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2011 DIGILAW 244 (GUJ)

BHUPENDRA TAPUBHAI PADIA v. PRATAPRAI POPATLAL SONEJI

2011-03-24

RAJESH H.SHUKLA

body2011
JUDGMENT RAJESH H. SHUKLA, J. The present revision application has been filed by the petitioners-original plaintiffs under Sec. 115 of the Code of Civil Procedure as well as under Sec. 29(2) of the Bombay Rent Act for the prayer that the judgment and order passed by the learned Assistant Judge at Rajkot in Regular Civil Appeal No.4 of 1992 dated 31-8-1998 confirming the judgment and order passed by the Small Causes Court at Rajkot in Regular Civil Suit No. 200 of 1985 may be quashed and set aside on the grounds set out in the memo of application. 2. The facts of the case, briefly summarised, are that the petitioners-original plaintiffs filed Regular Civil Suit No. 200 of 1985 before the Small Causes Court, Rajkot for eviction and possession of the rented premises on the ground that the defendant-tenant has acquired suitable alternate accommodation. On appreciation of evidence and after hearing the learned Advocates for the parties, the trial Court, by its judgment and order dated 3-12-1991, dismissed the suit. Against the said judgment and order, Regular Civil Appeal No. 4 of 1992 came to be filed by the petitioners-original plaintiffs. The first appellate Court, on appreciation of evidence and after hearing the learned Advocates for the parties, dismissed the appeal confirming the judgment and order passed by the trial Court vide its judgment and order dated 31-8-1998. Therefore, the present revision application has been preferred. 3. Learned Counsel Mr. Mehul Shah for the petitioners submitted referring to the judgment of the trial Court in Regular Civil Suit No. 200 of 1985 that once acquisition of alternate premises has been accepted in the written statement as well as in the evidence, the question of suitability of such alternate premises is required to be considered. He submitted that, as transpires from the evidence, admittedly, the respondent-defendant has stated that there are only two persons in his family, as the brother and his family as well as the mother have gone to Bhavnagar, which both the Courts below have not appreciated. Learned Counsel Mr. Shah submitted that, on the basis of the evidence, as could be seen from the issues, particularly Issue No.5 regarding acquiring of suitable accommodation, the finding is 'yes'. Therefore, the same has been discussed though the suit has been dismissed. Learned Counsel Mr. Shah submitted that, on the basis of the evidence, as could be seen from the issues, particularly Issue No.5 regarding acquiring of suitable accommodation, the finding is 'yes'. Therefore, the same has been discussed though the suit has been dismissed. He, therefore, submitted that the first appellate Court ought to have appreciated this aspect and the suit ought not to have been dismissed. He has submitted that acquisition of other accommodation even on rental basis would be sufficient. He submitted that this aspect has not been appreciated by the first appellate Court, inasmuch as, if this finding is in favour of the plaintiffs, the cross-objection could have been filed by the defendant-tenant. 4. Learned Counsel Mr. Shah referred to Order 41, Rule 22 and submitted that as there were no cross-objections filed on this aspect, at least the lower appellate Court could not have given the finding against the petitioner-original plaintiffs landlord. He has also referred to the explanation and submitted that both the Courts below have thus committed an error. He has also referred to the testimony/evidence of the plaintiffs at Exh. 28 and the defendant-tenant at Exh. 55. He, therefore, submitted that as both the Courts have failed to appreciate this aspect with regard to acquisition of suitable premises which has been admitted by the defendant-tenant, the decree ought not to have been passed and in fact the discussion by the trial is in favour of the plaintiffs though that suit has been dismissed, which has not been appreciated by the lower appellate Court. 5. The submissions have been made by learned Counsel Mr. Shah referring to the judgment as well as the evidence. However, a close look at the written statement at Exh. 17 clearly suggests that it cannot be said that it has been admitted by the defendant about the acquisition of suitable accommodation. In fact, what has been stated is that the family of the defendant is large including the brother, his family, mother and there are guests, which led to the hardship, and therefore, by way temporary arrangement they were using other alternate premises which has also been taken away by the landlord subsequently as it transpires from the evidence. The same version has been stated by the defendant-tenant in the evidence at Exh. 55. The same version has been stated by the defendant-tenant in the evidence at Exh. 55. Therefore, the moot question is whether it can be said that the defendant-tenant can be said to have acquired suitable alternate accommodation. 6. Though, the reasoning given by the trial Court may not have been with clarity, it has to be read in context of the entire evidence and the findings given. The lower appellate Court has also specifically observed on appreciation of evidence, referring to aspect of acquisition of alternate suitable premises, and has not accepted the contention of the plaintiffs and the appeal has been dismissed. It has also been mentioned that, “the plaintiff did not examine any witnesses to prove that the defendant and wife of the defendant's brother etc., are residing in the room of Ranchhodnagar and that room has better facility than of the suit room. The plaintiff did not examine any neighbour or any person who are residing nearby the room of Ranchhodnagar.... The plaintiff failed to prove that the defendant is in possession of the room of Ranchhodnagar which is suitable accommodation." 7. In the circumstances, appreciating the evidence and the rival submissions, the concurrent findings of facts arrived at by the Courts below does not call for any interference in exercise of the revisional jurisdiction by this Court as the conclusion cannot be said to be erroneous. 8. The submissions which have also been made by learned Counsel Mr. Shah referring to Sec. 29(2) of the Rent Act that though it is a revision, it is under a special statute, and therefore, the Court has to satisfy itself that the decision of the Courts below was according to law is also misconceived. In fact, the Court has perused the record including the deposition of both the plaintiff and the defendant, and as discussed hereinabove, having considered the specific contentions the conclusion is arrived at which is just and proper. It is required to be mentioned that the provisions of Sec. 29(2) of the Rent Act are enabling provisions for the High Court to satisfy itself that the decision arrived at is according to law and there is no mistake resulting into miscarriage of justice due to any wrong approach or misconception of law. 9. It is required to be mentioned that the provisions of Sec. 29(2) of the Rent Act are enabling provisions for the High Court to satisfy itself that the decision arrived at is according to law and there is no mistake resulting into miscarriage of justice due to any wrong approach or misconception of law. 9. A useful reference can be made to the observations of the Hon'ble Apex Court in a judgment in the case of Patel Valmik Himatlal v. Patel Mohanlal Muljibhai (Dead) Through L.Rs., reported in 1999 (1) GLR 15 (SC) AIR 1998 SC 3325 . The Hon'ble Apex Court has observed : "5. The ambit and scope of the said Section came up for consideration before this Court in Helper Girdharbhai v. Saiyed Mohmad Mirasaheb Kadri, 1987 (3) SCC 538 : AIR 1987 SC 1782 and after referring to a catena of authorities, Sabyasachi Mukharji, J. drew a distinction between the appellate and the revisional jurisdictions of the Courts and opined that the distinction was a real one. It was held that the right to appeal carries with it the right of rehearing both on questions of law and fact, unless the statute conferring the right to appeal itself limits the rehearing in some way, while the power to hear a revision is generally given to a particular case is decided according to law. The Bench opined that although the High Court had wider powers than that which could be exercised under Sec. 115 of the Code of Civil Procedure, yet its revisional jurisdiction could only be exercised for a limited purpose with a view to satisfying itself that the decision under challenge before it is according to law. The High Court cannot substitute its own findings on a question of fact for the findings recorded by the Courts below on re-appraisal of evidence. Did the High Court exceed its jurisdiction?" 10. Therefore, a discretion is given to the High Court to satisfy itself about the decision reached by the Courts below and once it is found that the view taken by the Courts below, particularly the concurrent findings of facts arrived at by both the Courts below based on evidence is a plausible view, it cannot be said that there is any error, much less any error resulting in miscarriage of justice. In other words, unless it is shown that the Courts below have misdirected in arriving at the decision and have committed an error in application of law or in construing the provision of law or a document, the findings of facts based on appreciation of evidence cannot be interfered with. 11. In the circumstances, as there is no such error committed by both the Courts below, the present revision application cannot be entertained and deserves to be rejected, and accordingly stands rejected. Rule is discharged. No order as to costs. Application rejected.