[1.0] Present Civil Revision Application under Section 29(2) of the Bombay Rent Act has been preferred by the petitioner herein – original defendant to quash and set aside the impugned judgment and decree passed by the learned Civil Judge (Junior Division), Kalavad in Regular Civil Suit No.50 of 2005 as well as the impugned judgment and order dated 26.04.2012 passed by the learned Appellate Court – learned 7th Additional District Judge, Jamnagar in Regular Civil Appeal No.99 of 2007 by which the learned Appellate Court has dismissed the said Appeal confirming the judgment and decree passed by the learned trial Court decreeing the suit and passing the eviction decree under Section 13(1)(k) of the Bombay Rent Act i.e. on the ground of nonuser of the suit premises by the petitioner herein – original defendant for more than six months preceding the date of filing of the suit. [2.0] That the respondent herein – original plaintiff instituted the Regular Civil Suit No.50 of 2005 against the petitioner herein – original defendant in the Court of learned Civil Judge (Junior Division), Kalavad for recovery of the possession / eviction decree mainly on the ground that there is nonuser of the suit premises by the defendant – tenant for more than six months preceding the date of filing of the suit without reasonable cause. That having served with the summonses, the defendant appeared before the learned trial Court and also engaged the advocate and despite sufficient opportunity given did not file the written statement. Therefore, the right of the defendant to file the written statement came to be closed by the learned trial Court by passing the order dated 24.10.2005.
[2.1] That the learned trial Court framed the issues. That the plaintiff submitted his examination in chief on affidavit at Exh.17 and produced documentary evidences at Exhs.18 to 26. The plaintiff submitted the closing pursis at Exh.30. The defendant did not thereafter appeared before the learned trial Court and did not contest the suit. Therefore, on the basis of the evidence on record, the learned trial Court held all the issues in favour of the plaintiff inclusive of nonpayment of rent by the tenant for more than six months; also the issue with respect to nonuser of suit premises by the defendant for more than six months before the date of instituting the suit and consequently the learned trial Court decreed the suit by judgment and decree dated 26.04.2007.
[2.2] Feeling aggrieved and dissatisfied by the judgment and decree dated 26.04.2007 in Regular Civil Suit No.50 of 2005, the petitioner herein preferred Appeal before the learned District Judge, Jamnagar. It is required to be noted at this stage that as such the learned trial Court did not rely upon the panchnama prepared by the Court Commissioner on the ground that the same was not exhibited. However, the learned advocate appearing on behalf of the petitioner – original appellant made a grievance before the learned Appellate Court that the learned trial Court ought to have relied upon the panchnama prepared by the Court Commissioner and therefore, the learned Appellate Court at the instance of the petitioner herein – original appellant considered the panchnama prepared by the Court Commissioner and even relying upon the panchnama prepared by the Court Commissioner, the learned Appellate Court held that there is a nonuser of the suit premises by the defendant – tenant for more than six months preceding the date of filing of the suit without reasonable cause and consequently by impugned judgment and order dated 24.06.2012 has dismissed the said Appeal confirming the judgment and decree passed by the learned trial Court.
[2.3] Feeling aggrieved and dissatisfied by the impugned judgment and order passed by both the Courts below the petitioner herein – original defendant has preferred the present Civil Revision Application under Section 29(2) of the Bombay Rent Act.
[3.0] Shri Premal Rachh, learned advocate appearing on behalf of the petitioner – original defendant has vehemently submitted that both the Courts below have materially erred in relying upon the deposition / examination in chief of the original plaintiff. It is submitted that as such as the copy of examination in chief of the plaintiff was not given to the petitioner and/or his advocate, there is a noncompliance of the Order XVIII Rule 4 of the Code of Civil Procedure, 1908 and therefore, when there is no other evidence on record, the finding given by both the Courts below holding that there is nonuser of the suit premises by the defendant cannot be sustained. Therefore, it is requested to admit/allow the present Civil Revision Application on the ground that there is a non compliance of order XVIII Rule 4 of the Code of Civil Procedure, 1908.
[3.1] Shri Rachh, learned advocate appearing on behalf of the original defendant has further submitted that the learned Appellate Court has materially erred in relying upon the panchnama prepared by the Court Commissioner which was not exhibited. Therefore, it is submitted that when the panchnama prepared by the Court Commissioner was not exhibited, it was not open for the learned Appellate Court to rely upon the same and to hold that there is non user of the suit premises by the defendant – tenant for more than six months preceding the date of filing of the suit.
Making above submissions, it is requested to allow the / admit the present Civil Revision Application.
[4.0] Heard Shri Rachh, learned advocate appearing on behalf of the original defendant at length and considered the impugned judgment and order passed by both the Courts below. At the outset it is required to be noted that as such the petitioner – original defendant though appeared in the suit and despite number of opportunities were given did not file the written statement and contest the suit. Thereafter, considering the evidence on record, the learned trial Court has held that there is nonuser of the suit premises by the defendant for more than six months preceding the date of the suit and therefore, consequently the learned trial Court decreed the suit on the ground of nonuser as well as on the ground of arrears of rent for more than six months.
[4.1] It appears that the learned trial Court at the relevant time did not rely upon the panchnama prepared by the Court Commissioner as the same was not exhibited. However, in an Appeal filed by the petitioner herein – original defendant – appellant, a grievance was made before the learned Appellate Court that the learned trial Court has materially erred in not relying upon and/or not considering the panchnama prepared by the Court Commissioner. It appears that the said grievance was made by the learned advocate appearing on behalf of the petitioner herein before the learned Appellate Court presumably as the petitioner was of the opinion that the said panchnama would support the case of the petitioner – original defendant. Considering the grievance made by the learned advocate appearing on behalf of the petitioner – original defendant – appellant, the learned Appellate Court considered the panchnama prepared by the Court Commissioner however, the same came to be found against the defendant and the panchnama prepared by the Court Commissioner had gone against the petitioner and therefore, now a grievance is made by the petitioner that the learned trial Court ought not to have relied upon the panchnama prepared by the Court Commissioner as the same was not exhibited. Once the learned Appellate Court relied upon and/or considered the panchnama prepared by the Court Commissioner at the request of the learned advocate appearing on behalf of the petitioner and the grievance raised by the petitioner – original appellant that the learned trial Court had materially erred in not considering the panchnama prepared by the Court Commissioner, thereafter it is not open for the petitioner to make a grievance now that the learned Appellate Court ought not to have considered the panchnama prepared by the Court Commissioner when the same had now gone against him. Under the circumstances, the grievance made by the learned advocate appearing on behalf of the petitioner in the present revision application that the learned Appellate Court has materially erred in considering the panchnama prepared by the Court Commissioner cannot be accepted.
[4.2] From the panchnama prepared by the Court Commissioner and other documentary evidences, it has come on record from the panchnama prepared by the Court Commissioner that even the water connection was also broken and there was no material / goods by which it can be said that the petitioner is doing the business of selling seeds etc. It has also come on record that petitioner has no license from the Agriculture Produce Market Committee to do the business in the seeds etc. Even in the electricity bill produced by the petitioner himself of AprilMay, 2005, it is mentioned that “property is locked”. Under the circumstances, considering the aforesaid undisputed facts and circumstances when the learned trial Court has held that there is nonuser of the suit premises by the defendant – tenant for more than six months and consequently when the learned trial Court has passed the eviction decree against the petitioner and when the same is confirmed by the learned Appellate Court, the same is not required to be interfered with by this Hon'ble Court under Section 29(2) of the Bombay Rent Act.
[4.3] As stated herein above, as such the petitioner did not contest the suit by filing the written statement and/or even by leading the evidence to prove that he was using the suit premises. On the contrary the evidence led by the plaintiff establishes the nonuser of the suit premises by the defendant – tenant for more than six months.
[4.4] Now, so far as the grievance made by the petitioner with respect to noncompliance of Order XVIII Rule 4 of the Code of Civil Procedure, 1908 and not giving the copy of the examination in chief of the plaintiff to the petitioner and/or his advocate is concerned, it is required to be noted that the petitioner – original defendant did not even file the written statement and did not even appeared thereafter in the proceedings and/or contested the suit. Even otherwise on other independent evidences inclusive of the panchnama prepared by the Court Commissioner which is considered even by the learned Appellate Court at the instance of the petitioner herein and as stated herein above it is proved beyond doubt that there is nonuser of the suit premises by the petitioner – tenant for more than six months without reasonable cause and therefore, on the aforesaid ground the judgment and decree passed by the learned trial Court confirmed by the learned Appellate Court is not required to be quashed and set aside.
[5.0] In view of the above and for the reasons stated above, present Civil Revision Application fails and the same deserves to be dismissed and is, accordingly, dismissed. No costs.
(M.R. Shah, J.) menon