Gujarat High Court
Patel vs Dhirajlal on 28 March, 2011
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
Gujarat High Court Case Information System
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CRA/990/2000 9/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
REVISION APPLICATION No. 990 of 2000
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
PATEL
HARSHADKUMAR RASIKLAL & 2 - Applicant(s)
Versus
DHIRAJLAL
THAKORLAL GANDHI & 2 - Opponent(s)
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Appearance :
MR
ND GOHIL for Applicant(s) : 1 - 3.
MR KIRIT I PATEL for
Opponent(s) : 1,
RULE SERVED for Opponent(s) : 2,
MR MAYUR
RAJGURU for Opponent(s) :
3,
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CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 28/03/2011
ORAL
JUDGMENT
The present revision application has been filed by the petitioners-original defendants for the prayer that the decree passed in H.R.P. Suit No. 2396/83 by the Small Causes Court, Ahmedabad dated 30.6.94 and also the judgment and order passed by the Appellate Bench of the Small Causes, Ahmedabad, in Civil Appeal No. 83/94 dated 1.9.2000 confirming the said judgment and decree may be quashed and set aside on the grounds set out in the memo of this revision application, inter alia, that both the courts have committed an error in appreciating the evidence. It is also contended that both the courts have failed to consider the fact that both the defendants were residing along with the father as members of joint family in the suit premises. Therefore, a specific contention referring to sec. 5(11)(c)(i) that the tenancy right has been transmitted to the defendants has not been appreciated properly which has led to miscarriage of justice.
2. Learned advocate Mr. Gohil referred to both the judgments and also the grounds in the memo of this application, particularly ground (C) and submitted that a specific contention was raised that the applicants were residing in a joint family which has not been considered. Similarly he referred to ground (D) and submitted that the provisions of sec. 5(11)(c)(i) of the Bombay Rent Act providing for transmission of the tenancy of a member of the tenant's family residing with the tenant at the time of his death has not been appreciated. For that purpose learned advocate Mr. Gohil referred to exh. 73 which is an identity card which has been discussed in Para 13 of the judgment of the trial court.
3. Learned advocate Mr. Gohil referred to the judgment of the Hon'ble Apex Court in the case of Baldev Sahai Bangla v. R.C. Bhasin, reported in AIR 1982 SC 1091, and submitted that in this judgment, the Hon'ble Apex Court has considered the definition of "family" and he submitted that descendants from the common ancestors are included in the term family. He submitted referring to the observations in this judgment that it has to be interpreted beneficially and has to be liberally construed.
4. Learned advocate Mr. Gohil has also referred to and relied upon the judgment in the case of Jivram Ranchhoddas Thakkar and anr., reported in AIR 1977 SC 1357. He submitted that if the father has taken the premises on rent, after the death of the father other family members like the respondent original defendants who were residing in the premises as members of the joint family would be entitled to protection under sec. 5(11)(c)(i).
5. Learned advocate Mr. Gohil submitted that both the courts have failed to consider this aspect. He has also referred to the record and submitted that as both the courts have committed a grave error in appreciating this aspect and the provisions of sec. 5(11)(c) of the Rent Act, the present revision application may be allowed.
6. Learned advocate Mr. Rajguru referred to the judgment of the trial court (para 16) and submitted that defendant No. 2 only was residing after 1978 and there is no evidence regarding his residence before 1978. He pointedly referred to the observations made by the trial court in the judgment and submitted that the courts below have considered the aspect of sec. 5(11)(c) and on appreciation of facts the conclusion has been arrived at. He submitted referring to the evidence, the ration card at exh. 75, that it has been observed that family members are only 4 as stated in the old ration card at exh. 76. He strenuously submitted that on the basis of such evidence the observations have been made and conclusion has been arrived at that the family of defendants No. 1 and 2 were not residing in the joint family and therefore the submissions made based on sec. 5(11)(c) of the Rent Act are an after-thought which may not be accepted. He submitted that even the driving licence which is produced at exh. 74 refers to the other address which has been discussed in the judgment and therefore the findings arrived at by both the courts below may not be disturbed in exercise of revisional jurisdiction.
7. He has referred to and relied upon the judgment reported in AIR 1987 SC 1782 in the case of Helper Girdharbhai v. Saiyed Mohmad Mirasaheb Kadri and ors. Referring to the observations made in Head Note A, Para 5, he submitted that as observed, even if the tenant of the premises in which the business of the firm was carried on was a partner, it could not amount to subletting. He emphasised the observations, "It is well settled that if there was a partnership firm of which tenant of the premises in which the business of the firm was carried on was a partner, the fact of carrying on of business of the partnership in the premises would not amount to subletting lead to the forfeiture of the tenancy."
8. Learned advocate Mr. Rajguru has also referred to and relied upon the judgment of the Hon'ble Apex Court in the case of Patel Valmik Himatlal and ors. v. Patel Mohanlal Muljibhai (dead) through Lrs, reported in AIR 1998 SC 3325, to support his submission with regard to the scope of revisional jurisdiction and submitted that even though the revision is under sec. 29(2) of the Bombay Rent Act reappraisal of the evidence by the High Court would not be made. He submitted that as observed in this judgment, if no material irregularity in appreciation of evidence is pointed out, the fact that a different view is possible is no ground for exercise of revisional jurisdiction. He emhasised the observation, "5.
The ambit and scope of the said section came up for consideration before this Court in Helper Girdharbhai v. Saiyed Mohmad Mirasaheb Kadri, (1987) 3 SCC 538 : (AIR 1987 SC 1782) and after referring to a catena of authorities, Sabyasachi Mukharji, J. drew a distinction between the appellate and the revisional jurisdictions of the Courts and opined that the distinction was a real one. It was held that the right to appeal carries with it the right of rehearing both on questions of law and fact, unless the statute conferring the right to appeal itself limits the rehearing in some way, while the power to hear a revision is generally given to a particular case is decided according to law. The Bench opined that although the High Court had wider powers than that which could be exercised under Section 115 of the Code of Civil Procedure, yet its revisional jurisdiction could only be exercised for a limited purpose with a view to satisfying itself that the decision under challenge before it is according to law. The High Court cannot substitute its own findings on a question of fact for the findings recorded by the Courts below on reappraisal of evidence. Did the High Court exceed its jurisdiction ?
6. The powers under Section 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 but 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."
He therefore submitted that the present revision application may not be entertained.
9. In view of rival submissions, it is required to be considered whether the present revision application can be entertained or not.
10. The submissions which have been made by learned advocate Mr. Gohil are required to be considered in light of the material and evidence on record. Much emphasis given on the aspect of sec. 5(11)(c) contending that both the courts below have failed to appreciate that the respondent-original defendants were members of the original tenant's family and they were residing in a joint family which would justify the transmission of the tenancy rights under the Bombay Rent Act is required to be considered in background of the material and evidence on record. There is no doubt about sec. 5(11)(c)(i) that the tenancy rights would be transmitted to the members of the deceased tenant's family. However, sec. 5(11)(c)(i) provides, "(i) in relation to premises let for residence, any member of the tenant's family residing with the tenant at the time of, or within three months immediately preceding, the death of the tenant as may be decided in default of agreement by the Court."
11. Therefore, it is required to be established that the members of the tenant's family were residing with the tenant at the time of his death. However, as can be seen from the discussion which has been made on appreciation of evidence in the judgment of both the courts below, it is evident that father of the defendants died in 1953. However, the driving licence, exh. 74, refers to the address as Near Pilot Dairy, Kankaria and not the suit premises. In the ration card which has been produced at exh. 75 also the name of the family members of defendant No. 2 are mentioned. This aspect has also been discussed in the judgment of the lower appellate court in Para 27, 28, 29 & 30 wherein it has been specifically stated that defendant No. 2 was residing at Akaseth's Kuva's Pole and when defendant No. 1 shifted to the suit premises, defendant No. 2 continued to stay in Akaseth's Kkuva's Pole. There is a reference to the additional evidence and also the aspect of sec. 5(11)(c). The submission made by learned advocate Mr. Gohil that this aspect has not been considered cannot be believed or accepted. The member of the family has to be residing with the deceased tenant as provided under the law.
12. In the facts of the case, there is no quarrel with regard to the proposition canvased by learned advocate Mr. Gohil referring to the word 'family' that it has to be construed liberally and beneficially referring to the judgment reported in the case of Baldev Sahai Bangla (supra). However, at the same time, as the same has been considered by both the courts below and have come to the concurrent finding of facts on appreciation of evidence, this court would not be justified in exercise of revisional jurisdiction to interfere with the finding of facts. As rightly emphasised referring to the judgment reported in the case of Patel Valmik Himatlal and ors. (supra) and the scope of sec. 29(2) of the Bombay Rent Act that even though sec. 29(2) provides that the High Court should arrive at the satisfaction that the judgment in appeal by the lower appellate court was according to law, the ambit and scope of exercise of jurisdiction would still be limited as that of revisional jurisdiction and not the appellate jurisdiction. This aspect has been clarified by the Hon'ble Apex Court in the case of Patel Valmik Himatlal and ors. (supra) in Para 5 & 6 which has been quoted hereinabove. The Hon'ble Apex Court has specifically observed that revisional jurisdiction could be exercised for limited purpose with a view to satisfy itself that the decision under challenge is according to law and there is no material irregularity in construing the provision of law or applying the law.
13. Therefore, as there is no error in construing the provisions of law or applying the law to the facts of the case while arriving at the conclusion, it would not be justified to interfere with the concurrent findings of facts arrived at by both the courts below and therefore the court is not inclined to entertain the present revision application and it deserves to be rejected and accordingly stands rejected. Rule is discharged.
(Rajesh H. Shukla, J.) FURTHER ORDER After the order was pronounced, learned advocate Mr. Gohil submitted that his client is in possession and, therefore, status-quo may be continued for some time, to which learned advocate Mr. Rajguru has reservations. However, in the interest of justice, status-quo is ordered to be continued till 30.6.2011.
(Rajesh H. Shukla, J.) (hn) Top