Gujarat High Court
Y.N.Singh vs Suvarnaben on 23 March, 2010
Author: M.R. Shah
Bench: M.R. Shah
Gujarat High Court Case Information System
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CRA/33/2007 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
REVISION APPLICATION No. 33 of 2007
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Y.N.SINGH
- Applicant(s)
Versus
SUVARNABEN
PRIYAKANT PARIKH - Opponent(s)
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Appearance :
MR
HASIT DILIP DAVE for
Applicant(s) : 1,
MR NILESH M SHAH for Opponent(s) : 1,
MR
MAYANK DESAI for Opponent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 23/03/2010
ORAL
ORDER
Present Civil Revision Application under Section 29(2) of the Bombay Rents Hotels and Lodging House Rents Control Act, 1947 (for short 'Bombay Rent Act') have been preferred by the petitioner herein-original defendant to quash and set aside the impugned judgment and order dated 9.1.2007 passed by learned Presiding Officer, Fast Track Court No.5, Vadodara passed in Regular Civil Appeal No.63 of 2002 by which, the learned appellate Court has allowed the said appeal quashing and setting aside the judgment and decree passed by learned Additional Small Cause Court, Vadodara passed in Rent Suit No.250 of 1989 by which, the learned trial Court has dismissed the suit preferred by the respondent-original plaintiff.
Respondent herein original plaintiff instituted one Rent Suit No.250 of 1989 in the Court of learned Small Causes Court, Vadodara for getting the decree for possession on the ground of arrears of rent for more than 6 months and recovery of arrears of rent. The learned trial Court after framing necessary issues and considering the evidence on record held that the petitioner-tenant was already ready and willing to pay the rent and the petitioner-tenant was not in arrears of rent for more than 6 months, either at the time of the statutory notices under Section 12(2)of the Bombay Rent Act or on the first date of hearing of the suit (framing of the issues). It is to be noted that it was the contention on behalf of the applicant-tenant that he has incurred certain amount towards the repair of the tenanted premises and therefore, he adjusted the same on his own and after adjusting the said amount, it was contended on behalf of the tenant that he was not in arrears of rent. Learned trial Court accepted the same and dismissed the suit preferred by the landlord. Being aggrieved and dissatisfied with the judgment and decree passed by the learned Addl. Small Causes Court, Vadodara passed in Rent Suit No.250 of 1989, respondent-landlord preferred the Regular Civil Appeal No.63 of 2002 before the learned District Court, Vadodara which came to be heard by learned Presiding Officer, Fast Track Court No.5, Vadodara who by his impugned judgment and order dated 9.1.2007 has been pleased to allow the said appeal by decreeing the suit and passing the eviction decree on the ground of arrears for more than 6 months and passing the decree under Section 12(3)(b) of the Bombay Rent Act. Being aggrieved and dissatisfied with the impugned judgment and order dated 9.1.2007, passed by learned Appellate Court passed in Regular Civil Appeal No.63 of 2002, petitioner herein-defendant has preferred the present revision application under Section 29(2) of the Bombay Rent Act.
Shri Dave, learned advocate appearing on behalf of the petitioner-tenant has vehemently submitted that learned appellate Court has not properly appreciated the scope of appeal under Section 29(1) of the Bombay Rent Act inasmuch as the interference could only been have on questions of law or error apparent on the face of the record which was not the case in facts of the present appeal.
It is further submitted that learned appellate Court has committed a serious error in not appreciating the fact that the calculations of the arrears of the rent after due adjustments of the amount paid by the petitioner in the several years is a nominal amount which the petitioner is and was ready and willing to immediately deposit and settle. It is further submitted that the learned appellate Court materially erred in holding that there was a change of user by the petitioner-tenant.
Shri Dave, learned advocate appearing on behalf of the petitioner has further submitted that the appellate Court has materially erred in ignoring the amount adjusted by the petitioner-tenant towards the expenditure by the tenant on repairing suit premises which has resulted into miscarriage of justice. It is further submitted that if such an adjustment of an amount being the amount of expenditure by the tenant on repairing the suit premises could have been considered, in that case, the petitioner-tenant could not have been said to be in arrears of rent warranting the eviction decree under Section 12(3)(b) of the Bombay Rent Act. Therefore, it is requested to allow the present revision application.
Petition is opposed by Shri Mayank Desai, learned advocate appearing on behalf of the respondent No.1. It is submitted that the adjustment of the amount being the amount incurred by the tenant of repairing the tenanted premises was absolutely illegal and the same is rightly dealt with by the learned appellate Court while holding that the petitioner-tenant was in arrears of rent. It is submitted that finding of facts given by the appellate Court to the effect that on the date of service of the statutory notice under Section 12(2) of the Bombay Rent Act and even at the time of framing of the suit, the tenant was in arrears of rent, meaning thereby, entire rent was not paid and therefore, the learned appellate Court has rightly passed the decree under Section 12(3)(b) of the Bombay Rent Act. Therefore, it is requested to dismiss the present revision application by submitting that even the huge amount of rent due and payable even during the pendency of the present revision application and an amount of Rs.1,20,000/- was paid pursuant to the ad-interim order passed by this Court on 13th March, 2007. Therefore, it is requested to dismiss the present revision application.
Heard the learned advocates appearing on behalf of the respective parties at length.
At the outset, it is required to be noted that the learned appellate Court has passed the eviction decree under Section 12(3)(b) of the Bombay Rent Act having found that petitioner-tenant was in arrears of rent for more than 6 months. On appreciation of evidence, learned appellate Court has observed and held that the statutory notice under Section 12(2) was issued on 12th February, 1989 and the rent was found due from December, 1986. Issues were framed on 18.10.1994 and on that day, the amount of Rs.1,20,000/- was due and payable being the arrears of rent for 7 years and 11 months and against which, the petitioner- original defendant-tenant paid only Rs.65,178/- even on the first date of hearing of the suit. Thus, learned appellate Court has held that the tenant has failed to comply with the provisions of Section 12(3)(b) of the Bombay Rents Act. The appellate Court has also observed and held that even at the time of deciding the suit by the learned trial Court, the tenant was in arrears of rent for Rs.1,89,122/-. It appears that it was the contention and defence on behalf of the defendant-tenant that he made certain repairs and certain amount was incurred by him and therefore, he on his own adjusted the same from the amount of rent, which has been dealt by the learned appellate Court in paragraph No.75 of the impugned judgment and order. The learned appellate Court has held that the amount of Rs.88,841/- deducted / adjusted by the defendant towards the arrears of rent was illegally deducted / adjusted as the alleged tenanted repair was without prior approval / sanction of the landlord. Even at the time of hearing of the revision application, the huge amount is due and payable by the tenant. Considering the aforesaid over all facts and circumstances of the case, it cannot be said that learned appellate Court has committed any error in passing the decree under Section 12(3)(b) of the Bombay Rent Act which calls for interference of this Court in exercise of power under Section 29(2) of the Bombay Rent Act.
It is also required to be noted that even at the relevant time, when learned single Judge issued the notice in the year 2007, it was only for the purpose of settlement as recorded by the learned single Judge in the order. However, nothing is on record that any efforts were made by the petitioner to settle the matter.
Under the circumstances and for the reasons stated above, there is no substance in the present revision application which deserves to be dismissed and is accordingly dismissed.
(M.R.SHAH, J.) (ashish) Top