IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No. 173 of 2007 For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 3 2 To be referred to the Reporter or not ? NO Whether their Lordships wish to see the fair copy of the judgment ? NO Whether this case involves a substantial question 4 of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= ABHISHEK RAVINDRABHAI PATEL & 1 - Applicant(s) Versus PRABHUDAS RANCHHODBHAI CONTRACTOR - Opponent(s) =========================================================
Appearance :
MR SI NANAVATI SR.ADV. FOR MR DEVANG NANAVATI for Petitioners MR DR BHATT for Respondent No.1, MR PRAMTHESH DAVE FOR MR ANIL S DAVE for Respondent No.1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 02/11/2012 CAV JUDGMENT 1.00. Present Civil Revision Application, under section 29(2) of the Bombay Rent Act, has been preferred by the petitioners herein – original defendants / tenants challenging the Judgement and Order & decree passed by the learned appellate court - learned Presiding Officer, 5th FTC, Anand in Regular Civil Appeal No. 38 of 2007 dtd.1/11/2007 by which the learned District Court has dismissed the appeal preferred by the petitioners herein – original defendants / tenants confirming the judgement and decree passed by the learned trial – learned 3rd Additional Senior Civil Judge, Anand in Regular Civil Suit No.263 of 1998 dtd.30/3/2007 passing eviction decree and allowing the Cross-Objections preferred by the original plaintiff - landlord, by quashing and setting aside the finding given by the learned trial court with respect to bonafide requirement of original plaintiff – landlord.
2.00. Facts leading to the present Civil Revision Application in nutshell, are as under:-
2.01. The original plaintiff – landlord instituted Regular Civil Suit No.263 of 1998, against the petitioners herein – original defendants / tenants in the court of learned Civil Judge, Senior Division, Anand for recovery of possession / eviction decree on the ground of change of user; bonafide and personal requirement of the landlord and making change in the suit premises without prior permission of the landlord i.e. making permanent change / construction.
2.02. At the outset, it is required to be noted that the tenanted suit premises is consisting of two floors i.e. ground floor and first floor. It was the case on behalf of the plaintiff that as per the terms of tenancy, the ground floor was required to be used for commercial use / office purpose and the first floor was required to be used for residential purpose only. It was the case on behalf of the plaintiff that despite the above, the tenants started using the first floor for commercial purpose / office purpose in breach of the tenancy. It was also the case on behalf of the plaintiff – landlord that the suit premises is required for bonafide and personal use for himself and for his sons. It was also the case on behalf of the plaintiff – landlord that the tenants have made permanent construction / changes in the suit premises without prior permission of the landlord and therefore also have committed breach of tenancy and therefore, it was requested to pass decree for possession / eviction decree on the ground of change of user; on the ground of personal and bonafide requirement of the landlord for himself and for his son and on the ground of making permanent construction / changes in the suit premises without the prior permission of the landlord i.e. under sections 13(1) (a), 2(b) and 13(1)(g) of the Bombay Rent Act.
2.03. That the suit was resisted by the defendants by filing Written Statement at Ex.16. The tenants denied the allegations and averments made in the suit. It was the case on behalf of the tenants that they have started using the first floor for office purpose with the knowledge of the landlord. It was also the case on behalf of the tenants that necessary changes are made with the prior permission / consent of the mother of the plaintiff. It was the specifically denied that by making any changes, there is damage to the suit property. It was also specifically denied that the suit premises is required for bonafide and personal requirement of his son for the business of graphics and therefore, it was requested to dismiss the suit.
2.04. That the learned trial court framed the issues at Ex.17. Both the sides led evidence, oral as well as documentary.
2.05. That on appreciation of evidence, the learned trial court held the issue with respect to change of user of the suit premises by the landlord in affirmative and in favour of the landlord. However, held the issues with respect to bonafide and personal requirement of the suit premises by the son of the plaintiff and making permanent construction / changes without prior permission of the landlord in negative i.e. in favour of the tenants and against the plaintiff and consequently by the judgement and decree dtd.30/3/2007 partly allowed the suit by passing eviction under section 13(1)(a) of the Bombay Rent Act on the ground of change of use of the suit premises in breach of tenancy and refused to pass decree on the ground of bonafide and personal requirement of the son of the landlord and on the ground of making permanent construction without prior permission of the landlord.
2.06. Being aggrieved by and dissatisfied with the judgement and decree passed by the learned trial court in passing eviction decree on the ground of change of use of the suit premises by the tenants and in breach of tenancy, petitioners herein – original defendants / tenants preferred Regular Civil Appeal No. 38 of 2007 before the learned District Court, Anand. The original plaintiff also submitted Cross Objections at Ex.10 against the finding given by the learned trial court with respect to bonafide and personal requirement of the suit premises by the son of the plaintiff – landlord.
2.07. That by the impugned judgement and order & decree, the learned appellate court has dismissed the appeal preferred by the petitioners – original defendants - tenants confirming the judgement and decree of conviction passed by the learned trial court. By the impugned judgement and order the learned appellate court has also allowed the Cross- objections submitted by the original plaintiff – landlord with respect to personal and bonafide requirement of the landlord / his son and held the said issue in favour of the landlord by holding that the suit premises is required bonafidely and for personal use of the landlord / his son.
2.08. Being aggrieved by and dissatisfied with the impugned judgement and order passed by the learned appellate court in dismissing the appeal and confirming the judgement and decree passed by the learned trial court in passing eviction decree on the ground of change of use of the suit premises by the tenants as well as the order passed in Cross-Objections, petitioners herein – original defendants / tenants have preferred present Civil Revision Application under Section 29(2) of the Bombay Rent Act.
2.09. At the outset, it is required to be noted that pursuant to the earlier order passed by the learned Single Judge of this Court dtd.23/1/2008, the tenants were directed to handover the possession of the first floor and consequently the tenants have handed over the possession of the first floor to the landlord and the aforesaid order dtd.23/1/2008 passed by the learned Single Judge of this Court has been implemented by the petitioners herein and therefore, this Court is required to consider the dispute with respect to ground floor only.
3.00. Mr.S.I. Nanavati, learned Senior Advocate appearing on behalf of the petitioners herein – original defendants - tenants has vehemently submitted that the learned appellate court has materially erred in holding the issue with respect to bonafide and personal requirement of the landlord in favour of the landlord while allowing the Cross-objections.
3.01. Mr.S.I. Nanavati, learned Senior Advocate appearing on behalf of the petitioners herein – original defendants / tenants has further submitted that the tenants have already handed over the possession of the first floor which was found to be used for office purpose in breach of tenancy and therefore, it is submitted that now the dispute is with respect to ground floor which was required to be used for office / commercial purpose and which was and is being used for the purpose for which it was to be used and for which there is no allegation with respect to breach of tenancy.
3.02. Mr.S.I. Nanavati, learned Senior Advocate appearing on behalf of the petitioners herein – original defendants / tenants has further submitted that as such both the premises i.e. ground floor and first floor, are separate, different and distinct since two different census numbers are given to the ground floor as well as first floor. It is submitted that under the tenancy, both the floors were required to be used for different purpose / use i.e. ground floor for office purpose and first floor for residential use. It is further submitted that there is a different identification with respect to ground floor and first floor and right from the beginning both the floors were required to be used for different purpose/ use and therefore, it is submitted that when the possession of the first floor, which was found to be used for office purpose in breach of tenancy, has been handed over to the landlord and there was no allegation with respect to breach of tenancy with respect to ground floor it is requested to consider the same and quash and set aside the impugned judgement and order passed by both the courts below in passing eviction decree on the ground of change of use. It is submitted that as such there is no change of use so far as ground floor is concerned.
3.03. Mr.S.I. Nanavati, learned Senior Advocate appearing on behalf of the petitioners herein – original defendants / tenants has further submitted that as such both the courts below have not properly appreciated and considered whether partial decree could have been passed or not. It is submitted that now when the possession of the first floor is already handed over, it is requested to consider the question with respect to partial decree and consequently to quash and set aside the impugned judgement and decree with respect to the ground floor.
3.04. Relying upon the decision of the Division Bench of this Court in the case of Bhabhutmal Rikhaji Sharma Versus Manubhai Madhavji Patel, reported in 1980 GLR 242, it is submitted that restrictive decree for possession cannot be passed if ultimately it is found that it has caused breach of such covenant which has resulted into a substantial injury or damage to the property.
3.05. Mr.S.I. Nanavati, learned Senior Advocate appearing on behalf of the petitioners herein – original defendants / tenants has further submitted that even while passing decree under Section 13(1)(a) of the Bombay Rent Act i.e. change of use, both the courts below have not considered the question of hardship.
3.06. Mr.S.I. Nanavati, learned Senior Advocate appearing on behalf of the petitioners herein – original defendants / tenants has heavily relied upon the decision of the Hon’ble Supreme Court in the case of Daya Krishna Mehra Versus Nasreen Fazalbah and Others, reported in AIR 1981 S.C. 1394; in the case of Rahman Jco Wangnoo Versus Ram Chand and others, reported in AIR 1978 S.C. 413, unreported decision of this Court in Civil Revision Application No.186 of 2008 as well as decision of Calcutta High Court in the case of Krishna Das Nandy Versus Bidham Chandra Roy, reported in AIR 1959 Calcutta 181; as well as in the case of Haripada Samanta Pramanthanath Samanta, a Firm Versus Bansidhar Premsukh Das, a Firm, reported in AIR 1967 Calcutta 255, in support of his submission with respect to partial decree.
Making above submissions and relying upon above decisions it is requested to consider the issue with respect to change of use and to consider passing the partial decree and to quash and set aside the impugned judgement and decree passed by the learned trial court confirmed by the learned appellate court with respect to ground floor.
3.07. Mr.S.I. Nanavati, learned Senior Advocate appearing on behalf of the petitioners herein – original defendants / tenants has further submitted that the learned appellate court has materially erred in holding the issue with respect to personal and bonafide requirement of the landlord and/or his son in favour of the landlord. It is submitted that the finding given by the learned trial court with respect to bonafide and personal requirement of the landlord / his son was on appreciation of evidence and therefore the same was not required to be interfered with by the learned trial court. It is submitted that the learned appellate court has not properly appreciated and considered the fact that as such the landlord received possession of another premises just adjacent to the suit premises and therefore, while considering the issue with respect to bonafide and personal requirement, the learned appellate court was required to consider question of hardship which may be caused to the tenants, if eviction decree is passed on the ground of personal and bonafide requirement of the landlord. It is submitted that while considering the issue with respect to bonafide and personal requirement of the landlord/his son the learned appellate court has materially erred in considering the fact that the tenants have permanently shifted to USA. It is submitted that while considering the issue with respect to bonafide and personal requirement of the suit premises by the landlord and passing eviction decree on the aforesaid ground, as such the learned appellate court was required to consider the question of comparative hardship if decree is passed on the ground of bonafide and personal requirement of the landlord.
3.08. Mr.S.I. Nanavati, learned Senior Advocate appearing on behalf of the petitioners herein – original defendants / tenants has relied upon the decision of Hon’ble Supreme Court in the case of Hasmat Rai and another Versus Raghunath Prasad, reported in AIR 1981 S.C. 1711, in support of his request to consider the subsequent event of acquiring another premises by the landlord which was just adjacent to suit premises, while considering bonafide and personal requirement of the landlord.
3.09. Mr.S.I. Nanavati, learned Senior Advocate appearing on behalf of the petitioners herein – original defendants / tenants has also relied upon the decision of Hon’ble Supreme Court in the case of Badrinarayan Chunilal Bhutada Versus Govindram Ramgopal Mundada, reported in (2003) 2 S.C.C. 320 in support of his submission to consider the issue with respect to partial decree for eviction i.e. ground floor only.
Making above submissions and relying upon above decisions it is requested to allow the present Civil Revision Application and to quash and set aside the impugned judgement and decree passed by the learned trial court confirmed by the learned appellate court with respect to ground floor.
4.00. Present Revision Application is opposed by Mr.Pramthesh Dave, learned advocate appearing on behalf of the plaintiff – landlord. It is submitted that as such there are concurrent finding of fact given by both the courts below with respect to change of use by the tenants and the same are on appreciation of evidence which are not required to be interfered with by this Court in exercise of the revisional jurisdiction.
4.01. Mr.Dave, learned advocate appearing on behalf of the plaintiff – landlord has further submitted that as such the tenants have accepted and admitted that there was a change of use so far as first floor is concerned, as though the same was required to be used for residential purpose, the same has been used for office / commercial purpose which is found to be in breach of tenancy. It is submitted that as such the tenants have accepted the judgement and decree passed by the learned trial court confirmed by the learned appellate court with respect to first floor as even the learned counsel for the petitioners has requested to consider the decree for possession with respect to ground floor only. It is submitted that as such it is one and common tenancy with respect to both, ground floor and first floor and merely because the tenancy is with respect to ground floor and first floor and under one tenancy two different uses were provided and/or with repsect to ground floor and first floor and/or two census numbers are given, it cannot be said that there are two tenancies and/or the tenancy is different. It is submitted that there is one tenancy with respect to entire premises consisting of ground floor and first floor and if it is found that the part of the tenanted premises is used in breach of the tenancy / premises of the tenancy, decree on the ground of change of use is required to be passed for entire premises and in that case principal of partial eviction decree cannot be applied.
4.02. Mr.Dave, learned advocate appearing on behalf of the original plaintiff / landlord has heavily relied upon the decision of the learned Single Judge of this Court in the case of Hemendrakumar Narayandas Patel and another Versus Mrudulaben Arvindbhai Dave, reported in 2007 (3) GLR 2030 in support of his submission that partly change of user in a premises would entail complete eviction and therefore, it is submitted that when the change of use with respect to first floor has been accepted and admitted by the tenants, eviction decree is required to be passed with respect to the entire suit premises and therefore, no illegality has been committed by the learned trial court in passing eviction decree on the ground of change of user and the same is rightly confirmed by the learned appellate court.
4.03. Now, so far as the finding given by the learned appellate court with respect to personal and bonafide requirement of the suit premises by the landlord for his son is concerned, it is submitted by Mr.Dave, learned advocate appearing on behalf of the plaintiff / landlord that the learned appellate court has rightly held the said issue in favour of the landlord. It is submitted that the said finding given by the learned appellate court is on re-appreciation of evidence and the same is permissible and the same is not required to be interfered with and/or re-appreciated by this Court in exercise of revisional jurisdiction. It is submitted that the learned appellate court has rightly observed and held that the the suit premises is required by the landlord for his son for his graphic business. It is submitted that as the suit premises is on the main road and therefore, the same will be more convenient to the landlord for his son. It is submitted that so far as the acquisition of another premises by the landlord during the pendency of the proceedings is concerned, the said premises, of which possession was acquired by the landlord, is on the backside of the suit premises and the suit premises is on the main road and therefore, the suit premises will be more convenient to the landlord and his son. Therefore, it is submitted that the learned appellate court has not committed any error and/or illegality in passing eviction decree on the ground of bonafide and personal requirement of premises by the landlord for his son.
By making above decisions and relying upon the above decision it is requested to dismiss the present Civil Revision Application.
5.00. Heard the learned advocates appearing on behalf of the respective parties at length.
5.01. At the outset, it is required to be noted that as such there was only one tenancy / rent note executed between the landlord and the tenant with respect to the suit premises consisting of ground floor and first floor. It is an admitted position that the ground floor was required to be used only for commercial purpose and first floor was required to be used only for residential purpose. It is an admitted position that there was breach of tenancy with respect to first floor and it was found that the first floor which was required to be used for residential purpose, was used for office / commercial purpose, which was in breach of the tenancy. Therefore, both the courts below have passed the decree on the ground of change of user. As stated above, pursuant to the earlier order passed by the learned Single Judge of this Court dtd.23/1/2008, as the impugned judgement and order and decree passed by both the courts below with respect to eviction decree with respect to first floor was not stayed and the petitioners were directed to handover the possession of the first floor to the landlord and the petitioners have accepted the said order and have handed over the possession of the first floor to the landlord. Therefore, this court is required to consider the impugned judgement and order and decree passed by the learned trial court confirmed by the learned appellate court with respect to ground floor.
5.02. It is the case on behalf of the plaintiff that as two different census numbers are given to the ground floor and first floor and both were to be used for different purpose / use and both the premises can be identified separately and as the ground floor and first floor were separate, different and distinct and therefore, it can be said that there are two different tenancies and therefore, when change of user is found with respect to first floor and there was no allegation with respect to change of user with respect to ground floor, partial decree can be passed with respect to the premises i.e. first floor which was found to be used for the purpose other than for which it was to be used. Therefore, it is the case on behalf of the petitioners that partial decree can be passed on the ground of change of user with respect to first floor. It is also the case on behalf of the petitioners that even while passing eviction decree on the ground of change of user, question with respect to hardship / comparative hardship is required to be considered. The aforesaid seems to be very attractive, but has no substance. Merely because two different census numbers are given and/or the ground floor and first floor might be having different, separate and distinct separate identification and/or there was a different use with respect to ground floor and first floor, by that itself, it cannot be said that there is a separate tenancy with respect to ground floor and first floor. Under the rent note, the premises, consisting of ground floor and first floor, is given on lease / rent to the tenants and therefore, it is a one tenancy only. There is one and single tenancy of a suit premises consisting of ground floor and first floor and therefore, if with respect to part of the suit premises it is found that there is change of user, in the present case, first floor, decree on the ground of change of user for the entire suit premises / tenancy can be passed. When it is found that there is partial change of use with respect to suit premises / tenanted premises, it would entail complete eviction on the ground of change of user. While considering the allegation of change of user and/or question of change of user, what is required to be considered is the entire suit premises / tenanted premises and not part of the premises. Under the circumstances, the contention raised on behalf of the petitioners – original tenants that a partial decree can be passed with respect to first floor only and the impugned judgement and decree passed by the learned trial court confirmed by the learned appellate court while passing eviction decree with respect to ground floor is required to be quashed and set aside, cannot be accepted. When it is found that there was only one rent note with respect to the entire suit premises consisting of ground floor and first floor, merely because ground floor and first floor can be identified separately and/or having different census numbers and with respect to different uses, two different tenancy cannot be presumed.
5.03. Now, so far as the submission made on behalf of the petitioners with respect to partial decree and/or question with respect to hardship if the eviction decree is passed is concerned, when eviction decree is passed on the ground of change of user, the concept of partial decree and/or hardship / comparative hardship cannot be made applicable. The concept and/or principle of partial decree and/or hardship and/or comparative hardship is required to be considered in case eviction decree is to be passed solely on the ground of bonafide and personal requirement of the landlord and not on the ground of passing eviction decree on the ground of change of user.
5.04. Now, so far as the reliance placed upon the decision of Division Bench of this Court in the case of Bhabhutmal Rikhaji Sharma (supra) with respect to restrictive covenant in the rent note is concerned, the aforesaid would not be of any assistance to the petitioners in the facts of the present case. In the case on hand, as stated above, the petitioners have as such accepted the eviction decree passed by the learned trial court with respect to first floor which was found to be used in breach of the tenancy. The only contention raised on behalf of the the petitioners, as stated above, is with respect to partial decree to be passed with respect to ground floor, on the ground stated hereinabove.
5.05. Now, so far as the decision of Hon’ble Supreme Court in the case of Daya Krishna Mehra (supra), Rahman Jco Wangnoo (supra) as well as decision of Calcutta High Court in the case of Daya Krishna Mehra (supra) and Haripada Samanta Pramanthanath Samanta supra) are concerned, the same also shall not be of any assistance to the facts of the present case. As stated above, the concept and/or question and/or issue with respect to partial decree shall not be applicable with respect to change of user and same can be applicable with respect to eviction decree on the ground of bonafide and personal requirement of the suit premises by the landlord. As stated above, once it is found that there is change of user, even with respect to part of the suit premises / tenanted premises, eviction decree is required to be passed with respect to entire tenanted / suit premises.
5.06. Now, so far as the reliance placed on the unreported decision of this Court in Civil Revision Application No. 186 of 2008 is concerned, in fact the same would go against the petitioners rather than supporting them. In the said decision, eviction decree was passed on the ground that the tenants have acquired alternative suitable accommodation and on the ground of change of user and so far as change of user is concerned, it was the contention on behalf of the tenant that there was a change of user with respect to half portion of the tenanted premises and therefore, no decree can be passed for the entire suit premises on the ground of change of user and this court negatived the said contention by observing that moment it is proved that there is change of user even with respect to portion of the tenanted premises, in that case, decree on the ground of change of user can be passed.
Under the circumstances, no illegality has been committed by the learned trial court in passing eviction decree with respect to suit premises on the ground of change of user and the same is rightly confirmed by the learned appellate court.
5.07. Now, so far as the finding given by the learned appellate court on the issue with respect to bonafide and personal requirement of suit premises by the landlord for his son for graphic business is concerned, it appears that no illegality has been committed by the learned appellate court in holding the issue with respect to bonafide requirement of the landlord for his son. The contention on behalf of the petitioners that during the pendency of the proceedings, the landlord has acquired another premises where son of the landlord can start business of graphic is concerned, it is required to be noted that it is the case of the landlord that the said alternative premises acquired by the landlord is on the rear portion of the suit premises and the suit premises is on the main road and therefore, the suit premises would be more convenient to the landlord for his son for doing graphic business.
5.08. In any case, as stated above, the judgement and decree passed by the learned trial court on the ground of change of user, confirmed by the learned appellate court, is just and proper and same is not required to be interfered with by this Court in exercise of revisional jurisdiction.
6.00. In view of the above and for the reasons stated above, present Revision Application fails and the same deserves to be dismissed and is accordingly dismissed. Rule is discharged. Ad-interim relief granted earlier, if any, stands vacated forthwith. No costs.
[M.R. SHAH, J.] After pronouncement of the present Judgement and Order, the learned advocate appearing on behalf of the petitioner has requested to stay the present Judgement and Order so as to enable the petitioner to approach the Hon'ble Supreme Court.
In the facts and circumstances of the case, execution, operation and implementation of the present judgement and order is stayed upto 10/12/2012.
rafik [M.R. SHAH, J.]