Gujarat High Court
Dhirajbhai Manilal Raval vs Aasefa Mahebub Khan on 5 September, 2023
Bench: J. C. Doshi
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12814 of 2022
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DHIRAJBHAI MANILAL RAVAL
Versus
AASEFA MAHEBUB KHAN
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Appearance:
JASMINA C BHATT(8532) for the Petitioner(s) No. 1,2
MS VANITA C LUHAR(12253) for the Petitioner(s) No. 2
MS. KRUTI M SHAH(2428) for the Petitioner(s) No. 1
SERVED BY RPAD (N) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 05/09/2023
ORAL ORDER
Rule returnable forthwith.
1. Heard Ms. Kruti Shah, learned advocate for the petitioner.
Though served, none remain present for the respondent. For brevity
the petitioners are referred as tenants and respondent s referred as
landlord.
2. In Small Cause Civil Suit No. 129 of 2014, the landlord
sought eviction of the defendants-tenants under Section 13 (1)(K)
and 13(1)(L) of the Bombay Rent Act with the further ground under
Section 13(1)(G) added subsequently, In this suit landloard filed
an application at Exh. 33 alleging that under the guise of the
repairing tenants are carrying out the construction of permanent
nature which is altering edifice of the tenanted premises. The Small
Cause Court at Surat did not found fathom in the application at Exh.
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33 and accordingly, it has rejected with directing both the parties to
proceed further in 5 years old suit. The landlord filed Appeal from
Order before the 6th Additional District Judge, Surat being Misc.
Civil Appeal No. 31 of 2022. In appeal learned District Judge
thought differently and allowed the appeal to restrain the tenant
from carrying the repairing in dilapidated rented premises and order
to maintain status quo with regards to the subject matter.
3. Being aggrieved by the said order, the tenants is before this
Court by way of this petition.
4. On 28.11.2022, this Court had passed the following order on
staying the effect of implementation and operation of the order
dated 1.6.2022 passed by the learned 6 th Additional District Judge,
Surat in Civil Misc. Appeal No. 31 of 2022 :
"1. Heard learned Advocate Ms. Kruti M. Shah for the petitioners
who by way of this application challenges an order dated
01.06.2022 passed by the learned 6th Additional District Judge,
Surat in Miscellaneous Civil Appeal No. 31 of 2022 whereby an
order passed by the learned Small Cause Court, Surat dated
13.05.2022 under Exhibit 33 filed for interim injunction by the
original plaintiff land lord in Small Civil Suit No. 129 of 2014 had
been quashed and set aside.
2. Considering the submissions made by learned Advocate Ms.
Shah, it prima facie appears that while the learned Small Cause
Court, had deemed it appropriate to reject the application
preferred by the land lord, more particularly, considering that if
necessary repairs to the tenanted property are prevented from
being carried out then it will cause more harm to the tenants, and
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further considering that the learned District Court, while setting
aside the said order, has inter alia come to a conclusion that if the
tenants are permitted to put up certain construction then that
would prejudice the appellant land lord and whereas, considering
the photographs annexed of the property in question, which shows
that the property is in an absolutely dilapidated condition, in the
considered opinion of this Court prima facie, the learned First
Appellate Court ought not to have set aside the order passed by the
Small Cause Court, more particularly, there being no cogent
reason supplied by the learned First Appellate Court except an
apprehension as mentioned herein above.
3. Having regard to the same, at this stage, the following order is
passed. Issue Notice to the respondent returnable on the
21.12.2022. By way of Ad interim relief the impugned judgment
and order dated 01.06.2022 passed in Civil Application No. 31 of
2022 is directed to be stayed.
4. It is clarified that in case the present applicants would want to
make any repair in the tenanted premises then they may resort to
the procedure as contemplated in Section 23 of the Gujarat Rents,
Hotel and Lodging House Rates Control Act 1947. It is further
clarified that passing of the present order shall not preclude the
learned Small Cause Court from hearing and deciding Small Civil
Suit No. 129 of 2014. Direct service is permitted.
5. Ms. Kruti Shah, learned advocate pressed into service the
photographs produced at Annexure "F" to indicate the threadbare
situation of the tenanted premises. She would further submit that the
tenanted premises in absence of the repairing is not in liveable
position . She would further submit that the petitioners-tenants are
ready and willing to co-operate in the earlier disposal of the suit. She
would further submit that the First Appellate Court has committed
serious error in overturning the reasoned order passed by the trial
Court under discretionary jurisdiction. She would further submit
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that in fact the the Appeal From Order itself was not maintainable
against the order passed by the Small Cause Court whereupon the
jurisdiction is governed by the Provincial Small Cause Court Act,
1987 which is by itself a complete procedural code. Upon such
submission, she would submit to allow this petition.
6. At the outset let Refer Section 23 of the Bombay Rent which
reads as under:-
Landlord's duty to keep premises in good repair :-
(1) Notwithstanding anything contained in any law for the time
being in force and in the absence of an agreement to the contrary
by the tenant, every landlord shall be bound to keep the premises in
good and tenantable repair.
[(2) If the landlord neglects to make any repairs, which he is bound
to make under sub-section (1), within a reasonable time after a
notice is served upon him by post or in any other manner by a
tenant or jointly by tenants interested in such repairs, such tenant or
tenants may themselves make the same and deduct the expenses of
such repairs from the rent or otherwise recover them from the
landlord:
Provided that where the repairs are jointly made by the
tenants the amount to be deducted or recovered by each tenant shall
bear the same proportion as the rent payable by him in respect of
his premises bears to the total amount of the expenses incurred for
such repairs:
[Provided further that the amount so deducted or recoverable
in any year shall not exceed one fourth of the rent payable by the
tenant for that year, excluding therefrom one-fourth of the
proportionate taxes in respect of his premises payable to a local
authority for that year.]
(3) for the purpose of calculating the expenses of the repairs made
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under subsection (2), the accounts together with the vouchers
maintained by the tenant shall be conclusive evidence of such
expenditure and shall be binding on the landlord
7. It is duty of the landlord to keep the tenanted premises in
good repair. If the landlord neglects to make any repair, it gives right
to the tenant to repair the tenanted premises. The statutory provision
recognized the duty of the landlord to keep the tenant premises in
good repair . In the present case, on perusing the Annexure "F" it
appears that the tenanted premises is not in good repair or kept in
good repair. The landlord on the contrary try to restrain the tenant
from repairing the tenanted premises though tenant on his own
wants to repair the dilapidated tenanted premises. Unfortunately, the
Court below fell in the trap and without considering the provision
of Section 23 of the Bombay Rent Act passed the order which by
itself is contrary to the settled principle of law and is arbitrary as
well as capricious and can be termed as in the teeth of Section 23 of
the Bombay Rent Act.
8. What more appears that the landlord has filed the suit for
recovery of the tenanted premises on the ground of Section 13(1)
(K), 13 (1)(l) and 13(1)(g) of the Rent Act. However, landlord has
not alleged the tenant by way of repairing or under the guys of the
repairing is trying to make construction which may alter the edifice
of the tenanted premises. Section 13(1)(b) of the Rent Act provides
the ground for the recovery of the possession if the tenant erect any
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permanent structure without the consent of the landlord. To be
noted that the landlord has not pressed the ground available under
Section 13(1)(b) for the eviction. In other words, the landlord has not
alleged that the tenant is making the construction of permanent
nature which may change the whole fact of the tenanted premises.
9. In view of this position of law vis-a-vis the facts on hand qua
dilapidated tenanted premises, according to this Court, learned
Small Cause Court was correct in his approach for rejecting the
application below Exh. 33, whereby the landlord seeks the relief to
restrain the defendants-tenants from carrying the repairing. The
First Appellate Court who has entertained the appeal without
jurisdiction also travel beyound the scope and ambit, such order is
arbitrary, capricious and therefore, the intervention of this Court is
required a set a not the patent illegality committed by the First
Appellate Court.
10. In view of the reasons hereinabove and the reason recorded,
this petition is allowed. The order passed in Misc. Civil Appeal No.
31 of 2022 by the learned 6th Additional District Judge, Surat dated
13.5.2022 is hereby quashed and set aside. Rule is made absolute to
the aforesaid extent.
Direct service is permitted.
(J. C. DOSHI,J)
BEENA SHAH
