IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL REVISION APPLICATION No 1726 of 1996
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HASMUKH MAGANLAL
Versus
MISTRY MULJIBHAI PARSHOTTAMBHAI
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Appearance:
MR MINESH C DAVE for Petitioners
MR RUPEN M SHAH for Respondent No. 1
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CORAM : MR.JUSTICE M.S.PARIKH
Date of Order: 03/03/97
ORAL ORDER
The petitioners – original defendants have filed
this Revision Application under Section 29(3) of the
Bombay Rents, Hotel & Lodging House Rates Control Act,
1949 (for short “Rent Act”) challenging the decision
dated 19th September 1996 rendered by the learned Extra
Assistant Judge, Surendranagar in Regular Civil Appeal
No. 54 of 1993.
The facts indicate that the petitioner faced
Civil Suit No. 74 of 1988 filed by the respondent
plaintiff in the Court of learned Civil Judge,
Surendranagar for obtaining possession of the suit
premises on the ground of arrears of rent and on the
grounds of sub-letting and acquisition of suitable
residence. The learned trial Judge dismissed the suit
and the matter went in Appeal before the learned Extra
Assistant Judge, Surendranagar bearing Regular Civil
Appeal No. 54 of 1993. The Appellate Court granted
Decree for eviction on the ground that petitioners
(original tenants) acquired the suitable residence. Rest
of the questions were held against the respondent. It is
admitted by defendant No.1 that his son Vasudev Maganlal
and his another son had acquired other properties.
Considering the circumstances that the summons came to be
served at the newly acquired properties and that no
reasonable explanation was rendered with regard to
suitability of such acquired properties the Appellate
Court came to the conclusion that the respondent
plaintiff succeeded in establishing the ground for
eviction. The Appellate Court has come to the conclusion
that in fact the properties have been acquired in the
name of the sons and such properties are having more
accommodation than the suit premises. The learned
Appellate Judge has observed that the landlord cannot be
asked to wait till all the sons of the tenant go on
acquiring separate units for themselves or in their
names.
This Revision Application is fixed for admission
today. I have heard the learned Advocates for the rival
parties since the notice was issued in this matter.
The submission made by Mr.Dave, learned Advocate
appearing for the petitioner revolve round appreciation
of evidence by the Appellate Court. I do not find any
error of law having been committed by the learned
Appellate Judge in the matter of appreciation of
evidence. This Court in Hasmukhlal Raichand Shah V/s.
Arvindbhai Mohanlal Kapadia, 1988 (1) G.L.H. 122
observed that if the tenant and the member of his family
lived together and if one of them acquired suitable
residential accommodation and if there was no evidence to
the effect that they had not been looking upon themselves
as one unit then the acquisition of suitable residential
accommodation by one of them would be considered to be
acquisition of suitable residential accommodation by the
tenant. It has been held that if Section 13(1)(l) of the
Rent Act is interpreted only to mean that the tenant
himself must have acquired suitable residential
accommodation, then the said provision can be defeated by
the tenant easily. This should not be permitted because
that is not the intention of the Legislature.
In the present case the Appellate Court has come
to the conclusion that the acquisition of residential
accommodation as aforesaid was not only for the whole
family, but there was no evidence which was available
with the petitioners tenants adduced before the Court to
show that at any point of time the family separated. In
any event no question of law arises in this revision
Application. Bearing in mind the facts of the case this
is not a fit case for showing any indulgence while
exercising revisional jurisdiction under Section 29(3) of
the Rent Act.
In the result this Revision Application is
rejected. Notice is discharged. Ad.interim relief
vacated. No order as to costs.
Date : March 03, 1997 ( M. S. Parikh, J. )
*sas*