Research › Browse › Judgment

Gujarat High Court · body

1995 DIGILAW 250 (GUJ)

HARSUKHLAL ATISUKHLAL v. ATILAXMIBEN HIRALAL MUNSHI

1995-05-01

J.N.BHATT

body1995
J. N. BHATT, J. ( 1 ) THE opponents herein are the original plaintiffs who instituted a Regular Civil Suit No. 309 of 1977 in the Court of Civil Judge J. D.) Bharuch for the possession of the demise premises against the Petitioner original defendant-tanant on the ground that (1) defandant-tanant has not used the demise Premisees without reasonable cause for the purpose for which they were leased for a continuous period of 6 months immediately preceding the date of the suit; (2) that the suit premises are required for personal and bonafide occupation by the landlord; and (3) that defendant-tenant is not using the premises as a man of prudence and thereby has committed breach of the conditions of tenancy. ( 2 ) THE defendant-tenant appeared and resisted the suit by filing written statement Exh. 17 inter alia contending that the contractual rent is excessive and standard rent should be fixed. He denied all allegations raised in the complaint. He denied that suit premises are not used as alleged. It was also contended that greater hardship will be caused to him in the event of passing of ejectment decree on the ground of Sec. 13 (1) (g ). ( 3 ) HAVING regard to the facts and circumstances issues came to be settled Exh. 28 by the Trial Court. After considering the facts and circumstances and the evidence on record the Trial Court passed the decree for ejectment on 31. 3 on the ground that the defendant-tenant has not used demises premises without reasonable excuse for the purpose for which it was leased for a continuous period of 6 months immediately preceding the date of the suit. Other two grounds were not accepted by the Trial Court. Thus decree came to be passed against the defendnat-tenant on the ground of Sec. 13 (1) (k) of the Bombay Rent Act which was questioned before the appellate Court by filing a Regular Civil Appeal No. 94 of 1980. Appeal came to be dismissed by the joint District Judge Bharuch on 31st December 1981 confirming the judgment and decree of the Trial Court Hence this revision under Sec. 29 sub-section (2) of the Bombay Rent Act. The petitioner defendant-tenant is served with a notice though not required under the law upon the elevation of his Advocate to Bench of this Court. None appeared when the matter was called out. The petitioner defendant-tenant is served with a notice though not required under the law upon the elevation of his Advocate to Bench of this Court. None appeared when the matter was called out. Therefore the matter is being disposed of on its merits by examining the facts and circumstances emerging from the record. ( 4 ) NO doubt it is true the powers of this Court in revision under Sec. 29 (2) of the Bombay Rent Act are not so limited as under Sec. 115 of the Code of Civil Procedure 1908 (Code ). However what is contemplated by Sec. 29 sub-section (2) is to enable this Court to call for the record of a case to satisfy itself that the decision rendered impugned in that revision is according to law. The phrase according to law means the Court has to consider whether impugned decision is in any way sufferring from errors of law or facts resulting into miscarriage of justice. In the present case it cannot be said that the impugned eviction decree on aforesaid two grounds is not according to law. Nothing has been shown which would warrant the interference of this Court under Sec. 29 sub-section (2) of the Bombay Rent Act. Nothing has also been placed on record to show that even after the passing of the decree in the appeal under Sec. 12 (3) (b) the tenant has made efforts to show his readiness and willingness sons to earn protection from ejectment on the ground of non-payment of rent. The consistent and concurrent finding of fact recorded by both the Courts that the original defendant No. 1 tenant has sub-let the demise premises to original defendant No. 2 is also supported by the facts and circumstances and the evidence on record. ( 5 ) THE Courts below have recorded factual finding consistently and concurrently that the demise premises are not used by the tenant for a continuous period of 6 months immediately preceding the date of the suit if. ( 5 ) THE Courts below have recorded factual finding consistently and concurrently that the demise premises are not used by the tenant for a continuous period of 6 months immediately preceding the date of the suit if. a Want who does not use the demise premises for a continuous period of more than 6 months immediately preceding the date of suit and if this ground is made for eviction under Sec. 13 (1) (k) of the Bombay Rent Act then the purpose and pending behind enacting Sec. 13 (1) (k) would be frustrated a tenant who has ceased to occupy and use the demise premises without reasonable cause is not qualified to claim protection under the Bombay Rent Act. The object and the scheme of clause (k) of sub-section (1) of Sec. 13 of the Bombay Rent Act is that the tenant should use the premises for the purpose for which the premises were let. One cannot keep the premises locked without using them in absence of any reasonable cause as non-user itself will render the premises idle and in the situation where the accommodations are in scarce non-user or seizure of user cannot be countenanced. ( 6 ) THE tenant has not been able to show that there was any reasonable cause for non-user of the demise premises. If the tenant could prove that his non-user was due to a reasonable cause obviously no ejectment would be that there is no reasonable cause. This presumption could be ordered. Once the landlord has shown that there is a non-user the presumption could be rebutted by the tenant by leading evidence which is not so done in the present case. With the result the consistent concurrent factual findings of non-user without reasonable cause and resultant passing of decree under clause (k) sub-section (1) of Sec. 13 of the Bombay Rent Act by no stretch of imagination could be said to be not according to law requiring interference of this Court in a revision under sub-section (2) of Sec. 29 of the Bombay Rent Act. With the result this revision must fail being meritless. Accordingly it is rejected. Rule is discharged. Interim relief shall stand vacated in the circumstances. There shall be no order as to costs. Revision Dismissed. .