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CRA/1094/2001 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
REVISION APPLICATION No. 1094 of 2001
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 ?
=========================================================
MOHAMMEDBHAI
REHMANBHAI - Applicant(s)
Versus
MEHRUNNISHA
MOHAMMED HANIF - Opponent(s)
=========================================================
Appearance :
MR
LR PATHAN 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 MR MA SAPA for Applicant(s) : 1,
None for Opponent(s)
: 1, 1.2.3,1.2.4
MR SIRAJ R GORI for Opponent(s) : 1.2.1, 1.2.2,
1.2.5, 1.2.8,1.2.9
RULE SERVED for Opponent(s) : 1.2.6, 1.2.10,
1.3.1, 1.3.2,1.3.3
RULE UNSERVED for Opponent(s) : 1.2.7
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 03/02/2011
ORAL
JUDGMENT
1. Present
revision application has been filed by the petitioners original
plaintiffs – landlords under Section 29(2) of the Bombay Rent
Act read with Section 115 of Code of Civil Procedure for the prayer
to quash and set aside the judgment and decree dated 02.08.2001
passed by the Appellate Bench of Small Cause Court, Ahmedabad in
Civil Appeal No. 117 of 1994 confirming the judgment and decree dated
30.10.1991 passed by the Small Cause Court, Ahmedabad in H.R.P. Suit
No. 1149 of 1983, on the grounds set out in detail in memo of the
petition, inter alia that the lower Appellate Court has committed an
error in appreciating the evidence. It is also contended that the
lower Appellate Court has committed an error in wrongly casting the
burden of proof to disprove the case that two sons of original tenant
are the tenants of two different floors. It is also contended that
the lower Appellate Court has committed an error in allowing the
production of the documents at the appellate level and therefore
present revision application may be allowed.
2. Learned
counsel Mr. L.R.Pathan referred to the papers and submitted that the
respondents are the heirs of deceased Husainbhai Hajibhai Vora –
original tenant who had been rented the entire premises. However, the
defence has been raised that the first floor and second floor were
rented to two sons. Learned counsel Mr. Pathan submitted that it was
not so and the burden would lie on the respondents to prove that they
are not tenant for the entire premises or two sons were separate
tenants. He submitted that subsequently, on the demise of Husainbhai
Hajibhai Vora – original tenant, two sons have made an
application as heirs of the deceased tenant and on the basis of the
contention raised, the lower Appellate Court, while allowing the
appeal, set aside the judgment and order of the Small Cause Court and
remanded the H.R.P. Suit No. 1149 of 1983 to the trial Court for
trial afresh which is not justified. He submitted that the burden of
proof is on the party who claims and the suit was for entire
premises and if the defence was taken by the respondents tenants
then it was for them to establish that they were not the tenant for
the entire premises. He pointedly referred to the discussion in the
judgment of the lower Appellate Court in Civil Appeal No. 117 of 1994
where the lower Appellate Court has made the observation that there
is a specific averment that his sons are tenant and
therefore the burden is upon the landlord to disprove. Learned
counsel Mr. Pathan submitted that the approach is erroneous and it
has wrongly shifted the burden to the petitioners – landlords.
He also submitted that if the Court had found that the entire
premises was not let out or the sons were tenants, it could have
dismissed the suit but remanding the matter back to the trial Court
is not justified as it would lead to a situation where the further
evidence is permitted. Learned counsel Mr. Pathan submitted that this
would result into miscarriage of justice and therefore the present
revision application may be allowed.
3. Learned
advocate Mr. Gori for the respondents referred to the observations
made in the judgment of the lower Appellate Court wherein it has been
specifically observed that two sons are the tenants and they have
paid the rent and executed separate rent notes in favour of the
plaintiffs. Therefore, learned advocate Mr. Gori submitted that in
fact the rent was paid separately which was accepted and she has not
steeped into witness box. He, therefore, submitted that the order is
innocuous which has only permitted to consider the case in view of
the specific contention with regard to the entire premises being not
rented to the deceased and the sons are separately given the portion
i.e. first floor and second floor on rent. Learned advocate Mr. Gori
submitted that after the matter has been remanded, it might have been
decided and therefore this revision application also may have become
infructuous.
4. In
rejoinder, learned counsel Mr. Pathan submitted that whether the
lower Appellate Court can remand H.R.P. Suit No. 1149 of 1983 for
trial afresh or not is not relevant but what is challenged is the
justification for such order and the consequence must follow.
5. In
view of rival submissions, it is required to be considered whether
the present revision application can be entertained or not.
6. The
facts of the case as briefly recorded herein are that the dispute is
with regard to the impugned order passed by the lower Appellate Court
in Civil Appeal No. 117 of 1994 remanding H.R.P. Suit No. 1149 of
1983 to be decided afresh in light of the rival contention with
regard to the tenancy right of two sons on first floor and second
floor of the deceased tenant. As can be seen from the discussion in
the judgment, submission made by learned counsel Mr. Pathan cannot be
accepted in view of the fact that admittedly, separate rent notes
have been executed. There is a contention with regard to the
relationship of the landlord and tenant and as the lower Appellate
Court has only remanded the matter, it cannot be said that there is
any error resulting into miscarriage of justice as both the parties
will have sufficient opportunity to lead the evidence and contest on
merits. The submission made by learned counsel Mr. Pathan that if the
matter is remanded back it would allow the sons of the deceased
tenant to place on record the material and evidence, is also
misconceived. Moreover, as discussed in the judgment of the lower
Appellate Court, there are separate rent receipts in favour of the
sons as tenants. Therefore, it is in background of such rival
submissions in order to decide the claims based on the complete
evidence and to provide opportunity to both the sides the order came
to be passed which cannot be said to be erroneous. The submissions
with regard to the burden of proof is also required to be considered
in context of the aforesaid discussion and when the matter is
remanded back the same could be considered afresh and therefore there
is no reason to interfere with the impugned order in exercise of
revisional jurisdiction, particularly, in light of the facts and
evidence stated and discussed in the judgment of the lower Appellate
Court. The submission that documents which ought not to have been
relied upon, is required to be appreciated in light of the fact that
it could be one of the reasons that the H.R.P.Suit No.
1149 of 1983 is remanded back for deciding afresh on merits in
accordance with law after providing an opportunity to both the sides.
Therefore, having considered the judgment of the lower Appellate
Court and the rival submissions, the Court is not inclined to
entertain the present revision application as it cannot be said that
it has in any way resulted into miscarriage of justice or there was
no jurisdiction for remanding the matter back as sought to be
canvassed.
7. It
is also well accepted that the scope of exercise of revisional
jurisdiction is very limited. The Hon’ble Apex Court in catena of
judicial pronouncements including the judgment in the case of Yunif
Ali (Dead) through Lrs. V. Khursheed Akram reported in AIR
2008 Supreme Court P. 2607 has observed the said aspect.
8. In
light of the discussion made herein above, present Revision
Application cannot be entertained and deserves to be dismissed and
accordingly stands dismissed. Rule Discharged. Interim relief, if
any, stands vacated.
(RAJESH
H. SHUKLA, J.)
jani
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