Gujarat High Court
Lh Of Decd Abdul Salim Abdul Razak vs Lh Of Decd Bai Sakina D/O Gulamnabi Haji ... on 17 July, 2025
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C/CRA/340/2025 JUDGMENT DATED: 17/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 340 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER Sd/-
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Approved for Reporting Yes No
✔
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LH OF DECD ABDUL SALIM ABDUL RAZAK & ORS.
Versus
LH OF DECD BAI SAKINA D/O GULAMNABI HAJI HASSANBHAI FAROOQ
GHULAMNABI
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Appearance:
MS PS PALMER(1456) for the Applicant(s) No. 1,1.1,1.2,1.3
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 17/07/2025
ORAL JUDGMENT
1. The present Civil Revision Application has been filed under
section 29(2) of the Bombay Rents, Hotel and Lodging House Rates
Control Act, 1947 ('Rent Act', for short) challenging the judgment and
decree, passed in Civil Appeal No.26 of 2014 by the Appellate Bench
No.1, Small Causes Court, Ahmedabad, whereby the said appeal filed
under section 29(1) of the 'Rent Act', was dismissed and the judgment
and decree passed by the Small Causes Court No.9, in HMP No.757 of
2008, dated 15.02.2014, was confirmed and the defendant was directed to
hand over possession of the suit premises within 60 days from the date of
judgment and decree and being aggrieved by said judgment, defendant
tenant has filed the present Revision Application.
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2. For the sake of brevity, parties herein are referred to as per their
original status before the trial Court.
FACTS :-
3. The brief facts arising in the present Civil Revision Application are
that plaintiff filed suit for recovery of possession under section 13(1)(k)
of the Rent Act. It is the case of the plaintiff that defendant is tenant in
the suit property and the suit property was given on rent to the defendant
for residence and defendant has not used suit premises without any
reasonable cause for the purpose for which they were let for continuous
period of six months immediately preceding the date of suit and the
defendant has changed user of premises from residential to commercial
without plaintiff's permission.
4. The trial Court after hearing learned advocates for the parties and
having gone through the record, framed issues vide Exh.20, which read as
under:
"(i) Whether plaintiff proves that she is entitled to peaceful
and vacant premises of the suit premises on the ground that
defendant has changed use for which suit premises was let out
to him ?
(ii) Whether defendant proves that the suit of the plaintiff
is barred of principles of non-joinder of necessary party ? and
(iii) What order and decree ?"
5. The son of the plaintiff had examined himself vide Exh.25. The
Court Commissioner has been examined vide Exh.65 to prove the Court
Commissioner's report and map. The defendant has been examined vide
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Exh.33 and after taking into consideration the oral evidence and
documentary evidence and giving findings on all the issues trial Court
allowed the said suit and directed defendant to hand over vacant and
peaceful possession to the plaintiff and the said order was challenged by
the tenant by way of filing Appeal which the first appellate Court, after
re-appreciating the evidence on record, has dismissed. Hence, present
Civil Revision Application.
SUBMISSIONS OF THE DEFENDANT - PETITIONER:
6. Learned advocate for the defendant has mainly argued that the
judgment and decree passed by the trial Court and the appellate Court is
against the evidence on record. It has also been argued that suit property
was used for residential purpose and the said fact is not taken into
consideration by the trial Court and appellate Court. It has also been
argued by learned advocate for defendant - tenant that the defendant is
Parda-nashi woman and carried out some embroidery home-made work
and trial Court has considered it as commercial. It has also been argued
that defendant - wife was doing embroidery work during her spare time
by taking help of unemployed boys / children from the neighborhood and,
therefore, trial Court and first appellate Court could not have passed order
of eviction against defendant - tenant. In view of the said fact, it has been
argued that present revision application is required to be allowed.
ANALYSIS :-
7. Having heard learned advocate for the defendant - tenant, fact
remains that petitioner tenant, has come forward with the case that
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defendant tenant is using premises for embroidery work and that
defendant tenant is still residing in the suit premises. It is the case of
plaintiff that suit premises was rented to defendant i.e. husband of
petitioner no.1.1 for residential purpose and prior to year 2002, original
defendant i.e. husband of petitioner no.1.1 had been residing in the
premises with the petitioners. However, since long time defendant has
changed his residence for using suit premises for his embroidery business
without permission of plaintiff - landlord. The suit property which was
given on rent is bearing No.219/7 and the defendants' father's house is
bearing No.219/9. The fact remains that there are two election cards
which have come on record. In the election card produced vide Exh.90, of
the original defendant viz. Ansari Abdul Salim, i.e. husband of petitioner
1.1., the address that is mentioned in the said election card is 219/9,
Mansuri Ni Chali, Ahmedabad-18, the election card is dated 06.07.2003.
The fact that will have to be considered is that the suit that has been filed
is filed on 29.03.2008 and said address, i.e. 219/9, is the address which
according to defendant - tenant is address of father of defendant. The
another election card of the defendant which is produced at Exh.50 dated
15.04.2009, gives the address of the suit property as the address of
defendant - tenant. But the fact remains that suit is filed in the year 2008
and, therefore, the said election card produced at Exh.50 is after
institution of suit. Therefore, it can be clearly established that at the time
when the suit was filed, plaintiff was residing along with his father at
Tenement No.219/9. The other factor that will have to be considered that
defendant - tenant is not using premises for residence and is using
premises for commercial can also be proved by the type of use of
electricity, the document produced vide Exh.69, mentioned the address of
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the suit premises and also mentions the use and type as CGP which
means not exceeding KW commercial / interim tariff rate for electricity.
The defendant in the written statement vide Exh.13 has also admitted the
fact that defendant is using premises for work of embroidery with the
help of unemployed children who reside in the said area. Even as per the
Court's Commissioner report at Exh.66, it has been found that defendant
carried out embroidery work in the suit premises along with two workers
who carried out the work on the date when the Court Commission was
carried out and report was prepared. The documents produced vide
Exhs.69 and 70, which are the documents showing electricity
consumption for the month of May-08 and November-08, clearly indicate
that electricity tariff is CGP (which means for commercial purpose) and,
therefore, it can be clearly established that the suit premises is not used
for residential purpose and is used for business purpose.
8. From the facts stated herein above, it can be clearly established that
the suit premises was let for residential purpose and in the year 2008, the
suit premises was not used for residential purpose but for commercial
purpose and the same can be clearly established from the Court
Commissioner's report and the documentary evidences produced at
Exh.69 and Exh.70. There is a clear admission of the defendant that the
suit property was letout for residential purpose. There is material on
record to show that the suit premises let out for residential purpose has
been used by the petitioner for non-residential purpose. The landlord,
through the documents on record, is supported by findings given by the
courts below justifying the prayers for grant of eviction as the petitioner
tenant has changed use of the premises without the permission and / or
consent of the landlord and in view of the said evidence, having been
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proved by the landlord that the tenant has changed the use of the suit
premises without permission of landlord and there is material on record to
suggest the same, there is no reason to discard the said ground. If the
court has recorded that the suit premises used for non-residential purpose,
there is no reason to disbelieve the said evidence, as nothing contrary
comes out from the record, the view taken by the Court is reasonable and
plausible and, therefore, need not be interfered with. In the present case,
from the documents produced at Exh.90 i.e. Election Card, it can be
clearly established that the defendant tenant was not residing in the suit
premises. The fact that electricity is also charged on the basis of
commercial use therefore also it has been proved that the suit property is
being used for non-residential purpose. The fact also remains that even at
the time when the Court Commissioner had gone to prepare report, the
suit property was being used for non-residential purpose and as per the
Court's Commissioner report it has been found that the suit premises was
not used for residential purpose.
9. Therefore, on the basis of overall analysis of the material on
record, on the basis of conclusion that has been referred to by both the
Courts below, 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 both the Courts
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 is according to law and
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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.
10. The High Court can not interfere with the finding of facts recorded
by the first Appellate Court. The consideration or examination of the
evidence by the High Court in revisional jurisdiction under this Act is
confined to find out that finding recorded by the courts below is
according to Law and does not suffer from any error of Law and only if
the finding of facts recorded by the courts below, is perverse or has been
arrived at without consideration of the material evidence or that such
finding is based on no evidence, or misreading of the evidence, or is
grossly erroneous that, if allow to stand, it would result in gross
miscarriage of justice and the same is open to correction as the same is
not treated as findings according to Law and in the present case, the
finding of facts recorded by the trial Court and the appellate Court is
neither perverse nor arrived at without consideration of the material
evidence. In the present case, 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.
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11. The findings recorded by both the courts below are based on
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
without any cause reasonable for the purpose for which they were let for
a continuous period of six months immediately preceding the date of suit
and the defendant has changed user from residential to commercial
without plaintiff's permission 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.
12. 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.
Sd/-
(SANJEEV J.THAKER,J)
MISHRA AMIT V.
