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CRA/40/2011 9/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
REVISION APPLICATION No. 40 of 2011
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 ?
=========================================
SHRI
RAJAJI RAMDEV & 1 - Applicant(s)
Versus
ABDUL
AVVAL HABIBBULAH MANSURI & 2 - Opponent(s)
=========================================
Appearance :
MR
MB GANDHI for Applicant(s) : 1 - 2.MR CHINMAY M GANDHI for
Applicant(s) : 1 - 2.
NOTICE SERVED BY DS for Opponent(s) : 1 -
3.
MR DC DAVE for Opponent(s) : 1 -
3.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 09/05 /2011
ORAL
JUDGMENT
The
present revision application has been filed by the
appellants-original defendants for the prayer that the judgment and
order passed in Civil Appeal No. 121/2006 dated 30.12.2010 by the
Appellate Bench of the Small Causes, Ahmedabad (lower appellate
court) confirming the judgment and decree passed in H.R.P. Suit No.
920/98 dated 18.4.2006 may be quashed and set aside on the grounds
stated in the memo of this revision application, inter alia, that
both the courts below have failed to appreciate and consider that in
the chawl there are more than 25-30 rooms and while coming to the
conclusion both the courts below have only considered the oral
evidence of defendant No. 1 that he had left the premises in 1994-95,
but has not considered the entire evidence. It is also contended
that both the courts below have erred in totally relying upon the
oral evidence of the plaintiff, exh. 46. It is also contended that
both the courts have failed to appreciate that as defendant No. 1 had
to go to the native place a mere caretaker in possession cannot be
said to be a tenant and therefore they have committed a grave error.
It is also contended that both the courts below have failed to
appreciate that defendant No. 1 was a mill worker and on closure of
mill he had gone to the native place which would not amount to
subletting unless there is a specific evidence.
2. Learned
counsel Mr. Gandhi referred to the judgment of both the courts below
and also the documentary evidence which has been discussed and
submitted that the HRP suit was decreed on the grounds of
(i)
arrears of rent
(ii) subletting
(iii)
suitable accommodation acquired by the tenant
Learned
counsel Mr. Gandhi submitted that as stated in the written statement,
rent up to 1993 was paid and Application No. 894/93 for the standard
rent was also filed, an amount of Rs. 1620/- was deposited as per the
court’s order. Learned counsel Mr. Gandhi therefore submitted that
this ground would not have much relevance and it was not pressed as
per the purshis.
3. Learned
counsel Mr. Gandhi submitted that therefore the main ground for the
decree is subletting. For that purpose he referred to exh. 45 as
well as exh. 82 the evidence of one Hiralal, exh. 84 defendants’
evidence and also exh. 81 report of the Court Commissioner. He
submitted that though both the courts below have come to the
conclusion about subletting on the premise that defendant No. 1 had
gone to the native place and in fact he has not occupied the premises
and he has let out to the sub-tenant, defendant No. S. However,
learned counsel Mr. Gandhi submitted that both the courts have failed
to appreciate that defendant No. 1 was a mill worker and on closure
of the mill he had gone to his native place for some time which would
not be a ground for eviction when he has given it for taking care to
someone and in fact the evidence like electricity bills produced at
exh. 59-63 suggest that the premises was used and occupied. There is
no other evidence produced with regard to the defendant No. 1 having
alternative accommodation. He submitted that earlier Civil Suit No.
921/98 was filed and it was withdrawn. He submitted that issues were
framed at exh. 37 and the issue with regard to non-user has also been
discussed. Learned counsel Mr. Gandhi submitted that for the purpose
reliance is placed on the oral evidence, but it has not been
appreciated that defendant No. 1 had gone to the native place because
of the closure of the mill and he has also stated that he is working
in a factory.
4. Learned
counsel Mr. Gandhi has referred to and relied upon the judgment in
the case of Manjulaben wd/o Ramanlal Nathalal v. Gajiben wd/o
Ramanlal Purshottam, reported in 2001 (1) GLR 186.
5. Learned
counsel Mr. D.C. Dave submitted that the concurrent finding of facts
arrived at by the courts below may not be disturbed in exercise of
revisional jurisdiction as the scope of revisional jurisdiction is
limited. Learned counsel Mr. Dave has submitted that in fact
defendant No. 1 has not even filed the written statement which itself
is sufficient to show that he was not occupying and using the
premises, but it was sublet to defendant No. 2. Learned counsel Mr.
Dave submitted that it is well settled that unless the findings are
perverse, it may not be disturbed merely because the other view is
possible. He therefore submitted that the present revision
application may not be entertained.
6. In
view of the rival submissions, it is required to be considered
whether the present revision application can be entertained or not.
7. It
is well accepted that the scope of exercise of revisional
jurisdiction is limited and even though the revision is under sec.
29(2) of the Rent Act which empowers the High Court to satisfy itself
whether the judgment of the lower appellate court is according to law
or not, however, at the same time, it has also been made clear that
the revisional jurisdiction cannot be equated with the appellate
jurisdiction. Though the submissions have been made by learned
counsel Mr. Gandhi that if the court below has failed to appreciate
material and evidence which goes to the root of the matter, then it
would be permissible for the High Court to examine.
8. In
fact, sec. 29(2) of the Rent is an enabling provision for the High
Court to satisfy that the decision was arrived at construing and
interpreting the provision of law properly and applying the
principle of law, the facts and evidence correctly. In other words,
it refers to the application of proper law and interpreting the
provision of law and/or document and evidence on record. Therefore,
re-appreciation of evidence will not be within the scope and ambit of
exercise of revisional jurisdiction.
9. A
useful reference can be made to the judgment of the Hon’ble Apex
Court in the case of Patel Vanik Himatlal and ors. v. Patel
Mohanlal Muljibhai, reported in AIR 1989 SC 3325, which
has referred to the scope and ambit of sec. 29(2) of the Bombay Rent
Act. It has also considered the earlier judgment of the Hon’ble apex
court reported in (1987) 3 SCC 538=AIR 1987 SC 1782. Para 5 of the
said judgment reads as under:
“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 ?”
This
clearly suggests about the scope and ambit and it is further clearly
laid down that unless the courts below have misdirected in applying
the proper law or in construing the provision of law which goes to
the root of the matter, the exercise of revisional jurisdiction would
not be justified.
10. In the
facts of the present case, a close scrutiny of the evidence as well
as the discussion made in the judgment of both the courts below
clearly suggests that they have considered the evidence for the
purpose of appreciating the issue regarding subletting or non-use by
petitioner No. 1, original defendant No. 1. Admittedly, no written
statement has been filed by defendant No. 1. As admitted by defendant
No. 1 himself in his evidence, he had gone to the native place after
closure of the mill. Though it has been contended that he has been
doing the business of cooking, the report of the court commissioner
clearly suggests that there are no such vessels. On the other hand,
it has also been stated by defendant No. 1 in his evidence that he
was working in a factory of which he cannot give the name of the
owner and there is no other evidence with him. Admittedly, the wife
and the son reside at the native place and have agricultural
operations there. The report of the court commissioner also refers
to repair work of the radio, TV sets which is done by defendant No. 2
who has been admittedly using and occupying the premises.
11. Therefore,
considering the provisions of sec. 13(i)(k) of the Rent Act which has
also been discussed referring to the judgments of the High Court by
the lower appellate court, it clearly establishes that the premises
were not used by defendant No.1, the tenant himself, and the criteria
for sec. 13(i)(k) was fulfilled. There is a specific observation
that defendant No. 1 has admitted that he has handed over the key of
the said premises to defendant No. s in the year 1991 and from 1995
to 1999 he has not been using the said premises. It also therefore
suggests that physical possession and control of the premises has
been handed over by defendant No. 1-tenant to defendant No. 2. This
aspect is further discussed with reference that defendant No. 2 has
been doing the work of repairing TV sets in his house. Thus, as
required under law, it is necessary that there should be divesting of
exclusive possession by the tenant in favour of sub-tenant.
12. It is
well-accepted that in order to prove tenancy or sub-tenancy two
ingredients are required to be established :
(i)exclusive
right of possession or interest in the premises,
(ii) right
must be in lieu of payment of some compensation or rent.
When the
exclusive possession has been handed over for long period as
discussed, it would amount to subletting and therefore the conclusion
arrived at by both the courts below cannot be said to be erroneous.
13. Therefore,
the findings arrived at by both the courts below as discussed in the
judgments cannot be said to be erroneous which would call for any
interference in exercise of revisional jurisdiction. Therefore, the
present revision application deserves to be rejected and accordingly
stand rejected. Notice is discharged. No order as to costs.
(Rajesh H.
Shukla J.)
FURTHER
ORDER
After the
judgment was pronounced, learned counsel Mr. Gandhi submitted that
some time may be granted to hand over vacant and peaceful possession
of the suit premises in question till December, 2011. The learned
advocate appearing on behalf of learned counsel Mr. Dave has no
objection provided an undertaking to that effect is filed.
Therefore, time is granted, by consent, to hand over vacant and
peaceful possession of the suit premises in question till 31.12.2011.
However, the petitioner shall file an undertaking to the effect that
he will hand over vacant and peaceful possession of the suit premises
without fail to the respondent landlord on or before 31.12.2011 and
the time is therefore granted for vacating the premises on such
undertaking which shall be filed within a week in this court in these
proceedings.
(Rajesh H.
Shukla, J.)
(hn)
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