1 By way of the present Revision Application, the original plaintiffs - landlords have challenged the judgment and order dated 29.4.2006 passed by the Presiding Officer, Fast Track Court No.7, Junagadh, in Regular Civil Appeal No.68 of 2002, whereby allowed the Appeal filed by the original defendant–tenant and set aside the judgment and eviction decree dated 27.9.2002, passed by the Third Joint Civil Judge (JD), Junagadh, in Regular Civil Suit No.16 of 1992 filed by the plaintiffs–landlords.
2 Brief facts arising from the present case are as under:
That the present petitioners–landlords filed a Regular Civil Suit No.16 of 1992 in the court of Third Joint Civil Judge (JD), Junagadh,under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (“the Rent Act” for short), for possession of the suit property, namely, the shop, situated at Danapith Area, Opp: Taluka School No.3, which was let to the father of the opponent by the predecessor of the petitioners. That there were several grounds raised by the original plaintiffs – landlords for possession of the suit premises. The Trial Court decreed the suit of the plaintiffs on the ground of bona fide requirement of the landlords. The said judgment and eviction decree was challenged by the present opponent–original defendant – tenant by way of filing an appeal, being Regular Civil Appeal No.
68 of 2002 under Section 29 of the Act, in the District Court at Junagadh. The learned Presiding Officer, Fast Track Court No. 7, Junagadh, by judgment and order dated 29.7.2006 allowed the Appeal and set aside the judgment and eviction decree passed by the Trial Court by which the defendant–tenant was directed to hand over the possession of the suit premises and, hence, the present Revision Application is filed by the original plaintiffs– landlords.
3 Learned Advocate Mr. Ashish M. Dagli appearing for the petitioners–original plaintiffs has submitted that the lower appellate court has not considered the case of the petitioners- landlords in its true perspective. He has submitted that the predecessor of the petitioners i.e. father of the petitioners No. 2 to
6 and husband of the petitioner No. 1 had given the suit shop on monthly rent to the father of the tenant, who was running a fair price shop in the suit premises. Since out of four brothers, two brothers required the suit shop to carry out business as they have no other premises available for them, the suit was filed in the court of learned Civil Judge (JD), Junagadh. The learned Trial Judge, after considering the depositions of the witnesses, had rightly decreed the suit accepting the say of the plaintiffs about the bona fide requirement of the suit shop for doing the business. It is further submitted that the learned Trial Court had compared the hardships of the landlord as well as the tenant as provided under Section 13(g) of the Rent Act and has come to the conclusion that, since the opponent had two other shops in the Junagadh city itself, the hardship is in favour of the original plaintiffs – landlords. It was further argued by Mr. Dagli that while deciding the appeal, the learned lower appellate court has not properly examined the record and proceedings as well as the depositions of the witnesses and has wrongly come to the conclusion that since the brothers are doing independent business as there was no bona fide requirement of the suit shop by the plaintiffs–landlords. He has submitted that, though, the plaintiffs had established that the opponent–defendant– tenant had two other shops in Junagadh city, the learned lower appellate court has erred in holding that, since the plaintiffs had other shop, which was given on rent, and had not demanded the possession of that shop, the petitioners are not entitled for the possession of suit shop and, therefore, the judgment and eviction decree passed by the Trial Court was set aside.
4 On the other hand, learned Advocate Mr. R.C.Kakkad, appearing for the opponent–tenant has submitted that the lower appellate court has considered the case of both the parties and rightly came to the conclusion that there was no bona fide requirement of the suit premises by the plaintiffs – landlords.
5 I have heard learned Advocates appearing for the respective parties and perused the record and proceedings of the case. Having gone through the judgment and decree passed by the lower appellate court, I am of the opinion that, the lower appellate court has not examined the case by perusing the entire record and proceedings of the suit and also not discussed the hardships of the parties and/or compared the hardships between the landlord and the tenant which is necessary under sub-section (2) of Section 13 of the Rent Act while deciding a cause for possession under Section 13(1)(g) of the Act. Being the first appellate court, it is the well settled principle that the court has to peruse the record and proceedings of the case and has to assign reasons while quashing and setting aside the judgment and decree passed by the Trial Court. It is not expected of the lower appellate court to decide the case by picking up only some statements of one of the parties. The depositions of all the witnesses are required to be read as a whole and only after discussing the same, the lower appellate court can come to it's own conclusion. In the present case, it appears that, the lower appellate court has not exhaustively considered the depositions of the witnesses and also not compared the hardships between the plaintiffs–landlords and defendant–tenant. Therefore, I am of the opinion that, without expressing anything on merits about the hardships of either party, the matter shall be remanded to the lower appellate court for fresh adjudication of the same in accordance with law without being influenced by the observations made in the present judgment.
6 In view of the aforesaid observations, the Revision Application deserves to allowed and is allowed accordingly. The impugned judgment and order dated 29.4.2006, passed by the learned Presiding Officer, Fast Track Court No.7, Junagadh, in Regular Civil Appeal No. 68 of 2002, is quashed and set aside and the matter is remitted to the Appeal Court for deciding the same afresh on merits and in accordance with law, after affording reasonable opportunity of hearing to both the parties, preferably within a period of six months from the date of receipt of writ of this order. The parties are directed to cooperate in early disposal of the appeal. Rule is made absolute to the aforesaid extent only. There shall be no order as to costs.
7 Registry is directed to remit the Record and Proceedings of the case to the lower appellate court forthwith.
(A.J. DESAI, J.) pnnair