Saiyad Kamilshah Kabilshah vs Pirshah Hammad Roza Trust
2023 Latest Caselaw 2386 Guj

     C/CRA/156/2023                             ORDER DATED: 20/03/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CIVIL REVISION APPLICATION NO. 156 of 2023

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                      SAIYAD KAMILSHAH KABILSHAH
                                 Versus
                      PIRSHAH HAMMAD ROZA TRUST
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Appearance:
HCLS COMMITTEE(4998) for the Applicant(s) No. 1,2
VIJAY H PATEL(7361) for the Applicant(s) No. 1,2
for the Opponent(s) No. 1,2,3,4,5
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 CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                            Date : 20/03/2023

                             ORAL ORDER

1. By way of this Civil Revision Application, the applicants have

challenged the order dated 25.02.2019 passed by the Appellate

Bench of Small Cause Court at Ahmedabad below Exh. 26 in

Civil Appeal No. 118 of 2014 confirming the judgment and

order dated 12.08.2014 passed by learned Single Judge of

Small Cause Court in HRP Suit No. 1554 of 2009.

2. Heard learned advocate Mr. Vijay Patel for the applicants.

3. Though the orders under challenge are passed in the years

2014 and 2019 respectively. The revision application is

C/CRA/156/2023 ORDER DATED: 20/03/2023

preferred in the year 2023. By way of original suit of 2019,

the applicants have prayed for providing the basic amenities

like toilet, bathroom etc. in the suit premises at the cost of the

plaintiffs and have also prayed for change of water line as well

as drainage connection.

4. The facts leading to filing of the suit before the Small Cause

Court is that the original plaintiffs - present applicants are the

sons of one Mr. Kabilshah Kasamshah Saiyed who was an

employee of the respondents no. 1 - Trust and was serving as

Muzawar there. As a Muzawar, he was given a premises in

the Trust to reside alongwith the family for which it is the case

of the applicants that they used to pay rent @ Rs. 10 per

month.

5. The case of the applicants is that they are the tenants of the

respondent no. 1 - Trust even prior to 1960 as at the relevant

point of time, their uncle was performing the duty as

Muzawar. Subsequently, upon death of father of the applicant,

the applicant started performing the duty as Muzawar

C/CRA/156/2023 ORDER DATED: 20/03/2023

However, no appointment letter to that effect was on record.

6. Perusal of plaint suggests that from 07.01.1992, upon death of

the father of the applicants, considering it to be there moral

duty, they started performing the duty as Muzawar. In between

a suit under the Tenancy Act was preferred by the respondent

no. 1 - Trust against them which was held against the Trust.

7. It is the case of the applicants that after having failed in the

aforesaid suit, just with a view to harass the applicants though

the applicants requested them to provide them the basic

amenities like toilet, bathroom, water connection and drainage

connection, the respondents are not allowing them to construct

them at their own cost nor providing it on their own and

therefore, the aforesaid suit was preferred in the year 2009

being HRP Suit No. 1554 of 2009.

8. After perusing the evidence, the learned Single Judge of Small

Cause Court dismissed the suit vide order dated 12.08.2014 on

the ground that section 24 (2) of the Rent Act would entitle the

tenant to get the essential supplies which are cut off or

C/CRA/156/2023 ORDER DATED: 20/03/2023

withheld by the landlord by filing appropriate proceedings. In

the instant case, it's not the case of the present applicant that

those essential supplies were disconnected or withheld by the

landlord. If the suit is allowed, in that case, it would amount to

creating a new right in favour of the tenants. Learned Single

Judge of Small Cause Court also considered the aspect that the

premises in question was given to the predecessor of the

plaintiffs as they were in employment of Trust as Muzawar.

Upon death of the father of the present applicant, there is

nothing on record that either of the plaintiffs were appointed as

Muzawar and therefore, they cannot be said to be tenants.

9. Therefore, by taking into consideration the aforesaid facts as

well as the ground in respect of mis-joinder of the parties, the

suit was dismissed. Against which the present applicants

preferred the appeal before Division Bench of the Small Cause

Court being Civil Appeal No. 118 of 2014. There also after

elaborate discussion the Division Bench of Small Cause Court

vide order dated 12.08.2014 dismissed the appeal and

confirmed the order passed by the learned Single Judge of

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Small Cause Court.

10. Heard learned advocate Mr. Patel for the applicant who

submitted that the respondent no. 1 Trust had already preferred

an application for standard rent which was decided against the

Trust and therefore, indirectly by way of not allowing the

applicants to have the basic amenities, the respondents are

trying to get premises vacated forcibly.

11. Learned advocate Mr. Patel further submitted that the

applicant is voluntarily rendering the services as Muzawar and

therefore, considering the aforesaid aspect also, the applicant

should be permitted to have the basic amenities at their own

cost.

12. Lastly, learned advocate Mr. Patel submitted that the

applicants are residing in the suit premises prior to the year

1960 and therefore, also considering the fact that all that is

prayed by way of the suit is a direction to provide basic

amenities and therefore, the Court may interfere and quash and

set aside both the concurrent orders passed by the learned

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single Judge as well as learned Division Bench of Small Cause

Court.

13. I have heard learned advocate Mr. Patel and perused the record. I have also considered that both the Courts below have concurrently held against the present applicant by taking into consideration section 24 (2) of the Rent Act which reads as under:-

"24 (2) A tenant in occupation of the premises may, if the landlord has contravened the provisions of sub-section (1), make an application to the Court for a direction to restore such supply or service."

14. Section 24 (2) of the Rent Act is in respect of restoration

of certain services. It is not the case of the present applicants

that essential services were provided to the tenants which were

subsequently discontinued and the application is preferred for

restoration of the aforesaid services.

15. Once the question about whether the applicants are

tenants or not has not been decided in favour of the present

applicants as there was nothing on record to indicate that the

present applicants were tenant either before the Trial Court or

Appellate Court and despite the repeated queries, nothing to

indicate that the present applicants were tenant has been

C/CRA/156/2023 ORDER DATED: 20/03/2023

produced before this Court as well in absence of any rent

receipt or rent agreement, it is difficult to take a contrary stand

than the findings recorded by the Trial Court that the plaintiffs

have failed to prove that there were the tenants in respect of

the suit property.

16. Considering the fact that both the Trial Court as well as

Division Bench of Small Cause Court have not only

appreciated the facts and discussed the evidence in detail but

also by applying the section 24 (2) of the Rent Act, as no case

is made out by the applicant have dismissed the suit and

appeal preferred by the present applicant.

17. On perusal of both the orders impugned in this revision

application, I do not see any reason to interfere with the same

as no error could be point out by learned advocate Mr. Patel.

18. Further the suit was preferred in the year 2009 whereas

the Single Judge of Small Cause Court dismissed the suit in

the year 2014 against which an appeal was preferred and even

if that appeal also has been dismissed in the year 2019, it is

C/CRA/156/2023 ORDER DATED: 20/03/2023

only four years thereafter that Civil Revision Application is

circulated.

19. It appears that the applicants are more interested in

having the possession of the suit premises by hook or by crook

despite the fact that he has not been employed as Muzavar by

the Trust. Therefore, what the applicants could not get directly

by way of the suit they are trying to protect the possession

indirectly and the Court cannot be a party to such design and

accordingly, the present application is required to be dismissed

and the same is dismissed.

(NIRZAR S. DESAI,J) VARSHA DESAI