Gujarat High Court
Anilkumar Radheshayam Tulsiyan vs Sushilaben Manojkumar Ahir on 15 October, 2025
NEUTRAL CITATION
C/CRA/401/2015 CAV JUDGMENT DATED: 15/10/2025
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Reserved On : 18/09/2025
Pronounced On : 15/10/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 401 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
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Approved for Reporting Yes No
YES
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ANILKUMAR RADHESHAYAM TULSIYAN & ORS.
Versus
SUSHILABEN MANOJKUMAR AHIR
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Appearance:
MS KJ BRAHMBHATT(202) for the Applicant(s) No. 1,2,3
MS VARSHA BRAHMBHATT(3145) for the Applicant(s) No. 1,2,3
MR MANAN A SHAH(5412) for the Opponent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
CAV JUDGMENT
1. The present Civil Revision Application is filed, challenging the judgment and decree, dated 24.09.2015, passed by the 9 th Additional District Judge, Surat, in Regular Civil Appeal No.14 of 2013, whereby the said appeal has been allowed and the order dated 28.02.2013, passed by the Chief Judge, Small Causes Court, Surat in Summary Rent Suit No.113 of 2004, is set aside on the ground of 13 (1) (g) and 13(1) (k) of the The Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 ('the Rent Act', for short) and directed the defendant to handover peaceful vacant possession of suit property to the plaintiff. Hence, the present Revision Application.
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2. For the sake of brevity, the parties before the trial Court are shown as per their original status.
3.1 The brief facts arising in the present civil revision application are that, plaintiff being owner of the property, filed suit against the defendant, on the ground that the defendant has acquired suitable alternative accommodation, that the suit premises is of non-user for more than six months prior to the date of filing of the suit, that the plaintiff requires suit property for his personal bona fide requirement and in the said suit, plaintiff examined himself vide Exh.27, the plaintiff's witness i.e. Chairman of the society in which the suit property was situated, was examined at Exh.121 and other witness of the plaintiff to prove the fact of defendant has acquired alternative accommodation was examined at Exh.96. The defendant examined himself at Exh.140, witness of the defendant at Exh.263 and after considering oral evidence and documentary evidence and after giving findings on all the issues, trial Court dismissed the said suit of the plaintiff.
3.2 Aggrieved by the said judgment and decree passed by the trial Court, landlord / plaintiff filed Regular Civil Appeal No.14 of 2013 and after re-appreciating the evidence, first appellate Court granted eviction of defendant - opponent from suit property on the ground that, the plaintiff has proved that the defendants are not using suit property for the purpose for which it was let for the last six months and that the plaintiff requires suit property for his bona fide requirement and that greater hardship will be caused to the plaintiff if the decree of possession on the ground of bona fide requirement is not passed in favour of plaintiff.
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appellate Court, the present Revision Application is filed.
4.1 Learned advocate for the defendant has mainly argued that though the plaintiff failed to prove that plaintiff required suit property for his own bona fide requirement, the first appellate Court has quashed and set aside the findings of the trial Court. Learned advocate for the defendant has argued that only submission of the plaintiff was that the plaintiff was suffering from diabetes and was not keeping good health and the plaintiff has stated that premises in which she is residing does not have a lift and, therefore, because of her heavy weight, it is difficult for her to use the staircase and, therefore, she requires suit premises for her bona fide requirement and that greater hardship will be caused to the plaintiff, if possession is not handed over to the plaintiff as the plaintiff does not have facility of lift and she is facing difficulty in using stair because of her heavy body and high-blood pressure and, therefore, she requires suit property.
4.2 It has been argued that there is no medical evidence other than some medical reports which have been produced by plaintiff which have not been exhibited, there is no evidence coming forward that the premises in which plaintiff is residing does not have lift. It has been argued that plaintiff has not examined her doctor to prove her medical condition.
4.2 Learned advocate for the defendant has stated that there is only oral evidence that has been placed on record by the plaintiff to prove her medical condition. The trial Court had properly examined all the documents and the oral evidence and it had come to the conclusion that Page 3 of 13 Uploaded by MISHRA AMIT V.(HC00187) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:28:27 IST 2025 NEUTRAL CITATION C/CRA/401/2015 CAV JUDGMENT DATED: 15/10/2025 undefined bear word qua bona fide requirement on the ground of heavy body and diabetes of the plaintiff without any support or evidence could not be believed and the first appellate Court had shifted the burden on the defendant to prove the said fact.
4.3 Learned advocate for the defendant has argued that the fact remains that plaintiff has already been residing in flat with her husband and that she has reasonable accommodation and, therefore, no hardship will be caused to the plaintiff, if decree of eviction is not passed. The fact also will have to be considered that the defendant no.1 is residing with his wife in the suit premises and he does not have any alternative residence. The alternative property i.e. Bungalow No.13 at Sargam Society which was purchased by defendant's father, where his brother is residing and, therefore, trial Court could not have passed decree on the ground that plaintiff has proved that the plaintiff requires suit property for his own bona fide requirement.
4.4 Learned advocate for the defendant has also argued that the trial Court has granted decree of eviction on the ground that plaintiff has proved that defendant has not used suit premises for the purpose it was let for last six months preceding the date of filing the suit i.e. plaint filed by plaintiff if is taken into consideration, it has been stated in the plaint that for the last three months the defendant is not using the suit premises and, therefore, in view of the fact plaintiff have not stated that the defendant are not using suit premises for the purpose it was let for the last six months preceding the date of filing the suit, the appellate Court could not have granted decree of eviction.
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Exh.25, plaintiff has admitted that the defendant has never stopped using the suit premises and, therefore, it cannot be said that that the defendants are not using the suit premises and oral evidence of plaintiff and the witness Shakuntal, produced vide Exh.121, cannot be believed in view of the fact that plaintiff herself has deposed, before the Court vide Exh.27 that it is not proved that suit property was not used. Moreover, learned advocate for the defendant has also argued that witness produced vide Exh.121, being the President and Member of owner of society, would be influenced by plaintiff and, therefore, her evidence could not be taken into consideration.
4.5 Learned advocate for the defendant has also argued that gas-bill and telephonic bill and all other documents could not be taken into consideration as the same would not prove that the suit property was not used by the defendant and the electricity bill produced, vide Exh.62, on which plaintiff landlord is relying on also stated that the said meter was faulty during the said period and, therefore, only on the ground that the meter reading, shows Nil, cannot be ground to say that the suit property was not used by the defendant.
4.6 Moreover, it has been argued that the appellate Court has not taken into consideration the fact that plaintiff has not moved any application for appointment of Court Commissioner to prove the fact that defendants are not using the suit premises and that the suit premises was closed and, therefore, present Civil Revision Application is required to be allowed.
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(ii) 2000 (1) GLH 208, Raghunath G. Panhale (dead) by Lrs. vs. (M/s.) Chaganlal Sndarji & Co.;
(iii) 34 (1) GLR 46, Jagmohandas Vithaldas Kansara (since deced.) through his heirs & Lrs. Taraben vs. Mohanlal Maneklal Tailor;
(iv) AIR 1999 SC 3190, T. Sivasubramaniam vs. Kasinath Pujari;
(v) 87 (1) GLH 395, Luhar Jagjivanbhai Ramjibhai and Ors.; and
(vi) CAV judgment rendered in Civil Revision Application No.1692 of 1998 dated 23.07.199 in the case of Uttamchand Kashiprasad Shah vs. Vaumatiben Maganlal Manani.
and submitted that the present Revision Application is required to be allowed and the judgment and decree passed by the first appellate Court is required to be quashed and set aside and the judgment and decree passed by the trial Court requires to be confirmed.
5.1 Learned senior advocate Mr.Dhaval Dave for the plaintiff - landlord has mainly argued that, plaintiff has proved that the suit property has not been used by the defendant in view of the fact that the neighbour and the President of society, in which suit property is situated has filed affidavit Exh.121, stating the fact that the suit property is closed and not used by the defendant.
5.2 Learned senior advocate for the plaintiff has also argued that if
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C/CRA/401/2015 CAV JUDGMENT DATED: 15/10/2025
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summons of the suit and the appeal and address mentioned in the present civil revision application is taken into consideration, the said address is also not of the suit property and, therefore, it can be clearly established that the defendants are not residing in the suit premises. Moreover, electricity consumption from 07.01.2004 to 07.07.2004, if taken into consideration, which is produced vide Exh.62, clearly shows meter reading Nil and, therefore, plaintiff has proved non-user of the suit premises.
5.3 With respect to bona fide requirement of the suit property, the appellate Court has taken into consideration the fact that plaintiff is suffering from disease of diabetes and other disease. Moreover, the fact that the first appellate Court has also taken into consideration that the defendants have acquired property in Sargam Society bearing Bungalow No.30, in which his share is involved by name of his wife and, therefore, it has been argued that the present Civil Revision Application is required to be dismissed in view of the fact that first appellate Court is final Court on facts and, therefore, Revision Application is required to be dismissed.
6.1 Having heard learned advocate for the parties and having considered the judgment and decree passed by the trial Court which has been quashed and set aside by the appellate Court, with respect to the fact of non-user of the suit property, the issue that were framed by trial Court was whether plaintiff proves that, defendant is not using suit premises for the last six months for the purpose for which it was let and, therefore, burden was on the plaintiff to show that defendant is not using suit premises for the last six months, for which plaintiff has relied on electricity consumption meter, for the period from 07.01.2004 to Page 7 of 13 Uploaded by MISHRA AMIT V.(HC00187) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:28:27 IST 2025 NEUTRAL CITATION C/CRA/401/2015 CAV JUDGMENT DATED: 15/10/2025 undefined 07.07.2004, which clearly shows that the consumption of units as Nil.
6.2 The fact also remains that if defendant was using the suit premises as residence and also for commercial purpose, there has to be some document to show that suit property had been used by the defendant. The defendant has neither produced any document to prove said fact, about electricity consumption, for period from 07.01.2004 to 07.07.2004 also shows Nil though it has been argued by learned advocate for defendant that during that period meter was faulty, but the fact remains that there is neither any complaint, or oral evidence, that has been produced by the defendant, to prove the said fact, defendant did not produce any document and, therefore, looking to the entire evidence, it can be established that, defendant was not using the suit premises for the purpose for which it was let for the last six months, for continuous period of six months preceding from the date of suit, in the opinion of this Court, first appellate Court has rightly recorded findings that the suit property was left unused for period of six months initially preceding the suit.
6.3 In the present case, there is nothing on record to prove that there was reasonable cause that the property has not been used by the defendant. The fact remains that the defendant has stated that she is using the suits premises, but there is no evidence coming forward from the defendant with respect to the said fact. The evidence on the issues of non user of the suit premises is in the form of electricity consumption bills produced vide Exhibits 240 to 244. The said electricity bill shows that in the suit premises there is minimum consumption of electricity.
6.4 The fact remains that initial burden to show that the tenant has
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C/CRA/401/2015 CAV JUDGMENT DATED: 15/10/2025
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seized to occupy the suit premises continuously for period of 6 months is always on the landlord and he has to adduce tangible evidence to prove the fact that as on the date of filling the petition, the tenant was not occupying the suit premises continuously for the period of 6 months. Once such evidence is adduced, the burden shifts on the tenant to prove that there was reasonable cause for him having ceased to occupy the tenanted premises for continuous period of 6 months and once the premises have been shown by evidence to be not in occupation of the tenant, the pleading of the landlord that such non-user is without reasonable cause has the effect of putting the tenant on notice to plead and prove the availability of reasonable cause for ceasing to occupy the tenancy premises.
6.5 In the present case, the plaintiff had only to satisfy the court that he has pleaded and proved the non-user of the suit premises for a continuous period of 6 months immediately preceding the date of filing of the suit and as the plaintiff has established his claim, the onus shifts to the tenant to establish that his default which rendered him liable to eviction was condonable by the Court because of reasonable cause.
6.6 In the present case, the defendant did not take defense in the pleading that the suit premises remained unused because of the reasonable cause, but his case is that the business never remained closed, nor there was any non-use till the date of institution of the suit. The tenant tried to lead evidence to prove that the suit property was continuously in use.
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vouchers, sales vouchers, accounts books, sales tax returns, renewed license under the Shop And Establishment Act or other convincing evidence that the plaintiff was in continuous use of the suit premises, therefore, in the opinion of this Court, the two Courts have rightly recorded the finding that the suit property was lying unused for the period of 6 months immediately preceding the date of institution of the suit.
6.8 With respect to the fact that the plaintiff has proved that the plaintiff requires suit property for his own bona fide requirement, the fact remains that the question of plaintiff's reasonable and bona fide requirement for premises for his own use and occupation is one of facts and in the revision application, the said facts cannot be re-appreciated. Moreover, the findings of the District Court in Regular Civil Appeal No.14 of 2013 that the plaintiff reasonably and bona-fidely required suit premises for his own use and occupation is unquestionably a finding of facts and it is not competent to deal with said factual decision of the first appellate Court in exercise of revisional power under Section 29(3) to involve every findings by re-appreciating the evidence. Moreover, the scope of interference of this Court under Section 29 of the Gujarat Rent Act, are that the High Court cannot reassess the value of the findings and interfere with the findings of fact merely because it needs that the appreciation of evidence by the first appellate Court was wrong and that the appellate Court should have reached the different conclusion of fact from what it did. Under Revisional jurisdiction this Court cannot re- appreciate the evidence and substitute its own conclusion of fact in couple of those reached by the appellate Court.
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exercised for a limited purpose with a view to satisfying a condition that the decision was according to law. In the present case, it cannot be said that the first appellate Court failed to apply its mind to the requirement of Section 13(1)(g) i.e. Bona fide requirement, non-user 13(1) (k) and of section 13(2) of the Rent Act as to comparative hardship and it cannot be said that the findings arrived at by the first appellate Court is manifestly perverse or erroneous.
6.10 Therefore, on the basis of overall analysis of the material on record, on the basis of conclusion that has been referred to by the Court below, the Court is of the opinion that there is no material irregularity nor any perversity reflecting which would permit this Court to exercise revisional jurisdiction. The entire reasonings of the appellate Court are based upon clear analysis of the testimony of the witnesses for either side and also in consonance with documentary material and according to this Court it cannot be said that there is any perversity in the said order. Moreover, while deciding the Revision Application by the High Court in revisional jurisdiction under this Act it is confined to find out whether findings of fact recorded by the courts below are according to law and does not suffer from any abuse of law. The findings recorded by the appellate Court if perverse or have been arrived at without consideration of material evidence or such finding is based on no evidence or misreading of evidence or grossly erroneous that, if allowed to stand, would result in gross miscarriage of justice. The same is open for correction because it is not treated as finding according to Law and in that event the High Court, in exercise of its revisional jurisdiction under the Page 11 of 13 Uploaded by MISHRA AMIT V.(HC00187) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:28:27 IST 2025 NEUTRAL CITATION C/CRA/401/2015 CAV JUDGMENT DATED: 15/10/2025 undefined Bombay Rent Act, is entitled to set aside the impugned order as being not legal or proper.
6.11 The High Court can not interfere with the finding of facts recorded by the first Appellate Court. In revisional jurisdiction, the High Court can not exercise its powers as an appellate power to reappreciate or reassess the evidence for coming to a different finding of facts. Revisional jurisdiction is not and can not be equated with the powers of reconsideration of all questions of fact as a court of first appeal.
6.12 The findings recorded by the first appellate court are based on critical appreciation of the evidence led by the parties on record and does not suffer any error or material irregularities. The appellate Court has rightly come to the conclusion that the tenant has not used the suit premises for the purpose for which it was let without reasonable cause for a period of six months immediately preceding the date of suit, and therefore, there was no error committed by the court below which requires any correction at the hands of the High Court in exercise of revisional jurisdiction.
7. Under the revisional jurisdiction, the High Court is entitled to satisfy itself as to the correctness or legality or propriety of any decision or order impugned before it as indicated above. In view of the aforesaid facts and proposition of law and in view of the findings of fact by the appellate Court, since no case is made out to call for any interference in the judgment and order passed by the appellate Court quashing and setting aside the the judgment and decree passed by the trial Court, the present Revision Application requires to be dismissed and it is dismissed Page 12 of 13 Uploaded by MISHRA AMIT V.(HC00187) on Thu Oct 16 2025 Downloaded on : Fri Oct 17 02:28:27 IST 2025 NEUTRAL CITATION C/CRA/401/2015 CAV JUDGMENT DATED: 15/10/2025 undefined accordingly. Rule is discharged.
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