1. The present Civil Revision Application u/s.29(2) of the Bombay Rent Act has been preferred by the petitioners herein – original plaintiffs to quash and set aside the judgement and decree dated 09/12/1999 passed by learned Appellate Bench of Small Causes Court, Ahmedabad in Civil Appeal No.146 of 1999, by which, learned Appellate Bench of Small Causes Court has allowed the said appeal preferred by the original defendant (who has died during the pendency of the present Civil Revision Application) and has quashed and set aside judgement and decree dated 20/07/1999 passed by learned Small Causes Court, Ahmedabad passing eviction decree against the defendant herein – tenant on the ground that she was a service tenant and thereafter she has no right to continue in the suit premises after she retired.
2. That the petitioners herein – original plaintiffs instituted HRP Suit No.3223 of 1988 against the original defendant – Maniben Pitambardas – tenant in the Court of learned Small Causes Court at Ahmedabad for recovery of possession on the ground of arrears of rent, acquisition of suitable residence and on the ground that the suit premises was tenanted to the defendant while she was in service as a service tenant and defendant has no right as a tenant other than by virtue of her service and she has not right to continue in the suit premises after retirement.
That the suit was resisted by the original defendant by filing written statement at Exh.11 contending inter alia that the petitioners have no right to file suit as suit property is not described properly by any manner and boundaries and she was not serving with the plaintiffs, learned Trial Court framed following issues at Exh.28:
“(1) Whether the plaintiffs prove that the suit premises were let to the defendant on the conditions stated in Para-4 of the plaint Exh.1?
(2) Whether the plaintiffs prove that the defendant has become tenant-in-arrears of rent?
(3) Whether the plaintiffs prove that the defendant has acquired suitable residential accommodation as alleged?
(4) What is found due from defendant to plaintiffs?
(5) Whether the plaintiffs are entitled to get vacant and peaceful possession of the suit premises?
(6) What order and decree?”
Both the parties led evidence documentary as well as oral inclusive of the lease agreement executed between the plaintiffs and defendant-tenant at Exh.66, under which, the property was let to the defendant on the terms and conditions mentioned in the said lease agreement but the plaintiffs did not press the issue with respect to arrears of rent. On appreciation of evidence, learned Trial Court held that the defendant has failed to prove that she is tenant of the suit premises since 1961 and considering the lease agreement at Exh.66, learned Trial Court held that the suit property was given to the defendant as a service tenant and after retired from the service, she was not entitled to retain the possession of the suit premises and, therefore, learned Trial Court passed eviction decree under section 13(1)(f) of the Bombay Rent Act. Being aggrieved by and dissatisfied with the judgement and decree dated 20/07/1999 passed by learned Small Causes Court, Ahmedabad in HRP Suit No.3223 of 1988, original defendant – tenant has preferred the Civil Appeal No.146 of 1999 before learned Appellate Bench of Small Causes Court at Ahmedabad and learned Appellate Bench of Small Causes Court has allowed the said appeal and has quashed and set aside the judgement and decree passed by learned Trial Court on the ground that the suit property was not properly described in the plaint. The original plaintiffs have failed to establish the description of the property at Exh.66, for which, the suit is filed.
Being aggrieved by and dissatisfied with the impugned judgement and order dated 09/12/1999 passed by learned Appellate Bench of Small Causes Court, Ahmedabad in allowing the said appeal preferred by the original defendant-tenant in passing the eviction decree, the petitioners herein – original plaintiffs have preferred the present Civil Revision Application u/s.29(2) of the Bombay Rent Act.
3. Mr.Munshi, learned advocate appearing on behalf of the applicants herein – original plaintiffs has submitted that learned Appellate Bench of Small Causes Court has materially erred in quashing and setting aside the judgement and decree passed by learned Trial Court. It is submitted that no issue was raised by learned Trial Court with respect to description of the suit property and document at Exh.66, which was relied upon by learned Trial Court and, therefore, learned Appellate Court has materially erred in allowing the appeal and quashing and setting aside the judgement and decree passed by learned Trial Court. It is submitted that execution of the document was never challenged by the defendant. Now, it was not open for the defendant subsequently to raise issue with respect to title, ownership of the plaintiffs and raise the dispute with respect to description, etc.. Initially, the plaintiffs executed agreement at Exh.66, which is not in dispute that learned Trial Court passed eviction decree considering the document mentioned at Exh.66 and treating the defendant as service tenant as she was in service, learned Appellate Court has materially erred in passing impugned judgement and order. By making above submissions, it is requested to allow the present Civil Revision Application.
4. Mr.Jigar Patel, learned advocate appearing on behalf of heirs and legal representatives of original defendant has tried to support the judgement and order passed by learned Appellate Bench of Small Causes Court. It is submitted that when there was no proper description of the property in plaint and when locus of the plaintiffs to institute suit with respect to suit property was disputed by the defendant-tenant, learned Appellate Court has rightly quashed and set aside the decree passed by learned Trial Court by observing that there was no description of the suit property in the plaint and the plaintiffs have failed to prove description of the property at Exh.66 is the very property for which suit has been instituted. Therefore, it is requested that judgement and order passed by learned Appellate Court is not required to be quashed and set aside by this Court. By making above submissions, it is requested to dismiss the present application.
5. Heard learned advocates appearing on behalf of the respective parties at length and considered the impugned judgement and orders passed by both the Courts below as well as evidence on record from the records and proceedings, which has been received from learned Trial Court.
6. At the outset, it is requested to be noted that the suit property in question was let to the original defendant under lease agreement between the plaintiffs and defendant produced at Exh.66 at monthly rent of Rs.15/- per and municipal taxes. Considering the conditions mentioned in the said agreement, it appears to the Court that she was in service and document at Exh.66 has not been disputed by the original defendant. Under the circumstances, learned Trial Court passed eviction decree u/s.13(1)(f) of the Bombay Rent Act as defendant-tenant was a service tenant and who had no authority to continue with the possession of suit property after she retired. From the judgement and order passed by learned Appellate Court, it appears that learned Appellate Court has quashed and set aside the judgement and decree solely on the ground that there was no description of the suit property in the plaint and the plaintiff has failed to prove that property mentioned in document at Exh.66 is very property, for which, the suit is filed. It is required to be noted that admittedly the defendant is in possession pursuant to the agreement produced at Exh.66. Even the aforesaid was not disputed before learned Trial Court. Even no such issue was framed by learned Trial Court. Under the circumstances, when document at Exh.66 is not disputed by the defendant under which suit property in question was given on lease to the defendant as service-tenant and after she has retired from the service, she was not entitled to continue with the possession of the suit property and learned Trial Court passed decree u/s.13(1)(f) of the Bombay Rent Act, which was not required to be interfered with by this Court as original respondent-tenant has also expired and heirs are brought on record and it appears that heirs are residing in different places. Under the circumstances, impugned order passed by learned Appellate Bench of the Small Causes Court cannot be sustained.
7. In view of the above and for the reasons stated hereinabove, the present Civil Revision Application succeeds and the impugned judgement and order dated 09/12/1999 passed by learned Appellate Bench of Small Causes Court in Civil Appeal No.146 of 1999 is hereby quashed and set aside and eviction decree passed by learned Small Causes Court at Ahmedabad in HRP Suit No.3223 of 1988 is hereby restored. Rule is made absolute accordingly. No costs.
[M.R.SHAH,J] *dipti