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2011 DIGILAW 408 (GUJ)

Rajaji Ramdev v. Abdul Avval Habibbulah Mansuri

2011-05-09

RAJESH H.SHUKLA

body2011
Judgment Rajesh H.Shukla, J.—The present revision application has been filed by the appellants-original defendants for the prayer that the judgment and order passed in Civil Appeal No. 121/2006 dated 30.12.2010 by the Appellate Bench of the Small Causes, Ahmedabad (lower appellate Court) confirming the judgment and decree passed in H.R.P. Suit No. 920/98 dated 18.4.2006 may be quashed and set aside on the grounds stated in the memo of this revision application, inter alia, that both the Courts below have failed to appreciate and consider that in the chawl there are more than 25-30 rooms and while coming to the conclusion both the Courts below have only considered the oral evidence of defendant No. 1 that he had left the premises in 1994-95, but has not considered the entire evidence. It is also contended that both the Courts below have erred in totally relying upon the oral evidence of the plaintiff, exh. 46. It is also contended that both the Courts have failed to appreciate that as defendant No. 1 had to go to the native place a mere caretaker in possession cannot be said to be a tenant and therefore they have committed a grave error. It is also contended that both the Courts below have failed to appreciate that defendant No. 1 was a mill worker and on closure of mill he had gone to the native place which would not amount to subletting unless there is a specific evidence. 2. Learned counsel Mr. Gandhi referred to the judgment of both the Courts below and also the documentary evidence which has been discussed and submitted that the HRP suit was decreed on the grounds of (i) arrears of rent (ii) subletting (iii) suitable accommodation acquired by the tenant Learned counsel Mr. Gandhi submitted that as stated in the written statement, rent up to 1993 was paid and Application No. 894/93 for the standard rent was also filed, an amount of Rs. 1620/- was deposited as per the Court’s order. Learned counsel Mr. Gandhi therefore submitted that this ground would not have much relevance and it was not pressed as per the purshis. 3. Learned counsel Mr. Gandhi submitted that therefore the main ground for the decree is subletting. For that purpose he referred to exh. 45 as well as exh. 82 the evidence of one Hiralal, exh. 84 defendants’ evidence and also exh. 3. Learned counsel Mr. Gandhi submitted that therefore the main ground for the decree is subletting. For that purpose he referred to exh. 45 as well as exh. 82 the evidence of one Hiralal, exh. 84 defendants’ evidence and also exh. 81 report of the Court Commissioner. He submitted that though both the Courts below have come to the conclusion about subletting on the premise that defendant No. 1 had gone to the native place and in fact he has not occupied the premises and he has let out to the sub-tenant, defendant No. S. However, Learned Counsel Mr. Gandhi submitted that both the Courts have failed to appreciate that defendant No. 1 was a mill worker and on closure of the mill he had gone to his native place for some time which would not be a ground for eviction when he has given it for taking care to someone and in fact the evidence like electricity bills produced at exh. 59-63 suggest that the premises was used and occupied. There is no other evidence produced with regard to the defendant No. 1 having alternative accommodation. He submitted that earlier Civil Suit No. 921/98 was filed and it was withdrawn. He submitted that issues were framed at exh. 37 and the issue with regard to non-user has also been discussed. Learned counsel Mr. Gandhi submitted that for the purpose reliance is placed on the oral evidence, but it has not been appreciated that defendant No. 1 had gone to the native place because of the closure of the mill and he has also stated that he is working in a factory. 4. Learned counsel Mr. Gandhi has referred to and relied upon the judgment in the case of Manjulaben wd/o Ramanlal Nathalal vs. Gajiben wd/o Ramanlal Purshottam, reported in 2001 (1) GLR 186 . 5. Learned counsel Mr. D.C. Dave submitted that the concurrent finding of facts arrived at by the Courts below may not be disturbed in exercise of revisional jurisdiction as the scope of revisional jurisdiction is limited. Learned counsel Mr. Dave has submitted that in fact defendant No. 1 has not even filed the written statement which itself is sufficient to show that he was not occupying and using the premises, but it was sublet to defendant No. 2. Learned counsel Mr. Learned counsel Mr. Dave has submitted that in fact defendant No. 1 has not even filed the written statement which itself is sufficient to show that he was not occupying and using the premises, but it was sublet to defendant No. 2. Learned counsel Mr. Dave submitted that it is well settled that unless the findings are perverse, it may not be disturbed merely because the other view is possible. He therefore submitted that the present revision application may not be entertained. 6. In view of the rival submissions, it is required to be considered whether the present revision application can be entertained or not. 7. It is well accepted that the scope of exercise of revisional jurisdiction is limited and even though the revision is under Section 29(2) of the Rent Act which empowers the High Court to satisfy itself whether the judgment of the lower appellate Court is according to law or not, however, at the same time, it has also been made clear that the revisional jurisdiction cannot be equated with the appellate jurisdiction. Though the submissions have been made by learned counsel Mr. Gandhi that if the Court below has failed to appreciate material and evidence which goes to the root of the matter, then it would be permissible for the High Court to examine. 8. In fact, Section 29(2) of the Rent is an enabling provision for the High Court to satisfy that the decision was arrived at construing and interpreting the provision of law properly and applying the principle of law, the facts and evidence correctly. In other words, it refers to the application of proper law and interpreting the provision of law and/or document and evidence on record. Therefore, re-appreciation of evidence will not be within the scope and ambit of exercise of revisional jurisdiction. 9. A useful reference can be made to the judgment of the Hon’ble Apex Court in the case of Patel Vanik Himatlal and ors. vs. Patel Mohanlal Muljibhai, reported in AIR 1989 SC 3325, which has referred to the scope and ambit of Section 29(2) of the Bombay Rent Act. It has also considered the earlier judgment of the Hon’ble apex Court reported in (1987) 3 SCC 538 = AIR 1987 SC 1782 . Para 5 of the said judgment reads as under: “5. vs. Patel Mohanlal Muljibhai, reported in AIR 1989 SC 3325, which has referred to the scope and ambit of Section 29(2) of the Bombay Rent Act. It has also considered the earlier judgment of the Hon’ble apex Court reported in (1987) 3 SCC 538 = AIR 1987 SC 1782 . Para 5 of the said judgment reads as under: “5. The ambit and scope of the said section came up for consideration before this Court in Helper Girdharbhai vs. 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 Section 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 reappraisal of evidence. Did the High Court exceed its jurisdiction ?” This clearly suggests about the scope and ambit and it is further clearly laid down that unless the Courts below have misdirected in applying the proper law or in construing the provision of law which goes to the root of the matter, the exercise of revisional jurisdiction would not be justified. 10. In the facts of the present case, a close scrutiny of the evidence as well as the discussion made in the judgment of both the Courts below clearly suggests that they have considered the evidence for the purpose of appreciating the issue regarding subletting or non-use by petitioner No. 1, original defendant No. 1. Admittedly, no written statement has been filed by defendant No. 1. Admittedly, no written statement has been filed by defendant No. 1. As admitted by defendant No. 1 himself in his evidence, he had gone to the native place after closure of the mill. Though it has been contended that he has been doing the business of cooking, the report of the Court commissioner clearly suggests that there are no such vessels. On the other hand, it has also been stated by defendant No. 1 in his evidence that he was working in a factory of which he cannot give the name of the owner and there is no other evidence with him. Admittedly, the wife and the son reside at the native place and have agricultural operations there. The report of the Court commissioner also refers to repair work of the radio, TV sets which is done by defendant No. 2 who has been admittedly using and occupying the premises. 11. Therefore, considering the provisions of Section 13(i)(k) of the Rent Act which has also been discussed referring to the judgments of the High Court by the lower appellate Court, it clearly establishes that the premises were not used by defendant No.1, the tenant himself, and the criteria for Section 13(i)(k) was fulfilled. There is a specific observation that defendant No. 1 has admitted that he has handed over the key of the said premises to defendant No. s in the year 1991 and from 1995 to 1999 he has not been using the said premises. It also therefore suggests that physical possession and control of the premises has been handed over by defendant No. 1-tenant to defendant No. 2. This aspect is further discussed with reference that defendant No. 2 has been doing the work of repairing TV sets in his house. Thus, as required under law, it is necessary that there should be divesting of exclusive possession by the tenant in favour of sub-tenant. 12. It is well-accepted that in order to prove tenancy or sub-tenancy two ingredients are required to be established : (i)exclusive right of possession or interest in the premises, (ii) right must be in lieu of payment of some compensation or rent. When the exclusive possession has been handed over for long period as discussed, it would amount to subletting and therefore the conclusion arrived at by both the Courts below cannot be said to be erroneous. 13. When the exclusive possession has been handed over for long period as discussed, it would amount to subletting and therefore the conclusion arrived at by both the Courts below cannot be said to be erroneous. 13. Therefore, the findings arrived at by both the Courts below as discussed in the judgments cannot be said to be erroneous which would call for any interference in exercise of revisional jurisdiction. Therefore, the present revision application deserves to be rejected and accordingly stand rejected. Notice is discharged. No order as to costs. FURTHER ORDER After the judgment was pronounced, Learned Counsel Mr. Gandhi submitted that some time may be granted to hand over vacant and peaceful possession of the suit premises in question till December, 2011. The learned advocate appearing on behalf of learned counsel Mr. Dave has no objection provided an undertaking to that effect is filed. Therefore, time is granted, by consent, to hand over vacant and peaceful possession of the suit premises in question till 31.12.2011. However, the petitioner shall file an undertaking to the effect that he will hand over vacant and peaceful possession of the suit premises without fail to the respondent landlord on or before 31.12.2011 and the time is therefore granted for vacating the premises on such undertaking which shall be filed within a week in this Court in these proceedings.