1. The present Civil Revision Application under Section 29(2) of the Bombay Rent Act has been preferred by the applicant- heir and legal representative of original plaintiff to quash and set aside the impugned judgment and decree passed by the learned trial Court-learned Civil Judge (Junior Division), Bhuj dated 09/05/1996 in Regular Civil Suit No. 21/1986 as well as the impugned judgment and order passed by the learned appellate Court-learned 3rd Additional District Judge, Bhuj- Kutch dated 24/02/2011 in Regular Civil Appeal No. 89/1996 by which the learned appellate Court has dismissed the appeal preferred by the applicant-heir and legal representative of the original plaintiff confirming the judgment and decree passed by the learned trial Court dismissing the suit and refusing to pass the eviction decree on the ground that the tenant has acquired alternative suitable accommodation.
2. The original plaintiff instituted Regular Civil Suit No. 21/1986 in the Court of learned Civil Judge (Junior Division), Bhuj-Kutch seeking recovery of possession-eviction decree on the ground that the original tenant has acquired alternative suitable accommodation. It was the case on behalf of the original plaintiff that the two sons of the original tenant have acquired the property and they are residing in other premises and, therefore, the original tenant has acquired the alternative suitable accommodation. The suit was resisted by the respondents by filing the written statement that the original tenant is residing in the suit premises alongwith his wife, younger son as well as unmarried daughter and, therefore, it cannot be said that the original tenant has acquired the alternative suitable accommodation. The learned trial Court framed the issued. Both the sides led the evidence and, thereafter, on appreciation of evidence, the learned trial Court dismissed the suit by holding that the it cannot be said that the original tenant has acquired alternative suitable accommodation. Being aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court dismissing the suit, the heirs of the original plaintiff preferred Regular Civil Appeal No. 89/1996 before the learned District Court, Kutch at Bhuj and the learned appellate Court-learned 3rd Additional District Judge, Bhuj-Kutch by impugned judgment and order dated 24/02/2011 has dismissed the said appeal confirming the judgment and decree passed by the learned trial Court dismissing the suit. Being aggrieved and dissatisfied with the impugned judgment and orders passed by both the Courts below the applicant-heir and legal representative of the original plaintiff has preferred the present Civil Revision Application under Section 29(2) of the Bombay Rent Act.
3. Shri Darji, learned advocate appearing on behalf of the applicant has submitted that both the Courts below have materially erred in holding that the original tenant has not acquired the alternative accommodation. It is further submitted that when the sons of the original tenant have purchased the property and they have gone to reside there and when nothing has come on record that original plaintiff has any dispute with the sons, both the Courts below ought to have held that the original tenant has acquired alternative suitable accommodation and ought to have passed the eviction decree. Shri Darji, learned advocate appearing on behalf of the applicant has relied upon the decision of the learned Single Judge in the case of Hasmukhlal Raichand Shah Vs. Arvindbhai Mohanlal Kapadia reported in 1988 (2) GLR 1442 in support of his aforesaid submission and relying upon the same it is requested to admit/allow the present Civil Revision Application.
4. Heard Shri Darji, learned advocate appearing on behalf of the applicant at length and considered the impugned judgment and orders passed by both Courts below. At the outset, it is required to be noted that there are concurrent findings of fact given by both the Courts below on appreciation of evidence that the original tenant has not acquired alternative suitable accommodation and the same are not required to be interfered with in exercise of revisional jurisdiction under Section 29(2) of the Bombay Rent Act. The learned advocate appearing on behalf of the applicant is not in a position to point out how the finding of facts given by both the Courts below are perverse and/or contrary to the evidence on record. It is also required to be noted at this stage that admittedly it was not the case on behalf of the applicant that the original tenant is not residing in the suit premises. It has come on record that as such the original tenant was residing with his wife, younger son and unmarried daughter and his other two sons were residing separately in other premises. Under the circumstances, when the original tenant was residing in the suit premises alongwith his other family members, both the Courts below have rightly refused to pass the eviction decree on the ground that the original tenant has acquired alternative suitable accommodation. Now so far as reliance placed upon the decision of tis Court in the case of Hasmukhlal Raichand Shah (Supra) is concerned, on facts the same shall not be applicable. It was the case where the wife purchased another property and when the suit was filed against the tenant- husband that he has acquired alternative suitable accommodation and in fact it was found that the husband was also staying with the wife in another alternative suitable accommodation to that the learned Single Judge observed that when it was not the case on behalf of the tenant that there is a dispute between the husband and wife the learned Single Judge held that the tenant has acquired the alternative suitable accommodation. In the facts and circumstances of the case, the said decision would not be applicable and would not be of any assistance to the applicant.
5. In view of the above and for the reasons stated hereinabove, there is no substance in the present Civil Revision Application, which deserves to be dismissed and is accordingly dismissed.
(M.R. SHAH, J.) siji