Heirs Of Mavjibhai Tulsibhai vs Gulam Mohammad Musabhai
2022 Latest Caselaw 9253 Guj

     C/CRA/1044/2002                               ORDER DATED: 19/10/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/CIVIL REVISION APPLICATION NO. 1044 of 2002
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                     HEIRS OF MAVJIBHAI TULSIBHAI
                                Versus
                 GULAM MOHAMMAD MUSABHAI & 7 other(s)
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Appearance:
MR G R MANAV(6064) for the Applicant(s) No. 1,1.1,1.2,1.4,1.5,1.6,1.7,1.8
MR MHM SHAIKH(2007) for the Applicant(s) No. 1.3
MS RATNA VORA(2251) for the Applicant(s) No. 1.3
DELETED for the Opponent(s) No. 2,4,5,7
HCLS COMMITTEE(4998) for the Opponent(s) No. 1
MR GAURAV K MEHTA(5227) for the Opponent(s) No. 1
NOTICE UNSERVED for the Opponent(s) No. 3.1,3.2,3.3,6,8
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                  Date : 19/10/2022
                   ORAL ORDER

1. The present revision application emanates from the H.R.P. Civil Suit No.4264 of 1987, which was filed by the landlords against the present applicants - tenants seeking the possession of the suit property, which was decreed in favour of the landlord by the judgment and order dated 02.09.1997. Being aggrieved by the judgment and order, the tenants have filed Civil Appeal No.140 of 1997 before the Appellate Bench of the Small Causes Court at Ahmedabad. The Appellate Bench also confirmed the order passed by the Trial Court vide judgment and order dated 28.09.2001, which has given rise to the present revision application.

2. Learned advocate Mr.G. R. Manav, appearing for the applicants has submitted that both the Courts below have fallen in error, while passing the orders of seeking possession of the suit property. It is submitted that the Trial Court should

C/CRA/1044/2002 ORDER DATED: 19/10/2022

have appreciated the fact that the tenants were regularly paying the rent and are entitled to the protection under Section 12(3)(b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, (for short, "the Rent Act"). It is submitted that even the standard rent, which has been fixed by the Trial Court was regularly deposited by the tenant and hence, he would be also entitled to protection under Section 12(3)(a) of the Rent Act. Learned advocate has further submitted that in fact, the suit is decreed by resorting to the provisions of Section 13(b) of the Rent Act, and handing over of the possession of the suit property to the plaintiff was erroneous, since the construction, which was undertaken by the tenants, was after the permission of the landlord. Learned advocate has further submitted that the Trial Court has in fact, recorded the findings in favour of the tenants with regard to the deposit of the rent and hence, the decree, while resorting to the provisions of Section 13(1)(b) of the Rent Act were not uncalled for. Thus, he has submitted that the impugned orders may be quashed and set aside.

3. No one appears on behalf of the opponents, even after passage of 20 years, when the matter is taken up for hearing.

4. This Court has perused the orders passed by the Trial Court as well as the Appellate Court. Both the Courts below have concurrently held that the tenants - present applicants has constructed a room of 12"X12" on the first floor of the old premises of the plaintiff, without any permission from the landlord and hence, the decree was passed in favour of the

C/CRA/1044/2002 ORDER DATED: 19/10/2022

plaintiff for handing over the possession of the suit property to the plaintiff. This Court has perused the impugned order passed by the Trial Court, which is confirmed by the Appellate Court, as well as the evidence, which has surfaced on record. The Trial Court has in fact, observed that after the standard rent was fixed by the Trial Court, the tenants have been regularly paying the same and depositing before the Trial Court. It is also noticed that as on today, the tenants are depositing the regular rent before the Court below. The plaintiff initially had raised an objection that the defendants tenants would not be entitled to the protection under Section 12(3)(a) of the Rent Act, as they have paid the amount of the arrears of rent, even after the payment of the notice, however the Court below after examining the oral as well as documentary evidence, has concluded that the provision of Section 12(3)(a) of the Rent Act, is not applicable to the facts of the present case, however the case would be governed under Section 12(3)(d) of the Rent Act, since the defendants have deposited various amounts before the Corporation, after the fixation of standard rent by the Court below. It is the case of the plaintiff that the tenants were arrears in rent of Rs.763/- as on 01.11.1978. The evidence produced at pursis below Exh.110 during the period of 18.03.1982 to 11.08.1984 reveals that the defendants have deposited the standard rent, as fixed by the Court below. The receipt below Exh.52 shows that previously the rent was Rs.6.50 ps., however the plaintiff has increased the same to Rs.7/- and the Court below had resolved in the judgment and fixed the standard rent of Rs.7/-.

C/CRA/1044/2002 ORDER DATED: 19/10/2022

5. Thus, it was held that since the defendants were ready and willing to pay the rent and hence, the Trial Court has held that though the defendants - tenants were in arrears of rent for a period of six months, but since they have deposited the standard rent, they would be entitled to protection under Section 12(3)(b) of the Rent Act, as they have deposited all the arrears of the rent in the Court and hence, the decree for eviction cannot be passed under Section 12(3)(b) of the Rent Act and such issue can be decided in affirmative in favour of the defendants. There were various issues framed by the Trial Court below Exh.40. The relevant issues which would be governing in the present application would be issue Nos.4 and 5, which read as under : -

" 4. Whether the plaintiff proves that the defendant has erected permanent structure of the suit premises without permission in writing as alleged ?

4A. Whether the plaintiff proves that the defendant has constructed a kachha shade in the common passage and this action of the defendant amounts to nuisance and annoyance.

5. Whether the defendant proves that the suit premises vested in Ahmedabad Municipal Corporation and the plaintiffs are not entitled to file the suit."

6. The issue No.4 is answered in affirmative, whereas the issue Nos.4A and 5 are answered in negative, hence the dispute was solely examined by the Trial Court, in view of the issue No.4, which pertains to the construction of permanent structure in the suit premises without permission of the landlord, and hence, the landlord would be entitled to recover the possession of the suit property under the provisions of

C/CRA/1044/2002 ORDER DATED: 19/10/2022

Section 13(b) of the Rent Act. The provisions of Section 13(b) of the Rent Act reads as under.

13. When landlord may recover possession. - (1) Notwithstanding anything contained in this Act [but subject to the provisions of Section 15] a landlord shall be entitled to recover possession of any premises if the Court is satisfied.-

(a) xxxxxx

(b) [that, save as otherwise provided in Section 23-A], the tenant has, without the landlord's consent given in writing, erected on the premises any permanent structure; or"

7. A bare perusal of the provisions reveals that the landlord is entitled to recover the possession of the suit premises, if the tenants have, without the landlord consent, given in writing, erected on the premises any permanent structure. This Court has perused the evidence in this regard. The most relevant evidence would be the cross-examination of the defendants below Exh.70. In the cross-examination, in fact, the defendants have admitted that they have constructed a room ad- measuring 12"X12".

8. The defendants were unable to prove that such construction was made after the landlord had given consent in writing. Though the defendants have deposed that such construction was made with the oral construction, however the same would not satisfy the requirement of Section 13(b) of the Rent Act, which mandates of written permission. It is noticed by this Court that the Court below also called for Commissioner's report at Exh.50 and the Map of the suit premises at Exh.51. The Map of the suit room and the Commissioner's report reveal that there has been a

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construction of 12"X12", in the shade (latrine and bathroom are constructed).

9. Thus, the evidence reveals that there was a permanent construction made in the suit premises situated in the Chowk. The defendants have miserably failed to produce any documents showing that such construction was in fact, made either with the permission of the landlord, and after seeking permission from the Corporation. The defendants did not produce any sanctioned plan of the Corporation to carry out such construction and the constriction was declared as illegal and hence, in the considered opinion of this Court, the Trial Court was justified in decreeing the suit by resorting to the provisions of Section 13(1)(b) of the Rent Act. The Appellate Court, while examining the aforesaid evidence has confirmed the findings recorded by the Trial Court in this regard. The Appellate Court has also recorded the evidence proving that the tenant had constructed the permanent structure in the suit premises without there being any consent from the landlord. Thus, there being concurrent findings of both the Courts below on facts with regard to the permanent structure constructed by the tenant in the suit premises of the landlord, without there being any written permission, this Court, while exercising its power conferred under the provisions of Section 29(2) of the Rent Act, cannot disturb such concurrent findings of the fact. Once it is proved that the tenants had illegally constructed the room, without the permission from the landlord, the judgment and decree passed by the Trial Court directing the defendants

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to handover the peaceful and vacant possession of the suit premises cannot be interfered with.

10. Hence, the revision application fails. The record and proceedings be sent back to the concerned Court forthwith. Interim relief stands vacated. The tenant / appellant shall handover the vacant and peaceful possession of the suit premises to the plaintiff on or before 31.12.2022. No order as to costs.

(A. S. SUPEHIA, J)

MB/177