1. The present Civil Revision Application under Section 29(2) of the Gujarat Rent Hotel and Lodging House Rates Control Act, 1947 has been preferred by the applicants-original plaintiffs to quash and set aside the impugned judgment and decree passed by the learned Small Cause Court at Ahmedabad dated 29/10/1999 in H.R.P Suit No. 1896/1989 by which the learned trial Court has refused to grant eviction decree against the respondents-original defendants on the ground of arrears of rent and/or subletting of the suit premises, which is confirmed by the learned appellate Bench of the learned Small Cause Court at Ahmedabad by impugned judgment and order dated 02/09/2011 in Regular Civil Appeal No. 216/1999.
2. The applicants-original plaintiffs instituted H.R.P. Suit No. 1896/1989 against the respondents-original defendants in the Small Cause Court at Ahmedabad for recovery of possession of the suit premises on the ground of arrears of rent as well as subletting. It was the case on behalf of the applicants-original plaintiffs that the rent for more than six months is due and payable. It was also the case on behalf of the applicants- original plaintiffs that original defendant no. 1 has sublet the suit property to Good Luck Electric Company and has permitted original defendant no. 4 to put hoarding on the gallery. The suit was resisted by the respondents-original defendants by submitting that as such original defendant no. 1 did tender the rent by cheque as well as by Money Order, which came to be refused by the applicants-original plaintiffs and, therefore, it was submitted that original defendant no. 1 was always ready and willing to deposit/pay the rent, which was not accepted by the landlord. So far as subletting is concerned, it was the case on behalf of original defendant no. 1 that he has not sublet the suit property to original defendant no. 4 as alleged. Original defendant no. 4 also denied that original defendant no. 1 has sublet the suit premises to it. On appreciation of evidence, the learned trial Court dismissed the suit and refused to pass eviction decree on the ground of arrears of rent as well as on the ground of subletting. Being aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court dismissing the suit and refusing to pass the eviction decree on the ground of arrears of rent and subletting, the applicants- original plaintiffs preferred Regular Civil Appeal No. 216/1999 before the learned Small Cause Court at Ahmedabad and vide impugned judgment and order dated 02/09/2011 the learned appellate Bench has been pleased to dismiss the Appeal confirming the judgment and decree passed by the learned trial Court dismissing the suit. Being aggrieved and dissatisfied with the impugned judgment and decree passed by both the Courts below in dismissing the suit and not passing the decree of eviction on the ground of arrears of rent and subletting, the applicants-original plaintiffs have preferred the present Civil Revision Application under section 29(2) of the Bombay Rent Act.
3. Shri A.R. Thacker, learned advocate has appeared for Shri B.P. Munshi, learned advocate appearing on behalf of the applicants-original plaintiffs. Shri Thacker, 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 decree on the ground of subletting and on the ground of arrears of rent. Shri Thacker, learned advocate appearing on behalf of the applicants-original plaintiffs has vehemently submitted that as original defendant no. 1 did not deposit the arrears of rent on the first date of filing of the suit the case falls under Section 12(3) (b) of the Bombay Rent Act and, therefore, the learned trial Court ought to have passed the decree on the ground of arrears of rent. Shri Thacker, learned advocate appearing on behalf of the applicants-original plaintiffs has further submitted that even the learned trial Court ought to have passed the decree on the ground of subletting as the entire suit property was sublet to original defendant no.1, inclusive of the railing area and original defendant no. 1 permitted original defendant no. 4 to place the hoarding without prior permission of the applicants- original plaintiffs and, therefore, the learned trial Court ought to have passed the eviction decree on the ground of subletting. It is further submitted that even original defendant no. 4 failed to prove that he was permitting to place the hoarding on the railing by the applicants-original plaintiffs. Making the above submissions, it is requested to admit/allow the present Civil Revision Application.
4. Heard Shri Thacker, learned advocate appearing on behalf of the applicants-original plaintiffs at length and considered and gone through the impugned judgment and orders passed by both the Courts below. At the outset, it is required to be noted that there are concurrent finding of fact given by both the Courts below holding that original defendant no. 1 was always ready and willing to deposit the rent. There are concurrent finding of fact given by both the Courts below on appreciation of evidence that the applicants-original plaintiffs has failed to prove that original defendant no. 1 has sublet the premises to original defendant no. 4 as alleged. Considering the judgment and order passed by both the Courts below and the reasoning, it appears that the finding of fact given by both the Courts below are on appreciation of evidence. So far as arrears of rent is concerned, it is required to be noted that the original defendant no. 1 did tender the arrears of rent by cheque as well as by Money Order, however, the same came to be refused by the applicants-original plaintiffs. In view of the above, it cannot be said that tenant is negligent in depositing/paying the rent and/or he was not ready and willing to pay the rent. There is no explanation whatsoever on behalf of the applicants-original plaintiffs to refuse the cheque and/or Money Order. Considering the aforesaid facts and circumstances of the case, when the learned trial Court has refused to pass the eviction decree on the ground of arrears of rent and the same is confirmed by the learned appellate Court, it cannot be said that both the Courts below have committed any error and/or illegality. Now so far as the case on behalf of the applicants-original plaintiffs with respect to subletting is concerned, it appears that it was the case on behalf of the applicants-original plaintiffs that original defendant no. 1 has permitted original defendant no. 4 to place the hoarding on the suit premises/railing and, therefore it was alleged that original defendant no. 1 has sublet the suit premises. It is required to be noted that nothing was placed on record that the gallery was also rented to original defendant no. 1-tenant. On appreciation of evidence, the learned trial Court has specifically held that original defendant no. 4 has placed the hoarding on the railing of the suit property and original defendant no. 1 was rented one room except the gallery and, therefore, the gallery was not the part and parcel of the suit premises. Considering the decision of this Court in the case of Abduljadar Ahamed Turava Vs. Lalla Abdulrasid reported in 22 GLR 1264 and considering the aforesaid facts and circumstances when the learned trial Court has refused to pass the eviction decree on the ground of subletting, it cannot be said that the learned trial Court has committed any error and/or illegality. Considering the aforesaid facts and circumstances of the case, no case is made out to interfere with the impugned orders passed by both the Courts below dismissing the suit and not passing the decree of eviction decree on the ground of arrears of rent and subletting.
5. In view of the above, there is no substance in the present Civil Revision Application, which deserves to be dismissed and is accordingly dismissed. Notice is discharged. Ad-interim relief granted earlier, if any, stands vacated forthwith.
(M.R. SHAH, J.) siji