Gujarat High Court
Natvarlal Virjibhai (Since Decd ... vs Arunbhai Haridas Tanna on 11 September, 2003
Equivalent citations: (2004)1GLR370, 2004 A I H C 586, (2004) 1 GUJ LR 370, (2004) 1 RENCR 422, (2004) 2 GCD 1272 (GUJ)
JUDGMENT Kundan Singh, J.
1. Rule. Mr RC Kakkad waives service of Rule.
2. The respondent-landlord filed Civil Suit No.585 of 1985 for possession and for recovery of arrears of rent. For that purpose, notice dated 22.6.1985 was sent which was served on the petitioner-tenant on 26.6.1985 i.e. Ex.40. It is stated that no reply was filed by the petitioner in the trial Court disputing the rent as standard rent. Thereafter, the written statement was filed. In the written statement, the petitioner has raised a dispute regarding the standard rent and the learned counsel appearing for the petitioner in the trial Court filed an application Ex.32 under Section 11(3) of the Bombay Rent Act for fixing or determining interim standard rent on 4.1.1986. It is not disputed that the learned counsel who filed the application for fixing the standard rent was selected in the Judicial Department and he left the practice. The application Ex.32 was decided by the trial Court on 2.2.1987 whereby the defendant-petitioner was directed to deposit the entire arrears of rent at the rate of Rs.40/-p.m. on or before 4.3.1987 and to pay or deposit regularly the amount of monthly rent. On 29.8.1987, the trial Court passed an order directing the defendant-tenant to comply with the order dated 2.2.1987 on or before 10.9.1987. The respondent filed an application Ex.34 on 29.8.1987 with the prayer to strike out the defence of the petitioner-tenant on the ground that the order dated 2.2.1987 has not been complied with and no amount of rent was deposited by him. The trial Court passed an order on 10.9.1987 striking the defence of the defendant-petitioner. It is also stated that some application was also filed by the landlord for expeditious hearing and decision. The trial Court decreed the suit vide judgment and decree dated 4.8.1989. It is stated that the landlord filed an Execution Application No.113 of 1989 on 30.12.1989 but as the petitioner had filed an appeal, the execution proceedings were not proceeded further due to pendency of the appeal. During the pendency of the appeal, ad-interim order on Ex.6 was passed on 11.1.1991 directing the stay of execution of the decree passed on Regular Civil Suit No.585 of 1985 by the learned Joint Civil Judge (JD), Junagadh to the extent of possession on the appellant depositing the entire arrears of rent within five weeks from the date of the order and to deposit rent regularly as and when falling due and also to file an undertaking before the trial Court and also with a direction not to transfer the suit property by sale, gift, exchange or in any other manner or alienate it till further orders. He was also required to file an affidavit to the effect that he is in exclusive possession of the disputed suit premises. The lower Appellate Court dismissed the appeal vide judgment and order dated 24.10.2001 confirming the findings arrived at by the trial Court. Hence, this revision application has been filed for challenging the judgment and decree passed by the Courts below.
3. The main contention of the learned counsel for the petitioner is that no doubt application Exh.32 was filed by the learned counsel appearing for the defendant-tenant on 4.1.1986 and it was also signed by the defendant-tenant but thereafter the counsel for the petitioner was selected as a Judge in the Judicial Department and he did not inform the petitioner regarding his leaving the profession as an advocate and joining the service in the judicial department and for engagement of another counsel. Hence the petitioner was not aware of the proceedings of the suit pending before the trial Court and the proceedings of the trial Court continued ex-parte after 4.1.1986. When the order dated 2.2.1987 was passed, the petitioner was not aware of this order nor any notice was sent to the petitioner either by the trial Court or by the landlord. The next order dated 29.8.1987 was passed but the petitioner was not aware regarding that order also as the petitioner had no knowledge about the proceedings going on against him ex-parte. The application Exh.34 was also moved by the landlord on 29.8.1987 for striking out the defence of the defendant-tenant. No copy or notice was issued to the petitioner of that application. Hence the petitioner was not aware about the filing of that application Exh.34 and subsequently the order was passed on 10.9.1987 striking the defence of the defendant-tenant. As the proceedings were going on ex-parte, the petitioner was also not aware of the said order dated 10.9.1987. As such, the whole proceedings continued against the petitioner ex-parte. Neither the landlord informed the petitioner nor the Court issued any notice to the petitioner for engaging another counsel though the trial Court in the order dated 2.2.1987 has observed that Shri AN Chandegar learned advocate for the defendant having been appointed in the Judicial department has not remained present on behalf of defendant No.1 for hearing the application. From this observation, it appears that the trial Court was aware of the fact that the advocate of the defendant-tenant has been selected and appointed in Judicial Department even then no notice has been issued to the petitioner for engaging another counsel. Both the Courts below have not cared to consider the relevance of the absence of the petitioner's counsel at the time of hearing of the said proceedings. The learned counsel also pointed from the judgment of the lower Appellate Court that nowhere the lower Appellate Court has considered the aspect that the petitioner's counsel was selected and appointed as a Judge in the Judicial Department and it has not been considered necessary to issue a notice intimating that no one is appearing on his behalf and he would be at liberty to engage another counsel or to argue himself in person. Though the petitioner has taken three grounds narrating the fact in the memo of the appeal itself that the petitioner's advocate was selected and appointed as Judge in the Judicial Department hence the parvi on his behalf could not be done, the lower Appellate Court has not recorded any finding that what would be the effect and what would be the result of non-appearance of the learned counsel for the defendant-tenant during the pendency of the proceedings. Had it been so, the lower Appellate Court could have remanded the matter to the trial Court for giving an opportunity of hearing to the defendant-tenant for placing his case and for hearing but the Appellate Court has not considered at all the relevance of the opportunity to be given to the defendant-tenant for compliance of the orders dated 2.2.1987, 29.8.1987 and 10.9.1987 and to pass appropriate orders in the facts and circumstances of the case and as such the whole proceedings of the suit are vitiated for non-compliance of the principles of natural justice by not affording an opportunity of hearing to the defendant-tenant.
4. On the other hand, the learned counsel for the respondent-landlord contended that application Ex.32 under Section 11(3) of the Bombay Rent Act moved by the petitioner was not maintainable in the eye of law as it is not moved within the specified time provided in Explanation to Section 12 and he also submitted that after having recorded the findings of facts by the trial Court and confirmed by the lower Appellate Court, this Court has no jurisdiction to interfere or reverse those findings after appreciating or reappreciating the evidence on record particularly when two views are possible and one view has already been taken by the trial Court as per the facts and circumstances of the case and that view has already been confirmed by the lower Appellate Court.
The learned counsel for the respondent-landlord also relied on the following decisions:-
(i) The decision of the Hon'ble Supreme Court in the case of Harvanshlal Jagmohandas vs. Prabhudas Shivlal reported in 1977 GLR 157, wherein the Hon'ble Supreme Court has confirmed the view earlier taken by the Apex Court in the case of Dhansukhlal Chhaganlal vs. Dalichand Virchand (AIR 1968 SC 1109) that the tenant made no payment within the period of one month of the notice of ejectment and further that although in his written statement he raised a dispute about the standard rent he made no application in terms of Section 11(3) of the Act. The tenant can claim protection from the operation of Section 12(3)(a) of the Act only if the tenant makes an application within one month of the service of the notice terminating the tenancy by raising a dispute as to standard rent.
(ii) The decision of this Court in the case of Jenabai Mohmed vs. Gulamabbas Ismailji & Ors. reported in 1971 GLR 819 wherein it has been held that, a tenant who has been given notice in regard to arrears of rent for a period over six months, as contemplated by Section 12(2) of the Rent is entitled to protection even though he has committed a default, if he satisfies the conditions of standard rent and the tenant had filed an application for fixation of the standard rent under Section 11 of the Rent Act, prior to the expiry of the period of one month after the receipt of the notice, the case falls under Section 12(3)(b) of the Act. The tenant may qualify for protection of his occupation which is to be done by proving his readiness and willingness to pay the standard rent and permitted increases. That could be proved; (1) by obtaining the order of the Court fixing the rate of the standard rent and complying therewith, or (2) by complying with the Explanation to Section 12 or otherwise.
(3) The decision of this Court in the case of Rameshchand P. Panchal vs. Vithalbhai P Patel reported in 1996 (1) GLH 253 wherein it has been held that, if the tenant receives from his landlord a notice under Section 12(2) he could apply to the Court for fixation of the standard rent or permitted increases and requests for an order to enable him to deposit into the Court or to pay to the landlord such rent or permitted increases as the Court may specify by an order. Within one month after the notice under Section 12(2) from the landlord the tenant is obliged to apply to the Court for fixation of the standard rent and also for an immediate orders specifying the amount of rent and permitted increases to be paid by him pending final decision of his application. The Court has also jurisdiction to fix the interim rent under Section 11(3) whether the application for standard rent is preferred before or after the receipt of the notice under Section 12(2). The tenant did not move the Court for interim order. Thereafter the landlord moved the Court under Section 11(4) and the Court fixed the interim standard rent of Rs.250/- per month and directed the tenant to pay the arrears of rent then due within the stipulated time and thereafter to pay regularly. This direction of the Court is not complied with and, therefore, it could safely be concluded that the tenant was not ready and willing to pay the rent.
It is also held that, the jurisdiction in a revision under Section 29(2) is very much circumscribed. Though the powers of revisional court under Section 29(2) are wider than the powers under Section 115 of the Civil Procedure Code, 1908, the revisional power or the jurisdiction can only be exercised for a limited purpose with a view to satisfying itself that the impugned order or decision or decree is according to law or not. In that respect, the Apex Court has already taken a view in the case of Bhaichand Ratamshi vs. Laxmishanker Tribhovan reported in AIR 1981 SC 1690. The revisional court can interfere only when it finds that the impugned order or decree is not "according to law". Even when two views are possible the High Court cannot substitute its views in a revision. The view in impugned order or decree is possible, then it is not permissible for the High Court to take a different view and substitute its findings in place of the view well expounded and enunciated by the Apex Court in Helper Girdharbhai vs. Saiyed Mohmad Mirasaheb Kadri and others, AIR 1987 SC 1782.
(iv) The decision of the Hon'ble Supreme Court in the case of Bhaichand Ratanshi vs. Laxmishanker Tribhovan reported in AIR 1981 SC 1690 wherein it has been held that if the finding of the lower Courts as to comparative hardship was neither perverse nor erroneous, the High Court cannot interfere in the revisional jurisdiction.
(v) The decision of the Hon'ble Supreme court in the case of Helper Girdharbhai vs. Saiyed Mohmad Mirasaheb Kadri & Ors., reported in AIR 1987 SC 1782 wherein it has been held that in the revisional jurisdiction, the High Court, in order to warrant interference, the decision must be such a decision which no reasonable man could have arrived at. Such a decision does not lead to a miscarriage of justice. But, in the guise of revision substitution of one view where two views are possible and the Court of Small Causes has taken a particular view, is not permissible. If a possible view has been taken, the High Court would be exceeding its jurisdiction if it substitutes its own view in place of that of the courts below because it considers it to be a better view.
(vi) The decision of the Hon'ble Supreme Court in the case of Patel Valmit Himatlal Y Ors. vs. Patel Mohanlal Muljibhai (Dead) through LRs., reported in 1998 (2) GLH 736 wherein it has been held that the revisional powers should be exercised only for a limited purpose of correcting a substantial error of low which goes to the root of the decision; High Court cannot substitute its own finding on a reappraisal of evidence, even though different view is possible; On facts, findings of the courts below were correct and High Court came to a wrong conclusion on reappreciation of evidence.
(vii) The decision of this Court in the case of Natversinh Nathusinh Solanki vs. Kikiben Chhaganlal Mistri reported in 1996 (2) GLH 168 wherein it has been held that the revisional power can only be exercised for a limited purpose of satisfying itself that the impugned order or decision or decree is according to law or not relying on the case of Bhaichand Ratanshi vs. Laxmishanker Tribhovan, AIR 1981 SC 1690; When two views are possible High Court cannot substitute its view for that of the trial court, relying on the decision of Helper Girdharbhai vs. Saiyed Mohmad Mirsaheb Kadri and ors. AIR 1987 SC 1782.
(viii) The decision of this Court in the case of Chudgar Chunilal Popatlal vs. Khatri Harilal Ramjibhai reported in 2001 (1) GCD 25 (Guj) wherein considering the scope of revisional jurisdiction, this Court has held that Appellate Court reappreciated the evidence on record - Whether first appellate Court could interfere with the findings of trial Court - Held that, first appellate Court is the final Court of facts -Appellate Court's findings cannot in any manner be said to be contrary to the evidence on record or illegal; Findings of first appellate Court could not be disturbed by High Court under revision - Hence Revision application dismissed for want of merits.
(ix) The decision of this Court in the case of Deceased Jagatsinh Fatehsinh through heirs & L.R. vs. Parvatiben Harishchandra through Heirs & L.R. reported in 2000 (1) GLH 323 wherein it is held that the revisional jurisdiction of the High Court is extremely limited. The Supreme Court has laid down the scope and powers of the High Court while entertaining such revisions under Section 29(2) of the Bombay Rent At. The Supreme Court in the case of Patel Valmik Himatlal & Ors. vs. Patel Mohanlal Muljibhai 1998 (2) GLH 736 = AIR 1998 SC 3325 while approving and reiterating the principles laid down in its earlier decision in the case of Helper Girdharbhai vs. Saiyad Mohmad Mirsaheb Kadri (AIR 1987 SC 1782), held that High Court cannot function as a court of appeal, cannot appreciate the evidence on record, cannot discard concurrent findings of fact based on evidence recorded by the Courts below, and cannot interfere on grounds of inadequacy or insufficiency of evidence, and cannot interfere, except in cases where conclusions drawn by the courts below are on the basis of no evidence at all, or are perverse. A different interpretation on facts is also not possible merely because another view on the same set of facts may just be possible.
(x) The decision of this Court in the case of Sheth Jivaji Rajbhai & Sons vs. Patel Hatimbhai Nazarali & Ors. reported in 1998 (2) GLH 535 wherein this Court has held that the revisional court on reappreciation of evidence cannot substitute its own findings of fact in place of those recorded by lower Courts.
(xi) The decision of this Court in the case of Kasambhai Ismailbhai through heirs and legal representatives vs. Bavabhai Karasanbhai Patel reported in 1998 (2) GLH 606 wherein it is held that interference in revisional jurisdiction under Section 29(2) of the Bombay Rent Act in a concurrent finding of fact will be totally uncalled for.
(xii) The decision of this Court in the case of Kansara Vrijlal Gugaldas and anr. vs. Vinod Nyalchand Doshi & Ors. reported in 1996 (2) GLH (UJ) 1, wherein it is held that no interference is warranted under revision if principles of law have been correctly borne in mind by the lower court and all material and relevant facts considered.
(xiii) The decision of this Court in the case of Thakoorani Foolkunverba Ranjitsinhji vs. Smt. Indumati Kantilal Parikh reported in 1996 (2) GLR 512 wherein it is held that the eviction decree as recorded by the trial Court in respect of the demised premises against the tenant on the ground of non-payment of rent under Section 12(3)(b) came to be confirmed by the appellate Court. This is a pure question of finding of fact. The question of finding of fact cannot be reappraised or re-examined in a revision under Section 29(2) of the Rent Act unless it is found to be perverse or illegal.
(xiv) The decision of this Court in the case of Naniben wd/o Sukhabhai Revabhai & Ors. vs. Gamanlal Ishverlal Gandhi & Co. reported in 1996 (1) GCD 182 (Guj) wherein it is held that the finding of fact recorded by the courts below, concurrently and consistently cannot be reexamined and reappraised in a revision under Section 29(2) of the Rent Act like the first appeal.
(xv) The decision of this Court in the case of Santokbai Narbheram Barot vs. Ramdas Dwarkadas reported in 1996 (2) GLR 80 wherein it has been held that it is a settled proposition of law that the tenant is liable for ejectment under Section 12(3)(a) of the Bombay Rent Act if the following requirements are established:
(a) That the rent is payable by month;
(b) Amount of the standard rent and permitted increases is not disputed;
(c) Standard rent or permitted increases are unpaid for six months or more;
(d) That the tenant has received notice under Section 12(2); and
(e) Tenant has neglected to pay the standard rent and permitted increases for such period within a period of one month after receipt of the notice under Section 12(2) of the Bombay Rent Act.
The powers of this Court under Section 29(2) are very much circumscribed and the Court has to see as to whether the impugned judgment and decree rendered is according to law or not. The concurrent finding by lower Courts regarding non-user of the premises ; nothing has been shown from record which would warrant interference the revision application was dismissed.
(xvi) The decision of this Court in the case of NM Gondiya vs. Kolte Electroplaters reported in 1996 (1) GCD 550 (Guj) wherein it is held that finding of Appellate Court against eviction under Section 29(2) in revision - Reappraisal and reassessment of evidence is not permissible Apart finding of fact by Appellate Court is found to be justified - Revision Application was dismissed.
(xvii) The decision of this Court in the case of BD Sahastrabuddhe through his Heirs Balkrishna & Ors. vs. Madhusudan Mahadev Dev reported in 1996 (1) GLR 428 wherein it is held that the High Court exercising the revisional jurisdiction under Section 29(2) cannot reappreciate finding of fact recorded by trial court. Revisional jurisdiction can be exercised only with a view to see that impugned decision is according to law. When two views are possible, revisional Court cannot substitute its own views.
(xviii) The decision of this Court in the case of Nitinkumar Sakalchand Shah vs. Chandrahash Punjalal Parikh reported in 1997 (1) GLR 670 wherein it is held that if new and subsequent events have occurred during the pendency of the revision which have material bearing and which are relevant and which Courts thinks them necessary for substantial justice, then in that case, the Court can permit additional evidence to be produced on the analogous principles of Order 47, Rule 27 or under Section 151 during the pendency of the revision and the revisional Court will have to consider whether for proof of such event, the matter should be remanded and if yes, to which Court. Ordinarily, the revisional Court must confine itself to the circumstances of the case on record when the judgment under appeal was delivered. However, in exceptional cases, even if need be, exercising analogous provisions of Order 41, Rule 27 read with Section 151 of the Code, additional evidence in pursuance of the requirement of the Court and not because the party desires to produce for his benefit, could be considered and in very exceptional cases, may be permitted to be produced. It could be accepted in rarest of rare cases. It is further held that the Court exercising the revisional jurisdiction cannot reanalyse the evidence and come to a different conclusion on facts substituting its own view when two views are possible.
It is also pointed out by the learned counsel for the respondent that the petitioner filed an application Ex.32 on 4.1.1986. Thereafter, the petitioner had not remained present in the entire proceedings before the trial Court. Hence it will be deemed that he was not interested to proceed with the matter.
The learned counsel for the respondent also points out from the judgment of the lower appellate Court that the plaintiff has established his case that defendant No.1 has acquired suitable residence and vacated the suit premises and does not use the suit premises and it is also an established fact that defendant No.1 does not use the suit premises for residence for more than six months from the commencement of the suit. It is, therefore, submitted that the findings of facts have been recorded by the trial Court and the same have been confirmed by the lower Appellate Court, as stated above, this Court in the revisional jurisdiction, has no jurisdiction to reverse those findings recorded by the trial Court and confirmed by the lower appellate court.
5. I have carefully considered the contentions raised by the learned counsel for the parties. It is a case in which the tenant-defendant engaged his lawyer Mr AN Chandegar and filed an application Ex.32 under Section 11(3) for fixing interim standard rent for the purpose of depositing the same in the Court. It is observed by the trial Court in the order dated 2.2.1987 below Ex.32 that thereafter Shri Chandegar learned advocate for the defendant after having appointed in the judicial department has not remained present on behalf of defendant No.1 for hearing of the application. From the aforesaid observation made by the trial Court in the order dated 2.2.1987 it appears that the defendant-tenant had engaged his counsel and he presented an application for fixing the standard rent of the premises. Thereafter, his advocate was appointed as a Judge in the judicial department and he had not remained present in the entire proceedings.
6. In the memo of appeal filed by the petitioner before the lower appellate Court it is clearly mentioned that neither his advocate sent any information that he has been appointed in the judicial department and he left the practice, advising him to engage another counsel nor the trial Court, knowing the fact that the learned counsel for the defendant has already left the practice having been appointed as a Judge in the judicial department, sent or issued any notice to the petitioner for engaging another counsel. It is also pointed out that application Ex.34 was moved by the plaintiff-landlord on 29.8.1987, a copy of the same was also not issued or given or handed over to the petitioner prior to filing of that application and even after filing, no copy of that application was served. According to the learned counsel for the petitioner, the petitioner was not having any knowledge about any of the orders passed against him, no notice was issued by the trial Court to him for engaging another counsel nor his counsel had informed him that he has left practice and joined the service.
7. It is pertinent to note that sometimes advocates inform the party that whenever his presence would be needed, he would be informed otherwise his presence is not required in the court proceedings. In the present case, there is nothing on record to show that the petitioner was having the knowledge about the court proceedings after 4.1.1986. It is undisputed fact that the Court proceedings continued ex-parte after 4.1.1986. It appears that the petitioner has not attended the Court proceedings after 4.1.1986. He came to know about the judgment and decree only when the execution application was filed against him and he received the notice of execution proceedings. Therefore, he filed appeal against the judgment and decree of the trial Court before the lower appellate Court. Neither the trial Court nor the lower appellate Court has discussed or dealt with the fact that the counsel for the petitioner had left the practice and joined service. Even no notice was sent to the petitioner for engaging another counsel and the petitioner was not having any knowledge of the further proceedings of the case in the trial Court.
8. As nothing has been discussed by any of the Courts below, it gives rise to a question - whether the petitioner had been afforded reasonable opportunity of hearing in the suit proceedings. In that respect, there is nothing on record to show that the petitioner had been afforded a reasonable opportunity to contest the proceedings before the trial Court. It appears that he had no knowledge about the proceedings as well as the orders passed against him. The principles of natural justice require that a reasonable opportunity should be afforded to the party concerned before giving any decision adverse to the said party. In the present case, it does not appear from the record at all that reasonable opportunity was given to the petitioner or even the petitioner was given notice of the orders dated 2.2.1987, 29.8.1987 and 10.9.1987. The findings recorded by the trial Court on the issues regarding recovery of standard rent, usual rent demanded by the landlord or non-user of the property or subletting of the property, depends upon the evidence to be led by the parties and material produced by the parties. In the present case, the petitioner was not given sufficient and reasonable opportunity of hearing and even to lead the evidence and produced any material in support of his case. As such, the principle of natural justice of providing an opportunity of hearing is violated in the present case and both the Courts below have not dealt with the same at all. The findings recorded by the trial Court ex-parte only on the material or evidence of the plaintiff, at this stage, cannot be said to be justified in absence of reasonable opportunity to the petitioner and those findings cannot stand in view of the violation of principles of natural justice.
9. No doubt, in revisional jurisdiction, this court has very limited power only as to say that substantial error committed by the Court below. This Court has no power to appreciate or reappreciate and analyse the evidence on record but it is a case in which opportunity has not been given. In absence of the opportunity to the petitioner, the findings of fact recorded ex-parte cannot be sustained in the eye of law.
10. So far as the argument of the learned counsel for the respondent regarding maintainability of application Ex.32 moved under Section 11(3) of the Act on 4.1.1986 is concerned, no doubt the explanation provides period in which that application could be moved but in the facts and circumstances of a given case, the Court can extend that period. Moreover, in some of the decisions, it has been observed that the dispute regarding the standard rent can be raised either by way of reply to the notice within a period of one month or by an application moved by tenant under Section 11(3) of the Act specifying the time for that purpose. Even then the Court can extend that time for moving that application in the facts and circumstances of the case. As this Court is not considering that fact at this stage, it will be open for the trial Court to consider the same, if raised by either of the party.
11. Considering the facts and circumstances of the present case, this revision application deserves to be allowed and the same is accordingly allowed and the judgment and decree passed by the Courts below, which are not sustainable in the eye of law, are set aside and the matter is remanded to the trial Court to proceed with the case after issuing notice to both the parties and giving an opportunity of leading evidence or producing material on record to prove their case in accordance with law. As the suit is of the year 1985, the trial Court is directed to give priority to the suit and conclude the proceedings of this case within a period of four months from the date of receipt of writ of this Court. Both the parties are directed to extend their full cooperation in leading their evidence and producing their material on record for the purpose of proceeding with the case expeditiously and for its expeditious disposal. Registry is directed to issue a writ of this order to the trial Court forthwith.
12. The civil revision application is accordingly allowed. Rule is made absolute.