1. The present Civil Revision Application under Section 29(2) of the Bombay Rent Act has been preferred by the petitioners -
original defendants No.1 and 2 to quash and set aside the impugned judgment and order dated 26.7.2005 passed by the Joint District Judge and Presiding Officer, Fast Track Court No.1, Mehsana, in Regular Civil Appeal No.22 of 2003 whereby the appeal preferred by the present petitioners – original defendants No. 1 and 2 has been dismissed and confirmed the judgment and decree dated 31.3.2003 passed by the Civil Judge (Junior Division), Visnagar, in Regular Civil Suit No. 17/2001, by which the learned Trial Court had passed the eviction decree against the petitioners - original defendants No. 1 and 2 and one another defendant on the ground of arrears of rent as well as on the ground that the suit premises is not used by the tenant for more than six months preceding filing of the suit i.e. under Section-13 and without reasonable cause i.e. under Section 13(1)(k) of the Bombay Rent Act. The present petitioners – original defendants No. 1 and 2 also challenged the judgment and decree dated 31.3.2003 passed by the Civil Judge (Junior Division), Visnagar in Regular Civil Suit No. 17/2001 in the present Revision Application.
2. Respondents Nos. 1 to 6, who are the original plaintiffs, instituted a Regular Civil Suit No.17/2001 for recovery of possession/eviction decree on the ground of arrears of rent for more than six months and on the ground of non-user of the suit premises preceding filing of the suit and without reasonable cause under Section 12(3)(a) and 12(3)(k) of the Bombay Rent Act and also on the ground that the tenant has made permanent construction without prior approval of the landlord.
3. The learned Trial Court on appreciation of evidence, decreed the suit and passed the eviction decree under Sections 12(3)(a) and 13(1)(k) of the Bombay Rent Act by holding that the tenant is in arrears of rent for more than six months and the case falls under Section 12(3)(a) of the Bombay Rent Act, as no dispute with respect to standard rent was raised and also on the ground of non-user of the suit premises by the tenant for more than six months preceding the suit without reasonable cause. The learned Trial Court held the issue in negative so far as the allegation with respect to permanent construction in the suit premises without prior approval of the landlord.
4. Being aggrieved and dissatisfied with the impugned judgment and decree passed by the learned Trial Court dated 31.03.2003 in Regular Civil Suit No.17/2001, the petitioners - original defendants No. 1 and 2 had preferred Regular Civil Appeal No. 22/2003 before the learned District Court, Mehsana, and the learned Joint District Judge and Presiding Officer, Fast Track Court No.1, Mehsana, by impugned judgment and order dated 26.07.2005, dismissed the said appeal and confirmed the judgment and decree passed by the learned Trial Court.
5 Being aggrieved and dissatisfied with the impugned judgment and decree passed by the learned Trial Court in decreeing the suit, the original defendants No. 1 and 2 has preferred the present Civil Revision Application under Section 29(2) of the Bombay Rent Act.
6. Mr. Pravin Panchal, learned Advocate appearing for learned Advocate Mr. P.K. Jani, on behalf of the petitioners - original defendants No. 1 and 2, has vehemently submitted that both the Courts below have materially erred in passing the eviction decree on the ground of arrears of rent. It is submitted that, as such, during pendency of the suit as well as during pendency of the appeal, the petitioners - original defendants No. 1 and 2 tenants had already paid arrears of rent and, therefore, both the Courts below have materially erred in passing the decree by holding that the tenants are in arrears of rent for more than six months and the case falls under Section 12 (3)(a) of the Bombay Rent Act. It is further submitted that even as on today, the suit premises is being used by the petitioners and, therefore, it is requested to allow the present Civil Revision Application. It is further submitted by the learned Advocate appearing on behalf of the petitioners – original defendants No. 1 and 2 that they are ready and willing to clear the arrears, if any, as on today, if their possession is protected. Making the above submission, it is requested to allow the present Civil Revision Application. No other submissions have been made.
7. The present Civil Revision application is opposed by Shri Mahendra Patel, learned Advocate, appearing on behalf of the respondents – original plaintiffs. It is submitted that there are concurrent findings of fact given by both the Courts below on the ground of arrears of rent as well as non-user of the suit premises without reasonable cause. It is further submitted that as the rent was payable monthly and dispute with respect to standard rent was not raised, the case would fall under Section 12(3)(a) of the Bombay Rent Act and, therefore, the learned Civil Court has rightly passed the decree under Section 12(3)(a) of the Bombay Rent Act and the same is rightly confirmed by the learned appellate Court. It is submitted that both the Courts below have concurrently found that the suit property in question was not used for more than six months preceding filing of the suit and, therefore, both the Courts below have rightly passed the decree under Section 13(1)(k) of the Bombay Rent Act. It is submitted that subsequently and after the suit is filed for decree, eviction under Section 13(1)(k) of the Bombay Rent Act and/or after passing of the decree, if the suit property is used, is of no consequence. It is submitted that, what is required to be considered is the non-user of the suit premises for more than six months prior to filing of the suit and, therefore, it is requested to dismiss the present Civil Revision Application.
8. Heard the learned Advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that the learned Civil Court has decreed the suit and has passed the eviction decree under Section 12(3)(a) as well under Section 13(1)(k) of the Bombay Rent act. It is concurrently found by both the Courts below that the tenant was in arrears of rent for more than six months and no dispute was raised with respect to standard rent. Under the circumstances, the case would squarely fall under Section 12(3)(a) of the Bombay Rent Act. If the case falls under Section 12(3)(a) of the Bombay Rent Act, the question with respect to subsequent payment of arrears of rent, will be of no consequence. Once it is found that the tenant was in arrears of rent for more than six months, which was monthly rent, and there was no dispute raised with respect to standard rent, the Court has no other alternative, but, to pass decree under Section 12(3)(a) of the Bombay Rent act. Under the circumstances, no illegality has been committed by the both the Courts below in passing the decree under Section 12(3)(a) of the Bombay Rent Act.
9 It is also required to be noted that even the learned Trial Court had passed the decree on the ground of non user of the suit premises for more than six months preceding/prior to institution of the suit without any reasonable cause. The finding of fact given by both the Courts below are on appreciation of evidence. The learned Advocate appearing on behalf of the petitioners - original defendants No. 1 and 2 is not in a position to point out how the finding of fact given by both the Courts below with respect to non user and arrears of rent are contrary to the evidence on record. As observed by the learned Trial Court on appreciation of evidence that the petitioners - original defendants No. 1 and 2 had failed to adduce any evidence to show that the suit property was used by him preceding six months. Under the circumstances, no illegality has been committed by the learned Trial Court in decreeing the suit under Section 12(3)(a) and 13(1) (k) of the Bombay Rent Act and the same is rightly confirmed by the learned Appellate Court.
10. Learned Advocate Mr. Mahendra K. Patel, appearing for the respondents - original defendants No. 1 and 2 has brought to the notice of the Court to a decision dated 24.4.2012 of this Court passed in Civil Revision Application No.193 of 2005 and placed a copy of the same on the record of this case. It is submitted by Mr. Patel that the facts involved in the present case are similar in nature and the parties before this Court are the same, however, the disputed property is different. Mr. Pravin Panchal, learned Advocate, appearing for Mr. P.K.Jani, for the respondents – plaintiffs has not controverted the said facts. It appears that, as stated here- in-above, in the above referred judgment also, the tenant had committed breach of Section 13(1)(k) as well as held that the landlord was entitled for decree of eviction under Section 12(3)(a) of the Bombay Rent Act. I am in agreement with the aforesaid proposition of law laid down by this Court in the aforesaid judgment.
11. In view of the above and for the reasons stated here-in- above, the present Civil Revision Application fails and is dismissed accordingly. Rule is discharged. There shall be no order as to costs. Interim relief granted earlier, if any, stands vacated forthwith.
(A.J. DESAI, J.) pnnair