[Cites 5, Cited by 0]
Gujarat High Court
Heirs And Legal Representatives Of ... vs Jivaji Ajdanji Prajapati on 2 December, 2025
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Reserved On : 23/09/2025
Pronounced On : 02/12/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 537 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
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Approved for Reporting Yes No
No
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HEIRS AND LEGAL REPRESENTATIVES OF BABULAL NAVAJI
PRAJAPATI & ORS.
Versus
JIVAJI AJDANJI PRAJAPATI
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Appearance:
MR KV SHELAT(834) for the Applicant(s) No. 1.1,1.2
MR DEVDIP BRAHMBHATT(3490) for the Opponent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
CAV JUDGMENT
1. The present Revision Application is filed under Section 29 (2) of
the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947
('Rent Act', for short) challenging judgment and decree dated
30.11.2017, passed by the Appellate Bench No.2 of Small Causes Court
in Civil Appeal No.163 of 2002, confirming the judgment and decree,
dated 03.09.2002, passed by the Small Causes Court, Ahmedabad in HRP
Suit No.1190 of 1994.
2. For the sake of the brevity, parties herein are referred to as per their
original status as that of suit.
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3.1 The facts of the case arising in the present Revision Application are
that the plaintiff had filed the suit for recovery of possession on the
ground that the defendant is tenant in arrears for the last six months, and
that the defendant has carried out illegal permanent construction in the
suit premises. The said suit was also filed on the ground that the
defendant has acquired suitable alternative accommodation, and that the
plaintiff requires the suit premises for his own bona fide, personal use and
occupation reasonably and bona fidely. The trial Court allowed the said
suit on the ground of defendant being tenant in arrears, and that defendant
has acquired suitable alternative accommodation. On the fact of
defendant having made illegal permanent construction in the premises
and the fact that the plaintiff requires the suit premises for his personal
use and occupation, reasonably and bona fidely was decided against the
plaintiff.
3.2 Aggrieved by the said judgment and decree passed by the trial
Court, the defendant filed Regular Civil Appeal No.163 of 2002 and after
re-appreciating the evidence, the first appellate Court dismissed the said
appeal and upheld the order passed by the trial court on the ground of
defendant having acquired suitable alternative accommodation and
quashed and set aside the order of order granting eviction of the
defendant on the ground of defendant being tenants in arrears. Aggrieved
by the said order Revision application is filed.
4.1 Learned advocate for the defendant has mainly argued that the
appellate Court has materially erred in dealing with the contentions raised
in the appeal memo and the trial Court and the appellate Court have taken
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into consideration the documents which were not exhibited and proved by
defendant tenant.
4.2 It has been argued by the learned advocate for the defendant that
the trial Court did not consider the evidence produced by the defendant -
tenant vide Exhs.44, 82 and 92 and the trial Court has taken into
consideration the consumption of electricity from the period 21.2.1993 to
21.11.1994 and the said document was not exhibited.
4.3 It has also been argued by the learned advocate for that defendant
that the trial Court and the first appellate Court have arrived on the
conclusion passing a decree under Section 13 (1) (L) of the Rent Act in
view of the fact that there was no evidence to show that there is any
property in which the tenant is having domain right, title, interest and that
there was any property which was acquired by the tenant and, therefore,
the judgment and decree could not have been passed by the trial court and
confirmed by the first appellate Court.
4.4 Learned advocate for the defendant has also argued that the
alternative accommodation which the plaintiff states being Room No.881,
Block No.113 of Bombay Housing Society, Kalapi Nagar, is purchased
by the son of the defendant Shravan Kumar from his own funds and the
same can be established by the sale deed produced vide Exh.85 dated
11.4.2001 and, therefore, the trial Court and the first appellate Court
could not have granted decree of eviction on the ground that the
defendant has acquired alternative suitable accommodation.
4.5 Learned advocate for the defendant has relied on following
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judgments :-
(i) 2000 (0) AIR SC 1386, Anandi D. Jadhav vs. Nirmala Ramchandra
Kore;
(ii) 2011 (0) AIJ-GJ-227932, Manjula Vadilal Shah vs. Soni Dhirajlal
Heirs of Deceased Amrutlal Nathalal Soni;
(iii) 2006 SCC OnLine Bom 562, Dharma Bhika Patil vs. Tarabai Anant
Bhoir. , and
(iv) 2010 SCC OnLine Guj 8035; Dayaben Durlabhji Davda, Wd/o.
Durlabhji Davda vs. Chnadreshkumar Pramodrai.
And, therefore, it has been argued that the present Revision
Application be allowed and the judgment and decree passed by the trial
Court and confirmed by the first appellate Court are required to be
quashed and set aside.
5.1 Per contra, learned advocate for the plaintiff has argued that the
fact that the defendant is residing in the alternative accommodation has
been proved by the plaintiff by the fact that the defendant has acquired
residential accommodation at Gujarat Housing Board, Block No.111 and
that the defendant is residing in the said premises and the suit premises is
closed by the defendant. The case of the plaintiff was that the said
alternative accommodation has five rooms and the suit premises has only
one room in which the defendant has constructed latrine and bathroom,
whereas in the alternative accommodation, which has been acquired by
the defendant, is having five rooms and that defendant has started to
reside in the new premises along with his family. Moreover, vide Exh.38,
the plaintiff has also produced certified copy of Voter List of Ahmedabad
Municipal Corporation of the year 1995 and from the said document had
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proved that defendant, his wife Laxmi, defendant's son and wife of his
son and other son are shown at Sr.Nos.68 to 74 and the address is shown
at the alternative accommodation in the voters list vide Exh.38 and it has
been argued that though it is the case of the defendant that the suit
property has been purchased from the funds of his son Shravan Kumar, if
the sale-deed produced vide Exh.85 is taken into consideration, the said
sale-deed is of the year 2001 and from the voters list, it has come on
record that the names of the defendant is stated in the voters list in the
year 1995. Therefore, even prior to the registered sale-deed of the year
2001, the defendant was residing in the said alternative accommodation.
Moreover, the electricity consumption also shows that the suit premises
was not used and, therefore, the trial Court and the first appellate Court
have rightly decided the said issue and, therefore, the judgment and
decree passed by the trial Court and confirmed by the first appellate Court
are now required to be quashed and set aside.
5.2 Learned advocate for the plaintiff has relied on the following
judgements:
(i) (2010) 51 (3) GLR 2218 : 2010 SCC OnLine Guj 8035; Dayaben
Durlabhji Davda, Wd/o. Durlabhji Davda vs. Chnadreshkumar
Pramodrai;
(ii) 2001 (2) GLH 223, Pranjivandas Khushaldas vs. Dhanuben Wd/o.
Devchand & Ors.
And therefore it has been argued that the present Revision
Application be dismissed.
6.1 Having heard advocates for parties and having considered the
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judgement and decree passed by the trial Court and confirmed by the first
appellate Court, this Court will have to take consideration the fact,
whether the plaintiff has proved that defendant has acquired alternative
accommodation as per provisions of Section 13 (1) (L) and if the facts of
the present case are taken into consideration, the plaintiff has proved the
the said fact by Voters List produced vide Exh.38, which clearly states
that in the year 1995, the name of the defendant is stated in the voter list
of Kalapi Nagar, Gujarat Housing Board, and, therefore, from the said
fact it can be clearly established that defendant has alternative
accommodation. Though the issue has been raised by the defendant that
the said property does not belong to the defendant and the said property
belong to the son of defendant and that the son of defendant has
purchased suit property in the year 2001, but if the facts of the present
case are taken into consideration, the suit that has been filed by the
plaintiff in the year 1994, wherein, plaintiff has stated that defendant has
acquired alternative suitable accommodation at Kalapi Nagar, Gujarat
Housing Board and it is only after filing of the suit that the defendant has
come forward with the case that the sale deed, which has been executed
in the year 2001, is in the name of the son and has argued that defendant
does not have any right on the said property, the decree of eviction could
not be passed.
6.2 If the Court takes into consideration the said fact, there was no
justification for the name of the defendant being in the voter list in the
year 1995 at the said alternative premises, though defendant has tried to
justify the same stating that there was some mistake in the voter list,
however, at the same time defendant has also stated that he was residing
in the alternative accommodation because of his ill-health. However, the
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said fact has not been proved by the defendant that because of his ill-
health he was residing in the alternative premises and even in the written
statement filed, the defendant has not come forward with the case that he
was residing in the alternative premises because of his ill health.
6.3 The defendant has also vide Exh.78 not proved that because of
medical reason, the defendant has gone and resided at the alternative
accommodation. The defendant has also examined vide Exh.83, the son
of the defendant wherein also he has stated that his father has not stayed
with him for a very long time and there is no justification that if he has
not stayed for long time at the alternative premises, then how has his
name been mentioned in the voters list along with the other family
members of the defendant and if the defendant had come only for his
treatment, there was no question of his name being incorporated in the
voters list and therefore also judgement and decree passed by the trial
Court as confirmed by the appellate Court are as per law and does not
require any interference.
6.4 With respect to the judgement relied on by the learned advocate for
the defendant in case of Anandi D. Jadhav vs. Nirmala Ramchandra
Kore (supra) wherein the Court was taking into consideration the
expression 'acquired vacant possession' and had held that the said
suitable accommodation would be one in which party had a right to reside
and it has been argued that in the present case, it has come on record that
the suit property, belongs to the son of the defendant and the defendant
did not have any right in the premises, but if the said facts are taken into
consideration, the name of the defendant was already there in the voters
list in the year 1995, in the alternative premises and the sale-deed of the
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property was executed in the name of the son of defendant only in the
year 2001, and, therefore, for the purpose of avoiding eviction, the said
property has been purchased in the name of the son of the defendant, as
the defendant knew that civil suit was already filed for eviction on the
ground of defendant having acquired alternative accommodation and the
said suit was filed in the year 1994 and, therefore, the said judgment will
not be applicable to the fact of the present case.
6.5 The defendant has also relied on decision reported in the case of
Manjula Vadilal Shah vs. Soni Dhirajlal Heirs of Deceased Amrutlal
Nathalal Soni (supra) wherein the Court had held that there was no
substance in the contention, as it was not possible to stay in purchased
property looking to the size of the family members and size of rooms of
rented premises. In the facts of the present case, the size of the alternative
accommodation is more than the size of the suit premises and there is a
clear evidence that the defendant has alternative accommodation and,
therefore, judgment and decree passed by the trial Court is not required
to be interfered and the said judgment is not applicable to the facts of the
present case.
6.6 Insofar as judgments relied on by learned advocate for the
defendant in the case of
Dharma Bhika Patil vs. Tarabai Anant Bhoir (supra) and in the case of
Dayaben Durlabhji Davda, Wd/o. Durlabhji Davda vs. Chnadreshkumar
Pramodrai (supra) wherein it has been held that if the alternative
accommodation, is not in the name of the tenant or if the tenant is not
having any legal right over the alternative accommodation, cannot entitle
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eviction but in evidence, it is established that the defendant is residing
with his son before filing the suit and in absence of any evidence to the
contrary, the presumption drawn by the first appellate Court is justified,
and there is no infirmity in the findings recorded by the first appellate
Court on the issue that the defendant has acquired alternative suitable
residential accommodation.
7. Therefore, on the basis of overall analysis of the material on
record, on the basis of conclusion that has been referred to by the
Appellate Court, this 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 Appellate
Court 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 is according to law
and does not suffer from any abuse of law. The findings recorded by the
Court below if perverse or has 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.
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.
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8. The findings recorded by the Appellate Court are based on critical
appreciation of the evidence led by the parties on record and does not
suffer any error or material irregularities. The Courts below has rightly
come to the conclusion 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.
9. 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 at the admission stage and
it is dismissed accordingly.
(SANJEEV J.THAKER,J)
MISHRA AMIT V.
