Gujarat High Court
Mufizuddin Shahiduddin Shaikh vs L.Rs Of Decd. Hanifabibi Vahidkhan ... on 10 June, 2024
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
NEUTRAL CITATION
C/CRA/234/2024 ORDER DATED: 10/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 234 of 2024
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MUFIZUDDIN SHAHIDUDDIN SHAIKH
Versus
L.RS OF DECD. HANIFABIBI VAHIDKHAN PATHAN & ORS.
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Appearance:
MR VIVEK V BHAMARE(6710) for the Applicant(s) No. 1
MR VN BHAMARE(1122) for the Applicant(s) No. 1
MR IM PANDYA(546) for the Opponent(s) No. 1,1.1,1.2,1.3,1.4,1.5,1.6,2,3,4
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 10/06/2024
ORAL ORDER
Captioned Civil Revision Application, has been filed
challenging the judgment/decree dated 11.08.2016 passed by
Judge, Small Cause Court no.2, Ahmedabad in H.R.P. Suit no.2842 of
2007, whereby the suit filed by the plaintiff - landlord has been
partly allowed and the plaintiff has been declared entitled to get the
vacant and peaceful possession of the suit premises from the
defendant - applicant. The plaintiff, was also declared to be entitled
to recover mesne profit at the rate of Rs. 75/- p.m. from 01.11.2007
till handing over of the vacant and peaceful possession of the suit
premises. Civil Appeal no.121 of 2016 came to be dismissed vide
order dated 02.03.2024 by the Appellate Bench of Small Causes
Court at Ahmedabad whereby, judgment dated 11.08.2016 came to
be confirmed and the stay granted, came to be vacated.
2. Mr Vivek V. Bhamare, learned advocate for the applicant has
submitted that the suit was filed by the plaintiff - landlord on
various grounds, namely, arrears of rent, non-payment of municipal
tax and non-use of the suit premises for the purpose for which it
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was rented. It is submitted that so far the issues, namely, arrears of
rent and the non-payment of municipal tax are concerned, they
have been decided against the plaintiff and in favour of the tenant;
whereas the only issue which had gone against the applicant was
that the suit premises has not been used for the purpose for which it
was rented.
2.1 It is submitted that witness, namely, the clerk of Torrent
Power Company was examined vide Exh.62 and deposition, was
accepted. It cannot be said to be a conclusive proof or evidence in
support of the issue which has been decided against the applicant.
In the appeal, said evidence has been considered. It is further
submitted that the said issue, is based on a wrong premise for,
since the flooring of the shops were damaged that the applicant had
shifted his business to some other place only with a view to seeing
that the repairing work is undertaken. It is submitted that the
premises, i.e. the shop was very much used by the applicant and
the issued, has wrongly been decided against the applicant and in
favour of the landlord. It is therefore, urged that the matter requires
consideration.
3. On the other hand, Mr I.M. Pandya, learned advocate for the
opponents, has opposed the captioned application on the ground
that no error has been committed. At the outset, it is submitted that
there are concurrent findings of facts arrived at by the Courts below.
It is submitted that clearly, the suit premises has not been used for
a long time and while filing the suit seeking eviction on the ground
of arrears of rent, non-payment of municipal tax as well as non-use,
the issues were raised. It is submitted that the issue of non-use, was
decided in favour of the landlord.
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3.1 It is submitted that before the Small Causes Court, two
employees of Torrent Power Company were examined and in their
deposition, it has clearly stated that the electricity connection was
disconnected on 20.02.1998. Copy of statement of accounts at
Exh.63 was produced for the period from 01.01.2007 to 31.12.2007;
indicating that there was no consumption of electricity in the suit
premises for six months, i.e. before filing of the suit, and hence
considering the documentary, so also the oral evidence, the said
issue, was decided against the tenant; however, nothing has been
placed on record to substantiate that the findings arrived at by the
Small Causes Court, were erroneous or perverse. Moreover, there is
an admission on the part of the tenant in his cross-examination that
he has not done any business for the period from January 2007 to
December 2007. It is submitted that when there was a categorical
admission on the part of the tenant, the judgment in the case of V.
Sumatiben Maganlal Manani (Dead) By L.Rs. vs. Uttamchand
Kashiprasad Shah & Anr. reported in 2011 (3) GLR 2726, would
apply to the facts of the present case.
3.2 It is submitted that the Appellate Bench in its judgment, has
clearly recorded the fact that the electricity consumption for the
period preceding the filing of the suit, was Nil. The explanation
offered by the tenant that the flooring of the premises was damaged
and therefore, he was compelled to keep the suit premises in a
closed condition, was not accepted for, there was no notice issued
by the tenant to the landlord for the repairing work. It is submitted
that the said aspect, has also been accepted and admitted by the
tenant that he has not issued any notice to the landlord. It is
therefore, submitted that in view of the concurrent findings of fact
and the applicant having failed to point out any error, much less any
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perversity in the judgments, the captioned Civil Revision
Application, does not deserve to be entertained.
4. Heard learned advocates appearing for the respective parties.
5. The applicant, is aggrieved by the judgment dated 11.08.2016
passed by the Small Causes Court in H.R.P. Suit no.2842 of 2007
whereby, the suit filed by the landlord came to be partly allowed
and the plaintiff has been declared to get the vacant and peaceful
possession of the suit premises from the defendant. Besides, the
plaintiff is also held to be entitled to recover mesne profit at the rate
of Rs.75/- p.m. from 01.11.2007 till handing over the vacant and
peaceful possession of the suit premises. The issues formulated,
were as to whether the plaintiff, i.e. the landlord proves that the
defendant is in arrears of the rent for more than six months?;
whether the plaintiff proves that the defendant has neglected to pay
due amount of rent within one month from the date of service of
notice?; whether the plaintiff proves that the defendant has not paid
municipal tax for a long time? Issue as regards the arrears of rent
and non-payment of the municipal tax, was decided against the
landlord and in favour of the plaintiff. Relevant for the present
purpose, would be the issue as to whether the plaintiff proves that
defendant has not used the suit premises for a long time? While
deciding the said issue against the applicant, the Court below has
considered the oral evidence of Clerk of Torrent Power Company as
well as the documentary evidence produced indicating that there is
no consumption of electricity in the suit premises for six months
before filing of the suit. On the basis of said oral evidence as well as
the documentary evidence, so also the judgment of the Apex Court
in the case of V. Sumatiben Maganlal Manani (Dead) By L.Rs. vs.
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Uttamchand Kashiprasad Shah (supra), the learned Judge has
observed that the plaintiff has been able to prove that the
defendant is not using the suit premises without any reasonable
cause for the purpose for which it was rented for a continuous
period of six months preceding the date of the suit.
6. Mr Vivek V. Bhamare, learned advocate, could not dislodge
the said findings by pointing out as to how the learned Judge has
committed any error. In fact, it has been conceded that there was
no evidence produced. The only submission made, is that the
deposition of the employee of the electricity company, was not a
conclusive proof. It is also sought to be argued that the business
which the applicant was doing, no electricity was needed; however,
Mr Bhamare, learned advocate, could not point out from the record
that any evidence was produced by the applicant in support of the
said contention as well. It is difficult to fathom as to the nature of
the business for which, the electricity, would not be required.
Electricity is the means of necessity and without power supply, it
would be rather impossible to do any business.
7. Against the said judgment, the appeal was preferred and in
the appeal, the issue framed was as to whether any error has been
committed by the learned trial Court in deciding that the tenant,
had kept the suit premises in non-use condition under section 13(1)
(k) of the Bombay Rents, Hotel and Lodging House Rates Control
Act, 1947 (hereinafter referred to as the 'Act of 1947'). The said
issue, was answered in negative. The Appellate Bench of the Small
Causes Court, while giving a detailed reasoning, has observed that
the suit premises, has not been put to use. While coming to such a
conclusion, the Appellate Bench, has considered the Statement of
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consumption of electricity produced at Exh.63 which indicated, the
use of the electric unit as 'Nil' for the period in question. The only
explanation offered was that since the flooring of the suit premises
was in a damaged condition, that the shop was in a closed
condition. However, it is an admitted position that no permission of
the landlord was sought for, for repairing work. The Appellate Bench
has also taken note of Exh.74, i.e. the admission of the applicant as
regards no documentary evidence available to establish that he was
doing the business in the suit premises during January 2007 to
December 2007.
8. Considering the documentary evidence, so also the oral
evidence, the Appellate Bench, has concluded that the suit premises
remained without electric connection during the stipulated period .
Relevant paragraphs 7, 8 and 9 of the said judgment, read thus:
"7. At this juncture, if we refer the deposition of appellant-
tenant produced at exh.74, it seems that appellant-tenant has
generally reiterated the facts as mentioned in written statement
at exh.12. However, considering the cross-examination
conducted by the learned advocate for the respondent-landlord,
it reveals that appellant- tenant has admitted that they have
never issued any notice to the landlord for tenantable repair
under Section 23 of the Rent Act at the suit premises. Further,
appellant-tenant has also admitted that the rent of the suit
premises was agreed upon at monthly Rs.75/ with present
respondent-landlord. It is also admitted that appellant-tenant
was paying monthly rent of Rs.75/- to the respondent-landlord.
It is also admitted that the liability to pay municipal tax is
agreed upon by the appellant-tenant. Appellant-tenant has
stated at page- 11 of exh.74 that he has no documentary
evidence to establish that he was doing business in suit
premises "during the period of January-2007 to December-
2007". The H.R.P. Suit No.2842/2007 is originally instituted on
dated 31.12.2007 and as per the 20.02.1998 the electric
connection is discontinued for service no.90873 and the said
connection was disconnected due to non-payment of electric
charges. It is also stated by the said witness that no body has
applied for re-connection of electricity supply till dated
31.12.2007 ie. date of filing of the suit. Considering cross-
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examination of said PW-2, it is evident that, learned advocate
Mr. N. R. Shaikh could not placed any fact which can be helpful
to the version of appellant- tenant. In other words, the said
independent witness has clearly deposed that till filing of the
suit, the electricity was not re-connected in the suit premises.
PW-2 has also produced the statement of account of Service
no.90873 at exh.63 which support the version of respondent-
landlord for non-use of the suit premises. Considering the
evidence adduced by the appellant-tenant, it reveals that the
deposition of PW-2 at exh.62 and the statement of account
produced at exh.63 remains uncontroverted during the trial.
Therefore, we incline to believe that the suit premises remains
without electricity connection during the stipulated period from
the filing of the suit under Section 13(1)(k) of the Act.
8. Now, if we refer the impugned judgment and the reasons
assigned by the learned trial court for the above said issue ie.
Issue No.4 at page-11, the learned trial court has rightly
appreciated the evidence adduced by the parties. In addition to
factual discussion, learned trial court has applied the principle
established by Hon'ble Supreme Court through the judgment
reported in 2011 (3) GLR, 2726. Even during the argument of
present appeal, learned advocate for the respondent-landlord
has relied on the said judgment which is rightly appreciated by
the learned trial court.
9. In our opinion, the appellant-tenant was afforded enough
opportunity by the learned trial court to produce the
documentary evidence which can establish that the appellant-
tenant had run the business of groceries in suit shop during the
stipulated period before filing of the suit under Section 13(1)(k)
of the Rent Act. In other words, appellant-tenant has not
produce any purchase order of groceries for his business or any
delivery challan which can established that the goods were lying
in the suit shop and delivered to customer during the aforesaid
period. Appellant-tenant has also not produced any bill or bill
book which can support the version of continuation of business
in the suit shop. Section 13(1) (k) of the Rent Act emphasis on
the word "use", it means mere оссuраncy cannot be treated asncy cannot be treated as
use of the suit premises. In other words, even if tenant establish
the occupancy of the suit premises, but cannot establish the use
of the suit premises, in such case as well, landlord is entitled to
get eviction decree of the suit premises. Further, appellant-
tenant has not adduced any evidence to establish the cause
which leads to non-use of the property. On the contrary, it
transpires that appellant-tenant has not bothered to issue
notice to respondent-landlord for tenantable repair of suit shop.
Therefore, we do not found any reasonable cause for non-use of
the suit premises on the part of appellant-tenant."
9. This Court, confronted the learned advocate to substantiate or
to point out any error; however, Mr Vivek V. Bhamare, learned
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advocate, could not point out any error; however, has fairly stated
before this Court that there was no evidence produced by the
applicant - tenant in support of his contention about the usage of
premises by the applicant. It is also agreed and conceded before
this Court that no notice was issued to the landlord for undertaking
the repairing work of the suit premises. Therefore, considering the
concurrent findings of facts and in absence of any error, much less,
any illegality having been pointed out by the learned advocate, this
Court, is of the opinion that no error has been committed either by
the Small Causes Court or by the Appellate Bench in allowing the
suit and dismissing the appeal respectively, warranting interference.
10. In view of the above, application is rejected. No order as to
costs.
(SANGEETA K. VISHEN,J)
BINOY B PILLAI
