1. The present Civil Revision Application under Section 29(2) of the Bombay Rent Act has been preferred by the applicant- original plaintiff to quash and set aside the impugned judgment and order passed by the learned appellate Bench of the Small Cause Court at Ahmedabad dated 20/03/2003 in Civil Appeal No. 19/2001 by which the learned appellate Court has allowed the appeal preferred by the respondents-original defendants and has quashed and set aside the judgment and decree passed by the learned trial Court-learned Small Cause Court at Ahmedabad dated 20/12/2000 in HRP Suit No. 1073/1997 by which the learned trial Court decreed the suit preferred by the applicant-original plaintiff-landlord passing the eviction decree under Section 13(1)(b) of the Bombay Rent Act i.e. on the ground that the tenants have committed the breach of condition of tenancy.
2. The facts leading to the present Civil Revision Application in a nutshell are as under;
2.1. It appears that one small room was let to one Dholaji and on his death, father of the original defendants-Khodabhai Solanki and his family members were handed over the possession and, therefore, the applicant-original plaintiff- landlord initiated the proceedings, which went up to the learned appellate Bench of the learned Small Cause Court at Ahmedabad, being Civil Appeal No. 143/1982 and there was settlement entered into between the parties by which all the heirs of Khodabhai Solanki, inclusive of respondent no. 2- original defendant no. 2-Ashwinbhai Himatsing Khodabhai Solanki agreed to surrender the tenancy rights and it was further agreed to let one another room (suit premises) to respondent no. 1-original defendant no. 1-Pravinbhai Khodabhai Solanki to use it for himself and his family members. It appears and it is the case on behalf of the applicant-original plaintiff that respondent no. 1-original defendant no. 1-tenant shifted to another premises at Hariganga Society, Odhav and in breach of terms of tenancy handed over the possession of the suit premises to respondent no. 2-original defendant no. 2 and, therefore, the applicant-original plaintiff instituted HRP Suit No. 1073/1997 against the respondents-original defendants for recovery of possession/eviction decree on the ground that respondent no. 1-original defendant no. 1-tenant has committed the breach of terms of tenancy and respondent no. 2-original defendant no. 2 is residing in the suit premises. The suit was resisted by the respondents-original defendants by submitting that in fact respondent no. 1-original defendant no. 1 is still residing in the suit premises and he has not shifted to Hariganga Society, Odhav as alleged. It was also the case on behalf of the respondents-original defendants, more particularly, respondent no. 2-original defendant no. 2 that he is not residing in the suit premises and he is residing at Hariganga Society, Odhav . The learned trial Court framed the necessary issues. On behalf of the applicant-original plaintiff, evidence was led, oral as well as documentary. The applicant- original plaintiff produced the documentary evidence to show and/or establish that respondent no. 1-original defendant no. 1- Pravinbhai Khodabhai Solanki is residing at Hariganga Society, Odhav and in support of that the applicant-original plaintiff produced documentary evidence in the form of the applications made by respondent no. 1-original defendant no. 1 before the RTO Authority etc. in which he has shown his address at Hariganga Society, Odhav and that respondent no. 2-original defendant no. 2-Ashwinbhai @ Himatsingh Khodabhai was residing in the suit premises and, therefore, the same is in breach of terms of the tenancy. It was the case on behalf of the applicant-original plaintiff that even the suit notice was served upon respondent no. 2-original defendant no. 2-Ashwinbhai @ Himatsingh Khodabhai and even summons of the suit was also served upon respondent no. 2-original defendant no. 2 at the suit premises. On behalf of the applicant-original plaintiff the applicant-original plaintiff himself came to be examined at Exh.
20. On behalf of the respondents, respondents nos. 1 and 2- original defendants nos. 1 and 2 came to be examined at Exhs.
52 and 56 and the father of the original defendants Khodhabhai Udaysingh Solanki came to be examined at Exh.
53. On appreciation of evidence, the learned trial Court held that respondent no. 1-original defendant no. 1 is not residing in the suit premises and it has been proved that respondent no. 2- original defendant no. 2-Ashwinbhai @ Himatsingh Khodabhai was residing in the suit premises in breach of tenancy and consequently the learned trial Court passed the eviction decree vide judgment and decree dated 20/12/2000. Being aggrieved and dissatisfied with the judgment and decree passed by the learned Small Cause Court at Ahmedabad in HRP Suit No. 1073/1997 dated 20/12/2000, respondents-original original defendants preferred Civil Appeal No. 19/2001 before the learned appellate Bench of the Small Cause Court at Ahmedabad and by impugned judgment and order the learned appellate Bench has partly allowed the said appeal by quashing and setting aside the judgment and decree passed by the learned trial Court for possession on the ground of breach of tenancy. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned appellate Bench of the Small Cause Court at Ahmedabad dated 20/03/2003 in Civil Appeal No. 19/2001 by which the learned appellate Bench has allowed the said appeal preferred by respondents-original defendants and has quashed and set aside the judgment and decree passed by the learned trial Court, the applicant-original plaintiff has preferred the present Civil Revision Application under Section 29(2) of the Bombay Rent Act.
3. Shri Sunit Shah, learned advocate appearing on behalf of the applicant-original plaintiff has vehemently submitted that the learned appellate Bench has materially erred in allowing the appeal and quashing and setting aside the judgment and decree passed by the learned trial Court. It is submitted that when on appreciation of evidence the learned trial Court held that respondent no. 1-original defendant no. 1 was not residing in the suit premises and respondent no. 2-original defendant no. 2 was residing in the suit premises in breach of terms of tenancy and when the learned trial Court passed the decree under Section 13(1)(b) of the Bombay Rent Act the same was not required to be interfered with by the learned appellate Bench. It is further submitted by Shri Sunit Shah, learned advocate appearing on behalf of the applicant-original plaintiff that even otherwise the finding given by the learned appellate Bench is on misinterpretation of evidence on record. It is submitted that the learned appellate Court has not properly considered and/or appreciated the evidence on record. It is submitted that the learned appellate Court has not properly appreciated the fact that the evidence of respondent no. 1- original defendant no. 1 cannot be relied upon as he has not stated the correct facts. It is submitted that though respondent no. 2-original defendant no. 2-Ashwin alias Himatsingh Khodabhai Solanki has admitted in the cross examination that the suit notice as well as the summons of the suit were served upon him in the suit premises still respondent no. 1-original defendant no. 1-Pravinbhai Khodabhai Solanki has denied in the cross examination that the suit notice has not been served upon him at Hariganga Society, Odhav. It is further submitted that even otherwise number of documentary evidences were produced to show that respondent no. 1- original defendant no. 1 was not residing in the suit premises and was residing at Hariganga Society, still the learned appellate Court has not properly appreciated the said documentary evidences and has wrongly come to the conclusion that the applicant-original plaintiff has failed to prove that respondent no. 1-original defendant no. 1 is not residing in the suit premises and the applicant-original plaintiff has failed to prove that respondent no. 2-original defendant no. 2 is residing in the suit premises. It is further submitted by Shri Sunit Shah, learned advocate appearing on behalf of the applicant-original plaintiff that as the suit property was let to respondent no. 1-original defendant no. 1 only pursuant to the consent terms arrived at in Civil Appeal No. 143/1982 to which the respondent no. 2-original defendant no. 2 was also signatory to the same, the suit property was let only to the family members of respondent no. 1-original defendant no. 1 and when the same was given to respondents-original defendant no. 2 there is breach of terms of tenancy and, therefore, the learned appellate Court ought to have confirmed the judgment and decree passed by the learned trial Court. Making the above submission, it is requested to allow the present Civil Revision Application.
4. One Shri Rajkumar Vora, learned advocate is appearing on behalf of the respondents. Though the matter is adjourned on number of occasions and when on earlier the present Civil Revision Application was taken up for final hearing in the month of July, 2011 the applicant-original plaintiff informed him with respect to the next date of hearing, he has not remained present and even today also when the present Civil Revision Application is taken up for final hearing, the learned advocate appearing on behalf of the respondents-original defendants has chosen to remain absent, this Court has no other alternative but to proceed further with the hearing of the Civil Revision Application ex-parte.
5. Heard Shri Sunit Shah, learned advocate appearing on behalf of the applicant-original plaintiff and considered the impugned judgment and order passed by the learned appellate Court as well as the judgment and decree passed by the learned trial Court and considered and gone through the entire evidence on record from the Record and Proceedings, which has been received from the learned trial Court. This Court has also considered the consent terms arrived at between the parties in Civil Application No. 143/1982 at Exh. 26 under which the suit property in question was let to respondent no. 1- original defendant no. 1-Pravinbhai Khodabhai Solanki. Under the said consent terms, it appears that the suit property has been let to respondent no. 1-original defendant no. 1 only for himself and for his family members. It is also required to be noted that in the said consent terms respondent no. 2-original defendant no. 2 has also put the signature for himself and other minors and, therefore, as such the suit property was required to be used by respondent no. 1-original defendant no.
1 only and as it was found that respondent no. 2-original defendant no. 2 was residing in the suit premises, the applicant-plaintiff was of the opinion that there is breach of terms of tenancy and, therefore, the applicant-original plaintiff instituted the suit before the learned Small Cause Court at Ahmedabad for eviction decree and for recovery of possession on the ground that respondent no. 1-original defendant no. 1 has committed the breach of tenancy. To prove the same, number of documentary evidences were produced by the applicant-original plaintiff to show that respondent no. 1- original defendant no. 1 has shifted to another society at Hariganga Society, Odhav and that respondent no. 2- original defendant no. 2 is residing in the suit premises. Considering the evidence on record, it appears to the Court that the applicant-original plaintiff has successfully proved that respondent no. 1-original defendant no. 1 has shifted to another premises, Hariganga Society, Odhav as respondent no. 1-original defendant no. 1 himself has given the said address of Hariganga Society in his documents/applications made to the RTO Authority. It is also required to be noted at this stage that though Ashwinbhai alias Himatsingh Khodabhai Solanki in the cross examination has specifically admitted that the suit notice/summons were served upon him at the suit premises, respondent no. 1- original defendant no. 1 in his cross examination had stated that the suit notice is not served upon respondent no. 2-original defendant no. 2 at the suit premises. The aforesaid shows that the deposition of respondent no. 1- original defendant no. 1-Pravinbhai Khodabhai Solanki is not reliable and, therefore, it does not infer any confidence. Thereafter, when the learned appellate Court has passed the eviction decree, the learned appellate Court has materially erred in reversing the same. It appears from the impugned judgment and order passed by the learned appellate Court that the learned appellate Court has not properly appreciated the documentary evidence on record and the finding given by the learned appellate Court on appreciation of evidence is perverse and the impugned judgment and order passed by the learned appellate Court cannot be sustained and the same deserves to be quashed and set aside.
6. In view of the above and for the reasons stated hereinabove, the present Civil Revision Application succeeds. The impugned judgment and order passed by the learned appellate Bench of the Small Cause Court at Ahmedabad dated 20/03/2003 in Civil Appeal No. 19/2001 is hereby quashed and set aside and the judgment and decree passed by the learned Small Cause Court at Ahmedabad dated 20/12/2000 in HRP Suit No. 1073/1997 is hereby restored. Rule is made absolute accordingly. No cost.
(M.R. SHAH, J.) siji