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CRA/60/2007 2/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
REVISION APPLICATION No. 60 of
2007
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JANARDAN
CHANDUBHAI BHATT. - Applicant
Versus
LAGARBHAI
S/O.JIVABHAI BHURABHAI KARMATIYA. - Opponent
======================================
Appearance :
NANAVATY
ADVOCATES for the Applicant.
None for Opponent(s) : 1,
MR
DHARMESH V SHAH for the Opponent(s) : 1.2.1, 1.2.2, 1.2.3,1.2.4
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CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 06/04/2010
ORAL
ORDER
1. The
present Civil Revision Application under Section 29 of the Bombay
Rents Hotels and Lodging House Rates Control Act,1947 [hereinafter
referred to as the Act ], has been preferred by the petitioner
original plaintiff for quashing and setting aside the impugned
judgement and order dated 16/02/2005 passed by learned Joint District
Judge, 3rd Fast Track Court, Bhavnagar in Regular Civil
Appeal No.160 of 2002 in dismissing the same and confirming the
judgement and decree dated 28/10/2002 passed by learned 6th
Joint Civil Judge (S.D.), Bhavnagar in Regular Civil Suit No.640 of
1985.
2. The
petitioner herein original plaintiff instituted Regular Civil
Suit No.640 of 1985 against the respondent-original defendant –
tenant for decree of eviction on the grounds of arrears of rent.
Learned Trial Court on appreciation of evidence, having found that on
being served with statutory notice under Section 12(2) of the Bombay
Rent Act, respondent original defendant – tenant tendered the
entire arrears of rent along with reply to the statutory notice,
which was refused and not accepted by the learned advocate to whom
the reply to the statutory notice was given. The learned Trial Court
held that the petitioner original plaintiff is not entitled to
decree of eviction on the ground of arrears of rent as on being
served with the statutory notice, the original defendant tenant
was ready and willing to pay the arrears of rent.
Being
aggrieved and dissatisfied with the judgement and decree passed by
the learned Trial Court in dismissing the Suit preferred by the
appellant original plaintiff landlord, the petitioner herein
original plaintiff instituted Regular Civil Appeal No.160 of 2002
before the learned District Court, Bhavnagar, which came to be
dismissed by the learned Joint District Judge, 3rd Fast
Track Court, Bhavnagar, by impugned judgement and order dated
16/02/2005 and confirmed the judgement and decree passed by the
learned Trial Court. Being aggrieved and dissatisfied with the
judgement and order passed by both the Courts below in dismissing the
Suit, the petitioner herein original plaintiff (now heirs of
original plaintiff) has preferred the present Civil Revision
Application under Section 29 of the Bombay Rent Act.
3. Learned
advocate appearing on behalf of the petitioner herein original
plaintiff has submitted that both the Courts below ought to have
considered that the respondent tenant was in arrears of rent
since 1978 till the filing of the Suit and, therefore, the petitioner
herein original plaintiff was entitled for eviction decree under
Section 12(3)(a) of the Bombay Rent Act. It is submitted that both
the Courts below have materially erred in holding that the respondent
– tenant is ready and willing to pay the rent to the petitioner
herein – landlord. It is further submitted that no Money Order was
sent to the petitioner herein -landlord, which was refused by the
petitioner- landlord. It is submitted that both the Courts below have
materially erred in not appreciating the evidence at Exh-76 while
coming to the conclusion that the tenant was ready and willing to pay
the arrears of rent and, therefore, it is requested to allow the
present Civil Revision Application.
4. The
present Civil Revision Application is opposed by Mr.D.V.Shah, learned
advocate appearing on behalf of the respondent tenant and has
submitted that on appreciation of evidence, both the Courts below
have rightly held that the respondent tenant did tender the rent
due and payable as on the date of statutory notice issued under
Section 12(2) of the Bombay Rent Act, which was refused by learned
advocate appearing on behalf of the petitioner herein landlord
and both the Courts below have rightly come to the conclusion that
the respondent tenant is ready and willing to pay the arrears of
rent. Considering the above, both the Courts below have rightly came
to the conclusion that the petitioner herein original plaintiff
is not entitled to eviction decree under Section 12(3)(a) of the
Bombay Rent Act and, therefore, it is requested to dismiss the
present Civil Revision Application.
5. Having
heard learned advocates appearing on behalf of the respective parties
and considering the judgement and decree passed by both the Courts
below, this Court also considered the deposition of the landlord,
upon which reliance has been placed by learned advocate appearing on
behalf of the petitioner. Considering the above, it appears that on
receipt of statutory notice under Section 12(2) of the Bombay Rent
Act, respondent herein- tenant in fact tendered the rent/ sent the
same along with the reply to the statutory notice and sent it to the
learned advocate appearing on behalf of the appellant, which was
refused. Considering the above, both the Courts below have rightly
came to the conclusion that the petitioner herein original
plaintiff is not entitled to eviction decree under Section 12(3)(a)
and 12(3)(b) of the Bombay Rent Act as the respondent- original
defendant-tenant tendered the arrears of rent as on date of statutory
notice along with the reply to the statutory notice and, therefore,
it cannot be said that the respondent-tenant was in default in making
payment of rent. The aforesaid concurrent findings of facts given by
both the Courts below are on appreciation of evidence, which are not
required to be interfered with by this Court under Revisional
jurisdiction. Both the Courts below have considered the evidence on
record in detail and, thereafter, the aforesaid findings are given,
which are not required to be interfered with by this Court.
6. In
view of the above and for the reasons stated hereinabove, there is no
substance in the present Civil Revision Application, which deserves
to be dismissed and is accordingly dismissed. Notice is discharged.
[M.R.SHAH,J]
*dipti
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