Gujarat High Court
Subhashchandra Mulchand Jain vs Heirs And Legal Representatives Of ... on 22 April, 2019
Author: A.J. Shastri
Bench: A.J. Shastri
C/CRA/295/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 295 of 2017
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SUBHASHCHANDRA MULCHAND JAIN
Versus
HEIRS AND LEGAL REPRESENTATIVES OF DECEASED
BHUPENDRABHAI UMEDBHAI AMIN
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Appearance:
MR NK MAJMUDAR(430) for the Applicant(s) No. 1
DECEASED LITIGANT(100) for the Opponent(s) No. 1
DS AFF.NOT FILED (N)(11) for the Opponent(s) No. 1.1
RAVINDRA V HOTA(8592) for the Opponent(s) No. 1.2,1.3,1.4
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 22/04/2019
ORAL ORDER
1. The present revision application under section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 is filed for the purpose of seeking following reliefs:
"i) admit this petition;
ii) pass appropriate order under Sec.29(2) of the Bombay Rents, Hotel & Lodging House Rates (Control) Act, 1947 and be pleased to call for the record and proceedings of Appeal being Regular Civil Appeal No.41/2013 from the Court of Hon'ble Principle Dist. Judge, Vadodara;
iii) pass appropriate order under Sec.29(2) of the Bombay Rents, Hotel & Lodging House Rates (Control) Act, 1947 and be pleased to call for the record and proceedings of Rent Suit No.253 of 1986 from the Court of Hon'ble Addl. Judge, Small Causes Court, Vadodara;
iv) pass appropriate order under Sec.29(2) of the Page 1 of 12 C/CRA/295/2017 ORDER Bombay Rents, Hotel & Lodging House Rates (Control) Act, 1947 and be pleased to quash and set aside the judgment and order dated 14/2/2017 passed by the Hon'ble Principle Dist. Judge, Vadodara in Regular Civil Appeal No.41/2013 below exhibit 24;
v) grant stay of operation, implementation and execution of judgment, order and decree passed by dated 14/2/2017 passed by Hon'ble Principle Dist. Judge, Vadodara in Regular Civil Appeal No.41/2013 below exhibit 24 pending admission and final hearing;
vi) pass such other and further orders as may be deemed fit in the interest of justice."
2. The case of the petitioner is that the petitioner is a tenant of the suit property being Plot No.22, Municipal Census No.F-1-122 being constructed premises/chawl having construction of ground floor and first floor and the petitioner is a tenant in two rooms of ground-floor area i.e. one big room on northern side and one small room on southern side of the premises at a monthly rent of Rs.56/- and one iron structure was also constructed by the petitioner. The original landlord Jotsnaben Amin filed Rent Suit No.441 of 1978 seeking eviction of the petitioner from the suit premises on the ground of arrears of rent as well as on the ground of construction of iron structure carried out in the said premises. In the said suit, a compromise took place and in view of the compromise, the petitioner tenant agreed to pay a monthly rent of Rs.70/- from 24.6.1982 and the said Page 2 of 12 C/CRA/295/2017 ORDER enhancement, according to the petitioner, was done as the facility of additional room in the nature of construction of iron sheet was created and in view of settlement, since the rent was fixed at Rs.70/- per month, the parties agreed to dispose of the suit on the basis of settlement and the same was disposed of on 25.6.1982. The original plaintiff then preferred an Execution Application No.119 of 1985 and the landlord plaintiff had also filed a Rent Suit No.253 of 1986 seeking decree of eviction on the ground of arrears of rent inter alia contending that despite three notices having been served, the defendant failed to pay the entire arrears, resultantly, the suit came to be filed for eviction and additionally on the ground of putting up permanent construction without permission of landlord.
3. The said suit was resisted by the petitioner and even in the written statement, the petitioner tenant had prayed for fixation of standard rent at Rs.70/- which was on the basis of judicial order passed in earlier Suit No.441 of 1978 and, therefore, the same could not be treated as standard rent, ultimately, by judgment and order dated 11.2.2013, Rent Suit No.253 of 1986 filed by the plaintiff came to be dismissed.
4. Feeling aggrieved and dissatisfied with the said Page 3 of 12 C/CRA/295/2017 ORDER judgment and order passed by the learned Small Causes Judge, Vadodara, the original plaintiff landlord had filed an appeal under section 29(2) of the Bombay Rent Act and after considering written arguments placed on record by both the sides, learned Principal District Judge, Vadodara, was pleased to allow Regular Appeal No.41 of 2013 by judgment and order dated 14.2.2017 and it is this order which is made the subject matter of present revision application.
5. Learned advocate, Mr. N.K.Majmudar appearing on behalf of the plaintiff has vehemently contended that a serious error is committed by the court below in allowing appeal on the basis of some material and dislodging the finding of the learned trial Judge. Learned advocate has further submitted that there was a dispute pertaining to standard rent already submitted and unless and until the possession is taken, no decree of eviction could have been passed. Apart from that, learned advocate has further submitted that it is a settled position of law that while exercising discretion in appeal, the learned Judge has erroneously come to the conclusion that section 12(3)(a) is applicable. The learned Judge on the basis of material on record has categorically found that the case is falling within Page 4 of 12 C/CRA/295/2017 ORDER the purview of section 12(3)(b) and as such, no decree could have been passed. Mr. Majmudar, learned advocate has further submitted that there was a serious dispute raised by the petitioner tenant about the standard rent by way of giving an application and before the same could be decided, the rent has already been deposited and as such, having not considered this contention, order in question is not sustainable in the eye of law. The learned appellate Judge has also not discussed at length about how the provisions contained under section 12(3)(a) are applicable and discussion or conclusion is not visible from any corner of the order. In fact, the tax was paid by the tenant and even standard rent application is also to be decided. The case squarely falls within the purview of section 12(3)(b) and as such, a serious error which has been committed deserves to be corrected. Learned advocate has further submitted that the reasons which are assigned by the learned appellate Judge while reversing the decree are also not sufficient enough to sustain the conclusion, as a result of this, learned advocate has submitted that such error of jurisdiction requires to be corrected.
6. To support the submission, learned advocate, Mr. Majmudar has relied upon the following decisions : Page 5 of 12 C/CRA/295/2017 ORDER
i) 1987(1) GLR 352
ii) 2001(1) GCD 797 and
(iii) 1979 AIJEL-HC 200107
7. Relying upon the aforesaid decisions, a contention is raised that the concept of provisions of sections 12(3)(a) and 12(3)(b) is misconstrued by the learned appellate Judge. On the contrary, law is aptly clear that consent decree would not operate as an estoppel and simply because in a consent decree, Rs.70/- rent was fixed, the same would not deprive the petitioner tenant from raising the dispute about the standard rent. So, over-all consideration reflecting on the record clearly suggests that finding arrived at by the appellate Court is perverse and suffers from material irregularity, hence, deserves to be corrected. No other submissions have been made.
8. To meet with the stand taken by the learned advocate for the petitioner, learned advocate, Mr. Ravindra Hota, appearing on behalf of the contesting respondent plaintiff has submitted that the learned appellate Judge in exercise of jurisdiction has scrutinized the evidence and after dealing with rival submissions has passed an order which in no case suffers from the vice of either non-application of mind or non- Page 6 of 12 C/CRA/295/2017 ORDER dealing of any of the contentions. It has further been submitted that after issuance of notice and after arriving at a consensus about the rent, the issue of standard rent is not amenable to challenge and cannot be raised by the petitioner. In any case, the said dispute has also not been raised in the written statement as well and as such simply because a stray submission is made, that would not permit the petitioner to agitate the issue regarding standard rent. It has further been contended that the learned trial Judge has committed an error in not examining the evidence in its proper perspective and as such, the appellate court having almost same powers as that of the trial court, has passed the order which is well within the scope of its authority and as such no error can be said to have been committed in passing the said order. It has further been contended that even the conclusion which has been arrived at is based upon proper evaluation of the rent note and the said rent note at Exh.188 as well as the receipts produced at Exhs.104 and 105 are rightly dealt with and further it has been rightly appreciated that when in an earlier suit of 1978, a clear compromise was arrived and the fact of standard rent was accepted, there was hardly any circumstance available to re-agitate the issue. Apart from that, it has further been contended that even as per the said Page 7 of 12 C/CRA/295/2017 ORDER agreed amount also, there was a default shown, as a result of this, the order in question is perfectly justified in the eye of law. The true construction of section 12(3)(b) vis-a-vis section 12(3)(a) has been analyzed by the court and has found clearly no case in favour of present petitioner and, therefore, the decree passed by the learned appellate Judge is perfectly justified.
9. In addition to it, the conclusion arrived at by the court below is thoroughly in consonance with the relevant record and on the documentary evidence, no perversity is reflecting at all. Hence, in that view of the matter, this being a revision application, looking to the scope contained under section 29 of the Rent Act, no case is made.
10. Having heard the learned advocates appearing for the parties and having gone through the material on record, it ex- facie appears from the record that the learned appellate Judge has properly construed the relevant provisions of the Act as mentioned above and has also found clearly that the fixation of interim standard rent which was fixed at Rs.70/- per month was not possible to be re-agitated. It further appears from the record that so far as suit notice is concerned, it has rightly been held to be valid and in Page 8 of 12 C/CRA/295/2017 ORDER consideration of the proposition of law laid down by several decisions referred to in the order, there appears to be no perversity. On the contrary, a categorical conclusion is arrived at on the basis of material on record that standard rent which has been fixed by the trial court on the basis of earlier suit was justified but it has been clearly observed that even that amount has also not been paid. Even during the appeal proceedings, it was justified by the appellate court that present suit stands on a different footing and as such, by considering the relevant provisions and the proposition, it was found that the tenant was found to be in default even on that count as well. Undisputedly the amount which was determined of Rs.70/- per month was liable to be paid from 25.6.1982 but the amount has been deposited at a much later stage, resultantly, the appellate Court found that the tenant in any case is in arrears who would visit the decree of eviction. It has further been found from the construction of the documents that fresh tenancy was created during the compromise of Rent Suit No.441 of 1978 and in the compromise of Rent Suit No.441 of 1978 there is no recital about the liability to pay taxes and the learned trial Judge has also examined Exh.55, the judgment of the said rent suit and on the basis of two receipts produced at Exhs.104 and 105, Page 9 of 12 C/CRA/295/2017 ORDER the landlord accepted the payment of tax on monthly basis apart from monthly rent. But only because of such situation, it cannot be construed that tenancy was governed by annual rate and it was not a monthly tenancy. Now this conclusion is arrived at on the basis of examination of rent suit as well as on the basis of two rent receipts which were produced and forming part of the record. As a result of this, it appears clearly that after due application of mind, learned appellate Judge has come to the said conclusion which cannot be found to be erroneous in any manner.
11. In view of the aforesaid situation, the true scope of section 29 of the Rent Act is to be examined. The scope no doubt is wide enough but the same is not that much wide which would permit the substitution of entire finding of the appellate Judge. The Hon'ble Supreme Court in a case reported in AIR 1981 SUPREME COURT 1690 in the case of Bhaichand Ratanshi Vs. Laxmishanker Tribhovan has held in para 6 as under:
"6. Under S. 29 (2) of the Act as substituted by Gujarat Act 18 of 1965, although the High Court has a wider jurisdiction than the one exercisable under S. 115 of the Code of Civil Procedure, 1908, its revisional jurisdiction could only be exercised for a limited purpose with a view to satisfying itself that the decision was according to law. It cannot be said that the courts below failed to apply their mind to the Page 10 of 12 C/CRA/295/2017 ORDER requirements of S. 13 (2) of the Act as to comparative hardship or their finding was manifestly perverse or erroneous. That being so the High Court could not substitute its own finding for the one reached by the courts below on a reappraisal of the evidence."
12. In another decision rendered by the Hon'ble Apex Court reported in AIR 1993 SC 1616 in the case of Rukmini Amma Saradamma Vs. Kallyani Sulochana and others, it has been clearly spelt out the scope of revision and relevant extract contained in para 21 is reproduced hereinafter:
"21. We are afraid this approach of the High Court is wrong. Even the wider language of S. 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 (Exts. 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 re- appreciation of evidence. Of course, the revisional court can come to a different conclusion but not on a re-appreciation 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."
13. In the aforesaid situation which is prevailing on record and in view of the scope which has been analyzed, this Court in the revisional jurisdiction should not substitute its own findings in place of the findings reached by the courts below Page 11 of 12 C/CRA/295/2017 ORDER after reappraisal of the evidence and hence, this Court is of the opinion that no case is made out which would call for any interference in this revision. The order passed by the appellate Judge reflects no perversity or any irregularity material in nature which would permit this Court to dislodge the finding. In that view of the matter, the order in question is not required to be interfered with.
14. However, while parting with, the time to hand over the premises which was granted of eight weeks is extended for a further period of eight weeks upon filing of a specific undertaking before this Court within ten days from today to vacate the premises and with other usual terms of undertaking. With this observation, the revision application is dismissed with no order as to costs. Notice is discharged.
(A.J. SHASTRI, J) RADHAKRISHNAN K.V. Page 12 of 12