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CRA/998/2001 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
REVISION APPLICATION No. 998 of 2001
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
=========================================================
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 ?
=========================================================
ISHWARBHAI
SHANTILAL CHAUHAN PRESIDENT - Applicant(s)
Versus
BHANIBEN
BHANABHAI - Opponent(s)
=========================================================
Appearance
:
MR
SUBRAMANIAM IYER for
Applicant(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5, 1.2.6, 1.2.7,
1.2.8,1.2.9
None for Opponent(s) : 1,
RULE SERVED for
Opponent(s) : 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5, 1.2.6,1.2.7
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 20/06/2011
ORAL
JUDGMENT
By
way of present Revision Application, the applicants have inter alia
prayed for quashing and setting aside the judgment and decree dated
12th June 2001 passed by the Appellate Bench, Small
Causes Court, Ahmedabad, in Civil Appeal No.39 of 1992, whereby the
Appellate Bench has reversed the judgment and decree dated 05th
March 1992 passed by the trial Court in H.R.P. Suit No.1334 of 1985.
The
facts of the case in brief are that the applicants-original
plaintiffs instituted H.R.P. Suit No.1334 of 1985 in the Small
Causes Court, Ahmedabad, against the opponents- original defendants
to recover the possession of the suit premises and the arrears of
rent as well as mesne profit, etc. inter alia on the ground that
the opponents carried out permanent structure and alteration in the
rented suit premises without obtaining permission or consent of the
applicant-Trust.
2.1
The said suit ultimately came to be decreed partly by the trial
Court vide judgment and decree dated 05th March 1992 and
directed the opponents herein to hand over the vacant and peaceful
possession of the suit premises to the applicant-Trust before the
prescribed date and also to pay Rs.432/- towards rent and also to pay
mesne profit from the date of filing of the suit till realisation of
the possession of the suit premises and the costs of the suit.
2.2 Being
aggrieved by the said judgment and decree, the opponents-original
defendants preferred Civil Appeal No.39 of 1992 before the Small
Causes Court at Ahmedabad. The lower Appellate Court after
appreciating the facts and circumstances of the case and the evidence
produced on record as well as the impugned judgment and decree,
allowed the said appeal by reversing the impugned judgment and
decree. Hence, present Revision Application.
Mr.S.H.
Iyer, learned advocate for the applicant-Trust, has submitted that
the lower Appellate Court has erred in interpreting the provisions
of Section 13(1)(b) of the Bombay Rents, Hotel and Lodging House
Rates (Control) Act, 1947 (hereinafter referred to as ‘the Act’);
that the lower Appellate Court has erred in holding that the
applicants were required to prove the nature of construction as was
prevailing on the date on which the suit premises was let to the
opponents; that the trial Court has rightly concluded that the
applicants have proved that the opponents have erected permanent
structure in the suit premises; that the lower Appellate Court has
failed to appreciate the evidence of Shri Chimanbhai F. Chauhan at
Exhibit 16 and that the lower Appellate Court has failed to
appreciate that the opponents have admitted in their pleadings that
they have carried out certain repairs. In view of aforesaid, it is
prayed that present Revision Application may be allowed.
Having
considered the contentions raised by the learned advocate for the
applicants, averments made in the Revision Application and the
documentary evidence produced on record, including the impugned
judgment and decree passed by the trial Court as well as the lower
Appellate Court, it transpires that the lower Appellate Court has
after going through the pros and cons of the matter decided the
matter and came to the impugned conclusion, which is just and
proper. It is pertinent to note that the lower Appellate Court has
rightly observed in the impugned judgment and decree that in view of
the admissions made by Shri Chimanlal Chauhan, who is the Trustee of
the applicant-Trust, in the cross-examination that the Trust does
not have any register to show as to how was the suit premises when
it was let out to the opponents. Further, he has also admitted that
he does not have any personal knowledge about the previous situation
of the suit premises.
4.1
The lower Appellate Court has also rightly appreciated the
evidence of Shri Kalidas Chauhan, who has stated that he was the rent
collector of the suit premises from the years 1967 to 1980. He has
admitted in his cross-examination that he does not know as to who is
the tenant of the adjoining premises situated on the right-hand side
as well as left-hand side of the suit premises. Hence, it has been
rightly observed by the lower Appellate Court that the evidence of
both these witnesses is not helpful to the applicants in proving
their case under Section 13(1)(b) of the Act.
4.2 The
lower Appellate Court has rightly observed that the the notice issued
by the Ahmedabad Municipal Corporation under Section 260(1) of the
Bombay Provincial Municipal Corporation Act can be used by the
landlord as corroborative piece of evidence, but the same cannot be
considered as the exclusive evidence to prove the ingredients of
Section 13(1)(b) of the Act. The lower Appellate Court has rightly
observed in the concluding paragraph that there is no evidence
whatsoever about the previous situation of the suit premises.
In
view of aforesaid, I am of the opinion that the
lower Appellate Court has assigned cogent and convincing reasons for
arriving at the impugned conclusion. Over and above the aforesaid
reasons, I adopt the reasons assigned by the lower Appellate Court
and do not find any illegality much less any perversity in the
findings recorded. I am in complete agreement with the findings
recorded by the lower Appellate Court. No case is made out to
interfere with the findings recorded by the lower Appellate Court.
Hence, present Revision Application deserves to be rejected.
For
the foregoing reasons, present Revision Application fails and is,
accordingly, rejected. Rule is discharged. No order as to costs.
(K.S.
Jhaveri, J)
Aakar
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