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Gujarat High Court · body

2019 DIGILAW 591 (GUJ)

Vijay Swaroop Devatval v. Lavji Megji Mesurani

2019-06-12

A.J.SHASTRI

body2019
ORDER : A.J. Shastri, J. 1. The present civil revision applications filed under Section 29 of the Bombay Rent, Hotel and Lodging Houses Rates Control Act, 1947 (the "Act" for short) are directed against the judgments and orders passed by the courts below dated 13.08.2015 as well as 28.02.2018 in respective proceedings. Since both the revision applications are arising out of common questions of law and fact, between the same parties, as per the request of the learned advocates for the parties, the same are disposed of by the present judgment and order, treating Civil Revision Application No. 323 of 2018 as a lead matter. Hence, the facts are taken from the lead matter. 2. The applicant of Civil Revision Application No. 323 of 2018 who is the original defendant in Regular Civil Suit No. 424 of 2004 claiming to be a tenant of Shop No. 8 situated at Plot No. 59, Sector 9, Gandhidham. The opponent herein is the owner and landlord of Shop No. 8 which is rented out to the applicant on or about 01.07.1998 on monthly rent of Rs.250/-. The shop was let out to defendant i.e. the present applicant for office purpose, but the opponent - plaintiff was required to file the rent suit being Regular Civil Suit No. 424 of 2004 for the purpose of eviction. Pursuant to the summons having been issued, the applicant-defendant appeared before the court below, submitted the written statement, issues have been framed and the parties to the proceedings have led their respective evidence. After appreciating the evidence, the decree came to be passed in favour of the plaintiff on 13.08.2015 which has resulted into filing of the Regular Civil Appeal No. 29 of 2015 before the learned Additional District Judge, at Gandhidham. The plaintiff - opponent landlord has also filed cross objections against the original judgment and order before the appellate Bench and the appeal as well as cross objections have been heard whereby the learned appellate Bench was pleased to reject the appeal preferred by the present applicant and allowed the cross objections preferred by the original plaintiff i.e. the opponent herein by judgment and order 28.02.2012 and it is this judgment and decree which has been passed by the courts below which is made the subject matter of the present civil revision application. 3. 3. Similarly, so far as Civil Revision Application No. 324 of 2018 is concerned, the same is with respect to Shop No. 9 situated at very Plot No. 59, Sector 9, Gandhidham belonging to the opponent. So two separate suits have been filed with respect to Shop No. 8 and another with respect to Shop No. 9. Hence, on identical situation of facts and law, present revision applications have come up for consideration before this Court. Originally on 23.10.2018, notice was issued and thereafter the matter was dragged on for a considerable time and later on has come up for consideration before this Court in which learned advocate Ms. P.J. Joshi, has represented the applicant whereas learned advocate Mr. Savan Pandya has represented the opponent. With this background, the present revision applications is being dealt with by the Court. 4. It appears from the record that the main base of the suit is that Shop No. 8 as well as Shop No. 9 have been given on rent for the purpose of office use and not for the purpose of workshop. It was alleged by the original plaintiff that the defendant was using the shops for different purpose than what has been determined while giving the same on rent and, therefore, there was a clear change of use which entitles the plaintiff to seek eviction. Additionally, it has also been alleged that the defendant has put door in the wall between shop Nos. 8 and 9 has made alteration without permission of the landlord. Hence, the permanent alteration is made which is the one ground which has been set up by the original plaintiff. The nuisance as well as annoyance is also one of the other ground for seeking the decree of eviction. Additionally, the permanent construction has been put up by placing RCC slab over Shop No. 9. Resultantly, notices have been given one for the purpose of evicting premises and another for the purpose of acceptance of rent. Be that as it may, the said Civil Suits have been processed further, in which the written statement has also been submitted denying in general the ground for which the decree of eviction was sought. Resultantly, notices have been given one for the purpose of evicting premises and another for the purpose of acceptance of rent. Be that as it may, the said Civil Suits have been processed further, in which the written statement has also been submitted denying in general the ground for which the decree of eviction was sought. It appears from the record that the parties have been allowed to produce the documentary as well as oral evidence and after framing of the issues, the suit came to be adjudicated upon in which, the court below has specifically found that the grounds which have been set up for decree of eviction under Sections 13(1)(a) and 13(1)(b) as well as Section 13(1)(c) have been established. Resultantly, the order is passed on 13.08.2015. The said order is reproduced herein after: "1. The suit of the plaintiff is hereby Allowed. 2. The defendant is hereby ordered to hand over the peaceful and vacant possession of the suit premises to the plaintiff within one (1) month from this order. 3. The defendant is further directed to pay the amount of mesne profits at Rs.250/- p.m., to the plaintiff from the date of filing of the suit till the date of actual and peaceful possession of the suit premises handed over to the plaintiff. 4. No order as to costs. 5. Decree to be drawn accordingly." 5. Ms. Joshi learned advocate for the applicant has contended vehemently that there is a gross material irregularity in exercising the jurisdiction and, therefore, also the orders under challenge are required to be quashed and set aside. It has further been contended that as can be seen from the judgment, more particularly Para. 17 that findings which have been arrived at are not just and proper and the same suffer from the material irregularity. It has been submitted that the evidence as a whole has not been appreciated in its true perspective and the conclusion which has been arrived at is also completely laconic. Since the exercise of jurisdiction is not supported by the cogent reasons, the said material irregularity deserves to be corrected. Learned advocate Ms. It has been submitted that the evidence as a whole has not been appreciated in its true perspective and the conclusion which has been arrived at is also completely laconic. Since the exercise of jurisdiction is not supported by the cogent reasons, the said material irregularity deserves to be corrected. Learned advocate Ms. Joshi has submitted that so far as substantial ground with regard to change of purpose is concerned, ultimately, either it is used for office or for the workshop it does not make any difference as the premises were let out for utilizing as commercial purpose. Furthermore, there was no permanent alteration made by placing the door as well as placing the RCC roof/wall does not come within the purview of permanent alteration. As a result of this, the decree of eviction is not required to be passed. It has been further submitted that this door as well as RCC structure is in existence since number of years and the very use was over a period of 20 years by now. This may not be a germane ground for passing the decree of eviction. Learned advocate Ms. Joshi has vehemently submitted that the conclusion which has been arrived at is not at all in consonance with the material on record and on the basis of the correct appreciation of evidence. This being the position, no decree of eviction be allowed to be operated. Hence, the orders passed by the court below require to be quashed and set aside. 5.1. Learned advocate Ms. Joshi has further submitted that the scope of Section 29 of the Act is not that much restricted as compared to section 115 of the Code of Civil Procedure. In case of section 115 of the Code of Civil Procedure, no re-appreciation is permissible whereas here under Section 29 of the Act, the scope is larger than under section 115 of the Code of Civil Procedure. Hence, a close scrutiny of evidence if to be undertaken, the same would clearly indicate that there is hardly any case made out for seeking decree of eviction. Hence, the orders passed by the courts below are required to be corrected. No other submissions have been made. 5.2. Alternatively, learned advocate Ms. Hence, a close scrutiny of evidence if to be undertaken, the same would clearly indicate that there is hardly any case made out for seeking decree of eviction. Hence, the orders passed by the courts below are required to be corrected. No other submissions have been made. 5.2. Alternatively, learned advocate Ms. Joshi has submitted that in case the court is not inclined to accept the stand of the applicant then some reasonable time be given to vacate the premises and has then submitted to pass the suitable orders in the interest of justice. It has further been submitted that the material irregularity is to the effect that cross objections which have been filed are decided as if the same are cross appeal and that being the jurisdictional error, the Court may kindly set aside the said exercise. No further submissions have been made. 6. To meet with the stand taken by learned advocate for the applicant, learned advocate Mr. Pandya for the opponent has vehemently contended that both the courts below have categorically found that the case is made out for seeking the decree of eviction. On the contrary, during appreciation of evidence on record, a specific conclusion is arrived at which clearly indicates that there is a application of mind as well as there is a clear analysis of evidence on record. Learned advocate Mr. Pandya has further submitted that to ascertain these grounds which have been submitted, even the Court Commissioner report at Exhibit 31 has also been appreciated and considered and in addition thereto, the evidence which has been led by both the sides has been properly dealt with. While appreciating the evidence as a whole, the court below has also considered the dictionary meaning of word 'annoyance' and after due application of mind, the courts below have exercised discretion and specifically found that the case is made out for seeking decree of eviction. Hence, in absence of any perversity or material irregularity, no interference be made in revisional jurisdiction which is invoked by the applicant. Learned advocate Mr. Hence, in absence of any perversity or material irregularity, no interference be made in revisional jurisdiction which is invoked by the applicant. Learned advocate Mr. Pandya has further submitted that the law on the issue of exercising revisional jurisdiction particularly, against the concurrent finding of fact is well established by catena of decisions and one of such decision in the case of Rukmini Amma Saradamma v. Kallyani Sulochana & Ors., reported in 1993 (1) R.C.R. (Rent) 346 : AIR 1993 SC 1616 and by referring to para 21, a contention is raised not to interfere with the impugned orders. Learned advocate Mr. Pandya has further vehemently opposed the stand of the applicant and has invited attention to the reasoning part of the order passed by the appellate court in which the cases which have been cited have been dealt with, so much so, that the chief-examination has also been analyzed while arriving at a conclusion and on the basis of the deemed facts to a certain extent, the court below has exercised the due discretion. Hence, against this concurrent decisions of both the courts below, no interference be made, particularly, when there is no material irregularity or any perversity which is essence of exercising revisional jurisdiction. Hence, no case is made out and both the applications are requested to be disposed of by confirming the orders passed by the courts below. 7. Having heard the learned advocates for the respective parties and having gone through the material on record, and the conclusion arrived at by the courts below, first of all it appears that there is a strong application of mind given by both the courts below while appreciating the evidence of both the sides. While analyzing the evidence, the Court has also examined the other documentary evidence and keeping in view the provisions contained under the Contract Act and keeping in view the proposition of law laid down by series of decisions, which has been pressed into service, the courts below have exercised the discretion. So in any case, a bare reading of the order is clearly suggesting that there is no perversity or material irregularity or non application of mind is reflecting from the orders. 8. So in any case, a bare reading of the order is clearly suggesting that there is no perversity or material irregularity or non application of mind is reflecting from the orders. 8. Further while coming to the conclusion, the courts below have come to the conclusion that the grounds for eviction contained under Section 13(1)(a) as well as 13(1)(k) of the Act have been established and for arriving at this conclusion, examination-in-chief of defence which is recorded at Exhibit 92 has also been analyzed. On the basis of such evidence, it was specifically found that the defendant was using shop for the purpose of repairing work in this garage whereas shop was let out for the purpose of office use only. Hence, since both the courts below have categorically found on the basis of the analysis of evidence, that the change of use which has been agitated by the plaintiff is established and when that be so, this Court is not inclined to substitute the evidence on the basis of such material on record, since there is no perversity being reflecting. 8.1. Yet another circumstance which is not possible to be unnoticed by the court is that while coming to the conclusion, it has been categorically found on the basis of the pleadings of the defendant only that the suit shops were specifically given and let out for office use only whereas, the suit shops are utilized for garage purpose and for the purpose of office and, therefore, the decree of eviction on the basis of the proposition of law laid down by the series of decisions, this conclusion is not found to be perverse in any form. Furthermore, the issue relating to causing nuisance and annoyance is also well supported by independent evidence, Considering the evidence, even the conduct which is causing nuisance is also found to be well supported from the evidence and, therefore, also by arriving at a specific conclusion, decree came to be passed. For coming to this conclusion, the court below has interpreted the word 'annoyance' from the dictionary meaning as well as the observations made by several decisions which have been cited which are reflecting in the order itself. Hence, this conclusion is also clearly lending support from the material record as well as from the decisions which have been cited. For coming to this conclusion, the court below has interpreted the word 'annoyance' from the dictionary meaning as well as the observations made by several decisions which have been cited which are reflecting in the order itself. Hence, this conclusion is also clearly lending support from the material record as well as from the decisions which have been cited. The overall material on record is indicating that both the courts below have properly construed the evidence, have properly examined the oral as well as documentary evidence and the plaintiff has been able to establish the case for seeking decree of eviction. So these conclusions which have been arrived at by the courts below are just, proper and clearly in consonance with the material on record. Hence, the overall appreciation of material indicate that the conclusion arrived at appears to be in consonance with the material and based upon the clear analysis of evidence as a whole. 8.2. When this kind of exercise is undertaken by the courts below, whether concurrent conclusions can be disturbed or substituted is a question of consideration before this Court and for that purpose, the Court has assistance of few of the observations made by the Apex Court in the case of Rukmini Amma Saradamma (supra) which since considered, the courts deems it proper to reproduce the same hereinafter. "21. We are afraid this approach of the High Court is wrong. Even the wider language of Section 20 of the Act cannot enable the High Court to act as a first or a second court of appeal. Otherwise the distinction between appellate and revisional jurisdiction will get obliterated. Hence, the High Court was not right in re-appreciating the entire evidence both oral or documentary in the light of the Commissioner's report (Ext. C1 and C2 Mahazar). In our considered view, the High Court had travelled far beyond the revisional jurisdiction. Even by the presence of the word "propriety" it cannot mean that there could be a reappreciation of evidence, of course, the revisional court can come to a different conclusion but not on a reappreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. Therefore, we are unable to agree with the reasoning of the High Court with reference to the exercise of revisional jurisdiction. 8.3. Therefore, we are unable to agree with the reasoning of the High Court with reference to the exercise of revisional jurisdiction. 8.3. Yet another decision which has been delivered by the Apex Court in the case Nandkishor Savalaram Malu (Dead) Through Legal Representatives v. Hanumanmal G. Biyani (Dead) Through Legal Representatives and Ors., reported in 2017 (1) R.C.R. (Rent) 3 : (2017) 2 SCC 622 , in which also it has been clearly propounded the settled legal position about the exercise of revisional jurisdiction. The relevant observations contained in para 20 are reproduced hereinafter: 20. Indeed, we are constrained to observe that there was absolutely no legal basis of the High Court to have reversed the well reasoned order of the first appellate court which had rightly reversed the order of the trial court by passing decree of arrears of rent, eviction and mesne profits against all the defendants jointly and severally. The High Court, unfortunately, failed to apply the settled legal principles applicable to the case at hand as are enumerated here-in-below in the light of the following factual findings of fact recorded by the two courts below." 9. In view of the aforesaid proposition of law laid down by the Apex Court as well as in view of the clear finding of fact arrived at by both the courts below which are passed upon analysis of evidence on record, this Court is of the considered opinion that the case is made out by the original plaintiff to seek decree of eviction and the courts below have rightly undertaken such exercise and passed the orders which are not possible to be interfered with. Hence, the present revision applications being devoid of merits stand dismissed. 10. However, while parting with the present order, considering the alternative submission and the request made by the learned advocate for the applicant to extend and grant some reasonable time to evict the premises, the Court deems it proper to consider the request. Hence, some reasonable time which is suggested by the opponent deserves to be granted. Accordingly, six months time is granted to applicant to evict the premises and for handing over the peaceful possession to the opponent plaintiff. However, it is clarified that the applicant original defendant shall file an undertaking on usual terms within a period often days from today. Hence, some reasonable time which is suggested by the opponent deserves to be granted. Accordingly, six months time is granted to applicant to evict the premises and for handing over the peaceful possession to the opponent plaintiff. However, it is clarified that the applicant original defendant shall file an undertaking on usual terms within a period often days from today. Upon such undertaking, the aforesaid time of six months is granted by the court. It is also made clear that if the applicant fails to submit an undertaking, this granting of time will not be operative. An undertaking to the effect must be filed as well that the applicant shall not create any encumbrance, shall not part with the possession to any other party and shall not create any encumbrance and shall not take any financial assistance over the premises in question. 11. With the aforesaid observations, the civil revision applications stand disposed of by confirming the order passed by the courts below.