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CRA/323/1997 13/ 13 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
REVISION APPLICATION No. 323 of 1997
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA : Sd/-
=======================================================
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 ?
=======================================================
BABARBHAI
DAHYABHAI VANKAR & 1 - Applicant(s)
Versus
PRABHAKAR
PARSHOTAMBHAI PATEL - Opponent(s)
=======================================================
Appearance :
MR
SHAILESH C PARIKH for Applicant(s) : 1 - 2.
None for Opponent(s) :
1,
MR HM PARIKH for Opponent(s) : 1.2.1, 1.2.2,1.2.5
ABATED
for Opponent(s) : 1.2.3
RULE SERVED for Opponent(s) : 1.2.4
=======================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 10/05/2011
ORAL
JUDGMENT
The
present Civil Revision Application has been preferred by the
applicant-original defendant for the prayer that the Judgment &
Order passed in Civil Appeal No.48 of 1990 by the 3rd
Extra Assistant Judge, Nadiad dated 24.01.1997 confirming the
Judgment & Order passed in Regular Civil Suit No.197 of 1981 by
the Civil Judge (JD), Borsad dated 31.12.1985 may be quashed and set
aside on the grounds stated in the memo of Revision Application
inter alia that the Courts below have failed to appreciate the
contentions raised or advanced on behalf of the applicant that the
case was required to be referred to the Tenancy Court. It is also
contended that in view of the provisions of the Bombay Tenancy &
Agricultural Act, 1948, issue raised could not have been decided by
the Civil Court as the Civil Court has no jurisdiction. Therefore,
it has been contended that both the Courts below have committed a
grave error in deciding the Issue no.5, which had no jurisdiction.
It is also contended that the Courts below have also committed an
error while deciding Exh.19 as the Issue No.5 was required to be
referred to Mamlatdar & Krushi Panch. It is also contended that
both the Courts below have failed to appreciate that the applicant
has been residing in the suit premises for more than 40 years,
therefore, the Civil Revision Application may be allowed.
Learned
counsel, Mr.Sailesh Parikh appearing for the applicant submitted
that whether the decree passed by the Trial Court was inseparable or
separable was required to be considered. He submitted that after the
death of the respondent, heirs became the co-owners of the suit
premises, therefore, it cannot be said that the decree is
inseparable. He referred to the papers as well as judgment of both
the Courts below and submitted that the lower appellate court has
not framed the point of determination and has only framed the
issues, which are stated on Page No.18, which are contrary to the
provisions of law. In support of his submission, learned counsel,
Mr.Sailesh Parikh has referred to and relied upon the judgment of
this Court reported in 2006 (3) SCC 224 in
case of G. Amalorpavan & Ors. V/s. R.C. Diocese of
Madurai & Ors.
Learned
counsel, Mr.Sailesh Parikh submitted that in fact, it was a tenancy
under the Bombay Land Agricultural Tenancy Act and whether the
Tenancy Act would apply or Rent Act would apply could be decided
with reference to the provisions of the Tenancy Act, which both the
Courts below have failed to consider. He further submitted that the
applicant was agricultural labour and he was given the permission to
cultivate the land and accordingly, he acquired right under the
Bombay Agricultural Tenancy Act as labour for cultivating land. He,
therefore, submitted that this aspect has not been considered by the
Courts below resulting into miscarriage of justice. He pointedly
referred to the observations made in the order passed in the
proceedings and also order passed in Civil Suit, Exh.64. He has also
referred to Annexure-A to this Revision Application and pointedly
referred to the entries made to support his submission with regard
to the provisions of Tenancy Act. He also referred to the issues
framed by the trial court in Civil Suit No.197 of 1981 particularly,
Issue No.5 and submitted that Issue No.5 suggests that whether as
per Section 18 of the Agricultural Tenancy Act, such land could be
purchased. He submitted that the Agricultural Tenancy Act is a
special statute and it could have been decided as provided therein
and Civil Court has no jurisdiction. He again referred Exh.19 and
submitted that the findings given by the Civil Court that it is not
an agricultural land is erroneous as it was not for the Civil Court
to decide as to whether it is an agricultural land or not. He
submitted that Section 2(8) of the Tenancy Act as well as other
provisions refer to this aspect and, therefore, the Civil Court had
no jurisdiction. He, therefore, submitted that the judgment and
order passed by the Appellate Court confirming the lower Appellate
Court are erroneous and the present Revision Application may be
allowed.
Learned
counsel, Mr.H.M. Parikh submitted that as per the plaintiff’s case,
premises was let out. He submitted that the dispute is with regard
to letting out of the premises and not the land and, therefore, it
is not contended that the land was given on lease for cultivation.
He submitted that the suit premises is appurtenant and is very small
and, therefore, it would be evident that what was let out was the
premises with land and, therefore, Rent Act would apply and not the
Tenancy Act.
Learned
counsel, Mr.H.M. Parikh submitted that the issue regarding tenancy
is required to be decided on the basis of the averments made in the
plaint and not as per the contentions in the written statement.
Learned
counsel, Mr.H.M. Parikh submitted that the submission that the
Tenancy Act would be applicable is misconceived. In support of this
submission, he has referred to and relied upon the judgment reported
in 1996 (2) GLH 626 (SC) in case of Nalanikant Ramadas
Gujjar V/s Tulasibai (dead) by L. R.s. & Ors. and submitted
that as observed in this judgment, once the piece of land, which was
an agricultural land, is put to a non-agricultural use, it shall be
covered within the definition of the premises. He, therefore,
submitted that Section 5(8) of the Rent Act defines the premises and
it has been discussed in this judgment. Therefore, learned counsel,
Mr.H.M. Parikh submitted that the agricultural land or small portion
of agricultural land was let out for non-agricultural purpose, which
would attract the provisions of the Rent Act in asmuchas it is not
the land, which was leased out but it was the premises with the
land, which was leased out. He submitted that this contention was
raised as per the application, Exh.19, which has been decided and if
there was any grievance, same could have been carried further, which
has not been challenged and, therefore, in the present Revision
Application, it cannot be permitted to be raised.
Learned
counsel, Mr.H.M. Parikh submitted that in fact, the present Civil
Revision Application would stand abated as the judgment of the
Appellate Court confirming the decree is inseparable. He submitted
that it was combine decree for the possession and once such a decree
is not separable and the decree has become final in the year 2004,
the Revision Application would not be maintainable. He has referred
to and relied upon the judgment reported in 2010(2) GLH 551
in case of Prajapati Ambaram Nagarbhai & Anr. V/s Prajapati
Harjibhai & Ors.
In
view of the rival submissions, it is required to be considered
whether the present application can be entertained or not.
As
can be seen from the judgment of both the Courts below, it is an
admitted fact that the father of the plaintiff had given premises to
the father of the defendant for which rent note was executed,
Exh.33. It is not in dispute that the defendants are in use and in
occupation of the premises for many years. The father of the
defendants used to make the payment of rent to the father of the
plaintiff and the taxes of Panchayat were paid by the defendants.
The cross-examination of the plaintiff also refers to this aspects
and the defendant is examined at Exh.42 and has also produced the
documentary evidence with regard to the payment of panchayat tax.
It is an admitted fact that the rent note, Exh.33 was executed by
the father or the elders of both the plaintiffs and the defendants
and the rent was also being received or deposited by the defendants.
It is in this background, Issue Nos.4 & 5 answer respectively in
affirmative and negative. Therefore, Issue No.4 stands established
that it is proved by the defendants that the premises was
constructed by the father of the defendants and they are occupying
since years. Issue No.5 states that whether Tenancy Act would be
applicable and whether the defendants would be entitled to purchase
in light of the provisions of the Tenancy Act and it answered in
negative. Issue No.4, therefore, though in affirmative, the Suit is
decreed on the ground of arrears though it is also admitted that the
rent was deposited in the Court. The Issue No.2 with regard to
tenant in arrears has been discussed and answered in affirmative and
the discussion in the judgment of the trial Court suggests that
after the notice was given, Babarbhai, who is examined at Exh.52 has
stated about the numbers given to the premises by the Panchayat that
it was shown in the father of the plaintiff and, thereafter, it is
shown in his name. He further stated that no rent was paid and he
has also disputed the existence of the rent note, Exh.33. The trial
Court has accepted the rent note, Exh.33 and on that basis, findings
have been given, but, the trial court has only considered the
tenants in arrears because the rent was not paid for three months.
It is required to be considered that the lower Appellate Court also
while confirming the judgment has not framed the specific point of
determination particularly when very existence of the rent note is
disputed and it was necessary for the lower Appellate Court to
examine this issue. Assuming that it was an agricultural land put to
non-agricultural use and, therefore, as per the judgment reported in
1996 (2) GLH 626, Rent Act would apply and the rent note was
executed at Exh.33. Still the lower Appellate Court was also
required to examine about the provisions of Section 12(3)(a) and/or
Section 13(2)(b) of the Rent Act. The lower Appellate Court in its
discussion in Para No.16 has observed that after the institution of
the Suit and even on the date of framing of the issues, the
defendants have not deposited the arrears of rent and, therefore,
Section 12(3)(b) of the Rent Act would be applicable. At the same
time, it has also been observed that the appellants-original
defendants have deposited the amount after two years of the
institution of the Suit, meaning thereby, before the decree was
passed or issue was decided, the amount was deposited. The
provisions of Section 12(3)(b) clearly provides “in any other
case, no decree for eviction shall be passed in any such suit if, on
the first day of hearing of the suit or on or before such other date
as the Court may fix, the tenant pays or tenders in Court the
standard rent and permitted increases then due”
Thus,
the language employed in this section is in negative form that no
decree for eviction shall be passed if on the first day of hearing
or on or before such other date as the Court may fix, the tenant
pays or tenders in Court the standard rent and permitted increases
then due”.
Sub-Section
(4) also provides that ” pending the disposal of any such
suit, the Court may out of any amount paid or tendered by the tenant
pay to the landlord such amount towards payment of rent or permitted
increases due to him as the court thinks fit”. In the facts of
the present case, therefore, both the Courts below have failed to
consider the provisions of Section 12(3)(b) of the Rent Act and also
failed to appreciate about the tenant in arrears.
The
submissions, which have been made by both the sites referring to the
Tenancy Act and the learned counsel, Mr.Sailesh Parikh that the Rent
Act would not be attracted at all and the Tenancy Act would be
applicable, cannot be readily accepted in view of the judgment
reported in 1996(2) GLH 262 as well as rent note, Exh.33,
which has been executed by respective elders of the parties. It is
in this background, even assuming in favour of the plaintiff that
the Rent Act would be applicable and rent note is executed still
while passing the decree on the ground of arrears of rent, the
Courts below have failed to consider the provisions of the Rent Act.
It is an Act for the beneficial interest of the tenant. It has also
failed to consider that the premises have been constructed by the
defendants, they have been using and occupying for years and even
the taxes of the panchayat have been paid, meaning thereby, it was
yearly tenancy and not the monthly tenancy. It is in this
circumstances, considering the provisions of Section 12(3)(b) of the
Rent Act, the submission made by the learned counsel, Mr.H.M. Parikh
that and Revision would stand abated in view of the provisions of
the Civil Procedure Code and the decree is not separable cannot be
readily accepted in view of the judgment of the Hon’ble Apex Court
reported in 2003 (3) SCC 272 in
case of Sardar Amarjit Singh Kalra (dead) by Lrs. &
Ors. V/s. Pramod Gupta (Smt) (dead) by Lrs. & Ors., which
has considered this aspect of abatement as to when the decree passed
would be considered as separable and inseparable. The Hon’ble Apex
Court in Para No.34 of the said judgment observed as under :-
“In
the light of the above discussion, we hold:-
(1) Wherever
the plaintiffs or appellants or petitioners are found to have
distinct, separate and independent rights of their own and for
purpose of convenience or otherwise, joined together in a single
litigation to vindicate their rights, the decree passed by the Court
thereon is to be viewed in substance as the combination of several
decrees in favour of one or the other parties and not as a joint and
inseverable decree. The same would be the position in the case of
defendants or respondents having similar rights contesting the
claims against them.
(2) Whenever
different and distinct claims of more than one are sought to be
vindicated in one single proceedings, as the one now before us,
under the Land Acquisition Act or in similar nature of proceedings
and/or claims in assertion of individual rights of parties are
clubbed, consolidated and dealt with together by the Courts
concerned and a single judgment or decree has been passed, it should
be treated as a mere combination of several decrees in favour of or
against one or more of the parties and not as joint and inseparable
decrees.
(3) The
mere fact that the claims or rights asserted or sought to be
vindicated by more than one are similar or identical in nature or by
joining together of more than one of such claimants of a particular
nature, by itself would not be sufficient in law to treat them as
joint claims, so as to render the judgment or decree passed thereon
a joint and inseverable one.
(4) The
question as to whether in a given case the decree is joint and
inseverable or joint and severable or separable has to be decided,
for the purposes of abatement or dismissal of the entire appeal as
not being properly and duly constituted or rendered incompetent for
being further proceeded with, requires to be determined only with
reference to the fact as to whether the judgment/decree passed in
the proceedings vis–vis the remaining parties would suffer the vice
of contradictory or inconsistent decrees. For that reason, a decree
can be said to be contradictory or inconsistent with another decree
only when the two decrees are incapable of enforcement or would be
mutually self-destructive and that the enforcement of one would
negate or render impossible the enforcement of the other.”
Another
facet of arguments that though there are concurrent findings of
facts, normally the Court would not in revisional jurisdiction
interfere with the concurrent findings of facts. However, Section
29(2) of the Rent Act enables the Court to satisfy itself that the
decision in Appeal was according to law or not.
A
useful reference can be made to the observation made in
the case of Patel Vanik Himatlal & Ors. V/s. Patel
Mohanlal Muljibhai reported in AIR 1998 SC 3325;
“5.
The ambit and scope of the said section came up for consideration
before this Court in Helper Girdharbhai v. Saiyed Mohmad Mirasaheb
Kadri, (1987) 3 SCC 538 : (AIR 1987 SC 1782) and after referring to a
catena of authorities, Sabyasachi Mukharji, J. drew a distinction
between the appellate and the revisional jurisdictions of the Courts
and opined that the distinction was a real one. It was held that the
right to appeal carries with it the right of rehearing both on
questions of law and fact, unless the statute conferring the right to
appeal itself limits the rehearing in some way, while the power to
hear a revision is generally given to a particular case is decided
according to law. The Bench opined that although the High Court had
wider powers than that which could be exercised under Section 115 of
the Code of Civil Procedure, yet its revisional jurisdiction could
only be exercised for a limited purpose with a view to satisfying
itself that the decision under challenge before it is according to
law. The High Court cannot substitute its own findings on a question
of fact for the findings recorded by the Courts below on reappraisal
of evidence. Did the High Court exceed its jurisdiction ?
Therefore,
it is clearly laid down that when the error which makes a decision
contrary to the law or which goes to the root of the decision while
empowering the High Court to satisfy itself in exercise of power
under Section 29 of the Rent Act to satisfy itself about the
propriety and illegality to the judgment of the lower appellate
Court, at the same time, merely because different view is possible
on appreciation of evidence, it would not justify the exercise of
revisional jurisdiction. In other words, when the Courts below have
misdirected itself in its approach while construing or interpreting
the provisions of law or correct provisions of law, which goes to
the root of the matter, it would require scrutiny of such decision
under Section 29(2) of the Act. The Hon’ble Apex Court has also in
this judgment reported in earlier judgment of the Hon’ble Apex Court
in the case of Helper Girdharbhai V/s. Saiyed Mohmad Mirasaheb
Kadri and others reported in AIR 1987 SC 1782 has
clearly observed that jurisdiction
of High Court to correct all errors of law going to root of the
decision which would, in such cases, include the findings of facts
which a reasonable person would arrive at such findings on such
evidence is required to be considered. Therefore, as it transpires
from the material and evidence as well as discussion in both the
judgments of the Courts below that there is no consideration of the
provisions of Rent Act, particularly, Section 13(2)(b). Both the
Courts below have considered on one hand the rent note, Exh.33
and the validity and/or have referred to other aspects but have
failed to consider whether it could be said to be a tenant in
arrears and whether Section 13(2)(b) is attracted. It is required to
be mentioned that when Section 13(2)(b) is attracted and the tenancy
is not monthly then in that case, the language employed in Section
13(2)(b) has to be considered that normally, no such decree could be
passed. Admittedly, some amount has also been deposited pending Suit
and the taxes of the Panchayat have also been deposited by the
defendants. It is in these circumstances though normally the Court
would not exercise the revisional jurisdiction to interfere with the
concurrent findings of facts arrived at by both the Courts below
would call for exercise on such jurisdiction.
It
may be noted that both the Courts below have not properly
appreciated the evidence and the conclusion arrived at on the basis
of the evidence is without any reference to Section 12(3)(b).
Therefore, this Court would be justified in exercise of revisional
jurisdiction under Section 29(2) of the Rent Act satisfying itslef
as to whether the judgment of both the Courts below is according to
law or not. Therefore,
in light of the discussion made herein above, the present revision
application deserves to be allowed.
Though
the aforesaid judgment is also requires to be considered and the
Hon’ble Apex Court in a judgment reported in 2006
(3) SCC 224 has also
made observation about the framing of point of determination
and the compliance with the said requirements, in fact, considering
these aspects also, the present application deserves to be allowed.
Accordingly,
the present Civil Revision Application stands allowed. The impugned
Judgment & Order passed in Civil Appeal No.48 of 1990 by the 3rd
Extra Assistant Judge, Nadiad dated 24.01.1997 confirming the
Judgment & Order passed in Regular Civil Suit No.197 of 1981 by
the Civil Judge (JD), Borsad dated 31.12.1985 is hereby quashed and
set aside. Rule is made absolute.
Sd/-
(RAJESH
H.SHUKLA, J.)
/patil
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