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CRA/5/2011 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
REVISION APPLICATION No. 5 of 2011
=========================================================
SHARDABEN
RAMESHBHAI TAILOR - Applicant(s)
Versus
SONI
JAGNATH BABURAO BHADGAOKAR - Opponent(s)
=========================================================
Appearance
:
MR
SP MAJMUDAR for
Applicant(s) : 1, 1.2.1, 1.2.2,1.2.3
None for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 22/06/2011
ORAL
ORDER
1. By
way of this Revision Application, the applicants have challenged the
judgment and order dated 30.01.1999, passed by the learned Additional
Judge, Small Causes Court, Vadodara, in Rent Suit No. 410 of 1983,
whereby the learned Judge has allowed the suit filed by the original
plaintiff and directed the original defendants to vacate the
possession of the suit premises, on or before 31st
March, 1999, as well as judgment and decree dated 21.07.2010, passed
by the learned Presiding Officer, Fast Track Court No.5, Vadodara, in
Regular Civil Appeal No. 12 of 1999, whereby the learned Judge has
dismissed the appeal filed by the original defendants and confirmed
the order dated 30.01.1999, passed in Rent Suit No. 410 of 1983.
2. Heard
Mr. Majmudar, learned Advocate appearing for the applicants.
3. There
are concurrent findings of the Courts below. The relevant part of the
discussions reads as under:-
“In the present
case the suit house is more than 100 years old and in fact in the
present case, the first and second floor actually has fallen down and
the same was removed and the landlord became harmless, and was
compelled to go in market to search for residence and shop. In the
present case also the tenant never cared to search for any premises.
So considering the evidence and the above case-law. I conclude that
greater hardship will be caused if the landlord is refused to decree
of eviction and hence Issue No.5 is decided accordingly in favour of
the plaintiff.
13. Issue No.3:- This
issue pertains to non-user of the suit premises immediately prior to
the date of filing the suit for six months or more without any
reasonable cause. Plaintiff has averred this ground in plaint and
orally deposed about the non-user of the premises. It is the say of
the plaintiff that the original tenant Maganbhai died on 29.5.1983
and before that since seven to eight months, Maganbhai has closed
down his business in the suit premises. This is denied by the
defendants. Except the bare words against one another, there is no
sufficient and independent evidence to come to a conclusion about the
closure of the business was from a particular date. In the above
circumstances, I hold that the plaintiff has failed to prove non-user
of the suit premises before the date of the filing of the suit and
the issue is decided in negative.
14. Issue No.6:- Issue
No.4 of bonafide requirement and that of hardship is decided in
favour of the plaintiff and against the defendants and that I have
also held that the defendants are not the tenants as contemplated
under Section 5(11)(c) hence the plaintiff is entitled to decree for
possession and issue is decided in the affirmative.”
4. In
view of the above, this Court is not inclined to interfere with the
findings recorded by both the Courts below. At this stage, a
statement is made by Mr. Majmudar, learned Advocate for the
applicants that applicants will vacate the premises in question
within a period of two years.
5. Considering
the overall aspects of the matter, two years time is granted to
vacate the premises i.e. upto 13th June, 2013. Usual
undertaking to that effect will be filed by the applicants within a
period of 4 weeks from today.
6. This
order is passed in absence of the other side only to avoid expenses
to be incurred by the other side before this Court. However, in case
of difficulty, it will be open for him to file M.C.A. before this
Court.
7. With
the above observation, this Revision application stands disposed of
accordingly.
(K.S.JHAVERI,J.)
pawan
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