Gujarat High Court
Saiyad Kamilshah Kabilshah vs Pirshah Hammad Roza Trust on 20 March, 2023
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
C/CRA/156/2023 ORDER DATED: 20/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 156 of 2023
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SAIYAD KAMILSHAH KABILSHAH
Versus
PIRSHAH HAMMAD ROZA TRUST
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Appearance:
HCLS COMMITTEE(4998) for the Applicant(s) No. 1,2
VIJAY H PATEL(7361) for the Applicant(s) No. 1,2
for the Opponent(s) No. 1,2,3,4,5
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 20/03/2023
ORAL ORDER
1. By way of this Civil Revision Application, the applicants have challenged the order dated 25.02.2019 passed by the Appellate Bench of Small Cause Court at Ahmedabad below Exh. 26 in Civil Appeal No. 118 of 2014 confirming the judgment and order dated 12.08.2014 passed by learned Single Judge of Small Cause Court in HRP Suit No. 1554 of 2009.
2. Heard learned advocate Mr. Vijay Patel for the applicants.
3. Though the orders under challenge are passed in the years 2014 and 2019 respectively. The revision application is Page 1 of 8 Downloaded on : Fri Mar 24 20:35:41 IST 2023 C/CRA/156/2023 ORDER DATED: 20/03/2023 preferred in the year 2023. By way of original suit of 2019, the applicants have prayed for providing the basic amenities like toilet, bathroom etc. in the suit premises at the cost of the plaintiffs and have also prayed for change of water line as well as drainage connection.
4. The facts leading to filing of the suit before the Small Cause Court is that the original plaintiffs - present applicants are the sons of one Mr. Kabilshah Kasamshah Saiyed who was an employee of the respondents no. 1 - Trust and was serving as Muzawar there. As a Muzawar, he was given a premises in the Trust to reside alongwith the family for which it is the case of the applicants that they used to pay rent @ Rs. 10 per month.
5. The case of the applicants is that they are the tenants of the respondent no. 1 - Trust even prior to 1960 as at the relevant point of time, their uncle was performing the duty as Muzawar. Subsequently, upon death of father of the applicant, the applicant started performing the duty as Muzawar Page 2 of 8 Downloaded on : Fri Mar 24 20:35:41 IST 2023 C/CRA/156/2023 ORDER DATED: 20/03/2023 However, no appointment letter to that effect was on record.
6. Perusal of plaint suggests that from 07.01.1992, upon death of the father of the applicants, considering it to be there moral duty, they started performing the duty as Muzawar. In between a suit under the Tenancy Act was preferred by the respondent no. 1 - Trust against them which was held against the Trust.
7. It is the case of the applicants that after having failed in the aforesaid suit, just with a view to harass the applicants though the applicants requested them to provide them the basic amenities like toilet, bathroom, water connection and drainage connection, the respondents are not allowing them to construct them at their own cost nor providing it on their own and therefore, the aforesaid suit was preferred in the year 2009 being HRP Suit No. 1554 of 2009.
8. After perusing the evidence, the learned Single Judge of Small Cause Court dismissed the suit vide order dated 12.08.2014 on the ground that section 24 (2) of the Rent Act would entitle the tenant to get the essential supplies which are cut off or Page 3 of 8 Downloaded on : Fri Mar 24 20:35:41 IST 2023 C/CRA/156/2023 ORDER DATED: 20/03/2023 withheld by the landlord by filing appropriate proceedings. In the instant case, it's not the case of the present applicant that those essential supplies were disconnected or withheld by the landlord. If the suit is allowed, in that case, it would amount to creating a new right in favour of the tenants. Learned Single Judge of Small Cause Court also considered the aspect that the premises in question was given to the predecessor of the plaintiffs as they were in employment of Trust as Muzawar. Upon death of the father of the present applicant, there is nothing on record that either of the plaintiffs were appointed as Muzawar and therefore, they cannot be said to be tenants.
9. Therefore, by taking into consideration the aforesaid facts as well as the ground in respect of mis-joinder of the parties, the suit was dismissed. Against which the present applicants preferred the appeal before Division Bench of the Small Cause Court being Civil Appeal No. 118 of 2014. There also after elaborate discussion the Division Bench of Small Cause Court vide order dated 12.08.2014 dismissed the appeal and confirmed the order passed by the learned Single Judge of Page 4 of 8 Downloaded on : Fri Mar 24 20:35:41 IST 2023 C/CRA/156/2023 ORDER DATED: 20/03/2023 Small Cause Court.
10. Heard learned advocate Mr. Patel for the applicant who submitted that the respondent no. 1 Trust had already preferred an application for standard rent which was decided against the Trust and therefore, indirectly by way of not allowing the applicants to have the basic amenities, the respondents are trying to get premises vacated forcibly.
11. Learned advocate Mr. Patel further submitted that the applicant is voluntarily rendering the services as Muzawar and therefore, considering the aforesaid aspect also, the applicant should be permitted to have the basic amenities at their own cost.
12. Lastly, learned advocate Mr. Patel submitted that the applicants are residing in the suit premises prior to the year 1960 and therefore, also considering the fact that all that is prayed by way of the suit is a direction to provide basic amenities and therefore, the Court may interfere and quash and set aside both the concurrent orders passed by the learned Page 5 of 8 Downloaded on : Fri Mar 24 20:35:41 IST 2023 C/CRA/156/2023 ORDER DATED: 20/03/2023 single Judge as well as learned Division Bench of Small Cause Court.
13. I have heard learned advocate Mr. Patel and perused the record. I have also considered that both the Courts below have concurrently held against the present applicant by taking into consideration section 24 (2) of the Rent Act which reads as under:-
"24 (2) A tenant in occupation of the premises may, if the landlord has contravened the provisions of sub-section (1), make an application to the Court for a direction to restore such supply or service."
14. Section 24 (2) of the Rent Act is in respect of restoration of certain services. It is not the case of the present applicants that essential services were provided to the tenants which were subsequently discontinued and the application is preferred for restoration of the aforesaid services.
15. Once the question about whether the applicants are tenants or not has not been decided in favour of the present applicants as there was nothing on record to indicate that the present applicants were tenant either before the Trial Court or Appellate Court and despite the repeated queries, nothing to indicate that the present applicants were tenant has been Page 6 of 8 Downloaded on : Fri Mar 24 20:35:41 IST 2023 C/CRA/156/2023 ORDER DATED: 20/03/2023 produced before this Court as well in absence of any rent receipt or rent agreement, it is difficult to take a contrary stand than the findings recorded by the Trial Court that the plaintiffs have failed to prove that there were the tenants in respect of the suit property.
16. Considering the fact that both the Trial Court as well as Division Bench of Small Cause Court have not only appreciated the facts and discussed the evidence in detail but also by applying the section 24 (2) of the Rent Act, as no case is made out by the applicant have dismissed the suit and appeal preferred by the present applicant.
17. On perusal of both the orders impugned in this revision application, I do not see any reason to interfere with the same as no error could be point out by learned advocate Mr. Patel.
18. Further the suit was preferred in the year 2009 whereas the Single Judge of Small Cause Court dismissed the suit in the year 2014 against which an appeal was preferred and even if that appeal also has been dismissed in the year 2019, it is Page 7 of 8 Downloaded on : Fri Mar 24 20:35:41 IST 2023 C/CRA/156/2023 ORDER DATED: 20/03/2023 only four years thereafter that Civil Revision Application is circulated.
19. It appears that the applicants are more interested in having the possession of the suit premises by hook or by crook despite the fact that he has not been employed as Muzavar by the Trust. Therefore, what the applicants could not get directly by way of the suit they are trying to protect the possession indirectly and the Court cannot be a party to such design and accordingly, the present application is required to be dismissed and the same is dismissed.
(NIRZAR S. DESAI,J) VARSHA DESAI Page 8 of 8 Downloaded on : Fri Mar 24 20:35:41 IST 2023