1.0. Present Civil Revision Application under Section 29(2) of the Bombay Rent, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the "Rent Act") has been preferred by the applicant herein -original defendant challenging the judgment and decree passed by the learned Civil Judge (J.D.), Gadhada camp at Botad passed in Regular Civil Suit No.31 of 1995 by which the learned trial Court decreed the suit and passed eviction decree against the petitioner under Section 13(1)(a) of the Rent Act as well as under Section 13(1)(k) of the Rent Act i.e. on the ground of non user of the suit premises by the tenant for more than six months without reasonable cause. That the petitioner herein -original defendant has also prayed to quash and set aside the impugned judgment and order passed by the learned Appellate Court -learned Additional District Judge camp at Botad dated 29.8.2011 passed in Regular Civil Appeal No.20 of 2003, by which the learned Appellate Court dismissed the said appeal confirming the judgment and decree passed by the learned trial Court.
2.0. That the original plaintiffs instituted Regular Civil Suit No.31 of 1995 against the petitioner herein -original defendant -tenant for recovery of possession on the ground of non user of the suit premises by the tenant for more than six months preceding filing of the suit i.e. under Section 13(1)(k) of the Rent Act. That the petitioner herein original defendant resisted the suit by filing the written statement at Exh.20 denying the allegation of non user of the suit premises. That the learned trial Court framed the issue at Exh.21. That the original plaintiffs examined one Satyaprakashdasji Guru Shastri Ghanshyamprasaddasji at Exh.63 and one Bhaskarbhai Vanmalidas Raval at Exh.66. That the Court Commissioner was appointed and the Court Commissioner prepared the panchnama which was exhibited at Exh.67. On behalf of the defendant, the defendant himself came to be examined at Exh.70. That on appreciation of evidence the learned trial Court held that the suit premises in question has not been used by the tenant for more than six months prior to the institution of suit and therefore, passed the decree under Section 13(1)(k) of the Rent Act by judgment and decree dated 31.12.2002.
2.1. That being aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court dated 31.12.2002, passed in Regular Civil Suit No.31 of 1995 in passing eviction decree under Section 13(1)(k) of the Rent Act, the petitioner herein -original defendant preferred Regular Civil Appeal No. 20 of 2003 and the learned Appellate Court by judgment and order dated 29.8.2011 has been pleased to dismiss the said appeal confirming the judgment and decree passed by the learned trial Court.
2.2. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by both the Courts below in passing eviction decree under Section 13(1)(k) of the Rent Act, the petitioner herein-original defendant has preferred present Civil Revision Application under Section 29(2) of the Bombay Rent Act.
3. Shri D.P. Kinariwala, learned advocate for the petitioner has vehemently submitted that both the Courts below have materially erred in holding that the suit premises in question has not been used for more than six months without reasonable cause. It is submitted that as the suit premises in question was in dilapidated condition and was not capable of being used, the same was not used by the defendant and therefore it cannot be said that the petitioner had not used the suit premises without reasonable cause. Shri Kinariwala, learned advocate for the petitioner has relied upon the decision of the Hon'ble Supreme Court in the case of Dunlop India Ltd vs. A.A. Rahna and Anr reported in AIR 2011 SC 2198 by submitting that if the tenant proves that there was reasonable cause for his having ceased to occupy the building the eviction decree cannot be passed. By making above submissions, it is requested to allow the present Civil Revision Application.
4.0. Present Civil Revision Application is opposed by Shri Patel, learned advocate for the original plaintiff. It is submitted that as such there are concurrent findings of fact given by both the Courts below with respect to non user of the suit premises by the tenant for more than six months preceding filing of the suit without reasonable cause and finding of fact given by both the Courts below are on appreciation of evidence and therefore, it is requested to dismiss the present Civil Revision Application.
4.1. It is further submitted by Shri Patel, learned advocate for the original plaintiffs that as such the petitioner-original defendant has not proved that the building was in dilapidated condition and was not capable of being used and therefore, the same was not used. It is submitted that it was never the case of the original defendant in the written statement and / or before the learned trial Court that as suit property was in dilapidated condition and therefore, the same was not used. It has also come on record that as such respondent is doing the business at Indore and staying / residing at Mumbai and therefore, he was not using the said premises. It is submitted that the suit property / shop was given to his father on rent who was already expired. Therefore, it is requested to dismiss the present Civil Revision Application.
5.0. Heard the learned advocate for the respective parties at length and considered the impugned judgment and order passed by both the Courts below as well as considered the evidence on record.
5.1. At the outset, it is required to be noted that there are concurrent findings of fact given by both the Courts below with respect to non user of the suit premises by the petitioner son of the original tenant for more than six month preceding filing of the suit and without reasonable cause. It appears that findings of fact given by both the Courts below are on appreciation of evidence and therefore, the same are not required to be interfered with by this Court in exercise of revisional jurisdiction under Section 29(2) of the Rent Act. While exercising the revisional jurisdiction under Section 29(2) of the Rent Act, this Court is not required to re-appreciate the evidence on record. It is required to be noted that even it is not the case of the petitioner-original defendant that findings of fact given by both the Courts below are perverse and / or contrary to the evidence on record.
5.2. It is required to be noted that the suit property/ shop was given on lease to the father of the petitioner who has expired. It has also come on record that the petitioner is doing business at Indore and is staying / residing at Mumbai and the suit property is situated at Gadhada, Dist. Bhavnagar. On evidence it has been found that the suit shop has not been used since long. It is the case of the petitioner for the first that as the suit premises was in dilapidated condition and was not capable of being used and therefore, the same was not used. However, it is required to be noted that the defendant has failed to prove that the building was in dilapidated condition and therefore, the same was not used by him. It is required to be noted that it was never the case of the petitioner-original defendant in the written statement and / or subsequently that the building is in dilapidated condition and therefore, the same was not used by him. It is an admitted position that the petitioner-defendant never issued any notice to the landlord with respect to the repair and / or pointed out that the building is in dilapidated condition and therefore, not capable being used. Considering the aforesaid facts and circumstances of the case when it has been found that the suit property / shop has not been used by the petitioner-original defendant for more than six months preceding filing of the suit without any reasonable cause and when the learned trial Court has passed the eviction decree under Section 13(1)(a) of the Rent Act which has been confirmed by the Appellate Court, the same is not required to be interfered with by this Court in exercise of powers under Section 29(2) of the Rent Act.
6.0. In view of the above and for the reasons stated above, present Civil Revision Application fails and deserve to be dismissed and is accordingly dismissed. Rule is discharged. Ad-interim relief if any, stands vacated forthwith. No costs.
sd/-
( M. R. Shah, J. ) "kaushik"
Top