Gujarat High Court Case Information System
Print
CRA/349/2001 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
REVISION APPLICATION No. 349 of 2001
=========================================================
KAILASHKUMAR
BHENUMAL AGRAWAL - Applicant(s)
Versus
PUKHRAJ
MANJI BAROT - Opponent(s)
=========================================================
Appearance
:
MR
MB GANDHI for
Applicant(s) : 1,
MR HIMANSU M PADHYA for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 05/05/2011
ORAL
ORDER
1. The
petitioner herein has challenged the order dated 12.09.2000 passed by
the Second Extra Assistant Judge, Banaskantha at Palanpur in Civil
Appeal No. 41 of 1989 whereby the judgement and decree dated
31.12.1988 passed by the Civil Judge (S.D.), Palanpur in Regular
Civil Suit No. 127 of 1981 was reversed and decree for possession is
refused thereby.
2. The
facts giving rise to the present revision application are that the
present petitioner filed Regular Civil Suit No. 127 of 1981 in the
court of Civil Judge (S.D.) at Palanpur to get possession on the
grounds of arrears of rent and personal requirements. The said suit
was decreed on 31.12.1988. Being aggrieved by the said decree of
eviction, the respondent herein preferred Regular Civil Appeal No. 41
of 1989. The appellate court after hearing the parties allowed the
appeal and the decree dated 31.12.1988 was set aside. Being
aggrieved by the said order of the appellate court, the present
revision application is preferred.
3. Mr.
Gandhi, learned advocate appearing for the petitioner submitted that
the appellate court failed to consider that on the date of notice,
Rs. 770/- were outstanding towards rent. He submitted that the
appellate court failed to appreciate that before the notice the
present respondent had already filed Standard Rent Application being
Misc. Application No. 242/1980 and after the said notice was given,
application for interim standard rent was filed.
3.1 Mr.
Gandhi submitted that in the aforesaid misc. application, the learned
judge passed an order on 13.01.1981 whereby the interim rent was
fixed at Rs. 90/- and it was directed that the tenant should go on
depositing the rent regularly. He submitted that the trial court
rightly came to the conclusion that rent is not fully paid in
compliance of the order of standard rent application.
4. Mr.
Padhya, learned advocate appearing for the respondent supported the
order of the appellate court. He submitted that the appellate court
has rightly appreciated the money order receipts whereby amount of
rent was sent by the tenant but the landlord did not accept the same.
He submitted that the landlord had given notice to the tenant on
18.12.1980 and Rs. 770/- was to be paid for due rent of seven months
from 01.05.1980 to 01.12.1980 within a period of one month from the
date of statutory notice. The tenant paid Rs. 900/- as rent before
the expiry of the statutory notice.
5. Having
heard the learned advocates for either side and having perused the
papers on record, this court is of the view that the appellate court
has gone into the evidence in detail and has come to the conclusion
that the defendant cannot claim possession on the ground that the
tenant had committed default in depositing the rent regularly. It is
not in dispute that the tenant had remitted the due rent amount by
sending money order regularly and those were refused by the landlord
without any reason. From the perusal of the order of the trial court
it is borne out that the trial court committed an error in holding
that the defendant had committed default in depositing the rent
regularly during the pendency of the suit. The appellate court has
rightly set aside the decree passed by the trial court in view of the
fact that decree for eviction cannot be passed where the tenant is
shown to be ready and willing to pay the rent and more over has in
fact paid such rent upto the date of filing of the suit. In the
present case, it is proved that the tenant had deposited the amount
more than the notice amount within thirty days of suit notice and it
is also proved that the tenant is ready and willing to pay the rent
due. The trial court ought to have considered the money order
receipts which shows the genuineness of the tenant. This court is in
complete agreement with the reasonings adopted and findings arrived
at by the appellate court.
6. For
the foregoing reasons, Revision Application is dismissed. Rule is
discharged. Interim relief, if any, stands vacated. No costs.
(K.S.
JHAVERI, J.)
Divya//
Top