Gujarat High Court
Labhshankar Durgashankar Joshi vs Jaysukhlal Jadavji Morbia on 28 September, 2021
Bench: Vipul M. Pancholi
C/CRA/290/2021 ORDER DATED: 28/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 290 of 2021
With
CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of 2021
In R/CIVIL REVISION APPLICATION NO. 290 of 2021
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LABHSHANKAR DURGASHANKAR JOSHI
Versus
JAYSUKHLAL JADAVJI MORBIA
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Appearance:
MR JINESH H KAPADIA(5601) for the Applicant(s) No.
1,2,3,4,5
for the Opponent(s) No. 2,3,3.1
MR B U MODI(6069) for the Opponent(s) No. 1
MR ADIL MIRZA WITH MR SAVAN N PANDYA(5600) for the
Opponent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 28/09/2021
ORAL ORDER
1. This Civil Revision Application is filed under
Section 29 of the Bombay Rents, Hotel and Lodging
House Rates Control Act, 1947 (hereinafter referred
to as the 'Act') read with Section 115 of the Code of
Civil Procedure, 1908 (hereinafter referred to as the
'Code') by which the applicants - heirs of original
defendant No.1 viz. Durgashankar Revashankar Joshi
have challenged the order dated 30.04.1992 passed by
the Civil Judge (J.D.), Rapar - Kachchh in Civil Suit
No.42 of 1986 and order dated 24.10.2019 passed by
the Additional District Judge, Kachchh at Anjar in
Regular Civil Appeal No.4 of 2015.
2. The brief facts leading to filing of the present
C/CRA/290/2021 ORDER DATED: 28/09/2021
revision application are as under:
2.1. The respondent No.1 - original plaintiff filed
Regular Civil Suit No.42 of 1986 against the original
defendant No.1 - Durgashankar Revashankar Joshi (now
deceased). Present applicants are the legal heirs of
original defendant No.1. The said suit was filed for
getting vacant and peaceful possession of the suit
property by invoking the provisions of Sections 12
and 13 of the Act. It is mainly stated that the suit
premises was rented to the defendant No.1 for
business of lodge at the monthly rent of Rs.100. For
the purpose of payment of rent on monthly basis, the
month was considered to be started on 10 th and
completed on 9th of next month. The defendant No.1 -
tenant remained in arrears of rent for 36 months and
though demand notice was duly served to him, he
neither replied the same nor paid the outstanding
amount of rent. It is also stated that the defendant
No.1 - tenant has without getting permission of the
plaintiff - landlord, made modification in the suit
premises and the said changes are of permanent
nature. It is also contended that the suit premises
remained unused for almost 6 months as the defendant
No.1 has not used the suit premises for any purpose.
It is also alleged that the defendant No.1 has closed
his business of lodge at Rapar in suit premises and
was carrying a food shop at Sai village and the
plaintiff is in genuine need of the suit premises.
2.2. The defendant No.1 filed a written statement at
C/CRA/290/2021 ORDER DATED: 28/09/2021
Exh.26 and opposed the suit filed by the plaintiff.
During the pendency of proceedings before the trial
Court, an application was given by the plaintiff to
join one Mr. Thakkar Ratilal Dharamshi as defendant
No.2 on the ground of subletting of the suit
property. The said application was allowed and
therefore defendant No.2 was joined as party to the
proceedings before the trial Court. The defendant
No.2 also filed his written statement.
2.3. The trial Court framed the issues and after
considering the documentary as well as oral evidence
produced before it, allowed the suit vide judgment
and decree dated 30.04.1992 and thereby directed the
defendants to handover the peaceful and vacant
possession of the suit premises to the plaintiff and
to pay Rs.100 per month for the use of the suit
premises till the possession is handed over to the
plaintiff.
2.4. Being aggrieved and dissatisfied with the said
judgment and decree of eviction passed by the trial
Court, the original defendant no.1 filed Regular
Civil Appeal No.4 of 2015 before the Appellate Court.
The Appellate Court, vide impugned order dated
24.10.2019 dismissed the said appeal and confirmed
the judgment and decree dated 30.04.1992 passed by
the concerned trial Court.
2.5. The legal heirs of original defendant No.1 have,
therefore, filed the present revision application.
C/CRA/290/2021 ORDER DATED: 28/09/2021
3. Heard learned advocate Mr. Jinesh Kapadia for
the applicants and learned advocate Mr. Adil Mirza
assisted by learned advocate Mr. Savan Pandya for the
present opponent No.1 - original plaintiff -
caveator.
4. Learned advocate Mr. Kapadia appearing for the
applicants has mainly submitted that though the
plaintiff filed the suit on five grounds i.e. arrears
of rent, material alteration in the suit premises,
bona fide requirement of the suit properties of the
plaintiff, non-use of the premises in question by the
defendant No.1 and on the ground of subletting of the
suit premises to the defendant No.2, the decree of
eviction has been passed by the concerned trial Court
mainly on the grounds of arrears of rent, material
alteration in the suit premises and on the ground of
subletting. Thus, two other grounds were not believed
by the trial Court. At this stage, it is submitted
that the trial Court has wrongly considered the
demand notice Exh.161 and it was wrongly held that
the defendant No.1 has received the said demand
notice. It is also contended that there is no
signature of the defendant No.1 in the acknowledgment
receipt produced at Exh.163. In spite of that, the
trial Court has wrongly placed reliance upon the
presumption under Section 114 of the Evidence Act. It
is also contended that the trial Court has failed to
distinguish the provisions of Section 12(3)(a) and
12(3)(b) of the Act. It is also submitted that the
C/CRA/290/2021 ORDER DATED: 28/09/2021
trial Court has also committed an error in holding
that the defendant No.1 was in arrears of rent for
more than 6 months. In fact, the defendant No.1 has
deposited total amount of rent on the first day of
appearance and thereafter regularly deposited the
amount of rent till the decision is rendered by the
trial Court. At this stage, it is also submitted that
trial Court has also committed an error while relying
upon the telegram and on the basis of which wrongly
held that defendant No.1 - tenant has made
modification in the structure which is of permanent
in nature. The finding to that effect as recorded by
the trial Court is contrary to Section 13(B) of the
Act and the explanation given in the said Section.
5. Learned advocate Mr. Kapadia has, thereafter,
submitted that the trial Court has wrongly held that
the defendant No.1 has sublet the suit premises to
defendant No.2. In fact the defendant No.2 was a cook
and therefore he was in possession of the suit
premises. In support of the aforesaid contentions,
learned advocate Mr. Kapadia for the applicants has
referred the relevant observations made by the trial
Court as well as the Appellate Court. It is also
contended that the Appellate Court has not properly
appreciated the aforesaid important documents which
were produced before the trial Court and thereby
wrongly dismissed the appeal filed by the present
appellants. It is, therefore, urged that the impugned
orders passed by both the Courts below be quashed and
set aside.
C/CRA/290/2021 ORDER DATED: 28/09/2021
6. Learned advocate Mr. Kapadia for the applicants
has referred the provisions contained in Section
12(3)(a) and 12(3)(b) of the Act as well as Section
13(1)(d) and the explanation of Section 13(1) of the
Act. Learned advocate has also placed reliance upon
the decision rendered by this Court in the case of
Abdul Gani Abdul Latif v. Sarifa Begum D/o
Nizammuddin Saiyed Imam and others, reported in
2005(2) GLH 331 and decision rendered in the case of
Vadhere Devabhai Govindji v. Rameshwarpuri Ratanpuri ,
reported in (1984) GLH 110.
7. On the other hand, learned advocate Mr. Mirza
appearing for the opponent No.1 - caveator has
opposed this application and submitted that there are
concurrent findings of fact recorded by the Courts
below and therefore this Court may not interfere with
the impugned orders passed by the Courts below while
exercising revisional powers. It is further submitted
that the scope of interference is very limited. At
this stage, learned advocate Mr. Mirza submitted that
the plaintiff has proved before the trial Court that
defendant No.1 remained in arrears of rent for more
than 6 months and he has modified the structure of
the suit premises. The plaintiff has also proved that
defendant No.1 is not living in Rapar and in fact he
is carrying on business at village Sai where he is
having food corner. It is further submitted that the
defendant No.1 has sublet the suit premises to
defendant No.2. In support of the aforesaid
C/CRA/290/2021 ORDER DATED: 28/09/2021
contentions, the plaintiff had produced documentary
as well as oral evidence and relying upon the same,
the trial Court has passed decree of eviction and
Appellate Court has confirmed the said decree and
therefore this Court may not entertain the present
revision application.
8. At this stage, learned advocate for the opponent
No.1 - original plaintiff has pointed out the conduct
of the present applicants. It is submitted that
though the present revision application is prepared
in the year 2019 and filed on 06.01.2020, the
applicants did not remove the office objections.
Thereafter the matter is not even circulated and now
when the execution proceedings are at advance stage,
a mention is made for circulation of this application
and for dispensing with the office objections. It is
submitted that registration number is given to the
present application only on 22.09.2021 and therefore
this Court may not permit such type of practice
adopted by the applicants. It is, therefore, urged
that this application be dismissed.
9. Having heard the learned advocates appearing for
the parties and having gone through the material
placed on record, it would emerge that the opponent
No.1 herein is the original plaintiff who had filed a
suit before the concerned civil Court against the
defendant No.1 - Durgashankar Revashankar Joshi (now
deceased) for eviction of suit premises on various
grounds. It also reveals that the defendant No.1
C/CRA/290/2021 ORDER DATED: 28/09/2021
filed his written statement opposing the suit. During
the pendency of proceedings before the trial Court,
an application was given by the plaintiff to join one
Mr. Thakkar Ratilal Dharamshi as defendant No.2 on
the ground of subletting of the suit property. The
said application was allowed and therefore defendant
No.2 was joined as party to the proceedings before
the trial Court. The defendant No.2 also filed his
written statement. The trial Court after considering
the documentary as well as oral evidence produced
before it, allowed the suit and passed a decree of
eviction vide judgment and decree dated 30.04.1992.
Being aggrieved by the said order, defendant No.1 has
preferred an appeal before the Appellate Court.
However, the said appeal also came to be dismissed by
the Appellate Court vide impugned order dated
24.10.2019 and therefore the legal heirs of original
defendant No.1 has preferred this revision
application under Section 115 of the Code.
10. From the record, it is further revealed that it
is the specific case of the plaintiff that the
defendant was in arrears of rent for more than six
months and he has not paid the rent of the suit
premises from 10.07.1983 to 09.07.1986. The demand
notice was sent to the defendant no.1. Copy of the
said notice is produced before the trial Court at
Exh.161. During the course of deposition at Exh.137,
the plaintiff has stated that the defendant is in
arrears of rent of more than 6 months and though
notice was served, the defendant No.1 did not give
C/CRA/290/2021 ORDER DATED: 28/09/2021
reply nor has paid the amount. Deposition of
defendant No.1 was also recorded vide Exh.239. I have
gone through the depositions of plaintiff as well as
defendant No.1 and I am of the view that trial Court
has rightly held that denial of signatures on the
counterpart of the rent receipt is not plausible and
evidence of defendant No.1 - tenant is lacking
confidence. From the deposition of the plaintiff, it
is further revealed that it is his specific case that
demand notice issued to the defendant No.1 was duly
served. The plaintiff has also examined witness Shri
Somaji Ravji Thakore vide Exh.201. The said witness
was working as a Clerk in Mamlatdar office. He has
produced documentary evidence vide Exh.204 and 205.
From the said evidence, the trial Court has held that
the defendant No.1 is having address of Sai village.
In fact, the defendant No.1 has admitted in his
deposition that he is having food license at village
Sai. However, when demanded, the respondent No.1 has
failed to produce the Register of Business and
therefore the trial Court has rightly concluded that
defendant No.1 was residing at Sai village. On the
basis of the evidence placed on record, the trial
Court has rightly believed that demand notice was
duly served to the defendant No.1. Thus, with regard
to the aspect of issue of arrears of rent and service
of statutory notice, the trial Court as well as
Appellate Court have not committed any error while
believing the case of the original plaintiff.
11. From the material placed on record, it is
C/CRA/290/2021 ORDER DATED: 28/09/2021
further revealed that the defendant No.1 has not
denied the fact of modification carried out by him in
the suit premises. In fact the plaintiff has, in his
deposition, specifically stated about the same and
also examined photographer Shri Vashantbhai
Madhavjibhai Morbiya vide Exh.232. During the course
of his deposition, the said witness also produced the
photographs with its negative. The trial Court has,
after considering the rent note (bhada chitthi),
which is produced at Exh.196 and after considering
the photographs, rightly held that the modification
made by the defendant No.1 in the suit premises is of
permanent nature. Plaintiff has also placed reliance
upon Exh.158 - telegram which was sent by him to the
defendant No.1 with a request to stop the
construction work. From the record, it is clear that
a wall was constructed and iron sheds were placed in
the open chawk without the permission of the
plaintiff-landlord and it is nothing but modification
of permanent nature. Thus, no error is committed by
the trial Court as well as Appellate Court while
deciding the aforesaid issue.
12. With regard to the aspect of subletting of the
suit premises by the defendant No.1 to defendant No.2
is concerned, it is revealed that initially the
plaintiff has filed the suit against the respondent
No.1 only. However, on the basis of the material
placed before the trial Court, a request was made to
join defendant No.2 as party in the suit proceedings
and the said request of the plaintiff was accepted.
C/CRA/290/2021 ORDER DATED: 28/09/2021
The defendant No.2 has also filed written statement
before the trial Court. The plaintiff has
specifically deposed that defendant No.1 has sublet
the premises in question to the defendant No.2 and in
support of the said contention, witnesses viz.
Pravinchandra Amrutlal Thakkar - Exh.197 and Mahendra
Manilal - Exh.231 have been examined. At this stage,
deposition of witness Pranlal Vitthalji Thakkar -
Exh.225 is required to be considered. The said
witness was working in Rapar Nagar Panchayat. He had
produced Assessment Register and Notice of Assessment
at Exh.226 and 227 respectively. As per the record of
Nagar Panchayat, defendant No.2 was occupant of the
rented (suit) premises.
13. At this stage, it is also pertinent to note that
defendant No.1 - tenant has also examined the
witnesses in resistance of the suit claim. The trial
Court as well as the Appellate Court have rightly
held that none of the witnesses have, in their
depositions, stated the name of defendant No.2 as
cook working in the lodge of the defendant No.1 -
tenant. Thus, it is rightly held that the defendant
No.1 was not the occupant of the suit premises and he
has parted with the possession of the suit premises
to the defendant No.2.
14. This Court has also considered the provisions of
the Act and also considered the decisions upon which
the reliance is placed by the learned advocate for
the applicants. However, both the aforesaid decisions
would not render any assistance to the applicants, in
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the facts of the present case as discussed
hereinabove.
15. At this stage, this Court would like to refer to
the decision rendered by the Hon'ble Supreme Court in
the case of Tmt. Kasthuri Radhakrishnan & Ors. v. M.
Chinniyan & Anr., reported in (2016) 3 SCC 296,
wherein the Hon'ble Supreme Court has observed in
para 27 as under:
"27. So far as the issue pertaining to exercise of
revisional jurisdiction of the High Court while
hearing revision petition arising out of eviction
matter is concerned, it remains no more res integra
and stands settled by the Constitution Bench of this
Court in Hindustan Petroleum Corporation Limited vs.
Dilbahar Singh (2014) 9 SCC 78. Justice R.M. Lodha,
the learned Chief Justice speaking for the Bench held
in para 43 thus:
"43. We hold, as we must, that none of the
above Rent Control Acts entitles the High
Court to interfere with the findings of
fact recorded by the first appellate
court/first appellate authority because on
reappreciation of the evidence, its view
is different from the court/authority
below. The consideration or examination of
the evidence by the High Court in
revisional jurisdiction under these Acts
is confined to find out that finding of
facts recorded by the court/authority
below is according to law and does not
suffer from any error of law. A finding of
fact recorded by court/authority below, if
perverse or has been arrived at without
consideration of the material evidence or
such finding is based on no evidence or
misreading of the evidence or is grossly
erroneous that, if allowed to stand, it
would result in gross miscarriage of
justice, is open to correction because it
is not treated as a finding according to
C/CRA/290/2021 ORDER DATED: 28/09/2021
law. In that event, the High Court in
exercise of its revisional jurisdiction
under the above Rent Control Acts shall be
entitled to set aside the impugned order
as being not legal or proper. 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. However, to satisfy
itself to the regularity, correctness,
legality or propriety of the impugned
decision or the order, the High Court
shall not exercise its power as an
appellate power to reappreciate or
reassess the evidence for coming to a
different finding on facts. Revisional
power is not and cannot be equated with
the power of reconsideration of all
questions of fact as a court of first
appeal. Where the High Court is required
to be satisfied that the decision is
according to law, it may examine whether
the order impugned before it suffers from
procedural illegality or irregularity."
Thus, it is clear that the High Court can exercise
its revisional powers only when the orders passed by
the Courts below suffer from procedural illegality or
irregularity but it cannot interfere with the
findings of fact of Courts below merely because on
re-appreciation of evidence, it comes to a view
different from that of the Courts below.
16. Thus, in the facts and circumstances of the
present case, this Court is not inclined to entertain
the present revision application. The application is,
accordingly, dismissed.
17. In view of dismissal of the main application,
C/CRA/290/2021 ORDER DATED: 28/09/2021
civil application does not survive and accordingly
stands disposed of.
(VIPUL M. PANCHOLI, J)
LAVKUMAR J JANI
