Gujarat High Court
Saurashtra Rachnatmak Samiti vs Legal Heir Of Decd. Fulchand Devji Mehta on 14 October, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 248 of 2000
With
R/CIVIL REVISION APPLICATION NO. 904 of 2000
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER Sd/-
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Approved for Reporting Yes No
✔
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SAURASHTRA RACHNATMAK SAMITI & ORS.
Versus
LEGAL HEIR OF DECD. FULCHAND DEVJI MEHTA & ORS.
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Appearance:
TANNA ASSOCIATES(1410) for the Applicant(s) No. 1,2,3
ADVOCATE NOTICE SERVED for the Opponent(s) No. 1.7.3
MR AS VAKIL(962) for the Opponent(s) No.
1.1,1.10,1.2,1.3,1.4,1.5,1.6,1.7.1,1.7.2,1.9
UNSERVED EXPIRED (N) for the Opponent(s) No. 1.7.4
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 14/10/2025
ORAL JUDGMENT
1. The present Civil Revision Applications are filed under
Section 29 of the The Bombay Rents, Hotel and Lodging
House Rates Act, 1947, challenging the judgment and decree
passed in Regular Civil Appeal Nos.182 of 1981 and 199 of
1981, passed by Assistant Judge, Jamnagar dated 30.06.1999,
which were filed pursuant to the judgment and decree passed
in Regular Civil Suit No.634 of 1971 passed by Civil Judge,
Senior Division, Jamnagar.
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2. For the sake of brevity and convenience the parties are referred
to as per their original status as that in the suit.
3. The brief facts arising in the present Revision Applications are
that the plaintiff filed a suit for eviction of the defendants from
the suit property, on the ground of bonafide and reasonable
requirement for his own residence and business purposes. The
suit premises consist of ground floor and the first floor and the
entire suit property was given on rent to the defendants. The
defendant appeared in the said suit and filed a written
statement. The Trial Court framed issues vide Exhibit 10 as
under:
"(1) Whether the plaintiff proves that he
is required suit premises reasonably
and bonafide for occupation by itself?
(2) To whom greater hardship would be
caused in case decree for eviction is
granted or refused ?
(3) What should be the standard rent ?
(4) Whether the suit notice is legal and
valid?
(5) Whether the suit is barred by mis-
joinder of parties ?
(5-4) Whether the suit is maintainable in
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view of the contention raised in para 2
of the written statement at Exh.9?
(6) What is due? And
(7) What order and decree?"
4. The plaintiff examined himself vide Exhibit 122 amd at the
Appellate Stage at Exhibit 44 the plsintiff's son was examined
and the witnesses of the plaintiff were examined vide Exhibits
237, 239, 240, 242 and 245 and at teh Appellate Stage, the
witnesses of the plaintiff was examined vide Exhibit 45. The
defendant examined himself vide Exhibit 265 and was
examined at Appellate Stage at Exhibit 33 and after
considering the oral evidence and the documentary evidence
and giving finding on all the issues, the Trial Court by a
judgment and decree dated 02.11.1981, partly allowed the suit
and passed a decree of eviction in favour of the plaintiff qua
first floor of the suit premises and refused the decree for
eviction of the ground floor portion.
5. Being aggrieved by the judgment and decree, the plaintiff filed
Regular Civil Appeal No.182 of 1981, against refusal of part
decree whereby eviction of the ground floor portion for
business of the plaintiff was refused and the defendants filed
appeal against partial decree, granted in favour of the plaintiff,
being Regular Civil Appeal No.199 of 1981. After re-
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appreciating the evidence, the Appellate Court allowed the
Regular Civil Appeal No.182 of 1981 filed by the plaintiff and
dismissed the Civil Appeal No.199 of 1981, filed by the
defendants thereby the Appellate Court granted a decree of
eviction even for the ground floor premises and confirmed the
decree qua the first floor portion of the premises which was
passed by the Trial Court in Civil Suit No.634 of 1971, hence
the present Revision Applications.
Submissions of the learned senior advocate for the
defendant:
6. Learned senior advocate Mr.Bhaskar Tanna for the defendant,
has mainly argued that, the Appellate Court has failed to
appreciate the evidence on record and thereby committed an
error in coming to the conclusion that the plaintiff has proved
bonafide and reasonable requirement of the suit premises. It
has been argued by the learned senior advocate that the
Appellate Court has without any basis come to the conclusion
that the plaintiff required the suit premises for reasonable and
bonafide requirement. It has also been argued by the learned
Senior Advocate that, the Appellate Court has wrongly come
to the conclusion that the plaintiff would be put to greater
hardship than the defendants, even when there was ample
evidence on record that greater hardship would be caused to
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the defendants if the decree of eviction is passed. It has also
been argued by the learned senior advocate for the defendant
that the Appellate Court has wrongly appreciated the evidence
and wrongly interpreted the provisions of the Rent Act, and
has wrongly come to the conclusion that the defendants should
shift to another premises and therefore, it has been argued that
the judgment and decree passed in Regular Civil Appeal
Nos.182 of 1981 and 199 of 1981 are required to be quashed
and set aside.
7. Learned senior advocate Mr.Tanna has for the defendants has
argued that in the present case, it is not in dispute that the suit
property was given on rent by Fulchand Devji Mehta, and that
he was residing at Aden and the said suit was filed in the year
1971 and the said suit was filed against (1) Saurashtra
Rachnatmak Samiti (2) Khadi Gramodhyog Bhandar,
Jamnagar(3) the Manager of Khadi Gramodhyog, and while
filing the suit, the plaintiff has not stated whether defendant
no.1 was a society or a trust registered under the Bombay
Public Trust Act. It has been argued by the learned senior
advocate that the said fact had been brought to the notice of
the plaintiff in the year 1975, when the defendant filed an
application for amendment of his written statement and it was
brought to notice that the trustees of Saurashtra Rachnatmak
Samiti, have not been joined as parties and therefore as the
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tenant of the suit properties were a public trust registered
under the Bombay Public Trust Act, unless the trust and the
trustees were joined in the suit, the Court could not have
granted a decree of eviction against the defendants.
8. It has been argued by the learned senior advocate that the Trial
Court, as well as the Appellate Court, have come to the
conclusion that the said amendment whereby the fact of
defendant no.1 being a trust registered under the Bombay
Public Trust Act, was done at the last minute in the suit, which
is factually not correct, in view of the fact that the judgment
was delivered in the year 1981 and therefore, it cannot be said
that at the last minute, the said amendment was sought by the
defendants.
9. The learned senior advocate has also argued that, the suit filed
by the plaintiff for eviction could not have been decreed by the
Court, in view of the fact that the suit fails because of non-
joinder of trustees and as the said fact goes to the root of the
matter and that, there is no finding despite the clear
amendment made in the written statement, the Appellate Court
could not have granted a decree of eviction. Moreover, if the
entire pleading and oral evidence of the plaintiff are taken into
consideration, the fact remains that it was stated that the
plaintiff requires the ground floor portion of the suit premises
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for commercial purposes, for his own reasonable and bonafide
requirements, and the upper portion of the suit premises is
required by the plaintiff for his own reasonable and bonafide
requirements for residential purposes. The Trial Court, while
rejecting the claim for the ground floor portion, has taken into
consideration the comparative hardship of the parties, and
came to a finding that there were adequate arrangements of the
plaintiff's for their business. Therefore, the First Appellate
Court could not have reversed the findings of the Trial Court
with respect to the ground floor portion of the suit premises.
10. The learned senior advocate also argued that the concept
of there being large number of family members cannot be a
ground for eviction of a tenant from the suit premises, in view
of the fact that the original plaintiff landlord had given the suit
property on rent, and therefore the change of circumstances
could not be a ground to evict the tenant from the premises and
therefore, comparative hardship was also in favor of the
defendants and the Appellate Court could not have reversed
the said findings of the Trial Court for the ground floor portion
of the suit property.
11. The learned senior advocate for the defendants has
argued that the plaintiffs have been possessing suitable, rented
premises for their residence and business purposes and
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therefore also, the plaintiff cannot claim possession of the suit
premises on the ground that his son requires the suit premises
and therefore, the requirement of the plaintiff's son cannot be a
bonafide and reasonable requirement of the plaintiff-landlord.
12. Moreover, it has been argued that the fact that the
plaintiff has provided and suggested alternative
accommodation, cannot be a ground to evict the defendants
from the suit property.
13. The learned senior advocate for the defendants has also
argued that the plaintiff has not produced any satisfactory
evidence to prove that the plaintiff requires the suit premises
reasonably and bonafide for his personal use and occupation. It
has been argued by the learned senior advocate for the
defendants that, if the oral evidence of the plaintiff and his
son, Rameshchandra, are taken into consideration, the same
does not prove the fact that the plaintiff requires the suit
property reasonably and bonafide for his personal use and
occupation.
14. The learned advocate for the defendants has also argued
that the Appellate Court has also not decided the issue of
greater hardship, in view of the fact that greater hardship will
be caused to the defendants, if the decree of eviction is passed.
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15. It has been argued by the learned advocate for the
defendants that the plaintiff has stated that there are 25
members in his family and that he is residing in rented
premises situated at Sheri No.2, Nagarpara at Jamnagar and
that the said premises, are not sufficient to accommodate all
members of his family and that he is paying the rent of
Rs.200/- and that rent note was produced, vide Exhibit 71 and
the rent receipts were produced, vide Exhibits 72 and 73 and
therefore, the defendants tenant had proved that the landlord is
possessing residence accommodation and there was no
hardship that would be caused to the plaintiff and therefore,
the Appellate Court could not have granted a decree of
eviction of the defendant, considering the fact that greater
hardship would be caused to the defendant, if the defendant is
evicted from the suit property.
16. The learned senior advocate for the defendants has also
argued that, it has come on record that plaintiff has various
buildings in his occupation for residence and business purpose
and that rented premise is in possession of the plaintiff, for
residence comprised with 6 rooms, 1 storeroom, kitchen and 2
osaries. While according to the plaintiff, the said rented
premises are comprising only of 3 rooms, kitchen and 2 osari.
The learned advocate for the defendants has also argued that, it
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has come on record that there were two rented premises and a
godown in possession of the plaintiff for business purpose and
that his son Vimesh is doing business of provision store and
the rent receipts of the same are also produced vide Exhibits
91 and 92. It has also come on record that there was another
shop which was situated at locality known as Hawai Chowk,
Jamnagar and the rent receipts for the same were produced,
vide Exhibits 89 and 90 and the said shop, the plaintiff was
using for the business, known as Cycle Auto Agency and
running provision store by the name and style International
Agency, and the rent note to that effect was produced, vide
Exhibit 75.
17. The learned senior advocate for the defendants has also
argued that the plaintiff also was in possession of one godown
situated at the place and locality known as Ananda Bawa
Chakla, and the rent receipt of the said godown was produced
vide Exhibits 78 to 82. The learned senior advocate for the
defendants has argued that the plaintiff in his evidence has
stated that the two shops and godown are not sufficient for him
to do business and therefore, he required the suit premises to
start a business of provision store, therefore, it has been
admitted that the plaintiff had other alternative premises and
therefore, the plaintiff does not require the suit premises for
his reasonable and bonafide requirement to do business, the
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plaintiff has stated that the Cycle Business, known as Cycle
Auto Agency, was done by his son and his son obtained
registration of the said business and that his four sons had
executed partnership deed, for the said Cycle Business and that
none of his business was running in the name and style of
Fulchand Devaji Joint Hindu Family Firm, therefore the
plaintiff has other premises for residence and business
therefore the Appellate Court could not have passed a decree
of eviction.
18. Moreover, it has been argued by the learned senior
advocate for the defendants that it has also come on record
that, two sons of the plaintiff namely Gunavantrai and
Mahendra are at present at Dubai, therefore also the bonafide
requirement of the sons could not be a ground for eviction of
the defendants from the suit property.
19. The learned senior advocate for the defendants has relied
on the following judgments:
1. 2003 (2) GLH 148 Dwarkaprasad V/s. Niranjan:
Which discusses about the legal position for granting a
decree under Section 13(1)(g).
2. (2003) 2 SCC 320 Badrinaryan Chunilal Bhutada V/s.
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Govindram Ramgopal Mundada, wherein it has been held
that concept of comparative hardship lies in domain of
equitable or social justice.
3. (2001) 8 SCC 561 Siddalingamma & Anr. V/s.
Mamtha Shenoy, while deciding bonafide requirement of
landlord, the test will on the proven facts on record, the need
to occupy the premises should be natural, real, sincere,
honest.
4. (2001) 2 SCC 604 Gaya Prasad V/s. Pradeep
Srivastava, wherein it has been held that the landlord should
not be penalized for the slowness of the legal system and the
crutial date to decide the bonafide requirement of the
landlord is the date of his application for eviction.
5. 2001 (2) GCD 1716 Amubai Ibrahimbhai V/s.
Fakruddin Abbulhusain, on the issue as the Appellate Court
has powers to reappreciate and reassess the evidence and if
the landlord fails to establish any ground evicting the tenant,
the said findings of the Appellate Court can not be interfered.
6. (1999) 1 SCC 439 M.S. Zahed V/s. K. Raghavan,
wherein the Court held that the reasonable and bonafide
requirement must not only be bonafide but also be
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reasonable.
7. 1999 (1) GLR 15 Patel Valmik Himatlal V/s. Patel
Mohanlal Muljibhai, wherein it has been held that the High
Court cannot rehear the matter and reappreciate the evidence
but can correct mistakes of law which goes to the root of the
decision.
8. 1993 (1) GLR Mukundlal Nanalal Chanawala V/s.
Bhagvatsingh Dhansingh Gadaria, wherein it has been held
that it is the duty of the Court to consider the question of
relative hardship of respective parties first to find out as to
whom the greater hardship would be caused in case of partial
decree.
9. 1968 GLR 729 Kasturbhai Ramchand Panchal &
Bros. V/s. Firm of M/s. Mohanlal Nathubhai, Wherein it has
been held that if the requirement of the landlord is not
reasonable for the whole of the premises and partial decree
could be passed without causing any hardship to the either
side, the question would be resolved on the second ground
contemplated under Section 13(2) of the Act.
The judgments that have been relied upon by the learned
senior advocate for the defendants are on general principles
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of rent act and therefore, they have not been dealt with
separately, in view of the fact that the said are the basic
principles under, which the Court will have to take into
consideration a suit for eviction under Section 13(1)(g) of the
Rent Act and while deciding the present Revisions, this
Court has taken into consideration the same and even while
dealing with the judgments relied upon by the learned
advocate for the plaintiff the judgments relied on by the
defendants are dealt with.
20. Therefore, it has been argued by the learned senior
advocate for hte defendants that the present Revision
Applications are required to be allowed and the judgment and
decree passed in Civil Appeal Nos.182 and 199 of 1981, are
required to be quashed and set aside and the judgment and
decree, whereby partial eviction of the 1 st floor portion of the
suit property is granted in favour of the plaintiff, in Civil Suit
is also required to be quashed and set aside.
Submissions of the learned advocate for the plaintiff:
21. Learned advocate for the plaintiff has argued that, the
defendant no.1 tenant came to be inducted in the suit property
as tenant at the monthly rent of Rs.200/- in the year 1956. It
has been argued by the learned advocate for the plaintiff that
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the original plaintiff along with his family members were
residing at Aden, since he was fourteen years old. The
defendant no.1 is a society registered under the Society's
Registration Act, on 28.01.1953 and the registration certificate
is produced vide Exhibit 271.
22. It has been argued by the learned advocate for the
plaintiff that, the suit property comprises of shop on the front
on the ground floor, store room in the rear, two rooms,
bathrooms, stair case on the eastern side and first floor and the
suit property is capable of being used for residence and
commercial purpose and in the year 1962-63 the rent of the
suit property was increased to Rs.500/-.
23. It has been argued by the learned advocate for the
plaintiff that, as there was political unrest at Aden, the plaintiff
started correspondence with defendant no.1-tenant from Aden
and documentary evidence to support the same were produced
vide Exhibits 49, 136 to 139, 188 to 189 and therefore the
plaintiff's sons and daughter came to Jamnagar and were
residing in rented premises.
24. Thereafter, in the year 1971, the plaintiff also left Aden
and came to Jamnagar. Learned advocate for the plaintiff has
also argued that the original plaintiff and his son showed and
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suggested various alternative accommodation to the
defendants and as the defendants did not vacate the suit
premises, the plaintiff filed suit seeking eviction of the
defendants from the suit property on the ground of personal
requirement i.e. Section 13(1)(g) of the Rent Act.
25. It is the case of the plaintiff that the plaintiff and his
family members are occupying rented premises for residence
and for commercial purposes and that, defendant no.1-tenant
has, been shown various alternative accommodations, but the
defendants did not give any response and the plaintiff and his
family members were required to obtain residential and
commercial premises on rent, as defendant no.1 refused to
vacate the suit property and that the commercial premises
occupied by the plaintiff at the time of filing the suit were
inadequate for development of the business and therefore, the
plaintiff desired to commence a provision store on the ground
floor portion and utilize the first floor portion for residence
purpose.
26. The learned advocate for the plaintiff has also argued
that on the aspect of comparative hardship with regard to the
first floor for residence, the Appellate Court has discussed the
same and has concluded that the Trial Court has considered all
the relevant facts and the findings recorded by the Trial Court
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are based on proper appreciation of evidence on record and
therefore, cannot be interfered with.
27. It has been argued by the learned advocate for the
plaintiff that the Trial Court has observed that the plaintiff has
sufficiently adduced the evidence and satisfied the Court that,
there is not a mere desire, but there was a need of the suit
premises for personal use and occupation and that the
defendants have not pointed out any ground or circumstances
to show that the plaintiff's requirement was not bonafide.
28. Moreover, it has been argued by the learned advocate for
the plaintiff that, considering section 13(2) of the Rent Act, the
Trial Court and the Appellate Court have taken into
consideration that the plaintiff's occupation in a rented
premises is of a temporary accommodation and when the
plaintiff is asking for a decree of possession of the suit
premises, the same does not bar him, if the plaintiff is
occupying a rented premises. It has been argued by the learned
advocate for the plaintiff that the Trial Court and the Appellate
Court have taken into consideration the size of the family of
the plaintiff and have come to the conclusion that, the
evidence in respect of the size of the family of the plaintiff and
the size, area and accommodation of the rented premises, was
in no way impeached and it has been argued that the plaintiff
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has shown by reasons of his stature, number of members in his
family, size and accommodation of the rented premises for
residence and nature of his business, that he requires suitable
and sufficient residential accommodation and that the demand
of the plaintiff is infact genuine for residence purpose of the
first floor portion.
29. The learned advocate for the plaintiff has also argued
that, it would be unfair to ask the plaintiff to occupy rented
premises, when a premises is owned by the plaintiff and that
the plaintiff cannot be forced to search a rented house for
himself, especially when the plaintiff himself owns his own
house.
30. It has been argued by the learned advocate for the
plaintiff that the Appellate Court has also considered different
rented premises which were occupied by the sons of the
plaintiff, to do business and it has been argued by the learned
advocate for the plaintiff that the want of the plaintiff to shift
business in the suit premises is not a matter to be decided by
the Court and the want of the plaintiff, that will have to be
taken into consideration and the alternative rental
accommodation cannot wipe out the need of the plaintiff and
therefore, it has been argued that both the Civil Revision
Applications are required to be quashed and set aside, in view
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of the fact that the scope of interference of the Revision Court
under Section 29(2) of the Rent Act is only, if there is
miscarriage of justice, due to mistake of law and this Court
cannot reassess the value of evidence and interfere with the
finding of fact merely because it thinks that the appreciation of
evidence by the Appellate Court is wrong and that the
Appellate Court should have reached a different conclusion of
fact from what it did and therefore.
31. The learned advocate for the plaintiff has relied on the
following judgments :
-For the point of interference of this Hon'ble Court under Section
29 (2) of Gujarat Rents, Hotel and Lodging House Rates Control
Act, 1947, the following judgments have been relied on.
1. (1947) 1 SCC 661 - Phiroze Bamanji Desai v. Chandrakant N.
Patel and others.
2. (1981) 3 SCC 502 - Bhaichand Ratanshi v. Laxmishankar
Tribhovan.
3 (1987) 3 SCC 538 - Helper Girdharbhai v. Saiyed Mohmad
Mirasaheb Kadri and others.
4.(1996) 5 SCC 353 - Prativa Devi v. TV Krishnan: paras 1, 2, 4.
5. (2000) 1 SCC 679 - Raghavendra Kumar v. Firm Prem
Machinery & Co.
6. (2000) 5 SCC 1 - Vaneet Jain v. Jagjit Singh.
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7. (2008) 9 SCC 1 - Shamshad Ahmad and others v. Tilak Raj
Bajaj and others.
8. (2009) 9 SCC 678 - N. Eswari v. K Swarajya Lakshmi.
9. (2010) 11 SCC 777- Sameer Kumar Pal and another v. Sheikh
Akbar and others.
10. 2010 SCCOnline Guj 12293- Patel Kanjibhai v. Modi
Manjulaben Babulal.
11. (2017) 14 SCC 132 - Ambadas Khanduji Shinde and others v.
Ashok Sadashiv Mamurkar and others.
12. (2018) 12 SCC 576 - Gandhe Vijay Kumar v. Mulji alias
Mulchand.
13. (2019) 9 SCC 282 - D. Sasi Kumar v. Soundararanjan.
14. (2020) 19 SCC 254 - Thankamony Amma and others v. Omana
Amma N. and others.
-For the Question of landlord's reasonable and bona fide
requirement of premises for his own use and occupation is one of
fact following judgments have been relied upon:
1. (2008) 1 SCC 173 - Julieta Antonieta Tarcato v. Suleiman
Ismail
2. (2008) 7 SCC 770 - Ganga Devi v. District Judge, Nainital and
others
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- For the point that Landlord is the best judge of his requirement /
Court cannot direct/require landlord to do buiness in a particular
area the following judgments are relied upon:
1. (2010) 12 SCC 740 - Dinesh Kumar v. Yusuf Ali
2. (2012) 2 SCC 155 - Mohd. Ayub and another v. Mukesh Chand
3. (2017) 5 SCC 640- Nidhi v. Ram Kripal Sharma
-For the point of delay in adjudication/ subsequent events/ crucial
date for deciding the following judgments are relied upon:
1. (1997) 4 SCC 413 - Kamleshwar Prasad v. Pradumanju Agarwal
2. (2001) 2 SCC 604 - Gaya Prasad v. Pradeep Srivastava
3. (2004) 5 SCC 772 - Shakuntala Bai and others v. Narayan Das
and others
4. (2010) 2 SCC 264 - Ashok Kumar v. Ved Prakash and others
32. In view of the same, it has been argued that the Civil
Revision Applications are required to be quashed and set aside
and judgment and decree passed in Regular Civil Appeal
nos.182 of 1981 and 199 of 1981 are required to be
confirmed.
Analysis
33. Having heard learned advocates appearing for the
respective parties, and having considered the oral evidence,
documentary evidence, and the judgment passed by the Trial
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Court and the First Appellate Court, if the judgment of the
Trial Court is taken into consideration, the Trial Court has held
that the claim of the plaintiff for eviction for the purpose of
doing his own business and residing in the suit premises is
bonafide. If paragraph no.13 of the judgment passed by the
Trial Court is taken into consideration, the Trial Court has held
that the landlord is not bound to continue in the other rented
premises which is occupied by the plaintiff, wherein there are
all uncertainties of their tenure and it has been held that the
plaintiff cannot be said to be unreasonable, if he wishes to
occupy the suit remises for his personal use and occupation.
34. Moreover.,the Trial Court has also held that there is
nothing strange, if the plaintiff, who is the owner of the
premises, is thinking of doing business and residing in his own
premises, and ultimately, the Trial Court had held that the
claim of the plaintiff for eviction for the purpose of doing his
own business and residing in the suit premises is a bonafide
requirement. It has also come on record that the plaintiff only
has the suit premises and has no other property that belong to
the plaintiff, and it was not a mere desire of the plaintiff, but
the need and necessity of the plaintiff to occupy the premises
for residence and business, and the same is already held by the
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Trial Court, and therefore, the Trial Court has held that the
plaintiff was in need of the suit premises for residence and for
his occupation. The Trial Court has also taken into
consideration the factor of comparative hardship, and while
taking into consideration the said factor, the plaintiff had
examined himself vide Exhibit 122, and in the said
examination-in-chief, the plaintiff had categorically given
details of his family members and the business that his son and
family is doing.
35. The factor which will also have to be taken into
consideration is that the plaintiff was residing at Aden, and
because of the Political Development that took place at Aden,
he had to leave and come to India, and the plaintiff is trying to
seek possession of the suit property from the defendants from
the year 1956 and therefore, the need of the suit premises has
been established by the plaintiff, while filing examination-in-
chief, vide Exhibit 122. The son of the plaintiff, is examined
vide Exhibit 237, and the son of the plaintiff has, in support of
the case, given details of the size of his family and that the son
of the plaintiff Rameshchandra Fulchand, was managing the
affairs at Jamnagar and that he had met one of the member of
the executive body of defendant no.1.
36. Moreover, the plaintiff had also examined vide Exhibit
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239, one Dhirajlal Sundarji Varia, who was the owner of a
property and was willing to give the said premises on rent to
the defendants, and therefore, the plaintiff has tried to establish
the fact that no hardship will be caused to the defendants, in
view of the fact that the defendants have been suggested
alternative premises to do business. The plaintiff had also
examined vide Exhibit 240 a witness Mr.Maheshwar
Sakarchand Mankad, who was managing the property of the
plaintiff, and the said witness has given details about the
size/measurement of the property. Moreover, the plaintiff has
also examined vide Exhibit 242 and 245, who had suggested
alternative premises to the defendants, where the defendants
can occupy the premises for their business.
37. At the appellate stage, when the subsequent events that
took place after the appeal was filed, the plaintiff examined
son of the original plaintiff, to prove that the plaintiff has not
acquired any other alternative accommodation and therefore,
the question of bonafide requirement still continued. The
plaintiff had also examined witness vide Exhibit 44 and 45, at
the appellate stage in support of the plaintiff to the claim of the
defendant, wherein the defendants had stated that the
daughter-in-law of the original plaintiff has acquired a plot in
Jamnagar is not proved.
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38. The defendants examined himself, vide Exhibit 265, and
from the oral evidence also, it can be gathered that the first
floor portion of the suit premises is not used by the defendant,
and with respect to the subsequent event, the defendants have
examined, witness at Exhibit 33 to prove the fact that,
daughter-in-law of the plaintiff Premilaben, has alternative
premises at Jamnagar.
39. The learned senior advocate, Mr. Bhaskar Tanna's main
arguments were that the plaintiff has not joined the trust and
the trustees of the said trust, in view of the fact that the said
trust is occupying the premises and the said trust is registered
under the Bombay Public Trusts Act, 1950, bearing
Registration No.F1998, and the copy of the said registration of
the trust is produced vide Exhibit 267, and therefore, the
learned senior advocate has argued that the Trial Court and the
Appellate Court, could not have granted a decree of eviction,
against the defendants in view of the fact that, the trust
registered under the Bombay Public Trusts Act, 1950, was not
joined as party defendant and the trustees of the said trust are
also not joined in the said suit.
40. If the said arguments are taken into consideration, the
fact remains that, admittedly, the suit property was given on
rent, somewhere in the year 1956, and the said fact has not
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been denied by the defendants that at the time when the suit
property was given on rent to defendant no.1, defendant no.1,
was not registered under the Bombay Public Trusts Act, 1950,
in view of the fact that the said trust has been registered on
10.01.1967, and at the time when the suit property was taken
on rent, defendant no.1, was a society registered under the
Society's Registration Act, which has been proved by
document produced vide Exhibit 271, which clearly shows that
the defendant no.1, was registered under the Society
Registratuion Act on 28.01.1953. Therefore, on the date when
the suit property was taken on rent, defendant no.1 was
registered as society under the Society Registration Act and
therefore, the question of joining the trust registered under the
Bombay Public Trusts Act, 1950, and joining the trustees of
the said trust does not arise in view of the fact that the tenant
of the suit premises was not the trust but society which has
been registered under the Society Registration Act, and
therefore the said argument of learned senior advocate,
Mr.Tanna, that the trust had to be joined as defendant will not
be applicable.
41. Moreover, though a defense by way of amendment in the
written statement has been taken by the defendants, but even
otherwise, at the time when the suit property was given on
rent, the defendant no.1 was not registered under the Bombay
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Public Trusts Act, 1950. Moreover, it has also not come on
record that as on date, the said registration under the Society
Registration Act of the defendant No.1, has been cancelled
and/or that defendant No.1, is no more a society registered
under the Society Registration Act and that, it is only
registered under the Bombay Public Trusts Act, 1950.
Therefore, also the said factor of not joining the trust and the
trustees cannot be considered.
42. In the present matter, though, it has come on record that
plaintiff's son are doing business in different rented premises,
but the fact is that, the plaintiff and his family members have
come to India from Aden, and though they have their own
property i.e. suit premises, they have to do business in some
other premises on rent, and as the plaintiff did not have any
premises, he was doing business in the rented premises for the
livelihood of his family members and the same was an interim
arrangement of the plaintiff, till he gets possession of his own
premises for doing business. Moreover, it is also come on
record that the business of Vimesh Provision Store, was also
compelled to be closed by the plaintiff, in view of shortage of
space and for the development of the business, the plaintiff
and plaintiff's son had tried to get different properties on rent,
and if all the factors by which the plaintiff's son have tried to
shift from one property to the other property for doing
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business are taken into consideration, the said factors clearly
indicate that the plaintiffs were in dire need of premises to do
their business.
43. In the present case, it has clearly come on record that the
plaintiff's son have been doing business in different rented
premises, and therefore, it cannot be said that it was only a
desire of the plaintiff to do business in the suit premises.
44. Moreover, the factor of plaintiff being in need of the suit
premises for his business has clearly been proved by the
plaintiff before the Trial Court and the Appellate Court, and
there are concurrent findings of the Court that the plaintiff is in
bonafide and reasonable need of the suit premises.
45. The other factor which also will have to be taken into
consideration is on the point of comparative hardship on the
parties, the Appellate Court has taken into consideration, the
oral evidence of the witnesses of the plaintiff whereby various
rented accommodation have been offered to the defendants by
the plaintiff and the said offers have been turned down by the
defendant's on one or the other excuse. In the present case, the
plaintiff has tried to settle at various places for doing business,
but unfortunately he has been unsuccessful, and therefore, as
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the plaintiff is the best judge of his requirement, and when
another accommodation is not reasonably suitable for the
purpose of the plaintiff, then the eviction decree had to be
passed. The plaintiff has proved that the alternative interim
rented accommodation, was not sufficient and reasonable for
the plaintiff to reside and do business. The evidence on record
clearly state that the plaintiff's requirement is not malafide and
is not merely a desire, but is a bona fide need of the plaintiff.
46. The alternative accommodation which has been
suggested by the plaintiff, have not been stated by the
defendants to be not sufficient and suitable for the business of
Khadi Gram Udhyog Bandar. The plaintiff has suggested other
suitable accommodation by oral evidence of witness produced
vide Exhibits 239, 242, and 245. Therefore also, the witness
examined at Exhibit 239, has deposed that he had other
property situated in the city Jamnagar and was ready and
willing to let out the first floor for making the construction as
per the desire of the defendants and the Appellate Court has
held that the properties that have been suggested to the
defendant are in the city of Jamnagar, and were suitable for the
defendants to do business.
47. Therefore, it has come on record that the plaintiff was in
bonafide and reasonable need of the suit premises and that
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comparative hardship would be caused to the plaintiff, if the
decree of eviction is not passed in favour of the plaintiff. In the
present case, the bonafide need of the plaintiff has clearly been
established and even after weighing the evidence on record,
the comparative hardship is at its highest in favor of the
plaintiff.
48. Moreover, one more factor will also have to be taken
into consideration while appreciating the comparative
hardship, the defendants have not brought on record any
material to indicate that at any time during the pendency of the
litigation, the defendants had made an attempt to seek an
alternative accommodation and had failed to find any
alternative accommodation.
49. The said factor also will be one of the circumstances to
be taken into consideration, while determining whether the
plaintiff is in bonafide need of the suit from property. If the
entire record is taken into consideration, there is nothing on
record to show that the defendants who are in possession of
the suit premises, since the year 1956, have made any attempt
to seek any alternative accommodation. In the present case,
though the tenancy of the defendant is from the year 1956, but
availability of another premises as proved by the plaintiff,
while producing while examining witness vide Exhibits 239,
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242, and 245 clearly indicate that another premises was
available to the defendants, where they can well shift their
business and in the present case, the plaintiff has pleaded
bonafide and reasonable requirement, and the same has been
proved by the plaintiff.
50. The finding of the Appellate Court that the plaintiff
reasonably and bonafidely required the suit property for his
own use and occupation is clearly one of fact and the said
findings of fact recorded by the Appellate Court, cannot be
said to be an error of law in arriving at them, the defendant is
not in a position to disclose that the Appellate Court was in
error of law in coming to the finding of fact that the plaintiff
required the suit premises for his own bonafide requirement.
51. This Court can only interfere with the decision of the
First Appellate Court under Section 29(3), if there is
miscarriage of justice due to a mistake of law and while
deciding the present revision applications, this Court cannot
reassess the value of evidence and interfere with the finding of
fact merely because a different conclusion of fact from what
has been stated by the Appellate Court could have been arrived
at in view of the fact that this Court cannot reappreciate the
evidence and substantiate its own conclusion of fact in place of
those reached by the First Appellate Court. The judgment
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reported in Phiroze Bamanji Desai v. Chandrakant N. Patel
and others reported in (1974) 1 SCC 661, will be of assistance
in view of the fact that at paragraph 7, the Court held that the
finding of the First Appellate Court that, the landlord
reasonably and a bonafide required the premises for his own
use and occupation was unquestionably a finding of fact and it
was not competent to the High Court in the exercise of
revisional power under Section 29(3) to interfere with this
finding by reappreciating the evidence.
52. The Hon'ble Apex Court in the judgment in the case of
Bhaichand Ratanshi v. Laxmishankar Tribhovan reported in
(1981) 3 SCC 502, held that the revisional jurisdiction could
only be exercised for a limited purpose, with a view to satisfy
itself that the decision was according to law. Moreover, the
defendants cannot dictate terms to the plaintiff and advise him
what he should do and what he should not do and it is always
the privilege of the plaintiff to choose the nature and place of
business.
53. Moreover, as held in the case of Shamshad Ahmad and
others Vs. Tilak Raj Bajaj reported in (2008) 9 SCC 1,
wherein it has been held that even long user of the premises by
the defendant, could not be a ground for depriving the plaintiff
for doing business, if the requirement of the plaintiff is
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bonafide and reasonable and that the finding as to bonafide
requirement was a finding of fact and therefore, the same
cannot be interfered in the revision of jurisdiction.
54. In the present case there are concurrent findings of the
Trial Court and the First Appellate Court on the fact that the
plaintiff has proved that the plaintiff has reasonably and
bonafidely required the suit premises and therefore, the said
concurrent findings are as per the evidence produced before
the Trial Court and therefore, does not require any
interference.
55. The fact that the Trial Court and the First Appellate
Court have come to the conclusion that the plaintiff has proved
that the plaintiff requires the suit premises for his bonafide and
persoanal requirement is a finding of fact based on evidence
on record and in view of the judgment of the Hon'ble Apex
Court in the case of Julieta Antonieta Tarcato Vs. Suleiman
Ismail reported in (2008) 1 SCC 173, wherein the Court held
that the finding of bonafide personal need, recorded by the
Appellate Court, is a finding of fact, based on the evidence on
record. Moreover, the landlord is the best judge of his
requirement and the Court cannot direct the plaintiff to do
business in a particular area. Moreover, the learned advocate
for the defendant has tried to argue that subsequent events will
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have to be taken into consideration while deciding the revision
application. The fact remains that the suit that was filed for
eviction was of the year 1971 and the Trial Court, partly
allowed the said suit and the Appellate Court has allowed
eviction of the defendant and the subsequent events can not be
used to penalize the plaintiff, while litigation has dragged on
for no fault of the plaintiff and the plaintiff cannot be
penalized for the slowness of the legal system and the same
cannot be the basis for denying the plaintiff, when the
litigation at last reaches the final stage.
56. The judgment in the case of Gaya Prasad V/s. Pradeep
Srivastava reported in (2001) 2 SCC 604, will be applicable to
the facts of the present case, wherein it has been held that
developments in life of the plaintiff and his family held cannot
be expected to come to a standstill during the pendency of
eviction proceedings and the bonafides of the requirement of
the plaintiff have to be tested in relation to the date on which
the eviction was applied for.
57. With respect to the comparative hardship, the fact that
considering the evidence on record, when the plaintiff has
already suggested alternative accommodation and alternative
premises were available to the defendants and the same is also
proved by oral evidence of the witnesses Exhibits 239, 242,
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and 245 and the fact that the defendants have also not brought
on record any material to indicate that any time during the
pendency of long drawn litigation, the defendant made an
attempt to seek an alternative accommodation and was unable
to get it the findings of the Appellate Court in the Appeals are
correct and does not require interference.
58. In the case of Mohd. Ayub and another v. Mukesh
Chand reported in (2012) 2 SCC 155, wherein it has been held
that the landlord's requirement need not be dire necessity,
wherein it has been held that the landlord's requirement need
not be dire necessity and at para no.17 it has been held as
under:
"17.It is also important to note that there is
nothing on record to show that during the
pendency of this litigation the respondent
made any genuine efforts to find out any
alternative accommodation. We
specifically asked learned counsel for the
respondent to point out any evidence to
establish that the respondent made any
such genuine efforts. He was unable to
answer this query satisfactorily."
59. In view of the aforesaid facts, the judgment and decree
passed in Regular Civil Appeal No.182 of 1981, whereby the
plaintiff had challenged the refusal of the ground floor portion
of the suit premises for bonafide requirement for doing
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business and the Regular Civil Appeal No.199 of 1981, filed
by the defendant, whereby the partial decree of eviction for the
first floor portion of the suit premises was granted, have been
decided as per the provisions of law.
60. With respect to the fact that the plaintiff has proved that
the plaintiff requires suit property for his own bona fide
requirement, the fact remains that the question of plaintiff's
reasonable and bona fide requirement for premises for his own
use and occupation is one of facts and in the revision
application, the said facts cannot be re-appreciated. Moreover,
the findings of the District Court in Regular Civil Appeal that
the plaintiff reasonably and bona-fidely required suit premises
for his own use and occupation is unquestionably a finding of
facts and it is not competent to deal with said factual decision
of the first appellate Court in exercise of revisional power
under Section 29(3) to involve every findings by re-
appreciating the evidence. Moreover, the scope of interference
of this Court under Section 29 of the Gujarat Rent Act, are that
the High Court cannot reassess the value of the findings and
interfere with the findings of fact merely because it needs that
the appreciation of evidence by the first appellate Court was
wrong and that the appellate Court should have reached the
different conclusion of fact from what it did. Under Revisional
jurisdiction this Court cannot re-appreciate the evidence and
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substitute its own conclusion of fact in couple of those reached
by the appellate Court.
61. The revisional jurisdiction under Section 29 could only
be exercised for a limited purpose with a view to satisfying a
condition that the decision was according to law. In the present
case, it cannot be said that the first appellate Court failed to
apply its mind to the requirement of Section 13(1) (g) i.e.
Bona fide requirement and of section 13(2) of the Rent Act as
to comparative hardship and it cannot be said that the findings
arrived at by the first appellate Court is manifestly perverse or
erroneous.
62. Therefore, 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 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
Appellate Court is according to law and does not suffer from
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any abuse of law. The findings recorded by the Appellate
Court 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 this 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.
63. The findings recorded by the Appellate Court is based
on critical appreciation of the evidence led by the parties on
record and does not suffer any error or material irregularities.
The Appellate Court has rightly come to the conclusion that
the plaintiff requires the suit premises reasonably and
bonafidely for occupation for himself and that greater hardship
would be caused to the plaintiff if the decree of eviction is not
granted and, therefore, there was no error committed by the
Appellate Court which requires any correction at the hands of
the High Court in exercise of revisional jurisdiction.
64. In view of the aforesaid facts and proposition of law and
in view of the findings of fact by the Appellate Court, since no
case is made out to call for any interference in the judgment
and order passed by the Appellate Court, the present Revision
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Applications are required to be dismissed and the same are
dismissed accordingly. The tenant is hereby given two months
time to vacate and handover peaceful possession of the suit
premises to the plaintiff.
Sd/-
(SANJEEV J.THAKER,J)
URIL RANA
