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CRA/66/2004 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
REVISION APPLICATION No. 66 of 2004
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
RAMESHKUMAR
CHHOTALAL SHAH - Applicant(s)
Versus
PATEL
VARANASIBHAI SHIVRAM - Opponent(s)
=========================================================
Appearance
:
MR
TV SHAH for
Applicant(s) : 1,
NOTICE SERVED for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 09/05/2011
ORAL
JUDGMENT
By
way of present Revision Application, the applicant has inter alia
prayed for quashing and setting aside the judgment and order dated
30th September 2003 passed by the Joint District Judge,
Banaskantha, confirming the judgment and order dated 29th
November 1995 passed by the Civil Judge (Junior Division), Deesa in
Regular Civil Suit No.175 of 1989, whereby the trial Court had
dismissed the suit filed by the applicant herein.
It
is the case of the applicant that the applicant-landlord, who is
original appellant-plaintiff, filed Regular Civil Suit No.175 of
1989 for possession of the suit premises prescribed in paragraph 3
of the original plaint on the ground of arrears of rent and for
amount of arrears and mesne profit against the respondent-tenant,
who is original respondent-defendant in the Court of Civil Judge
(Junior Division) at Deesa, which ultimately came to be dismissed
vide impugned judgment and decree. Being aggrieved by the said
judgment and decree, the applicant preferred Regular Civil Appeal
No.53 of 1995 before the Court of 2nd Joint District
Judge, Banaskantha at Deesa. The said appeal came to be dismissed
vide impugned judgment and order. Hence, present Revision
Application.
Mr.T.V.
Shah, learned advocate for the applicant, has submitted that the
Courts below have failed to appreciate that the notice at Exhibit 52
is not as per the provisions of Section 12(2) of the Bombay Rents,
Hotels and Lodging House Rates (Control) Act, 1947 (hereinafter
referred to as ‘the Act’); that the Courts below have erred in
holding that the notice under Section 12(2) of the Act as well as
under Section 106 of the Transfer of Property Act is also required;
that the Courts below have erred in holding that the suit falls
within the purview of Section 12(3)(a) of the Act; that the Courts
below have erred in presuming that the opponent ought not to have
refused the suit notice if the notice of atonement had been issued
by the applicant previously and that when the opponent has paid the
arrears of rent, the applicant is entitled for recovery of
possession of the suit property. Mr. Shah has also read over
paragraphs 12 and 13 of the impugned judgment and order passed by
the lower Appellate Court.
3.1 In
support of his submissions, Mr.Shah has relied upon the decision of
the Apex Court in the case of V. Dhanpal Chettiar v. Yesodai
Ammar, reported in AIR 1979 SC 1745, whereby the Apex Court
has held that in order to get a decree or order for eviction against
a tenant under any State Rent Control Act it is not necessary to give
notice under Section 106 of the Transfer of Property Act. In view of
aforesaid, it is prayed that present Revision Application may be
allowed.
Having
considered the contentions raised by the learned advocate for the
applicant, averments made in the Revision Application and the
documentary evidence produced on record, including the impugned
judgment and decree passed by the trial Court as well as judgment
and order passed by the lower Appellate Court, it transpires that
the notice at Exhibit 52 was not issued under Section 12(2) of the
Act read with Sections 106 and 111(g) and (h) of the Transfer of
Property Act. However, by way of the said notice, it was only
intimated to the opponent-tenant that the sale transaction of the
suit shop and partition of the shop as mentioned in the said
registered sale deed and becoming the owner of the suit shop, for
which the applicant is entitled to recover the arrears of rent as
well as future rent, which is called the notice of attornment.
Further, it has been rightly held by the Courts below that after
issuance of notice at Exhibit 52, no notice under section 12(2) of
the Act read with Section 106 of the Transfer of Property Act, has
been issued by the applicant to the opponent herein regarding
termination of the tenancy right over the suit shop and handing over
the possession of the suit shop on account of non-compliance of the
said notice before filing the said suit. Further, no averment is
made in the plaint regarding termination of the tenancy right of the
opponent. It is required to be noted that when the opponent came to
know that he is in arrears of rent, he immediately paid the entire
amount of arrears of rent before the trial Court and nothing was
outstanding as observed in the impugned judgment and decree. It has
been rightly observed by the trial Court that there is no breach of
provision of Section 12(3)(a) of the Act. It is required to be noted
that in the present case, the suit has been after a period of
1-year, 9-months and 16-days after issuance of notice. In that view
of the matter also, the applicant ought to have issued notice just
prior to filing of the suit, which is not done so and that
establishes mala fide intention on the part of the applicant. In
that view of the matter, the view taken by the trial Court is just
and proper. The lower Appellate Court has after relying upon the
decision of the Apex Court in the case of Mahendra Raghunathdas
Gupta v. Vishwanath Bhikaji Mogul and others, reported in AIR 1997
SC 2437, has rightly observed that the opponent has been issued a
notice at Exhibit 52, which is for attornment.
4.1 So
far as decision of the Apex Court relied upon by the learned advocate
for the applicant Mr.Shah in the case of V. Dhanpal Chettiar
(supra) is concerned, it is required to be noted that the
Apex Court has held that in order to get a decree or order for
eviction against a tenant under any State Rent Control Act, it is not
necessary to give notice under Section 106 of the Transfer of
Property Act. In the present case, the findings recorded by the
trial Court in that regard are absolutely just and proper and they
are not contrary to the said decision. So far as the findings of the
Appellate Court in this respect are concerned, this Court may not
adopt the same in this respect. The trial Court has rightly observed
that there is no breach of provisions of Section 12(3)(a) of the Act.
Thus, the said decision cited by the learned advocate for the
applicant would not be helpful to the applicant.
In
view of aforesaid, I am of the opinion that the
trial Court has assigned cogent and convincing reasons for arriving
at the impugned conclusion. Over and above the aforesaid reasons, I
adopt the reasons assigned by the trial Court and do not find any
illegality much less any perversity in the findings recorded. I am
in complete
agreement with the findings recorded by the trial Court. No case is
made out to interfere with the findings recorded by the trial Court.
Hence, present Revision Application deserves to be rejected.
For
the foregoing reasons, present Revision Application fails and is,
accordingly, rejected. Rule is discharged. No order as to costs.
Interim relief, if any, stands vacated.
(K.S.
Jhaveri, J)
Aakar
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