Gujarat High Court
Lh Of Decd Balkrushna Hiralal Lohar vs Devji Shivji Vekariya on 5 December, 2023
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
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C/CRA/434/2022 ORDER DATED: 05/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 434 of 2022
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LH OF DECD BALKRUSHNA HIRALAL LOHAR
Versus
DEVJI SHIVJI VEKARIYA
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Appearance:
MR AR THACKER(888) for the Applicant(s) No.
1,1.1,1.2,1.3,1.4,1.5,1.6,1.7,1.8
DECEASED LITIGANT for the Opponent(s) No. 1
MR RAJESH K SHAH(784) for the Opponent(s) No. 1.1
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 05/12/2023
ORAL ORDER
1. The applicants herein are legal heirs of deceased
Balkrushna Hiralal Lohar. The respondents herein are original
plaintiffs - landlord filed Regular Civil Suit No.188 of 2002 in
the Court of learned Civil Judge (J.D.) Kutch at Bhuj for
evicting the tenant late Shri Balkrushna Hiralal Lohar on the
ground that the respondent had rented the premises to the
applicant (original defendant) and monthly rent of the premises
was fixed at Rs.525/- consisting of two rooms, kitchen, latrine
and bathroom. The main ground raised in the suit was that
the father of the applicants was in arrears of the rent and had
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not paid the rent and also that father of applicants is having
alternative accommodation and has made permanent
construction of Tanki in the Faliya (compound) of the
premises.
2. The Regular Civil Suit No. 188 of 2002 came to be
dismissed by judgment and decree dated 5.1.2007 passed by
the learned Civil Judge (J.D.) Kutch at Bhuj. Being aggrieved
by the same, the respondent herein (orig. plaintiff) preferred
Regular First Appeal before the District Court, Kutch at Bhuj
which was registered as Regular Civil Appeal No. 11 of 2007.
The applicants also filed the cross objection under order 41
rule 22 of the Civil Procedure Code.
3. The Learned 8th Additional District Judge, Kutch at Bhuj
determined the points for determination. The cross objections
filed by the applicants (original defendants) with respect to
standard rent which had been fixed by the Trial court as per
the prayer made in the written statement before the Trial
court.
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4. The learned Appellate Court by judgment and decree
dated 7.3.2022 allowed the Regular Civil Appeal No.11/2007
whereby the learned Judge directed the original defendants to
pay monthly rent of Rs.3000/- p.m. from dated 1.5.2006 and
arrears of the rent till date were directed to be paid/deposited
in the Court within a period of one month from the date of
the order and pay monthly rent of Rs.3000/- regularly. In case
of failure to pay the rent the original defendants would be
evicted forthwith and proceeded to pass the following order :-
"-: FINAL ORDER :-
"The appeal is partially allowed.
The Respondent - Original Defendants are hereby, ordered
and directed to pay the rent of Rs.3,000/- per month from
dated 01/05/2006 to the Appellant / Original Plaintiff /
landlord and they shall pay or to deposit in the Court the
arrears of rent from dated 01/05/2006 till date to Plaintiff,
within the period of one month from the date of this order,
to the Plaintiff. In case of failure of Respondent / Original
Defendants to pay / deposit the said arrears of rent within
the said period, the Respondent / Original Defendants shall
be evicted forthwith from the suit premises.
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The Respondents Original Defendants, after paying the arrears
of rent, shall continue to pay monthly rent of Rs. 3,000/- per
month regularly every month to the Appellant / Original
Plaintiff.
The impugned Judgment & Order passed by Ld. Additional
Civil Judge, Bhuj, on dated 05/01/2007 in Regular Civil Suit
No.188/2002, is hereby quashed and set aside.
Yadi, alongwith the copy of this Judgment and Order as well
as the Record and Proceeding of Regular Civil Suit No.
188/2002, is ordered to be sent back to the Hon'ble
Additional Civil Court, Bhuj, forthwith.
The Respondents / Original Defendants shall bear their own
costs as well as costs of the Appellant / Original Plaintiff.
DECREE IS TO BE DRAWN ACCORDINGLY"
5. Mr. A. R. Thacker, the learned advocate appearing for
the applicants submitted that the issue with regard to the
standard rent fixed by the trial Court for which the respondent
has not raised said issue in the memo of appeal or at the time
of hearing. The learned Appellate Court enhanced the rent
from Rs.525/- p.m. to Rs.3,000/- p.m. from dated 1.5.2006 till
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the date of the order dated 7.3.2022. Considering the
deposition of the applicant No.1 directed the applicants to
deposit the said amount within time.
5.1 Placing reliance on the aforesaid submissions, it was
submitted that the order passed by the learned Appellate Court
is in excess of jurisdiction having not even prayed for by the
respondent (original plaintiff) seeking enhancement of the rent.
Placing reliance on the same, it was submitted that the order
passed by the learned Appellate Court is against the provisions
of Section 11 of the Bombay rents, Hotel and Lodging House
Rates Control Act, 1947 (for short 'BHLHRC Act'). In absence
of the standard rent having been fixed by the trial Court and
in absence of any contention raised by the respondent (original
plaintiff), the impugned order passed by the Appellate Court is
without weighing any evidence, only on the deposition of the
applicant No.1 standard rent cannot be fixed.
5.2 Reliance was placed on the decision reported in 2014 (2)
SCC 269 wherein it is held that, "on the basis of weakness of
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the defendants, suit cannot be decreed". It was submitted that
undisputedly the respondent has given the premises on rent at
the rate of Rs.525 + Rs.30 for water connection, which was
rented to late Shri Balakrishna on 1.9.1989 and that for fixing
the standard rent the said period from 1.9.1989 was required
to be taken into account as per the provisions of Section 11 of
the BHLHRC Act, but not as per the deposition of record in
the year 2006.
5.3 It was submitted that the standard rent was fixed by the
landlord prior to 1999, therefore the rent of 2006 cannot be
taken into account for fixing the standard rent. It was also
submitted that for providing alternative accommodation the
respondent has examined the witnesses at Ex.39 and 40. It was
submitted that for alternative accommodation the respondent
has examined witnesses at Ex.39 and 40.
5.4 Placing reliance on the aforesaid, it was submitted that
the cause of suit to arrive for alternative accommodation on
making tank in the suit premises only and not on the ground
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of arrears of rent, therefore regarding standard rent dispute
cannot be raised in the suit. The same issue with respect to
standard rent cannot be raised in the said suit. Placing reliance
on the aforesaid submissions, it was submitted that the
impugned order be quashed and set aside and the learned
District Court be directed to decide the said Appeal preferred
by the respondent (original plaintiff) afresh.
6. Heard Mr. A. R. Thacker, the learned advocate appearing
for the applicants and Mr. Rajesh K. Shah, the learned
advocate appearing for the opponent.
7. Considering the submissions advanced by Mr. A. R.
Thacker, the learned advocate appearing for the applicant and
Mr. Rajesh K. Shah, the learned advocate appearing for the
opponent, the learned advocates jointly agreed that the matter
be remanded to the learned District Court, Kutch at Bhuj for
deciding Appeal afresh. Considering all the issues involved in
the Appeal the parties do not invite a reasoned order.
8. Considering the fact that while passing the impugned
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order the learned District Court has travelled beyond the
prayers as prayed for in the Appeal proceedings by the
respondent (original plaintiff) and proceeded to fix the standard
rent at Rs.3000/- p.m. on the basis of deposition of applicant
No.1. The respondent (original plaintiff) having fixed the
standard rent in the year 1999, the rent could not have been
fixed on the basis of deposition of the applicant No.1.
9. For the foregoing reasons, the judgment and order dated
7.3.2022 passed in the Regular Civil Suit No.11 of 2007 by the
learned 8th Additional District Judge, Kutch at Bhuj is hereby
quashed and set aside remanding the matter to the learned
District Court, Kutch at Bhuj for deciding Regular Appeal
No.11 of 2007 afresh, independently and in accordance with
law after providing opportunity of hearing to both the sides.
10. For the foregoing reasons, the present civil revision
application is partly allowed.
(VAIBHAVI D. NANAVATI,J)
K.K. SAIYED
