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CRA/340/1998 10/ 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
REVISION APPLICATION No. 340 of 1998
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
=========================================
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 ?
=========================================
LABHSHANKER
MANISHANKAR JOSHI & 2 - Applicant(s)
Versus
KAMLASHANKER
BHOGILAL PANDYA & 2 - Opponent(s)
=========================================
Appearance
:
MR INDRASHANKAR JOSHI, PARTY-IN-PERSON
for Applicant(s) : 1, 3,
MR KV SHELAT for Opponent(s) : 1 -
3.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 12/05/2011
ORAL
JUDGMENT
The
present revision application has been filed by the
petitioners-original plaintiffs, one of whom appears as
party-in-person, for the prayer that the judgment and order passed by
the Appellate Bench of the Small Causes Court, Ahmedabad in Regular
Civil Appeal No. 128/96 dated 25.11.1997 may be quashed and set aside
on the grounds stated in the application, inter alia, that the
judgment and order passed by the Appellate Bench is based on
inference, not warranted by facts and on presumption not permitted by
law. It is also contended that the courts below have failed to
appreciate that as the plaintiffs had used the terrace, open land
compound, latrine and therefore the possession cannot be disturbed by
the landlord. It is also contended that the courts below, after
holding that so long as the plaintiff is in possession as tenant of
the suit premises, the defendants should not make any construction on
the terrace except by following the procedure provided under the
Bombay Rent Act, has grossly erred in dismissing the suit. It is
also contended that the courts below have failed to appreciate that
if any construction is made on the terrace or open land, the rights
of the petitioners-original plaintiffs would be affected. It is
also contended that the courts below have erred in holding that it
cannot be said that when one portion was rented to one tenant, he
was also rented the terrace.
2. Petitioner
No. 2, Mr. Indrashankar Joshi has appeared as party-in-person and
made the submissions and has also given written submissions. The sum
and substance of the submissions are that the respondent No.1
-landlord has mislead the court. It is contended that an amount of
Rs. 2900/- was paid by cheque dated 19.12.93 and thereafter the
account was closed and thereafter when money order was sent for the
rent it was not accepted and therefore it cannot said that the
petitioner-tenant is in arrears of rent for 20 years. It is also
contended that by misleading the court and also in violation of the
municipal laws, the respondent-landlord has made the construction by
making construction of flats for allotment which has caused prejudice
to the rights of the petitioners as they are entitled to use other
portion like the compound as well as the terrace. It is also
emphasised by party-in-person Mr. Joshi that he was attacked by the
landlord and in spite of the order of status-quo, the common bathroom
as well as staircase etc. have been destroyed and construction of
flat has been made. He also emphasised that in Lok Adalat the
defendant was fined Rs. 1.25 as he was a senior citizen. However,
the party-in-person has stated that the defendant has made illegal
construction. He has referred to both the judgments. Mr. Joshi has
submitted that he is ready and willing to make payment of the
outstanding rent and he may be granted permission for repairing the
premises in his occupation as well as use of the terrace.
3. Learned
counsel Mr. K.V. Shelat has referred to the papers and submitted that
as stated in the affidavit filed by the respondents by the Secretary
of Muktimonohar Members’ Association, a registered NTC for the
flats, the petitioners who are the tenants of one room, kitchen with
WC is not disturbed and except this portion the petitioners are not
the tenant of any other portion. The petitioners have not paid the
rent since years for which outstanding amount of Rs. 4,020/- is also
mentioned with the mesne profit. It is also contended that the
petitioners are peacefully enjoying the premises, that is, one room
kitchen with WC and chokdi facility which is in their possession. It
is also contended that the Appellate Bench has given a right to the
respondents-owner that as and when they intended to make
construction above the said property, they may apply under sec. 13
(A) of the Bombay Rent Act and can make construction. He submitted
that internal plaster or repairing is not objected and they may carry
out such work at their cost. However, the terrace was never forming
part of the property let out to them and therefore they cannot claim
any right for use and enjoyment of the terrace. Learned counsel Mr.
Shelat submitted that when liberty has been reserved for further
construction by the court, the same may not be disturbed.
4. In
view of rival submissions, it is required to be considered whether
the present revision application can be entertained or not.
5. It
is well accepted that the scope of revisional jurisdiction is limited
and normally the concurrent findings of facts are not required to be
disturbed. Though the revision Is under sec. 29(2) of the Bombay
Rent Act, still, the scope would be confined to revisional
jurisdiction and not the appellate jurisdiction as it cannot be
equated with appellate jurisdiction. The Hon’ble Apex Court in a
judgment in the case of Patel
Valmik Himatlal and ors. v. Patel Mohanlal Muljibhai (dead) through
Lrs., reported in AIR
1998 SC 3325, has referred to this aspect and has observed,
“5.
The ambit and scope of the said section came up for consideration
before this Court in Helper Girdharbhai v. Saiyed Mohmad Mirasaheb
Kadri, (1987) 3 SCC 538 : (AIR 1987 SC 1782) and after referring to a
catena of authorities, Sabyasachi Mukharji, J. drew a distinction
between the appellate and the revisional jurisdictions of the Courts
and opined that the distinction was a real one. It was held that the
right to appeal carries with it the right of rehearing both on
questions of law and fact, unless the statute conferring the right to
appeal itself limits the rehearing in some way, while the power to
hear a revision is generally given to a particular case is decided
according to law. The Bench opined that although the High Court had
wider powers than that which could be exercised under Section 115 of
the Code of Civil Procedure, yet its revisional jurisdiction could
only be exercised for a limited purpose with a view to satisfying
itself that the decision under challenge before it is according to
law. The High Court cannot substitute its own findings on a question
of fact for the findings recorded by the Courts below on reappraisal
of evidence. Did the High Court exceed its jurisdiction ?”
6. The
provisions of sec. 29(2) of the Bombay Rent Act empowers or enables
the High Court to satisfy itself that any decision in appeal was
according to law for which it may call for the record and
proceedings. Therefore, ti would imply that it empowers the High
Court to correct the errors which may make the decision contrary to
law or which errors can go to the root of the matter, but it does not
empower the High Court to re-hear the matter or re-appreciate the
evidence.
7. The same
view has been reiterated in a subsequent judgment in the case of N.
Eswari w/o Adinarayana v. K. Swarjya Lakshmi, w/o Late K.V.L.N.A.
Sastry, reported in (2009) 9 SCC 678, where the Hon’ble Apex
Court has also observed referring to the earlier judgments that
concurrent findings of facts by the courts below should not be dealt
with or supplemented by independent assessment of the evidence by the
High Court.
8. One
of the petitioners-original plaintiffs filed H.R.P. Suit No. 4094/86
for permanent injunction against the defendants. The suit came to be
dismissed by the Small Causes Court, Ahmedabad, vide judgment and
order dated 3.8.1996. Therefore, Civil Appeal No. 129/96 was
preferred before the Appellate Bench of the Small Causes Court and
the said appeal came to be dismissed vide judgment and order dated
25.11.1997.
9. As
can be seen from the judgment of the Appellate Bench, while
dismissing the appeal it was clarified that if the respondents or
anyone claiming through or under them desire to make any construction
as contemplated under section13(A) of the Bombay Rent Act, they must
obtain necessary permission before making such construction.
10. As
it is discussed in the judgment, the original landlord, defendant No.
1 had sold the other portion of the property to defendant No.
2-Association which constructed the flats and there is also a
discussion with regard to the provisions of sec. 13(A) which has
reference to the use of terrace rights. The original plaintiffs, the
petitioners herein are the tenants of premises bearing M.C. No. 63/2
and it was claimed that they had the right to use the terrace as
well as the open land, bathroom, latrine, store room etc. However,
after appreciation of evidence, it has been clearly found that the
petitioners-original plaintiffs are the tenants of the premises which
has been let out to them which consisted of one room, kitchen with
WC. However, the claim regarding the terrace right was not accepted
and the Appellate Bench has clearly observed,
“This
claim made in the deposition therefore cannot be accepted and this
evidence cannot be said to be reliable. It is stated that terrace
was used to accommodate the guest of the tenants and the children
were also using the terrace for studying. The alleged shed on the
terrace is also of iron sheets. There is no commissioner’s report
pointed out before us.”
It
is in these circumstances, while dismissing the appeal, the
observation has been made with regard to permitting the defendants to
make construction after obtaining necessary permission as required
under sec. 13(A).
11. Therefore,
the submission made by party-in-person Mr. Indrashankar Joshi about
the terrace right cannot be accepted that he has exclusive right of
the terrace. but it will be subject to the ultimate decision which
may be given by the Small Causes Court when such an application is
made for further construction by the defendants.
12. There
is no dispute that the rent has not been paid. It is required to be
mentioned that though the petitioner has stated that he has made the
payment by cheque, he has not produced any evidence that the amount
has been debited from the account, but, on the contrary, he states
that the said account has been closed, meaning thereby, after giving
the cheque, in fact, it has not been received or credited in the
account of the landlord.
13. Be
that as it may, the total amount outstanding is Rs. 4,020/- . This
amount is required to be paid and on payment of such amount, his
possession would not be disturbed. As stated by learned counsel Mr.
Shelat. they have not disturbed his possession in respect of the
tenanted portion of the premises. It is also clear that flats have
been constructed and members are residing.
14. Therefore,
another aspect which is left is repair of the tenanted portion which
is in use and occupation of the petitioners-tenants who are required
to be permitted to carry out the repairs at their cost. They may
carry out the repairs, but they cannot make any claim for the terrace
rights.
15. It
is also required to be mentioned that HRP Suit No. 98/2004 filed by
one of the petitioners herein, Mr. Indrashankar Joshi, has been
allowed and the defendants, their agents, servants, particularly
defendant No. 2, has been restrained from taking forcible possession
of the suit premises as per the judgment and order dated 5.10.2006.
Therefore, there is no question of disturbing the possession of the
portion used and occupied by the petitioners. In the said judgment
in HRP Suit No. 98/2004 it has been clearly observed that plaintiff’s
apprehension of the forcible possession is believable and therefore
on appreciation of evidence it has been allowed. The report of the
court commissioner is also produced on record in HRP Suit No. 98/2004
to establish the portion in the possession and occupation of the
petitioner-tenant and the same shall not be disturbed.
16. Therefore,
with the aforesaid clarification, the present revision application
deserves to be rejected as it does not call for any interference with
the order passed by the Appellate Bench of the Small Causes in
Regular Civil Appeal No. 128/96 dated 25.11.1997. However, it would
be subject to the aforesaid clarification that their possession
shall not be disturbed and for further construction it will be
according to the orders that may be passed by the Small Causes Court
under sec. 13(A) on an application that may be made by the
respondents. The petitioner shall also deposit the amount of Rs.
4,020/- towards the outstanding rent and shall regularly pay the
rent.
The
application accordingly stands disposed of as rejected with the
aforesaid clarification. Rule is discharged. No order as to costs.
(Rajesh
H. Shukla, J.)
(hn)
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