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CRA/11/2010 11/ 11 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
REVISION APPLICATION No. 11 of 2010
with
CIVIL
APPLICATION No.3293 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.A.PUJ
=========================================================
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 ?
=========================================================
HEIRS
OF DECEASED JAGDISH CHANDRA YADAV & 3 - Applicant(s)
Versus
DECEASED
DAHYABHAI CHIMANLAL DIED THROUGH HEIRS & 2 - Opponent(s)
=========================================================
Appearance
:
MR
NV GANDHI for
Applicant(s) : 1 - 2, 4,DELETED for Applicant(s) : 3,
MR VK JOSHI
for Opponent(s) : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 20/07/2010
ORAL JUDGMENT
The applicants being
legal heirs of the ori. defendant have filed this Civil Revision
Application under Section-29(2) of the Bombay Rent Act challenging
the judgment and order passed by the Appellate Bench of the Small
Causes Court, Ahmedabad on 23.11.2009 in Civil Appeal No.26 of 1999
setting aside the decree and judgment passed by the learned Judge of
Small Causes Court, Ahmedabad on 31.12.1998 in H.R.P. Suit No.3657
of 1988.
This Court has issued
notice on 21.1.2010 and interim relief in terms of para-6(B) was
granted whereby the impugned judgment and order of the Appellate
Bench of the Small Causes Court was stayed.
Heard Mr. N.V.Gandhi,
learned advocate appearing for the applicants ori. defendants
and Mr. V.K.Joshi, learned advocate appearing for the opponents
ori. plaintiffs.
It is the case of the
applicants ori. defendants that they are the tenants of the
property bearing No. B-1 Mukhivas, Mithakhali having Census
No.1430/1, Survey No.1454/1, Ahmedabad. The applicant Nos.1 and 2
are residing in the said premises. The applicant No.3 expired and
hence he was not shown as necessary party in the memo of Appeal. The
applicant No.4 is daughter of the deceased tenant and she was also
not shown as necessary party in the Appeal. The opponents ori.
plaintiffs are owner of the said premises. They preferred H.R.P.Suit
No.3657 of 1988 for eviction before the Small Causes Court,
Ahmedabad on the ground of arrears of rent. The trial Court vide
judgment and decree dated 31.12.1998 dismissed the said Suit.
Being aggrieved by the
said judgment and decree of the trial Court the opponents ori.
plaintiffs preferred Civil Appeal No.26 of 2009 before the Appellate
Bench of the Small Causes Court, Ahmedabad. The Appellate Bench vide
its judgment and order dated 23.11.2009 quashed and set aside the
judgment and decree dated 31.12.1998.
It is this order which is
under challenge in the present Civil Revision Application.
Mr.N.V.Gandhi, learned
advocate appearing for the applicants submitted that the order and
judgment passed by the Appellate Bench of the Small Causes Court is
contrary to law laid down by this Court in the case of Naranbhai
Nathabhai Koli Vs. Modhia Panalal Maganlal, reported in 1982 (2) GLR
98
and in the case of Somabhai Kalidas Patel Vs.
Bachubhai Sankalchand Modi, reported in 1986 GLH (Guj.) 22.
He
has further submitted that the applicants are entitled to the
protection granted under Section-12(3)(b) of the Act. As the
applicants have paid rent no issue is framed
by the trial Court. He has further submitted
that the specific issue with regard to standard rent was framed by
the trial Court and hence the applicants were anxious to know about
the exact amount of standard rent. He has further submitted that the
applicants have deposited arrears of rent from 1.5.1983 to
30.11.1988 and purshis to that effect was also filed before the
trial Court. Mr.Gandhi further submitted that the applicants had
deposited municipal tax in its entirety despite the fact that they
are only liable to pay 60% of the municipal tax. In the above facts
and circumstances of the case Mr.Gandhi has submitted that the
applicants cannot be said to be tenants in arrears.
Mr.Gandhi
further submitted that the statutory requirements laid down under
the Bombay Rent Act have not been fulfilled. Notice was not served
on the applicants and the Appellate Court has proceeded merely on
the
basis of assumption. It was explained in detail as to why notice
could not be served on the applicants. In absence of service of
notice no decree could have been passed by the Appellate Court under
Section-12(3)(b) of the Bombay Rent Act and the applicants cannot be
evicted on the ground of non-payment of arrears of rent. He has,
therefore, submitted that the Civil Revision Application deserves to
be admitted and stay granted by this Court should continue till
final disposal of this Civil Revision Application.
Mr.
V. K. Joshi, learned advocate appearing for the respondent, on the
other hand, has submitted that the Appellate Court has at length
discussed the issue regarding non-payment of rent and issuance of
notice by the opponents and non-acceptance of this notice by the
applicants. He has submitted that the rent was outstanding since
1983 to 1998. The notice was issued by the original plaintiffs.
There
are adequate evidence on record to show that the opponents have
tried to serve notice on different occasions. However, on all the
occasions the applicants were not found at the address given. The
Court has, therefore, refused on the footing that the notice was
awaited. It is settled legal position that, refusal is as goods as
acceptance of the notice and rebuttal of presumption as found by the
trial Court is not justified in view of the documentary evidence on
record. He has further submitted that the issue regarding standard
rent was wrongly framed by the Trial Court as that issue has already
been settled between the parties in the previous Suit and as per
outcome of the previous suit the standard rent was fixed at Rs.70/-.
Despite this fact, the same has not been paid by the applicants. He
has further submitted that the condition precedents laid down in
Section 12(3)(b) are violated and, therefore, the Appellate Court
has rightly come to the conclusion
that the applicants are tenants in arrears of rent and hence the
said order cannot be interferred with by this Court while exercising
its jurisdictional power under Section 29(2) of the Act.
Having heard the learned
advocates appearing for the parties and having considered the
impugned orders passed by the Courts below in light of the documents
produced on record, the Court is of the view that the Appellate
Court has rightly come to the conclusion that the applicants are
tenants in arrears of rent. Admittedly the applicants have not paid
the rent from 1983 to 1998. Notices were issued which have also not
been accepted and immediately on filing of the Suit within one month
the applicants have not deposited rent in the Court. The issues
were framed in December, 1989. It is true that one of the issue is
with regard to standard rent. However, that issue has already been
decided between the parties in the earlier Suit. Even after framing
of the issue the amount was paid in 1990 and thereafter, and hence
as per provisions contained in Section 12(3)(b) of the Act the
applicants have not paid the amount of rent. As per the decision of
the Apex Court in the case of Vasant Ganesh Damle V/s.
Shrikant Trimbak Datar and another, (2002) 4 SCC 183,
wherein the Apex Court has held that the first date of hearing
cannot be stretched to be any date beyond the date when the issues
are framed in the suit. The object is to protect the bonafide
tenants from being evicted on the grounds of default by affording
them further opportunity to make the payment of the arrears of rent
at least two times during the subsistence of tenancy. The provision
is not intended to confer a right without circumspection, to be
availed of by the tenant at any point of time according to his
convenience. The Court further
observed that it is not possible to agree with the contention that
under Section 23 (3), the words such other date as the Court may fix
would also include the date fixed by the Appellate Court in terms of
Section 107 of CPC. The Court thereafter held that the appellant was
rightly held to be in arrears of rent for more than six months from
the date of filing of the suit and had failed to apply before the
Trial Court on the first day of suit for depositing the arrears of
rent. This issue was considered by the Court in its recent decision
in Civil Revision Application No.240 of 2009 and other cognate
matters decided on 12.7.2009.
Considering
the settled legal position the Court is of the view that the
applicants are tenants in arrears of rent and Appellate Court has
rightly passed the decree of eviction in favour of the opponents
ori. plaintiffs.
This Civil Revision
Application is accordingly dismissed. Notice is discharged. Interim
relief granted earlier stands vacated without any order as to costs.
In view of the order
passed in Civil Revision Application, the Civil Application does not
survive and it is accordingly disposed off.
(K. A. PUJ, J.)
kks
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