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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 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 ?
=========================================================
MARIAMBIBI
WD/O OF YUSUFBHAI - Applicant(s)
Versus
SABIRBHAI
MUSAJI CHHIPA - Opponent(s)
========================================================= Appearance
:
MR
MB GANDHI for
Applicant(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5,1.2.6 MR KV
SHELAT for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 26/11/2010
ORAL
JUDGMENT
1. Heard
learned advocate Mr.M.B.Gandhi for petitioner and learned advocate Mr.K.V.Shelat for respondent.
2. R
& P from Courts below has been received by this Court.
3. The
petitioner - original plaintiff has expired on 25.4.1997. Thereafter, heirs and legal representatives of deceased petitioner are brought on record by filing Civil Application No.7271 of 1997 where this Court has passed an order on 18.11.2005.
4. Present
Civil Revision Application is preferred by landlord. The HRP Suit was filed by landlord has been dismissed. Against which, appeal was preferred by landlord which has also been dismissed. Thereafter, present Civil Revision Application is preferred by landlord under Section 29(2) of the Bombay Rent Act.
5. The
HRP Suit No.4137 of 1981 was filed by landlord against respondent - tenant for recovery of vacant possession of suit premises and Rs.2040.40 ps. rent is to be recovered from tenant towards arrears of rent / mesne profit, municipal tax and notice expenses. According to case of plaintiff, defendant was let out suit premises of plaintiff at monthly rent of Rs.25/- plus taxes to be borne by tenant. The tenant was irregular in payment of rent and he paid rent to plaintiff due upto 31.7.1975. It is alleged by plaintiff that defendant was tenant in arrears of rent since 1.8.1975 to 31.10.1975 and he was also in arrears of monthly tax amount Rs.115.40 ps. and defendant tenant neglected to pay up said dues of plaintiff though demanded for and so was liable to be evicted from suit premises on that ground. The further ground was that plaintiff required suit premises for bonafide and reasonably for a personal use and occupation. According to plaintiff, greater hardship would be caused to him by refusal to pass eviction decree in his favour than the defendant by passing eviction decree against him. The registered notice dated 1.7.1981 served to defendant tenant wherein he was called upon to pay all arrears of rent and hand over vacant possession of suit premises to plaintiff but, defendant failed to comply with suit notices given by plaintiff. Therefore, suit has been filed by plaintiff against defendant. The defendant - tenant has filed written statement vide Exh.8 denying averments made in plaint. The defendant tenant raised dispute about standard rent of suit premises and requested to the Court to fix its standard rent according to law and also denied allegation about arrears of rent and also denied bonafide requirement of suit premises for personal use and occupation of plaintiff. The trial Court vide Exh.9 framed issues in Para.3. The trial Court has come to conclusion that tenant is not in arrears of rent for more than six months and also not neglected to make payment of rent due within one month of receipt of notice.
6. Learned
advocate Mr.Shah submitted that notice dated 1.7.1981, against which upto 30.6.1981 regular monthly rent was paid by tenant to plaintiff. Therefore, Issue No.1 has been decided against plaintiff and standard rent and contractual rent has been fixed at Rs.12/- per month and due rent has been found to Rs.48/-. The hardship issue has been decided in favour of defendant and bonafide requirement of plaintiff for his personal use and occupation is found to be proved. However, it has been held that plaintiff is not entitled decree for eviction. The plaintiff was examined vide Exh.15. The Jenabbibi Kutubduddin was examined at Exh.32 and Ikbal Yusufbhai was examined at Exh.33 and husband of Jenabbibi was also examined at Exh.34. Except that no other witness was examined by plaintiff. The defendant himself examined at Exh.39 and one Mahmadbhai Hhakimji was examined at Exh.42. The liability of municipal taxes was with tenant. One rent note was prepared between both parties while hiring suit room from plaintiff. The monthly rent of Rs.12/- was paid by tenant upto 30.6.1981 and notice issued by plaintiff dated 1.7.1981 calling upon tenant to pay arrears of rent. Therefore, at the time of issuing notice to tenant, rent was not found to be due in favour of plaintiff. Therefore, after receiving notice from plaintiff, a reply was given by tenant at Exh.26 to plaintiff within one month from date of receiving notice Exh.19 from plaintiff. Therefore, trial Court has come to conclusion that case of plaintiff is governed by Section 12(3)(b) of Rent Act. The money order of rs.480/- was sent by tenant to plaintiff which was refused by plaintiff as per Exh.40 and Exh.41. The plaintiff himself admitted the fact that tax of suit room was to be borne by him. The family members of plaintiff as per his evidence is in all 11 having six sons where Mahmad Sherif died about 2 to 3 months back at the time of giving evidence by plaintiff. According to evidence of plaintiff, out of six sons, three sons are married and they are residing with their wives and wives of three sons, are alive. On the basis of evidence, trial Court has come to conclusion that plaintiff's evidence which are found from record, it is quite reasonable to believe that plaintiff and his two married sons cannot live comfortably or conveniently in one room and they are in need of at least one more room so trial Court has come to conclusion that plaintiff has proved on record that he required suit room bonafidely and reasonably for his personal use and occupation. But question of hardship has been decided in favour of defendant by trial Court considering evidence on record. The trial Court has appreciated oral evidence of Janabbibi at Exh.34 which does not establish the fact that alternative accommodation is available to defendant. The trial Court has considered Section 13(2) of Rent Act and come to conclusion that if the decree of eviction is passed against tenant, then greater hardship would be caused to defendant. If decree of eviction is not passed in favour of plaintiff, then there is no such great hardship would be caused to plaintiff. The plaintiff is already in possession of one room of his sister Jenabbibi Exh.34. Therefore, trial Court has positively come to conclusion that greater hardship would cause to defendant if order of eviction is passed against defendant. Accordingly, trial Court has dismissed the suit while delivering judgment and decree on 23.7.1986.
7. The
landlord has challenged aforesaid judgment and decree passed by trial Court in Civil Appeal No.156 of 1986 before appellate bench of Small Causes Court, Ahmedabad. The tenant has not filed any cross objection in appeal. Therefore, appellate Court has observed that finding in respect to reasonable and bonafide personal requirement in favour of plaintiff remains biding to both parties. Therefore, question of hardship only is to be examined by appellate Court in aforesaid appeal.
7.1 The
appellate Court has considered evidence of defendant tenant that there are 8 members in family consisting of 2 daughters, 2 sons and defendant himself, wife and his mother as well as his brother and his wife is also residing with him and their ration card is also common. The said ration card was not produced on record by defendant. Therefore, appellate Court has come to conclusion that in family of defendants, 7 members are residing together in suit room. The appellate Court has also considered that more family members are residing in the premises does not necessarily follow that greater hardship would be caused to plaintiff. The appellate Court has also considered condition of the house. The appellate Court has considered various decisions in respect to deciding question of hardship either to tenant or landlord while considering question of bonafide requirement for personal use and occupation of landlord. The appellate Court has given detailed reasons in support of its conclusion in Para.20, 21 and 22 which are quoted as under :
"20. The
last decision relied by Mr.Ahmadi is in the case of Smt.Gyanvati v. 12th Addl. District Judge, reported in 1993 (1) RCR 243. It is held that under the provisions of the Act the landlord is not under obligation to offers alternative accommodation to the tenant but if the offers the same should be liberally construed. It is also held that if the landlord does not offer alternative accommodation he cannot be penalized and his claim cannot be thrown out on that account. Now, here in the case before us, the offer is made and it is proved that no such accommodation is available. It is also proved that no other accommodation is also available. Considering this evidence with the conduct of the plaintiff it is held that the requirement of the plaintiff is not reasonable. So considering the entire set of facts in this suit it is held that the hardship by passing the decree is great than by refusing the same. It cannot be argued that merely because reasonable and bonafide requirement is established the decree should be passed. The Court has to consider the question of hardship and even if there is personal and bonafide requirement but if the greater hardship is caused to the tenant the decree cannot be passed. So, this decision is also not very useful in the facts and circumstances of the present case.
21. Mr.V.G.Shelat
has relied on the decision in the case of Ranchhodlal v. Natvarlal, reported in 9 GLR 920. This decision refers to the provisions of sub-section 2 of Section 13 of the Bombay Rent Act and it is held that the words "is available" refer to the present i.e. the availability must be one in present." So even when there is availability of such accommodation the Court has to consider the same and find out whether it is available at present and whether the greater hardship would be caused by passing the decree or not. So, in the present case, no such premises is available at all. As per the evidence on record and as already stated considering the conduct of the plaintiff and the evidence on record the greater hardship is held to be caused to the tenant if the decree for eviction is passed.
22. Mr.Shelat
also relied on the decision in the case of in case of J.V.Kansara v. M.M.Tailor reported in 1993 (1) GLR 46 wherein it is held that Section 13(2) of Rent Act is mandatory and Court also must consider whether decree for the part of the premises would serve the purpose. Now there is no dispute that the court must consider the question of hardship and in the present case before us there is only one room and there is no scope for any decree for a part of the premises. So, this decision is not useful on facts. Accordingly, we decide point no.2 in the negative and pass the following order.
ORDER
1. The
appeal is dismissed with costs."
8. I
have considered submissions made by both learned advocates and also perused judgment and decree passed by trial Court as well as appellate Court. I have also perused the R & P received from Courts below. The facts remain that tenant was not in arrears on the date on which registered legal notice dated 1.7.1981 was served to tenant. The tenant has given reply at Exh.26 to notice at Exh.19 to plaintiff within one month from date of notice at Exh.19. Therefore, Section 12(3)(b) of Rent Act is governed the case of parties. The standard rent dispute has been raised by tenant at the time of filing reply to notice at Exh.19 at Exh.26. Therefore, only question remained to be decided by trial Court that whether plaintiff required suit premises bonafidely and reasonably for personal use and occupation or not. That finding of fact has been decided in favour of plaintiff but, simultaneously question of hardship has to be examined under Section 13(2) of Rent Act. This aspect in detail considered by trial Court after appreciating evidence on record. The trial Court has also considered Section 13(1)(g) which also required to consider greater hardship caused to whom in case if eviction order is passed in favour of landlord. Similarly, appellate Court has also considered in detail various decisions relied by both parties and come to conclusion that looking to evidence on record while re-appreciating the same and considering decision of this Court in case of J.V.Kansara v. M.M.Tailor reported in 1993 (1) GLR 46 wherein it is held that Section 13(2) of Rent Act is mandatory and Court also must consider whether decree for part of premises would serve the purpose. The appellate Court after appreciating same evidence, come to conclusion that it may be that more family members are available in the family of plaintiff but, defendant - tenant having only one room, therefore, there is no scope for any decree for a part of room. Therefore, appellate Court has come to conclusion that tenant is not having any alternative accommodation and therefore, comparing hardship both landlord and tenant, after appreciating evidence on record, come to conclusion that if decree of eviction is passed against tenant, then it will cause greater hardship to the tenant and therefore, appeal preferred by landlord has been dismissed.
9. The
reasoning given by Courts below based on record and also after appreciating evidence which found from record. The appellate Court has also rightly re-appreciated evidence which was already appreciated by trial Court. The plaintiff has not proved that tenant having another room for alternative accommodation. However, bonafide and personal requirement of use of premises looking to family members of plaintiff has been proved. Against which, mandatory provisions of Section 13(2) of Rent Act has been rightly appreciated by both below Courts. Therefore, contentions raised by learned advocate Mr.Gandhi cannot be accepted. In this case, there is concurrent finding of facts from Courts below. After considering reasoning given by Courts below as well as appreciation of evidence by both Courts below, according to my opinion, both Courts below have not committed any error of law or view taken by Courts below is not contrary to law. This Court is having a limited jurisdiction under Section 29(2) of Rent Act, cannot re-appreciate the evidence which was already appreciated by Courts below. The concurrent finding of fact, this Court cannot disturb in revision application. It is clear from record and evidence that comparative hardship has been established in favour of defendant, though Section 13(1)(g) of Rent Act has been proved by plaintiff. But mandatory provisions of Section 13(2) of Rent Act has been rightly examined and decided by Courts below on the basis of evidence which found from record and such finding cannot consider to be baseless and perverse. Therefore, in such circumstances, the view taken by Apex Court in case
of Patel Valmik Himatlal and Others v. Patel Mohanlal Muljibhai, reported in (1998) 7 SCC 383 in Para.4, 5 and 6 are relevant, which is quoted as under :
"4. Section
29(2) of the Bombay Rents Act as applicable to Gujarat amendment reads as follows :-
"29(2).
No further appeal shall lie against any decision in appeal under sub-section (1) but the High Court may, for the purpose of satisfying itself that any such decision in appeal was according to law, call for the case pass such order with respect thereto as it thinks fit."
5. The
ambit and scope of the said section came up for consideration before this Court in Helper Girdharbhai vs. Saiyed Mohmad Mirasaheb Kadri and others: (1987) 3 SCC 538 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 ?
6. The
powers under section 29(2) are revisional powers with which the High Court is clothed. It empowers the High Court to correct errors which may make the decision contrary to law and which errors go to the root of the decision but it does not vest the High Court with the power to re-hear the matter and re-appreciate the evidence. The mere fact that a different view is possible on re-appreciation of evidence cannot be a ground for exercise of the revisional jurisdiction."
10. In
view of above observations made by Apex Court and considering reasoning and finding given by Courts below which found according to law and no error of law committed by Courts below which requires interference by this Court while exercising power under Section 29(2) of Rent Act. Therefore, there is no substance in present Civil Revision Application. Accordingly, present Civil Revision Application is dismissed. Rule is discharged. Interim relief, if any, granted earlier stands vacated. No order as to costs. R & P to be sent back forthwith to Courts below.
(H.K.RATHOD,J.)
(vipul)
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