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CRA/1213/1997 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
REVISION APPLICATION No. 1213 of 1997
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 ?
=========================================
VELABAI
WD/O CHATRABHUJ GORDHANBHAI - Applicant(s)
Versus
HIRABEN
WD/O DECD.AMBALAL LALUBHAI LUHAR & 7 - Opponent(s)
=========================================
Appearance
:
MR MB
GANDHI for
Applicant(s) : 1,
MR BHARAT B KANSARA for Opponent(s) : 1 -
8.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 31/01/2011
ORAL
JUDGMENT
The
present revision application has been filed under sec. 29(2) of the
Bombay Rent Act r/w sec. 115 of the Code of Civil Procedure.
2. The
facts of the case, briefly stated, are that the original
plaintiffs-landlords preferred H.R.P. Suit No. 4832/82 before the
Small Causes Court, Ahmedabad for possession on various grounds
including the ground of sec. 12(3)(a) as well as sec. 13(1)(k)
regarding non-user. The Small Causes Court, Ahmedabad, vide judgment
and order dated 30.1.1989 decreed the suit on appreciation of
evidence and defendant No. 1-petitioner herein was directed to hand
over possession. Regular Civil Appeal No. 51/89 came to be preferred
before the Appellate Bench of the Small Causes Court by the
petitioner herein, original defendant No. 1 (tenant). The said appeal
came to be disposed of by the Appellate Bench of the Small Cause
Court vide judgment and order dated 15.7.1997 confirming the order
passed by the trial court observing that the petitioner, original
defendant No. 1 had not used the premises for more than six months
immediately preceding the date of filing of the suit without any
reasonable cause and the evidence has been found to that effect. It
is also observed that there is no reason to disturb the findings
given by the trial Judge in respect of sec. 13(1)(k) of the Bombay
Rent Act and there is a discussion based on the evidence with regard
to other aspects which have been confirmed by the Appellate Bench.
3. Though
learned counsel Mr. Gandhi appearing for the petitioner has made an
effort to submit referring to the judgment of both the courts below
that they have failed to appreciate with regard to non-user, he
submitted that both the courts have misdirected considering the case
under sec. 13(1)(k). He submitted that if it was a case of
sub-letting, then the question of non-user would not arise and both
the courts below have failed to appreciate this aspect. He has also
referred to the judgments and submitted that the documentary evidence
is also not appreciated. He submitted that the evidence of Yogeshbhai
that somebody else is using the premises is accepted. Even in that
case, it would be a case of subletting and not non-user and therefore
this evidence has not been appreciated properly. He submitted that
even with regard to non-user, both the courts below have failed to
appreciate that the small room was occupied and used by Bhagyoday
Cotton Company and it cannot be said that there is any non-user. He
submitted that there was an agency for which business was carried on.
4. Though
the submissions have been made, in view of the clear findings on the
issues raised including the non-user which has been confirmed by the
Appellate Bench of the Small Causes Court which has been discussed in
detail, there is no reason to interfere with the concurrent findings
of fact given by both the courts below with detailed discussion about
the evidence. Therefore, without any further elaboration,
considering the fact that the concurrent findings are given on
appreciation of evidence, which cannot be said to be perverse or
illegal or resulting into miscarriage of justice, the present
revision application cannot be entertained.
5. It
is well-accepted that the scope of exercise of revisional
jurisdiction is very limited. The concurrent findings arrived at by
both the courts below cannot be said to be perverse or illegal
resulting in any kind of irregularity or miscarriage of justice and
therefore the present revision application deserves to be rejected
and accordingly stands rejected. Rule is discharged with no order as
to costs. Interim relief stands vacated.
(Rajesh
H. Shukla, J.)
(hn)
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