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CRA/80/2010 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
REVISION APPLICATION No. 80 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 ?
=======================================================
GIRISHKUMAR
PRABHASHANKAR TRIVEDI - Applicant(s)
Versus
RANCHHODBHAI
MANILAL JOSHI - Opponent(s)
=======================================================
Appearance :
MR
SACHIN D VASAVADA for Applicant(s) : 1,
MR RAKESH B SHARMA for
Opponent(s) :
1,
=======================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 16/03/2011
ORAL
JUDGMENT
The
present Revision Application has been filed by the
applicant-original plaintiff (landlord) under Section 29 of the
Bombay Rent Act and under Section 115 of the Civil
Procedure Code assailing the Judgment & Order dated
09.10.2009 passed by the 2nd Additional District Judge,
Mehsana in Regular Civil Appeal No.72 of 1999 confirming the
Judgment & Decree dated 17.03.1999 passed by the Civil Judge
(JD), Visnagar in Civil Suit No.28 of 1992.
Both
the Courts below have given concurrent findings, whereby the
applicant’s claim for eviction on the ground of arrears of rent has
not been accepted and, therefore, the present Revision Application
has been filed on the grounds stated in the memo of Revision
Application.
Heard
learned counsel Mr.Sachin Vasavada for the applicant and learned
counsel Mr.Rakesh Sharma for the respondent.
Learned
counsel Mr.Vasavada has referred to the papers and judgment of the
lower Appellate Court and has tried to submit that the Courts below
have not considered with regard to Section 12(3)(a) of the Rent Act
and, therefore, the matter may be remanded back. In support of his
submission, he has referred to and relied upon the judgment of this
Court in case of Urvashiben Kanubhai Joshi Wd/o Kanubhai K. Joshi
V/s Bakshisinh Ishwarsinh reported in 2009 (2) GLR 1078
and submitted that if the Suit seeking eviction under Section
12(3)(a) of the Rent Act is not considered then the Court is bound
to consider the question whether the case would fall under Section
12(3)(b) of the Rent Act. He, therefore, submitted that the present
application may be allowed.
Learned
counsel Mr.Sharma submitted that as observed by the lower Appellate
Court, the amount of rent due was paid after the notice was served
and, therefore, it has been observed in Para No.19 of the judgment
that the rent of Rs.942/-, was accepted with protest. Therefore, the
concurrent findings of facts arrived at by both the Courts below may
not disturbed.
Learned
counsel, Mr.Vasavada, however, submitted that as per the
observations made in the judgment reported in 2009 (2) GLR 1078,
this aspect may be directed to be reconsidered afresh under Section
12(3)(a) of the Rent Act with a direction that if he fails to comply
with the direction and pay rent then, the decree may be passed.
In
view of the rival submissions, it is required to be considered
whether the present application can be entertained or not.
The
decree for eviction on the ground of arrears of rent has not been
passed and the Suit has been dismissed. Thereafter, the Appeal
preferred by the applicant-plaintiff has also been dismissed and,
therefore, the present Revision Application has been filed.
In
light of the discussions made in the judgment of the lower Appellate
Court, the Court is of the opinion that it does not call for any
interference. In fact, the provisions of Section 12(3)(b) is couched
in a language that “no decree for eviction shall be passed in
any such suit if, 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”.
Therefore,
having regard to the provisions of the Rent Act and underline object
of the Rent Act, which is beneficiary legislature, both the Courts
below have given concurrent findings of fact, which does not call
for any interference.
It
is well settled that the scope of Revision Application is even
otherwise very limited even though the Revision is under Section
29(2) of the Rent Act.
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,
the Court is not inclined to interfere with the concurrent findings
of fact in exercise of revisional jurisdiction. However, considering
the observation and submissions, it would be in the fitness of
things that while disposing of this Revision Application, some
directions are required to be given to the respondent-tenant.
The
respondent-tenant is hereby direct to file an undertaking before
this Court in this Revision Application within a week stating that
he will comply with all the requirements and shall pay regular rent
from 1999 onwards as required under the law. If the respondent fails
to comply with the undertaking, it will be open for the applicant to
take appropriate steps.
With
these observations and directions, the present Civil Revision
Application stands disposed of accordingly. Notice is discharged.
Sd/-
(RAJESH
H.SHUKLA, J.)
/patil
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