Date : 17/07/2012 1.00. Present Civil Revision Application under section 29(2) of the Bombay Rent Act has been preferred by the petitioner herein – original plaintiff to quash and set aside the impugned judgement and decree passed by the learned Small Causes Court at Ahmedabad in HRP Suit No.59 of 1990 dtd.8/1/1996 as well as Judgement and Order passed by the learned Appellate Bench of the Small Causes Court at Ahmedabad in Civil Application No. 24 of 1996 dtd.1/8/2001 by which the Appellate Bench has allowed the said appeal preferred by the respondent herein by quashing and setting aside the judgement and decree passed by the learned Small Causes Court at Ahmedabad in HRP Suit No.59 of 1990 dtd.8/1/1996. 2.00. Fact leading to the present Civil Revision Application, in nutshell, are as under :-
2.01. That the petitioner herein – original plaintiff was in occupation and possession of the suit property as tenant and he was doing embroidery business and also residing in the said premises. It appears that on 26/2/1989 at 1.00 O'clock at night, defendant No.1 broke open the lock and took away all furnitures from the suit premises and thrown out the same outside. Even a complaint to that effect was also filed before Bapunagar Police Station and the defendant No.1 was arrested and thereafter released on bail. That thereafter the petitioner herein – original plaintiff instituted HRP Suit No.59 of 1990 for recovery of the possession which the defendants more particularly defendant No.1 illegally took.
2.02. The suit was resisted by the defendant No.1 by filing Written Statement at Ex.12 by submitting that as such the plaintiff surrendered the possession voluntarily. In fact the defendant No.1 also gone to the extent of denying the relationship of landlord and tenant between the plaintiff and defendant No.1.
2.03. The defendant No.2 also filed Written Statement at Ex.56 by submitting that as such they are tenant of the suit premises which the defendant No.1 has given on lease to them at the monthly rent of Rs.100 + monthly tax and they are in possession of the suit land.
2.04. The defendant No.3 also filed a separate Written Statement at Ex.47.
2.05. The learned trial court framed the Issues at ex.62.
2.06. Both the parties to the suit led evidence, oral as well as documentary. That on appreciation of evidence, the learned trial court held that the plaintiff has proved that he was tenant of the disputed suit premises / suit and that he made the construction of superstructure on the land rented to him. On appreciation of evidence, the learned trial court also held that the plaintiff has proved that the defendant No.1 has illegally and by force taken away the possession of the suit premises from the plaintiff. On appreciation of evidence, the learned trial court has observed and held that the defendant No.1 has failed to prove that the plaintiff has surrendered the possession of the suit premises to the defendant No.1 on 20/2/1989 voluntarily as alleged. Consequently, the learned trial court decreed the suit directing the defendants to handover the vacant possession of the suit premises to the plaintiff.
2.07. Being aggrieved by and dissatisfied with the judgement and decree passed by the learned Small Causes Court at Ahmedabad in HRP Suit No.59 of 1990 dtd.8/1/1996 in decreeing the same, only respondent No.1 herein – original defendant No.1 preferred Regular Civil Appeal No. 24 of 1996 before the Appellate Bench of the Small Causes Court at Ahmedabad and the defendant Nos.2 and 3, who were claiming to be tenants, did not prefer any appeal, and the learned Appellate Bench by the impugned Judgement and Order dtd.1/8/2001 allowed the said appeal by quashing and setting aside the judgement and decree passed by the learned Small Causes Court mainly on the ground that when it was the case on behalf of the plaintiff that he was dispossessed forcefully by the defendant No.1, it was for him to prove the same and the burden of proof to prove the same is upon the plaintiff, which he failed to discharge.
2.08,. Being aggrieved by and dissatisfied with the judgement and decree / order passed by the learned Appellate Bench of the learned Appellate Bench of the Small Causes Court at Ahmedabad in Civil Application No. 24 of 1996, petitioner herein – original plaintiff has preferred the present Civil Revision Application under section 29(2) of the Bombay Rent Act.
3.00. Ms.Nisha Parikh, learned advocate appearing on behalf of the original petitioner – now heirs of the original petitioner - Dhirajlal Jivanbhai Chudasama has vehemently submitted that the learned appellate court has materially erred in allowing the appeal preferred by the respondent No.1 herein – original defendant No.1 and quashing and setting aside the judgement and decree passed by the learned Small Causes Court. It is submitted that when the plaintiff proved that he was in possession of the suit premises as tenant upto 20/2/1989, and thereafter he was dispossessed by the defendant No.1 forcefully, the burden of proof to prove that the plaintiff surrendered possession of the suit premises to the defendant No.1 (as alleged by the defendant No.1) was upon the defendant No.1, as the defendant failed to prove by leading evidence that the plaintiff voluntarily surrendered the possession of the suit premises to the defendant No,1, the learned Small Causes Court has rightly passed the decree which was not required to be interfered with by the learned appellate court. It is submitted that as such the petitioner has proved by leading evidence that he was in occupation and possession of the suit premises till 20/2/1989 and he was thrown out forcibly at midnight of 20/2/1989 by the defendant No.1. Therefore, it is submitted that the learned appellate court has materially erred in shifting the burden upon the plaintiff to prove that he did not surrender the possession voluntarily to the defendant No.1.
By making above submissions it is requested to allow the present Civil Revision Application and quashing and setting aside the impugned Judgement and Order passed by the learned Appellate Bench and to restore the judgement and decree passed by the learned Small Causes Court.
4.00. Present Civil Revision Application is opposed by Mr.Patel, learned advocate appearing on behalf of the respondent No.1. It is submitted that the impugned Judgement and Order passed by the learned Appellate Bench is just and proper and the same is not required to be quashed and set aside by this Hon'ble Court in exercise of revisional jurisdiction under section 29(2) of the Bombay Rent Act. Mr.Patel, learned advocate appearing on behalf of the respondent No.1 has further submitted that in fact, the original plaintiff surrendered the suit premises to the original defendant No.1 voluntarily on 20/2/1989 and even he shifted to anther premises and was doing business of embroidery in another premises and thereafter, the learned Appellate Bench has rightly observed that it was for the plaintiff to prove that he had not surrendered the possession of the suit premises to the defendant No.1 voluntarily. It is further submitted that even there are contradictions in the complaint / First Information Report filed by the plaintiff as well as the case on behalf of the plaintiff in the suit and therefore, no illegality has been committed by the learned Appellate Bench in allowing the appeal and by quashing and setting aside the judgement and decree passed by the learned Small Causes Court.
By making above submissions, it is requested to dismiss the present Civil Revision Application.
5.00. Heard the learned advocates appearing on behalf of the respective parties at length and considered the impugned Judgement and Order passed by both the courts below as well as evidence on record, oral as well as documentary from the record and proceeding received from the courts below.
6.00. At the outset, it is required to be noted that the petitioner - original plaintiff instituted suit for recovery of the possession of the suit premises alleging inter-alia that the suit land was given on lease to the plaintiff by the defendant No.1 and the superstructure was constructed by him and he was in occupation and possession of the same and doing business of embroidery and also staying in the said premises. It was the case on behalf of the plaintiff that on 20/2/1989 he came to be dispossessed forcibly by the defendant No.1 and the defendant No.1 thrown the articles / goods lying in the suit premises outside in the midnight at 1.00 O'clock and put his own lock and thereafter tried to make a show that he has handed over the possession to the defendant Nos.2 and 2 as tenants. It was the case on behalf of the defendant No.1 that he had not forcibly taken the possession and/or dispossessed the plaintiff but the plaintiff has surrendered the possession voluntarily. The learned trial court on appreciation of evidence decreed the suit by holding that the plaintiff has proved by leading evidence that he was in occupation and possession of the suit premises till he was dispossessed forcibly by the defendant No.1 and that the defendant No.1 had forcibly taken possession of the suit premises and thrown the goods outside. The learned trial court on appreciation of evidence also held that the defendant No.1 has failed to prove that the plaintiff has surrendered the possession of the suit premises to the defendant No.1 voluntarily, as alleged by the defendant No.1 and consequently the learned trial court decreed the suit. However, in appeal the learned appellate court has set aside the judgement and decree passed by the learned trial court mainly on the ground that it was for the plaintiff to prove that he had not surrendered the possession voluntarily. The learned appellate court has as such shifted the burden upon the plaintiff to prove that the plaintiff had not surrendered the possession voluntarily. There the learned appellate court has committed an error. As such when the plaintiff has proved that that he was in occupation and possession of the suit premises till he was dispossessed forcibly and against that it was the case on behalf of the defendant No.1 that the plaintiff was not dispossessed forcibly but the plaintiff has handed over the possession voluntarily, in that case the burden was upon the defendant No.1 to prove that the plaintiff was not dispossessed forcibly but the plaintiff has handed over the possession voluntarily. The defendant No.1 has failed to prove by leading evidence that as such the plaintiff has surrendered the possession of the suit premises voluntarily. By leading evidence the plaintiff has proved his case that he was in occupation and possession of the suit premises till he was dispossessed forcibly by the defendant No.1. However, the defendant No.1 has failed to prove his case on leading evidence the plaintiff has surrendered the possession of the suit premises voluntarily. Even otherwise, plaintiff is not required to prove the case of the defendant and the plaintiff has proved his case by leading evidence. Under the circumstances, the learned appellate court has materially erred in shifting the burden upon the plaintiff that he has not surrendered the possession to the defendant No.1 voluntarily. Under the circumstances, the impugned Judgement and Order passed by the learned appellate court cannot be sustained.
6.01. Now, so far as the contention on behalf of the defendant No.1 – original defendant No.1 that there are contradictions in the complaint / First Information Report filed by the plaintiff as well as the case in the suit, it is required to be noted that it was the case on behalf of the plaintiff from the very beginning that the defendant No.1 was a very influential person and the police did not register the First Information Report as per his statements.
6.02. In any case when the plaintiff has proved his case by leading evidence that he was in occupation and possession of the suit premises till he was dispossessed forcibly by the defendant No.1 and when the defendant No.1 has failed to prove his case by leading evidence that the plaintiff has surrendered the possession of the suit premises voluntarily to the defendant No.1, it cannot be said that the learned trial court has committed any error and/or illegality in allowing the suit and directing the defendants to handover the peaceful and vacant possession of the suit premises to the plaintiff.
6.03. It is required to be noted that subsequently the defendant No.1 has come out with a case that the defendant Nos.2 and 3 are in occupation and possession of the suit premises as tenants. However, against the judgement and decree passed by the learned trial court decreeing the suit directing the defendants to handover the possession of the suit premises to the plaintiff, defendant Nos.2 and 3, who were claiming to be tenants and in occupation and possession of the suit premises, did not prefer any appeal before the lower appellate court and it was only the defendant No.1, who preferred appeal, which falsifies the case on behalf of the defendants that the defendant Nos.2 and 3 are in possession of the suit premises. The same seems to be mere an eyewash and camouflage to deprive the plaintiff from his tenancy rights, which cannot be permitted.
7.00. In view of the above and for the reasons stated above, present Civil Revision Application is allowed. The impugned judgement and order passed by the learned Appellate Bench of the Small Causes Court at Ahmedabad in Civil Application No. 24 of 1996 dtd.1/8/2001 is hereby quashed and set aside and the judgement and decree passed by the learned Small Causes Court at Ahmedabad in HRP Suit No.59 of 1990 dtd.8/1/1996 is hereby restored. Rule is made absolute accordingly. In the facts and circumstances of the case, there shall be no order as to costs.
[M.R. SHAH, J.] rafik