1. The present Civil Revision Application under Section 29(2) of the Bombay Rent Act has been preferred by the applicant-original plaintiff-landlord to quash and set aside the impugned judgment and order passed by the learned Presiding Officer, Fast Track Court No. 9, Morbi dated 27/09/2007 in Regular Civil Appeal No. 4/2002 by which the learned appellate Court has allowed the said appeal preferred by the respondent-original defendant by quashing and setting aside the judgment and decree passed by the learned Civil Judge (Junior Division), Morbi dated 31/12/2001 in Regular Civil Suit No. 193/1987 by which the learned trial Court has decreed the suit in favour of the applicant-original plaintiff and has passed the eviction decree against the respondent-original defendant on the ground of arrears of rent.
2. The applicant-original plaintiff instituted Regular Civil Suit No. 193/1987 against the respondent-original defendant in the Court of learned Civil Judge (Junior Division), Morbi for recovery of possession/eviction decree on the ground of arrears of rent alleging interalia that the respondent-original defendant-tenant was in arrears of rent for more than six months i.e for approximately 9 years and 4 months i.e. Rs. 560/- and despite service of notice the same was not paid. The suit was resisted by the respondent-original defendant by filing the written statement submitting that as such within the period of one month from the date of receipt of the suit notice under Section 12(2) of the Bombay Rent Act Money Order for an amount of Rs. 555/- was sent but the same was refused by the applicant-original plaintiff-landlord and, therefore, it cannot be said that the respondent-original defendant-tenant is in arrears of rent for more than six months as alleged warranting eviction decree under Section 12(3)(b) of the Bombay Rent Act. Despite the above, the learned trial Court decreed the suit and passed the eviction decree against the respondent-original defendant on the ground of arrears of rent by judgment and decree dated 31/12/2001 in Regular Civil Suit No. 193/1987. Being aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court passing the eviction decree the respondent-original defendant preferred Regular Civil Appeal No. 4/2002 before the learned District Court, Morbi, which was heard by the learned Joint District Judge, Morbi who by impugned judgment and order dated 27/09/2007 allowed the said appeal and has quashed and set aside the judgment and decree passed by the learned trial Court. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned appellate Court in allowing the appeal preferred by the respondent-original defendant and quashing and setting aside the judgment and decree passed by the learned trial Court, the applicant-original plaintiff-landlord has preferred the present Civil Revision Application under Section 29(2) of Bombay Rent Act.
3. Shri B.D. Karia, learned advocate appearing on behalf of the applicant-original plaintiff has vehemently submitted that the learned appellate Court has materially erred in allowing the appeal preferred by the respondent-original defendant and in quashing and setting aside the judgment and decree passed by the learned trial Court. It is submitted that the finding of fact given by the learned trial Court with regard to the tenant being in arrears of rent for more than six months was not required to be interfered with by the learned appellate Court. It is submitted that as the respondent-original defendant-tenant did not tender the full amount of rent as demanded in the notice the respondent-original defendant-tenant was required to be treated in arrears of rent and, therefore, the learned trial Court rightly passed the eviction decree. It is further submitted that as such the learned appellate Court has not properly appreciated the evidence on record, which has resulted in miscarriage of justice. Making the above submission, it is requested to allow the present Civil Revision Application.
4. The present Civil Revision Application is opposed by Shri R.P. Desai, learned advocate appearing for Shri Mrugen Purohit, learned advocate appearing on behalf of the respondent-original defendant. It is submitted that considering the fact that the tenant tendered/sent the arrears of rent i.e. Rs. 555/- by Money Order, which was refused by the applicant-original plaintiff-landlord, the learned appellate Court has rightly quashed and set aside the judgment and decree passed by the learned trial Court by holding that when the Money Order was refused by the applicant-original plaintiff-landlord, which according to the applicant-original defendant-landlord was only in short of Rs. 5/-, the respondent-original defendant-tenant cannot be said to be in arrears of rent and, therefore, no illegality has been committed by the learned appellate Court in allowing the appeal and quashing and setting aside the judgment and decree passed by the learned trial Court. Making the above submission, 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 passed the eviction decree against the respondent-original defendant solely on the ground of arrears of rent i.e. under Section 12(3) of the Bombay Rent Act. According to the applicant-original plaintiff landlord at the time of the suit notice a sum of Rs. 560/- was due and payable. However, it is not in dispute that within a period of one month from the date of receipt of the suit notice the respondent-original defendant-tenant sent the Money Order of Rs. 555/- to the applicant-original plaintiff-landlord, which came to be refused by the applicant-original plaintiff-landlord. It is the case on behalf of the applicant-original plaintiff that as the entire amount of arrears of rent was not paid and the Money Order sent was short by Rs. 5/-, the eviction decree is required to be passed on the ground of arrears of rent. The aforesaid cannot be accepted. If the Money Order sent by the respondent-original defendant-tenant would have been accepted by the applicant-original plaintiff-landlord, in that case, the respondent-original defendant-tenant at the most can be said to be in arrears for one month only. Under the circumstances, the learned appellate Court has rightly quashed and set aside the judgment and decree passed by the learned trial Court passing the eviction decree on the ground of arrears of rent. No illegality has been committed by the learned appellate court in allowing the appeal quashing and setting aside the judgment and decree passed by the learned trial Court.
6. In view of the above and for the reasons stated hereinabove, the present Civil Revision Application deserves to be dismissed and is accordingly dismissed. Rule is discharged.
(M.R.
SHAH, J.) siji Top