Hiren Manharlal Dhruv v. Manishbhai Bipinchandra Shah
2024-07-31
J.C.DOSHI
body2024
DigiLaw.ai
JUDGMENT : 1. With the consent of learned advocates appearing for both parties, the revision is taken up for final hearing at admission stage. 2. The present revision has been filed under Section 29(2) of the Gujarat Rents, Hotel and Lodging House Rates Control Act, 1947 (for short ‘the Rent Act’) challenging the impugned judgment and decree passed by learned Appellate Bench dated 21.03.2024 passed in Regular Civil Appeal No.4 of 2022 confirming the judgment and decree dated 27.07.2021 passed by the learned Trial Court in H.R.P. Suit No.767 of 2013. The revisionist is the tenant and the opponents are the landlords. For the sake of convenience, the parties are referred to as they are stated before learned Trial Court. 3. The brief facts leading to filing of the present revision application are as under. 3.1 It is the case of the petitioner that respondents vide registered sale deed dated 11.12.2000 purchased the suit premises from its original owner namely Chandrakant Shah with sitting tenant i.e. Manharlal Dhruv. Said Manharlal Dhruv filed H.R.P. Suit No.334 of 2001 before Small Causes court seeking injunction. Pending the said suit, said Manharlal Dhruv expired on 13.05.2001 and his heirs were brought on record. Learned Trial Court vide judgment and decree dated 25.07.2008 allowed the suit by permanently restraining the respondents from taking forcible possession of the suit premises. Thereafter, respondents instituted H.R.P. Suit No.767 of 2013 against the respondents. The learned Trial Court vide order dated 30.10.2013 directed the defendants to maintain status-quo. Thereafter, learned Trial Court allowed the suit of the plaintiffs-landlord in part on the ground that defendants have acquired alternative suitable accommodation. Against the said order, the petitioner has filed Regular Civil Appeal No.4 of 2022 before learned Appellate Court who dismissed the said appeal vide order dated 21.03.2024. Hence, the present civil revision application. 4. Heard learned advocate Mr.N.V.Gandhi appearing for the petitioner – tenant and learned advocate Mr.Kunjal Pandya appearing for the respondents – landlords. 5. Learned advocate Mr.N.V.Gandhi for the tenant has raised various contentions to assail the concurrent findings arrived at by the learned Courts below. Firstly amongst them is that the suit of the plaintiff for seeking peaceful and vacant possession filed under the provisions of the Rent Act is obviously barred by law of limitation.
5. Learned advocate Mr.N.V.Gandhi for the tenant has raised various contentions to assail the concurrent findings arrived at by the learned Courts below. Firstly amongst them is that the suit of the plaintiff for seeking peaceful and vacant possession filed under the provisions of the Rent Act is obviously barred by law of limitation. Extending this contention, learned advocate Mr.Gandhi submits that landlord has purchased the demise premises in the year 2000 with the sitting tenant. He would submit that the tenant was occupying rented premises since 1990. He would further submit that prior to purchase of the demise premises by landlord, the tenant has purchased immovable property at J-12, New Nikita Park Society, Nr. Sun and Step Club, Nr.Nirantpark Society, Thaltej, Ahmedabad. He would submit that landlords were knowing purchase of this property since they have purchased the demise premises but suit for seeking eviction of the tenant was filed in the year 2013. He submits that the landlords had knowledge that the tenant has acquired alternative accommodation much prior to filing of the suit, precisely the landlords had knowledge for more than 12 years that the tenant has purchased another property, yet the landlords have not filed the suit for recovery of the possession within 12 years from the date of the knowledge and which indicates that suit is obviously barred by law of limitation. He would further submit that Article 67 of the Limitation Act applies in the present case and it defines limitation to recover the possession of the rented premises as 12 years. He would submit that learned Trial Court failed to address this legal issue as the learned Trial Court has not framed the issue of law of limitation. The first Appellate Court though has framed point of determination in regard to law of limitation, learned Appellate Court failed to address this issue on the touchstone of the pleadings and evidence. Learned advocate Mr.Gandhi taking this Court through the cross-examination of the plaintiffs i.e. landlords, would submit that as per landlords’ say they have told the tenant to evict the demise premises in the year 2001. Therefore, knowledge of having alternative accommodation can be attributed to the landlords since 2001.
Learned advocate Mr.Gandhi taking this Court through the cross-examination of the plaintiffs i.e. landlords, would submit that as per landlords’ say they have told the tenant to evict the demise premises in the year 2001. Therefore, knowledge of having alternative accommodation can be attributed to the landlords since 2001. Filing of suit in the year 2013 is clearly beyond limitation and thus, it is submitted that the Courts below have committed serious error of understanding the law as well as interpreting the evidence to understand that the suit is obviously barred by law of limitation. 6. The second contention raised by learned advocate Mr.Gandhi that originally Mr.Manharlal Dhruv was the tenant. He expired long back. The landlords filed suit against the widow and sons of late Mr.Manharlal Dhruv without joining the divorcee daughter as tenant though he was knowing that the divorcee daughter of late Mr.Manharlal Dhruv is living in the rented premises. He would further submit that this aspect of non-joinder of necessary party in view of Section 5(11)(c) of the Rent Act has been totally ignored by learned Trial Court as well as learned Appellate Court and as such, they have committed serious error of understanding the provisions of law. 7. Thirdly learned advocate Mr.Gandhi would take this Court through the application dated 24.02.2023 (at page-95) filed in the appeal proceedings to submit that the tenant has filed the application to frame the issues/points of determination. This application has been totally misconstrued by the learned Appellate Court when learned Appellate Court has not framed the issues which are at contest but only added the issue of law of limitation. Reading of the learned Appellate Court’s judgment, he submits that the learned Appellate Court has not addressed all these issues which are in contest and not framed the proper point of determination which makes the impugned judgment renders to re-examination at Appellate Court. He would further submit that in view of the judgment of Hon’ble Supreme Court in case of United Engineers and Contractors vs. Secretary to Government, Andhra Pradesh - 2013 (0) AIJEL-SC 54111, as well as in case of Nemai Chandra Dey (Dead) Through Lrs. vs. Prasanta Chandra (Dead) Through Lrs.
He would further submit that in view of the judgment of Hon’ble Supreme Court in case of United Engineers and Contractors vs. Secretary to Government, Andhra Pradesh - 2013 (0) AIJEL-SC 54111, as well as in case of Nemai Chandra Dey (Dead) Through Lrs. vs. Prasanta Chandra (Dead) Through Lrs. And another – 2022 Scale (6) 623, it is mandatory for the learned Appellate Court to frame point of determination as per the contest between the parties and to give reasoning and findings to all the contentions raised by the parties in the first appeal. In the present case, learned Appellate Court has committed serious error. 8. Lastly, it is submitted by learned advocate Mr.Gandhi that the learned Trial Court has believed that the tenant has acquired the alternative accommodation but the Courts below are silent on the subject of whether it is suitable accommodation or not. He would further submit that the judgment and decree impugned and delivered by the Courts below have not examined and discussed this issue that whether the accommodation which is acquired by the tenant is suitable or not. He would further submit that on going through the evidence, rather it comes that tenant has never shifted to the alternative accommodation as the wife of the tenant was suffering from knee problem and she could not travel upto third floor of the accommodation slated to be acquired as alternative accommodation by the tenant. 9. Upon above submissions as well as referring to judgment of this Court in case of Karim Mohammed Fakir Mohammed vs. Late Abdulmajid Fatehmohammed Thru Legal heirs – 2013 (4) GLR 3099, he would submit that since the divorce daughter of the tenant was living in the rented premises, she should be treated as tenant in view of Section 5(11)(c) of the Rent Act. 10. Mainly on the above contentions, learned advocate Mr.Gandhi submits to admit and allow this revision and to quash and set aside the impugned judgment and decrees. 11. Strongly objecting to the argument of learned advocate Mr.Gandhi, learned advocate Mr.Kunjal Pandya appearing for the respondents – landlords supports impugned judgment and decrees and submits that no error much less error of law has been committed by the Courts below in arriving at their decision.
11. Strongly objecting to the argument of learned advocate Mr.Gandhi, learned advocate Mr.Kunjal Pandya appearing for the respondents – landlords supports impugned judgment and decrees and submits that no error much less error of law has been committed by the Courts below in arriving at their decision. He would submit that the learned Appellate Court’s judgment is mainly assailed on the aspect that learned Appellate Court has not framed issues as prayed by the tenant. Again taking this Court through the application which was tendered by the tenant, learned advocate Mr.Pandya submits that in fact the prayer was made by the tenant to add the issue of law of limitation and to be agitated during the hearing of the appeal, to which the issue of limitation has been framed by learned Appellate Court as point of determination amongst other as well as it was also discussed. He would further submit that all other issues were not pressed by the tenant which is recorded by the learned Appellate Court in para 16 of the impugned judgment. He would submit that if according to tenant this recording is wrong then the tenant was required to move the learned Appellate Court immediately but same cannot be alleged before the higher Court. For this proposition learned advocate Mr.Pandya relied upon the judgment of Hon’ble Apex Court in the case of Shankar K. Mandal and others vs. State of Bihar and others – (2003) 9 SCC 519 , more particularly para 10, 11 and 12 thereof. He would submit that even otherwise if we go through the issues framed by the learned Trial Court in the rent suit, except the issue of acquiring alternative accommodation by the tenant, all other issues are answered in favour of the tenant and therefore, there is no question of challenging the finding of other issues in the appeal at the behest of the tenant. He would submit that it is the only issue that whether the plaintiff has filed the suit within limitation was to be framed and decided by the learned Appellate Court which the learned Appellate Court has rightly examined and appreciated. 12. Learned advocate Mr.Pandya would further submit that in cross-examination of the plaintiff i.e. landlord the tenant has put suggestion that when landlord has acquired the knowledge that the tenant has acquired alternative accommodation.
12. Learned advocate Mr.Pandya would further submit that in cross-examination of the plaintiff i.e. landlord the tenant has put suggestion that when landlord has acquired the knowledge that the tenant has acquired alternative accommodation. The answer was given that since past one and half years the landlord knows about acquiring of alternative accommodation. He would further submit that thereafter no further cross-examination has been made on this issue. Thus, it is clear that the suit is not barred by law of limitation. The suit was filed within the provisions of law of limitation. He would further submit that even otherwise the tenant has failed to display that how the landlord would come to know about alternative accommodation acquired by the tenant. He would further submit that in the registered sale deed through which the landlord has purchased the rented premises, it is not indicated that the sitting tenant has alternative accommodation. He would further submit that rented premises is in Girdharnagar area of Ahmedabad whereas the alternative accommodation is in Thaltej area. Both the areas have distance of nearly 12 to 15 kilometers. In that circumstance, how the landlord would come to know that the tenant has acquired the alternative accommodation. He would further submit that learned Trial Court as well as First Appellate Court has addressed both the issues thoroughly and elaborately. There is no reason to interfere with the impugned concurrent findings in limited revisional jurisdiction. 13. Learned advocate Mr.Pandya would further submit that as far as acquisition of the accommodation at the Thaltej area is concerned, it is not denied but rather accepted by the tenant in the written statement and therefore, the landlord was not required to prove acquisition of the alternative accommodation by the tenant. He would further submit that in view of the above, since the Courts below have not committed any error much less error of law, the revision may be dismissed. 14. He has also raised contention that at no point of time the divorcee daughter of late Mr.Manharlal Dhruv came to the Court to join herself as party defendant claiming that she has also acquired tenancy rights in the rented premises. In view of that, at the revisional stage, raising of the contention is afterthought, designed to save from operation of the eviction decree. 15.
In view of that, at the revisional stage, raising of the contention is afterthought, designed to save from operation of the eviction decree. 15. Regard being had to the rival submissions made by learned advocates for both the parties, at the outset what appears that plaintiff being landlord has filed the suit for eviction of the tenant and sought peaceful possession from him on various grounds available under the Rent Act which is discernible from the issue framed by the learned Trial Court. Vide Exhibit 38 as many as 11 issues were framed by the learned Trial Court. They read as under : “1. Whether the plaintiffs prove that the defendants are tenant in arrears of rent for more than six months? 2. Whether the plaintiffs prove that the defendants have acquired suitable accommodation as alleged? 3. Whether the plaintiffs prove that the defendants have been guilty of conduct which is a nuisance and annoyance as alleged? 4. Whether the plaintiffs prove that the suit premises is required for reasonable and bona fide requirements of the plaintiffs themselves? 5. Whether the defendants prove that the suit is bad for non joinder and mis joinder of necessary parties? 6. Whether the defendants prove that they had sent amount of rent by money order and the plaintiffs accept the amount? 7. Who will have to suffer greater hardship, if eviction decree pass or refused? 8. Whether the plaintiffs are entitled to permanent injunction as prayed for? 9. Whether the plaintiffs are entitled to get vacant and actual possession of the suit premises? 10. Whether the plaintiffs are entitled to get mesne profits? 11. What order and decree?” 16. The suit was decreed on finding of issue No.2 and having discussion in issue No.7. Eventually the eviction decree was passed by the learned Trial Court. The tenant therefore approached the learned Appellate Court principally challenging the finding qua issue No.2. No cross-objection was filed by the landlord. 17. In background of above, let first of all see that whether the issue of tenant having acquired suitable accommodation exists in the case. It is admitted position that the landlord has purchased the suit property with the pre-sitting tenant. The rented portion of the disputed property was three rooms, kitchen, privy and washroom on the ground floor of the disputed property on monthly rent of Rs.80/-.
It is admitted position that the landlord has purchased the suit property with the pre-sitting tenant. The rented portion of the disputed property was three rooms, kitchen, privy and washroom on the ground floor of the disputed property on monthly rent of Rs.80/-. It is also admitted position that tenant - late Mr.Manharlal Dhruv was holding the tenancy right qua rented premises prior to 1990 whereas the landlord has purchased the property in 2000. While pleading various grounds seeking eviction of the tenant, the landlord pleaded in para 3 of the plaint that the tenant has suitable alternative accommodation in city of Ahmedabad having address as J-12, New Nikita Park Society, Nr.Sun and Step Club, Nr.Nirantpark Society, Thaltej, Ahmedabad. The written statement to plaint is filed at Exhibit-25 while denying the facts of the plaint as well as setting up various defense, the tenant-defendant in internal page 9 of the written statement categorically admitted that the tenant has purchased the immovable property in the year 1992, the particulars of which are stated in para 3 of the plaint. Therefore, the question of accommodation available to the tenant is not at variance and is not at dispute. It appears that to come out from this aspect the tenant pleaded and also argued that the plaintiff’s suit is barred by law of limitation as he has not asked for relief of vacant possession within 12 years from the knowledge. Learned advocate Mr.N.V.Gandhi referred to para 20 of the Exhibit-44 (from the evidence of the landlord) to submit that it is admitted by the landlord that he has told the tenant in the year 2001 to vacate the premises and therefore, limitation to bring suit for relief of eviction and peaceful possession of the rented premises began from 2001. A perusal of para 20 indicates that the reading of it from the view point of learned advocate Mr.N.V.Gandhi is incorrect. In para 20 nowhere the landlord has accepted that he was knowing or he had knowledge that the tenant has acquired the suitable accommodation in the year 2001 and therefore, the suit filed in the year 2013 is time barred. 18. Per contra, reading of para 15 of the said oral evidence indicates that suggestion was put to the landlord that when he came to know about the acquisition of alternative accommodation by the tenant.
18. Per contra, reading of para 15 of the said oral evidence indicates that suggestion was put to the landlord that when he came to know about the acquisition of alternative accommodation by the tenant. The answer which the landlord had given was since last one and a half years. 19. It was argued that Article 67 of the Limitation Act provides for 12 years as a limitation to recover the possession from the tenant. Article 67 reads as under : Description of suit Period of limitation Time from which period begins to run 67. By a landlord to recover possession from a tenant. Twelve years When the tenancy is determined. 20. True reading of Section 67 indicates that the time to recover the possession commences from the date when the tenancy is determined. Twelve years is the time commencing from the date of tenancy is determined. In the present case, the landlord alleges that after coming into force of the Rent Act, the tenant has acquired suitable accommodation. If it is proved it is continuous wrong and it gives the cause of action until wrong is discontinued. So Article 67 of the Limitation Act, 1963 would not apply in the present case. 21. As concurrent judgment and decrees discussed issue of acquisition of alternative accommodation, let refer Section 13(1)(l) of the Rent Act as under : “13. (1) Notwithstanding anything contained in this Act 77[but subject to the provisions of section 15], a landlord shall be entitled to recover possession of any premises if the Court is satisfied- *** *** *** (l) that the tenant after the coming into operation of this Act has built, acquired vacant possession of or been allotted a suitable residence.” 22. The landlord in order to get possession of the rented premises from tenant under Section 13(1)(l) has to prove firstly after coming into force of the Rent Act; the tenant has either built, acquired, taken possession of or been allotted a suitable residence. Thus, clause (l) of Section 13(1) would apply if the tenant has acquired suitable residence after coming into force of the Rent Act. The Act applied on 13.02.1948. Therefore, if any acquisition is made subsequent to 13.02.1948, it can be said that tenant has acquired suitable residence.
Thus, clause (l) of Section 13(1) would apply if the tenant has acquired suitable residence after coming into force of the Rent Act. The Act applied on 13.02.1948. Therefore, if any acquisition is made subsequent to 13.02.1948, it can be said that tenant has acquired suitable residence. The word ‘acquisition’ employed in Section 13(1)(l) is not to be read restrictively to the case of title but it must be interpreted in wider sense that the tenant has roof over his head may the acquisition in law is done in favour of the member of the family living and messing together as one unit together. Reference can be made to the judgment of this Court in case of Hasmukhlal Raichand Shah vs. Arvind Mohanlal Kapadia - 1988 (1) GLH 122 , wherein it is observed as under : “6. Further, Section 13(1)(g) of the Bombay Rent Act provides the grounds for recovering the tenanted premises if the premises are reasonably bona fide required by the landlord for occupation by himself or by any person for whose benefit the premises are held or where the landlord is a trustee of a Public Charitable Trust, the premises are required for occupation for the purposes of the trust. It has been held that the requirement of the "landlord" himself would include the requirement of himself as well as his family members. In the case of Mohanlal Narottamdas v. Bechardas [1967] 8 GLR 620, this High Court interpreted the aforesaid clause and held that the word "for occupation by himself occurring in Section 13(1)(g) of the Bombay Rent Control Act cannot be construed as having a narrow meaning as being limited to the use of only the landlord himself. It may be that the family may not, in law, be joint and still the members of the family may be living together, messing together and looking upon themselves as a unit. In such a case, the Court will be entitled to consider the requirement of the members as the requirement of the landlord who is seeking to eject the tenant. While dealing with such questions, one cannot miss sight of the normal conditions obtaining in a Hindu Society. The family is the unit of our civilization.
In such a case, the Court will be entitled to consider the requirement of the members as the requirement of the landlord who is seeking to eject the tenant. While dealing with such questions, one cannot miss sight of the normal conditions obtaining in a Hindu Society. The family is the unit of our civilization. When father and sons live in the same houses and mess together, irrespective of the fact that they constitute members of the Joint Hindu Family or hold the property jointly as such, ordinarily, they would be deemed to be members of one unit and the requirement of one would be the requirement of the other. In the said decision the Court has taken into consideration the decision of the Division Bench of the Bombay High Court in the case of Institute of Radio Technology v. Pandurang Baburao 47 Bom. LR 825, and the unreported decision of Bombay High Court by Chagla, C.J., as he then was, in the case of Jayantilal Muljibhai Parikh v. Ochhavlal Vithaldas Parikh Civil Revision Application No. 751 of 1950 decided on November 23, 1950. The Court further relied upon the observations of the learned Chief Justice in Jayantilal's case and held as under: The learned Chief Justice has then observed as under: I do not think it is the intention of the Rent Restriction Act, however drastic its provisions are, to disrupt a family and to drive members of the family out because they start earning and are not dependent upon a member who pays the rent and in whose name the premises stand. There is evidence here that the plaintiff and his brothers, his father, his grandfather, were all living together. It is immaterial whether they were members of a joint family or not. But if mem bers of a family live together, mess together and look upon themselves as a unit, the Court is entitled to consider their requirements as requirements of the landlord who is seeking to eject the tenant. The learned Chief Justice has further observed that: The position might have been different if a member of family who is not a dependent wanted for the first time to come and stay with the plaintiff and if the plaintiff wanted additional accommodation for the benefit of that member of the family.
The learned Chief Justice has further observed that: The position might have been different if a member of family who is not a dependent wanted for the first time to come and stay with the plaintiff and if the plaintiff wanted additional accommodation for the benefit of that member of the family. But when we have a case as we have here of all the members staying together, than the members of the family are in the same position as the dependents or the landlord. The learned Chief Justice has further observed that: I do not see why, if it is permissible to consider the claims of a man's wife and children, it is not permissible to consider the claims of his father or grandfather or brothers, if they all stay together and constitute, if not in law, in fact a joint family, a family which is looked upon as a unit. I respectful agreement with the aforesaid observations of the learned Chief Justice. In my view, the words 'for occupation by himself, occurring in Section 13(1)(g) of the Act cannot be construed as having a narrow meaning as being limited to the use of only the landlord himself as was contended by the learned Advocate General. It may be that the family may not, in law, be joint and still the members of the family may be living together and looking upon themselves as a unit. In such a case, the Court will be entitled to consider the requirement of the members as the requirement of the landlord who is seeking to eject the tenant. While dealing with such questions, one cannot miss sight of the normal conditions obtaining in a Hindu Society. The family is the unit of our civilization. When father and sons, live in the same house and mess together, irrespective of the fact that they constitute members of the Joint Hindu Family or hold the property jointly as such, ordinarily, they would be deemed to be members of one unit and the requirement of one would be the requirement of the other. In my view, with regard to the interpretation of Section 13(1)(1) also, the same would be the position.
In my view, with regard to the interpretation of Section 13(1)(1) also, the same would be the position. If there is evidence on record that tenant and his family members are living together, one of them has acquired suitable residential accommodation and if there is no evidence to the effect that they had not been looking upon themselves as one unit or when the members of the family live together, mess together then, acquisition of suitable residential accommodation by one of them would be considered to be the acquisition of suitable residential accommodation by the tenant. The position might be different in some cases. In the cases where the husband and wife are staying separately because of the dispute or for some other reason or where the son is staying in other premises because of the dispute or because after marriage he might consider that he should reside separately and acquires other suitable residential accommodation, then in those cases it can be said that the tenant has not acquired suitable residential accommodation. But while considering this question one cannot miss sight of the normal conditions obtaining in the Indian Society where husband and wife with their children reside together as one unit and mess together. In my view, if Section 13(1)(1) is interpreted only to mean that the tenant himself must have acquired suitable residential accommodation, then the said provision can be defected by the tenant easily. This should not be permitted because that is not the intention of the Legislature. The object underlying this clause clearly appears that if the tenant acquire some premises, then he should be directed to vacate the tenanted premises. Even though the Rent Act is for the protection of the tenant, at the same time under the protection of the said provision the tenant cannot be permitted to do business out of the said protection.” 23. In the present case it is undeniable aspect that the tenant has acquired a complete residential premises at Thaltej area even prior to the suit is filed. No deliberation is required on this aspect. There is nothing on record to display that tenant has not acquired any residential premises. It was argued by learned advocate Mr.Gandhi that Courts below have not discussed on the suitability of the residential accommodation. The contention has no legs to stand.
No deliberation is required on this aspect. There is nothing on record to display that tenant has not acquired any residential premises. It was argued by learned advocate Mr.Gandhi that Courts below have not discussed on the suitability of the residential accommodation. The contention has no legs to stand. Once the tenant has acquired the accommodation, its non-suitability has to be proved by the tenant himself. What further appears that the tenant has acquired permanent residence and he is residing there since prior to the landlord purchased the suit property. Once it is established on record that tenant has acquired vacant possession of the suitable residence, he is bound to vacate the possession. On considering the test of the suitability, the primary object is that the Court is required to consider the status of the tenant, his economic and otherwise position, his habit, tradition etc. In the present case the tenanted premises is in the old area in Girdharnagar but tenant has acquired the accommodation in the posh area of Thaltej having more rooms and personal living and therefore, in my view it does not lie in the month of the tenant that learned Trial Court has not discussed the issue of suitability. 24. Useful reference can be made to judgment of this Court in the case of Srinivas Vaman Karve and another vs. Chandanben Jayantilal Dalal – 1973 (14) GLR 257, in para 6 held as under : “The opening portion of sub-section (1) of section 13 of the Bombay Rent Control Act shows that once the Court is satisfied that any of the events mentioned in clauses (a) to (1) had happened, the embargo imposed by Section 12 is lifted and the landlord becomes entitled to recover possession of the rented premises. Therefore it is the decision of the Court as regards the happening of one of the events contemplated in clause (l) which is deterinative of the matter and not the intention of the tenant in bringing about the happening of that event. If the Court is satisfied that the tenant has acquired vacant possession of a suitable residence, the question of intention of the tenant in acquiring such vacant possession is not relevant.
If the Court is satisfied that the tenant has acquired vacant possession of a suitable residence, the question of intention of the tenant in acquiring such vacant possession is not relevant. To import intention of the tenant as a necessary ingredient in clause (1) would virtually leave the landlord and as a necessary consequence others who need rented premises to the vagaries of a tenant, who having acquired vacant possession of a suitable residence, would say that the he had no intention to go to reside there, nor did he entertain that intention at the date of institution of the suit. The tenant who acquires such vacant to possession of a suitable residence, has to hand over possession of the rented premises to the landlord so that others who need the rented premises from which he is sought to be evicted may get them. Therefore, it is the act of acquiring vacant possession of a suitable residence which inter alia is determinative of the operation of clause (1) of Section 13 of the Bombay Rent Control Act. The other acts, which are determinative of this question are the act of building a suitable residence or the act of a third party or agency of allotting suitable residence to the tenant. Such a person would be better placed financially as compared to other in need of rented residential accommodation. There is no reason why such a person should not vacant the rented premises and shift to the residential premises which he has built or which has been allotted to him or of which he has acquired vacant possession. (para 6)” 25. Another contention raised by learned advocate Mr.Gandhi was that in view of Section 5(11)(c)(1) of the Rent Act, the divorcee daughter of the tenant living in the rented premises also acquires the status of tenant and as such she was required to be joined as party in the suit. Though this contention was raised by the tenant, apt to note that at no point of time he has preferred any application to join her as party as she acquired the status of tenant. This is one aspect. The second aspect is that no proceeding has ever been moved before any competent Court to get declared that on demise of the tenant Late Shri Manharlal Dhruv who obtained the tenancy right. In view of that the contention cannot stand. 26.
This is one aspect. The second aspect is that no proceeding has ever been moved before any competent Court to get declared that on demise of the tenant Late Shri Manharlal Dhruv who obtained the tenancy right. In view of that the contention cannot stand. 26. Lastly, it is submitted that the Appellate Court has not framed proper points for determination because of which first appeal is required to be remanded. This submission is an afterthought and raised after losing first appeal. On perusing the judgment of the first Appellate Court, it appears that he has framed as many as four points for determination after referring to all the issues framed by the learned Trial Court in body of the judgment and then discussed the relevant in context to the issue appealed thereof. Clear finding has been recorded in para 33, 34, 36, 37, 38 and 40 by the learned Appellate Court as under : “33. Looking to the para 12 of the written statement, the defendant has denied the contention of the suitable accommodation and thenafter stated tht the property which mentioned in pra no.3 has acquired in the year 1992 by defendant nos.1 and 2 but at present defendant no.3 who are divorcee daughter has no legal right, thenafter defendant has stated that they had not used the said property which situated at New Nikitapark Society, for residential purpose. The defendant further stated that in written statement defendant no.2 had acquired the said property situated at New Nikitaprark Society No.12, in the year 1992 and present plaintiff reside inside the said house and hence landlord know the said fact very well. On that circumstances upto 12 years the previous landlord has not made any procedure against the tenant and hence after completion of 12 years, the said suit is time barred. 34. As per contention of the para 12 of the written statement it is found that issue of limitation is required to be decided by the learned trial court but learned trial court has not decided the said issue and hence it is required to decide such issue to determine the dispute between the plaintiff and defendant. 35. *** *** *** 36.
35. *** *** *** 36. As per Exh.44 plaintiff Manish Bipinbhai Shah has stated that he has required the said property and hence as per necessity he has demanded the possession of the suit premises but defendant has stated that due to long year possession we do not give the possession except payment of 50 of the property. On cross-examination plaintiff has stated that after purchasing the suit premises I had not given attornment notice. Inside the suit premises there was open place alongwith passage for egress and ingress. It is not true that the said open space use by the defendant from the date of purchasing the said property by him. In para no.15 plaintiff has stated that defendant has acquired J/12, New Nikitapark Society, Near Sonset Club, Near Nishantpark Soiciety, Thaltej was under my knowledge since one and half year. I have not inquired when defendant has acquired said property. The said property is in the name late wife of Manrabhai named Bhanumatiben and her son Hirenbhai. I had seen papers of the said document before one and half year. I have got knowledge regarding the said property after verifying tax bill of AMC. If I verify the municipal tax of the property through online then will get all details of due tax bill. As per Exh.48 I have not inquired from society. I had not visited inside the said property. I had not inquired who is in possession of the said house. Thenafter in crossexamination also found that distance between said house and suit premises is 12 to 14 kms. I do not know what is accommodation available in the house of Nikitpark Society. There is no event occurred for visiting the Nikitapark Society. As per said contention, it is found that present plaintiff who had purchased the suit premises from old landlord had got knowledge regarding alternative accommodation of the defendant before one and half year from the date of filing of the suit and hence limitation for filing of the suit starts from the date of knowledge. 37. As per deposition of defendant vide Exh.61 defendant has stated that he has acquired the said property situated at Nikitapark, J/12, in the year 1992 is under the knowledge of previous landlord. In spite of that fact, previous landlord had not filed suit on the ground of Section 13(1)(L).
37. As per deposition of defendant vide Exh.61 defendant has stated that he has acquired the said property situated at Nikitapark, J/12, in the year 1992 is under the knowledge of previous landlord. In spite of that fact, previous landlord had not filed suit on the ground of Section 13(1)(L). On cross-examination, it is found that the defendant had filed one suit in the year 2001 as H.R.P.Suit No.334 of 2001. On referring Exh.87 defendant has stated that it is attornment letter. The said attornment letter given on 20-07-1994. On cross-examination defendant has stated that the house of Nikitaprak Society is three rooms and kitchen alongwith one drawing room. I had got possession on dated 20-07-1994. 38. As per deposition of the defendant, it is also found that the defendant had got residential accommodation in the 1994 but defendant has not declared the said fact to the previous owner. As per contention of written statement and chief-examination of the defendant vide Exh.61 previous owner reside inside the house of J/12, Nikitaprak and hence said fact is under the knowledge of previious owner who as per cross-examination of the plaintiff it was found that the said property situated at Nikitapark is far away from the suit premises approximately 12 to 14 kms. and hence it will not presume that previous owner has knowledge regarding property of New Nikitapark Society. 39. *** *** *** 40. As per evidence, it is also found that present defendant had filed one suit against the Chandravadan Kantilal Shah (previous owner) in the year 2001 as H.R.P.Suit No.334 of 2001. The defendant has prodcued copy of the said judgment vide Exh.136. As per the said judgment it is found that defendant has not disclosed that he had got another residential accommodation i.e. New Nikitaprak Society, J/12, even as per judgment and its findings, it is found that neither previous owner nor present plaintiff had got knowledge regarding property of New Nikitapark Society, J/12 and, hence there is no knowledge regarding property acquired by defendant and a per deposition of the plaintiff it is found that before one and half year from the filing of the suit, plaintiff had got knowledge regarding property of New Nikitapark Society and hence plaintiffs suit is not barred u/s.66 or 67 of the Limitation Act and hence we conclude Issue no 1 as Negative.” 27.
The Hon’ble Apex Court in case of Mrugendra Indravadan Mehta and others vs. Ahmedabad Municipal Corporation – 2024 SCC Online 846, has addressed this issue as under : “30. Thus, even if the first appellate Court does not separately frame the points for determination arising in the first appeal, it would not prove fatal as long as that Court deals with all the issues that actually arise for deliberation in the said appeal. Substantial compliance with the mandate of Order 41 Rule 31 CPC in that regard is sufficient. In this regard, useful reference may be made to G. Amalorpavam and others vs. R.C. Diocese of Madurai and others, (2006) 3 SCC 224 wherein this Court held as under: - 9. The question whether in a particular case there has been substantial compliance with the provisions of Order 41 Rule 31 CPC has to be determined on the nature of the judgment delivered in each case. Noncompliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate court is in a position to ascertain the findings of the lower appellate court. It is no doubt desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate court there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate court, it would be a valid judgment even though it does not contain the points for determination.
The object of the rule in making it incumbent upon the appellate court to frame points for determination and to cite reasons for the decision is to focus attention of the court on the rival contentions which arise for Licenced to : Adv.Urvashi Purohit . Page 13 of 16 determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of second appeal conferred by Section 100 CPC. 31. As already noted hereinabove, the High Court did set out all the issues framed by the Trial Court in the body of the judgment and was, therefore, fully conscious of all the points that it had to consider in the appeal. Further, we do not find that any particular issue that was considered by the Trial Court was left out by the High Court while adjudicating the appeal. In effect, we do not find merit in the contention that the impugned judgment is liable to be set aside on this preliminary ground, warranting reconsideration of the first appeal by the High Court afresh.” 28. In nutshell, the tenant has failed to point out a single reason to entertain this revision. Even otherwise the scope of revision under Section 29 (2) of the Rent Act is limited. Under 29(2) of the Rent Act, the High Court cannot substitute its own finding on the question of fact for the finding recorded by the learned Court below on reappraisal of the evidence. 29. In Patel Valmik Himatlal vs. Patel Mohanlal Muljibhai (Dead) Through Lrs. - 1998 (7) SCC 383 , while examining the ambit and scope of Section 29, Hon’ble Supreme Court has observed as under : “5. The ambit and scope of the said section came up for consideration before this Court in Helper Girdharbhai V/ s. Saiyed Mohamad Mirasaheb Kadri and Ors. (JT 1987 (2) SC 599) 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.
(JT 1987 (2) SC 599) 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 reappraisal of evidence. Did the High Court exceed its jurisdiction. 6. The powers under Sec. 29(2) are revisional powers with which the High Court is clothed. It empowers the- High Court to correct errors which may make the decision contrary to law and which errors go to the root of the decision hut it does not vest the High Court with the power to rehear the matter and reappreciate the evidence. The mere fact that a different view is possible on reappreciation of evidence cannot be a ground for exercise of the revisional jurisdiction.” 30. For the foregoing reasons, the revision stands dismissed at the admission stage.