Gujarat High Court

Sanjay Gopalbhai Ashar vs Ramalaxmi Purushottambhai Dave on 7 October, 2025

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                          C/CRA/535/2025                                     JUDGMENT DATED: 07/10/2025

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                                  IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                    R/CIVIL REVISION APPLICATION NO. 535 of 2025

                                                         With
                                      CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
                                   In R/CIVIL REVISION APPLICATION NO. 535 of 2025

                     FOR APPROVAL AND SIGNATURE:


                     HONOURABLE MR. JUSTICE MAULIK J.SHELAT

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                                 Approved for Reporting                      Yes           No
                                                                                            ✓
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                                            SANJAY GOPALBHAI ASHAR & ORS.
                                                               Versus
                                     RAMALAXMI PURUSHOTTAMBHAI DAVE & ORS.
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                     Appearance:
                     MR PREMAL R JOSHI(1327) for the Applicant(s) No. 1,2,3
                     MR TANMAY B KARIA(6833) for the Opponent(s) No. 2,3
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                        CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                         Date : 07/10/2025

                                                        ORAL JUDGMENT

1. Rule returnable forthwith. Learned Advocate Mr. Tanmay B.

Karia waives service of notice of Rule on behalf of the

respondent Nos.2 and 3.

2. Heard learned Advocate Mr. Premal R. Joshi for the

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petitioners and learned Advocate Mr. Tanmay B. Karia for the

respondents.

3. The petitioners (hereinafter referred to as "tenants") and the

respondents (hereinafter referred to as "landlords").

4. THE SHORT FACTS OF THE CASE APPEAR TO BE

THAT:

4.1. The present application is filed under Section-29(2) of the

Bombay Rents, Hotels and Lodging House Rates Control Act,

1947 (hereinafter referred to as "the Act, 1947"), at the instance

of the original defendant happens to be the tenant of the rented

premises, whereby, challenged the judgment and decree dated

16th January 2023 passed by the Additional District Judge,

Morbi, in Regular Civil Appeal No. 12 of 2012.

4.2. At the outset, it is required to be observed that the respondents

herein being the original landlord of the rented premises, filed a

suit for eviction on various grounds by filing Regular Civil Suit

No. 269 of 2001, which was dismissed by the Trial Court vide

its judgment and order dated 17th March 2012. It is to be noted

here that there was no counterclaim filed by the petitioner

herein.

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4.3. Nonetheless, apprehending that while answering issue No.4,

having so framed by the Trial Court, in negative against the

petitioner, they thought it fit to file Regular Civil Appeal No.

12 of 2012 before the Appellate Court.

4.4. At the same time, it is reported to this Court that the

respondents/landlord have also preferred independent Regular

Civil Appeal challenging the very same judgment and decree

passed by the Trial Court, which reported to be dismissed for

non-prosecution. Although, respondents have already preferred

a restoration application being Civil Misc. Application No. 129

of 2021, which is pending for its adjudication.

4.5. Be that as it may, after hearing the parties, the Appellate Court

vide its judgment and decree dated 16th January 2023,

dismissed the appeal. Hence, the present revision application.

5. SUBMISSIONS OF THE PETITIONERS:

5.1. Learned Advocate Mr. Joshi, appearing for the petitioners,

would submit that as such, there was no need to file an appeal

by the original tenant, inasmuch as the suit filed by the

landlord was dismissed. But, an apprehension weighed with the

tenant in regards to answer given by the Trial Court qua issue

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No. 4, whereby, the right of use of terrace by the tenant is

answered in the negative having so held that tenant failed to

prove it as a part of rented premises.

5.2. Learned Advocate Mr. Joshi would further submit that when

there is no restriction put forward by the landlord on the use of

such terrace, it ought to have been observed by courts below in

favor of the tenant to use such area i.e. the terrace.

5.3. Learned Advocate Mr. Joshi would respectfully submit that if

the appeal filed by the landlord gets restored back on its file,

the petitioner-tenant may be allowed to defend such appeal on

all counts, including issue No. 4, which was decided by the

Trial Court, inasmuch as an appeal is a continuation of the

suit.

5.4. Making the above submissions, learned Advocate Mr. Joshi

would request this Court to suitably modify the order passed

by the Appellate Court.

6. SUBMISSIONS OF RESPONDENTS:

6.1. Per Contra, learned Advocate Mr. Karia would submit that, as

such, no appeal could have been filed by the tenant against any

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finding of fact recorded against the tenant, inasmuch as there

was no counterclaim filed by the tenant and the suit was

dismissed. Thereby, no right available to the tenant being the

defendant of the suit, to challenge the decree in the Appellate

Court.

6.2. Learned Advocate Mr. Karia would further submit that as

such, there is no need to file the present revision application as

well, inasmuch as the Appellate Court has answered all the

issues raised before it in its elaborate judgment, albeit against

petitioner.

6.3. Learned Advocate Mr. Karia would submit that the appeal

filed by the landlord got dismissed for default and its

restoration is pending, once appeal will get restore back on its

file, it requires to be heard independently without being

influenced by the impugned judgment and decree passed by the

Appellate Court.

6.4. Making the above submissions, learned Advocate Mr. Karia

would request this Court to dismiss the revision application.

7. No other and further submissions are made.

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ANALYSIS

8. The scope and ambit of the power of this Court while

exercising its Revisional jurisdiction is very minimal. Unless,

there is jurisdictional error committed by courts below, this

Court while exercising its Revisional jurisdiction, should not

interfere with the order passed by the court. [See: Hindustan

Petroleum Corporation Limited Vs. Dilbahar Singh reported in

(2014) 9 SCC 78 (Para Nos.28 & 43), and Patel Valmik

Himatlal and others Vs. Patel Mohanlal Muljibhai (Dead)

through Lrs. reported in 1999 (1) GLR 15 (SC) (Para Nos.5 &

6)]

9. The facts narrated hereinabove are not in dispute. It remains

undisputed that the suit filed by the landlord seeking eviction

of a tenant from rented premises, wherein, tenant only

contested the suit but not filed any counterclaim. Nonetheless,

the fact remains that issue No. 4, having so framed by the Trial

Court, whereby, the Trial Court answered in negative against

the tenant. Accordingly, it is so held that tenant is not able to

prove that the area of terrace was part of the rented premises.

Such finding of fact assailed by the tenant before the Appellate

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Court by way of appeal, though the suit got dismissed on merit,

whereby decree would not stand against petitioner-defendant-

tenant.

10. It is settled by a long catena of decisions that to be entitled to

file an appeal the person must be one aggrieved by the decree.

Unless a person is prejudicially or adversely affected by the

decree he is not entitled to file an appeal. [See : Deva Ram Vs

Ishwar Chand reported in (1995) 6 SCC 733 (para-27) &

Hardevnider Singh Vs Paramjit Singh & Others reported in

(2013) 9 SCC 261 (para-21 & 22)]. As such, no prejudice and

or decree passed by trial Court adversely affected the right of

petitioner-defendant-tenant, even if Issue No.4 decided against

him. Prima facie, according to my view, when the suit itself

dismissed and in the absence of any counterclaim filed by the

defendant, no appeal could have been filed by the defendant-

tenant, only against finding.

11. Be that as it may, such appeal was not only filed but decided on

merits by the Appellate Court with its specific observation that

even though the tenant failed to prove that the area of terrace is

part of the rented premises, there was no restriction about its

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use by the tenant. The relevant observation of the Appellate

Court in its impugned judgment requires to be reproduced

herein-below:

"........ The answer of the said issue given by the Ld. Senior Civil Judge, Morbi was in the negative. However, whether the any right appellants/original defendants is of the curtailed, there is no any evidence on record which shows that the any right of the appellants/original defendants curtailed for passing of the said judgement and order or even observations of the Ld. Senior Civil Judge. Moreover, as this Court being first appellant Court, if I consider written statement of the appellants/original defendants which is on record of the suit vide Exh.13, there is no any counter claim or any relief claimed by the original defendants/appellants in the written statement, when there is no relief claimed by the appellants/original defendants or filed any counter claim, there is no need to pass the order in favour of the appellants/original defendants. Thus, considering the above discussions and settled principles of law, the appellants/original defendants have right to prefer the appeal, but appeal itself is not maintainable only on the ground that there is no any order passed by the Ld. Senior Civil Judge in favour of the respondents/original plaintiffs or against the appellants/original defendants.

11. Now, I consider another point regarding the observations of the Ld. Senior Civil Judge in the judgement at Exh.99 regarding the use of the adjacent open place of the appellants' office, Looking to the evidence of the appellants as well as respondents, it is admitted facts that through the open place situated adjoining rented premises third person also pass

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through for using his property. Moreover, yet neither the respondents nor the predecessor of the respondents have restrained to the appellants or the decision of the appellants for utilization of the adjoining open place of the defendants' ofice. Not only that the respondents filed suit on the ground of permanent structure, change of suit premises and non-using of the suit premises mainly, the Ld. Senior Civil Judge was pleased to pass judgement decree and on the basis of availability of evidence of the parties and declined relief sought by the appellants in the suit. So, there is no any difference making regarding observations of the Ld. Senior Civil Judge. In short, this Court is opined that there is no any kind of right of utilization of the suit premises was curtailed by the Ld. Senior Civil Judge, Morbi by passing the judgement and decree in the R.C.S. No.269/2001."

(emphasis supplied)

12. When there is concurrent finding of fact so recorded by courts

below, whereby, the tenant failed to prove that the area of the

terrace was also part of the rented premises, this Court having

its limited jurisdiction, cannot reappreciate such evidence

again, unless found perversity in finding so recorded by the

Courts below. Thus, it would not be appropriate to disturb the

finding of fact so recorded by the courts below based on the

correct appreciation of the evidence as petitioner failed to show

any perversity in such finding of fact recorded by the Courts

below.

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