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CRA/50/2010 3/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
REVISION APPLICATION No. 50 of
2010
======================================
CHHUTUN
BHAIRO GUJAR & 1 - Applicants
Versus
OMKARLAL
DEVILAL GUPTA - Opponent
======================================
Appearance
:
MR
ASHOK K PADIA for the Applicants.
MR NS SHEVADE for the
Opponent.
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CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 20/04/2010
ORAL
ORDER
1. The
present Civil Revision Application under Section 29 of the Bombay
Rent Act has been preferred by the petitioners herein original
defendants tenants to quash and set aside the impugned judgement
and order dated 23/09/2009 passed by learned Appellate Bench of Small
Causes Court at Ahmedabad in Civil Appeal No.52 of 1999, by which,
learned Appellate Bench quashed and set aside the judgement and
decree passed by the Trial Court dated 29/01/1999 in H.R.P. Suit
No.2298 of 1990.
2. Respondent
herein original plaintiff landlord instituted H.R.P.Suit
No.2298 of 1990 in the Small Causes Court at Ahmedabad against the
petitioners herein original defendants tenants for eviction
decree for non-use of the disputed property in question since last
more than 6 months prior to filing of the Suit. Learned Small Causes
Court at Ahmedabad by jugement and decree dated 29/01/1999 partly
allowed the Suit qua injunction and dismissed the Suit qua possession
sought by the plaintiff on the ground of non-usage of the disputed
property in question since last more than six months prior to filing
of the Suit.
3. Being
aggrieved and dissatisfied with the judgement and decree passed by
the learned Small Causes Court at Ahmedabad dated 29/01/1999 in
H.R.P.Suit No.2298 of 1990, the respondent herein original
plaintiff landlord preferred Civil Appeal before the Appellate
Bench of Small Causes Court at Ahmedabad and Appellate Bench of the
Small Causes Court at Ahmedabad by judgement and order dated
23/09/2009 allowed Civil Appeal No.52 of 1999 and quashed and set
aside the judgement and decree passed by the learned Trial Court in
H.R.P.Suit No.2298 of 1990. Being aggrieved and dissatisfied with the
judgement and order dated 23/09/2009 passed in Civil Appeal No.52 of
1999, the petitioners original defendants tenants have
preferred the present Civil Revision Application under Section 29 of
the Bombay Rent Act.
4. Mr.Ashok
Padia, learned advocate appearing on behalf of the petitioners has
vehemently submitted that the learned Appellate Court has not
properly appreciated the evidence on record. The Appellate Court has
not considered the fact that there was ration card in favour of the
original defendants and every month defendant No.2 was taking ration
from the Fair Price Shop. It is further submitted that even the
learned Appellate Court has not properly appreciated the fact that
owner of the chawl, in which, the defendant No.2 is alleged to have
been residing, is not examined and, therefore, in absence of
examining the owner of the chawl, in which, defendant No.2 is alleged
to have been residing, the Appellate Court has erred in believing
that defendant No.2 was residing elsewhere and in another chawl. Even
considering the evidence of the Court Commissioner and panchnama of
the Court Commissioner, story put forward by the respondent is
illogical.
It
is submitted by Mr.Padia, learned advocate appearing on behalf of the
petitioners that as per the panchnama prepared by Court Commissioner,
the Suit premises was found to be open and if that is considered and
the case of the respondent herein original plaintiff landlord
that utensils were taken away by the tenants and it is the case on
behalf of the tenants that the tenants have left away the suit
premises in that case, the landlord could have let out the said Suit
premises to other person and the premises could not have been kept
open by the landlord. It is submitted that no landlord keep the
premises vacant and, therefore, it is submitted that the learned
Appellate Court has materially erred in passing the decree and
learned Appellate Court has not properly appreciated the aforesaid
facts. By making above submissions, it is requested to allow the
present Civil Revision Application.
5. The
present Civil Revision Application is opposed by Mr.N.S.Shevade,
learned advocate appearing on behalf of the respondent original
plaintiff – landlord. In appears on appreciation of evidence that by
giving cogent reasons, the Appellate Bench has allowed the Appeal and
passed eviction decree on the ground of non-usage of suit premises
for last more than six months prior to filing of the suit, which is
not required to be interfered by this Court and, therefore, it is
requested to dismiss the present Civil Revision Application.
6. Heard
the learned advocates appearing on behalf of the respective parties
at length. While allowing the Appeal and passing the judgement and
order, the Appellate Bench has considered the following facts :
(i) Ration
card upon, which the reliance was placed by the petitioners herein
original defendants tenant was issued in the year 1993 and the
Suit was instituted in the year 1990. The Appellate Court has also
considered that the said ration card was got issued for the first
time in the year 1993 and it was not renewal of the ration card.
(ii) The
summons of Suit was served upon the defendants at another place and
not at the suit premises. Considering the same, the Appellate Court
has observed that defendant No.2 was not residing in the suit
premises.
(iii) That
the panchnama prepared by the Court Commissioner is also considered
by the Appellate Court and it is found that when the Suit was
instituted, the defendants were not residing and it was open.
Considering
the aforesaid facts and circumstances, when the Appellate Court
decreed the Suit and passed a eviction decree on the ground of
non-usage of premises by the defendants since last more than six
months, it cannot be said that the Appellate Court has committed any
error or illegality in passing the impugned judgement and order,
which calls for interference of this Court. No case is made out to
interfere with the judgement and order passed by the Appellate Court.
7. In
view of the above and for the reasons stated hereinabove, there is no
substance in the present application, which deserves to be dismissed
and is accordingly dismissed. No order as to costs.
[M.R.SHAH,J]
*dipti
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