1. By way of the present revision application under Section 29 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the original-
defendants-tenants of the suit premises have challenged the judgment and decree dated 22.05.2003 passed in Civil Case No. 255 of 1995 by learned Joint Civil Judge (S.D.), Morbi, by which the suit filed by the opponent-landlady for requiring possession of the suit premises under the provisions of Section 13(a) as well as under Section 13(L) of the Act came to be decreed and by judgment and order dated 8.9.2010 passed by Additional District Judge, Morbi, in Regular Civil Appeal No. 26 of 2003 by which the judgment and decree passed by the Trial Court has been confirmed.
2. The brief facts of this case are as under :
2.1) That the opponent-landlady filed a Regular Civil Suit in the year 1975 and prayed for recovery of suit premises against Navalshankar Kapata, who was happened to be a tenant of the landlady. The suit was decreed and the appellate Court confirmed the judgment and decree passed by the Trial Court. Navalshankar challenged the decision of the Trial Court by way of filing Civil Revision Application No. 1573/1982 under Section 29 of the Act before this Court. Since the parties had compromised the matter outside the Court, the Civil Revision Application No. 1573/1982 was disposed of by order dated 11.10.1982. The consent terms were produced before this Court and the same was recorded.
2.2) Pursuant to the said compromise, Navalshankar be came as a tenant and occupied some part of the suit premises and was paying rent to the landlady. The opponent-landlady filed Regular Civil Suit No. 255 of 1995 in the Court of learned Civil Judge (S.D.), Morbi and contended that the original tenant had expired and the suit premise was not being used by other original- tenant or his legal heirs and therefore, the landlady prayed for eviction under Section 13(1)(k) of the Act. It was further contended that the opponent had left the premise and transferred to Gandhidham and have acquired the suitable residence at Gandhidham and therefore, the landlady prayed for eviction under Section 3(1)(L) of the Act.
2.3) The legal heirs of Navalshankar resisted the suit and filed their written-statements. After considering the depositions of plaintiffs and defendants and after perusing the documentary evidence, the learned Civil Judge (S.D.), Morbi found that the suit premises was not being used by the legal heirs of Navalshanker since more than six months and the legal heirs had acquired alternative accommodation at Gandhidham, and, ultimately, decreed the suit and directed the tenant to hand-over the vacant suit premises within a period of six months from the date of judgment and decree. The decree passed by the learned Civil Judge (S.D.), Morbi was challenged by the defendants filing a Regular Civil Appeal No. 26 of 2003 in the Court of learned Additional District Judge, Morbi. The learned Additional District Judge, Morbi by judgment and order dated 08.09.2010, after elaborate discussion of the evidences available on record, came to the conclusion that the Trial Court had not committed any error in decreeing the suit in favour of the landlord, and hence rejected the appeal.
3. Mr. Y.J. Patel, learned advocate appearing for the applicants has assailed this judgment. He took the Court through the judgment of the Trial Court and the deposition of plaintiff-landlady, etc. and argued that the Courts below had committed error in holding that the premise was not being used by the legal heirs as well as by ignoring the fact that the applicants were not residing with Navalshankar at the time of his death and therefore, ought not to have decreed the suit, which has been confirmed by the appellate Court. It is argued that the compromise arrived at between the parties before this Court in Civil Revision Application No. 1573 of 1982 is not properly appreciated by the Trial Court and therefore, the Trial Court committed error in decreeing the suit.
4. On the other hand, Mr. Sandeep N. Bhatt, learned advocate appearing for the opponent as caveator, has submitted that there is concurrent findings of facts by both the Courts below that the premises was not used by the tenant. The tenant has failed to establish that at the time of death of Navalshankar, the applicants were residing with him in the disputed suit premises. On the contrary, it is established and proved that Navalshankar died at Gandhidham and none of the applicants was residing with him at the time of death of Naval Shanker. He has submitted that the defendants could not establish that the suit premises was used by them. Since the panchnama (Exh.-57) prepared by Court Commissioner clearly establishes that the suit premises was not under their use since number of years. It is also rightly recorded by both the Courts below that the tenants-defendants have not produced any documents, whatsoever, to establish that the same suit premises was used by them by producing light bill/ration card/election card, etc. to show that the applicants were residing in the suit premises.
5. He has further submitted that both the Courts below have considered the deposition of defendants and have come to the conclusion that the defendants were residing at Gandhidham and were having a restaurant in the name of Nootan Lodge and therefore, no interference is called for by this Court in this Revision Application.
6. In support of this submission, Mr. Bhatt, learned advocate appearing on behalf of the opponent has relied upon the judgment in case of Vora Rahimbhai Haji Hasanbhai Popat Vs. Vora Sunerlal Manilal, AIR 1986 SC 174 as well as Mohini Bhiryomal Hingorani Vs. Bhanubhai Manilal Patel, 1984 GLH 649 and submitted that while considering the case of landlord under the provisions of Section 13(1)(k) of the Act, the Supreme Court has held in paragraph No. 11 which reads as under :
“The scheme of the Act as it appears from the preamble is to consolidate the law relating to the control of rents and repairs of certain premises, of rates of hotels and lodging houses and of evictions. The control had to be brought in because of the scarcity of accommodation in the cities. If this was the preamble of the Act it cannot be accepted that a tenant may take a premises on rent and keep it locked for years together without using it in the absence of any reasonable cause. The intendment of the legislature could be carried out only when the premises is used and not kept vacant for years together ”
6.1) The ratio laid down by the Hon'ble Apex Court as well as this Court, clearly governs the case on hand. When a tenant leases the premise and does not use the same for years together, the landlord would be entitled for the possession of the suit premises under the provisions of Rent Act.
“The main purpose of the Rent Control Legislation is to keep the houses available to the tenants, who either cannot build their own houses or have no house to stay except in rented houses. If the attitude of the persons who are transferred or who leave big cities, to continue in the house in a big city, even though they serve elsewhere, is accepted, then the persons who come from the outside in the city and require a house on rent, would not get the house. This defeats the very purpose of the Rent Control Legislation. When the persons serving at a particular place are transferred at a distant place with no possibility to come immediately in a near future, but still continue the house for the members of the family or for the purpose of education of the children or for the purpose of some adult member of the family who is serving in that place and the house is continued, probably, the benefit may be available. But if the house is not at all used for the family and it is either kept locked or given to some person not referable to the family, can it be said that because a person, after many years, has intention to come back and stay permanently in the house, the tenancy should continue? That would be frustrating the purpose of the Legislation ”
7. ` Having heard learned advocates appearing for the parties and having gone through the judgments of both the Courts below and perusing the compromise arrived at between the landlady and Navalshankar, it is not in dispute that Navalshankar was residing in the suit premises. However, subsequently he died at Gandhidham, where the applicants were residing and carrying on their business. When the suit was filed, the Court Commissioner was appointed and he had prepared a report with panchnama (Exh. 57), by which it was established that the suit premises was not under use of anybody. When the Court Commissioner visited the place, it was found that the house was broken up and there was nothing to suggest that the house was being used for residential purpose or any other purpose. The Appellate Court has categorically stated as under :
i) When the Court Commissioner visited the suit premise and prepared panchnama, the house was closed and was not used since long.
ii) The house was in a dilapidated condition.
iii) The photographs (Exh.-14) of the suit premises clearly indicate that nobody resides in the suit premise and the property is in a dilapidation condition.
iv) The defendants have to establish that they were residing in the suit premise there, but they have not produced any electricity bill, election card, ration card, etc.
8. In view of the concurrent findings of both the Courts below, about the factual aspect of the matter and about non-using of the property in question, I am not inclined to interfere with the said findings.
9. As far as the decree passed by the Trial Court under Section 3(1)(L) is concerned, it appears from the deposition of defendant himself that they are residing at Gandhidham and are carrying on business in the name of Nootan Lodge. Since they are residing at Gandhidham and carrying on business, the landlady is entitled for the recovery of possession under the provisions of Section 13(1)(L) of the Act.
10. As far as contention raised by learned advocate Mr. Patel about not considering Clause-7 of the agreement arrived at between landlady and Navalshankar, I am of the opinion that there was no need for the Trial Court to examine this issue since the suit was filed for non-using the suit premises and the tenant having got alternative accommodation somewhere else. However, I would like to observe that, though, house tax was required to be paid by the opponent, as per Clause-7 of the agreement, no receipt has been produced by the applicants to establish that the house tax was regularly paid by the tenant.
11. In view of the above, the revision application is meritless and accordingly it is dismissed.
(A.J. DESAI, J.) Ashish N