Gujarat High Court
Parvez Faramroz Cooper vs Dolatbhai Erachsha Kalabhai on 11 December, 2020
Author: Ashutosh J. Shastri
Bench: Ashutosh J. Shastri
C/CRA/128/2020 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 128 of 2020
==========================================================
PARVEZ FARAMROZ COOPER & 1 other(s) Versus DOLATBHAI ERACHSHA KALABHAI & 4 other(s) ========================================================== Appearance:
MR ASPI KAPADIA for MR NV GANDHI(1693) for the Applicants for the Opponent(s) No. 1 MR ANSHIN DESAI, SENIOR ADVOCATE with MR ARPIT A KAPADIA( 3974) for the Opponent(s) No. 2,3,4,5 ========================================================== CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI Date : 11/12/2020 CAV ORDER
1. Present revision application under Section 29(2) of the Gujarat Rents, Hotel and Lodging House Rates Control Act, 1947 has been filed for claiming the following reliefs:-
(A) YOUR LORDSHIPS may be pleased to call the record and proceedings of, (a) Regular Civil Appeal No.17/2018 from the Court of Ld. 8th Addl. District Judge, Surat and (b) Small Civil Suit No.519/2003 from the Court of Ld. Judge, Small Cause Court, Surat and be pleased to admit and allow this revision application; AND (B) YOUR LORDSHIPS may be pleased to quash and set aside the impugned judgment and order dtd. 16.03.2020, passed by the Ld. 8th Addl. District Judge, Surat passed in Regular Civil Appeal No.17/2018, in part-qua rejecting the said appeal and decree of eviction dtd. 30.12.2017 passed by the Ld. Judge, Small Cause Court, Surat passed in Small Civil Suit No.519/2003; AND (C) Pending herein and final disposal of this petition, YOUR LORDSHIPS may be pleased to stay the implementation, effect, operation and execution of impugned judgment and order dtd. 16.03.2020, passed by the Ld. 8 th Addl. District Judge, Surat passed in Regular Civil Appeal No.17/2018, in part-qua rejecting the said appeal and decree of eviction dtd.
30.12.2017 passed by the Ld. Judge, Small Cause Court, Surat passed in Small Civil Suit No.519/2003; AND Page 1 of 14 Downloaded on : Wed Feb 24 20:36:11 IST 2021 C/CRA/128/2020 CAV ORDER (D) YOUR LORDSHIPS may be pleased to grant ad-interim relief in terms of Para (C); AND (E) YOUR LORDSHIPS may be pleased to grant any other and further relief(s) under the facts and circumstances of this case.
2. The petitioners are the original defendants-appellants and the tenants of the premise being Ward No.12 bearing Registration No.2628, Southern portion on the Ground Floor, Shahpor Agnovad, Surat, precisely to be referred as 'the suit premise'. On 20.6.2003, the respondents and deceased Dolatbai Erachsha, during her lifetime filed a Civil Suit, bearing No.519 of 2003, in the Court of learned Small Causes Court at Surat, against the present applicants in respect of suit premise, essentially claiming a decree of eviction, mesne profit, etc. on multiple grounds. The case of the original plaintiffs i.e. respondents therein, is that the property consisting ground + two floors being house No.2628 "Agnovad" No.12, was originally jointly owned by Dhanbai Erachsha, Jalbai Erachsha and Dolatbai Erachsha and out of the said joint owners, Dhanbai Erachsha died on 28.6.1997, whereas Jalbai died on 25.5.2002. It was contended that all the three co-owners were unmarried and said Jalbai Erachsha during her lifetime executed one registered WILL with testamentary document dated 13.9.1999, registered in the office of Joint Sub-Registrar, Surat at Serial No.23772 and on the same day, by bequeathing the said residential property in favour of original plaintiffs Nos.2 to 5 and on the basis of the registered Will, the names of the said beneficiaries i.e. original plaintiffs Nos.2 to 5 came to be mutated in the Government record with the consent of Dolatbai Erachsha who was the only surviving co-owner at the relevant point of time. It was further the case of the original plaintiffs that out of the same residential property, vide rent note dated 3.10.1992, the premise related to ground floor was led out in favour of Pervez Faramroz Copper- applicant No.1 herein Page 2 of 14 Downloaded on : Wed Feb 24 20:36:11 IST 2021 C/CRA/128/2020 CAV ORDER and one Firoz N. Irani by erstwhile co-owners, i.e. Jalbai, Dhanbai and Dolatbai, for a monthly rent of Rs.2400/- and it was agreed between the parties that applicant No.1 was required to pay an amount of Rs.1200/- in favour of the said Landlords. Moreover, out of the said joint tenants, on 2.10.1992, said Firoz N. Irani had vacated the premise and therefore, applicant No.1 remained in exclusive possession of the said tenanted premise. Thus, the rent amount was enhanced at the relevant point of time to Rs.1800/- per month.
2.1. It has further been asserted by the applicants that the plaintiffs in their suit have further narrated that applicant No.1- tenant is in arrears of rent, he sublet the premise in favour of applicant No.2 and is creating nuisance and further, the original plaintiffs are in bonafide requirement of the suit premise and further grounds for seeking decree of eviction are mentioned to the effect that applicant No.1-tenant has acquired an alternative suitable accommodation and in view of such breach of terms of the tenancy, the original plaintiffs are entitled to recover the possession of the suit premise, so the suit for eviction was filed by raising multiple grounds available under the provisions of the Rent Act.
2.2. It has further been submitted in the memo of revision that upon service of the said process of suit, they appeared through their learned advocates and filed the written statement at Exh.7, denying the contentions which have been raised. It was further clearly asserted that tenancy of applicant No.1 was never terminated and as such, the suit itself is premature. In addition to this basic contention, it has further been contended that in view of the fact that the original co-owners have expired, i.e. Dhanbai and Jalbai, the plaintiffs are required to prove the registered WILL dated 13.9.1999 and till the WILL is proved, the suit for the eviction is not Page 3 of 14 Downloaded on : Wed Feb 24 20:36:11 IST 2021 C/CRA/128/2020 CAV ORDER maintainable. Apart from that, all the co-owners have not instituted the suit and therefore, the suit is barred by non-joinder of necessary and proper parties. In addition to these several orders, the contentions have also been raised in the written statement denying the grounds which have been set up in the plaint. On the basis of such pleadings, learned Trial Court framed the Issues at Exh.70 on 19.9.1999 and pending the suit, the original plaintiff No.1 i.e. Dolatbai died on 31.3.2011 and as such, plaintiff Nos.2 to 5 moved an application at Exh.59, seeking amendment in the cause title of the suit by deleting her name. The plaintiffs Nos.2 to 5 produced the aforesaid WILL and thereby submitted that the property in question is bequeathed in their favour, but it is the submission of the applicants that without following the procedure set up under Order 20 Rule 3 of the Civil Procedure Code, the said application Exh.59 came to be allowed.
2.3. The original plaintiffs, according to the applicants, had examined plaintiff No.2 i.e. Nausir Erachsha Vadia, who stepped into the witness box, whose deposition was recorded at Exh.18 and the plaintiffs have also examined the other witnesses at Exhs.79, 84 and 121 respectively. The documents in addition to oral evidence came to be produced, and as against this, the present applicants have stepped into the witness box, whose deposition was recorded at Exh.110, whereas the applicant No.2's deposition was recorded at Exh.234 and after leading all these oral as well as the documentary evidence, the suit came to be adjudicated by learned Trial Judge, who, by the impugned order, according to the applicants without appreciating the oral as well as documentary evidence, has answered issue No.1-5 (5A) to (5J), in Affirmative, whereas Issue No.(5K) came to be partly answered in Affirmative and was pleased to allow the suit by judgment and order dated 30.12.2017.
Page 4 of 14 Downloaded on : Wed Feb 24 20:36:11 IST 2021C/CRA/128/2020 CAV ORDER 2.4. Feeling aggrieved and satisfied with the said judgment and decree, the present applicants preferred Regular Civil Appeal No.17 of 2018 before the learned Appellate Court and also prayed for stay of execution, operation and implementation of the impugned order and throughout the appeal, the applicant No.1 has been protected as per the say of the applicants. Ultimately, the said appeal came up for consideration before the learned 8 th Additional District Judge Surat, who by judgment and order dated 16.3.2020, was pleased to reject the appeal in part and it is against these impugned orders passed by the Courts below, the present Revision Application under Section 29(2) of the Rent Act came to be filed by the present applicants. It has been asserted that the applicant No.1 since throughout was protected during the pendency of appeal, so as to enable the applicants to approach this Court, the operation of the impugned order was kept in the abeyance for some time.
2.5. When the Civil Revision Application came up for initial hearing before this Court, the Court passed the following orders:-
"Heard the learned advocate for the petitioners.
He has made a statement at the bar that after passing of the impugned order the learned District Judge, Surat was pleased to stay the execution of the impugned order for a period of 30 days so as to enable the petitioners to file Civil Revision Application before this Hon'ble Court and thereafter, there was lock-down, which continue upto July 2020 and therefore, the stay granted by the District Court may be continued.
Notice returnable on 09.09.2020.
In the meantime, parties are directed to maintain status quo as on today with respect to the property in question.
Direct service is permitted, to be served through Email."
2.6. The aforesaid order of interim protection came to be Page 5 of 14 Downloaded on : Wed Feb 24 20:36:11 IST 2021 C/CRA/128/2020 CAV ORDER continued throughout present Civil Revision Application and later on, both learned advocates appearing for their respective sides have requested the Court to take up the Revision Application for admission hearing and with this background, the present Revision Application has been heard by the Court at the admission stage and interim relief.
3. Learned advocate Mr. Aspi Kapadia appearing with Mr. N.V. Gandhi for the applicants has vehemently contended that the impugned order passed by the Court below is not only unjust but not in consonance with the material on record and as such, the same being perverse in nature, deserves to be set aside. It has been submitted that the document in question on the basis of which the entire suit rests is under-stamped and ought to have been impounded and since the said document is not admissible as evidence, no relief could have been granted based upon it. Mr. Kapadia has further contended that the respondents herein are not the original landlord and looking to the material on record and the multiple grounds which have been based upon for seeking decree of eviction are not sufficient enough to establish the case, particularly when the grounds were not being well supported by evidence on record. It has been submitted that the suit itself has been filed frivolously and as such, a serious error is committed by the Courts below in exercise of the discretion. Learned Appellate Court has mainly believed the ground of use of the premise and thereby, breach of condition of the rent note and also believed the ground of creating annoyance and nuisance, hence, the impugned order is passed. But, in fact, in reality, all these grounds on which the decree is passed, are not sufficiently established by leading proper evidence and to establish the ground of change of user, except notice which has been granted for eviction, there is no other material to establish. On the contrary, there is no application filed Page 6 of 14 Downloaded on : Wed Feb 24 20:36:11 IST 2021 C/CRA/128/2020 CAV ORDER before any of the authorities for such purpose and therefore, this ground is nothing but a concoction in reality. On the contrary, the evidence is disclosing that a mere grocery and unutilized material was kept and the premise in question has not at all been utilized for any commercial purpose. The basic purpose of tenancy has never been changed or altered in any circumstance and therefore, this ground is not available to the respondents. Learned Appellate Judge has erroneously exercised the discretion, as a result of which, the decree which has been passed is not sustainable in the eye of law. In addition to this, Mr. Kapadia has further contended that about nuisance, there is no material to establish. In fact, if the ground of nuisance is to be projected, there must be cogent evidence on record to establish. In fact, to establish this ground, proper evidence has to be led, which is completely missing in the present case. Dolatbai is stated to have been residing in first floor and never objected against the applicants that they are creating nuisance. On the contrary, she had not stepped into the witness box to establish this ground of nuisance and further none of the neighbours has been examined to establish this ground of nuisance. Nausir Vadia is on the contrary staying away about 150 meters and not only residing in the nearby vicinity and therefore, there is no absolute material to indicate that the applicants have created any nuisance. In fact, none of the neighbours has filed any police complaint in this respect and hence, the findings arrived at by the Courts below is perverse. The only attempt appears to have been made is that some photographs have been placed in which boxes are lying, but placement of boxes can never be said to be a nuisance, particularly when nobody has objected or raised any grievance in past. According to Mr. Kapadia, there must be consistent conduct of the appellants to indicate that on account of them, any nuisance is occurring. This is in fact not available on record. On the contrary, Exh.18 evidence of Nausir has indicated in Page 7 of 14 Downloaded on : Wed Feb 24 20:36:11 IST 2021 C/CRA/128/2020 CAV ORDER cross-examination that Chok area was also given on rent to the appellants which aspect is completely overlooked by the Court below and therefore, this material piece of evidence in the form of admission has not been dealt with and this is nothing but a clear example of perversity while exercising the jurisdiction. Mr. Kapadia has further submitted that the rent note at Exh.50 dated 3.10.1992 is also not adequately stamped document merely on the basis of Rs.20/- and therefore, considering this document, which is not at all admissible in evidence, the Court ought not to have been given undue weightage to the same and this point about inadequate stamp on the document is specifically raised in the written statement which has not been even discussed in its proper prospective and for substantiating that, a reference is made to some part of the written statement at Exh.157. Hence, Mr. Kapadia has submitted that there is a clear error committed by the Court below in passing the decree of eviction.
4. Learned advocate Mr. Aspi Kapadia has further submitted that a close look at the evidence on record, indicates that the suit has been filed within a very short time after death of Jalbai, who happened to be the owner, who died on 25.5.2002. In fact, none of these grounds for which any agitation is made in past by the erstwhile owner i.e. landlord Jalbai, about any inconvenience or any nuisance or any grievance with regard to the conduct of the applicants and it is only after death of Jalbai, based upon the Will by creating the ground, an attempt is made to get the premise vacated. In fact, the sequence of events if to be looked into, from the record, which aspect ought not to have been unnoticed by learned Appellate Court. Mr. Kapadia has further submitted that in fact, the rent had been paid by the applicants upto 31.3.2003 and the suit has been brought within three months, i.e. on 20.6.2003, and therefore, the ground related to arrears of rent is also not Page 8 of 14 Downloaded on : Wed Feb 24 20:36:11 IST 2021 C/CRA/128/2020 CAV ORDER available to the original landlord. Detailed cross-examination and whatever evidence which has been led ought to have been scanned properly before passing the decree of eviction against the applicants. Mr. Kapadia has further submitted that on the basis of undisputed version came out from the deposition of the respondents themselves, these grounds of eviction are not available to the respondents. In fact, the witnesses have not been examined to establish the case. Mr. Kapadia has further submitted that by virtue of the provisions of the Stamp Act, precisely, Sections 33, 34 and 35, it was on the contrary the duty of the Court to impound the document. To substantiate all the aforesaid contentions, Mr. Aspi Kapadia has relied upon several decisions, which are as follows:-
(1) AIR 1971 SC 1070;
(2) AIR 2008 SC 166;
(3) 2011(7) SCALE 747;
(4) AIR 2019 SC 2053;
(5) AIR 1922 LAHOR 401;
(6) Decision dated 20.7.1967 (Gujarat High Court) in the
case of Mahmad Umar Abdul Rahim Narmavala and Ors. Vs. Shah Manilal Gokaldas and Ors.;
(7) Decision dated 22.9.1978 in the case of Sant Ram Vs. Rajinder Lal and Ors. passed in Civil Appeal No.1526 of 1978;
(8) Decision dated 24.4.1979 (Gujarat High Court) in the case of Bhabhutmal Rikhbaji Sharma and Ors. Vs. Manubhai Madhavji Patel and Ors.
After referring to certain portion of the evidence of cross- examination of the witnesses, a contention is raised that a case is made out by the applicants at least for proper adjudication at length after calling for the record and proceedings and as such, has requested the Court to admit the revision application by continuing interim relief.
Page 9 of 14 Downloaded on : Wed Feb 24 20:36:11 IST 2021C/CRA/128/2020 CAV ORDER
5. Additionally, it has been contended by learned advocate Mr. Aspi Kapadia that scope of Section 29(2) of the Rent Act is not that much circumscribed that even perversity cannot be even looked into by this Court and therefore, the evidence on record, according to Mr. Kapadia, is not sufficient enough to establish the grounds made out for eviction and therefore, the order in question requires interference of this Court and as such has requested that the revision application be admitted by confirming the interim relief granted earlier. Mr. Kapadia had submitted that there is no intention of any nature to delay the proceedings and as such, has shown inclination that even the revision application if is to be expedited, then also, there is no resistance on the part of the applicants and hence, requested to admit the revision application.
6. As against the aforesaid submissions, learned senior advocate Mr. Anshin Desai appearing with learned advocate Mr. Arpit Kapadia has vehemently contended that this revision application is filed practically against the concurrent decisions of the Courts below at least on three major grounds, based upon which the decree of eviction is passed. Further, it has been contended that suit can be filed on multiple grounds. But, out of those grounds, three major grounds about change of use of property, breach of conditions of the rent note and creating nuisance by the applicants, both the Courts have believed the case concurrently against the applicants and therefore, this being the revision application under Section 29(2) of the Rent Act, the scope is very much limited and as such, the revision application is ex-facie not entertainable. Apart from this, it has been contended that the title of the plaintiffs how they derived the property is not none of the concerned of the applicants, being tenant of the premise. Undisputedly, the property in question is bequeathed in favour of the plaintiffs and therefore, they have justifiably filed the suit. In fact, single ground is enough for passing Page 10 of 14 Downloaded on : Wed Feb 24 20:36:11 IST 2021 C/CRA/128/2020 CAV ORDER the decree of eviction. Even the other grounds may or may not be established. It has been further contended that there are specific findings with regard to all these three issues, based upon which, concurrently, the orders in question came to be passed. For substantiating this, a reference is made initially to the issues which have been framed by the Trial Court, precisely, issue Nos.5(C) as well as 5(F) and how the same has been dealt with and adjudicated by the Trial Court, for that purpose, the findings have been brought to the notice of the Court which are reflecting from page 96 onwards and has thereby contended that these issues have been dealt with by learned Appellate Court, precisely the issue Nos.3,5 and 6, on which also, there is a detailed discussion reflecting on page 62 to 65 and 68 to 78 and hence, submitted that since these issues have been specifically dealt with and adjudicated upon by both the Courts below and the findings are concurrent, there is hardly any reason for the applicants to agitate against the impugned orders. According to Mr. Desai, if the other witnesses are not examined, the same is insignificance in view of the fact that witnesses who have been examined have clearly deposed against the appellants and based upon their depositions, the conclusion is derived by the Courts below. To contend about the breach of the condition of the rent note, a reference has been made to page 155/ C, condition No.4 as well as page 155/F condition No.9 and has submitted that these conditions having been breached, the order is passed by the Court below. In fact, by referring to the deposition of the tenant, certain admissions are sufficient enough to indicate that the case is made out by the plaintiffs which is rightly believed by both the Courts below against the present applicants. Mr. Desai has then drawn the attention of the Court to several decisions to substantiate his submissions and thereby has reiterated that there is a clear case of nuisance being created, clear case of breach of the conditions of the rent note and the plaintiffs have clearly made out Page 11 of 14 Downloaded on : Wed Feb 24 20:36:11 IST 2021 C/CRA/128/2020 CAV ORDER a case and that being the position, a submission is made that after long drawn litigation, i.e. battle of 17 years, when decree of possession is passed in favour of the plaintiffs, same may not be disturbed looking to the scope of revisional jurisdiction of this Court. Following are the decisions which have been relied upon by learned senior advocate Mr. Desai:-
(1) 1976 GLR 210;
(2) AIR 1961 SC 1655;
(3) 1989(1) Bom.C.R. 122;
(4) CRA No.1850/2015 dated 23.08.2016 (Andhra High
Court);
(5) 2012(8) SCC 516;
(6) 2009(16) SCC 634;
(7) 2001(4) SCC 26;
(8) 1998(7) SCC 602;
(9) 2010(14) SCC 406;
(10) 2019(6) SCC 441;
(11) 2017(5) SCC 640;
(12) AIR 1963 SC 146;
(13) 2008(2) SCC 95;
(14) AIR 1993 SC 161;6
(15) 2017(2) SCC 622;
(16) Civil Revision Application No.108 of 2019 dated 06.05.2019;
(17) Civil Revision Application No.323 of 2018 dated 12.06.2019;
(18) 2019(3) GLH 507;
(19) Civil Revision Application No.119 of 2019 dated 24.06.2019;
(20) Civil Revision Application No.308 of 2013 dated 11.03.2014;
(21) 1998(7) SCC 383;
(22) 2016(9) SCC 268;
(23) 2010(1) SCC 277;
(24) 2017(2) SCC 274;
(25) AIR 1961 SC 1655 (26) 1976 GLR 210;
(27) 1973 GLR 227;
(28) 1971 GLR 551;
(29) 1995(2) GLR 1320;
(30) 2007(2) SCC 619;
(31) 2007(14) SCC 81.
Page 12 of 14 Downloaded on : Wed Feb 24 20:36:11 IST 2021C/CRA/128/2020 CAV ORDER
7. After referring to the aforesaid decisions, learned senior advocate Mr. Desai has submitted that since more than enough time is consumed in litigation, at least, this revision application, since against the concurrent decisions, must be dealt with and dismissed at the admission stage itself and has requested to dismiss the same by vacating the interim relief.
8. Having heard learned advocates appearing for the parties and having gone through the submissions in the context of the documents which are placed before the Court for consideration, it appears that present revision application is not such that it should be disposed of without detailed adjudication. Looking to the rival contentions which have been raised and large number of decisions which have been placed before the Court, it appears that the revision application deserves to be adjudicated at length and therefore, this appears to be not an 'open and shut' case which can be thrashed out at the admission stage. There are certain relevant circumstances on record which tilt the balance on either side and therefore, by a brief hearing at admission stage, the revision application is not possible to be disposed of finally. In fact, evidence of Nausir Vadia (Exh.18) as well as evidence of tenant will have to be gone into in detail and therefore, in the considered opinion of this Court, looking to the findings arrived at by the Courts below, a case is made out at least of admission and for detailed adjudication of the present revision application.
9. Since the Court is inclined to admit the revision application, is not expressing any opinion at this stage about the submissions which are made by learned advocates but having gone through thoroughly the material placed before the Court and few decisions which have been brought to the notice of the Court, specifically the findings arrived at by the Courts below are required to be Page 13 of 14 Downloaded on : Wed Feb 24 20:36:11 IST 2021 C/CRA/128/2020 CAV ORDER examined, of-course keeping in view the scope of revision application in the present proceedings. Hence, the matter requires consideration for detailed adjudication. However, it appears to the Court that this litigation has consumed several years and looking to the stiff contest between the parties, the submission and readiness of learned advocates to fix the matter at any time, request deserves consideration. Accordingly, while admitting the revision application, the Court is inclined to fix the revision application for its final disposal.
10. Hence, RULE returnable on 3rd February 2020. Learned advocate Mr. Arpit Kapadia waives service of Rule on behalf of respondent Nos.2,3,4 and 5.
11. In the meantime, interim relief granted earlier is ordered to be continued till the final disposal of the present revision application.
12. In the meantime, learned advocates are requested to prepare the paper-book to be placed on record of their respective sides, if so desire.
(ASHUTOSH J. SHASTRI, J) NAIR SMITA V/OMKAR.
Page 14 of 14 Downloaded on : Wed Feb 24 20:36:11 IST 2021