenge the decree in the Appellate Court.
6.2. Learned Advocate Mr. Karia would further submit that as such, there is no need to file the present revision application as well, inasmuch as the Appellate Court has answered all the issues raised before it in its elaborate judgment, albeit against petitioner.
6.3. Learned Advocate Mr. Karia would submit that the appeal filed by the landlord got dismissed for default and its restoration is pending, once appeal will get restore back on its file, it requires to be heard independently without being influenced by the impugned judgment and decree passed by the Appellate Court.
6.4. Making the above submissions, learned Advocate Mr. Karia would request this Court to dismiss the revision application.
7. No other and further submissions are made. Page 5 of 10 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:58:32 IST 2025
NEUTRAL CITATION C/CRA/535/2025 JUDGMENT DATED: 07/10/2025 undefined ANALYSIS
8. The scope and ambit of the power of this Court while exercising its Revisional jurisdiction is very minimal. Unless, there is jurisdictional error committed by courts below, this Court while exercising its Revisional jurisdiction, should not interfere with the order passed by the court. [See: Hindustan Petroleum Corporation Limited Vs. Dilbahar Singh reported in (2014) 9 SCC 78 (Para Nos.28 & 43), and Patel Valmik Himatlal and others Vs. Patel Mohanlal Muljibhai (Dead) through Lrs. reported in 1999 (1) GLR 15 (SC) (Para Nos.5 &
6)]
9. The facts narrated hereinabove are not in dispute. It remains undisputed that the suit filed by the landlord seeking eviction of a tenant from rented premises, wherein, tenant only contested the suit but not filed any counterclaim. Nonetheless, the fact remains that issue No. 4, having so framed by the Trial Court, whereby, the Trial Court answered in negative against the tenant. Accordingly, it is so held that tenant is not able to prove that the area of terrace was part of the rented premises. Such finding of fact assailed by the tenant before the Appellate Page 6 of 10 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:58:32 IST 2025 NEUTRAL CITATION C/CRA/535/2025 JUDGMENT DATED: 07/10/2025 undefined Court by way of appeal, though the suit got dismissed on merit, whereby decree would not stand against petitioner-defendant- tenant.
10. It is settled by a long catena of decisions that to be entitled to file an appeal the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal. [See : Deva Ram Vs Ishwar Chand reported in (1995) 6 SCC 733 (para-27) & Hardevnider Singh Vs Paramjit Singh & Others reported in (2013) 9 SCC 261 (para-21 & 22)]. As such, no prejudice and or decree passed by trial Court adversely affected the right of petitioner-defendant-tenant, even if Issue No.4 decided against him. Prima facie, according to my view, when the suit itself dismissed and in the absence of any counterclaim filed by the defendant, no appeal could have been filed by the defendant- tenant, only against finding.
11. Be that as it may, such appeal was not only filed but decided on merits by the Appellate Court with its specific observation that even though the tenant failed to prove that the area of terrace is part of the rented premises, there was no restriction about its Page 7 of 10 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:58:32 IST 2025 NEUTRAL CITATION C/CRA/535/2025 JUDGMENT DATED: 07/10/2025 undefined use by the tenant. The relevant observation of the Appellate Court in its impugned judgment requires to be reproduced herein-below:
"........ The answer of the said issue given by the Ld. Senior Civil Judge, Morbi was in the negative. However, whether the any right appellants/original defendants is of the curtailed, there is no any evidence on record which shows that the any right of the appellants/original defendants curtailed for passing of the said judgement and order or even observations of the Ld. Senior Civil Judge. Moreover, as this Court being first appellant Court, if I consider written statement of the appellants/original defendants which is on record of the suit vide Exh.13, there is no any counter claim or any relief claimed by the original defendants/appellants in the written statement, when there is no relief claimed by the appellants/original defendants or filed any counter claim, there is no need to pass the order in favour of the appellants/original defendants. Thus, considering the above discussions and settled principles of law, the appellants/original defendants have right to prefer the appeal, but appeal itself is not maintainable only on the ground that there is no any order passed by the Ld. Senior Civil Judge in favour of the respondents/original plaintiffs or against the appellants/original defendants.
11. Now, I consider another point regarding the observations of the Ld. Senior Civil Judge in the judgement at Exh.99 regarding the use of the adjacent open place of the appellants' office, Looking to the evidence of the appellants as well as respondents, it is admitted facts that through the open place situated adjoining rented premises third person also pass Page 8 of 10 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:58:32 IST 2025 NEUTRAL CITATION C/CRA/535/2025 JUDGMENT DATED: 07/10/2025 undefined through for using his property. Moreover, yet neither the respondents nor the predecessor of the respondents have restrained to the appellants or the decision of the appellants for utilization of the adjoining open place of the defendants' ofice. Not only that the respondents filed suit on the ground of permanent structure, change of suit premises and non-using of the suit premises mainly, the Ld. Senior Civil Judge was pleased to pass judgement decree and on the basis of availability of evidence of the parties and declined relief sought by the appellants in the suit. So, there is no any difference making regarding observations of the Ld. Senior Civil Judge. In short, this Court is opined that there is no any kind of right of utilization of the suit premises was curtailed by the Ld. Senior Civil Judge, Morbi by passing the judgement and decree in the R.C.S. No.269/2001."
(emphasis supplied)
12. When there is concurrent finding of fact so recorded by courts below, whereby, the tenant failed to prove that the area of the terrace was also part of the rented premises, this Court having its limited jurisdiction, cannot reappreciate such evidence again, unless found perversity in finding so recorded by the Courts below. Thus, it would not be appropriate to disturb the finding of fact so recorded by the courts below based on the correct appreciation of the evidence as petitioner failed to show any perversity in such finding of fact recorded by the Courts below.
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NEUTRAL CITATION C/CRA/535/2025 JUDGMENT DATED: 07/10/2025 undefined
13. At the same time, as observed hereinabove, the right of use of area of the terrace is not so far prohibited and the tenant can use it. As such, according to my view, this would be the position, there was even no need to file any appeal and also the present revision application by the original tenant. In light of the aforesaid, I do not find any merit in the revision application.
14. Before parting, I would only say and observe here that in a case where the appeal filed by the landlord is restored back on its original file by the Appellate Court, the same shall be decided by the Appellate Court in accordance with law. CONCLUSION
15. In view of the foregoing observations and reasons, the present revision application bereft of any merit, requires to be rejected, which is hereby rejected.
16. The Civil Application is also disposed of accordingly.
(MAULIK J.SHELAT,J) NILESH Page 10 of 10 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Wed Oct 08 2025 Downloaded on : Thu Oct 09 00:58:32 IST 2025