1.0. Present Civil Revision Application under Section 29 (2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (herein after referred to as the "Bombay Rent Act") has been preferred by the applicants herein heirs and legal representatives of original plaintiff-landlord challenging the impugned judgment and order passed by the learned Appellate Court
-learned Extra Assistant Judge, Valsad at Navsari camp at Valsad dated 29.4.2000 passed in Regular Civil Appeal No. 15 of 1985, by which the, learned Appellate Court has allowed the said appeal preferred by respondent no.1 herein by quashing and setting aside the judgment and decree passed by the learned Civil Judge(J.D), Valsad passed in Regular Civil Suit No.57 of 1979.
2.0. That the original plaintiffs Najmudding Ismail Kagajwala and Abbasbhai Mahadali Bulsara instituted Regular Civil Suit No.57 of 1979 against one Bhawanji Khandubhai Desai and Jayantilal Devjibhai Dhimar in the Court of learned Civil Judge (J.D.), Valsad for recovery of possession and arrears of rent alleging inter alia that the suit property in question was requisitioned by the Collector and the Collector leased the suit property to the original defendant no.1 Bhgwanji Khandubhai Desai who was the advocate of the Corporation for accommodation of original defendant no.2 who was his clerk. It was also the case of the plaintiffs that on 7.7.1970 the Collector passed an order of de- requisitioned and further passed an order on 8.7.1970 to lease the suit property in favour of the original defendant no.1 Bhawanji Khandubhai Desai for accommodation of his clerk original defendant no.2. That in 1978 the original defendant no.2 the clerk of original defendant no.1 was dismissed for misappropriation etc. and therefore, he was not authorized to continue the occupation and possession of the suit property. It was also the case of the plaintiffs that even the defendants have not paid the rent since 1.5.1978. That original defendant no.1 filed written statement at Exh.11. He admitted that he is the tenant of the suit property and that the suit premises was taken by him on the lease for the purpose of residence of original defendant no.2, who was at the relevant time working as clerk. He also admitted that the rent of the suit premises was Rs.20 per month. He also admitted in his written statement that he has dismissed defendant no.2 from his service since 20.5.1978 as defendant no.2 has misappropriated certain amount of the defendant no.1 and had also committed certain irregularities. It was also contended by the original defendant no.1 that he has asked defendant no.2 to vacate the suit premises after being dismissed from service and he has not vacated the suit premises and therefore, defendant no.1 is not liable to pay rent for the period from 20.5.1978. Thus, as such the original defendant no.1 supported the plaintiffs.
2.1. That original defendant no.2 resisted the suit by filing the written statement at Exh.16. He denied the case of the plaintiffs. According to the defendant no.2 he was the tenant of the suit premises. It was also denied by the original defendant no.2 that the defendant no.1 has taken suit premises on lease for him. It was the case on behalf of the defendant no.2 that originally suit premises was requisitioned by the Collector, Valsad for the residence of the Government servants and that the suit premises was allotted to him by the order of the Collector, Valsad in the year 1966. It was the case on behalf of the defendant no.2 that since 1966 he is occupying the suit premises as tenant and has paid rent to the plaintiffs since then. It was the case of the defendant no.2 that he was relieved from government service (Medical Department) on 7.4.1969, but the possession of the suit premises is remained with him till date as a tenant. It was further contended by the defendant no.2 that the Collector, Valsad released the suit premises from requisition by his order dated 7.7.1970 and that thereafter the plaintiffs have allowed the defendant no.2 as their tenant of the suit premises. It was also the case on behalf of the defendant no.2 that he had sent money order of Rs. 200/- on 6.3.1970 which was accepted by the plaintiffs. Thus, it was the case on behalf of the defendant no.2 that he was the tenant of the suit premises.
2.2. That the learned trial Court framed the issue at Exh. 20. Both the parties led the evidence oral as well as documentary. That on appreciation of evidence the learned trial Court held that the plaintiffs have proved that the suit premises was given on lease to the defendant no.1 for the residence of the defendant no.2 so long he remained in service with the defendant no.1. The learned trial Court also held that the plaintiffs had proved that defendant no.1 is in arrears of rent. The learned trial Court also held that original defendant no.2 failed to prove that he was the tenant of the suit premises. Consequently, the learned trial Court decreed the suit by judgment and decree dated 28.11.1984 and directed to the defendants to handover the peaceful and vacant possession of the suit premises to the plaintiff. The learned trial Court also directed the original defendant no.1 to pay Rs. 220/- to the plaintiffs towards arrears of rent.
2.3. Feeling aggrieved and dissatisfied by the judgment and decree passed by the learned trial Court, Valsad dated 28.11.1984 passed in Regular Civil Suit No. 57 of 1979 , the original defendant no.2 preferred Regular Civil Appeal No.15 of 1985 before the learned District Court, Valsad. That during the pendency of the appeal, original plaintiffs died and therefore, the petitioners herein were brought on record as heirs and legal representatives of the original plaintiffs. That the learned Appellate Court by his impugned judgment and order dated 29.4.2000 has allowed the said appeal preferred by the original defendant no.2 by holding that the learned trial Court has materially erred in passing eviction decree as such defendant no.2 was not in the service of the plaintiffs and therefore,on dismissal from the service, the defendant no.1 was not required to be evicted and consequently the learned Appellate Court quashed and set aside the judgment and decree passed by the learned trial Court passed in Regular Civil Suit No.57 of 1979.
2.4. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned Appellate Court dated 29th April 2000 passed in Regular Civil Appeal No. 15 of 1985 in allowing the said appeal preferred by the original defendant no.2, the petitioners herein heirs and legal representatives of the original plaintiffs -owners have preferred present Civil Revision Application under Section 29(2) of the Bombay Rent Act.
3.0. It is required to be noted that during the pendency of the present Civil Revision Application original defendant no.2 Jayantilal Devjibhai Dhimar has also expired and therefore, respondent nos.1.1 to 1.3 are brought on record as heirs and legal heirs of the original defendant no.2.
3.1. Shri Jayesh Patel, learned advocate for the petitioners -as heirs and legal representatives of original plaintiffs has vehemently submitted that the learned Appellate Court has materially erred in allowing the appeal preferred by the original defendant no.2 in quashing and setting aside the judgment and decree passed by the learned trial Court.
3.2. It is further submitted by Shri Jayesh Patel, learned advocate for the petitioners that the learned Appellate Court has materially erred in holding that original defendant no.2 was not in employment of the plaintiffs and therefore, no eviction decree can be passed against him on dismissed from service by defendant no.1.
3.3.
It is further submitted by Shri Jayesh Patel, learned advocate for the petitioners that as such the defendant no.2 was never the tenant of the suit premises. It is submitted that as such the suit premises in question was given on lease by the Collector, Valsad to the original defendant no.1 with the consent of the plaintiffs and that too for the accommodation of the original defendant no.2 who was at the relevant time working as clerk with the original defendant no.1. It is submitted that the original defendant no.2 came to be dismissed from service by the original defendant no.1 in the year 1978 and therefore, on and from that date he had no right to continue with the occupation and possession of the suit premises. It is submitted that as such the original defendant no.2 never paid any rent to the plaintiffs and that the plaintiffs never accepted any rent from defendant no.2. It is submitted that all throughout the rent was paid by the original defendant no.1 only. It is submitted that even at the time of de-requisition of the suit premises on 7.7.1970 the original defendant no.2 submitted the application to the Collector, Valsad to continue him as a tenant on humanitarian ground, however the said application was rejected. It is submitted that therefore, considering the aforesaid facts and circumstance of the case when the learned trial Court decreed the suit the same was not required to be interfered with by the Appellate Court. By making above submission, it is requested to allow the present Civil Revision Application.
4.0. Present Civil Revision Application is opposed by Shri Sunil Patel, learned advocate for the original defendant no.2. It is submitted that the defendant no.2 was in possession of the suit premises since 1966 as tenant when he was in the Government-Maleriya Department and he was directly paying rent to the original plaintiff even prior to 1978. It is submitted that even the money order for the rent was sent to the plaintiffs which was accepted and therefore, defendant no.2 was the tenant of the plaintiff and therefore, even on dismissing from the service by the original defendant no.1 he was not required to be vacated. It is submitted that as rightly observed by the learned Appellate Court when it was not the case on behalf of the plaintiffs that he was in employment of the plaintiffs and therefore, he was given suit the property no eviction decree can be passed against him on dismissal from the service by the original defendant no.1. It is submitted that the judgment and order passed by the learned Appellate Court is absolutely just and on correct interpretation of the provision of law and the same is not required to be interfered with by this Court in exercise of revisional jurisdiction. Therefore, it is requested to dismiss the present Civil Revision Application.
5.0. Heard the learned advocates for the respective parties at length and considered the impugned judgment and order passed by both the Courts below as well as Record and Proceedings of the case which has been received from the lower Court.
5.1. It appears that the suit property in question was requisitioned by the Collector initially in the year 1966 and though the Collector had no jurisdiction and / or authority to lease the requisition property still it was given on lease. It appears that the suit property was released from requisition by the Collector vide order dated 7.7.1970. However, it appears that the original defendant no.1 submitted the application before the Collector, Valsad to lease the suit property to him at the monthly rent of Rs.20/- and by order dated 8.7.1970 the Collector with the approval of the plaintiffs leased the suit property in favour of the original defendant no.1 at the monthly rent of Rs.20. It also appears from the record, more particularly, Exh.42 that original defendant no.2 submitted the application before the Collector to continue him as a tenant and / or to lease the suit property to him on humanitarian ground, however the same came to be rejected by the Collector and suit property in question was leased in favour of the original defendant no.1 at the monthly rent of Rs.20 for the accommodation of the original defendant no.2 who was at the relevant time working with original defendant no.1. Therefore, contention of the original defendant no.2 that he was the tenant of the original plaintiff is not borne out from any documentary evidence. As stated above, on the contrary from the documentary evidence, it appears that the application of the original defendant no.2 to lease the suit property to him as a tenant on humanitarian ground came to be rejected in the year 1970. Therefore, the learned trial Court rightly held that defendant no.2 has failed to prove that he was the tenant of the plaintiffs. On appreciation of evidence the learned trial Court also held that as such the suit premises in question was leased to defendant no.1 at the monthly rent of Rs.20 for accommodation of original defendant no.2 who was at the relevant time working with the defendant no.1 as his clerk. It is not in dispute that on 20.5.1978 the defendant no.2 came to be dismissed as a clerk by defendant no.1. Even the original defendant no.2 has failed to prove that at any point of time he has paid the rent to the plaintiffs either prior to 1978 or thereafter. Even the case on behalf of the original defendants no.2 that in the year 1970 he sent money order which was accepted by the plaintiffs is concerned, the original defendant no.2 has failed to prove the same. It appears that on the contrary, the money order which was sent to the plaintiffs was refused.
5.2. Under the circumstances when the suit premises was given on lease to the original defendant no.1 only at the monthly rent of Rs.20 for the accommodation of the original defendant no.2 who was at the relevant time working as clerk of the defendant no.1 and when the original defendant no.2 came to be dismissed from the service as clerk in the year 1978 as rightly held by the learned trial Court, thereafter defendant no.2 has no right to continue with the occupation and possession of the suit premises.
5.3. It appears from the impugned judgment and order passed by the learned Appellate Court that the learned Appellate Court has quashed and set aside the impugned judgment and decree passed by the learned trial Court mainly on the ground that as defendant no.2 was not in employment of the plaintiffs and therefore, on dismissing from the service by defendant no.1 no eviction decree can be passed against him. However, the learned Appellate Court has materially erred in not properly appreciating the fact that as such defendant no.2 has failed to prove that he was the tenant of the suit premises and / or tenant of the plaintiffs. The learned Appellate Court has also not properly appreciated the fact that as such the suit premises in question was given to the original defendant no.1 at the monthly rent of Rs.20 for the accommodation of the original defendant no.2 while he was working as clerk. Therefore, considering the order passed by the learned Collector dated 8.7.1970 by which the property in question was leased to the original defendant no.1 and as property in question was leased to defendant no.1 for accommodation of the defendant no.2 while he was in service as clerk, after defendant no.2 was dismissed as a clerk he was not entitled to continue with the occupation and possession of the suit premises and therefore, the learned trial Court has rightly passed eviction decree which was not required to be interfered by the learned Appellate Court. Under the circumstances, the impugned judgment and order passed by the learned Appellate Court deserves to be quashed and set aside and eviction decree passed by the learned trial Court deserves to be restored.
6.0. In view of the above and for the reasons stated above, present Civil Revision Application succeeds and the impugned judgment and order passed by the learned Appellate Court -learned Extra Assistant Judge, Valsad at Navsari camp at Valsad dated 29.4.2000 passed in Regular Civil Appeal No. 15 of 1985 is hereby quashed and set aside and judgment and decree passed by the learned trial Court, Valsad passed in Regular Civil Suit No.57 of 1979 is hereby restored and respondents herein heirs and legal representatives of the original defendants are hereby directed to handover the vacant and peaceful possession of the suit premises to the plaintiffs. Rule is made absolute to the aforesaid extent. No costs.
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( M. R. Shah, J. ) kaushik Top