Gujarat High Court
Yasinkhan Amirkhan Pathan vs Saeedahemad Mohammadyusuf on 8 September, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 554 of 2024
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YASINKHAN AMIRKHAN PATHAN
Versus
SAEEDAHEMAD MOHAMMADYUSUF & ANR.
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Appearance:
MR NV GANDHI(1693) for the Applicant(s) No. 1
MR IRSHADAHMAD B MEV(2551) for the Opponent(s) No. 1,2
MR SHARIF H SHAIKH(6826) for the Opponent(s) No. 1,2
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 08/09/2025
ORAL ORDER
1. Rule returnable forthwith. Learned advocate Mr.
Irshadahmed B. Mev, waives service of notice of rule on behalf
of respondents. With the consent of learned advocates appearing
for the respective parties, the matter is taken up for final hearing.
2. The present Civil Revision Application is filed under
Section 29(2) of the Bombay Rent, Hotel and Lodging House
Rates Control Act, 1947 (for short "the Act"), challenging the
judgement and decree, dated 04.10.2024, passed by Appellate
Bench of Small Cause Court, Ahmedabad in Regular Civil
Appeal No. 32 of 2022, confirming the order dated 22.04.2022,
passed by the 9th Small Causes Court, Ahmedabad in HRP Suit
No.235 of 2018.
3. For the sake of brevity and convenience the parties are
referred to as per their original status as that in the suit.
4. The brief facts arising in the present Civil Revision
Application are that the plaintiff filed suit for eviction, against
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the defendant on the ground that the suit property was given to
the defendant on rent and that the defendant, without reasonable
cause is not using the suit property for more than 6 months,
preceding to the institution of the suit, therefore, the suit that
was filed was under section 13(1)(k) of the Bombay Rent, Hotel
and Lodging House Rates Control Act, 1947 (for short "the
Act").
5. The Trial Court framed following issues vide Exhibit - 19:
1) Whether the plaintiff proves that the defendants are not using the
suit premises without any reasonable cause for the purpose for which it
was let for a continuous period of six months immediately preceding the
date of suit?
2) Whether the plaintiff proves that the reasonable and bona fide
requires the suit premises for his own use and occupation as alleged?
3) Whether the plainttiff is entitled to get the relief as prayed for?
4) What order and decree?
6. The defendant filed his written statement and counter
claim, vide Exhibit-24. The plaintiff examined himself vide
Exhibit-22, the witnesses of the plaintiff were examined, vide
Exhibit-60 & 65. The defendant examined his son vide Exhibit-
77 and the defendant's witness was examined vide Exhibit-80
and after considering the oral evidence, documentary evidence
and giving finding on all the issues, the Trial Court decreed the
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said suit, aggrieved by the said order, the defendant-tenant filed
Civil Appeal and after re-appreciating the evidence, the First
Appellate Court dismissed the said First Appeal and confirmed
the judgement and decree passed by the Trial Court hence, the
present Civil Revision Application.
7. Learned advocate for the defendant has argued that the
Trial Court and the Appellate Court have not appreciated the
oral and documentary evidence produced by the defendant. It
has been argued that the Trial Court has taken into consideration
the electricity consumption statement produced vide Exhibit-67,
meter checking statement, vide Exhibit-68 and the Court
Commissioner report and that the trial Court could not have
passed judgement and decree on the ground of non-user relying
on the said document produced vide Exhibit-67, 68 and Court
Commissioner's Report.
8. Moreover, it has also been argued that the said Panchnama
is done after the suit is filed and from the plain reading of
Section 13(1)(k) of the Act, the plaintiff will have to prove that
the defendant without any reasonable cause is not using the suit
premises for a continuous period of 6 months, immediately prior
to the date of suit and therefore, the Trial Court and the
Appellate Court could not have relied on the Panchnama which
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is after filing of the suit.
9. Learned advocate for the defendant has also argued that
the defendant relied on the document, produced vide Exhibits -
42 to 57, to show that the plaintiff was in occupation of the suit
property. Moreover, it has also been argued that the Trial Court
could not have granted a decree of eviction relying on the
Electricity Bills produced vide Exhibit-67 & 68, hence, it has
been argued that the Trial Court and the Appellate Court have
erred in granting decree of eviction and in view of the said fact,
the present Civil Revision Application is required to be allowed.
Learned advocate for the defendant has argued that the
Appellate Court has not framed the point of determination under
Order 41 Rule 31, and therefore, also the present Revision
Application is required to be allowed.
10. Per Contra learned advocate for the plaintiff has argued
that, the plaintiff has proved the fact that the suit property is not
used by the plaintiff for continuous period of six months,
immediately preceding the date of filing the suit. The suit
property was used as a commercial property and there is nothing
on record to prove the said fact that the defendant has been
using the said premises for the said business. Moreover, it has
been argued that the defendant has not produced any bills or
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vouchers showing that he was in continuous business of the
rented premises. Moreover, from the electricity bills produced
vide Exhibits - 67 & 68, the consumption is showing minimum,
which clearly state that the rented premises remained in closed
condition.
11. Learned advocate for the plaintiff has also argued that the
plaintiff has proved beyond doubt that the defendant has not
used the suit premises for a continuous period of 6 months,
immediately prior to the date of the suit and therefore, the
plaintiff having satisfied the requirement of Section 13(1)k) of
the Act, the judgment of the Trial Court and confirmed by the
Appellate Court does not require any interference and therefore,
the present Civil Revision Application is required to be rejected.
12. Having heard learned advocates appearing for the
respective parties and having taken into consideration the
judgment and decree passed by the Trial Court and confirmed
by the First Appellate Court, the following are admitted
position:
(i) The plaintiff has given the suit property to the defendant on
rent for doing business.
(ii) The defendant was doing business.
(iii) The suit that has been filed is for eviction under Section
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13(1)(k) of the Act.
(iv) The electricity bills for Service Meter No.55024 for the
month of January-2016 to November-2018 are produced, vide
Exhibit-67.
13. In the above referred background, the fact remains that if
the defendant is using the suit premises for his business, there
has to be some document to show that there are transactions of
purchase in the suit premises for the said business. In the present
case, looking at the electricity consumption report produced
vide Exhibit-67, which clearly proves that in six months prior to
filing of the suit i.e. November-2017 to May-2018, the electriciy
consumption charges is zero unit and one unit which is actual
reading. In view of the same, there is no electricitty
consumption with respect to the property which the defendant
states were used for his business purpose.
14. Moreover, the defendant has tried to produce the document
vide Exhibit-26, more particulaly, documents produced vide
Exhibit-34 to 57, but if the said documents are perused, the
same are repairng and voucher of goods purchased by the
defendant alongwith Income Tax Return, but the said Income
Tax Return does not give the address of the suit property.
15. Moreover, the bills produced are also not issued by the
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defendant from the suit property and the same only gives the
address of the suit property with respect to the voucher produced
vide Exhibit-43 and materials rate are produced at Exhibit-44,
the same also cannot be relied on, in view of the fact that, the
said documents are not corroborated by any other oral evidence
proving the said repairs to have been taken place in the suit
premises.
16. Moreover, the defendant has also tried to rely on the
statement of his portfolio manager wealth stating that he was
working and trading from the suit premises which shows that
there are entries to the corresponding period, but the said entries
do not mention that the same were executed from the suit
property.
17. Moreover, for execution of trades whether online or offline
there is a requisite of electricity in view of the fact that there is
zero unit or one unit consumption of electricity which is
indicative and supporting the case of the plaintiff. Moreover, the
electricity consumption which is produced vide Exhibit- 67 &
68, clearly states as follows:
Month Installat Device Rate Past Pres Units Reading MF
Year ion Cate Reading Reading Reason
01-2016 400140 393879 AD- 6559.00 6562.00 3 Actual 1.00
4985 RGP
03-2016 400140 393879 AD- 6562.00 6565.00 3 Actual 1.00
4985 RGP
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05-2016 400140 393879 AD- 6565.00 6568.00 3 Actual 1.00
4985 RGP
07-2016 400140 393879 AD- 6568.00 6569.00 1 Actual 1.00
4985 RGP
09-2016 400140 393879 AD- 6569.00 6571.00 2 Actual 1.00
4985 RGP
11-2016 400140 393879 AD- 6571.00 6571.00 1 Actual 1.00
4985 RGP
01-2017 400140 393879 AD- 6572.00 6573.00 1 Actual 1.00
4985 RGP
03-2017 400140 393879 AD- 6573.00 6573.00 0 Actual 1.00
4985 RGP
05-2017 400140 393879 AD- 6573.00 6578.00 5 Actual 1.00
4985 RGP
07-2017 400140 393879 AD- 6578.00 6579.00 1 Actual 1.00
4985 RGP
09-2017 400140 393879 AD- 6579.00 6596.00 17 Actual 1.00
4985 RGP
11-2017 400140 393879 AD- 6596.00 6597.00 1 Actual 1.00
4985 RGP
01-2018 400140 393879 AD- 6597.00 6597.00 0 Actual 1.00
4985 RGP
03-2018 400140 393879 AD- 6597.00 6597.00 0 Actual 1.00
4985 RGP
05-2018 400140 393879 AD- 6597.00 6597.00 0 Actual 1.00
4985 RGP
07-2018 400140 393879 AD- 6597.00 6603.00 6 Actual 1.00
4985 RGP --
MR/MC
07-2018 400140 310095 AD- 2.00 3.00 1 Actual 1.00
4985 60 RGP
09-2018 400140 310095 AD- 3.00 18.00 15 Actual 1.00
4985 60 RGP
11-2018 400140 310095 AD- 18.00 35.00 17 Actual 1.00
4985 60 RGP
18. The period that will have to be calculated will be from
28.12.2017 to 28.06.2018 i.e. 28.06.2018 which is the date,
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when the suit for eviction is filed and 28.12.2017 will be 6
months preceding the date of filing the suit and if the same is
perused it can be clearly established that there is minimum
consumption of electricity with respect to the suit property,
which is used as business, therefore, looking to the entire case of
the defendant-tenant, it can be established that the defendant-
tenant is not using the suit premises for the purpose for which it
was let for last 6 months from date of the suit without
reasonable cause.
19. In the present case, there is nothing on record to prove that
there was reasonable cause that the property has not been used
by the defendant. The fact remains that the defendant has stated
that he is using the suits premises, but there is no evidence
coming forward from the defendant with respect to the said fact.
The evidence on the issue of non user of the suit premises is in
the form of electricity consumption bills produced vide
Exhibits-67 & 68. The said electricity bill shows that in the suit
premises there is minimum consumption of electricity.
20. The fact remains that initial burden to show that the tenant
has seized to occupy the suit premises continuously for period of
6 months is always on the landlord and he has to adduce
tangible evidence to prove the fact that as on the date of filling
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the petition, the tenant was not occupying the suit premises
continuously for the period of 6 months. Once such evidence is
adduced, the burden shifts on the tenant to prove that there was
reasonable cause for him having ceased to occupy the tenanted
premises for continuous period of 6 months and once the
premises have been shown by evidence to be not in occupation
of the tenant, the pleading of the landlord that such non-user is
without reasonable cause has the effect of putting the tenant on
notice to plead and prove the availability of reasonable cause for
ceasing to occupy the tenancy premises.
21. In the present case, the plaintiff had only to satisfy the
court that he has pleaded and proved the non-user of the suit
premises for a continuous period of 6 months immediately
preceding the date of filing of the suit and as the plaintiff has
established his claim, the onus shifts to the tenant to establish
that his default which rendered him liable to eviction was
condonable by the Court because of reasonable cause.
22. In the present case, the defendant did not take defense in
the pleading that the suit premises remained unused because of
the reasonable cause, but his case is that the business never
remained closed, nor was there any non-use till the date of
institution of the suit. The tenant tried to lead evidence to prove
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that the suit property was continuously in use.
23. In the present case that the tenant is the original defendant
neither entered the witness box nor there are any documentry
evidence to prove the fact that original defendant was not
keeping good health, and therefore, his son had given oral
evidence on behalf of the original tenant. The only statement
that has been made by the witness of the defendant produced
vide Exhibit-77 wherein he has stated in view of the fact that the
defendant is not keeping good health he could not remain
present, the defendant could have given application to examine
the defendant by Court Commissioner, and no documents have
been produced to show that defendant was not keeping good
health, and therefore, there is nothing on record to show that the
defendant had given proper explanation for not entering the
witness box.
24. Moreover, even from the Court Commissioner's report it
can be clearly established that the suit premises was not used for
the period of six months. With respect to the contention that the
appellate Court has not framed the point of determination as per
provision of Order 41 Rule 31, if the judgment and decree
passed by the first appellate Court is taken into consideration,
the first appellate Court has taken into consideration all the
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issues involved in said proceedings and the non-compliance of
the provisions of Orde 41 Rule 31 cannot vitiate the judgment in
view of the fact that substantial compliance of the provision of
Orde 41 Rule 31 was incumbent upon the defendant to show
reason why the judgment passed by the trial Court in HRP Suit
No.235 of 2018 should be disturbed. In view of the said fact, the
defendant could not show before the appellate Court that the
demand in appeal is erronous for reasons stated in the said
appeal. In view of the same, judgment and decree passed by the
trial Court and confirmed by the first appellate Court does not
require any interference.
25. 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 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. 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 are
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according to law and does not suffer from any abuse of law. The
findings recorded by the Court below if perverse or have 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.
26. The High Court can not interfere with the finding of facts
recorded by the first Appellate Court. 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.
27. 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 for the purpose for which it
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was let without reasonable cause for a period of six months
immediately preceding the date of suit, 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.
28. 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 and it is dismissed
accordingly. Rule is discharged.
(SANJEEV J.THAKER,J)
Manoj Kumar Rai
