{"id":252549,"date":"2011-05-12T00:00:00","date_gmt":"2011-05-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/labhshanker-vs-kamlashanker-on-12-may-2011"},"modified":"2017-10-05T16:34:59","modified_gmt":"2017-10-05T11:04:59","slug":"labhshanker-vs-kamlashanker-on-12-may-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/labhshanker-vs-kamlashanker-on-12-may-2011","title":{"rendered":"Labhshanker vs Kamlashanker on 12 May, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Labhshanker vs Kamlashanker on 12 May, 2011<\/div>\n
Author: Rajesh H.Shukla,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCRA\/340\/1998\t 10\/ 10\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCIVIL\nREVISION APPLICATION No. 340 of 1998\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE RAJESH H.SHUKLA\n \n \n=========================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=========================================\n \n\nLABHSHANKER\nMANISHANKAR JOSHI & 2 - Applicant(s)\n \n\nVersus\n \n\nKAMLASHANKER\nBHOGILAL PANDYA & 2 - Opponent(s)\n \n\n========================================= \nAppearance\n: \nMR INDRASHANKAR JOSHI, PARTY-IN-PERSON\nfor Applicant(s) : 1, 3, \nMR KV SHELAT for Opponent(s) : 1 -\n3. \n=========================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE RAJESH H.SHUKLA\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 12\/05\/2011 \n\n \n\n \n \nORAL\nJUDGMENT<\/pre>\n
\tThe
\npresent revision application has been filed by the
\npetitioners-original plaintiffs, one of whom appears as
\nparty-in-person, for the prayer that the judgment and order passed by
\nthe Appellate Bench of the Small Causes Court, Ahmedabad in Regular
\nCivil Appeal No. 128\/96 dated 25.11.1997 may be quashed and set aside
\non the grounds stated in the application, inter alia, that the
\njudgment and order passed by the Appellate Bench is based on
\ninference, not warranted by facts and on presumption not permitted by
\nlaw. It is also contended that the courts below have failed to
\nappreciate that as the plaintiffs had used the terrace, open land
\ncompound, latrine and therefore the possession cannot be disturbed by
\nthe landlord.  It is also contended that the courts below, after
\nholding that so long as the plaintiff is in possession as tenant of
\nthe suit premises, the defendants should not make any construction on
\nthe terrace except  by following the procedure provided under the
\nBombay Rent Act, has grossly erred in dismissing the suit.  It is
\nalso contended that the courts below have failed to appreciate that
\nif any construction is made on the terrace or open land, the rights
\nof the petitioners-original plaintiffs would be affected.  It  is
\nalso contended that the courts below have erred in holding that it
\ncannot  be said that when one portion was rented to one tenant, he
\nwas also rented the terrace.\n<\/p>\n
2.\tPetitioner
\nNo. 2, Mr. Indrashankar Joshi has appeared as party-in-person and
\nmade the submissions and has also given written submissions.  The sum
\nand substance of the submissions are that the respondent No.1\n<\/p>\n
-landlord has mislead the court.  It is contended that an amount of
\nRs. 2900\/- was paid by cheque dated 19.12.93 and thereafter the
\naccount was closed and thereafter when money order was sent for the
\nrent it was not accepted and therefore it cannot said that the
\npetitioner-tenant is in arrears of rent for 20 years. It is also
\ncontended that by misleading the court and also in violation of the
\nmunicipal laws, the respondent-landlord has made the construction by
\nmaking construction of flats for allotment which has caused prejudice
\nto the rights of the petitioners as they are entitled to use other
\nportion like the compound as well as the terrace.  It is also
\nemphasised by party-in-person Mr. Joshi that he was attacked by the
\nlandlord and in spite of the order of status-quo, the common bathroom
\nas well as staircase etc. have been destroyed and construction of
\nflat has been made.  He also emphasised that in Lok Adalat the
\ndefendant was fined Rs. 1.25 as he was a senior citizen.  However,
\nthe party-in-person has stated that the defendant has made illegal
\nconstruction.  He has referred to both the judgments.  Mr. Joshi has
\nsubmitted that he is ready and willing to make payment of the
\noutstanding rent and he may be granted permission for repairing the
\npremises in his occupation as well as use of the terrace.\n<\/p>\n
3.\tLearned
\ncounsel Mr. K.V. Shelat has referred to the papers and submitted that
\nas stated in the affidavit filed by the respondents by the Secretary
\nof Muktimonohar Members’  Association, a registered NTC for the
\nflats, the petitioners who are the tenants of one room, kitchen with
\nWC is not disturbed and except this portion the petitioners are not
\nthe tenant of any other portion.  The petitioners have not paid the
\nrent since years for which outstanding amount of Rs. 4,020\/- is also
\nmentioned with the mesne profit.  It is also contended that the
\npetitioners are peacefully enjoying the premises, that is, one room
\nkitchen with WC and chokdi facility which is in their possession.  It
\nis also contended that the Appellate Bench has given a right to the
\nrespondents-owner  that as and when they intended to make
\nconstruction above the said property, they may apply under sec. 13
\n(A) of the Bombay Rent Act<\/a> and can make construction.  He submitted
\nthat internal plaster or repairing is not objected and they may carry
\nout such work at their cost. However, the terrace was never forming
\npart of the property let out to them and therefore they cannot claim
\nany right for use and enjoyment of the terrace.  Learned counsel Mr.
\nShelat submitted that when liberty has been reserved for further
\nconstruction by the court, the same may not be disturbed.\n<\/p>\n
4.\tIn
\nview of rival submissions, it is required to be considered whether
\nthe present revision application can be entertained or not.\n<\/p>\n
5.\tIt
\nis well accepted that the scope of revisional jurisdiction is limited
\nand normally the concurrent findings of facts are not required to be
\ndisturbed.  Though the revision Is under sec. 29(2) of the Bombay
\nRent Act, still, the scope would be confined to revisional
\njurisdiction and not the appellate jurisdiction as it cannot be
\nequated with appellate jurisdiction.  The Hon’ble Apex Court in a
\njudgment in the case of Patel
\nValmik Himatlal and ors. v. Patel Mohanlal Muljibhai<\/a> (dead) through
\nLrs., reported in AIR
\n1998 SC 3325, has referred to this aspect and has observed,<\/p>\n
“5.\n<\/p>\n
The ambit and scope of the said section came up for consideration
\nbefore this Court in Helper Girdharbhai v. Saiyed Mohmad Mirasaheb
\nKadri<\/a>, (1987) 3 SCC 538 : (AIR 1987 SC 1782) and after referring to a
\ncatena of authorities, Sabyasachi Mukharji, J. drew a distinction
\nbetween the appellate and the revisional jurisdictions of the Courts
\nand opined that the distinction was a real one. It was held that the
\nright to appeal carries with it the right of rehearing both on
\nquestions of law and fact, unless the statute conferring the right to
\nappeal itself limits the rehearing in some way, while the power to
\nhear a revision is generally given to a particular case is decided
\naccording to law. The Bench opined that although the High Court had
\nwider powers than that which could be exercised under Section 115 of
\nthe Code of Civil Procedure, yet its revisional jurisdiction could
\nonly be exercised for a limited purpose with a view to satisfying
\nitself that the decision under challenge before it is according to
\nlaw. The High Court cannot substitute its own findings on a question
\nof fact for the findings recorded by the Courts below on reappraisal
\nof evidence. Did the High Court exceed its jurisdiction ?”\n<\/p>\n
6.\tThe
\nprovisions of sec. 29(2) of the Bombay Rent Act empowers or enables
\nthe High Court to satisfy itself that any decision in appeal was
\naccording to law for which it may call for the record and
\nproceedings.  Therefore, ti would imply that it empowers the High
\nCourt to correct the errors which may make the decision contrary to
\nlaw or which errors can go to the root of the matter, but it does not
\nempower the High Court to re-hear the matter or re-appreciate the
\nevidence.\n<\/p>\n
7.\tThe same
\nview has been reiterated in a subsequent judgment in the case of N.
\nEswari w\/o Adinarayana v. K. Swarjya Lakshmi, w\/o Late K.V.L.N.A.
\nSastry, reported in (2009) 9 SCC 678, where the Hon’ble Apex
\nCourt has also observed referring to the earlier judgments that
\nconcurrent findings of facts by the courts below should not be dealt
\nwith or supplemented by independent assessment of the evidence by the
\nHigh Court.\n<\/p>\n
8.\tOne
\nof the petitioners-original plaintiffs filed H.R.P. Suit No. 4094\/86
\nfor permanent injunction against the defendants.  The suit came to be
\ndismissed by the Small Causes Court, Ahmedabad, vide judgment and
\norder dated 3.8.1996.  Therefore, Civil Appeal No. 129\/96 was
\npreferred before the Appellate Bench of the Small Causes Court and
\nthe said appeal came to be dismissed vide judgment and order dated
\n25.11.1997.\n<\/p>\n
9.\tAs
\ncan be seen from the judgment of the Appellate Bench, while
\ndismissing the appeal it was clarified that if the respondents or
\nanyone claiming through or under them desire to make any construction
\nas contemplated under section13(A) of the Bombay Rent Act<\/a>, they must
\nobtain necessary permission before making such construction.\n<\/p>\n
10.\tAs
\nit is discussed in the judgment, the original landlord, defendant No.
\n1 had sold the other portion of the property to defendant No.
\n2-Association which constructed the flats and there is also a
\ndiscussion with regard to the provisions of sec. 13(A) which has
\nreference to the use of terrace rights.  The original plaintiffs, the
\npetitioners herein are the tenants  of premises bearing M.C. No. 63\/2
\nand it was claimed that they had the right to use  the terrace as
\nwell as the open land, bathroom, latrine, store room etc.  However,
\nafter appreciation of evidence, it has been clearly found that the
\npetitioners-original plaintiffs are the tenants of the premises which
\nhas been let out to them which consisted of one room, kitchen with
\nWC.  However, the claim regarding the terrace right was not accepted
\nand the Appellate Bench has clearly observed,<\/p>\n
“This
\nclaim made in the deposition therefore cannot be accepted and this
\nevidence cannot be said to be reliable.  It is stated that terrace
\nwas used to accommodate the guest of the tenants and the children
\nwere also using the terrace for studying. The alleged shed on the
\nterrace is also of iron sheets.  There is no commissioner’s report
\npointed out before us.”\n<\/p>\n
It
\nis in these circumstances, while dismissing the appeal, the
\nobservation has been made with regard to permitting the defendants to
\nmake construction after obtaining necessary permission as required
\nunder sec.  13(A).\n<\/p>\n
11.\tTherefore,
\nthe submission made by party-in-person Mr. Indrashankar Joshi about
\nthe terrace right cannot be accepted that he has exclusive right of
\nthe terrace.  but it will be subject to the ultimate decision which
\nmay be given by the Small Causes Court when such an application is
\nmade for further construction by the defendants.\n<\/p>\n
12.\tThere
\nis no dispute that the rent has not been paid. It is required to be
\nmentioned that though the petitioner has stated that he has made the
\npayment by cheque, he has not produced any evidence that the amount
\nhas been debited from the account, but, on the contrary, he states
\nthat the said account has been closed, meaning thereby, after giving
\nthe cheque, in fact, it has not been received  or credited in the
\naccount of the landlord.\n<\/p>\n
13.\tBe
\nthat as it may, the total amount outstanding is Rs. 4,020\/- .  This
\namount is required to be paid and on payment of such amount, his
\npossession would not be disturbed.  As stated by learned counsel Mr.
\nShelat. they have not disturbed his possession in respect of the
\ntenanted portion of the premises.  It is also clear that flats have
\nbeen constructed and members are residing.\n<\/p>\n
14.\tTherefore,
\nanother aspect which is left is repair of the tenanted portion which
\nis in use and occupation of the petitioners-tenants who are required
\nto be permitted to carry out the repairs at their cost. They may
\ncarry out the repairs, but they cannot make any claim for the terrace
\nrights.\n<\/p>\n
15.\tIt
\nis also required to be mentioned that HRP Suit No. 98\/2004 filed by
\none of the petitioners herein, Mr. Indrashankar Joshi, has been
\nallowed and the defendants, their agents, servants, particularly
\ndefendant No. 2, has been restrained from taking forcible possession
\nof the suit premises as per the judgment and order dated 5.10.2006.
\nTherefore, there is no question of disturbing the possession of the
\nportion used and occupied by the petitioners.  In the said judgment
\nin HRP Suit No. 98\/2004 it has been clearly observed that plaintiff’s
\napprehension of the forcible possession is believable and therefore
\non appreciation of evidence it has been allowed.  The report of the
\ncourt commissioner is also produced on record in HRP Suit No. 98\/2004
\nto establish the portion in the possession and occupation of the
\npetitioner-tenant and the same shall not be disturbed.\n<\/p>\n
16.\tTherefore,
\nwith the aforesaid clarification, the present revision application
\ndeserves to be rejected as it does not call for any interference with
\nthe order passed by the Appellate Bench of the Small Causes in
\nRegular Civil Appeal No. 128\/96 dated 25.11.1997.  However, it would
\nbe subject to the aforesaid clarification that their  possession
\nshall not be disturbed and for further construction it will be
\naccording to the orders that may be passed by the Small Causes Court
\nunder sec. 13(A) on an application that may be made by the
\nrespondents.  The petitioner shall also deposit the amount of Rs.
\n4,020\/- towards the outstanding rent and shall regularly pay the
\nrent.\n<\/p>\n
\tThe
\napplication accordingly stands disposed of as rejected with the
\naforesaid clarification.  Rule is discharged. No order as to costs.\n<\/p>\n
(Rajesh
\nH. Shukla, J.)<\/p>\n
(hn)<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Labhshanker vs Kamlashanker on 12 May, 2011 Author: Rajesh H.Shukla,&Nbsp; Gujarat High Court Case Information System Print 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-252549","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nLabhshanker vs Kamlashanker on 12 May, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/labhshanker-vs-kamlashanker-on-12-may-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Labhshanker vs Kamlashanker on 12 May, 2011 - 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