1. The present Civil Revision Application under Section 29(2) of the Bombay Rent Act has been preferred by the applicants-original plaintiffs to quash and set aside the impugned judgment and decree passed by the learned Joint Civil Judge (Junior Division), Dhrangadra dated 14/10/2002 in Regular Civil Suit No. 125/1986 by which the learned trial Court has dismissed the suit preferred by the applicants-original plaintiffs and refused to pass the eviction decree against the respondent-original defendant as well as the impugned judgment and order passed by the learned Additional District Judge, Dhrangadhra dated 23/06/2008 in Regular Civil Appeal No. 6/2003 by which the learned appellate Court has dismissed the said appeal confirming the judgment and decree passed by the learned trial Court dismissing the suit.
2. The applicants-original plaintiffs-landlord instituted Regular Civil Suit No. 125/1986 against the respondent-original defendant for eviction decree in the Court of learned Civil Judge (Junior Division), Dhrangadhra on the ground of arrears of rent; non user of the suit property by the respondent-original defendant-tenant for more than six months without reasonable cause under Section 13(1)(k) and under Section 13(1)(g) of the Bombay Rent Act on the ground of bonafide requirement of the applicants-original plaintiffs. Initially the learned trial Court framed the issues at Exh. 13 and the deposition of applicant no. 2-original plaintiff no. 2, Jitendra Gulabchand Sheth was taken at Exh. 47. However, neither the respondent-original defendant nor his advocate remained present to cross examine the said witness, Shri Jitendra Gulabchand Sheth, and, therefore, right of the respondent-original defendant to cross examine the applicants-original plaintiffs was closed. Thereafter, the applicants-original plaintiffs produced written submissions at Exh.
99. However, subsequently, the respondent-original defendant preferred Civil Revision Application No. 92/2000 before this Court and the order passed by the learned trial Court below Exh. 106 came to be set aside and the right of the respondent-original defendant to lead the evidence was open.
Thereafter, the respondent-original defendant filed the written statement at Exh. 135. The respondent-original defendant denied that he was in arrears of rent. The respondent-original defendant also denied the allegation with respect to non-user of the suit property for more than six months. Thereafter, both the parties led the evidence and thereafter on appreciation of evidence the learned trial Court held all the issues in the negative and against the applicants-original plaintiffs-landlord and refused to pass the eviction decree on the ground of arrears of rent; non-user of the suit property by the respondent-original defendant-tenant for more than six months without reasonable cause and on the ground of bonafide requirement and consequently, vide judgment and decree dated 14/10/2002 dismissed the suit. Being aggrieved and dissatisfied with the impugned judgment and decree passed by the learned Joint Civil Judge (Junior Division), Dhrangadhra in Regular Civil Suit No. 125/1986 in dismissing the suit the applicants-original plaintiffs preferred Regular Civil Appeal No. 6/2003 before the learned Additional District Judge, Dhrangadhra and vide impugned judgment and order dated 23/06/2008 learned Additional District Judge, Dhrangadhra dismissed the said appeal confirming the judgment and decree passed by the learned trial Court dismissing the suit and refusing to pass the eviction decree. Being aggrieved and dissatisfied with the impugned judgment and orders passed by both the Courts below the applicants-original plaintiffs have preferred the present Civil Revision Application under Section 29(2) of the Bombay Rent Act.
3. Shri Karia, learned advocate appearing on behalf of the applicants-original plaintiffs has vehemently submitted that both the Courts below have materially erred in not passing the eviction decree on the ground of non-user of the suit property by the respondent-original defendant-tenant for more than six months without reasonable cause. It is submitted that admittedly the case on behalf of the respondent-original defendant was that he is doing the business of small savings from his residence and his case that he was doing the business of selling milk from the disputed property in question has not been proved and, therefore, both the Courts below ought to have passed the eviction decree on the ground of non-user of the suit property. It is further submitted that there is specific finding of the learned trial Court that the suit property was not being used by the respondent-original defendant for any purpose whatsoever for atleast 10 years, still the learned trial Court has refused to pass the eviction decree on the ground of non-user, which deserves to be quashed and set aside. It is further submitted that even otherwise, the finding given by both the Courts below with respect to non-user is contrary to the evidence on record, more particularly, when the respondent-original defendant has failed to prove that he was using the suit land by keeping the cows and buffaloes and was doing the business of selling milk. By making the above submission, it is requested to allow the present Civil Revision Application.
4. The present Civil Revision Application is opposed by Shri K.V. Shelat, learned advocate appearing on behalf of the respondent-original defendant-tenant. It is submitted that as such there are concurrent findings of fact given by both the Courts below on non-user etc., which are on appreciation of evidence on record, which are not required to be interfered with by this Court in exercise of revisional jurisdiction. It is submitted that both the Courts below have rightly not passed the eviction decree under Sections 13(1)9k) and 13(1)(g) of the Bombay Rent Act as well as on the ground of arrears of rent. It is further submitted by Shri Shelat, learned advocate appearing on behalf of the respondent-original defendant that as such there are no proper pleadings so far as non-user is concerned and even no proper issue has been framed by the learned trial Court with respect to non-user of the suit property. It is submitted that as such the learned trial Court ought to have framed the proper issue with respect to non-user and ought to have framed the issue that whether there was non-user of the suit property by the respondent-original defendant for more than six months without reasonable cause? It is submitted that the learned trial Court ought to have framed the issue with respect to non-user considering Section 13(1)(k) of the Bombay Rent Act and, therefore, it is submitted that as no proper issue was framed by the learned trial Court so far as non-user is concerned and, therefore, no decree can be passed against the respondent-original defendant with respect to non-user under Section 13(1)(k) of the Bombay Rent Act. Shri Shelat, learned advocate appearing on behalf of the respondent-original defendant has relied upon Order 7 Rule 7 of the Code of Civil Procedure. In support of his above submission, Shri Shelat, learned advocate appearing on behalf of the respondent-original defendant has relied upon the decision of the Hon'ble Supreme Court in the case of Bharat Amratlal Kothari Vs. Dosukhan Samadkhan Sindhi & Ors reported in 2010(1) GLH 221 submitting that in absence of any proper pleadings so far as non-user is concerned, no decree for eviction on the ground of non-user can be passed.
5. Shri Shelat, learned advocate appearing on behalf of the respondent-original defendant has further submitted that for eviction decree under Section 13(1)(k) of the Bombay Rent Act i.e on the ground of non-user, the applicants-original plaintiffs has to plead and prove that the respondent-original defendant has not used the suit premises for more than six months without reasonable cause preceding the date of the suit. It is submitted that unless the aforesaid is proved, no eviction decree can be passed under Section 13(1)(k) of the Bombay Rent Act. In support of his above submission, Shri Shelat, learned advocate appearing on behalf of the respondent-original defendant has relied upon the decision of the learned Single Judge in the case of Mohini Bhiryomal Hingorani Vs. Bhanubhai Manilal Patel reported in 1984 GLH 649.
Making the above submissions and relying upon the above decisions, it is requested to dismiss the present Civil Revision Application.
6. In reply, Shri Karia, learned advocate appearing on behalf of the applicants-original plaintiffs has heavily relied upon the decision of the Division Bench of this Court in the case of Vohara Abbasali Mahomadalli Lakhawala Vs. The State of Gujarat reported in AIR 1971 GUJARAT 241 and has submitted that as such the learned trial Court has specifically framed issue no. 2 with respect to non-user and the parties also went ahead with the trial on the same issue and led the evidence on non-user and at no point of time the respondent-original defendant made any grievance with respect to not framing the proper issue on the ground of non-user and, therefore, it is not open for the respondent-original defendant now to make the grievance with respect to not framing the proper issue with respect to non-user. Relying upon the above decision, it is submitted that as held by the Division Bench of this Court in the case of Vohara Abbasali Mahomadalli Lakhawala (Supra) it is not the form of the prayer but the substance thereof which should be looked into by the Court for granting the relief. Making the above submission, it is requested to allow the present Civil Revision Application.
7. Heard the learned advocates appearing on behalf of the respective parties at length and considered and gone through the impugned judgment and orders passed by both the Courts below, more particularly, the judgment and decree passed by the learned trial Court dismissing the suit. At the outset, it is required to be noted that the applicants-original plaintiffs prayed for eviction decree on the ground of arrears of rent; non-user of the suit premises by the respondent-original defendant i.e. under Section 13(1)(k) of the Bombay Rent Act as well as on the ground of bonafide requirement of the suit premises by the applicants-original plaintiffs. It is also required to be noted that the learned trial Court framed issue no. 2 with respect to non-user and parties went ahead with the trial on the issue, which was framed by the learned trial Court and the parties also led the evidence. At no point of time, the respondent-original defendant raised any issue with respect to not framing the proper issue with respect to non-user and, therefore, it is not open for the respondent-original defendant now to make any grievance with respect to non-user. Even the contention on behalf of the respondent-original defendant that there were no pleadings and/or no prayer with respect to eviction on the ground of non-user, cannot be accepted now as both the parties went ahead with the trial with respect to non-user after the learned trial Court framed issue no. 2 with respect to non-user. In view of the aforesaid facts and circumstances and in light of the decision of the Division Bench of this Court in the case of Vohara Abbasali Mahomadalli Lakhawala (Supra) the contention on behalf of the applicants-original plaintiffs that as proper issue was not framed by the learned trial Court on the ground of non-user and/or there was no proper pleadings and/or prayer in the suit to pass the eviction decree on the ground of non-user and, therefore, no eviction decree can be passed, cannot be accepted.
7.1. Now so far as the case on behalf of the applicants-original plaintiffs on non-user of the suit premises by the respondent-original defendant is concerned, considering the judgment and decree passed by the learned trial Court it appears that as such the learned trial Court has specifically given the finding that the respondent-tenant has not used the suit premises since last more than 10 years and still the learned trial Court has not passed the eviction decree under Section 13(1)(k) of the Bombay Rent Act. Even, the finding given by the learned trial Court that the respondent-original defendant has not used the suit premises since last 10 years has not been challenged by the respondent-original defendant. It appears from the evidence on record and the findings given by both the Courts below that the respondent-original defendant has failed to prove that he was keeping cattle in the suit premises and he was doing the business of selling milk from the suit premises on the contrary it has come on record that the tenant was doing the business of small savings from his residence. Considering the aforesaid facts and circumstances of the case, the learned trial Court ought to have passed the eviction decree on the ground of non-user of the suit premises by the respondent-original defendant under Section13(1)(k) of the Bombay Rent Act. The contention on behalf of the respondent-original defendant that no eviction decree can be passed against the respondent-original defendant under Section 13(1)(k) of the Bombay Rent Act cannot be accepted. It is required to be noted that as such the suit land in question is open piece of land and as held by the learned trial Court the respondent-original defendant has not used the suit premises since last more than 10 years. Considering the aforesaid facts and circumstances of the case, the learned trial Court ought to have passed the eviction decree under Section 13(1)(k) of the Bombay Rent Act. The learned trial Court has materially erred in not considering the aforesaid facts and circumstances and has materially erred in dismissing the appeal confirming the judgment and decree passed by the learned trial Court, which deserved to be quashed and set aside.
8. In view of the above and for the reasons stated hereinabove, the present Civil Revision Application succeeds. The impugned judgment and decree passed by the learned Joint Civil Judge (Junior Division), Dhrangadra dated 14/10/2002 in Regular Civil Suit No. 125/1986 and the judgment and order passed by the learned Additional District Judge, Dhrangadhra dated 23/06/2008 in Regular Civil Appeal No. 6/2003 are hereby quashed and set aside and the suit preferred by the applicants-original plaintiffs is hereby partly allowed by passing the eviction decree on the ground of non-user under Section 13(1)(k) of the Bombay Rent Act and the respondent-original defendant is hereby directed to handover peaceful and vacant possession of the suit premises to the applicants-original plaintiffs within a period of three months from today. Rule is made absolute accordingly. No cost.
(M.R.
SHAH, J.) siji Top