Gujarat High Court
Brijpalsingh Himmatsingh Kushwaha vs Laxmanji Ravjibhai Dhakate (Koshti) on 11 February, 2025
NEUTRAL CITATION
C/CRA/46/2025 ORDER DATED: 11/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 46 of 2025
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BRIJPALSINGH HIMMATSINGH KUSHWAHA
Versus
LAXMANJI RAVJIBHAI DHAKATE (KOSHTI)
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Appearance:
MR YOGESH G KANADE(3114) for the Applicant(s) No. 1
MR DIPAN DESAI(2481) for the Opponent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 11/02/2025
ORAL ORDER
1. The present Civil Revision Application is filed under the provision of Section 29(2) of the Gujarat Rents, Hotel and Lodging, House Rates Control Act, 1947 whereby the defendant has challenged the judgment and decree dated 06.09.2024 passed in Civil Appeal No.30 of 2023 whereby the appellate Small Cause Court, Ahmedabad has dismissed the appeal and confirmed the judgment and decree passed in H.R.P. Suit No.458 of 2018 dated 09.11.2018. The parties are referred to plaintiff and defendant herein.
2. The brief facts arising in the present Revision Application are that it is the case of the plaintiff in HRP Suit No.458 of 2018 that the suit property was given on rent in the year 1986 to the defendant tenant with two rooms on the ground floor out of which one room admeasuring 20.07 sq. mtrs. was rented to the original defendant tenant at monthly rate of Rs.80/- and it was the case of the plaintiff Page 1 of 8 Uploaded by MANOJ KR. RAI(HC01072) on Wed Feb 12 2025 Downloaded on : Wed Feb 12 22:36:28 IST 2025 NEUTRAL CITATION C/CRA/46/2025 ORDER DATED: 11/02/2025 undefined that the defendant tenant, had started demolishing the suit property and started new construction of permanent nature without taking consent from the plaintiff and when the plaintiff tried to prevent the defendant, the defendant and his accomplish, started beating the plaintiff and the plaintiff landlord thereafter filed the present suit for eviction, on the ground that the defendant has erected permanent structure in the suit premises which cannot be removed without serious damage to the property and the said construction of permanent nature is made without consent of the plaintiff and the same cannot be removed without causing serious damage to the premises. The trial Court by an order dated 09.01.2020 allowed the said suit and directed the defendant to hand over and vacate peaceful possession of the suit premises.
3. Being aggrieved by the said order, defendant tenant filed Civil Appeal No.30 of 2023 and by an order dated 06.09.2024, the said Civil Appeal is dismissed.
4. The learned advocate for the defendant tenant has mainly argued on the point that no summons of HRP Suit No.458 of 2018 were served to the defendant tenant. It has also been argued that the sale deed that has been executed in favour of the plaintiff landlord for purchase of suit Page 2 of 8 Uploaded by MANOJ KR. RAI(HC01072) on Wed Feb 12 2025 Downloaded on : Wed Feb 12 22:36:28 IST 2025 NEUTRAL CITATION C/CRA/46/2025 ORDER DATED: 11/02/2025 undefined premises is without permission of the Charity Commissioner as per provision of Section 36 of the Bombay Public Trust Act, and therefore, the plaintiff cannot be considered as owner of the premises. Moreover, it is also argued by the defendant's advocate that no chance of examining any witness has been given to the defendant tenant and that the sale deed executed in front of the plaintiff is under breach of Bombay Public Trust Act and it is argued that there is no evidence given by the landlord in support of his case seeking eviction under the provision of section 13 of Bombay Public Trust Act.
5. Per contra, learned advocate for the respondent has argued that the defendant tenant has neither entered the witness box nor has examined any witness to establish the fact that there is no permanent alteration that has been made by the defendant tenant which cannot be removed without causing serious damage to the plaintiff.
6. Having heard learned advocate for the parties and on perusal of the judgment and decree passed in First Appeal No.30 of 2023, the following facts can be clearly established that
(i) There is a dispute between the landlord and tenant, and Page 3 of 8 Uploaded by MANOJ KR. RAI(HC01072) on Wed Feb 12 2025 Downloaded on : Wed Feb 12 22:36:28 IST 2025 NEUTRAL CITATION C/CRA/46/2025 ORDER DATED: 11/02/2025 undefined therefore, Small Cause Court shall have jurisdiction to entertain the suit.
(ii) The plaintiff has filed counter foil of rent receipt for the month of December-1997 produced in HRP Suit No.458 of 2018.
(iii) The plaintiff has filed counter foil of rent receipt for the period 01.09.1986 to 30.09.1986 has produced, vide Exhibit-
38 in HRP Suit No.458 of 2018.(iv) The plaintiff has filed counter foil of rent receipt for the period December-1997 has produced, vide Exhibit-39 in HRP Suit No.458 of 2018.
(v) The plaintiff has filed counter foil of rent receipt for the period June-1996 has produced, vide Exhibit-40 in HRP Suit No.458 of 2018.
(vi) The plaintiff has filed counter foil of rent receipt for the month of October-1986 to January-1987 have produced, vide Exhibit-41 in HRP Suit No.458 of 2018.
(vii) The defendant has not entered the witness box and has not examined himself to prove the facts stated in the plaint to be no correct.
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7. The fact that the plaintiff has produced counter foil of the rent receipt, vide Exhibit-38 and 41 which goes back in the year 1986, the plaintiff has clearly proved that there is relationship of landlord and tenant.
8. The plaintiff has claimed eviction mainly on the ground of permanent structure made by the defendant without the permission of the plaintiff under the provisions of 13(b) of the Gujarat Rents, Hotel and Lodging House Rates Control Act, 1947, which reads as under:-
"13. When landlord may recover possession.- (1) Notwithstanding anything contained in this Act [but subject to the provisions of Section 15] a landlord shall be entitled to recover possession of any premises if the Court is satisfied.
(b) [that, save as otherwise provided in Section 23-A], the tenant has, without the landlord's consent given in writing, erected on the premises any permanent structure.
[Explanation.- For the purpose of clause (b), no permanent structure shall be deemed to be erected on any premises merely by reason of the construction of a partition wall, door or lattice work or the filling of Kitchen-stand or such other alteration made in the premises as can be removed without serious damage to the premises.]"
9. Therefore, the burden is on the plaintiff to prove that there is a permanent structure erected in the suit premises Page 5 of 8 Uploaded by MANOJ KR. RAI(HC01072) on Wed Feb 12 2025 Downloaded on : Wed Feb 12 22:36:28 IST 2025 NEUTRAL CITATION C/CRA/46/2025 ORDER DATED: 11/02/2025 undefined by the defendant tenant and that the said permanent structure cannot be removed without causing serious damage to the property, and therefore, to substantiate the said case the plaintiff has stated in the plaint that the defendant tenant has by demolishing the old construction made permanent construction from the foundation of the suit property and the said construction made by the defendant is a new construction and the said construction is made by defendant, without any permission from Ahmedabad Municipal Corporation.
10. The appellate Court has also dealt with the written statement filed by the defendant tenant, vide Exhibit-18 in HRP Suit No.458 of 2018 wherein also the defendant has not uttered a statement to controvert the facts about the illegal permanent structure carried out by the defendant. The appellate Court has also dealt with the fact that permanent construction can only be made by iron rods, cement, bricks, wooden stick and even, as per the Court Commissioner's report produced, vide Exhibit-36, it has been found that construction work is going on from the foundation the property and the Court Commissioner also found tools, machinery work at suit premises and in the Court Commissioner's report, it was also found that new Page 6 of 8 Uploaded by MANOJ KR. RAI(HC01072) on Wed Feb 12 2025 Downloaded on : Wed Feb 12 22:36:28 IST 2025 NEUTRAL CITATION C/CRA/46/2025 ORDER DATED: 11/02/2025 undefined constructed wall was also made in the suit premises. Therefore, on the factual aspect, the trial Court and the appellate court had come to conclusion that the constructions work was in process at the said tenanted premises when the Court Commissioner had gone to prepare report. Moreover, the said Commissioner's report has not been challenged or controverted during the trial and the said Court Commissioner's work was conducted in presence of defendant tenant. It is also required to note that adverse inference also needs to be raised against the defendant tenant for the reason that the defendant tenant has neither cross examined the plaintiff and the defendant tenant has not bothered to adduce any evidence during the trial and the fact that the Court Commissioner Report and notice issued by Ahmedabad Municipal Corporation under Section 267 (3) which is produced at Exhibit-42 also proves the fact of permanent structure made. The evidence of the plaintiff was rightly believed by the trial Court and the first appellate Court.
11. Moreover, the finding recorded by the Appellate Court are not perverse and the First Appellate Court has arrived at a finding on proper oral and documentary evidence and the said finding is not erroneous and Page 7 of 8 Uploaded by MANOJ KR. RAI(HC01072) on Wed Feb 12 2025 Downloaded on : Wed Feb 12 22:36:28 IST 2025 NEUTRAL CITATION C/CRA/46/2025 ORDER DATED: 11/02/2025 undefined moreover the judgment and decree passed by the First Appellate Court is legal and proper. Moreover, in exercise of powers under the revisional jurisdiction, in the present proceedings, the High court cannot exercise its power as an Appellate power to reappreciate or reassess the evidence for coming to a different finding of facts as the revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as the Court of the First Appeal.
12. In view of the said facts, the present Civil Revision Application is dismissed.
(SANJEEV J.THAKER,J) Manoj Kumar Rai Page 8 of 8 Uploaded by MANOJ KR. RAI(HC01072) on Wed Feb 12 2025 Downloaded on : Wed Feb 12 22:36:28 IST 2025