Gujarat High Court
Soni Vinod Popatlal vs Kantilal Arjan Parmar on 9 February, 2022
Bench: Umesh A. Trivedi
C/CRA/75/2022 ORDER DATED: 09/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 75 of 2022
======================================
SONI VINOD POPATLAL
Versus
KANTILAL ARJAN PARMAR
======================================
Appearance:
MR RASHESH A RINDANI(5380) for the Applicant(s) No. 1,2,3,4
MR SHIRISH H GOHIL(3253) for the Applicant(s) No. 1,2,3,4
for the Opponent(s) No. 1,2,3,4
======================================
CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 09/02/2022
ORAL ORDER
1. Heard Mr. Rashesh Rindani, learned advocate for
the applicants.
2. By way of this Civil Revision Application, applicants
- landlords seeks to challenge the judgment and decree
passed by the learned Judicial Magistrate First Class, Mandvi-
Kachchh vide order dated 15.12.2016 in Regular Civil Suit
No.116 of 2004 dismissing the suit refusing decree sought for
on the ground of tenant in arrears of rent. Aggrieved by the
said dismissal of the suit, the applicants preferred Regular Civil
Appeal No.3 of 2017, which came to be dismissed vide order
dated 08.10.2021 by learned 3 rd Additional District Judge, Bhuj.
Challenging both these orders, the applicants are in this
Revision under Section 29(2) of the Gujarat Rents, Hotel and
Lodging House Rates Control Act, 1947 (hereinafter referred to
as 'the Act').
C/CRA/75/2022 ORDER DATED: 09/02/2022
3. Mr. Rashesh Rindani, learned advocate for the
applicants, submitted that the issue framed by the trial Court,
whether the plaintiffs prove that the change of ownership is
being informed to the defendents - tenants even orally came
to be answered in negative. However, he has submitted that
when suit notice came to be issued by the landlord to the
defendants - tenants claiming rent for the last 10 years, the
said notice was replied by the defendants - tenants and it is
the case of the defendants - tenants that the amount of rent
had been sent by Money Order, which was refused by the
applicants - landlord. According to the submission of Mr.
Rashesh Rindani, learned advocate for the applicants, the
factum of change of ownership of the tenanted property is
within the knowledge of defendants - tenants or else they
would not have responded to the notice demanding arrears of
rent.
4. However, nothing much turns on it, since the suit
was filed claiming vacant and peaceful possession on the
ground that the defendants - tenants are in arrears of rent for
more than 6 months prior to the date of the suit. The trial
Court after examining the evidence led before it concluded
that the defendants - tenants had attempted to pay the rent as
demanded of 10 years by way of Money Order, which came to
be refused by the applicants - landlord, and therefore, it
cannot be said that the defendants - tenants were in arrears of
rent for more than 6 months prior to the date of the suit. Not
only that, it is recorded by the trial Court that defendant no.5
was examined vide Exh.74 and he deposed before the Court
that on refusal of the Money Order of the demanded arrears of
C/CRA/75/2022 ORDER DATED: 09/02/2022
rent, the amount came to be deposited by the defendants -
tenants before the Court and in support of the said assertion,
defendant no.5 produced documentary evidence vide Exh.77
to 80, more particularly, Exh.80, which is the receipt of
depositing the arrears of rent before the Court. The appellate
Court has also reappreciated the evidence adduced before the
trial Court and concluded in paragraph 10.2 of the decision
that the defendants - tenants had attempted to pay the rent,
as demanded, but the applicants - landlord refused to accept
the same and that exercise was done within a period of one
month of issuance of notice by the applicants. It is further
concluded by the appellate Court on reappreciation of
evidence that the applicants - landlord had initially refused the
Money Order so as to claim the possession of the suit premises
from the defendants - tenants.
5. Since there are concurrent findings of facts by both
the Courts on appreciation and reappreciation of evidence by
the appellate Court holding that the defendants - tenants
cannot be said to be in arrears of rent as claimed by the
applicants - landlord, I see no reason to interfere with the
impugned judgment and order, that too in this revisional
jurisdiction under Section 29(2) of 'the Act'. Hence, this
Revision Application is rejected.
6. Mr. Rashesh Rindani, learned advocate for the
applicants - landlord, submitted that the suit premises is not
being used by the defendants - tenants and it is lying vacant,
and therefore also, the possession should have been handed
over to the applicants - landlord by passing a decree.
C/CRA/75/2022 ORDER DATED: 09/02/2022
7. The contention that the suit is required to be
decreed on the ground of non user by the defendants- tenants
is without any assertion in the suit itself as suit came be filed
only on the ground of arrears of rent and no evidence was ever
led or defendants - tenants was asked to lead evidence to
meet with the claim of non user. Such arguments, bereft of
pleading itself, that too, at the revisional stage, cannot be
permitted to be raised and that is also rejected.
(UMESH A. TRIVEDI, J.)
siji
