Gujarat High Court
Shri Budheshbhai Shitalram (Alias ... vs Shri Ishwarbhai Chhagandas Patel on 9 May, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 69 of 2025
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SHRI BUDHESHBHAI SHITALRAM (ALIAS BUDHESHWARBHAI
CHHITRAJI)
Versus
SHRI ISHWARBHAI CHHAGANDAS PATEL
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Appearance:
MR JF MEHTA(461) for the Applicant(s) No. 1
MR MANISH J PATEL(2131) for the Opponent(s) No. 1
MR RITESH B DAVE(2815) for the Opponent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 09/05/2025
ORAL ORDER
1. The present Revision Application has been filed challenging the
judgment and decree dated 08.01.20225 passed by the Appellate
Bench of Small Causes Court, Ahmedabad in Civil Appeal No.104 of
2017 whereby the said civil appeal was allowed and the judgment and
decree dated 17.07.2017 passed by the Small Cause Court No.9 in
HRP No.649 of 2013 was quashed and set aside.
2. For the sake of convenience, the parties are referred to as their
original status before the trial Court.
3.1 Brief facts giving rise to filing of the present revision
application are that the plaintiff filed the suit for eviction on the
ground that (i) defendant has made permanent construction in the
suit property section 13(1) (b) of the Bombay Rents, Hotel and
Lodging House Rates Control Act, 1947 ('the Rent Act', for short),
(ii) that the defendant has acquired suitable accommodation for his
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residence (section 13 (1) (l) of the Rent Act and (iii) that plaintiff
requires suit property for bona fide use (section 13 (1) (g) of 'the Rent
Act'.
3.2 The trial Court, after taking into consideration the oral
evidence and the documentary evidence and giving findings on all the
issues, dismissed the suit. Aggrieved by the said judgment and decree
of the trial Court, plaintiff filed Regular Civil Appeal No.104 of 2017
and after reappreciating the evidence the appellate Court allowed the
appeal on the ground that defendant has acquired alternative
accommodation and the judgment and decree for eviction was passed
under Section 13 (1) (l) of the Rent Act has been confirmed.
Aggrieved by the said order, present Civil Revision Application has
been filed.
4. Learned advocate for the defendant has mainly argued that the
appellate Court while reappreciating the evidence has not taken into
consideration the issue of limitation and the fact that other than the
suit property, the defendant does not acquire any suitable
accommodation and, therefore, appellate Court could not have
granted judgment and decree under Section 13(1)(l) of the Rent Act.
It has also been argued that the defendant did not acquire any other
alternative accommodation. Moreover, alternative accommodation
was purchased long back and the original owner had also not
initiated any action of eviction till the property was sold to the
plaintiff and, therefore, suit on the ground of alternative
accommodation under the provisions of Section 13(1)(l) of the Rent
Act was clearly time barred. Moreover, it has also been argued that
alternative accommodation that the plaintiff states that the defendant
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acquired was sold long back by the defendant and, therefore, no
decree could have been passed on the ground of alternative
accommodation. In view of this, it has been argued that judgment
and decree passed by the first appellate Court is required to be
quashed and set aside.
5. Per contra, learned advocate for the plaintiff has argued that
plaintiff has proved the fact that the defendant had alternative
accommodation and the said fact is proved by documentary evidence
and, therefore, first appellate Court has rightly quashed and set aside
the order passed by the trial Court and the said order does not
require any interference.
6.1 Having heard learned advocate for the parties, fact remains
that plaintiff had examined the Secretary of Adarsh Co.operative
Society viz. Baldevbhai Jivandas Patel vide Exh.75 and said witness
has produced documentary evidence to prove that a sale-deed, which
is produced vide Exh.78 is in the name of defendant as seller and
Rukmaben Bharatbhai Bondaliya to be the purchaser. Therefore, it
can be clearly established that defendant owned the premises and vide
Exh.80 said Rukmaben Bondaliya had further sold property to
Dr.Rajesh Nirmalkumar Jain. Therefore it can be clearly established
that the defendant had acquired a suitable accommodation after
coming into force of the Rent Act.
6.2 Moreover, reading of Section 67 of the Rent Act indicates that
time to recover possession commences from the date when tenancy is
determined. In the present case, after coming into force of the Rent
Act, though it is an admitted position that the defendant has
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purchased suit property with the pre-sitting tenant, the fact remains
that it has come on record that the tenant i.e. defendant had
alternative accommodation and the said fact has not been denied by
the defendant. The fact remains that defendant has come forward
with the case that the said property has already been sold by the
defendant and, therefore, there is no other alternative
accommodation other than the suit property. The fact remains that
the plaintiff in order to get possession under the provisions of Section
13(1)(l) of the Rent Act has to prove that after coming into force of
the Rent Act, the defendant has acquired vacant possession or has
been allotted suitable alternative residence. Therefore, as the Rent
Act came into force on 13.02.1948, the acquisition of the suitable
accommodation has to be subsequent to 13.02.1948. Therefore,
plaintiff will have to prove that the defendant has acquired a property
after the Rent Act came into force. Therefore, the plaintiff has clearly
established the fact that the defendant has acquired a suitable
accommodation and there is nothing on record that has been proved
by the defendant as to non-suitability of the said alternative
accommodation by the defendant and, therefore, once the defendant
tenant having acquired accommodation, its non-suitability has to be
proved by the defendant. Thus, in view of the fact that plaintiff has
proved that the defendant has alternative accommodation, the
present Civil Revision Application requires to be dismissed.
7. Thus, on the basis of overall analysis of the material on 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
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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.
8. Moreover, while deciding the Revisional Application, 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.
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
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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.
