[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 decree dated 31.12.1999 passed by the learned trial Court – learned 3rd Joint Civil Judge (Junior Division), Bhavnagar as well as the impugned judgment and order dated 07.03.2012 passed by the learned Appellate Court – learned 5th Additional District Judge, Bhavnagar in Regular Civil Appeal No.20 of 2000 by which the learned Appellate Court has dismissed the said Appeal preferred by the petitioners herein – original defendants by confirming the judgment and decree passed by the learned trial Court decreeing the suit and passing the eviction decree on the ground that the petitioners – original defendants have acquired the alternative suitable accommodation. [1.1] At the outset it is required to be noted that present is a glaring example of misuse of the provisions of the Bombay Rent Act and to delay the proceedings and handing over the possession to the landlord though the tenants have acquired the alternative suitable accommodation as far as back in the year 1987.
[2.0] That the respondents herein – original plaintiffs – landlord instituted a Regular Civil Suit No.437 of 1987 against the petitioners herein – original defendants in the Court of learned Civil Judge (Junior Division), Bhavnagar for recovery of possession/eviction decree on the ground of arrears of rent as well as the defendants – tenants have acquired alternative suitable accommodation and they are not using the suit premises. The suit was resisted by the respondents by filing the written statement denying the allegations and averments in the plaint. That the learned trial Court framed the issues and on appreciation of evidence held that as such the tenants has acquired the alternative suitable which is bigger than the suit premises and that they are not using the suit premises. The learned trial Court negated the issue on arrears of rent. Ultimately by judgment and decree dated 31.12.1999, the learned trial Court decreed the suit and passed the eviction decree on the ground that defendants have acquired the alternative suitable accommodation and that they are not using the suit premises.
[2.1] Feeling aggrieved and dissatisfied with the impugned judgment and decree decreeing the suit and passing the eviction decree against the petitioners, the petitioners herein preferred Regular Civil Appeal No.20 of 2000 before the learned District Court, Bhavnagar and the learned 5th Additional District Judge, Bhavnagar by impugned judgment and order dated 07.03.2012 has dismissed the said Appeal confirming the judgment and decree passed by the learned trial Court. Feeling aggrieved and dissatisfied with the judgment and order passed by both the Courts below in passing the eviction decree against the petitioners – original defendants – tenants on the ground that they have acquired alternative suitable accommodation, the petitioners have preferred the present Civil Revision Application under Section 29(2) of the Bombay Rent Act.
[3.0] Shri Mehul Shah, learned advocate appearing on behalf of the petitioners – original defendants has submitted that as such both the Courts below have not properly appreciated and considered the fact that it was not proved by the plaintiffs that the suit premises is not used by the tenants for more than six months preceding the filing of the suit. It is further submitted that both the Courts below have not properly appreciated and considered the fact whether the alternative accommodation acquired by the tenants is suitable or not. It is submitted that therefore in absence of any such finding that the alternative accommodation is suitable, no decree could have been passed by the learned trial Court and the same ought not to have been confirmed by the learned Appellate Court.
Making above submissions, it is requested to admit/allow the present Civil Revision Application.
[4.0] Heard Shri Mehul Shah, learned advocate appearing on behalf of the petitioners – original defendants – tenants and considered the impugned judgment and order passed by both the Courts below.
[4.1] At the outset it is required to be noted that as such there are concurrent findings of fact given by both the Courts below holding that the defendants – tenant have acquired alternative suitable accommodation which is bigger than the suit premises and there are also concurrent findings of fact given by both the Courts below that as such the defendants are not residing in the suit premises and they have shifted to another premises. The findings of fact given by both the Court below are on appreciation of evidence which are not required to be interfered by this Court in revisional jurisdiction under Section 29(2) of the Bombay Rent Act.
[4.2] Even otherwise considering the fact that admittedly the suit premises was consisting of one room and gallery and the alternative accommodation acquired by the defendants – tenants is consisting of two rooms, kitchen and the admission of the defendants in the crossexamination that they are not using the suit premises and frequently they go to the suit premises and the admission on behalf of the defendants that frequently use the suit premises it cannot be said that the finding given by the learned trial Court that the defendants have acquired the alternative suitable accommodation is erroneous. It is required to be noted that as such there is specific finding given by the learned trial Court that the tenants have acquired the alternative suitable accommodation. Considering the aforesaid facts and circumstances, it cannot be said that the learned trial Court has committed any error and/or illegality in passing the eviction decree and the learned Appellate Court has not committed any error and/or illegality in confirming the same.
[5.0] In view of the above and for the reasons stated above, there is no substance in the present Civil Revision Application which deserves to be dismissed and is, accordingly, dismissed.
(M.R. Shah, J.) menon