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CRA/106/2008 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
REVISION APPLICATION No. 106 of 2008
=========================================================
JAYANTILAL
NAGARDAS PATEL - Applicant(s)
Versus
VIMLABEN
KHODIDAS SHAH - Opponent(s)
=========================================================
Appearance
:
MR
JINESH H KAPADIA for
Applicant(s) : 1,
MR MITESH R AMIN for Opponent(s) : 1,
MR BN
LIMBACHIA for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 14/08/2008
ORAL
ORDER
By
way of this application, the applicant-original appellant/defendant
has challenged the judgment and order dated 17/3/2008 passed by the
learned Appellate Bench of the Small Cause Court at Ahmedabad in
Civil Appeal No.113 of 2007 whereby the learned Appellate Bench has
dismissed the appeal of the applicant-original defendant and
confirmed the order dated 30/3/2007 passed by the learned Trial
Court. The learned Trial Court has passed eviction decree on the
ground of suitable accommodation and subletting.
The
brief facts of the case are that the plaintiff-respondent herein is
the owner of the property situated in Shahpur Darwaja Khanch by M.C.
No.3504/A/1, Shahpur Ward No.2, City Survey No.5780/4/aikki 67 sq.
yards room and the said property was let out to the present
petitioner-original defendant at the monthly rent of Rs.45/-,
exclusive of taxes. It is further pointed out that suit premises is
required for personal requirement and at present she is residing
with her son-in-law in a house consisting of two rooms and kitchen.
She
had also made compromise with the defendant in Civil Suit No.2082 of
1970 and she has accepted defendant as a tenant. Defendant has
acquired suitable accommodation as he has acquired a bungalow and
therefore she is entitled for the suit premises. During the
pendency of the suit plaintiff has given application for amendment
of plaint and claimed that defendant has unlawfully sub-let suit
premises or transfer by way of leave license and claimed that
plaintiff is also entitled for possession of suit premises on this
ground.
Petitioner-original
defendant appeared in said suit and filed written statement Exh.13.
Trial Court came to the conclusion that the plaintiff is not
required suit premises for personal use but defendant has acquired
alternative residence and unlawfully transfered the suit premises
and profiting from it. The Trial Court by judgment and decree dated
30/3/2007 allowed the suit and passed the decree for eviction
against the present petitioner.
Being
aggrieved by the same the petitioner has preferred appeal being
Appeal No.113 of 2007 before the Appellate Bench of the Small Cause
Court at Ahmedabad. The Appellate Court by judgment and decree
dated 17/3/2008 dismissed the appeal and confirmed the judgment and
decree passed by the Trial Court. Hence, this application by the
present petitioner.
The
contention raised by the learned advocate for the petitioner is that
learned Trial Court below has failed to appreciate that the suit is
barred on ground of limitation and against the provision of
limitation. Trial Court failed to appreciate that present
petitioner has shifted his residence in 1980 and suit was filled in
the year 2002, after period of 20 years, which is barred by
provisions of Limitation Act. The learned counsel further contended
that both the Courts below have erred as not properly interpreted
the document at Exh.39, which is a compromise arrived between
parties to the suit. It is specifically stated in this document
that plaintiff shall not take any objection if any family member of
the present petitioner stay in suit premises.
As
a result of hearing and perusal of the record, the learned counsel
for the petitioner fairly conceded that he could not secure or
procure from any of the government agency to establish the claim
that as on the date when the compromise was arrived at in the
earlier suit the present occupier was staying with the petitioner.
In that view of the matter, it is obvious that on the basis of the
evidence which was available on record, the Court has proceeded on
the matter.
The
Trial Court after discussing the evidence at length came to the
conclusion that the defendant has acquired suitable alternative
accommodation during the period between 1982 to 1987. Therefore,
since the suit filed on the ground of acquisition of suitable
alternative accommodation, has been filed after 12 years, the said
suit has become time barred so far as the issue of alternative
suitable accommodation is concerned. So far as the issue of
unlawful subletting and illegal transfer is concerned, the Trial
Court has followed the ratio laid down in the case of A.J.Shah
vs. R.J.Shah reported in 2005 (3) GLR 1889. There
is nothing on record to take a contrary view of the matter.
In
that view of the matter, I am in complete agreement with the
reasonings of both the Courts below. However, with a view to enable
the petitioner to vacate the premises, the time to vacate the
premises is extended up to 27/11/2008. He will file usual
undertaking stating that he shall hand over the vacant and peaceful
possession to the landlord, shall not sublet or part with the
possession etc. This Civil Revision Application stands disposed of
accordingly. No order as to costs.
(K.S.JHAVERI,
J.)
(ila)
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