{"id":58854,"date":"2010-11-26T00:00:00","date_gmt":"2010-11-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mariambibi-vs-heard-on-26-november-2010"},"modified":"2018-09-23T17:19:40","modified_gmt":"2018-09-23T11:49:40","slug":"mariambibi-vs-heard-on-26-november-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mariambibi-vs-heard-on-26-november-2010","title":{"rendered":"Mariambibi vs Heard on 26 November, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Mariambibi vs Heard on 26 November, 2010<\/div>\n
Author: H.K.Rathod,&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\/352\/1996\t 12\/ 12\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. 352 of 1996\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE H.K.RATHOD\n \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 be\n\t\t\treferred 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 \n\nMARIAMBIBI\nWD\/O OF YUSUFBHAI - Applicant(s)\n \n\nVersus\n \n\nSABIRBHAI\nMUSAJI CHHIPA - Opponent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nMB GANDHI for\nApplicant(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5,1.2.6  \nMR KV\nSHELAT for Opponent(s) :\n1, \n=========================================================\n\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 H.K.RATHOD\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 26\/11\/2010 \n\n \n\n \n \nORAL\nJUDGMENT<\/pre>\n
1.\tHeard
\nlearned advocate Mr.M.B.Gandhi for petitioner and learned advocate
\nMr.K.V.Shelat for respondent.\n<\/p>\n
2.\tR
\n& P from Courts below has been received by this Court.\n<\/p>\n
3.\tThe
\npetitioner – original plaintiff has expired on 25.4.1997.
\nThereafter, heirs and legal representatives of deceased petitioner
\nare brought on record by filing Civil Application  No.7271 of 1997
\nwhere this Court has passed an order on 18.11.2005.\n<\/p>\n
4.\tPresent
\nCivil Revision Application is preferred by landlord. The HRP Suit was
\nfiled by landlord has been dismissed. Against which, appeal was
\npreferred by landlord which has also been dismissed. Thereafter,
\npresent Civil Revision Application is preferred by landlord under
\nSection 29(2) of the Bombay Rent Act.\n<\/p>\n
5.\tThe
\nHRP Suit No.4137 of 1981 was filed by landlord against respondent –
\ntenant for recovery of vacant possession of suit premises and
\nRs.2040.40 ps. rent is to be recovered from tenant towards arrears of
\nrent \/ mesne  profit, municipal tax and notice expenses. According to
\ncase of plaintiff, defendant was let out suit premises of plaintiff
\nat monthly rent of Rs.25\/- plus taxes to be borne by tenant. The
\ntenant was irregular in payment of rent and he paid rent to plaintiff
\ndue upto 31.7.1975. It is alleged by plaintiff that defendant was
\ntenant in arrears of rent since 1.8.1975 to 31.10.1975 and he was
\nalso in arrears of monthly tax amount Rs.115.40 ps. and defendant
\ntenant neglected to pay up said dues of plaintiff though demanded for
\nand so was liable to be evicted from  suit premises on that ground.
\nThe further ground was that plaintiff required suit premises for
\nbonafide and reasonably for a personal use and occupation. According
\nto plaintiff, greater hardship would be caused to him by refusal  to
\npass eviction decree in his favour than the defendant by passing
\neviction decree against him. The registered notice dated 1.7.1981
\nserved to defendant tenant wherein he was called upon to pay all
\narrears of rent and hand over vacant possession of  suit premises to
\nplaintiff but, defendant failed to comply with suit notices given by
\nplaintiff. Therefore, suit has been filed by plaintiff against
\ndefendant. The defendant – tenant has filed written statement
\nvide Exh.8 denying averments made in plaint. The defendant tenant
\nraised  dispute about standard rent of suit premises and requested to
\nthe Court to fix its standard rent according to law and also denied
\nallegation about arrears of rent and also denied bonafide requirement
\nof suit premises for personal use and occupation of plaintiff. The
\ntrial Court vide Exh.9 framed  issues in Para.3. The trial Court has
\ncome to conclusion that tenant is not in arrears of rent for more
\nthan six months and also not neglected to make payment of rent  due
\nwithin one month of receipt of notice.\n<\/p>\n
6.\tLearned
\nadvocate Mr.Shah submitted that notice dated 1.7.1981, against which
\nupto 30.6.1981 regular monthly rent was paid by tenant to plaintiff.
\nTherefore, Issue No.1 has been decided against plaintiff and standard
\nrent and contractual rent has been fixed at Rs.12\/- per month and due
\nrent has been found to Rs.48\/-. The hardship issue has been decided
\nin favour of defendant and bonafide requirement of plaintiff for his
\npersonal use and occupation is found to be proved. However, it has
\nbeen held that plaintiff is not entitled decree for eviction. The
\nplaintiff was examined vide Exh.15. The Jenabbibi Kutubduddin was
\nexamined at Exh.32 and Ikbal Yusufbhai was examined at Exh.33 and
\nhusband of Jenabbibi was also examined at Exh.34. Except that no
\nother witness was examined by plaintiff. The defendant himself
\nexamined at Exh.39 and one Mahmadbhai Hhakimji was examined at
\nExh.42. The liability of municipal taxes was with tenant. One rent
\nnote was prepared between both parties while hiring  suit room from
\nplaintiff. The monthly rent of Rs.12\/- was paid by tenant upto
\n30.6.1981 and notice issued by plaintiff dated 1.7.1981 calling upon
\ntenant to pay arrears of rent. Therefore, at the time of issuing
\nnotice to tenant, rent was not found to be due in favour of
\nplaintiff. Therefore, after receiving notice from plaintiff, a reply
\nwas given by tenant at Exh.26 to plaintiff within one month from date
\nof receiving notice Exh.19 from plaintiff. Therefore, trial Court has
\ncome to conclusion that case of plaintiff is governed by Section
\n12(3)(b) of Rent Act. The money order of rs.480\/- was sent by tenant
\nto plaintiff which was refused by plaintiff as per Exh.40 and Exh.41.
\nThe plaintiff himself admitted the fact that tax of suit room was to
\nbe borne by him. The family members of  plaintiff as per his evidence
\nis in all 11 having six sons where Mahmad Sherif died about 2 to 3
\nmonths back at the time of giving evidence by plaintiff.  According
\nto evidence of plaintiff, out of six sons, three sons are married and
\nthey are residing with their wives and wives of three sons, are
\nalive. On the basis of evidence, trial Court has come to conclusion
\nthat plaintiff’s evidence which are found from record, it is quite
\nreasonable to believe that plaintiff and his two married sons cannot
\nlive comfortably or conveniently in one room and they are in need of
\nat least one more room so trial Court has come to conclusion that
\nplaintiff has proved on record that he required suit room bonafidely
\nand reasonably for his personal use and occupation. But question of
\nhardship has been decided in favour of defendant by trial Court
\nconsidering  evidence on record. The trial Court has appreciated oral
\nevidence of Janabbibi at Exh.34 which does not establish the fact
\nthat alternative accommodation is available to defendant. The trial
\nCourt has considered Section 13(2) of Rent Act and come to conclusion
\nthat if the decree of eviction is passed against tenant, then greater
\nhardship would be caused to defendant. If decree of eviction is not
\npassed in favour of plaintiff, then there is no such great hardship
\nwould be caused to plaintiff. The plaintiff is already in possession
\nof one room of his sister Jenabbibi Exh.34. Therefore, trial Court
\nhas positively come to conclusion that greater hardship would cause
\nto defendant if order of eviction is passed against defendant.
\nAccordingly, trial Court has dismissed the suit while delivering
\njudgment and decree on 23.7.1986.\n<\/p>\n
7.\tThe
\nlandlord has challenged aforesaid judgment and decree passed by trial
\nCourt in Civil Appeal No.156 of 1986 before appellate bench of Small
\nCauses Court, Ahmedabad. The tenant has not filed any cross objection
\nin appeal. Therefore, appellate Court has observed that finding in
\nrespect to reasonable and bonafide personal requirement in favour of
\nplaintiff remains biding to both parties. Therefore, question of
\nhardship only is to be examined by appellate Court in aforesaid
\nappeal.\n<\/p>\n
7.1\tThe
\nappellate Court has considered evidence of defendant tenant that
\nthere are 8 members in family consisting of 2 daughters, 2 sons and
\ndefendant himself, wife and his mother as well as his brother and his
\nwife is also residing with him and their ration card is also common.
\nThe said ration card was not produced on record by defendant.
\nTherefore, appellate Court has come to conclusion that in family of
\ndefendants, 7 members are residing together in suit room. The
\nappellate Court has also considered that more family members are
\nresiding in the premises does not necessarily follow that greater
\nhardship would be caused to plaintiff. The appellate Court has also
\nconsidered condition of the house. The appellate Court has considered
\nvarious decisions in respect to deciding question of hardship either
\nto tenant or landlord while considering question of bonafide
\nrequirement for personal use and occupation of landlord. The
\nappellate Court has given detailed reasons in support of its
\nconclusion in Para.20, 21 and 22 which are quoted as under :\n<\/p>\n
“20.\tThe
\nlast decision relied by Mr.Ahmadi is in the case of Smt.Gyanvati v.
\n12th Addl. District Judge, reported in 1993 (1) RCR 243.
\nIt is held that under the provisions of the Act the landlord is not
\nunder obligation to offers alternative accommodation to the tenant
\nbut if the offers the same should be liberally construed. It is also
\nheld that if the landlord does not offer alternative accommodation he
\ncannot be penalized and his claim cannot be thrown out on that
\naccount. Now, here in the case before us, the offer is made and it is
\nproved that no such accommodation is available. It is also proved
\nthat no other accommodation is also available. Considering this
\nevidence with the conduct of the plaintiff it is held that the
\nrequirement of the plaintiff is not reasonable. So considering the
\nentire set of facts in this suit it is held that the hardship by
\npassing the decree is great than by refusing the same. It cannot be
\nargued that merely because reasonable and bonafide requirement is
\nestablished the decree should be passed. The Court has to consider
\nthe question  of hardship and even if there is personal and bonafide
\nrequirement but if the greater hardship is caused to the tenant the
\ndecree cannot be passed. So, this decision is also not very useful in
\nthe facts and circumstances of the present case.\n<\/p>\n
21.\tMr.V.G.Shelat
\nhas relied on the decision in the case of Ranchhodlal v. Natvarlal,
\nreported in 9 GLR 920. This decision refers to the provisions of
\nsub-section 2 of Section 13 of the Bombay Rent Act and it is held
\nthat the words “is available” refer to the present i.e.
\nthe availability must be one in present.” So even when there is
\navailability of such accommodation the Court has to consider the same
\nand find out whether it is available at present and whether the
\ngreater hardship would be caused by passing the decree or not. So, in
\nthe present case, no such premises is available at all. As per the
\nevidence on record and as already stated considering the conduct of
\nthe plaintiff and the evidence on record the greater hardship is held
\nto be caused to the tenant if the decree for eviction is passed.\n<\/p>\n
22.\tMr.Shelat
\nalso relied on the decision in the case of in case of J.V.Kansara v.
\nM.M.Tailor reported in 1993 (1) GLR 46 wherein it is held that
\nSection 13(2) of Rent Act is mandatory and Court also must consider
\nwhether decree for the part of the premises would serve the purpose.
\nNow there is no dispute that the court must consider the question of
\nhardship and in the present case before us there is only one room and
\nthere is no scope for any decree for a part of the premises. So, this
\ndecision is not useful on facts. Accordingly, we decide point no.2 in
\nthe negative and pass the following order.\n<\/p>\n
ORDER<\/p>\n
1.\tThe
\nappeal is dismissed with costs.”\n<\/p>\n
8.\tI
\nhave considered submissions made by both learned advocates and also
\nperused judgment and decree passed by trial Court as well as
\nappellate Court. I have also perused the R & P received from
\nCourts below. The facts remain that tenant was not in arrears on the
\ndate on which registered legal notice dated 1.7.1981 was served to
\ntenant. The tenant has given reply at Exh.26 to notice at Exh.19 to
\nplaintiff within one month from date of notice at Exh.19. Therefore,
\nSection 12(3)(b) of Rent Act is governed the case of parties. The
\nstandard rent dispute has been raised by tenant at the time of filing
\nreply to notice at Exh.19 at Exh.26. Therefore, only question
\nremained to be decided by trial Court that whether plaintiff required
\nsuit premises bonafidely and reasonably for personal use and
\noccupation or not. That finding of fact has been decided in favour of
\nplaintiff but, simultaneously  question of hardship has to be
\nexamined under Section 13(2) of Rent Act. This aspect in detail
\nconsidered by trial Court after appreciating evidence on record. The
\ntrial Court has also considered Section 13(1)(g) which also required
\nto consider greater hardship caused to whom in case if eviction order
\nis passed in favour of landlord. Similarly, appellate Court has also
\nconsidered in detail various decisions relied by both parties and
\ncome to conclusion that looking to evidence on record while
\nre-appreciating the same and considering decision of this Court in
\ncase of J.V.Kansara v. M.M.Tailor reported in 1993 (1) GLR 46 wherein
\nit is held that Section 13(2) of Rent Act is mandatory and Court also
\nmust consider whether decree for part of premises would serve the
\npurpose. The appellate Court after appreciating same evidence, come
\nto conclusion that it may be that more family members are available
\nin the family of plaintiff but, defendant – tenant having only
\none room, therefore, there is no scope for any decree for a part of
\nroom. Therefore, appellate Court has come to conclusion that tenant
\nis not having any alternative accommodation and therefore, comparing
\nhardship both landlord and tenant, after appreciating evidence on
\nrecord, come to conclusion that if decree of eviction is passed
\nagainst tenant, then it will cause greater hardship to the tenant and
\ntherefore, appeal preferred by landlord has been dismissed.\n<\/p>\n
9.\tThe
\nreasoning given by Courts below based on record and also after
\nappreciating evidence which found from record. The appellate Court
\nhas also rightly re-appreciated evidence which was already
\nappreciated by trial Court. The plaintiff has not proved that tenant
\nhaving another room for alternative accommodation. However, bonafide
\nand personal requirement of use of premises looking to family members
\nof plaintiff has been proved. Against which, mandatory provisions of
\nSection 13(2) of Rent Act has been rightly appreciated by both below
\nCourts. Therefore, contentions raised by learned advocate Mr.Gandhi
\ncannot be accepted. In this case, there is concurrent finding of
\nfacts from Courts below. After considering reasoning given by Courts
\nbelow as well as appreciation of evidence by both Courts below,
\naccording to my opinion, both Courts below have not committed any
\nerror of law or view taken by Courts below is not contrary to law.
\nThis Court is having a limited jurisdiction under Section 29(2) of
\nRent Act, cannot re-appreciate the evidence which was already
\nappreciated by Courts below. The concurrent finding of fact, this
\nCourt cannot disturb in revision application. It is clear from record
\nand evidence that comparative hardship has been established in favour
\nof defendant, though Section 13(1)(g) of Rent Act has been proved by
\nplaintiff. But mandatory provisions of Section 13(2) of Rent Act has
\nbeen rightly examined and decided by Courts below on the basis of
\nevidence which found from record and such finding cannot consider to
\nbe baseless and perverse. Therefore, in such circumstances, the view
\ntaken by Apex Court in case
\nof Patel Valmik Himatlal and Others v. Patel Mohanlal Muljibhai,
\nreported in (1998) 7 SCC 383 in Para.4, 5 and 6 are relevant,  which
\nis quoted as under :\n<\/p>\n
“4.\tSection
\n29(2)  of the Bombay Rents Act as applicable to Gujarat amendment
\nreads as follows :-\n<\/p>\n
“29(2).\n<\/p>\n
No further appeal shall lie against  any   decision  in  appeal under
\nsub-section (1) but the High Court  may,   for the  purpose  of
\nsatisfying\t itself that  any  such decision in appeal was according
\nto law, call\tfor the  case pass such order with\t respect thereto  as
\nit thinks fit.”\n<\/p>\n
5.\tThe
\nambit\tand scope  of the  said section came up for consideration
\nbefore  this Court  in Helper  Girdharbhai vs. Saiyed Mohmad
\nMirasaheb Kadri and others: (1987) 3 SCC 538 and after  referring to
\na catena of authorities, Sabyasachi Mukharji, J.  drew a  distinction
\nbetween  the appellate and the revisional\tjurisdictions of  the
\ncourts and opined that the distinction was a\treal one. It was held
\nthat the right to appeal  carries with\t it the right of  rehearing
\nboth on questions of law and fact, unless the statute conferring the
\nright to  appeal itself limits the  rehearing in  some way, while the
\n power to  hear a revision is generally given to a particular case
\nis decided  according\tto  law.  The  Bench opined that  although the
\nHigh Court  had wider powers than that which  could be exercised
\nunder Section 115 of the Code of Civil  Procedure, yet  its
\nrevisional  jurisdiction could only be exercised for a limited
\npurpose with\t a  view  to satisfying itself  that the  decision under
\nchallenge before it is according to law. The High Court cannot
\nsubstitute its own findings on a question of fact for the findings
\nrecorded by the courts below on reappraisal of evidence. Did the High
\nCourt exceed its jurisdiction ?\n<\/p>\n
6.\tThe
\npowers under section\t29(2) are  revisional powers with which  the
\nHigh  Court is clothed. It empowers the High Court to correct errors
\nwhich may make the decision contrary to law and which  errors go to
\nthe root of the decision but it does\t not vest  the High  Court with
\nthe power to re-hear the matter  and re-appreciate  the evidence.
\nThe mere fact that a different view\tis possible  on re-appreciation
\nof evidence cannot\t be a  ground for exercise of the revisional
\njurisdiction.”\n<\/p>\n
10.\tIn
\nview of above observations made by Apex Court and considering
\nreasoning and finding given by Courts below which found according to
\nlaw and no error of law committed by Courts below which requires
\ninterference by this Court while exercising power under Section 29(2)
\nof Rent Act.  Therefore, there is no substance in present Civil
\nRevision Application. Accordingly, present  Civil Revision
\nApplication is dismissed. Rule is discharged. Interim relief, if any,
\ngranted earlier stands vacated. No order as to costs. R & P to be
\nsent back forthwith to Courts below.\n<\/p>\n
(H.K.RATHOD,J.)<\/p>\n
(vipul)<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Mariambibi vs Heard on 26 November, 2010 Author: H.K.Rathod,&Nbsp; Gujarat High Court Case Information System Print CRA\/352\/1996 12\/ 12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No. 352 of 1996 For Approval and Signature: HONOURABLE MR.JUSTICE H.K.RATHOD ========================================================= 1 Whether Reporters of Local Papers may be allowed […]<\/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-58854","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nMariambibi vs Heard on 26 November, 2010 - 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\/mariambibi-vs-heard-on-26-november-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mariambibi vs Heard on 26 November, 2010 - 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