Gujarat High Court
Heirs Of Rameshchandra Uttamchandra ... vs Shantilal Prabhudas Varma Decd on 9 September, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 2255 of 1995
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER Sd/-
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Approved for Reporting Yes No
✔
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HEIRS OF RAMESHCHANDRA UTTAMCHANDRA BHAVSAR & ORS.
Versus
SHANTILAL PRABHUDAS VARMA DECD. & ORS.
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Appearance:
MR JITENDRA M PATEL(620) for the Applicant(s) No. 1,1.1,1.2,1.3
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Opponent(s) No. 1,1.3
MR P P MAJMUDAR(5284) for the Opponent(s) No. 1.4
MR SP MAJMUDAR(3456) for the Opponent(s) No. 1.4
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 09/09/2025
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 hereinafter referred to as "the Rent
Act" challenging the judgement and decree passed in Regular
Civil Appeal No.228 of 1981 dated 30.11.1993, whereby the
said appeal was allowed and the judgement and decree, dated
30.03.1981, passed in Rent Suit No.2114 of 1975, by Judge,
Small Cause Court, Vadodara has been set aside.
2. For the sake of brevity and convenience, the parties are
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referred to as per their original status as that in the suit.
3. The brief facts arising in the present Civil Revision
Application are that the plaintiff filed suit for eviction against
the defendant-tenant. It was the case of the plaintiff before the
Trial Court that the defendant was a tenant of the suit premises
consisting of ground floor, first floor and second floor and the
plaintiff had filed the suit on the ground that the plaintiff
requires the suit property, reasonably for his personal and
bonafide occupation. The Trial Court framed issues vide
Exhibit 12 as under:-
"1.Whether the plaintiff prove his
ownership of suit property?
2. Whether suit is bad for non-joinder of
necessary parties?
3. Whether the plaintiff proves that he
requires the suit premises reasonably for
his personal use and occupation?
4. If no, to whom the greater hardship
would be caused by passing a decree for
possession than by refusing to pass it?
5. Whether the suit notice is legal and
void?
6. Whether the plaintiff is entitled to
recover possession of the suit premises?
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7. What Order and Decree?"
4. The Trial Court held that the plaintiff has proved that the
plaintiff reasonably and bonafidely required the suit premises
for his personal use and its occupation and the said issue
having been satisfied that the plaintiff has proved that the
plaintiff requires the suit premises reasonably and bonafidely
for occupation for himself, the Court also took into
consideration that looking at the facts of the case, no greater
hardship would be caused to any of the parties and thereafter
passed a partial decree of eviction and the plaintiff was entitled
to recover the possession of only ground floor portion of the
suit premises and the relief with respect to the plaintiff's claim
for the first floor portion and the second floor portion was
rejected.
5. The plaintiff examined himself vide Exhibit-47 and his brother
was examined vide Exhibit 95. The plaintiff also examined
witness Rajendra Kalyan and defendant examined himself vide
Exhibit 115 and his son vide Exhibit 32 and after taking into
consideration the oral evidence and the documentary evidence
and giving finding on all the issues the Court passed a partial
decree of eviction, aggrieved by the said judgment and decree
passed by the Small Cause Court Vadodara in Rent Suit
No.2114 of 1975 dated 30.03.1981, the defendant filed
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Regular Civil Appeal No.228 of 1981 and after reappreciating
the evidence, the said appeal was allowed and the partial
decree for possession of the part premises i.e. the ground floor
portion of the suit premises which was decreed by the Trial
Court was quashed and set aside and hence the present Civil
Revision Application. At the stage of hearing of the appeal, the
appellant came forward with a case that the landlord has
acquired property which is owned by the landlord/ his family
therefore on that ground now the landlord can not seek
eviction of tenant from even the ground floor portion, and
after filing additional issue and after considering the oral
evidence of the subsequent event, the judgment and decree
with respect to the Trial Court's order of eviction of the tenant
from the suit was quashed and set aside.
6. Learned advocate for the plaintiff has argued that the judgment
of the Trial Court could not have been quashed and set aside
by the First Appellate Court in view of the fact that the Trial
Court had arrived at a conclusion that the plaintiff has proved
that, the plaintiff requires the suit property for his own
bonafide requirement. Moreover, in view of the fact that the
plaintiff has been residing initially with his brother and
thereafter his mother-in-law and the fact that at the time when
the judgment and decree was passed by the Trial Court, the
plaintiff did not have any premises to reside and therefore, the
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Trial Court, balancing the greater hardship that may be caused
to the plaintiff and defendant, granted a partial decree of
eviction of the defendant from the ground floor portion of the
suit premises.
7. Learned advocate for the plaintiff has also argued that if the
entire evidence is taken into consideration, it has come on
record that the defendants were not residing in the ground
floor portion of the suit premises and the defendants were
occupying the first floor and second floor portion for their
residence. It has also come on record that the ground floor
portion of the suit premises was used by the defendant for the
study of their children and that the friends of the children of
the defendants used to study in the ground floor portion and
therefore, for the said ground floor portion, the Trial Court had
rightly granted a decree of eviction in favour of the plaintiffs.
Learned advocate for the plaintiff has also argued that if the
total area of the ground floor portion, first floor portion and the
second floor portion are taken into consideration, the fact
remains that the entire family of the defendants can be
accommodated in the first floor portion and second floor
portion of the suit premises. Moreover, learned advocate for
the plaintiff has also argued that it has come on record that
initially, the plaintiff was residing with his brothers and paying
rent of Rs.100/- to his brother and thereafter the plaintiff has
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started residing with her mother-in-law. The family members
of the plaintiff consisted of five members at the time of filing
the suit and therefore, the plaintiff required the suit premises
for his personal bonafide use as he cannot pay more rent
outside.
8. The plaintiff has also proved before the Trial Court that his
monthly salary was ₹400/-. The plaintiff filed salary certificate
vide Exhibits 51 and 52 and the fact that the plaintiff is staying
with his mother-in-law and is paying rent to his brother-in-law
at the rate of ₹78/- per month and the Trial Court has also
taken into consideration that defendant is running a factory at
Sardarnagar Industrial Estate, and the defendant's family
comprised of 13 members. Moreover, it has been argued that
the Trial Court has rightly held that it is for the plaintiff to
decide whether to reside at his own residence and that the
plaintiff requires the suit premises for his own bonafide
requirement. The fact remains that the plaintiff's family has
grown in size, and therefore, the plaintiff requires the suit
premises for his own bonafide requirement.
9. Moreover, the plaintiff had also proved that as the defendant is
utilizing the ground floor portion only for reading, writing or
his children, therefore, the Appellate Court could not have the
quashed and set aside the judgement and decree of the Trial
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Court with respect to the ground floor portion of the suit
premises and therefore, it has been argued that the judgement
and decree passed by the Appellate Court is required to be
quashed and set aside and the present Civil Revision
Application is required to be allowed.
10. Per contra, learned advocate for the defendant has
mainly argued that after the judgment and decree passed by the
Trial Court, the plaintiff has not challenged the judgment and
decree, whereby the Trial Court has rejected the relief of
eviction of the entire suit property and the Trial Court has only
granted a decree with respect to partial eviction of the
defendant from the ground floor portion.
11. The learned advocate for the defendant has advanced his
argument that after the judgement and decree was passed by
the Trial Court, the defendant came to know that the plaintiff
has acquired another premises and therefore, an application
was filed to take into consideration subsequent event that has
taken place after filing of the appeal and after taking into
consideration the said fact. The tenant had brought to the
knowledge of the Court a subsequent event that had happened
after filing of the appeal vide Exhibit 42. The said contention
was replied by the plaintiff-landlord vide exhibit 45 and the
Appellate Court had allowed both the parties to bring before
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the Court the subsequent facts that have happened after filing
of the appeal and vide Exhibit 54, the appellant brought the
said facts before the Court, the same was replied vide Exhibit
56 and ultimately, the 3rd Extra Assistant Judge Vadodara
framed following issues:
"Whether the defendant proves that the plaintiff had
purchased the house during the pendency of the present
appeal and he does not now require the ground floor portion
of the premises for his personal use?"
The parties were also allowed to adduce evidence on the above
issue and the appeal was to be decided after recording of the
evidence on the above issue.
12. Moreover, the Appellate Court has framed issues and the
said issue was framed, wherein the defendant had to prove that
the plaintiff has purchased the house during the pendency of
the present appeal and he does not require the ground floor
portion of the suit property for his personal use and on the
basis of the said issue, the plaintiff had examined his son vide
Exhibit 98 in the First Appeal and one Babubhai G. Patel was
examined Vide Exhibit 110 and if the oral evidence of the son
of the original owner is taken into consideration, he has
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admitted that his mother i.e. the wife of the original owner
Bhagwati Ben is the owner of a property, situated at Shrinathji
Society and that the said property at Shrinathji Society consist
of two rooms and Kitchen and there is an Otla of 3 feet and
that said otla is covered by fence or grill. It has also come on
record that the two sons of the original owner i.e. Hitendrabhai
and Janakbhai are residing at a separate property at Paras
Society, though it has come on record that the sons of original
owner are doing business in the said property i.e. Shrinathji
Society, but the fact remains that the said premises consist of
two rooms and kitchen, and there is an Otla of 3 feet and it has
also been admitted in the oral evidence that the mother of
deponent is the owner of the property situated at Shrinathji
Society and therefore, the Trial Court has taken into
consideration the subsequent event that has happened after
filing of the appeal.
13. Moreover, it has also been argued that both the parties
had agreed to consider the subsequent event that took place
after the judgment and decree passed by the Trial Court and
the said observation is made in the judgment and decree of the
Appellate Court whereby at para no.26, it has been observed
that both the parties have submitted that subsequent events
taken place should be taken into consideration even by the
Appellate Court in dealing with such question and therefore,
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the Appellate Court at the stage of appeal has taken into
consideration the fact that the original owner has failed to
prove that the suit property is required by the plaintiff for his
own bonafide requirement for residence and therefore, the
judgement and decree passed by the First Appellate Court is
after reappreciating the evidence and as per law and therefore,
it has been argued that it does not require any interference.
14. Having heard learned advocates appearing for the
respective parties and having considered the judgment and
decree passed by the Trial Court and the First Appellate Court,
the fact remains that the Trial Court had granted partial decree
of the suit property, whereby a decree for eviction for the
ground floor portion was granted in favour of the plaintiff
landlord and for the other portion i.e. the first floor and the
second floor portion, the Trial Court has rejected the said
claim of the plaintiff. Therefore, the only issue before this
Court that remains is whether the First Appellate Court has
rightly dismissed and quashed and set aside the judgement and
partial decree of eviction of the defendant tenant from the
ground floor portion, considering the subsequent event that has
come on record during the pendency of the appeal.
15. In this background, the first fact which has come on
record is that both the parties had agreed to take into
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consideration the subsequent event that took place after filing
the appeal. Paragraph 26 of the judgement and decree passed
by the Appellate Court notes that both the parties have placed
reliance on various judgements on the fact that subsequent
events that have taken place pending the appeal, can also be
taken into consideration. Therefore, in view of the said fact the
3rd Extra Assistant Judge Vadodara framed the issue that -
Whether the defendant proves that the plaintiff had purchased
the house during the pendency of the present appeal and he
does not now require the ground floor portion of the premises
for his personal use?
16. Therefore, the burden was on the defendant to prove the
fact that the plaintiff has acquired other alternative
accommodation and therefore, he does not require the suit
premises for his bonafide requirement, to establish the said
fact, though the defendant has not entered the witness box and
there is an application filed by the defendant to lead evidence
through a Court Commissioner in view of his health, but
thereafter the defendant has not entered the witness box, but
the fact remains that the son of the plaintiff has entered the
witness box and the plaintiff being the owner of the suit
property has not entered the witness box and his son
Hitendrabhai has entered the witness box, vide Exhibit 98 and
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in his oral evidence vide Exhibit 98, it has come on record that
his mother Bhagwatiben is the owner of a property, situated at
Shrinathji Society and that the said premises consist of, two
rooms and a kitchen and there is an Otla of 3 feet and the said
otla is covered by fence or grill. In his evidence he has also
deposed that Hitendrabhai and Janakbhai who are the sons of
the original owner are residing separately at Paras Society and
are doing business separately, therefore, the only person who
owns Shrinathji Society is Bhagwatiben, i.e. the wife of the
original owner of the suit property. Therefore, after filing the
appeal in the year 1981, the original owner has acquired
premises situated at House No.13, of Shrinathji Society. After
leading oral evidence, vide Exit 98, the plaintiff has also
examined vide Exhibit 101- Babubhai G.Patel who has
thereafter come forward with case that his wife, Savitaben is
the owner of the said society and that one of the shop is taken
on lease by Bhagwatiben Rameshchandra and to prove the said
fact, he has produced evidence by way of rent receipt at
Exhibit 112, the fact remains that there is neither any
document to prove that the wife of Babubhai, is the owner of
the property and in view of the fact that the plaintiff himself by
way of his son has given evidence to prove that the property,
situated at House No.13, Shrinathji Society, consist of two
rooms and a kitchen and there is an Otla of 3 feet and the said
otla is covered by fence or grill, therefore, the fact of acquiring
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other residence by the plaintiff has been proved by the
defendant.
17. Moreover, it has not come on record that the said
property situated at House No.13 at Shrinathji Society shall
not accommodate the family of the plaintiff which consist of
the plaintiff and his wife Bhagwatiben. Moreover, it has also
been argued that in the deposition of the son Hitendrabhai,
there are some mistakes, but the plaintiff had not sought any
permission for re-examination to clarify the said mistake.
Moreover, if the entire finding of the Trial Court with respect
to the comparative hardship is taken into consideration, one of
the factor that the Trial Court has considered is that the
plaintiff was not in a position to pay rent of Rs.100/- but if the
rent receipt produced by witness, Babubhai at Exhibit 112, is
taken into consideration, and if the said fact is believed that the
property situated at House No.13, Shrinathji Society consist of
only one shop, the plaintiff is paying rent of Rs.100/- per
month. It has also come on record that Bhagwatiben does not
have any independent income and is a housewife and
dependent on her husband, and it has not come on record that
the sons of original plaintiff are regularly paying rent and
therefore, even on the ground that the plaintiff is not able to
afford Rs.100/- as rent cannot be taken into consideration and
the Appellate Court has rightly dismissed the said appeal.
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18. Moreover, the scope of interference under Revision
under Section 29(2) of the Rent Act, are taken into
consideration, the finding of the facts recorded by the First
Appellate Court in the present case does not disclose an error
of law in arriving at them. Under the provisions of Section
29(2) of the Rent Act, the revisional jurisdiction of the Court
can only be exercised for a limited purpose with a view to
satisfying itself that the decision was according to the 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
of the Rent Act and it cannot be said that the findings arrived
at by the First Appellate Court were manifestly perverse or
erroneous.
19. In view of the same, this Court cannot substitute its own
finding for the one reached by the First Appellate Court on re-
appreciating of the evidence. In view of the same, the present
Civil Revision Application is dismissed.
Sd/-
(SANJEEV J.THAKER,J)
URIL RANA
