Gujarat High Court
Shah Nagindas Vadilal & Brothers vs Heirs Of Decd. Mohanlal Bapujipatel on 4 March, 2025
NEUTRAL CITATION
C/CRA/400/2001 CAV JUDGMENT DATED: 04/03/2025
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Reserved On: 16/01/2025
Pronounced On : 04/03/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 400 of 2001
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
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Approved for Reporting Yes No
YES
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SHAH NAGINDAS VADILAL & BROTHERS
Versus
HEIRS OF DECD. MOHANLAL BAPUJIPATEL & ORS.
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Appearance:
Mr.Mehul S. Shah, learned senior counsel with
MR HENIL M SHAH(10677) for the Applicant(s) No. 1
APPEARANCE DELETED for the Opponent(s) No. 1.1,1.2,1.3,1.5
DELETED for the Opponent(s) No. 1.5.12
Ms.Heta Panchal, learned advocate for
HL PATEL ADVOCATES(2034) for the Opponent(s) No.
1.3.1,1.3.4,1.3.5,1.3.6,1.4,1.5.10,1.5.11,1.5.8,1.5.9
RULE SERVED for the Opponent(s) No. 1.3.2,1.3.3,1.5.7
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
CAV JUDGMENT
1. Aggrieved by and dissatisfied with the judgment and order dated 31.01.2001 passed by the Assistant Judge, Panchmahal at Godhra in Regular Civil Appeal No.13 of 1991 whereby the Civil Appeal has been dismissed and the judgment and decree dated Page 1 of 22 Uploaded by MISHRA AMIT V.(HC00187) on Wed Mar 19 2025 Downloaded on : Fri Mar 21 22:50:28 IST 2025 NEUTRAL CITATION C/CRA/400/2001 CAV JUDGMENT DATED: 04/03/2025 undefined 18.12.1990 passed by the Joint Civil Judge (J.D.) Godhra in Regular Civil Suit No.281 of 1985 has been confirmed, the present Civil Revision Application has been filed.
2. For the sake of convenience, the parties are referred to as per their original status before the trial Court.
3. The brief facts, set out in the present Civil Revision Application, are as under :-
3.1 The original plaintiff- landlord filed Regular Civil Suit No.281 of 1985 against the deceased defendant-tenant on the ground, that the defendant tenant is in arrears of rent for more than six months as even after statutory notice as envisaged under Section 12(2) of the The Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, ('Bombay Rent Act', for short), the rent has not been paid by the defendant - deceased tenant and, therefore, the plaintiff claimed possession of the suit premises under the provisions of Section 12(3)
(a) of the Bombay Rent Act. In the said suit, the plaintiff had also claimed possession of the property under Section 13(1)(g) of the Bombay Rent Act on the ground that the plaintiff requires suit premises for 'bona fide requirement' and that 'greater hardship' is caused to the plaintiff - landlord. The plaintiff also sought eviction of the defendant tenant from the suit premises on the ground that defendant has sublet and transferred tenancy rights of the suit premises to third party. The trial Court, after considering the documentary evidence and the oral evidence and after framing issues and giving findings on each issue, had rejected the claim of Page 2 of 22 Uploaded by MISHRA AMIT V.(HC00187) on Wed Mar 19 2025 Downloaded on : Fri Mar 21 22:50:28 IST 2025 NEUTRAL CITATION C/CRA/400/2001 CAV JUDGMENT DATED: 04/03/2025 undefined the plaintiff, with respect to seeking eviction on the ground of arrears of rent more particularly Section 12 of the Bombay Rent Act and granted partial eviction decree in favour of plaintiff on the ground of bona fide requirement [section 13(1)(g) of the Bombay Rent Act] and greater hardship [Section 13(2) of the Bombay Rent Act] and with respect to the issue of proving the fact that defendant has sublet and transferred the tenancy right to the third party more particularly section 13(1)(e) of the Bombay Rent Act. In that view of the matter, the trial Court had only granted partial decree and granted eviction of ground floor of the property as per provisions of Section 13(1)(g) read with Section 13(2) of the Bombay Rent Act.
3.2 The trial Court framed and answered the issues vide Exh.14, which read as under:
"1. Whether the plaintiffs proves that the defendant is a tenant in arrears of rent for more than six months?
2. Whether the plaintiff also proves that the defendant has neglected to make payment of said arrears of rent within of one month from the date of receipt of notice u/s 12(2) of the rent Act ?
3. Whether the plaintiff proves that the suit premises are reasonable and bonafide required by the plaintiff for his occupation ?
4. If yes, whether having regard to all circumstances the case including the question whether other reasonable accommodation is available for the plaintiff or defendant, greater hardship would be caused to the defendant by passing the decree than to the plaintiff by refusing it ?Page 3 of 22 Uploaded by MISHRA AMIT V.(HC00187) on Wed Mar 19 2025 Downloaded on : Fri Mar 21 22:50:28 IST 2025
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5. Whether the plaintiff proves that the defendant has sub- let or transfer-red tenancy right in the suit premises ?
6. What is due from the defendant to the plaintiff ?
7. Whether the plaintiff is entitled to the reliefs as claimed in plaint para-6 ?
8. What order and what decree ?
Answers :
1. Negative
2. Negative
3. Affirmative
4. Affirmative
5. Negative
6. Affirmative
7. Partly Affirmative
8. As per final order.
3.3 Being aggrieved by judgment and decree passed in Regular Civil Suit No.281 of 1985, the defendant tenant filed Regular Civil Appeal No.13 of 1991 whereby the first Appellate Court dismissed the appeal and confirmed the judgment and decree passed in Regular Civil Suit No.281 of 1985 and, therefore, the judgment and decree passed under the provisions of Section 13(1)(g) of the Bombay Rent Act on the ground of bona fide requirement of the landlord were confirmed. Being aggrieved by the said order, the present Civil Revision Application has been filed.
4.1 Learned advocate for the defendant tenant has mainly submitted that the suit was filed by the plaintiff landlord on three grounds i.e. (i) plaintiff requires suit premises for bona fide Page 4 of 22 Uploaded by MISHRA AMIT V.(HC00187) on Wed Mar 19 2025 Downloaded on : Fri Mar 21 22:50:28 IST 2025 NEUTRAL CITATION C/CRA/400/2001 CAV JUDGMENT DATED: 04/03/2025 undefined requirement [Sec.13(1)(g)]; (ii) the tenant is in arrears of rent and, therefore, the plaintiff is entitled for possession of the suit property [Sec.12] and (iii) defendant has sublet suit premises to third party [Sec.13(1)(e) read with Sec.13(2)] and after hearing the landlord and tenant, trial Court granted eviction only on the ground of bona fide requirement i.e. Section 13(1) of the Bombay Rent Act, whereas dismissed the suit with respect to eviction on the ground of arrears of rent and subletting the suit property.
4.2 It has been argued by learned advocate for the defendant tenant that though there was no pleading and / or issue with respect to non-user of the suit premises, more particularly under Section 13 (1) (k) of the Bombay Rent Act the trial Court and the appellate Court have decided the entire matter, taking into consideration the factum of non-user of the property despite there being no pleadings on the said issue nor any issue being framed with respect to non-user of the suit premises. It has also been argued that the trial Court and the appellate Court have taken into consideration that the plaintiff is entitled for bona fide requirement of suit premises on the ground of non-user by the defendant and in that circumstances only on that ground of non-user the judgment and decree seeking eviction has been granted in favour of the plaintiff.
4.3 It has also been argued by learned advocate for the defendant tenant that the first Appellate Court has confirmed the findings of the trial Court based on finding of bona fide requirement, taking into consideration the panchnama of the suit premises which Page 5 of 22 Uploaded by MISHRA AMIT V.(HC00187) on Wed Mar 19 2025 Downloaded on : Fri Mar 21 22:50:28 IST 2025 NEUTRAL CITATION C/CRA/400/2001 CAV JUDGMENT DATED: 04/03/2025 undefined suggests that first and second floor of the suit property were not used by the defendant tenants, and, therefore, passed the decree of partial eviction which was confirmed by the appellate Court.
It has been argued by learned advocate for the defendant that despite the scope of non-user i.e. Section 13(1)(k) of the Bombay Rent Act and bona fide requirement i.e. Section 13(1)(g) of the Bombay Rent Act are different, the trial Court has combined both the scopes and has given common findings as regard the same. The trial Court and the appellate Court have held that on the ground floor of the suit premises, the defendant is doing business and first floor and second floor are vacant. It has also been argued that from the orders of both the Courts below, it can be clearly established that though the trial Court and the appellate Court came to the conclusion that hardship would be caused to the defendant tenant, the judgment and decree of eviction has been passed on the ground of bona fide requirement.
4.4 It has also been argued by learned advocate for the defendant that there is specific assertion by the plaintiff in the suit that they are owners of three properties and out of those three properties, one of the property, the plaintiffs themselves have surrendered to the State Government and despite the fact that there are other two properties which the plaintiff could have used, and other properties which are available, the plaintiff has sought eviction on the ground of bona fide requirement in regard to suit property.
Page 6 of 22 Uploaded by MISHRA AMIT V.(HC00187) on Wed Mar 19 2025 Downloaded on : Fri Mar 21 22:50:28 IST 2025NEUTRAL CITATION C/CRA/400/2001 CAV JUDGMENT DATED: 04/03/2025 undefined It has also been argued by learned advocate for the defendant tenant that there are contradictions in the pleadings and the oral evidence that has been filed in the present proceedings. The plaintiff in his cross examination has stated that he seeks possession of the suit premises for his mother, whereas in the plaint he stated that he needs suit premises for his sons. It has also been argued that the trial Court has not taken into consideration that one of the plaintiff son is partner in one of the firms and the said son is sitting at another shop.
4.5 Moreover, it has also been argued that for passing decree of eviction on the ground of bona fide requirement there has to be "desire" as against need and mere "wish" of landlord to use the property, according to the defendant it is not the ground to grant decree of eviction on the ground of bona fide requirement.
4.6 It has also been argued by learned advocate for the defendant
- tenant that the suit has been filed by original landlord and the landlord has not entered the witness box and only the grandson and the son of the plaintiff have entered the witness box, who have been examined vide Exhs.30 and Exh.58 respectively.
4.7 It has also been argued that the judgment and decree that has been passed by the trial Court and confirmed by the appellate Court is a partial decree wherein the trial Court has rejected the claim of the plaintiff for possession of the ground floor portion of the suit premises and has granted the eviction of the suit premises for the first and second floor of the suit premises and, therefore, it is the Page 7 of 22 Uploaded by MISHRA AMIT V.(HC00187) on Wed Mar 19 2025 Downloaded on : Fri Mar 21 22:50:28 IST 2025 NEUTRAL CITATION C/CRA/400/2001 CAV JUDGMENT DATED: 04/03/2025 undefined case of the defendant tenant while passing the decree of partial eviction, the Court has not considered the fact that the greater hardship would be caused to defendant - tenant on the ground of bona fide requirement.
4.8 It has also been argued that first appellate Court has not properly considered the Court commissioner's report for non-user though there was no specific issue for non-user. The Court has taken into consideration aspect of non-user and has granted eviction decree on the ground of bona fide requirement taking into consideration the finding of non-user. It has also been argued that though trial Court has come to conclusion that hardship will be caused to the defendant - tenant, no decree on the ground of bona fide requirement could have been passed in favour of landlord. Learned advocate for the defendant has relied on following decisions:-
(i) AIR 1999 SC 3190; T. Sivasubramaniam & Ors vs Kasinath Pujari & Ors (Para:4);
(ii) (2008) 17 SCC 491; Bachhaj Nahar vs. Nilima Mandal and
Anr., paras:13 and 17;
(iii) 2018 (7) SCC 646; Shyam Narayan Prasad vs. Krishna Prasad,
Para:23;
(iv) 1966 (0) GLR 1039; Panchal Shankerlal Mathurdas vs.
Ranchhodlal Govindlal; Paras:3 and 4;
(v) 1968 (0) GLR 729; Kasturbhai Ramchand Panchal vs. Firm of
M/s. Mohanlal Nathubhai, para:4;
(vi) 1968 (0) GLR 64; Kansara Abdulrehman Sadruddin vs.
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NEUTRAL CITATION
C/CRA/400/2001 CAV JUDGMENT DATED: 04/03/2025
undefined
Trustees of The Maniar Jamat, Ahmedabad, Para:9;
(vii) 2008 (4) SCC 594; Anathula Sudhakar vs. P. Buchi Reddy (Dead) By Lrs., para:17
5.1 Per contra learned advocate for the plaintiff landlord has argued that the appellate Court has dealt with point of hardship and has, after re-appreciating the evidence, come to the conclusion that it has been held by the trial Court that question of hardship while considering Section 13(1)(g) of the Bombay Rent Act is in favour of plaintiff. It has also been argued that from the oral evidence of the parties, it can be clearly established that the business, that the defendant is doing, could be done at alternative accommodation and the said business is not limited to only particular municipal area. Therefore, it has been argued that there is concurrent findings of both the Courts below and the fact is also clear that the suit property is required by the plaintiff for bona fide requirement and the first floor and second floor of the suit premises are not being used by the defendant tenant and that fact is admitted by the defendant. Therefore, it has been argued that defendant can not sit tight over suit premises which is neither being used, nor utilised, by the defendant tenant and, therefore, both the Courts below have rightly held that the plaintiff is entitled for vacant and peaceful possession of the suit premises more particularly first and second floor of the suit premises.
5.2 Learned advocate for the plaintiff has relied upon the Page 9 of 22 Uploaded by MISHRA AMIT V.(HC00187) on Wed Mar 19 2025 Downloaded on : Fri Mar 21 22:50:28 IST 2025 NEUTRAL CITATION C/CRA/400/2001 CAV JUDGMENT DATED: 04/03/2025 undefined following judgments.
(i) 2024 SCC Online Raj 175; Chain Singh Ghelot vs. Sushila Parihar, paras:19 to 22;
(ii) 2010 (2) SCC 264; Ashok Kumar vs. Ved Prakash; Paras:19 and 20;
(iii) Judgment of Bombay High Court of Judicature at Bombay rendered in Civil Revision Application No.119 of 2021 dated 29.11.2023 in the case of Ajay Mahasukhlal Shah vs. Chandrakant Babulal Shah; and
(iv) 2003 (1) SC 653; Badrinarayan Chunilal Bhutada vs. Govindram Ramgopal Mundada; para:11
6.1 Having heard learned advocates for the respective parties and after perusing the orders passed by both the Courts below, it is very clear that judgment and decree is passed on the ground of bona fide requirement under Section 13(1)(g) of the Bombay Rent Act and, therefore, important factor is that over and above findings of the trial Court that the suit premises are required by the plaintiff landlord for bona fide requirement for occupation of himself or by any person for whose benefit the premises are held, then he is entitled to the possession of the suit, the court should be satisfied that having regard to all the circumstances of the case including the question whether other accommodation is available for the landlord or the tenant, the greater hardship would be caused to a party by passing decree and by refusing to pass it. Therefore, while coming to the said conclusion of ' bonafide requirement ' under Section Page 10 of 22 Uploaded by MISHRA AMIT V.(HC00187) on Wed Mar 19 2025 Downloaded on : Fri Mar 21 22:50:28 IST 2025 NEUTRAL CITATION C/CRA/400/2001 CAV JUDGMENT DATED: 04/03/2025 undefined 13(1)(g) of the Bombay Rent Act the trial Court had to decide on the factor of greater hardship that would either be caused to plaintiff landlord or to defendant tenant. In the present case, if the judgment and decree passed in Regular Civil Suit No.281 of 1985 is read, it has been held that plaintiff landlord has proved before the trial Court that he required suit premises for his bona fide requirement and at the same time that Court has also held that defendant has also proved that greater hardship will be caused to the defendant tenant and in view of the said fact the trial Court has granted partial decree whereby possession of the ground floor portion is ordered to be retained by tenant and possession of the first floor and second floor is ordered to be given to landlord tenant. The provisions of section 13(1) (g) are as under:
"13. When landlord may recover possession.
(1) Notwithstanding anything contained in this Act [but subject to the provisions of Section 15] [These words and figures were inserted by Bombay 3 of 1949, section 3.] a landlord shall be entitled to recover possession of any premises if the Court is satisfied.
-(a) xxx ....
xxx or
(g) that the premises are reasonably and bona fide
required by the landlordfor occupation by himself or by any person for whose benefit the premises are held [where the landlord is a trustee of a public charitable trust that the premises are required for occupation for the purpose of the trust] [These words were inserted by Bombay 61 of 1953, section 9(1)(a).];
(h) xxx ...
... ...
(l) ... ... xxx"Page 11 of 22 Uploaded by MISHRA AMIT V.(HC00187) on Wed Mar 19 2025 Downloaded on : Fri Mar 21 22:50:28 IST 2025
NEUTRAL CITATION C/CRA/400/2001 CAV JUDGMENT DATED: 04/03/2025 undefined 6.2 In the present case, specific issue has been framed before the trial Court being Issue Nos.3 & 4 which reads as under:
"3. Whether the plaintiff proves that the suit premises are reasonable and bonafide required by the plaintiff for his occupation ?[ Answer in Affirmative]
4. If yes, whether having regard to all circumstances the case including the question whether other reasonable accommodation is available for the plaintiff or defendant, greater hardship would be caused to the defendant by passing the decree than to the plaintiff by refusing it ? [Answer in Affirmative]"
Where by granting a decree on the ground of bona fide requirement of the plaintiff, greater hardship would be caused to the defendants, if the trial Court, after leading oral evidence, comes to the conclusion that greater hardship would be caused to the defendants if the judgment and decree of eviction of the defendant for bona fide requirement of the plaintiff is passed and if the said finding of the trial Court has not been challenged by the plaintiff landlord, the said findings remains confirmed.
6.3 Though the trial Court has passed judgment and decree whereby partial eviction has been granted by the trial Court, the Law is well settled that the decree for partial eviction can be passed only if the Court is satisfied that by passing such a decree, no hardship is going to be caused to any of the party and unless the said satisfaction is reached by the Court, decree for partial possession cannot be passed.
Page 12 of 22 Uploaded by MISHRA AMIT V.(HC00187) on Wed Mar 19 2025 Downloaded on : Fri Mar 21 22:50:28 IST 2025NEUTRAL CITATION C/CRA/400/2001 CAV JUDGMENT DATED: 04/03/2025 undefined In the present case, trial Court having framed the issue with respect to greater hardship that would be caused to the defendant tenant has held in the affirmative that greater hardship will be caused to the defendants if the judgment and decree of eviction is passed in favour of the plaintiff. In the present case, it was obligatory on the part of the trial Court that after taking into consideration the aspect that greater hardship would be caused to the defendant tenant, the decree for eviction could not have been passed unless the Court comes to the conclusion that no hardship will be caused to the defendant after the judgment and decree of eviction is passed in favour of the plaintiff.
6.4 The trial Court having come to the conclusion that greater hardship will be caused to the defendants if the judgment and decree of eviction is passed and if the said findings having not been challenged by the plaintiff landlord, the trial Court could not have passed the judgment and decree for eviction. Even the partial decree of eviction could not have been passed as it was obligatory on the Court before confirming the decree passed by the trial Court for partial eviction of the first and second floors to be handed over to the plaintiff landlord, to satisfy himself that there is no hardship which is going to be caused either to the landlord or to the tenant by confirming the decree for partial eviction.
6.5 When the trial Court had come to the conclusion that the greater hardship was going to be caused to the defendant tenant if he is evicted from the suit premises, the judgment and decree of Page 13 of 22 Uploaded by MISHRA AMIT V.(HC00187) on Wed Mar 19 2025 Downloaded on : Fri Mar 21 22:50:28 IST 2025 NEUTRAL CITATION C/CRA/400/2001 CAV JUDGMENT DATED: 04/03/2025 undefined partial eviction could not have been passed by the trial Court.
6.6 It has also been now well settled that once the landlord satisfy requirement of section 13(1)(g), the burden of 'greater hardship' is on the tenant. By virtue of Issue No.4 which is held in affirmative in favour of defendant tenant, the defendant tenant has proved that greater hardship will be caused to him and there is no justification given by the trial Court in that regard. The trial Court, before passing any decree for partial eviction, must satisfy itself that while passing such decree, no hardship will be causing either to the landlord or to the tenant. Unless that satisfaction is arrived at by the Court, such partial decree and judgment cannot be passed. At one breath the trial Court had held that greater hardship will be caused to the tenant if decree of eviction is passed. There is no justification given by trial Court that by granting partial decree of eviction that it would strike just balance without causing hardship to either side and the Court could have granted partial decree only after reaching the conclusion on the aspect of greater hardship. Once having come to the conclusion that the greater hardship will be caused to the defendant tenant, the Court could not have granted partial decree of eviction.
6.7 Learned advocate for the defendant has relied on the
following judgments
(i) 1966 (0) GLR 1039; Panchal Shankerlal Mathurdas vs.
Ranchhodlal Govindlal; Paras:3 and 4;
(ii) 1968 (0) GLR 729; Kasturbhai Ramchand Panchal vs. Firm of
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M/s. Mohanlal Nathubhai, para:4;
(iii) 1968 (0) GLR 64; Kansara Abdulrehman Sadruddin vs.
Trustees of The Maniar Jamat, Ahmedabad, Para:9;
6.8 It is also required to be noted that after the Court comes to
the conclusion that landlord has made out ground for eviction under Section 13(1)(g) of the Bombay Rent Act, however after passing judgment and decree, the Court has to consider the entirely different matter. So far as Section 13(1)(g) is concerned, the Court considers the situation whether the plaintiff, bona-fidely, required suit premises for his personal use or not and having reached that stage thereafter under Section 13(2) of the Bombay Rent Act, the Court is required to consider as to what would be consequence of passing that decree. The Court is also required to consider as to what hardship would be faced by the landlord if the decree is not passed even though grounds specified in clause (g) of Section 13(1) of the Bombay Rent Act is fulfilled by the plaintiff landlord. At the same time, the Court is also required to consider what hardship would be faced by the defendant tenant if the decree of eviction of the suit premises / property is passed.
6.9 After considering all the above referred facts i.e. (i) whether the plaintiff is entitled for bona fide requirement, (ii) what hardship will be caused to plaintiff landlord if the decree is not passed under section 13(1)(g), (iii) what hardship will be caused to defendant tenant if the decree of eviction is passed, it is only after considering above referred three aspects and the Court after weighing the aspect of hardship of one against hardship of another, Page 15 of 22 Uploaded by MISHRA AMIT V.(HC00187) on Wed Mar 19 2025 Downloaded on : Fri Mar 21 22:50:28 IST 2025 NEUTRAL CITATION C/CRA/400/2001 CAV JUDGMENT DATED: 04/03/2025 undefined can come to conclusion as to which party will have to bear greater hardship and if the Court comes to the conclusion that landlord will suffer hardship, the Court can grant decree in his favour on the ground of bona fide requirement and if the Court is satisfied that defendant tenant will be faced greater hardship if the judgment and decree is passed on the ground of bona fide requirement the Court can decline to pass judgment and decree of eviction even though bona fide requirement is proved by the landlord. Therefore, if the plaintiff wants possession of the suit premises on the ground of bona fide requirement i.e. Section 13(1)(g) of the Bombay Rent Act, over and above the fact that plaintiff has to prove that he requires suit property for his own bona fide requirement, the plaintiff landlord will also have to prove that greater hardship will be caused to the plaintiff if the judgment and decree of eviction on the ground of bona fide requirement is not granted in favour of plaintiff and the defendant will also have to prove and the Court will also have to take into consideration that no hardship would be caused to the tenant if the decree were passed.
7.1 The other important issue is also raised that the trial Court and the appellate Court have only considered the fact that as the defendant tenant is not using the first floor and second floor of the suit premises, but if the issues that are framed are considered, there is no issue with respect to the fact that the defendant tenant is not using the suit premises under the Bombay Rent Act, more particularly under Section 13(1)(k) of the Bombay Rent Act wherein it has been stated that the plaintiff is entitled for possession of the Page 16 of 22 Uploaded by MISHRA AMIT V.(HC00187) on Wed Mar 19 2025 Downloaded on : Fri Mar 21 22:50:28 IST 2025 NEUTRAL CITATION C/CRA/400/2001 CAV JUDGMENT DATED: 04/03/2025 undefined suit premises on the ground of non-user and in the present case, the plaintiff has not filed the suit seeking possession of the suit premises on the ground of non-user more particularly Section 13(1)
(k) of the Bombay Rent Act and without the said ground being raised, the trial Court and the appellate Court could have not come to the conclusion that the plaintiff is entitled for the possession of the suit premises on the ground of non-user.
7.2 Learned advocate for the applicant has relied upon the judgment reported in 2008 (17) SCC 491 in the case of Bacchaj Nahar (supra), 2018 (7) SCC 646 in the case of Shyam Narayan Prasad (supra) and 2008 (4) SCC 594 in the case of Anathula Sudhakar (supra) to establish the fact of non-user of the premises by the defendant, plaintiff would have some pleadings i.e. the premises have not been used for continuation period of six months immediately preceding the date of suit. Therefore, there has to be pleadings with respect to non-user and the said non-user would be for continuous period of six months immediately preceding the date of suit.
7.3 In the present case, no issues are framed with respect to non- user. The object of framing of issues is to identify from the pleadings the question of points requires to be decided by the Court so as to enable the parties to the suit to give evidence thereon and when the said claim or relief based on the claim are not found in the pleadings, the Court could not have passed the judgment and decree on the claim without framing an appropriate issue on the said subject. Moreover, the defendant was not given any Page 17 of 22 Uploaded by MISHRA AMIT V.(HC00187) on Wed Mar 19 2025 Downloaded on : Fri Mar 21 22:50:28 IST 2025 NEUTRAL CITATION C/CRA/400/2001 CAV JUDGMENT DATED: 04/03/2025 undefined opportunity to substantiate his case of non-user and unless and until an opportunity to place the facts and contentions were there, Court could not have adjudicated suit of granting eviction based on the ground of non-user i.e. Section 13(1)(k) of the Bombay Rent Act.
7.4 In the present case, the defendants had no opportunity to plead before the Court to grant decree on account of non-user when there was no particular relief and no pleadings to support and grant of relief under the provisions of Section 13(1)(k) of the Bombay Rent Act. Learned advocate for the petitioner relied on judgment reported in (2008) 17 SCC 491 in the case of Bachhaj Nahar (supra) more particularly paras:13 and 17 which read thus:
"13. The object of issues is to identify from the pleadings the questions or points required to be decided by the courts so as to enable parties to let in evidence thereon. When the facts necessary to make out a particular claim, or to seek a particular relief, are not found in the plaint, the court cannot focus the attention of the parties, or its own attention on that claim or relief, by framing an appropriate issue. As a result the defendant does not get an opportunity to place the facts and contentions necessary to repudiate or challenge such a claim or relief. Therefore, the court cannot, on finding that the plaintiff has not made out the case put forth by him, grant some other relief. The question before a court is not whether there is some material on the basis of which some relief can be granted. The question is whether any relief can be granted, when the defendant had no opportunity to show that the relief proposed by the court could not be granted. When there is no prayer for a particular relief and no pleadings to support such a relief, and when defendant has no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it will lead to miscarriage of justice. Thus it is said that no amount of evidence, on a plea that is not put forward in the Page 18 of 22 Uploaded by MISHRA AMIT V.(HC00187) on Wed Mar 19 2025 Downloaded on : Fri Mar 21 22:50:28 IST 2025 NEUTRAL CITATION C/CRA/400/2001 CAV JUDGMENT DATED: 04/03/2025 undefined pleadings, can be looked into to grant any relief.
17. It is thus clear that a case not specifically pleaded can be considered by the court only where the pleadings in substance, though not in specific terms, contains the necessary averments to make out a particular case and the issues framed also generally cover the question involved and the parties proceed on the basis that such case was at issue and had led evidence thereon. As the very requirements indicate, this should be only in exceptional cases where the court is fully satisfied that the pleadings and issues generally cover the case subsequently put forward and that the parties being conscious of the issue, had led evidence on such issue. But where the court is not satisfied that such case was at issue, the question of resorting to the exception to the general rule does not arise. The principles laid down in Bhagwati Prasad and Ram Sarup Gupta (supra) referred to above and several other decisions of this Court following the same cannot be construed as diluting the well settled principle that without pleadings and issues, evidence cannot be considered to make out a new case which is not pleaded. Another aspect to be noticed, is that the court can consider such a case not specifically pleaded, only when one of the parties raises the same at the stage of arguments by contending that the pleadings and issues are sufficient to make out a particular case and that the parties proceeded on that basis and had led evidence on that case. Where neither party puts forth such a contention, the court cannot obviously make out such a case not pleaded, suo moto."
7.5 Reliance is also placed in the case of Shyam Narayan Prasad (supra) reported in 2018 (7) SCC 646, more particularly para:23 which reads as under:
"23. The last contention of the learned counsel for the appellant is in relation to application of Section 53A of the T.P Act. It is well settled that the defendant who intends to avail the benefit of this provision must plead that he has taken possession of the property in part performance of the contract. Perusal of the written statement of the first Page 19 of 22 Uploaded by MISHRA AMIT V.(HC00187) on Wed Mar 19 2025 Downloaded on : Fri Mar 21 22:50:28 IST 2025 NEUTRAL CITATION C/CRA/400/2001 CAV JUDGMENT DATED: 04/03/2025 undefined defendant shows that he has not raised such a plea. Pleadings are meant to give to each side, intimation of the case of the other, so that, it may be met to enable courts to determine what is really at issue between the parties. No relief can be granted to a party without the pleadings. Therefore, it is not open for the first defendant/appellant to claim the benefit available under Section 53A of the T.P. Act."
7.6 So also the reliance is also placed by learned advocate for the applicant - original defendant tenant on the judgment rendered in case of Anathula Sudhark (supra) reported in 2008 (4) SCC 594, para:17 which reads as under:
"17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under :
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.Page 20 of 22 Uploaded by MISHRA AMIT V.(HC00187) on Wed Mar 19 2025 Downloaded on : Fri Mar 21 22:50:28 IST 2025
NEUTRAL CITATION C/CRA/400/2001 CAV JUDGMENT DATED: 04/03/2025 undefined
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction.
But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."
7.7 Therefore, looking to all the facts when the plaintiff himself has not put forward his case of seeking eviction on the ground of non-user, the Court could not have granted partial decree with respect to first and second floors of the suit premises.
8. In the result, judgment and decree judgment and decree dated Page 21 of 22 Uploaded by MISHRA AMIT V.(HC00187) on Wed Mar 19 2025 Downloaded on : Fri Mar 21 22:50:28 IST 2025 NEUTRAL CITATION C/CRA/400/2001 CAV JUDGMENT DATED: 04/03/2025 undefined 18.12.1990 passed by the Joint Civil Judge (J.D.) Godhra in Regular Civil Suit No.281 of 1985 so upheld by the appellate Court i.e. the judgment and order dated 31.01.2001 passed by the Assistant Judge, Panchmahal at Godhra in Regular Civil Appeal No.13 of 1991 are quashed and set aside. Rule is made absolute to the aforesaid extent. No order as to costs. R&P to be sent back to the concerned trial Court.
(SANJEEV J.THAKER,J) MISHRA AMIT V. Page 22 of 22 Uploaded by MISHRA AMIT V.(HC00187) on Wed Mar 19 2025 Downloaded on : Fri Mar 21 22:50:28 IST 2025