IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No. 1052 of 2001 For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH Sd/ =========================================
========================================= USHAKANT,S/O.ISHWARBHAI TAHKORBHAI MALI Applicant(s) Versus MANIBEN WD/O PRANUBHAI NICHHABHAI DESAI & 3 Opponent(s) ========================================= Appearance :
MR AS VAKIL for Applicant(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5, 1.2.6, 1.2.7, 1.3.1,1.3.2 MR ADIL R MIRZA for Opponent(s) : 1, 4, RULE SERVED for Opponent(s) : 2, DELETED for Opponent(s) : 3, ========================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 30/07/2012 CAV JUDGMENT [1.0] Present Civil Revision Application under Section 29(2) of the Bombay Rent Act has been preferred by the petitioners herein – original defendants to quash and set aside the impugned judgment and order / decree dated 09.07.2001 passed by the learned Assistant Judge, Valsad in Regular Civil Appeal No.38 of 1993 by which the learned Appellate Court has allowed the said Appeal preferred by the respondents herein – original plaintiffs by quashing and setting aside the judgment and decree dated 26.03.1993 passed by the learned Civil Judge (J.D.), Pardi in Regular Civil Suit No.56 of 1985 and consequently decreeing the said suit and passing the eviction decree directing the petitioners herein to hand over the peaceful and vacant possession of the suit premises to the original plaintiffs.
[2.0] That the respondents herein – original plaintiffs instituted Regular Civil Suit No.56 of 1985 against the petitioners – original defendants in the Court of learned Civil Judge (J.D.), Pardi for recovery of the suit premises/eviction decree on the ground of arrears of rent, personal and bonafide requirement of the landlord and on the ground of erecting permanent structure without consent of the plaintiff. It was the case on behalf of the plaintiffs that the defendant is in arrears of rent for a period from 01.01.1982 and therefore, the original defendant tenant was in arrears of rent. It was also the case on behalf of the plaintiff that the defendant has constructed bore on the rear portion of the property – in the wada land. Thus, erected the permanent structure without the prior permission of the landlord and therefore, there is a breach of terms of the tenancy. It was also the case on behalf of the plaintiff that plaintiff is old aged person and also suffering from heart problem and blood pressure and the atmosphere/weather in Mumbai is not suitable to him and he wants to stay in the suit premises at Vapi along with his disabled son and his family members and therefore, it was submitted that the plaintiff – landlord requires the suit premises for his personal and bonafide use.
[2.1] That the suit was resisted by the defendant by submitting written statement at Exh.11. It was specifically denied that he is in arrears of rent for more than six months. It was submitted that the tenant was always ready and willing to pay the rent but the plaintiff has not accepted the rent with malafide intention. It was also denied that the defendant has raised any permanent structure and therefore, it was denied that there is any breach of terms of the tenancy. The defendant also denied that the suit premises at Vapi is required by the landlord for his personal and bonafide use. It was submitted that the plaintiff is residing at Mumbai since many years and has a sufficient accommodation at Mumbai. It was also submitted that the plaintiff can get better medical service at Mumbai. It was also submitted that before few years the plaintiff recovered the possession of another premises on the very ground, however, subsequently instead of using the same for his residence, he sold it. It was also submitted by the defendant that he has a vast family and had no other premises and if the eviction decree is passed, they will suffer greater hardship. Therefore, it was requested to dismiss the suit. That the learned trial Court framed the issues at Exh.12. That both the sides led evidence documentary as well as oral and on appreciation of evidence the learned trial Court held all the issues against the plaintiff. The learned trial Court on appreciation of evidence held that that defendant – tenant is not in arrears of rent for more than six months as alleged. The learned trial Court also held that there is no breach of terms of tenancy by the defendant and defendant – tenant has not raised the permanent structure as alleged. On appreciation of evidence the learned trial Court also held that the plaintiff has failed to prove that the suit premises is required by the plaintiff for his personal and bonafide use and consequently the learned trial Court dismissed the suit by judgment and decree dated 26.03.1993.
[2.2] That being aggrieved and dissatisfied with the judgment and decree dated 26.03.1993 passed by the learned Civil Judge (J.D.), Pardi in Regular Civil Suit No.56 of 1985 in dismissing the same, the heirs and legal representatives of the original plaintiff – respondents herein preferred Regular Civil Appeal No.38 of 1993 before the learned District Court, Valsad and the learned Appellate Court – learned Assistant Judge, Valsad by impugned judgment and order dated 09.07.2001 has allowed the said Appeal by quashing and setting aside the judgment and decree passed by the learned trial Court dismissing the suit and consequently decreeing the suit on the ground of bonafide and personal requirement of the original plaintiff. It is required to be noted at this stage that during the pendency of the Appeal, the original defendant Thakorbhai had expired and his heirs were brought on record who are the petitioners herein.
[2.3] Feeling aggrieved and dissatisfied with the impugned judgment and order / decree passed by the learned Appellate Court in decreeing the suit on the ground of personal and bonafide requirement of the suit premises by the plaintiff, the petitioners herein have preferred the present Civil Revision Application under Section 29(2) of the Bombay Rent Act.
[3.0] Shri Apoorva Vakil, learned advocate appearing on behalf of the petitioners has vehemently submitted that the impugned judgment and order passed by the learned Appellate Court is absolutely illegal and contrary to the evidence on record which deserves to be quashed and set aside.
[3.1] It is submitted by Shri Vakil, learned advocate appearing on behalf of the petitioners that the learned Appellate Court has materially erred in passing the eviction decree against the petitioners and in favour of the original plaintiff – landlord on the ground that the suit premises is required by the plaintiff for his personal and bonafide use. It is submitted that the original plaintiff instituted the suit for recovery of the possession on the ground that he is old aged person suffering from heart problem and blood pressure and the weather at Mumbai is not suitable to him and therefore, he wants to stay at Vapi. It is submitted that after filing of the suit the original plaintiff – landlord has expired and therefore, the cause for filing the suit for personal and bonafide requirement of the original plaintiff – landlord would not survive. It is submitted that as such the learned Appellate Court has not considered the aforesaid fact.
[3.2] It is further submitted by Shri Vakil, learned advocate appearing on behalf of the petitioners that even another ground on which the eviction decree was sought is that the original plaintiff wants to stay along with his disabled son at Vapi for his medical treatment. It is submitted that as such nothing has been discussed by the learned Appellate Court with respect to the same. It is submitted that it has come on record that even the original plaintiff was not aware of any doctor and/or medical treatment at Vapi. It is further submitted that therefore, the prayer of the plaintiff for recovery of the possession on the aforesaid ground was not bonafide. It is further submitted that even the learned Appellate Court has not properly appreciated and considered the fact that before few years the original plaintiff did get the possession of another premises on the very ground i.e. on the ground of his personal and bonafide use, however, after getting the possession instead of residing in the said premises, he sold the said premises. It is submitted that the learned Appellate Court has not considered the aforesaid aspect also while considering the case on behalf of the plaintiff with respect to his personal and bonafide requirement of the suit premises.
[3.3] It is further submitted that even the learned Appellate Court has not properly considered the question with respect to hardship. It is submitted that admittedly the respondents herein – original appellants are residing at Mumbai having sufficient accommodation at Mumbai and in the suit premises, the widow and unmarried daughters are residing, who have no other accommodation. Therefore, it is submitted that the learned Appellate Court ought to have held that if the eviction decree is passed on the ground of personal and bonafide requirement of the original plaintiff, in that case, the petitioners would suffer greater hardship.
[3.4] It is submitted by Shri Vakil, learned advocate appearring on behalf of the petitioners that the petitioners are in need of the suit premises and even considering the fact that the rent of the suit premises is Rs.30 per month, petitioners are voluntarily ready and willing to increase the rent to Rs.1000 per month.
Making above submissions, it is requested to allow the present Civil Revision Application quashing and setting aside the impugned judgment and order / decree passed by the learned Appellate Court.
[4.0] Present Civil Revision Application is opposed by Shri Adil Mirza, learned advocate appearing on behalf of the respondents herein – heirs and legal representatives of original plaintiff – landlord.
[4.1] Shri Mirza, learned advocate appearing on behalf of the respondents has vehemently submitted that the finding given by the learned Appellate Court with respect to the bonafide requirement of the suit premises by the landlord for their personal use is on appreciation of evidence which is not required to be interfered by this Court in exercise of revisional jurisdiction.
[4.2] It is further submitted by Shri Mirza, learned advocate appearing on behalf of the respondents herein – original appellants that even the learned Appellate Court has rightly considered the subsequent events i.e. even death of the original tenant and has considered that in the suit premises only widow of the deceased defendant Thakorbhai is residing and therefore, the learned Appellate Court has rightly come to the conclusion that comparatively hardship would be greater to the plaintiff than the defendant. Therefore, it is submitted that when the learned Appellate Court has passed the eviction decree looking to comparative hardship to be caused to the plaintiff than the defendant, no illegality has been committed by the learned Appellate Court in reversing the judgment and decree dismissing the suit and consequently decreeing the suit on the ground of personal and bonafide requirement of the landlord.
Making above submissions, it is requested to dismiss the present Civil Revision Application.
[5.0] Heard learned advocates appearing on behalf of the parties at length and considered the impugned judgment and order passed by both the Courts below and even considered the evidence on record, oral as well as documentary from the Record & Proceedings received from the learned trial Court.
[5.1] At the outset it is required to be noted that initially the suit was filed by the original plaintiff Pranubhai Nicchabhai Desai for recovery of possession / eviction decree on the ground of arrears of rent; the defendant raising permanent construction without prior permission of the landlord; and on the ground that the suit premises is required by the landlord for his personal and bonafide use. It is submitted to be noted that admittedly the original plaintiff Pranubhai Nicchabhai Desai was residing at Mumbai since many years with his family members and the eviction decree was sought on the ground of his personal bonafide use on the ground that he is suffering from heart problem and high blood pressure and the weather at Mumbai is not suitable to him and therefore, he wants to take medical treatment at Vapi and he wants to stay at Vapi with his disabled son. It is required to be noted that during the pendency of the suit as such the original landlord – original plaintiff – Pranubhai Nicchabhai Desai has expired and his heirs were brought on record. Therefore, as such the cause for seeking the eviction decree on the ground of personal and bonafide requirement of the original plaintiff – landlord Pranubhai Nicchabhai Desai would not survive on his death. Still on appreciation of evidence the learned trial Court dismissed the suit by holding that plaintiff has failed to prove that the suit premises is required by the landlord for his personal and bonafide use. On holding so the learned trial Court did not enter into the question with respect to greater hardship to be caused if the decree is passed. It appears that while holding that the plaintiff has failed to prove that the learned trial Court has considered the fact that even the plaintiff is not aware of any doctor at Vapi who can give medical treatment to his disabled son. The learned trial Court also considered the fact that earlier the original plaintiff – landlord got another premises from the tenant on the very ground, however, after obtaining the possession of another premises on the ground of his personal and bonafide use instead of using the same for his residence he has sold the same. Therefore, the learned trial Court has as such rightly held that case on behalf of the plaintiff that he requires the suit premises for his personal benefit and use is not bonafide. Despite the above the learned Appellate Court has upset the finding given by the learned trial Court and has passed the impugned judgment and order / decree mainly on the ground that on the death of original tenant – Thakorbhai and except the widow nobody will be residing in the suit premises and therefore, the comparative hardship will be greater to the plaintiff than the defendant. However, it is required to be noted that as such the learned Appellate Court has not considered the subsequent events i.e. even death of the original plaintiff Pranubhai Nicchabhai Desai and even the learned Appellate Court has presumed that unmarried daughter of the original tenant must have married. The learned Appellate Court has not considered the fact that on the death of the original plaintiff – landlord Pranubhai Nicchabhai Desai, the cause for seeking the decree of possession on the ground of his personal requirement i.e. getting the treatment at Vapi would not survive. The learned Appellate Court has also not considered the fact that the original plaintiff – landlord did get the possession of another premises on the very ground from another tenant and instead of residing in the suit premises he sold away the same. Therefore, the learned Appellate Court has materially erred in passing the decree on the ground of bonafide and personal requirement.
[5.2] Even the learned Appellate Court has materially erred in holding that the plaintiff would suffer greater hardship than the defendant if the decree for recover of possession is not passed. Admittedly, the respondents herein – appellants are residing at Mumbai and even according to the learned Appellate Court, the widow of the deceased will be residing in the suit premises. Even the learned Appellate has presumed that the unmarried daughter of the original tenant must have married. Even the widow and unmarried sister who are residing in the suit premises did not have any other premises at Vapi. On the other hand the respondents herein all are residing at Mumbai having sufficient accommodation and even they have got another CRA/1052/2001 10/10 JUDGMENT property at Pardi which is just 15 to 20 kms from Vapi. It appears to the Court that the defendants would suffer a greater hardship than the plaintiff if the eviction decree is passed. Under the circumstances the impugned judgment and order passed by the learned Appellate Court passing the eviction decree on the ground of personal and bonafide requirement cannot be sustained and the same deserves to be quashed and set aside and the judgment and decree passed by the learned trial Court dismissing the suit is required to be restored.
[6.0] In view of the above and for the reasons stated above, present Civil Revision Application succeeds. Impugned judgment and order / decree dated 09.07.2001 passed by the learned Assistant Judge, Valsad in Regular Civil Suit No.38 of 1993 is hereby quashed and set aside and the judgment and decree dated 26.03.1993 passed by the learned Civil Judge (J.D.), Pardi in Regular Civil Suit No.56 of 1985 in dismissing the suit is hereby restored. However, considering the concession given by the learned advocate appearing on behalf of the petitioners under the instructions from their respective clients that they are ready and willing to increase the rent to Rs.1000/ per month, the petitioners to pay the rent at the rate of Rs.1000 per month hereinafter. Rule is made absolute to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs.
Sd/ (M.R. Shah, J.) menon