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CRA/1869/1998 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
REVISION APPLICATION No. 1869 of 1998
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
=========================================
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 ?
=========================================
BHUPENDRA
TAPUBHAI PADIA & 2 - Applicant(s)
Versus
PRATAPRAI
POPATLAL SONEJI - Opponent(s)
=========================================
Appearance
:
MR MEHUL S
SHAH for
Applicant(s) : 1 - 3.MR SURESH M SHAH for Applicant(s) : 1 - 3.
MR
RAJESH K SAVJANI for Opponent(s) :
1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 24/03/2011
ORAL
JUDGMENT
The
present revision application has been filed by the
petitioners-original plaintiffs under sec. 115 of the Code of Civil
procedure as well as under sec. 29(2) of the Bombay Rent Act for the
prayer that the judgment and order passed by the learned Assistant
Judge at Rajkot in Regular Civil Appeal No. 4/92 dated 31.8.1998
confirming the judgment and order passed by the Small Causes Court at
Rajkot in Regular Civil Suit No. 200/85 may be quashed and set aside
on the grounds set out in the memo of application.
2. The
facts of the case, briefly summarised, are that the
petitioners-original plaintiffs filed Regular Civil Suit No. 200/85
before the Small Causes Court, Rajkot, for eviction and possession of
the rented premises on the ground that the defendant-tenant has
acquired suitable alternate accommodation. On appreciation of
evidence and after hearing the learned advocates for the parties, the
trial court, by its judgment and order dated 3.12.1991, dismissed the
suit. Against the said judgment and order, Regular Civil Appeal No.
4/92 came to be filed by the petitioners-original plaintiffs. The
first appellate court, on appreciation of evidence and after hearing
the learned advocates for the parties, dismissed the appeal
confirming the judgment and order passed by the trial court vide its
judgment and order dated 31.8.1998. Therefore, the present revision
application has been preferred.
3. Learned
counsel Mr. Mehul Shah for the petitioners submitted referring to the
judgment of the trial court in Regular Civil Suit No. 200/85 that
once acquisition of alternate premises has been accepted in the
written statement as well as in the evidence, the question of
suitability of such alternate premises is required to be considered.
He submitted that, as transpires from the evidence, admittedly, the
respondent-defendant has stated that there are only two persons in
his family, as the brother and his family as well as the mother have
gone to Bhavnagar, which both the courts below have not appreciated.
Learned counsel Mr. Shah submitted that, on the basis of the
evidence, as could be seen from the issues, particularly Issue No. 5
regarding acquiring of suitable accommodation, the finding is ‘yes’.
Therefore, the same has been discussed though the suit has been
dismissed. He therefore submitted that the first appellate court
ought to have appreciated this aspect and the suit ought not to have
been dismissed. He has submitted that acquisition of other
accommodation even on rental basis would be sufficient. He submitted
that this aspect has not been appreciated by the first appellate
court inasmuch as, if this finding is in favour of the plaintiffs,
the cross-objection could have been filed by the defendant-tenant.
4. Learned
counsel Mr. Shah referred to O.41 R.22 and submitted that as there
were no cross-objections filed on this aspect, at least the lower
appellate court could not have given the finding against the
petitioners-original plaintiffs landlord. He has also referred to
the explanation and submitted that both the courts below have thus
committed an error. He has also referred to the testimony/evidence of
the plaintiffs at exh. 28 and the defendant-tenant at exh. 55. He
therefore submitted that as both the courts have failed to appreciate
this aspect with regard to acquisition of suitable premises which has
been admitted by the defendant-tenant, the decree ought not to have
been passed and in fact the discussion by the trial is in favour of
the plaintiffs though the suit has been dismissed, which has not been
appreciated by the lower appellate court.
5. The
submissions have been made by learned counsel Mr. Shah referring to
the judgment as well as the evidence. However, a close look at the
written statement at exh. 17 clearly suggests that it cannot be said
that it has been admitted by the defendant about the acquisition of
suitable accommodation. In fact, what has been stated is that the
family of the defendant is large including the brother, his family,
mother and there are guests, which led to the hardship and therefore
by way of temporary arrangement they were using other alternate
premises which has also been taken away by the landlord subsequently
as it transpires from the evidence. The same version has been stated
by the defendant-tenant in th evidence at exh. 55. Therefore, the
moot question is whether it can be said that the defendant-tenant can
be said to have acquired suitable alternate accommodation.
6. Though
the reasoning given by the trial court may not have been with
clarity, it has to be read in context of th entire evidence and the
findings given. The lower appellate court has also specifically
observed on appreciation of evidence, referring to aspect of
acquisition of alternate suitable premises, and has not accepted the
contention of the plaintiffs and the appeal has been dismissed. It
has also been mentioned that, “the plaintiff did not examine
any witnesses to prove that the defendant and wife of the defendant’s
brother etc. are residing in the room of Ranchhodnagar and that room
has better facility than of the suit room. The plaintiff did not
examine any neighbour or any person who are residing nearby the room
of Ranchhodnagar…… The plaintiff failed to prove that the
defendant is in possession of the room of Ranchhodnagar which is
suitable accommodation.”
7. In
the circumstances, appreciating the evidence and the rival
submissions, the concurrent findings of facts arrived at by the
courts below does not call for any interference in exercise of the
revisional jurisdiction by this court as the conclusion cannot be
said to be erroneous.
8. The
submissions which have also been made by learned counsel Mr. Shah
referring to sec. 29(2) of the Rent Act that though it is a revision,
it is under a special statute and therefore the court has to satisfy
itself that the decision of the courts below was according to law is
also misconceived. In fact, the court has perused the record
including the deposition of both the plaintiff and the defendant, and
as discussed hereinabove, having considered the specific
contentions the conclusion is arrived at which is just and proper.
It is required to be mentioned that the provisions of sec. 29(2) of
the Rent Act are enabling provisions for the High Court to satisfy
itself that the decision arrived at is according to law and there is
no mistake resulting into miscarriage of justice due to any wrong
approach or misconception of law.
9. A
useful reference can be made to the observations of the Hon’ble Apex
Court in a judgment in the case of Patel Valmik Himatlal and ors.
v. Patel Mohanlal Muljibhai (dead) through Lrs, reported in AIR
1998 SC 3325. The Hon’ble Apex Court has observed,
“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 ?”
10. Therefore,
a discretion is given to the High Court to satisfy itself about the
decision reached by the courts below and once it is found that the
view taken by the courts below, particularly the concurrent findings
of facts arrived at by both the courts below based on evidence is a
plausible view, it cannot be said that there is any error, much less
any error resulting in miscarriage of justice. In other words, unless
it is shown that the courts below have misdirected in arriving at the
decision and have committed an error in application of law or in
construing the provision of law or a document, the findings of facts
based on appreciation of evidence cannot be interfered with.
11. In
the circumstances, as there is no such error committed by both the
courts below, the present revision application cannot be entertained
and deserves to be rejected and accordingly sands rejected. Rule is
discharged. No order as to costs.
(Rajesh
H. Shukla, J.)
(hn)
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