Gujarat High Court
Tapu vs Koli on 16 July, 2010
Author: H.B.Antani
Bench: H.B.Antani
Gujarat High Court Case Information System
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SA/75/1981 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 75 of 1981
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.B.ANTANI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
TAPU
KUKA - Appellant(s)
Versus
KOLI
NARAN PUNA - Defendant(s)
=========================================================
Appearance
:
MR
NS DESAI for
Appellant
MS DAKSHA PANDYA for
Respondent
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 16/07/2010
ORAL
JUDGMENT
This is an appeal preferred by the appellant-original defendant under Section 100 of Code of Civil Procedure, 1908 being aggrieved by the judgment and decree dated 6th January 1981 passed by the District Jude, Amreli in Regular Civil Appeal No. 5 of 1979 whereby the learned District Judge dismissed the appeal and confirmed the judgment and decree dated 30.11.1978 passed by the learned Civil Judge [J.D.] Kodinar in Regular Civil Suit No. 445 of 1976.
2. Facts of the case in brief, are that the appellant-original defendant is tenant of suit house whereas the respondent-original plaintiff is the owner of the suit house situated in village Harmadia of Kodinar taluka. The respondent-plaintiff filed the Regular Civil Suit No. 445 of 1976 against the present appellant-original defendant for actual and vacant possession of the suit house together with mesne profits from the date of the suit till delivery of possession on the ground of non-payment of rent by the defendant to the plaintiff.
3. The said Regular Civil Suit No. 445 of 1976 was heard and decided by the learned Civil Judge [J.D.], Kodinar vide judgment and decree dated 30.11.1978 whereby, the learned trial Judge decreed the suit of the plaintiff and directed the defendant to hand over possession of the suit premises to the plaintiff.
4. Being aggrieved by the said judgment and decree dated 30.11.1978 passed by the learned Civil Judge [J.D.], Kodinar in Regular Civil Suit No. 445 of 1976, the appellant-defendant preferred Regular Civil Appeal No. 5 of 1979 in the court of District Judge, Amreli, who, vide judgment and order dated 6.1.1981 dismissed the appeal.
5. Being aggrieved by the said judgment and order dated 6.1.1981 passed by the District Judge in Regular Civil Appeal No. 5 of 1979, the appellant-original defendant has preferred the present appeal.
6. The appeal is admitted by this Court on 13.3.1981 on the following substantial questions of law.
[1] Whether the lower courts were right in coming to the conclusion that the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 does not apply to the suit premises?
[Reference may be made to the Notification issued by the Government of Gujarat, Sachivalaya, Gandhinagar, dated 26th March, 1980 No. GH/J/37/80/BRA:1877/4681/N[i] issued in Part IVB, Pages 279 and 280 of Gujarat government Gazette, dated 3rd April, 1980].
[2] Whether the lowers courts erred in not taking into account the contention about the applicability of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 to the suit premises as the population of the village Hamadia is more than 5,000[according to last census] vide State Government Notification No. GH/J/9/78[A] BRA/1871/G/1998/N[I], dated 4.3.1978?
[3] If the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 apply, is the plaintiff entitled to recover possession of the suit premises?
7. Mr N.S. Desai, learned advocate appearing for the appellant submitted that the courts below have committed egregious error in not holding that population of village Harmadia is more than 5000 and the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 [ Bombay Rent Act for short] were applicable to residential premises of Harmadia and therefore, the suit was not maintainable under the ordinary law. Learned courts below further erred in not holding that as the suit was not filed under Section 28 of the Bombay Rent Act, it was liable to be dismissed.
8. Ms Daksha Pandya, learned advocate appearing for the respondent submitted that both the courts below have committed no error in the judgement impugned and that there is no infirmity in the judgment and order which would call for interference by this Court under Section 100 of the CPC. Learned advocate submitted that the judgment and order of the appellate court as well as the judgment and decree of the trial court are legal and valid and require to be confirmed.
9. I have heard Mr N.S. Desai, learned advocate for the appellant as well as Ms Daksha Pandya, learned advocate for the respondent at length and in great detail. During the course of the hearing, I have perused the notification issued by the State Government dated 19.3.1980 wherein it has been stated that; in exercise of powers conferred by sub-sec.[3] of Section 2 and sub-section [1a] of section 6 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the Government of Gujarat hereby:- [i] extends all the provisions of part-II of the said Act, with effect on and from the date of publication of this notification in the Official Gazette to the areas of All Gram Panchayats, Nagar Panchayats, Nagar Palikas and Municipal Corporations in the Gujarat State; and [ii] specifies that the provisions of para-II of the said Act, shall with effect on and from the date of publication of this notification in the Official Gazette, apply to the premises let to the Government of Gujarat or to any Gram Panchayat, Nagar Panchayat, Nagar Palika, Municipal Corporation or a Local authority in the areas of Gujarat State, for the purpose of setting up of an office, public Hospital, dispensaries or godowns except the areas in which the provisions of part-II of the said Act are applied for these purposes. Learned advocate also produced an extract from Census 1971, District Census Handbook, Amreli District, showing the population of Harmadia which was below 5000, i.e. 4424. Thus, considering the aforesaid aspect, since the population of village Harmadia at the relevant point of time was less than 5000, provisions of the Bombay Rent Act would not be applicable to the facts of the present case. Considering the reasons assigned by the courts below, I am of the view that no infirmity is committed by the courts below which would call for interference by this Court while exercising powers under Section 100 of the CPC. I therefore answer substantial question of law no.1 in the affirmative and hold that the courts below were right in coming to the conclusion that the Bombay Rent Act does not apply to the suit premises. As regards substantial question of law no.2, I answer it the negative and hold that the lower courts did not err in not taking into account the contention about the applicability of the Bombay Rent Act to the suit premises. In view of the answer to substantial questions of law nos. 1 and 2 substantial question of law no.3 does not survive.
10. For the foregoing reasons, as the appeal is devoid of merit, the same is liable to fail and it is hereby dismissed.
[H.B. ANTANI, J.] pirzada/-
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