Gujarat High Court
Ramaben Ramniklal Kansara vs Narottambhai Gordhanbhai Thobhani on 12 August, 2025
NEUTRAL CITATION
C/CRA/429/2025 JUDGMENT DATED: 12/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 429 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
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Approved for Reporting Yes No
Yes
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RAMABEN RAMNIKLAL KANSARA
Versus
NAROTTAMBHAI GORDHANBHAI THOBHANI
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Appearance:
MR MEET D PANSURIA(10170) for the Applicant(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 12/08/2025
ORAL JUDGMENT
1. The present Revision Application has been filed under Section
29(2) of the Bombay Rents Hotel and Lodging Housing Rates Control
Act, 1947 ('the Rent Act', for short) challenging the order dated
28.02.2025 passed Principal District Judge, Jamnagar in Regular Civil
Appeal No.79 of 2018 whereby the said appeal has been allowed and the
appellate Court has quashed the judgment and decree dated 12.06.2018
passed by the Civil Court, Jamnagar in Regular Civil Suit No.125 of
2014.
2. For the sake of brevity, parties are referred to as per their original
status that of as in the suit.
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FACTS :
3.1 It is the case of the plaintiff that suit property which belongs to the
plaintiff was let to deceased husband of tenant- opponent on monthly rent
of Rs.30/-. In the plaint, it has been stated that the suit property was
purchased by wife of the plaintiff on 30.03.1983 and after her death, the
property was inherited by him being husband. It has also been stated that
when property was purchased neither the husband of the defendant nor
the defendants were residing in the suit premises and that the defendant
was residing at House No.4314, Block No.117 /2, Avas Colony and,
therefore, as there is an alternative accommodation available to the
defendant, and that one Purshottambhai was residing in the premises and
in fact defendant was residing at Avas Colony with her family, it was the
case of the plaintiff that suit premises was not used by defendant since a
very long time and, therefore, the plaintiff had sought for eviction.
3.2 The trial Court had framed issue vide Exh.15. The plaintiff had
examined himself vide Exh.18 and the witnesses of the plaintiff were
examined vide Exhs.42 and 43. The defendant examined herself vide
Exh.45 and after taking into consideration oral evidence and documentary
evidence and giving findings on all the issues, trial Court dismissed the
said suit. The appellate Court, after re-appreciating the evidence, came to
the conclusion that defendant has alternative accommodation and came to
the conclusion that defendant is not using suit premises for the last six
months preceding the date of filing of the suit and therefore granted
decree of eviction. Hence, present Revision Application.
SUBMISSIONS OF DEFENDANT - PETITIONER :
4.1 Learned advocate for the defendant - opponent has mainly argued
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that the appellate Court could not have reversed the order of the trial
Court in view of the fact that trial Court has rightly held that plaintiff has
miserably failed to prove that defendant has alternative accommodation
i.e. Avas Colony. Moreover, there is no evidence to the fact that
defendant is not using suit premises for a period of six months preceding
date of filing of suit. Therefore the appellate Court could not have granted
decree of eviction under Section 13(1) (I)of the Rent Act.
4.2 It has also been argued that the plaintiff has miserably failed to
prove that the defendant possesses any house in Avas Colony and is
residing in suit premises with the family.
4.3 It has also been argued that the plaintiff has produced photocopy
voter-list of Ward No.19 vide Exh.95 and the same was shown to the
defendant tenant in cross - examination, where she has denied her photo,
thereafter also the plaintiff has not produced any document to prove
Exh.25 and, therefore, the appellate Court could not have relied upon on
the said document produced vide Exh.25. Moreover, it has also been
argued that voter-list cannot be said to be conclusive proof of residence.
4.4 With respect to the non-user of the suit premises, there are no
documentary evidence to support the fact that the suit premises is not in
use and, therefore, it has been argued that present Civil Revision
Application is required to be allowed and the order passed by the
appellate Court quashing and setting aside the judgment and decree of the
trial Court is required to be quashed and set aside.
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ANALYSIS :
5.1 Having heard learned advocate for the petitioner tenant, the fact
remains that appellate Court has granted decree of eviction on two
grounds i.e. (i) alternative accommodation (Section 13(1)(I) of the Rent
Act) and (ii) non-user (Section 13(1)(k) of the Rent Act). The fact also
remains that for the relief with respect to claiming eviction on the ground
of defendant having alternative accommodation, address in the voter-list
produced vide Exh.25 discloses the address as 'Awas Colony, Opposite
Andhashram Jamangar'. The defendant has denied that she possesses
election card and has denied identity of the voter-card at Sr.No.215 at
Exh.21 i.e. voters list. The copy of ration card which is produced vide
Exh.24, reflects that Ration Card No.30082 is in the name of Buddhbhatti
Nitin who happens to be son of defendant and his residential address is
mentioned as 'Room No.2, Block No.117, Awas Colony, Jamnagar'.
Voters list at Exh.25, also gives the name of defendant and other family
members viz. Buddhbhatti Nitin, Shashikant, Buddhbhatti Sudhaben,
Buddhbhati Manulaben and Parsottambhai Maganlal are also shown their
address as Avas Colony near Andhashram - 361006. Therefore, the
voters list and the ration card of defendant no.1 also bear the address of
Avas Colony, Jamnagar. The document at Exh.24 does not state that the
same is a bogus and fake document. Therefore, it can be clearly
established that the plaintiff has proved that the defendant has alternative
accommodation i.e. Avas Colony.
5.2 With respect to contention of non-user, the plaintiff has proved that
suit property is not being used and is remained close since six months
preceding the date of filing of the suit. The defendant has produced
document to show that she is residing in the suit premises, vide
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electricity bills at Exhs.84 to 88 for several years i.e. for the month of
February 1983 Exh.83, for the year 1984-85 Exh.84, for the year 1985-86
Exh.85, for the year 1986-87 Exh.86, for November-December,1987
Exh.87 and for month of October,1988 Exh.88 and for the month
January-February, 2010 and the defendant has tried to prove her case that
the defendant is occupying the premises and the suit premises is not used
by the defendant and it is not proved that the plaintiff is entitled for
possession of the premises on the ground of non-user. The fact remains
that initial burden of proving the fact of non-user is on the landlord and
once the plaintiff proves the said fact, the burden shifts on the defendant.
Following the list of documents, the defendant has produced month-wise
electricity bills for the year 1984 to 1988.
Sr Period showing Electricity bills in the Units consumption
No. consumption of form of documents
electricity produced vide Exh.
1 February 1983 Exh.83
December,1987
5.3 The fact remains that initial burden to show that the tenant has
seized to occupy the suit premises continuously for period of 6 months is
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always on the landlord and he has to adduce tangible evidence to prove
the fact that as on the date of filling the petition, the tenant was not
occupying the suit premises continuously for the period of 6 months.
Once such evidence is adduced, the burden shifts on the tenant to prove
that there was reasonable cause for him having ceased to occupy the
tenanted premises for continuous period of 6 months and once the
premises have been shown by evidence to be not in occupation of the
tenant, the pleading of the landlord that such non-user is without
reasonable cause has the effect of putting the tenant on notice to plead
and prove the availability of reasonable cause for ceasing to occupy the
tenancy premises.
5.4 In the present case, the plaintiff had only to satisfy the court that he
has pleaded and proved the non-user of the suit premises for a continuous
period of 6 months immediately preceding the date of filing of the suit
and as the plaintiff has established his claim, the onus shifts to the tenant
to establish that his default which rendered him liable to eviction was
condonable by the Court because of reasonable cause.
5.5 In the present case, the defendant did not take defense in the
pleading that the suit premises remained unused because of the
reasonable cause, but his case is that the business never remained closed,
nor there was any non-use till the date of institution of the suit. The tenant
tried to lead evidence to prove that the suit property was continuously in
use.
5.6 Therefore, on the basis of overall analysis of the material on
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record, on the basis of conclusion that has been referred to by the Court
below, the Court is of the opinion that there is no material irregularity nor
any perversity reflecting which would permit this Court to exercise
revisional jurisdiction. The entire reasoning of the Court below are based
upon clear analysis of the testimony of the witnesses for either side and
also in consonance with documentary material and according to this
Court it cannot be said that there is any perversity in the said order.
Moreover, while deciding the Revision Application by the High Court in
revisional jurisdiction under this Act is confined to find out that findings
of fact recorded by the courts below are according to law and does not
suffer from any abuse of law. The findings recorded by the Court below if
perverse or have been arrived at without consideration of material
evidence or such finding is based on no evidence or misreading of
evidence or grossly erroneous that, if allowed to stand, would result in
gross miscarriage of justice. The same is open for correction because it is
not treated as finding according to Law and in that event the High Court,
in exercise of its revisional jurisdiction under the Bombay Rent Act, is
entitled to set aside the impugned order as being not legal or proper.
5.7 The High Court can not interfere with the finding of facts recorded
by the first Appellate Court. In revisional jurisdiction, the High Court can
not exercise its powers as an appellate power to reappreciate or reassess
the evidence for coming to a different finding of facts. Revisional
jurisdiction is not and can not be equated with the powers of
reconsideration of all questions of fact as a court of first appeal.
5.8 The findings recorded by both the courts below are based on
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critical appreciation of the evidence led by the parties on record and does
not suffer any error or material irregularities. The Court below has rightly
come to the conclusion that the tenant has not used the suit premises for
the purpose for which it was let without reasonable cause for a period of
six months immediately preceding the date of suit, and therefore, there
was no error committed by the courts below which requires any
correction at the hands of the High Court in exercise of revisional
jurisdiction.
6. Under the revisional jurisdiction, the High Court is entitled to
satisfy itself as to the correctness or legality or propriety of any decision
or order impugned before it as indicated above. In view of the aforesaid
facts and proposition of law and in view of the concurrent findings of fact
by both the Courts below, since no case is made out to call for any
interference in the judgment and order passed by the appellate Court
upholding the judgment and decree passed by the trial Court, the present
Revision Application requires to be dismissed and it is dismissed
accordingly.
(SANJEEV J.THAKER,J)
MISHRA AMIT V.
