1. The present Civil Revision Application under Section 29(2) of the Bombay Rent Act has been preferred by the applicant- original defendant to quash and set aside the impugned judgment and decree passed by the learned Civil Judge (Judicial Magistrate), Visnagar dated 31/03/2003 in Regular Civil Suit No. 15/2001 by which the learned trial Court has passed the eviction decree against the applicant-original defendant and one another 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, as well as the impugned judgment and order passed by the learned appellate Court in Regular Civil Appeal No. 20/2003 by which the learned appellate Court has dismissed the appeal preferred by the applicant-original defendant no. 1 and has confirmed the judgment and decree passed by the learned trial Court.
2. Respondents nos. 1 to 6-original plaintiffs instituted Regular Civil Suit No. 15/2001 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. 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. 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. 51/2001 the applicant-original defendant no. 1 preferred Regular Civil Appeal No. 20/2003 before the learned District Court, Mehsana and the learned Joint District Judge and Presiding Officer, Mehsana by impugned judgment and order dated 26/07/2005 dismissed the said appeal confirming the judgment and decree passed by the learned trial Court. Being aggrieved and dissatisfied with the impugned judgment and decree passed by the learned trial Court in decreeing the suit the applicant-original defendant no.
1 has preferred the present Civil Revision Application under Section 29(2) of the Bombay Rent Act.
3. Shri Keyur Vyas, learned advocate appearing on behalf of the applicant-original defendant no. 1 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 applicant-original defendant no. 1 tenant had already paid arrears of rent and, therefore, both the Courts below have materially erred in passing the decree for more than six months i.e. 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 applicant and, therefore, it is requested to allow the present Civil Revision Application. It is further submitted by Shri Vyas, learned advocate appearing on behalf of the applicant-original defendant no. 1 that the applicant-original defendant no. 1 is ready and willing to clear the arrears, if any, as on today, if his possession is protected. Making the above submission, it is requested to allow the present Civil Revision Application. No other submissions have been made.
4. The present Civil Revision application is opposed by Shri Mahendra Patel, learned advocate appearing on behalf of the respondent. 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 trial 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.
5. 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 trial 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 of 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, 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.
6. It is also required to be noted that even the learned trial Court has 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 applicant-original defendant no. 1 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 applicant-original defendant no. 1 has 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.
7. In view of the above and for the reasons stated herienabove, the present Civil Revision Application fails and the same deserves to be dismissed and is accordingly dismissed. Rule is discharged. Ad-interim relief granted earlier, if any, stands vacated forthwith.
(M.R. SHAH, J.) siji