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1993 DIGILAW 320 (GUJ)

BIPINCHANDRA NATVARLAL DESAI v. JOITARAM GOVINDBHAI PATEL

1993-07-14

J.N.BHATT

body1993
J. N. BHATT, J. ( 1 ) SINCE common questions are involved between the same parties namely the landlord and the tenant in all the four Revision Applications and they arise out of common judgment of the first Appellate Court upon joint request they are being disposed of by this common judgment. ( 2 ) REVISION Applications No. 1705 of 1980 and 698 of 1981 are filed by the tenant who was the original plaintiff in H. R. P. suit No. 1944 of 1975 and the Revision Applications No. 51 of 1981 and 52 of 1981 are filed by the landlord who was the original plaintiff in H. R. P. Sut No. 2159 of 1975. The panics are hereinafter referred to as the landlord and the tenant for the sake of brevity and convenience. The tenant filed the aforesaid suit in the Small Causes Court at Ahmedabad on 9. 5. 1975 for declaration and injunction restraining the landlord from constructing cement stair-case in chawk portion and from closing the western side window Or kitchen and damaging his lease-hold right in the premises. The landlord filed the aforesaid suit for declaration and injunction restraining the tenant from using the chawk bath room and passage to the west of the demised premises. This suit was filed on 16. 6. 1975. Both the suits come to be consolidated and common evidence was led. The landlord examined five witnesses and the tenant examined four witnesses. On appreciation of the common evidence led by the parties in both the suits the Trial Court passed a common judgment on 21. 9. 1979 by holding: (i) that the landlord is permanently restrained from constructing or causing to construct the stair-case in any manner by which the user of the window in the kitchen with the tenant is restricted (ii) that the chawk portion behind the rooms with the tenant is not let or given in use to the tenant and that the act of the tenant in closing the door from the chawk side abutting in the middle room of the house is not legal (iii) that the tenant is permanently restrained from removing or causing to remove the ladder in the chawk portion and also from restraining or causing to restrain the landlord in constructing the stair-case only as per plan at Exh. 41 and also from using or causing to use whole of the chawk portion and bath room. Rest of the claim in both the suits came to be rejected leaving the parties to bear their own costs. 3 Being dissatisfied and aggrieved by the judgment of the Trial Court the tenant preferred two appeals before the Appellate Bench of the Small Causes Court at Ahmedabad being Appeals No. 65 of 1980 and 66 of 1980 on 14. 2. 1980. Both the appeals were heard and came to be decided by a common judgment on 30. 9. 1980. The Appellate Court partly allowed the appeal by modifying the impugned order of the Trial Court. The Civil Appeal No. 65 of 1980 was partly allowed and it was declared that the chawk portion behind the two rooms let out to the tenant was allowed by the landlord to be used by the tenant as the tenant and that the disputed passage marked C and disputed bath room marked D and the disputed passage marked E shown in the Commissioners map at Exh. 36 is common with the landlord. Thus the judgment and decree in H. R. P. Suit No. 2159 of 1975 in so far as it related to the injunction order granted against the landlord restraining him from constructing or causing to construct any stair-case in any manner by which the user of the window in the tenants kitchen would not be restricted came to be confirmed. ( 3 ) THE judgment and the decree of the Trial Court in H. R. P. Suit No. 2159 of 1975 in so Far as related to the injunction granted against the tenant restraining him from removing or causing to remove the existing ladder in the chawk portion restraining or causing to restrain the landlord in constructing the stair-case only as per the plan at Exh. 41 and from using or causing to use the whole of the chawk and the bath room exclusively for himself also came to be confirmed. Moreover in that suit in so far as the relief related to the declaration that the tenant was not entitled to close the door of the middle room of the landlord opening from the chawk side was also confirmed. Moreover in that suit in so far as the relief related to the declaration that the tenant was not entitled to close the door of the middle room of the landlord opening from the chawk side was also confirmed. Civil Appeal No. 66 of 1980 filed by the tenant was also partly allowed and the Appellate Court declared that the tenant was given the right by the landlord to use as tenant the disputed passage marked C the disputed bath room marked D and the disputed chawk marked E as shown in the Commissioners map at Exh. 36 in common with the landlord. Being aggrieved by the said common judgment of the Appellate Court the Civil Revision Application No. 1705 of 1980 is filed by the tenant against the appeal No. 65 of 1980 which was filed against H. R. P. Suit No. 2159 of 1975. Likewise the tenant has also filed Civil Revision Application No. 698 of 1981 against the adverse judgment passed in Civil Appeal No. 66 of 1980 which was preferred against the decision in H. R. P. Suit No. 1944 of 1975 the landlord has filed Civil Revision Application No. 51 of 1981 against the adverse decision in Appeal No. 65 of 1980 which was preferred against the decision in H. R. P. Suit No. 2159 of 1975 and he has also filed Civil Revision Application No. 52 of 1981 against the adverse decision rendered in Appeal No. 66 of 1980 which was preferred against the H. R. P. Suit No. 1944 of 1975 ( 4 ) THE aforesaid four Revision Applications are filed by invoking the aids of the provisions of Section 29 (2) of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 (the Rent Act for short ). Needless to state that the powers of this Court under Section 29 (2) of the Rent Act are very much circumscribed while hearing a revision. Sub-section (2) is amended by Gujarat Act 18 of 1965 which came into effect on June 17 1965 No doubt it confers upon the High Court a jurisdiction wider than the jurisdiction exercisable under Section 115 of the Code of Civil Procedure and conferred power to re-open questions of law which till then were to be deemed to be finally decided. The High Court has discretion under Section 29 (2) of the Rent Act and in a given fit case it can exercise such discretionary power However it must be noted clearly that High Court should use its revisional power under Section 29 (2) of the Rent Act only for limited purpose with a view to satisfying itself that the decision was according to law. Ordinarily while exercising its revisional jurisdiction it will not be competent for the High Court to correct the errors of facts or finding of facts unless they are perverse illegal affecting the jurisdiction of Court or manifestly resulting into miscarriage of justice. Thus the jurisdictional sweep of the Court under Section 29 (2) is very limited. Although under Section 29 (2) of the Rent Act this Court has a wider jurisdiction than the jurisdiction exercisable under Section 115 of the Code of Civil Procedure its revisional jurisdiction be exercised only for a limited purpose with a view to satisfying itself that the decision was according to law. The Court cannot substitute its own finding. This Court would be at loathe to interfere with the findings of fact unless it is shown that such findings are manifestly perverse erroneous or illegal resulting into miscarriage of justice. This proposition of law is very well settled by the Apex Court in a decision in Bhaichand vs. Laxmishankar AIR 1981 SC 1690 . ( 5 ) THE learned Counsel for the landlord in course of his submissions has pointed out the following circumstances: (i) that the wooden ladder placed in the open chawk to the west of the demised premises is the only way to go to the first floor and it is in the possession of the landlord (ii) that the door of the bed room of the landlord is opening in the passage marked shown in the map of the Commissioner at Exh. 36. (iii) that the switch board is put on the bath room wall shows exclusive usage by the landlord. (iv) that the plan at Exh. 41 with ladder was approved by the local Authority as early as in 1974 (v) that the deposition of previous tenant Rambhai Patel at Exh. 46 supports the case of the landlord (vi) that the tenant when he hired the premises in 1971 was unmarried till 12. 3. (iv) that the plan at Exh. 41 with ladder was approved by the local Authority as early as in 1974 (v) that the deposition of previous tenant Rambhai Patel at Exh. 46 supports the case of the landlord (vi) that the tenant when he hired the premises in 1971 was unmarried till 12. 3. 1978 and therefore the question of user of the bath room or chawk by him would not arise when the two rooms were let to him (vii) that the landlord has as many as eight members in his family and considering the size of his family he would not let or allow the tenant to use the bath room passage and chawk (viii) that the Trial Court has held that the landlords witnesses are the reliable witnesses of the tenant are chance witnesses. Relying on the aforesaid eight circumstances it has been contended that the decision of the Trial Court should be restored and the Appellate Court has committed serious error in interfering with the decision of the Trial Court. The learned Counsel for the tenant in course of his submissions has placed strong reliance on the following five circumstances: (i) that the suit was filed by the tenant on 9th May 1975 and immediately after filing the suit he obtained interim injunction which came to be confirmed by the Trial Court. (ii) that the landlord as an afterthought filed subsequently his suit on 16th June 1975 (iii) that the landlord has failed to prove his claim that he is exclusively using the disputed portions (iv) that the witnesses of the tenant have proved that he is in exclusive possession of the disputed portions (v) that the report of the Court Commissioner indicated that goods of the tenant were lying in the chawk and the fact that the switch board is also in the chawk and there is no water tap in kitchen and it is only in the disputed bath room. ( 6 ) PLACING reliance on the aforesaid circumstances it has been contended by the learned counsel for the tenant that the Appellate Court has committed serious error and the Revisions filed by him may be allowed. Apart from the fact that the aforesaid circumstances relied upon by both the sides are findings of facts the main controversy revolves around is as to what was the portion which has let to the tenant. Apart from the fact that the aforesaid circumstances relied upon by both the sides are findings of facts the main controversy revolves around is as to what was the portion which has let to the tenant. According to the case of the landlord the tenant was let only one room along with an attached kitchen in 1968 with a right to use toilet by going through the compound margin. According to the case of the tenant he is a monthly tenant of the landlord in respect of one room having its door facing north to the eastern side of the landlords property bearing Survey No. 641 and having No. 20/b of Bungalow situated in Shri Society Ambavadi Ahmedabad. It is further the case of the tenant that he is also a tenant in respect of kitchen along with the said room and also of chawk situated on the back side of the said kitchen and also of the passage towards the western side from the said chawk and that there is one bath room in the said chawk and there is one otta to the west of the said passage portion of the said chawk and there is a latrine on the said otta and he has a right to use the said bath room and latrine as the tenant of the landlord. Thus the tenant contended that he is in possession of one room with an attached kitchen chawk on the western side of the said kitchen having a bath room in it and the passage portion to the west having a latrine on the otta on the said passage portion. The landlord contended that the tenant was never let or allowed to use the disputed portion of passage chawk or bath room more particularly shown in the Commissioners map at Exh. 36. ( 7 ) HAVING examined the facts and circumstances emerging from the record and while viewed in the light of the aforesaid legal setting this Court is of the clear opinion that the impugned common judgment of the Appellate Bench cannot be said to be illegal perverse or manifestly wrong entitling this Court to exercise its discretionary power under Section 29 (2) of the Rent Act. In other words the findings of facts arrived at by the Appellate Bench do not warrant the interference of this Court. In other words the findings of facts arrived at by the Appellate Bench do not warrant the interference of this Court. Therefore there is no fit case for exercising the revisional powers by this Court under Section 29 (2) of the Rent Act. No illegality is pointed out. No mis-reading of evidence is successfully spelt out. No perversity is made out. In the result all these four Revision applications are required to be dismissed leaving the parties to bear their own costs. Consequently the Revision applications are dismissed with no order as to costs. At this stage learned Counsel for the tenant requests that the interim relief granted in Civil Revision Application No. 1705 of 1980 may be continued for a further period of three months as the tenant is desirous of challenging the decision of this Court in the higher forum. Considering the peculiar facts and circumstances the interim relief granted by this Court on 5. 11. 1980 and confirmed on 15. 12. 1980 shall remain operative till 30th September 1993 Rule discharged in all the four revisions. All The Four Revision application Dismissed. .