Gujarat High Court
Shashikant Bhagvanji Bhanushali vs Jashvantiben Surendrabhai Ashar on 8 September, 2025
NEUTRAL CITATION
C/CRA/439/2025 ORDER DATED: 08/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 439 of 2025
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SHASHIKANT BHAGVANJI BHANUSHALI
Versus
JASHVANTIBEN SURENDRABHAI ASHAR & ORS.
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Appearance:
MR. HEMAL SHAH(6960) for the Applicant(s) No. 1
ORTIS LAW OFFICES(12342) for the Applicant(s) No. 1
MR MAKBUL I MANSURI(2694) for the Opponent(s) No. 1,2,3,4
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 08/09/2025
ORAL ORDER
1. The present Revision Application is filed under Sectiodn 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as "the Rent Act") challenging the judgment and decree dated 01.04.2025, passed by the Additional District Judge, Jamnagar in Regular Civil Appeal No.88 of 2012, whereby the appellate Court has confirmed the judgment and decree, dated 31.08.2010 passed by 5th Additional Senior Civil Judge, Jamnagar in Regular Civil Suit No.808 of 2003.
2. For the sake of convenience, the parties are referred to as per their original status as that in the suit.
3. The brief facts arising in the present Revision Application are that the plaintiff being the owner of the suit property, filed a suit against the defendant/tenant on the ground that the defendant is irregular in paying the rent of the suit property. It was the case of the plaintiff that the monthly rent of the suit Page 1 of 10 Uploaded by MANOJ KR. RAI(HC01072) on Tue Sep 09 2025 Downloaded on : Wed Sep 10 00:10:44 IST 2025 NEUTRAL CITATION C/CRA/439/2025 ORDER DATED: 08/09/2025 undefined property is Rs.228/- and that the defendant has not paid total rent of Rs.6612/- for the period from 01.06.2001 to 30.10.2003 despite the demand by the plaintiff. It is the case of the plaintiff that the plaintiff had sent statutory notice vide Exhibit-45, by registered post and the defendant has not received the said notice and said notice has returned with the endorsement of "refused" is produced vide Exhibit-46. It is the case of the plaintiff that the defendant has intentionally not received the notice and also not paid the rent to the plaintiff, and therefore, the plaintiff was entitled to vacate and peaceful possession of the premises. The defendant had appeared in the said suit and had taken defence that no statutory notice produced vide Exhibit-45 acknowledgment-46 has been received by the defendant, and therefore, the suit for eviction on the ground of defendant being in arrears in rent could not be filed and allowed. The trial Court framed issues vide Exhibit-20, which are as under:-
Issue Finding
1. Whether the plaintiff proves that he is the owner of the disputed Affirmative
property admeasuring at 12 x 12 feet which is situated at Jamnagar Digvijay Plot, Street No.58, Surendra Mention which is mentioned at Mar-1/1?
2. Whether the plaintiff proves that rent of the disputed property is Partly Rs.228/- which has been given to the defendant? Affirmative Page 2 of 10 Uploaded by MANOJ KR. RAI(HC01072) on Tue Sep 09 2025 Downloaded on : Wed Sep 10 00:10:44 IST 2025 NEUTRAL CITATION C/CRA/439/2025 ORDER DATED: 08/09/2025 undefined
3. Whether the plaintiff proves that the present suit has been filed due Affirmative to non-payment of rent more than six months?
4. Whether the plaintiff proves that he has required for disputed shop Negative for his personal use?
5. Whether the plaintiff proves that defendant has not paid the rent Affirmative amount despite service of notice?
6. Whether the plaintiff proves that he is entitled to get the Rs.6612/- Partly from the defendant at a monthly rent of Rs.228/-? Affirmative
7. What order and decree? As per final order
4. The plaintiff examined himself vide Exhibit-27, the defendant examined himself vide Exhibit-57 and after considering the oral and documentary evidence and giving findings on all the issues the trial Court allowed the said suit and under the provision of section 12(3) of the Rent Act directed the defendant to hand over the peaceful possession of the suit premises and also directed defendant to pay rent of an amount of Rs.6525/- as arrears of rent and an amount of Rs.225/- as mesne profit from 01.11.2003 till the possession is handed over to the plaintiff.
5. Being aggrieved by the said judgment and decree the defendant filed Regular Civil Appeal No.88 of 2012 and after reappreciating the evidence the trial Court dismissed the said appeal. Being aggrieved by the said appeal, the present Revision Page 3 of 10 Uploaded by MANOJ KR. RAI(HC01072) on Tue Sep 09 2025 Downloaded on : Wed Sep 10 00:10:44 IST 2025 NEUTRAL CITATION C/CRA/439/2025 ORDER DATED: 08/09/2025 undefined Applicaion is filed.
6. Learned advocate for the defendant has argued that the trial Court and the appellate Court have wrongly taken into consideration the fact that the statutory notice under Section 12 has been received by the defendant. It has been argued by the learned advocate for the defendant that if the notice and summons of the present Civil Suit No.808 of 2003 could have been served to the defendant at the shop there was no reason for the defendant not to accept the said statutory notice, and therefore, also the trial Court and appellate Court have not taken into consideration the fact that the defendant has not received any statutory notice under Section 12 of the Rent Act.
7. It has been argued by learned advocate for the defendant that, if the notice produced vide Exhibit-45 is taken into consideration, no shop number has been stated in the said notices, and therefore, it cannot be said that the postman had come to serve the notice produced vide Exhibit-45 at the suit shop.
8. Learned advocate for the defendant has also argued that the plaintiff having not served the statutory notice he could not file a suit for eviction on the ground of defendant being tenant in arrears and in view of the said fact, the trial Court and the Page 4 of 10 Uploaded by MANOJ KR. RAI(HC01072) on Tue Sep 09 2025 Downloaded on : Wed Sep 10 00:10:44 IST 2025 NEUTRAL CITATION C/CRA/439/2025 ORDER DATED: 08/09/2025 undefined appellate Court could not have passed a judgment and decree of eviction, and therefore, the present Revision Application is required to be allowed. Learned advocate for the defendant relied on the judgment in the case of Vadhere Devubhai Govindji v. Rameshwarpuri Ratanpuri reported in 1984 GLH 110 to prove the fact that mere refusal could not be considered as a valid notice if the tenant proves that the tenant had not served the said notice.
9. Per contra, learned advocate for the plaintiff has argued that considering the facts of the present case, the notice was served to the defendant at the address stated in the cause title of the suit and in the oral evidence of the defendant, the defendant has stated that, the address mentioned in the envelope is of the suit shop and the said address is correct and only number of the suit shop is not mentioned. Moreover, it has also been argued by the learned advocate for the plaintiff that earlier when the notice of the suit were sent at the same address, the defendant had not accepted the said summon and notice of the Court, and thereafter, an application was filed by the plaintiff to serve the summons and notice of the suit to the defendant, by affixing the summons and notices of the suit at the suit property, it is at that stage that the defendant had appeared, and therefore, even the summons and notices of the suit had been refused by the Page 5 of 10 Uploaded by MANOJ KR. RAI(HC01072) on Tue Sep 09 2025 Downloaded on : Wed Sep 10 00:10:44 IST 2025 NEUTRAL CITATION C/CRA/439/2025 ORDER DATED: 08/09/2025 undefined defendnat at the first instance, and therefore, it can be clearly established that the defendant is in habit of refusing the notices of the Court and the fact that the defendant in his cross- examination had admitted that the address mentioned in the statutory notice is that of the suit property and only shop number is not stated, therefore, it is not the case of the defendant that notice is sent to a wrong address, therefore, the statutory notice under section 12 of the Rent Act having been served, and the defendant having not paid the rent, the judgment and decree passed by the trial Court and confirmed by the first appellate Court cannot be quashed and set aside.
10. Having heard learned advocate for the parties and having considered the judgment and decree passed by the trial Court and first appellate Court, the fact remains that the plaintiff had proved that the plaintiff is the owner of the property, the documents that have been produced by the Postal Department states that the remittance acknowledgment have been destroyed as per rules and in the said letter the address of disputed shop is mentioned. If the cross-examination of defendant is taken into consideration, in the said cross-examination also, the defendant has categorically stated that the address mentioned in the envelope produced vide Exhibit-44, is that of the suit shop and the only fact remains is that the shop number was not mentioned Page 6 of 10 Uploaded by MANOJ KR. RAI(HC01072) on Tue Sep 09 2025 Downloaded on : Wed Sep 10 00:10:44 IST 2025 NEUTRAL CITATION C/CRA/439/2025 ORDER DATED: 08/09/2025 undefined in the said envelope. Vide Exhibit-40, plaintiff has produced the document to show that the receipts have been issued to the other tenants and the defendant has not produced any document to show that the defendant has paid rent and receipts have been issued. Moreover, the defence that was taken by the defendant was that receipts were not received even of the rent is paid, there is nothing on record to prove the fact that defendant has ever written letter to the plaintiff that though the rent is paid, the rent receipts are not issued. Therefore, the trial Court and the appellate Court rightly held that defendant intentionally refused the notice. Moreover, the fact that the summons and notices of Civil Suit No.808 of 2003 was sent at the same address that is mentioned in the statutory notice sent by the plaintiff which is produced vide Exhibit-45 and the servant of defendant having refused the said notice and summons of the suit, and thereafter, summons and notices of the suit were affixed by the order of the trial Court at the same address i.e. mentioned on the envelope produced vide Exhibit-46 clearly shows and establishes that the address mentioned in the statutory notice is the correct address of the defendant, in view of the fact that after the order of affixation of the summons and notices of Civil Suit No.808 of 2023, the defendant had appeared, therefore, the trial Court and the appellate Court has rightly considered the provision of section 27 of the General Clauses Act and section 114 of the Page 7 of 10 Uploaded by MANOJ KR. RAI(HC01072) on Tue Sep 09 2025 Downloaded on : Wed Sep 10 00:10:44 IST 2025 NEUTRAL CITATION C/CRA/439/2025 ORDER DATED: 08/09/2025 undefined Indian Evidence Act and the trial Court and appellate Court have scruitinized the record and proceedings and have rightly come to the conclusion that the plaintiff had issued statutory notice to the defendant on his correct address, which is just and proper.
11. 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 reasoning of the Court below 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 is confined to find out that findings of fact recorded by the courts below is according to law and does not suffer from any abuse of law. The findings recorded by the Court below if perverse or has 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 Page 8 of 10 Uploaded by MANOJ KR. RAI(HC01072) on Tue Sep 09 2025 Downloaded on : Wed Sep 10 00:10:44 IST 2025 NEUTRAL CITATION C/CRA/439/2025 ORDER DATED: 08/09/2025 undefined it is not treated as finding according to Law and in that event the High Court, in exercise of its revisional jurisdiction under the Bombay Rent Act, is entitled to set aside the impugned order as being not legal or proper.
12. The High Court can not interfere with the finding of facts recorded by the first Appellate Court. The consideration or examination of the evidence by the High Court in revisional jurisdiction under this Act is confined to find out that finding recorded by the courts below is according to Law and does not suffer from any error of Law and only if the finding of facts recorded by the courts below, is perverse or has been arrived at without consideration of the material evidence or that such finding is based on no evidence, or misreading of the evidence, or is grossly erroneous that, if allow to stand, it would result in gross miscarriage of justice and the same is open to correction as the same is not treated as findings according to Law and in the present case, the finding of facts recorded by the trial Court and the appellate Court is neither perverse nor arrived at without consideration of the material evidence. In the present case, 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 Page 9 of 10 Uploaded by MANOJ KR. RAI(HC01072) on Tue Sep 09 2025 Downloaded on : Wed Sep 10 00:10:44 IST 2025 NEUTRAL CITATION C/CRA/439/2025 ORDER DATED: 08/09/2025 undefined reconsideration of all questions of fact as a court of first appeal.
13. The findings recorded by both the courts below are based on critical appreciation of the evidence led by the parties on record and does not suffer any error or material irregularities. The Court below has rightly come to the conclusion that the tenant is tenant in arrears, and therefore, there was no error committed by the courts below which requires any correction at the hands of the High Court in exercise of revisional jurisdiction.
14. 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 concurrent findings of fact by both the Courts below, since no case is made out to call for any interference in the judgment and order passed by the appellate Court upholding the judgment and decree passed by the trial Court, the present Revision Application requires to be dismissed and it is dismissed accordingly.
(SANJEEV J.THAKER,J) Manoj Kumar Rai Page 10 of 10 Uploaded by MANOJ KR. RAI(HC01072) on Tue Sep 09 2025 Downloaded on : Wed Sep 10 00:10:44 IST 2025