1.00. Present Civil Revision Application under section 29(2) of the Bombay Rent Act has been preferred by the petitioners - original defendants to quash and set aside the impugned judgement and decree passed by the learned Civil Judge (J.D.), Mahuva in Regular Civil Suit No.138 of 1987 dtd.27/3/2002, by which the learned trial court has passed eviction decree against the petitioners - original defendants on the ground of non-user of the suit premises for more than six months preceding filing of the suit without reasonable cause and also on the ground that the petitioners - original defendants have acquired suitable accommodation. That the petitioners – original defendants have also prayed to quash and set aside the impugned Judgement and Order passed by the learned appellate court - learned 3rd Additional District Judge, Bhavnagar Camp at Mahuva in Regular Civil Appeal No. 43 of 2002 dtd.15/9/2011, by which the learned appellate court has dismissed the said appeal confirming the judgement and decree passed by the learned trial court decreeing the suit. 2.00. That the respondents herein – original plaintiffs instituted Regular Civil Suit No. 138 of 1987 in the court of learned Civil Judge (J.D.), Mahuva against the petitioners - original defendants for recovery of possession and eviction decree under section 13(1)(k) and 13(1)(g) of the Bombay Rent Act i.e. on the ground of non-user of the suit premises by the tenant for more than six months preceding filing of the suit without reasonable cause and also on the ground that the defendants have acquired alternative accommodation for their business.
2.01. That the suit was resisted by the petitioners - original defendants by filing Written Statement denying the allegations of non-user as well as having acquired alternative accommodation. It was also denied that the suit premises is bonafide required by the plaintiffs.
2.02. That the learned trial court framed the issues at Ex.25. That the Court Commissioner was appointed to prepare Panchnama of the suit property as well as premises alleged to have been purchased and/or used by the defendants as alternative accommodation and the Panchnama was produced at Ex.131.
2.03. That on behalf of the plaintiffs, the the plaintiffs came to be examined at Ex.127. That thereafter on appreciation of evidence and considering the Panchnama prepared by the Court Commissioner, the learned trial court by the judgement and decree dtd.27/3/3002 partly decreed the suit passing eviction decree on the ground of non-user of the suit premises by the defendants – tenants for more than six months preceding filing of the suit without reasonable cause as well as on the ground that the defendants have acquired suitable accommodation and that they are doing Lati business in the said premises.
2.04. Being aggrieved by and dissatisfied with the judgement and decree passed by the learned Civil Judge (J.D.), Mahuva in Regular Civil Suit No.138 of 1987 dtd.27/3/2002, petitioners - original defendants – tenants preferred Regular Civil Appeal No. 43 of 2002 before the learned District Court, Bhavnagar and the learned appellate court - learned 3rd Additional District Judge, Bhavnagar Camp at Mahuva by the impugned Judgement and Order has dismissed the appeal confirming the judgement and decree passed by the learned trial court.
2.05. Being aggrieved by and dissatisfied with the Judgement and Orders / decrees passed by both the courts below in decreeing the suit and passing eviction decree against the petitioners on the ground of non-user of the suit premises by the defendants for more than six months preceding filing of the suit without reasonable cause, and on the ground that the defendants – tenants have acquired suitable accommodation, petitioners herein – original defendants – tenants have preferred present Civil Revision Application under section 29(2) of the Bombay Rent Act.
3.00. Mr.H.K. Patel, learned advocate appearing on behalf of the petitioners has vehemently submitted that both the court below have materially erred in holding that the defendants have not used the suit premises for more than six months preceding filing of the suit. It is submitted that the learned trial court has materially erred in relying upon the Panchnama. It is submitted that as such the defendants were using the suit premises. It is further submitted that even the alleged alternative accommodation is by way of lease and that the defendants have not purchased the said premises in which they have found to be doing business and therefore, it cannot be said that the defendants have acquired the alternative suitable accommodation. By making above submissions, it is requested to allow the present Civil Revision Application.
4.00. Heard Mr.H.K. Patel, learned advocate appearing on behalf of the petitioners – original defendants – tenants and considered and gone through the impugned Judgement and Orders / decrees passed by both the courts below.
5.00. At the outset,it is required to be noted that there are concurrent finding of facts given by both the courts below on the aspect of non-user of the suit premises by the defendants - tenants for more than six months preceding filing of the suit without reasonable cause as well as holding that the tenants have acquired alternative suitable accommodation. The said findings of facts are on appreciation of evidence which are not required to be interfered with by this Court in exercise of powers under section 29(2) of the Bombay Rent Act.
5.01. Even otherwise, considering the fact and from the Panchnama prepared by the Court Commissioner that the suit premises was found to be closed and was found to be non-used and there was nothing in the suit premises by which it can be said that the said premises is being used by the tenants and even considering the fact that there was no electricity connection and on the other hand having found that the defendants were doing business of selling woods etc. in another premises (which is considered to be acquired as alternative suitable accommodation), it cannot be said that the learned trial court has committed any error and/or illegality in passing the eviction decree on the ground of non-user as well as on the ground that the defendants – tenants have acquired alternative suitable accommodation.
5.02. Considering the facts and circumstances of the case, it appears that the learned trial court is justified in passing eviction decree on the aforesaid grounds and the same is rightly confirmed by the learned appellate court. No illegality has been committed by the courts below in passing eviction decree and the same do not call for interference of this Court in exercise of revisional jurisdiction.
6.00. In view of the above, there is no substance in the present Civil Revision Application and the same deserves to be dismissed and is accordingly dismissed. No costs.
[M.R. SHAH, J.] rafik