IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No. 239 of 2011 With CIVIL APPLICATION No. 759 of 2012 In CIVIL REVISION APPLICATION No. 239 of 2011 For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH sd/ =========================================
========================================= ALPESH CHANDRAKANT THAKKAR & 1 Applicant(s) Versus ASHOK NATVARLAL & 7 Opponent(s) ========================================= Appearance :
MR BJ TRIVEDI for Applicant(s) : 1 2.MR JT TRIVEDI for Applicant(s) : 1 2.MS JIGNASA B TRIVEDI for Applicant(s) : 1 2.
MR AV PRAJAPATI for Opponent(s) : 1 6,6.2.2 7.
None for Opponent(s) : 6, for Opponent(s) : 8, ========================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 26/03/2012 CAV JUDGMENT
1.0 Present Civil Revision Application under Section 29(2) of the Bombay Rents, Hotels and Lodging Houses Control Act, 1947 (hereinafter referred to as the “Act”) has been preferred by the petitioners to quash and set aside the impugned judgment and order passed by the learned Appellate Bench of the Small Causes Court, Ahmedabad on 30.6.2011 passed in Civil Appeal No.68 of 2007 as well as judgment and decree passed by the learned Small Causes Court, Ahmedabad dated 6.2.2007 passed in HRP Civil Suit No. 404 of 2001, by which the learned Small Causes Court has passed decree of possession against the petitioners hereinoriginal defendants and in favour of the plaintiffs on the ground of change of user as well as on the ground of subletting.
2.0 That the respondents hereinoriginal plaintiffs instituted HRP Civil Suit No. 404 of 2001 against the petitioners herein original defendants in the Small Causes Court at Ahmedabad for recovery of the possession on the ground of change of user of suit premises as well as on the ground of subletting alleging inter alia that the suit shop was taken on rent by defendant nos.1 and 2 predecessor to run his cycle business and as per the rent note no other business was permissible. It was alleged that without prior permission in writing from the plaintiffs, defendants made construction and have changed identity of the suit premises. It was further alleged that instead of running cycle business in the suit shop, there were doing the business of selling of Galvanized Pipe, Water Tap, Fittings, Plastic Pipe etc. which is run by the original defendant no.3 and therefore, decree for recovery of possession was sought mainly on the ground of change of user and subletting.
2.1. That the suit was resisted by the defendants no.1 and 2 and defendant no.3. Defendant nos.1 and 2 filed their written statement at Exh.22 and defendant no.3 filed his written statement at Exh.30. Defendants no.1 and 2 denied that they have transferred the suit shop to defendant no.3. It was submitted that defendant no.3 is not using the suit shop independently and due to personal relationship between defendant nos. 1 and 2 with defendant no.3, defendant no.3 was occupying the suit shop on temporary basis. That the learned trial Court framed the issue at Exh. 34. After considering the evidence on record oral as well as documentary, the learned trial Court allowed the suit and passed the decree of possession on the ground of change user as well as on the ground of subletting and directed defendants no. 1 and 3 to hand over the vacant and peaceful possession of the suit premises to the plaintiffs.
2.2. Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned Small Causes Court, Ahmedabad dated 6.2.2007 passed in HRP Civil Suit No. 404 of 2001, the petitioners hereinoriginal defendants no.1 and 2 preferred Civil Appeal No. 68 of 2007 before the Appellate Bench of the Small Causes Court, Ahmedabad. It appears that in the appeal the petitioners submitted the application Exh.16 for additional evidence under Order 41 Rule 27 of the Code of Civil Procedure for production of the certificate issued by Shops and Establishment Department to contain that grandfather of the petitionersoriginal tenant as such was running Teal stall and was selling Cold Drinks etc. since 1990. That the said application came to be dismissed by the learned Appellate Court vide order dated 21.8 2009. That thereafter, after hearing the learned advocates for the respective parties, the learned Appellate Bench of the Small Causes Court at Ahmedabad by impugned judgment and order dated has been pleased to dismiss the Civil Appeal No. 68 of 2007 confirming the judgment and decree passed by the learned trial Court.
2.3. Feeling aggrieved and dissatisfied with the judgment and order/ decree passed by the learned Small Causes Court, Ahmedabad confirmed by the learned Appellate Bench of the Small Causes Court, Ahmedabad, the petitioners hereinoriginal defendants no.1 and 2 have preferred the present Civil Revision Application under Section 29(2) of the Act. It is required to noted that so far as original defendant no.3 is concerned, he has not challenged the judgment and decree passed by the learned trial Court and so far as original defendant no.3 is concerned, the judgment and decree passed by the learned trial Court has become final.
3.0 Shri J.T. Trivedi, learned advocate for the petitioners original defendants no. 1 and 2 has vehemently submitted that both the Courts below have materially erred in passing the decree of possession. It is submitted that as such suit filed by the plaintiffs was barred by law of limitation. It is submitted that as such the grandfather of the petitioners was running the Teal stall and was selling Cold Drinks etc. since 1975 and to prove the same the petitioners produced the certificate issued by the Shops and Establishment Department, by way of additional evidence. It is further submitted that as such thereafter another second rent note was executed between the petitioners and the landlord, in which, there was no restriction of use that the suit shop can be used only for the purpose of cycle repairing. Therefore, it is submitted that when the suit was barred by law of limitation the learned trial Court has materially erred in passing the decree of possession. It is submitted that both the Courts below have materially erred in holding that there was breach of terms of tenancy. Shri Trivedi, learned advocate for the petitioners has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Smt. Shakuntala s. Tiwari vs. Hem Chand M. Singhania reported in AIR 1987 SC 1823 as well as in the case of Mahindra Land and Building Corporation Ltd. vs. Bhtnath Banerjee and others reported in AIR 1964 SC 1336 and in the case of Noharlal Verma vs. District Cooperative Central Bank Ltd reported in AIR 2009 SC 664.
3.1. Shri Trivedi, learned advocate for the petitioners has also made the grievance that the learned Appellate Court has not discussed the judgment cited at the bar. By making above submissions and relying upon the above decisions, it is requested to admit / allow the present Civil Revision Application. No other submissions have been made by Shri Trivedi, learned advocate for the petitioners.
4.0 Heard Shri Trivedi, learned advocate for the petitioners original defendants no.1 and 2 and considered and gone through the judgment and decree passed by the learned trial Court confirmed by the learned Appellate Bench. As stated above, the learned trial Court has passed decree of possession on the ground of change of user as well as on the ground of subletting.
4.1. It is the case on behalf of the petitioners in the revision application that the suit of recovery of possession was barred by law of limitation as the grandfather of the petitioners was using the suit shop for running Teal stall and was selling Cold Drinks etc. since 1975 and in support of the same the petitioners have produced certificate issued by the Shops and Establishment Department of the year 1975, which have been renewed upto 1990. However, it is required to be noted that the plea of limitation has neither been pleaded or raised by the petitioners either before the learned Small Causes Court, Ahmedabad and / or even before the learned Appellate Bench of the Small Causes Court, Ahmedabad and the same is pleaded for the first time in the present revision application. It is required to be noted that it was the case on behalf of the plaintiffs that the suit shop was given for running the cycle repairing only and it is found that there is a change of user by selling Galvanized Pipe, Water Tap, Fitting, Plastic Pipe etc. which is in breach of rent note. To the aforesaid, now it is case on behalf of the petitioners that even since 1975 the suit shop was used for running the Tea stall and was selling Cold Drinks etc. by their grandfather and even thereafter there was second rent note, in which there is no such restriction, therefore, the suit is barred by law of limitation.
4.2. However, it is to be noted that the decree has been passed by the learned trial Court confirmed by the learned Appellate Bench on the ground of subletting also and as such there are concurrent findings of fact given by both the Courts below that the suit property has been sublet in favour of defendant no.3 who was doing the business of selling of Galvanized Pipe, Water Tap, Fitting, Plastic Pipe etc. Learned advocate for the petitioners has not made any submission on the decree passed by the learned trial Court on the ground of subletting. It is required to be noted that it was the case on behalf of defendant nos.1 and 2 that in view of earthquake defendant no.3 was permitted to occupy the suit shop temporarily as they have good relation. However, it is required to be noted that both the Courts below have concurrently found the exclusive possession of defendant no.3 and concurrent findings of fact given by both the Courts below on the subletting are on appreciation of evidence, which are not required to be interfered with by this Court by reappreciating the same in exercise of revisional jurisdiction.
4.3. Considering the aforesaid facts and circumstance, when there are concurrent findings of fact given by both the Courts below with respect to subletting of the suit premises by the petitioners original defendants no.1 and 2 in favour of defendant no.3 and the judgment and decree passed by the learned trial Court on the ground of subletting is sustainable, it cannot be said that both the Courts below have committed any error and / or illegality in passing decree of possession on the ground of subletting.
4.4. Now, so far as reliance placed upon the decision of the Hon'ble Supreme Court in the case of Smt. Shankuntala S. Tiwari (supra) by the learned advocate for the petitioners that the prayer of the plaintiffs for recovery of the possession on the ground of change of user is barred by law of limitation is concerned, it is required to be noted and as observed hereinabove that the learned trial Court has passed the eviction decree on the ground of subletting also which has been confirmed by the Appellate Bench even if there may be some substance in favour of the petitioners on the same, the judgment and decree passed by the learned trial Court for recovery of possession on the ground of subletting is not required to be quashed and set aside.
4.5. Even the decisions of the Hon'ble Supreme Court in the case of Mahindra Land and Building Corporation Ltd.(supra) and in the case of Noharlal Verma (supra), relied upon by the learned advocate for the petitioners will not be of any assistance to the petitioners considering the aforesaid facts and circumstance of the case.
5.0 In view of the above and for the reasons stated above, Civil Revision Application fails and same deserves to be dismissed and is accordingly dismissed. Notice discharged. In view of dismissal of Civil Revision Application, no order in Civil Application is accordingly dismissed.
“kaushik”
sd/ ( M. R. Shah, J. )