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CRA/360/2010 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
REVISION APPLICATION No. 360 of 2010
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 ?
=======================================================
DEVENDRABHAI
DAHYABHAI JANI - Applicant(s)
Versus
BHANUBHAI
BAPALAL DAVE - Opponent(s)
=======================================================
Appearance :
MR
NILESH A PANDYA for Applicant(s) : 1,
None for Opponent(s) :
1,
=======================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 21/01/2011
ORAL
JUDGMENT
The
present Revision Application has been filed by the
applicant-original defendant under Section 29 of the Bombay Rent Act
and under Section 115 of the Civil
Procedure Code for challenging the Judgment &
Order dated 03.12.2010 passed by the Learned Judge, Small Cause
Court, Ahmedabad in Civil Appeal No.89 of 1999 confirming the
Judgment & Decree 11.03.1999 passed by the Learned Judge, Court
No.7, Ahmedabad in H.R.P. Suit No.37 of 1993 on the grounds set out
in the present Revision Application inter alia contending that both
the Courts below have erred in holding that the applicant has
acquired suitable accommodation at Vishram Park. Similarly, both the
Courts below have erred in holding that the applicant-defendant is
not using the rented premises for residential purpose and both the
Courts below have failed to appreciate the comparative hardships.
Learned
counsel, Mr.Nilesh Pandya referred to the both impugned Judgments of
both the Courts below delivered in Civil Appeal No.89 of 1999 as
well as H.R.P. Suit No.37 of 1993. Referring to the material and
evidence and the discussion made in the impugned orders, he
submitted that the Courts below have committed an error in
appreciating the evidence while deciding about non-user as the
electricity consumption has been shown and the average, which has
not taken, is not proper and the gas cylinder and the postal
communication are also received at the said address. He, therefore,
submitted that the ground of non-user by the applicant-original
defendant-tenant has not been established and the Courts below have
committed an error.
He
also submitted referring to the grounds mentioned in the Appeal
filed before the lower appellate court, particularly, ground (e) and
also referring to the report of the Court Commissioner that it has
been wrongly exhibited and it could not have been relied upon. He
has referred to other grounds including ground (k) to emphasize that
there is a discrepancy with regard to the area.
He
also submitted that the family of the respondent-original
plaintiff-landlord of the present applicant is almost same and both
are having similar hardship, which has not been appreciated. He,
therefore, submitted that the present application may be allowed.
Though
the submissions have been made referring to these aspects, the
detailed discussion by both the Courts below clearly establish about
the fact that the applicant-original defendant-tenant was having
alternate premises at Vishram Park, which has been established by
the documentary evidence. Not only that, but there is some kind of
ipse dixit of the respondent-tenant in making a proper
disclosure, which has also been noted for the purpose of considering
the conduct. Further, as could be seen while referring to the
discussion that the consumption for the electricity has been
considered for February, 1992 to December, 1994. Admittedly, the
voters’ list, Exh.27 for the Ellisbridge division shows the name of
the members of the family of the applicant having residential
premises at Vishram Park Society. There are other evidence also and
on the basis of such evidence, conclusion has been arrived at by
both the Courts below about the non-user of the premises and
acquisition of the suitable accommodation by the applicant-tenant.
Further,
the submission made by the learned counsel, Mr.Pandya referring to
ground (e) before the lower Court that the report of the Court
Commissioner has wrongly been exhibited cannot be accepted. The
lower appellate court has also considered this aspect and in any
view of the matter, as could be seen from the judgment of the lower
appellate court that the applicant had in fact chosen not to remain
present to protract litigation. The submission made by the learned
counsel, Mr.Pandya that the Court Commissioner is not examined and,
therefore, the evidence or the reliance placed on the report of the
Court Commissioner could not have been made also cannot be accepted.
As admittedly, the report has been made by the Court Commissioner,
which has been exhibited and such contention does not appear to have
been taken before the lower appellate court. Therefore, other
contentions also cannot be permitted. Moreover, ground of the
comparative hardship and equal number of members is also
misconceived as both the Courts below have considered the
comparative hardship.
Therefore,
moot question, which is required to be considered is that when
admittedly the applicant-tenant is having alternate accommodation,
which he has been using and rented premises is not used, the decree
passed by the lower Court in H.R.P. Suit No.37 of 1993 for eviction,
which has been confirmed by the lower appellate court in Civil
Appeal calls for any interference in exercise of revisional
jurisdiction. It cannot be said that the findings and conclusion
arrived at are perverse or based on extraneous consideration
resulting into miscarriage of justice. Therefore, in exercise of
revisional jurisdiction, it does not call for any interference with
the impugned order considering the limited scope of revisional
jurisdiction.
A
useful reference can be made to the observation made by the Hon’ble
Apex Court in a judgment reported in AIR 2008 SC 2607 in case
of Yunis Ali (Dead) Thru his L. Rs. V/s Khursheed Akram,
wherein it has been observed referring to the scope of exercise of
discretion under Section 115 of the Indian Penal Code as under :-
“It
is well-settled position in law that under Section 115 of the Code
of Civil Procedure the High Court cannot re-appreciate the evidence
and cannot set aside the concurrent findings of the Courts below by
taking a different view of the evidence. The High Court is empowered
only to interfere with the findings of fact if the findings are
perverse or there has been a non-appreciation or non-consideration
of the material evidence on record by the courts below. Simply
because another view of the evidence may be taken is no ground by
the High Court to interfere in its revisional jurisdiction.”
Therefore,
in view of the findings given by both the Courts below, this Court
is not inclined to interfere with the impugned order and, hence, the
present Civil Revision Application deserves to be dismissed.
Accordingly,
Second Appeal stands dismissed.
After
the order was dictated, learned counsel, Mr.Pandya for the applicant
has requested for the stay of the order to enable applicant to
approach the Hon’ble Apex Court. Therefore, the operation of the
order is stayed to enable the applicant to approach the Higher Forum
for three weeks. Direct service is permitted.
Sd/-
(RAJESH
H.SHUKLA, J.)
/patil
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