1. By way of the present Civil Revision Applications u/s.29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, [hereinafter referred to as “the Act”], the petitioners - original plaintiffs – landlords have challenged the judgement and order dated 20/12/2005 passed in Regular Civil Appeal No.36 of 1995 as well as judgement and order dated 20/12/2005 passed in Regular Civil Appeal No.35 of 1995 by learned Principal District Judge, Kachchh at Bhuj, by which, the appeals filed by the present respondents challenging the judgement and decree passed in favour of original plaintiffs-landlord have been allowed and the judgements and decree passed by the learned Trial Court have been quashed and set aside.
2. Brief facts arising from these Civil Revision Applications, are as under:
That the present petitioners – landlord filed Regular Civil Suit No.105 of 1985 in the Court of learned Civil Judge (J.D.), Mandvi, District: Kachchh and prayed for a decree in the nature of permanent injunction restraining the respondents not to construct any bathroom/ toilet, etc. in the suit premises or on the land of ownership of the plaintiff adjacent to the suit premises and also prayed for decree that if such construction is made, the same shall be removed. The said Suit was filed before the Court on 27/05/1985. After filing of the suit, the landlord filed another suit being Regular Civil Suit No.130 of 1985 in the Court of learned Civil Judge (J.D.), District: Mandvi, Kachchh under the provisions of the Bombay Rent Act and prayed for a decree of eviction on several grounds.
Both these Suits were heard by learned Civil Judge (J.D.), Mandvi, Kachchh and both the Suits were allowed on 30/03/1995 by separate judgements. Learned Civil Judge held that the landlord was entitled for decree of eviction u/s.13(1) (b) of the Bombay Rent Act, that means, learned Judge came to the conclusion that tenant has carried out alterations in the premises of permanent nature and another suit, which was filed by the landlord being Regular Civil Suit No.105 of 1985 also decreed and tenants were directed to remove the toilet/ latrine constructed adjacent to the suit premises within a period of two months.
3. Being aggrieved by and dissatisfied with both the judgements and decree passed by learned Civil Judge, the tenant challenged the same by way of separate appeals, being Regular Civil Appeal No.35 of 1995 and 36 of 1995 in the court of learned Principal District Judge, Kachchh at Bhuj. Learned Appellate Court allowed both the appeals by separate orders on the same day i.e. on 20/12/2005. Regular Civil Appeal No.36 of 1995 by which the decree passed under the provisions of Section 13(1)(b) of the Bombay Rent Act, was allowed and it was held that construction of bathroom/toilet adjacent to the suit premises is of such a nature, which can be removed without serious damage to the property of landlord and, therefore, landlord would not be entitled for decree of eviction under the Explanation provided under Section 13(1) (b) of the Bombay Rent Act. On the same day, learned Civil Judge allowed Regular Civil Appeal No.35 of 1995 and set aside the judgement and decree passed in Regular Civil Suit No.105 of 1985, by which, learned Trial Court has directed to remove the construction made by the tenant. Hence, the landlord preferred both these Civil Revision Applications u/s.29(2) of the Bombay Rent Act.
4. I have heard learned advocates appearing on behalf of the respective parties. Mr.S.M.Shah, learned advocate appearing on behalf of the petitioners has relied upon several judgements. Similarly, Mr.C.H.Vora, learned advocate appearing on behalf of the respondents has also relied upon several judgements and tried to support the judgements delivered by the Appellate Court.
5. I have gone through the reasons assigned by the learned Appellate Court while allowing Regular Civil Appeal No.35 of 1995. It appears that learned Appellate Court has not assigned any reasons in allowing the said appeal except recording that since the appeal filed by the tenant challenging the judgement and decree passed under section 13(1)(b) of the Bombay Rent Act is allowed, the appeal, which was independently filed by the tenant challenging the judgement and decree of removing the construction is also required to be allowed and the same was also allowed.
6. In my view, the learned Appellate Judge ought to have decided Regular Civil Appeal No.35 of 1995 independently and ought to have given proper reasons for allowing the said appeal. Since both the matters are inter- connected, it would be in the fitness of things that both the judgements and orders dated 20/12/2005 passed in two appeals i.e. Regular Civil Appeal No.35 of 1995 and Regular Civil Appeal No.36 of 1995 be quashed and set aside and the matters are remanded to learned Appellate Court for afresh consideration without in any way being influenced by any observations made by this Court in this judgement. It is desirable to request the learned Appellate Court to decide the said appeals as early as possible and preferably within a period of three months since the Suits were filed in the year 1985 and Appeals were filed in the year 1995.
7. In view of the above, the present Civil Revision Applications are allowed. Both the judgements and orders dated 20/12/2005 passed by learned Appellate Court in two appeals i.e. Regular Civil Appeal No.35 of 1995 and Regular Civil Appeal No.36 of 1995 are hereby quashed and set aside. Learned Appellate Court is hereby requested to decide and dispose of the aforesaid appeals as early as possible and preferably on or before 31/03/2013. Rule is made absolute in each revision applications, to the aforesaid extent.
Office is directed to send record and proceedings of the appeals/suits to the learned Principal District Judge, Kachchh at Bhuj immediately.
sd/-
[A.J.DESAI, J.] *dipti