Dineshkumar Bhailalbhai Choksi ­ Opponents

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No. 1496 of 2001 For Approval and Signature:

HONOURABLE MR.JUSTICE M.R. SHAH ­sd =========================================

========================================= CHIMANBHAI RANCHODBHAI PANCHAL ­ Applicant(s) Versus DINESHKUMAR BHAILALBHAI CHOKSI ­ Opponent(s) ========================================= Appearance :

MR HM PARIKH for Applicant(s) : 1, MR BS PATEL for Opponent(s) : 1, MRS RANJAN B PATEL for Opponent(s) : 1, ========================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date :09/08/2012 CAV JUDGMENT

1.0 Present Civil Revision Application under Section 29(2) of the Bombay Rent Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as “the Rent Act”) has been preferred by the petitioner­original defendant to quash and set aside the impugned judgment and decree passed by the learned Civil Judge (J.D.), Jambusar passed in Regular Civil Suit No.187 of 1984 as well as impugned judgment and order passed by the learned Appellate Court­learned Assistant Judge, Bharuch dated 31.8.2001 passed in Regular Civil Appeal No.25 of 1995, by which the learned Appellate Court has dismissed the said appeal preferred by the petitioner herein confirming the judgment and decree passed by the learned trial Court decreeing the suit and passing the eviction decree.

2.0 The facts leading to the present Civil Revision Application in nutshell are as under:

2.1. That the respondent herein – original plaintiff instituted Regular Civil Suit No.187 of 1984 against the petitioner herein­ original defendant ­tenant in the Court of learned Civil Judge (J.D.), Jumbusar for recovery of possession / eviction decree on the ground that the defendant ­tenant is in arrears of rent for more than six months i.e. on the ground of arrears of rent. It appears that earlier the learned trial Court by judgment and decree dated 26.7.1993 decreed the suit only for arrears of rent, however refused to pass eviction decree on the ground that the rent is payable yearly as the liability to pay municipal tax and other taxes is upon tenant and on the ground that rent note which is in the possession of the plaintiff is not produced.

2.2. It appears that being aggrieved and dissatisfied with judgment and decree passed by the learned trial Court dated 26.7.1993 passed in Regular Civil Suit No. 187 of 1984, the original plaintiff preferred Regular Civil Appeal No.52 of 1993 before the learned Appellate Court. That in the said appeal, the original plaintiff ­appellant submitted the application Exh.12 for permission to produce certain documents inclusive of rent note. Therefore, original plaintiff ­appellant requested to produce additional documents/ evidences, It appears that same were permitted to be produced on record with the consent of the learned advocates for the respective parties. However, it was submitted on behalf of the defendant that even those documents are required to be proved by leading the evidence and consequently by order dated 13.9.1994 the learned Appellate Court ­learned Assistant Judge, Bharuch allowed the said application Exh.12 and permitted the original plaintiff ­appellant to produce the document along with mark 16/1 inclusive of rent note and remanded the matter to the learned trial Court with a direction that the trial Court should allow both the sides to lead the evidence pertaining to mark 16/1 (rent note). The learned Appellate Court also directed that the learned trial Court should give liberty to both the sides to rely upon the evidence led by them before the trial Court, if they so desired. The learned Appellate Court also directed the learned trial Court to decide the suit on merits after considering the document at mark 16/1 (rent note).

2.3. That thereafter on remand both the sides led the evidence/ further evidence on the rent note which was permitted to be produced in the appeal. That thereafter on appreciation evidence and considering the fact that tenancy was a monthly tenancy and as the tenant has failed to deposit the rent within a period of one month from the date of receipt of the statutory notice and even did not raise any dispute with respect to standard rent, the learned trial Court held that the case would fall under Section 12(3)(a) of the Rent Act and consequently the learned trial Court by judgment and decree dated 8.2.1995 decreed the suit on the ground of arrears of rent.

2.4. That being aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court dated 8.2.1995 passed in Regular Civil Suit No.187 of 1984, the petitioner herein­original defendant preferred Regular Civil Appeal No. 25 of 1995 before the learned Appellate Court and the learned Assistant Judge, Bharuch by impugned judgment and order has dismissed the said appeal confirming the judgment and decree passed by the learned trial Court decreeing the suit and passed the eviction decree on the ground of arrears of rent.

2.5. Feeling aggrieved and dissatisfied with the impugned judgment and order/ decree passed by both the Courts below, the petitioner herein­original defendant has preferred present Civil Revision Application under Section 29(2) of the Rent Act.

3.0. Shri H.M. Parikh, learned advocate for the petitioner ­original defendant has vehemently submitted that earlier the learned Appellate Court had materially erred in permitting to produce the additional evidence/mark 16/1 (rent note) and the learned Appellate Court ought not to have remanded the matter to the learned trial Court. It is submitted that at the relevant time the petitioner did not challenge the order passed by the learned Assistant Judge, Bhuj dated 13.9.1994 passed below Exh.12 in Regular Civil Appeal No.52 of 1993, by which, the learned Appellate Court permitted the original plaintiff ­appellant to produce the additional documents/ evidence and remanded the matter to the learned trial Court, as it was an interlocutory order. It is submitted that as observed and held by the Hon'ble Supreme Court in the case of Mangal Prasad Tamoli (dead) by Lrs vs. Narvedshwar Mishar (dead) by Lrs & Another reported in AIR 2005 SC 1964 it is permissible for the petitioner herein to challenge before this Court the legality and validity of the order passed by the learned Appellate Court passed below Exh.12 in Regular Civil Appeal No.52 of 1993, by which, the learned Appellate Court permitted production of additional evidence/ mark 16/1/rent note and remanded the matter to the learned trial Court. It is submitted that as observed and held by the Hon'ble Supreme Court in the aforesaid decision, as order passed by the learned Appellate Court in earlier appeal remanding the matter to the learned trial Court was as an interlocutory order, it is always open for the applicant to challenge the same before this Court challenging judgment and order/ decree contending that earlier order passed by the learned Appellate Court remanding the matter to the learned trial Court and permitting the original plaintiff to produce the additional evidence/ document/ mark 16/1, the rent note was erroneous.

3.1. Relying upon the decision of the Division Bench of this Court in the case of State of Gujarat and Anr vs. Mahendrakumar Parshottambhai Desai and Ors reported in 2002(3) GLR 2249 and relying upon Order 41 Rule 27 of the Code of Civil Procedure, it is submitted that as such no case was made out before the learned Appellate Court for exercise of powers under Order 41 Rule 27 of the Code of Civil Procedure and therefore, order passed by the learned Appellate Court in earlier appeal passed below Exh.12 permitting the original plaintiff ­appellant to produce the additional evidence/ documents, more particularly, mark 16/1 and consequently remanding the matter to the learned trial Court was erroneous.

3.2. It is further submitted by Shri Parikh, learned advocate for the petitioner that even otherwise both the Courts below have materially erred in not holding that rent note produced at mark 16/1 was concocted and forged which was created with a view to create the evidence in his favour. It is submitted that as in the earlier proceedings the plaintiff did not produce the rent note and same came to be produced in the appeal, both the Courts below ought to have held that the rent note produced at mark 16/1 is concocted and forged by the plaintiff to create the evidence in his favour. Therefore, it is submitted that both the Courts below have materially erred in relying upon the rent note in holding that the tenancy was monthly and consequently have materially erred in passing eviction decree under Section 12(3)(a) of the Rent Act.

3.3. By making above submissions and relying upon the above decisions, it is requested to allow the present Civil Revision Application.

4.0. Present Civil Revision Application is opposed by Shri Chirag Patel, learned advocate for the original plaintiff. It is submitted that as such now it is not open for the petitioner herein to challenge the legality and validity of the earlier order passed by the learned Appellate Court passed below Exh. 12 in remanding the matter to the learned trial Court, once having failed, thereafter before the learned trial Court as well as before the learned Appellate Court. It is submitted that as such the petitioner herein ­original defendant accepted the earlier order passed by the learned Appellate Court passed below Exh.12 passed in Regular Civil Appeal No.52 of 1993 permitting the appellant ­original plaintiff to produce the additional evidence and even participated before the learned trial Court on remand and led the evidence also as per the liberty reserved by the learned Appellate Court and therefore, it is not open for the petitioner herein to make grievance with respect to earlier order passed by the learned Appellate Court passed below Exh.12 in Regular Civil Appeal No. 52 of 1993 permitting the original plaintiff to produce the additional evidence/ documents/ mark 16/1 /rent note.

4.1. It is further submitted by Shri Chirag Patel, learned advocate for the respondent­original plaintiff that even otherwise considering the fact that dispute was whether the tenancy was monthly or yearly was a moot question and when the rent note was produced before the learned Appellate Court and the learned Appellate Court thought it fit that to decide the main issue production of such document is required and when consequently learned Appellate Court passed an order, the case would fall under Order 41 Rule 27(b) of the Code of Civil Procedure. It is further submitted that even otherwise the order passed by the learned Appellate Court to produce additional document/ evidence was with the consent of the learned advocates for the respective parties inclusive of learned advocate for the petitioner herein and therefore also, it is not open for the petitioner now to challenge the order passed by the learned Appellate Court permitting the original plaintiff to produce the additional evidence which was permitted with the consent of the learned advocates for the respective parties.

4.2. Now, so far as contention on behalf of the petitioner that both the Courts below have materially erred in relying upon the rent note produced at mark 16/1 and in not holding that the said rent was concocted and forged one is concerned, Shri Chirag Patel, learned advocate for the original plaintiff has submitted that as such the petitioner had not challenged the execution of the said rent note and it could not have challenged as the same bears the signature of the petitioner also. It is submitted that it was never the case on behalf of the plaintiff that such a rent note is not executed and / or it does not bear his signature. Therefore, it is submitted that when the petitioner did not challenge the execution of the said rent note there was no question by the learned trial Court to hold that the rent note produced at mark 16/1 was concocted and forged one. Therefore, it is submitted that both the Courts below have not committed any error and/ or illegality in relying upon the rent note produced at mark 16/1 and in holding that tenancy was monthly and as all the conditions mentioned in Section 12(3)(a) of the Rent Act are satisfied, no illegality has been committed by the learned trial Court in passing eviction decree, which is rightly confirmed by the learned Appellate Court. By making above submissions, it is requested to dismiss the present Civil Revision Application.

5.0. Heard the learned advocates for the respective parties at length and considered the impugned judgment and order passed by both the Courts below as well as earlier order passed by the learned Appellate Court passed below Exh.12 in Regular Civil Appeal No.52 of 1993, by which, the original plaintiff ­appellant was permitted to produce the additional documents/evidence inclusive of document mark at 16/1 / rent note and remanding the matter to the learned trial Court. This Court has also considered the evidence on record from the Record and Proceedings received from the learned trial Court.

5.1. At the outset, it is required to be noted that as such there are concurrent findings of fact given by both the Courts below holding the petitioner herein­original defendant to be in arrears of rent for more than six months and passing eviction decree under Section 12(3)(a) of the Rent Act. There are concurrent findings of fact given by both the Courts below relying upon the rent note produced at mark 16/1 (which was permitted to be produced by the learned Appellate Court) that the tenancy was monthly.

5.2. It is required to be noted that earlier the learned trial Court dismissed the suit and refused to pass eviction decree by holding that the plaintiff has failed to prove that the tenancy was monthly as the rent note was not produced by the plaintiff and on the ground that liability to pay municipal tax and other taxes was upon the tenant. However, in an appeal the original plaintiff ­appellant submitted application at Exh.12 permitting him to produce the additional evidence / document inclusive of rent note ­mark 16(1) and from the order passed by the learned Appellate Court passed below Exh.12 in Regular Civil Appeal No.52 of 1993, it appears that learned advocate for the petitioner herein gave no objection if the original plaintiff­appellant is permitted to produce the additional document / evidence inclusive of rent note (mark 16/1). Therefore, as such learned Appellate Court permitted the original plaintiff ­appellant to produce the additional evidence with the consent of the learned advocate for the respective parties inclusive of the learned advocate for the petitioner herein. However, it appears that learned advocate appearing on behalf of the petitioner herein­original defendant submitted that despite the production of additional documents / evidence they are required to be proved by leading the evidence and therefore, the learned Appellate Court thought it fit to remand the matter to the learned trial Court, permitting the original plaintiff­appellant to produce the additional evidence / documents with a liberty in favour of respective parties to lead the evidence on the same. Therefore, considering the aforesaid facts and circumstances of the case and when the additional evidence/ documents were permitted to be produced at the relevant by the learned Appellate Court with the consent of the learned advocates for the respective parties, it is now not open for the petitioner herein ­original defendant to make grievance against the order passed by the learned Appellate Court passed below Exh.12 in Regular Civil Appeal No.52 of 1993 permitting the original plaintiff­appellant to produce the additional documents/evidence. Therefore even considering the the decision of the Hon'ble Supreme Court in the case of Mangal Prasad Tamoli (dead) by Lrs (supra) permitting the petitioner to make grievance against the order passed by the learned Appellate Court passed below Exh.12 in Regular Civil Appeal No.52 of 1993 by which the learned Appellate Court remanded the matter to the learned trial Court on facts and for the reasons stated above and as order permitting the original plaintiff to produce additional evidence/ documents was with the consent of learned advocates for the respective parties and consequently remanding the matter to the learned trial Court, it is not open for the petitioner now to challenge the legality and validity of the earlier order passed by the learned Appellate Court passed below Exh.12 in Regular Civil Appeal No.52 of 1993.

5.3. Even otherwise, considering the fact that the main issue / dispute was whether the tenancy was monthly or yearly and / or rent was payable monthly or yearly was a dispute which goes to the root of the matter and decision on the said issue was material while deciding the suit, considering the Order 41 Rule 27(b) of the Code of Civil Procedure, no illegality had been committed by the learned Appellate Court in permitting the original plaintiff ­appellant to produce the additional evidence/ documents while passing order below Exh.12 in Regular Civil Appeal No.52 of 1993 and remanding the matter to the learned trial Court. On facts the decision of the Division Bench in the case of Mahendrakumar Parshottambhai Desai and Ors (supra) would not be of any assistance and / or helpful to the petitioner. In the case before the Division Bench, it was found that despite the several opportunities Government did not produce before the trial Court evidence in the nature of Government documents which was sought to be produced by way additional evidence in appeal and when the application for permitting the additional evidence was moved after a period of 8 years of filing the appeal the Division Bench rejected the application for additional evidence. Under the circumstances, on facts the aforesaid decision would not be of any assistance to the petitioner.

5.4. Now, so far as contention on behalf of the petitioner that both the Courts below have committed an error and / or illegality in relying upon the rent note produced at mark 16/1 as the same was concocted and forged and produced subsequently is concerned, aforesaid has no substance. At the outset, it is required to be noted that as such the petitioner herein also led the evidence and even cross examined the plaintiff on the rent note and from the evidence it appears that the petitioner herein­original defendant did not challenge and / or dispute the execution of the rent note which bears his signature. At no point of time, he has ever challenged the execution of the rent note and / or even his signature on the rent note. Under the circumstances, when the execution of the rent note was not challenged by the petitioner herein­original defendant and when the same bears his signature, no illegality has been committed by the Courts below in relying upon the rent note produced at mark 16/1 which was subsequently given exhibit number. Under the circumstances, on considering the rent note it has been found by both the Courts below that tenancy was monthly and when all other conditions of Section 12(3)(a) of the Rent Act are satisfied and thereafter when the learned Appellate Court has passed the eviction decree under Section 12(3)(a) of the Rent Act on the ground of arrears of rent and when same is confirmed by the learned Appellate Court, the same is not required to be interfered with by this Court in exercise of revisional powers under Section 29(2) of the Bombay Rent Act.

6.0. In view of the above and for the reasons stated above, present Civil Revision Application fails and same deserves to be dismissed and is accordingly dismissed. Rule discharged. Ad­interim relief granted earlier stands vacated forthwith. No costs.

“kaushik”

sd/­ ( M. R. Shah, J. )