The applicant ? original defendant tenant in Regular Civil Suit No. 50 of 1994 has approached this Court assailing the judgment & decree passed by learned Addl. District Judge, FTC No.1, Surendranagar in Regular Civil Appeal No. 41 of 2000, where under the Appellate Court has quashed and set aside the judgment & decree passed by learned Civil Judge (JD) at Wadhwan in Regular Civil Suit No. 50 of 1994 and prayer Nos. (1), (2) and (3) in Para no. 9 made in Regular Civil Suit No. 50 of 1994 have been granted where under the applicant was directed to handover vacant possession of the suit premises.
Facts in brief is required to be set out as under in order to appreciate the controversy in the matter.
The applicant, who is hereinafter being referred to as the defendant, is the tenant in the suit premises. The landlady moved concerned Civil Court by preferring Civil Suit No. 50 of 1994 for decree of eviction against the defendant tenant on the ground of non-user of the premises and also arrears of rent. The trial Court framed as many as 7 issues and recorded its findings thereon and did not grant prayer with regard to eviction, in finding that the plaintiff could not prove that the defendant had not used the premises for the last six months, whereas decreed the suit in respect of arrears of rent. Being aggrieved and dissatisfied with the said decree dated 21/10/2000 by the Civil Judge (JD) at Wadhwan, the landlady / plaintiff preferred Regular Civil Appeal being RCA No. 41 of 2000 in the Court of District Judge, Surendranagar. The Appellate Court framed the issue that 'whether the appellant proves that the interference were required in the judgment & decree passed by the trial Court' and recorded its finding that the trial court erred in recording findings as the finding of the trial Court are contrary to the evidence on record and allowed the appeal, quashing and setting aside the judgment & decree of the trial court in Regular Civil Suit No. 50 of 1994, and the order of eviction was passed.
Being aggrieved by the judgment & decree passed by the Appellate Court in RCA No. 41 of 2000 the defendant / tenant has approached this Court by way of present Civil Revision Application.
Ms.
Laxmi Nainani, learned advocating appearing for the applicant submits that the findings of the trial Court with regard to contention of non-user deserves to be noted as the trial Court has categorically recorded that the plaintiff failed in proving her allegation that the tenant did not use the premises for the last six months prior to filing of the suit.
Ms.
Nainani has taken this Court through the entire judgment of the trial Court and contended that the Appellate Court ought not to have reversed the findings of the trial Court. Ms. Nainani submits that the testimony of the applicant / defendant would go to show that the electricity bills could not be produced on account of heavy rains as a result whereof the bills were washed off. These are the factors which have weighed in favour of the tenant and the trial Court has rightly therefore not ordered eviction. Ms. Nainani submitted that in view of this the Revision Application deserves to be admitted and interim order deserves to be granted staying eviction of the tenant.
Shri S.B. Rawal, learned advocate appearing for the landlady contended that the Appellate Court has rightly reversed the decision of the trial Court. The trial Court ought not to have recorded findings contrary to the evidence on record. The trial Court's decision was therefore absolutely perverse and did not warrant its confirmation. He submits that even evidence led by the tenant could not be said to be valid so as to inspire confidence of the Court, as, after initial cross-examination when the matter was fixed for further cross examination, the tenant did not permit herself to be cross examined and she even did not present for cross examination. Against this backdrop it can well be said that the order of the Appellate Court deserves to be upheld.
This Court has heard learned advocates of the parties at length and perused the papers put up along with the Revision Application. This Court is of the considered view that when a landlady had led evidence with regard to non-user in the form of neighbour's testimony and her own evidence it was the duty cast upon the tenant to prove that the allegation of non-user was not well founded. The tenant was under obligation to lead cogent evidence to shake the evidence led by the landlady and neighbour witness who unequivocally deposed that the tenant was not residing in the premises but was residing in the premises of her son which was far away from the tenant's premises. The notice was also therefore required to be sent to the tenant at her son's address. Thus in light of these evidences on record, one can safely say that the burden to prove that the premises was in fact used shifted to the tenant and therefore she ought to have led cogent evidence in support of her contention. The initial cross-examination of the tenant reveals that the electricity connection as well as water connection had been procured and that payments of bills were made by her. To the pointed question raised by the plaintiff's counsel, whether she would be producing the bills for electricity payment ? the answer given by the tenant was that the bills were washed off due to heavy rains, are not inspiring any confidence. Apart from this, no further evidence is led and therefore the Appellate Court has rightly reversed the findings of the trial Court as the trial Court has misdirected itself in not appreciating this aspect and therefore to that extent trial court's findings and judgment could be said to be perverse and unsustainable in eye of law.
This Court under the revision jurisdiction is of the considered view that the judgment of the Appellate Court does not deserve to be interfered with in the revision. Therefore revision deserves to be dismissed and is dismissed. Notice discharged.
Ms.
Nainani, learned advocate appearing for the applicant/tenant at this stage makes request that the tenant may approach the Apex Court challenging this order and otherwise also she may need some time for vacating the premises. Therefore, some time may be granted to vacate the premises. The request is not opposed by Shri. Rawal. Accordingly 90 days (ninety days) time is granted either to challenge the order or to vacate the premises by the applicant/tenant.
[ S.R. BRAHMBHATT, J ] /vgn Top