Gujarat High Court
Umarbhai Sharfuddin Kansara vs Decd Amina W/O Ibrahim Shahmohammad … on 4 March, 2025
NEUTRAL CITATION
C/CRA/81/2025 CAV JUDGMENT DATED: 04/03/2025
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Reserved On : 27/02/2025
Pronounced On : 04/03/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 81 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
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Approved for Reporting Yes No
Yes
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UMARBHAI SHARFUDDIN KANSARA
Versus
DECD AMINA W/O IBRAHIM SHAHMOHAMMAD NOOR DIED & ORS.
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Appearance:
MR BJ TRIVEDI(921) for the Applicant(s) No. 1
MS JIGNASA B TRIVEDI(3090) for the Applicant(s) No. 1
MR J F MEHTA, ADVOCATE for the respondent
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
CAV JUDGMENT
1. The present revision application has been filed under Section
29(2) of the Gujarat Rents, Hotel and Lodging House Rates Control
Act, 1947 (for short ‘the Rent Act‘) challenging the judgment and
decree dated 29.06.2024 passed by Appellate Bench No.1, Small
Causes Court, Ahmedabad in Civil Appeal No.171 of 2000 whereby
the judgment and decree dated 07.08.2000 passed by the Small
Causes Court No.12 in HRP Suit No.2422 of 1991 has been partly
modified.
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2. For the sake of convenience the parties are referred to as they
are stated before the trial Court.
3. The brief facts leading to the filing of the present revision
application are as under:
3.1 It is the case of the plaintiff before the trial Court that
property bearing survey no.2880 and 2880/1 with Municipal Census
No.1217 of 2012, consisting of one room at first floor and small
Osri on the ground floor were let to the defendant by
Mohmmadhusen Gulambhai Mansuri by a document executed on
15.11.1991 at a monthly rent of Rs.50/-. The said premises was to
be used by the defendant for residential purpose and that the
defendant was not entitled to transfer or sublet the suit premises to
any other party. It is the case of the plaintiff that the original
defendant no.2 is residing at her matrimonial home and defendant
no.3 is the husband of deceased Johrabibi who is residing at
Rajasthan. The said suit was filed by the plaintiff on the ground
that the defendant has made and erected unlawful structure and
alteration without plaintiff’s consent and the same cannot be
removed without causing serious damage to the premises and that
the defendant has acquired suitable residence. The issues that were
framed were framed and answered vide Exh.47 which reads as
under:
“(1) Whether this court has jurisdiction to hear and
decide this suit?
(In affirmative)
(2) Whether the plaintiff proves the terms of tenancy
with the defendant? (In affirmative)Page 2 of 31
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(3) Whether the defendant has made or directed
unlawful structure or alternations in the suit
premises without plaintiff’s consent which cannot be
removed without causing serious damage to the
premises? (In negative)
(4) Whether the defendant has acquired suitable
residence ?
(In affirmative)
(4)A What is the standard rent of suit premises ? (Rs.30/-
per month)
(4)B What is the subject matter of lease? (As per
discussion )
(4)C What is the nature of document dated 12.03.90 and
30.06.90 and 11.11.68 and 15.11.91 and what is its
legal effect? (As per discussion )
(4)D Whether the plaintiff proves that defendant had been
inducted by mortgagee of suit premises as alleged?
If yes, what is its legal effect? (In the negative)
(4)E Whether plaintiff proves that defendant has denied
the title of plaintiff ? If yes, what effect? (First part
is in negative and second part as per final order.)
(5) Whether the defendant is guilty of conduct which is
amounting to nuisance and annoyance to the
adjoining r neighbouring occupiers as alleged ? (In
negative)
(6) Whether the conduct of the defendant amounts to
change of user ? (In negative)
(7) Whether plaintiff proves that defendant has
committed breach of order of injunction issued by
this Court? (In negative)
(8) If yes, what order ? (Does not survive)
(9) What order and decree ? (As per final Order)”
3.2 The suit was decreed on the finding of Issue no.4 and in the
plaint at para:3 it was the plaintiff’s case that the defendant has
purchased residential premises at Biscuit Gali, Pankor Naka near the
suit premises and that the said premises is a huge premises and the
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same is a suitable alternative accommodation available to the
defendant and, therefore, plaintiff is entitled to possession of the
suit premises. The defendant had filed written submissions vide
Exh.22 and subsequent to the amendment of the plaint, the written
statement to the amended plaint was filed vide Exhs.72 and 73,
wherein it is categorically denied that the defendant has purchased
any property as mentioned at para:3 and has also denied the fact
that the said property is in possession of the defendant and has also
been denied that the said property is a suitable property which has
been alleged to be acquired by the defendant. The plaintiff
examined himself vide Exh.48. The defendant examined himself vide
Exh.156 and after going through the documentary evidence, the oral
evidence and giving findings on all the issues, the trial Court passed
a judgment and decree of eviction on the ground of Section 13(1)
[alternative accommodation] of the Rent Act and the trial Court had
also held that as the defendant has clearly stated that there does
not exist the relationship of landlord and tenant between the parties
and therefore defendant has no right to any protection as
guaranteed under Section 12(1) of the Rent Act, aggrieved by the
said judgment and decree, the defendant tenant filed Regular Civil
Appeal No.171 of 2000 before the Appellate Bench of Small Causes
Court, Ahmedabad and by judgment and order dated 29.06.2024 the
said appeal was partly allowed and the findings of issue No.4 (e)
were set aside, while the rest of the judgment and decree were
confirmed and upheld. Hence, the present Civil Revision
Application.
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SUBMISSIONS OF THE PETITIONER – DEFENDANT / TENANT :
4.1 Learned advocate for the defendant has mainly argued that
looking to the facts of the present case and the amended plaint, the
defendant has not acquired any premises after institution of the suit
nor has the plaintiff proved the fact that defendant has purchased
any alternative premises after the plaintiff purchased the suit
property in the year 1991.
4.2 It has also been argued by learned advocate for the defendant
that attornment notice has not been served to the defendant. It has
also been argued that though the plaintiff has clearly stated in
written statement that defendant does not have any alternative
premises and the plaintiff has also not mentioned and or given any
details and or particulars about the purchase of the premises at
Buscuit Gali, Pankor Naka, the trial Court and the appellate Court
could not have passed the judgment and decree on the ground of
defendant having acquired alternative accommodation.
4.3 The learned advocate for the defendant has also argued that if
the oral evidence of defendant no.1 at Exh.156 is perused, in his
cross-examination, the defendant has categorically stated that the
property at Biscuit Gali i.e. City Survey No.2824 has been received
by the defendant in the year 1975. The defendant has also denied
the fact that the property situated at Biscuit Gali at Survey No.2824
and the suit property are nearer to each other. The defendant vide
Exh.156 though having admitted that survey no.2824 in Biscuit Gali
comprises of ground floor and above the said ground floor premises
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there are two floors i.e. first and second floor and above that there
is an iron shade. Moreover, the defendant, in his deposition, has
stated that out of the two rooms on the ground floor portion, in
one of the rooms he is doing business of selling medicines.
4.4 Therefore it has been argued that at the time when the suit is
filed the premises at Biscuit Gali was not in possession of the
defendant and after the possession of the said premises at Biscuit
Gali was received from the tenant named Maniyar, who was
occupying the premises as residence, the premises has been given
on rent to Janta Co.Op. Society and, therefore, it has been argued
that there is no alternative premises acquired by the defendant, at
the time when the plaintiff purchased suit property in the year
1991 and, therefore, the trial Court and appellate Court could not
have passed the judgment of decree of eviction on the ground of
Section 13(1)(L) and, there is no alternative accommodation
available to the defendant which has been acquired by the
defendant at the time of filing the suit.
4.5 The learned advocate for the defendant has also argued that
the trial Court and the Appellate Court could not have passed the
judgment and decree of eviction on the basis of consent decree
passed in HRP Suit No.972 of 1983 whereby vide Exh.174 and 175
compromise was entered between the plaintiff and defendant of the
said suit, whereby the possession of the first floor portion of the
premises which was occupied by the tenant Maniyar was handed
over to defendant. It has been argued that the plaintiff in the plaint
has not given any details of which property the defendant has
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acquired and, therefore, the pleadings are very vague and that the
plaintiff has not come with clean hands and no particular has been
mentioned by the plaintiff in the plaint to seek decree of eviction
on the ground that the defendant has acquired alternative suitable
accommodation.
4.6 It has also been argued by learned advocate for the defendant
that though it is case of the defendant that no alternative
accommodation has been acquired by the defendant after filing of
the said suit and that the said property of Biscuit Gali is not
suitable for the present defendant to reside, the trial Court and the
appellate Court has not taken into consideration the said fact and
therefore also the judgment and decree passed by the trial Court
are required to be quashed and set aside. Moreover, it has been
argued that property at Biscuit Gali is in a commercial area and
cannot be used as residential premises and therefore also it cannot
be said that the defendant has acquired an alternative suitable
residence.
4.7 Learned advocate for the defendant has also argued that the
suit is hopelessly time barred as even assuming that the property at
Biscuit Gali has been acquired by the defendant in the year 1984,
the suit has been filed in the year 1991 and, therefore, on the
point of limitation also the trial Court and the appellate Court
could not have granted decree of eviction.
4.8 Learned advocate for the defendant has relied on the
following judgments and in view of the said judgments, it has been
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argued that the judgment and decree passed by the trial Court are
required to be quashed and set aside.
(i) 2012 (4) GLR 3097; Rameshchandra Jamnadas Meswaniya vs.
Jeramdas Jamnadas Meswaniya; and
(ii) 2024 GUJHC 65273; Manjulaben Bhikhabhai Sikligar vs.
Gayatriben Mohitkumar SoniSUBMISSIONS OF LEARNED ADVOCATE FOR RESPONDENT
[ PLAINTIFF – LANDLORD ]
5.1 Learned advocate for the plaintiff has mainly argued that the
judgment and decree that has been passed by the trial Court and
the appellate Court are on the ground that the defendant has
acquired suitable accommodation and the said fact is an admitted
fact which has been admitted by the defendant in his deposition at
Exh.156 and, therefore, the trial Court and the appellate Court have
rightly passed the judgment and decree of eviction on Section 13(1)
(L) of the Rent Act.
5.2 Learned advocate for the plaintiff has also argued that the
plaintiff in the suit has categorically mentioned about plaintiff
acquiring premises at Biscuit Gali, Pankor Naka. Though the said
fact has been denied by the defendant at Exh.22 in his written
statement, but if the entire oral evidence of the defendant is
perused it is very clear that the defendant himself has admitted
about the fact that the property at Biscuit Gali has been acquired
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by the defendant, before the year 1988-89.
5.3 Learned advocate for the plaintiff has also argued that over
and above the said property at Biscuit Gali, the defendant has also
admitted that he has a premises at Pankor Naka, Ramkda Market in
Sheth Virji Ni Pole and has admitted that the said property
belonged to the father of the defendant and after his death the said
premises has been inherited by the defendant and his two sisters
and, therefore, it has been argued that as the father of the
defendant died, the defendant acquired the premises at Pankor Naka
and, therefore, over and above the premises at Biscuit Gali, the
defendant also has anther premises at Pankor Naka which has been
acquired by inheritance by the defendant after the death of his
father around 30 years from the date of deposition in Rent Suit
No.2422 of 1991.
5.4 It has also been argued by learned advocate for the plaintiff
that after producing Exhs.174 and 175 which is a compromise
pursis whereby the plaintiff produced the compromise arrived at
between the defendant and tenant of HRP Suit No.972 of 1983,
wherein the tenant of the defendant Mr.Maniyar handed over the
vacant and peaceful possession of the premises of the first floor
portion of the premises at Biscuit Gali on 21.05.1984 and vide
Exh.156 at para:32 of the said deposition it has been specifically
admitted by the defendant that the defendant had filed HRP suit
No.972 of 1983, to get the possession of the first floor premises
from the tenant Abdullatif Abdulrehman Maniyar and the defendant
herein has also admitted that in view of compromise produced vide
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Exh.175 in HRP No.972 of 1983 the tenant Abdullatif Abdulrehman
Maniyar had handed over the possession of the said premises at
Biscuit Gali to the defendant on 30.04.1984.
5.5 Moreover, it has also been argued that a Co. Op. Society, in
the name of Janta Co. Op. Housing society was formed in the year
1988 and the defendant has stated that the property that has been
acquired from the tenant Maniyar, has been given on rent to Janta
Co.Op. Society. The learned advocate for the plaintiff has argued
that neither any documentary evidence has been proved to show
that the said property which the defendant acquired by way of a
compromise from the tenant Maniyar with respect to the first floor
property at Biscuit Gali has been given on rent to said Janta Co.Op.
Society. Moreover, it has been argued that the said Janta Co.Op.
Society, being the cooperative credit society, there has to be a
document proving the fact that the property has been given on rent
to Janta Co.op. Society, neither any document to show that the
first floor portion of the society was given on rent to Janta Co.op.
Society nor there are any rent receipt to prove and show that Janta
Co.op. Society was ever paying rent to the defendant with respect
to the property at Biscuit Gali and therefore it has been argued that
the said fact of giving the first floor portion of the premises at
Biscuit Gali to Janta Co.op. Society is not true.
5.6 Learned advocate for the plaintiff has also argued that even if
it is presumed that the possession of the first floor portion of
premises at Biscuit Gali premises is with Janta Co.op. Society, the
defendant in his deposition at Exh.156 at para:34 has clearly stated
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that said Janta Co.op. Society is formed in the year 1984 and,
therefore, as possession of the property situated at Biscuit Gali was
received by the defendant in the year 1984, the defendant had
acquired alternative suitable accommodation after coming in force
of Rent Act and, therefore, the plaintiff is entitled for eviction
under the provisions of Section 13(1)(L) of the Rent Act.
5.7 Learned advocate for the plaintiff has also argued that looking
to the facts of the case that the defendant himself has admitted that
since 3 years from giving deposition vide Exh.156, the defendant is
Chairman of Janta Co.op. Society and therefore it cannot be
believed that the property at Biscuit Gali was not in possession of
the defendant.
5.8 In view of the aforesaid facts, it has been argued by learned
advocate for the plaintiff that the the present Civil Revision
Application is not maintainable and is required to be dismissed.
5.9 Learned advocate for the plaintiff has relied on judgment
reported on 2012 and 2024.
6.1 Having heard learned advocate for the parties at length and
having gone through the judgment and decree that has been passed
by the trial Court and the appellate Court and the paper-book
supplied, at the outset, it is required to be noted that plaintiff in
the plaint has filed present suit on the ground of defendant’s
acquiring alternative accommodation at Biscuit Gali, Pankor Naka.
Though the defendant in the written statement has denied the said
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fact but in the cross-examination vide Exh.156 the defendant has
categorically admitted the fact at para:10 that the suit property has
been purchased by the plaintiff by way of registered sale-deed.
Moreover, at para:12 of his cross-examination, the defendant has
admitted that the property at Biscuit Gali was in the name of the
father of the defendant and on the ground floor portion of the said
premises, the defendant is doing business of selling medicines and
during the lifetime of the father of the defendant the possession of
the premises of the first floor portion of the premises was in
possession of the father of the defendant and thereafter the said
premises was given to one Mohmad Mansuri and he is running a
Bank in the first floor portion. Therefore, at para:12 of the
deposition of the defendant, the defendant is mentioning that, (i)
the property at Biscuit Gali belongs to his father, (ii) that on the
ground floor portion he runs medical store and (iii) on the first
floor portion there is a tenant since 1960 and (iv) during lifetime of
father, the possession of the first floor portion was received by the
defendant and the defendant’s father had given first floor portion to
one Mohmamd Mansuri on rent and said Mohmad Mansuri is
running a Bank on the first floor portion. After the said facts are
mentioned at para:12, at para:20 of his deposition, defendant
specifically mentions that the property at Biscuit Gali more
particularly City Survey No.2824 has been received by the
defendant by inheritance and also admits that the property
mentioned at Survey No.2824 at Biscuit Gali is comprising of
ground floor and two floors above the said ground floor. The
defendant also admits that out of two rooms on the ground floor,
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in one room he is doing business of selling medicines. The fact that
the first floor portion was in possession of the tenant named
Maniyar and said Maniyar was residing in the said premises has
also been admitted by the defendant in his cross-examination at
Exh.156 and defendant also admits that the said possession was
received before the year 1988-89. Moreover, the defendant has also
admitted that the possession of premises that was in occupation of
Abdullatif Maniyar – tenant of the defendant, with respect to
property at Biscuit Gali, has been handed over by the tenant
Abdulatif Maniyar to the defendant, and that the HRP Suit No.972
of 1983 was filed by the defendant for recovery of possession from
the said tenant with respect to first floor portion of property at
Biscuit Gali and that by virtue of compromise produced vide
Exhs.174 and 175, the possession of the property in occupation of
Abdullatif Maniyar i.e. first floor portion of the Biscuit Gali was
received by the defendant on or about 30.04.1984.
6.2 It is the case of the defendant that thereafter his father had
given the said first floor portion of Biscuit Gali to a Bank and the
Bank is the tenant of the property. Moreover, the defendant has
also has stated that Janta Co.op Society was established in the year
1988. Therefore, it can be clearly presumed that from the year 1984
i.e. when the possession of the property at Biscuit Gali was received
by the defendant till Janta Co.op. Society is established in the year
1988, the defendant was in peaceful possession of the property. The
fact also remains that no documentary evidence supporting the fact
that the property has ever been given to Janta Co.op. Society has
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been produced by the defendant to show that the property is not in
possession of the defendant and is in possession of Janta Co.op.
Society.
6.3 The fact shall also have to be taken into consideration, that
the defendant himself in his cross-examination vide Exh.156 has
admitted that he is holding a position of Chairman of Janta Co.op.
Society since three years from the date of filing examination-in-chief
i.e. at Exh.156. The defendant has not produced any document to
justify the fact that the property i.e. alternative property i.e. at
Biscuit Gali first floor portion was never in possession of the
defendant and that defendant has handed over the property to Janta
Co.op. Society. It is very difficult to believe that a Bank taking the
property on rent will not execute any document to take the
property on rent and / or there will be no document to prove that
the Bank is paying rent to the defendant. Therefore, it can be
clearly established that entire story with respect to defendant, not
having any alternative accommodation and that property which was
acquired by the defendant by way of compromise at Exhs.174 and
175 in HRP Suit No.972 of 1983, was not acquired by the
defendant and it cannot be believed that defendant does not have
any alternative accommodation. The fact also remains that in the
cross-examination at para:28, the defendant has also admitted about
the property at Pankor Naka, Ramakda Market has been inherited
by the defendant from his father and the fact that the said property
and the property at Biscuit Gali is not suitable for the residence of
the defendant has not been proved by the defendant. In the present
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case, the landlord has pleaded at para:3 that the tenant has suitable
alternative accommodation in Biscuit Gali and Pankor Naka and in
the oral evidence the defendant has admitted the said fact of
acquiring the property at Biscuit Gali and at Pankor Naka by
inheritance, but it is the case of the defendant that after acquiring
the said property at Biscuit Gali, the said property is given on rent
even before filing of the suit of eviction and, therefore, it cannot be
considered as alternative accommodation. The law in this regard is
very clear. Section 13(1)(L) reads thus:
“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 ....
(j) xxx or
(l) that the tenant after the coming into operation of this
Act has built,acquired vacant possession of or been allotted a
suitable residence.
[Explanation. – For the purposes 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.] [This explanation was added
by Gujarat 57 of 1963, section 12(l)(c).]”
6.4 To seek eviction from the tenant on the ground of Section
13(1)(L) the plaintiff landlord has to first prove that after coming
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vacant possession of or been allotted a suitable residence. Therefore,
provisions of Section 13(1)(L) will apply if the defendant has
acquired suitable residence after coming into force of the Rent Act.
The said Act came into force on 13.02.1948. Therefore, if there is
any acquisition that has been made subsequent to the said date i.e.
13.02.1948, it can clearly be said that the defendant has acquired
suitable residence. The words used in Section 13(1)(L) of the Rent
Act are not to be read restrictively to the title but it must be
interpreted in wider sense that the tenant has roof over his head
and, therefore, the defendant has acquired alternative
accommodation after the year 1984 i.e. even prior to the suit is
filed. The fact that the defendant himself has admitted that he
himself had filed the suit against tenant of Biscuit Gali and vide
Exh.174 and 175, compromise was entered into and there is a clear
admission in his cross-examination that the possession of the first
floor of the Biscuit Gali was handed over to the defendant, nothing
else is required to be seen, though it has been argued that the said
property at Biscuit Gali is not suitable of residence accommodation,
but the fact remains that the earlier tenant Maniyar admittedly was
residing in the said property. Therefore, plaintiff has proved the
fact that the defendant has acquired accommodation and, therefore,
non-suitability of the property was to be proved by the tenant
himself. Therefore, once it is established on record that the
defendant has acquired vacant possession of suitable possession he
is bound to vacate the possession. Moreover, the argument of the
defendant that at the time when the suit was filed, the property
was already rented to Janta Co.op. Housing Society shall be of noPage 16 of 31
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relevance, as law is very clear that once the tenant acquired
property, landlord is entitled for eviction on the ground that the
defendant has suitable alternative accommodation. Therefore, the
right that the plaintiff has under Section 13(1)(L) of the Rent Act
cannot be taken away only on the ground that the tenant after
acquiring suitable accommodation after coming into operation of the
Rent Act has transferred assigned and / or given on rent to the
third party and the said fact will be of no relevance and only fact
that the Court will have to consider is that after coming into
operation of the Rent Act, the defendant tenant has built, acquired
vacant possession or has an alternative suitable accommodation and
in the present case in the year 1984, the defendant had acquired
vacant possession of the first floor portion of the property at Biscuit
Gali and by inheritance had also acquired property at Pankor Naka.
6.5.1 The judgment that has been relied upon by learned
advocate for the defendant reported in 1981 LawSuit (SC) 279 in
case of Hasmat Rai vs. Raghunath Prasad is on the point of bona-
fide requirement and permanent alternation. In the present case, the
Court is not dealing with the bona-fide requirement but it is with
respect to defendant acquiring alternative suitable accommodation
and, therefore, the said decision will be of no assistance to the
defendant looking to the facts of the present case.
6.5.2 Mr.Trivedi, learned advocate for the defendant has also
relied on the judgment reported in 2002 LawSuit (Bom) 1427 in the
case of Tarachand Hassaram Shamdasani vs. Durgashankar G Shroff
which is also on the issue of landlord’s seeking relief on account ofPage 17 of 31
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bona fide requirement. Learned advocate for the defendant relied on
paras:2 and 3 of the said judgment on the ground that proper
pleadings have to be there, even if suit is for bona-fide requirement
more particularly landlord has to plead his case and give proper
disclosure and relevant facts have to be furnished by the landlord.
Paras:2 and 3 of the said judgment in the case of Tarachand
Hassaram Shamdasani (supra) read as under:
“2. The original Respondent No. 1 is the owner in respect of the
premises situated at House No. 76, Mahatma Gandhi Road, Pune,
which consists of ground plus two floors. The said house was let
out to the Petitioner’s predecessor Shri Hasaram Shamdasani
sometime in 1939. The rent note Exh.117 dated 11.6.1939
indicates that the said suit property was let out to the Petitioner’s
father for business cum residence purpose. After the premises
were let out, the Petitioner’s father started using the ground floor
for business and upper floor for the residence. It is not in dispute
that the original Respondent No. 1 purchased the suit property
sometime in 1946 and the tenancy in respect of the demised
premises was attorned in his favour. The Petitioner’s father died
on 21.7.1978. It is the case of the Petitioner that during the life
time of his father, business on the ground floor was conducted as
partnership firm of which the Petitioner was also one of the
partner. Further, after the death of his father the Petitioner
continued to occupy the demised premised and the business of
partnership in the name of M/s. A. Hassaram and Company is
continued. It is however, on 30.12.1978, the Respondent No. 1
issued demand notice purported to be under Section 12 of the
Bombay Rent Act which was received by the Petitioner. On receipt
of the said notice the Petitioner immediately sent reply on
12.1.1979 denying the material allegations therein. Later on, the
original Respondent No. 1 instituted suit in the Court of Small
Causes Court, Pune bearing Civil Suit No. 925/1980 claiming
possession of the suit property initially on the ground of default
under Section 12; tenant having acquired suitable accommodation
under Section 13(1)(l); and bonafide and personal requirement for
his own business under Section 13(1)(g). However, the plaint as
filed on 14.4.1980 was sought to be amended by the original
Respondent No. 1 on 4.4.1985 by introducing one more ground for
eviction, namely, that the tenants have constructed a bathroom of
a permanent nature on the south east corner of the ground floor of
the premises admeasuring 6ft.x3ft.x8ft. unauthorizedly, illegally
and without the consent of the landlord, thereby contravening
Section 13(1)(b) of the Act. After this amendment was carried out,
the suit proceeded for trial. The original Respondent No. 1Page 18 of 31
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entered the witness box on 3.2.1983. Later on, the Respondent
No. 1 came out with an amendment application on 15.2.1986
asserting that the suit premises were also required for his
residence having regard to the growing requirement of his family
which already consisted of 3 married couples and one son was
likely to be married very soon. The suit was resisted only by the
Petitioner/Defendant No. 2. The Petitioner, inter alia, contended
that none of the grounds pressed into service were available to
the landlord. In so far as the ground of bonafide requirement for
his own business was concerned, the Petitioner specifically
asserted that the same was false claim set up by the Plaintiff. In
the written statement, the Petitioner specifically asserted the fact
that the landlord did not disclose that he was owner and in
possession of three other properties. Be that as it may, after the
abovesaid proposed amendment at the instance of the landlord
was allowed, the Trial Court proceeded further. The original
Respondent No. 1 entered the witness box as P.W.1. In his
examination in Chief he made no mention about the other
properties owned and possessed by him either residential or
commercial. This was inspite of the objection taken by the
Petitioner in the written statement. It is only because of the said
written statement, the landlord perhaps was advised to amend the
plaint by incorporating the personal requirement also for
residence of himself and his family members. None the less, even
in the examination-in-chief no disclosure has been made about the
relevant fact that the landlord has secured and in possession or
otherwise of any other property. In the cross-examination,
however, the landlord was confronted with various properties
owned by him, which fact is admitted. No doubt, in the cross
examination he has made an attempt to offer explanation in
respect of House No. 525 Centre Street and House No. 521
Vallabhai Patel Street. However, in respect of most of the other
properties, there is no explanation offered whatsoever. None the
less, the Trial Court proceeded to decree the suit in favour of the
Respondent No. 1 on the ground of bonafide requirement and also
on the ground that the tenant has constructed permanent
structure, namely, bathroom unauthorizedly and that the tenant
has acquired alternate suitable premises for residence. It is
relevant to note that, before the Trial Court the ground of default
was given up. The Trial Court accordingly decreed the suit by its
Judgment and decree dated 19.12.1986. Against this decree the
Petitioner-tenant preferred appeal before the District Court at
Pune bearing Civil Appeal No. 60 of 1987. The Appellate Court
affirmed the findings and conclusions reached by the Trial Court
and maintained the decree for possession on the self same
grounds as held by the Trial Court. In the result, the appeal
preferred by the Petitioner was dismissed by the impugned
Judgment and decree dated 30.3.1991. It is against this
concurrent decisions the present writ petition under Article 227 of
the Constitution of India has been filed.
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3. Mr. Dalvi for the petitioner mainly contends that in so far as
the ground that the tenant has acquired alternate suitable
residence within the meaning of Section 13(1)(l) of the Act is
concerned, the same is in applicable to the fact situation of this
case. Inasmuch as, it is established on record that the suit
premises were let out to the tenant for composite use of business
cum residence and in such a case Section 13(1)(l) cannot be
pressed into service. In so far as the ground of tenant having
constructed bathroom in the suit premises unauthorizedly, Mr.
Dalvi contends that the conclusion reached by the Courts below
on this issue is unsustainable both in fact and in law. He submits
that there is no legal evidence to establish the basic fact that the
tenant had in fact made any construction and that the conclusion
reached by the Courts below on this issue is very casual and
manifestly wrong as can be demonstrated from the materials on
record. In so far as the ground of bonafide and reasonable
requirement is concerned, he submits that, in the present case,
the Courts below have completely over looked the fact that the
landlord did not disclose the necessary particulars which were
relevant and crucial for deciding that issue. He submits that, in
the first place, the landlord approached the Court with vague
pleadings and that too only for bonafide and reasonable
requirement for his own business but when he was confronted
with the ownership and possession of other commercial
properties, he amended the plaint by setting up a new plea of
bonafide and reasonable requirement also for his residence and
for his family members in view of the growing need. Once again
while doing so, the landlord did not furnish any details nor
disclosed the relevant facts about the ownership and possession of
other premises which fat was material and relevant to examine
the question whether the need set up by the landlord was bonafide
and reasonable. He submits that under the scheme of the
provisions of Bombay Rent Act, requirement of the landlord
should not only be established to be bonafide but also reasonable
one. For that purpose disclosure of acquisition and ownership of
all the properties by the landlord in the pleading and in any case
in his examination-in-chief was imperative. It was also necessary
for the landlord to specifically assert that inspite of the fact that
he owns and possesses other properties, the requirement of the
suit premises was bonafide and reasonable, only then the issue
can be answered in favour of the landlord. He submits that it is
well settled that the landlord is required to give all the necessary
particulars relevant for deciding the issue of bonafide and
reasonable requirement. To buttress this submission he has relied
on the decision of this Court reported in 1979 Mah. L.J. 545 in
Sukhdeo Krishnarao Gathode v. Laxmibai Dattatraya Mohoril and
1982 Mah. L.J. 647 in Abdul Samad Makhadum Baksh Shaikh v.
Sudha Akant Parakhe. Besides he has placed reliance on the
decision of the Apex Court in the case of S.P. Chengal Varaya
Naidu (dead) by L.R.s v. Jagannath to contend that the materialPage 20 of 31
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facts which were necessary for full, complete and effectual
adjudication of the issue of bonafide and reasonable requirement
were suppressed by the landlord, obviously with the purpose to
gain advantage on the other side, namely, the Petitioner/tenant,
and, having done so, the Respondent-landlord has indulged in
playing fraud on the Court as well as on the opposite party. He
submits that non disclosure of all the relevant and material facts
was obviously an act of deliberate deception with the design of
securing something by taking unfair advantage of another.
According to him, non disclosure of material fact is an act of abuse
of process of the court. He, therefore,submits that in such
situation, the court is duty bound to throw the landlord out of
court even at this stage in exercise of writ jurisdiction
under Article 227 of the Constitution of India.
3A. On the other hand, the learned counsel for the Respondent
No. 1 landlord submits that the two courts below have returned
concurrent findings of fact on the relevant issues and it is not
open for this court to reappreciate the evidence on record and
over turn the concurrent findings of fact. Mr. Gokhale submits
that the jurisdiction of this Court is limited to see that the inferior
court or the Tribunal functions within the limits of its authority
and to correct an error apparent on the face of the record much
less an error of law. In support of this contention he has placed
reliance on the decision of the Apex Court in the case of Mohd.
Yunus v. Mohd. Mustaqim and Ors. as well as in the case of Mrs.
Labhkumar B. Shaha and Ors. v. Janardhan Mahadeo Kalan and
Anr. . The learned counsel further submits that, in any case, the
finding relating to the ground under Section 13(1)(l) that the
tenant has acquired alternate suitable residence, the same is
unexceptionable; and, even that ground alone was good enough to
reject this writ petition. He further submits that even in a case of
tenancy created for composite user, namely, business and
residence, the ground under Section 13(1)(l) is available to the
landlord. In so far as ground of tenant having constructed
bathroom is concerned, the learned counsel submits that even
that issue will have to be answered against the Petitioner tenant
and no fault can be found with the concurrent finding of fact
recorded by two courts below. He submits that even assuming
that there is some error here or there in the decision of the courts
below, that is not enough for this court to invoke jurisdiction
under Article 227 of the Constitution of India. In so far as the
ground of bonafide and reasonable requirement is concerned, the
learned counsel submits that the landlord has approached the
Court with a clear plea that the suit premises were required for
his personal use for business. He submits that in fact the landlord
was under a mistaken belief that the pleading was sufficient even
to press the personal requirement for the residence for himself
and himself and his family in view of the growing need. He
submits that in that backdrop permission to amend the pleadingsPage 21 of 31
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was granted by the Court below. According to him the order
allowing amendment has not been challenged, therefore, it will
not be open to the Petitioner-tenant to now challenge that position
and particularly when the tenant has allowed the evidence to be
let in on all material aspects. He further submits that the tenant
having permitted to let in evidence, it is not open for him to
challenge the correctness of the proceeding and that too on the
ground that it is a case of abuse of process. According to him, the
plea of abuse of process has not been raised either before the
Trial Court nor before the Appellate Court and much less in the
memo of the writ petition. Therefore, this court ought not to
consider as to whether the proceeding resorted to by the
Respondent landlord are in the nature of fraud either on the court
or on the Petitioner tenant. He further submits that in the present
case assuming that it is possible to contend that the pleadings in
respect of ground of bonafide and reasonable requirement is
vague, however, vagueness in pleading cannot be a ground to
defeat the claim or non suit the landlord for the first time before
this court in writ jurisdiction. He submits that the parties have
adduced evidence before the court having understood each other’s
case very well and in such situation vagueness in pleading cannot
be a ground to non suit the landlord. Reliance is placed on the
ruling reported in 1990 B.C.R. 326 in Waman Pingale v. Sitaram
Nathu Shimpi. According to the learned counsel there is no
substance in this writ petition and the same deserves to be
dismissed.”
6.6.1 In the present case, plaintiff has, in his plaint, pleaded
to grant eviction of the defendant from the suit premises on the
ground that the defendant has acquired alternative accommodation
and has also given details of the property so also has given details
that the defendant has purchased property at Biscuit Gali, Pankor
Naka. Though the plaintiff could not prove that the defendant has
purchased the property at Biscuit Gali, Pankor Naka, the fact
remains that plaintiff was able to prove that the defendant has
acquired suitable accommodation after coming into force of the
Rent Act. Moreover, the said pleadings are very much there in his
examination-in-chief and, therefore, the said judgment will be of no
assistance to the defendant.
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6.6.2 Learned advocate for the plaintiff has relied upon the
judgment reported in 2012 (4) GLR 3097 in the case of
Rameshchandra Jamnadas Meswaniya vs. Jeramdas Jamnadas
Meswaniya, more particularly paras:3 to 6, wherein it has also been
held that it is not relevant that after acquiring suitable residence,
the possession of the said alternative accommodation is transferred
and/or sold by the tenant. The only fact that the Court will have to
look at that the defendant has acquired suitable accommodation
after coming into force of the Rent Act. Paras:3 to 6 of the decision
rendered in case of Rameshchandra Jamnadas Meswaniya (supra)
reads thus:
“3. Shri Param Buch, learned advocate appearing on
behalf of Shri Hriday Buch, learned advocate appearing on
behalf of the applicants has vehemently submitted that the
learned appellate Court has materially erred in allowing
the appeal preferred by the respondents and quashing and
setting aside the judgment and decree passed by the
learned trial Court dismissing the suit. It is submitted by
Shri Buch, learned advocate appearing on behalf of the
applicants that when during pendency of the suit, the
accommodation, which was alleged to have been acquired
by the tenant, was sold and was in possession of the
tenant at the time of passing of the decree, the learned
trial Court had rightly dismissed the suit on the ground
that at the time of passing of the decree the tenant is not
in occupation and/or possession of the alternative
accommodation and, therefore, the learned appellate Court
is not justified in allowing the appeal and quashing and
setting aside the judgment and decree passed by the
learned trial Court dismissing the suit. It is submitted that
at the relevant time when the suit was taken up for final
hearing i.e at the time of judgment and decree the tenant
was not in occupation and possession of the alternative
accommodation and, therefore, it is requested to allow the
present Civil Revision Application.
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4. The present Civil Revision Application is opposed by
Shri Chirag Patel, learned advocate appearing on behalf of
the original landlord. It is submitted that what is required
to be considered is acquiring suitable accommodation at
the time when the suit was instituted and merely because
the tenant who had acquired alternative accommodation
subsequently has transferred the same to avoid the decree
on the ground of alternative accommodation he cannot be
subsequently permitted to say that at the time of judgment
and decree he is not in occupation and possession of the
alternative accommodation and, therefore, no decree can
be passed. Shri Patel, learned advocate appearing on
behalf of the original landlord has relied upon the decision
of the learned Single Judge in the case of Ramanlal
Becharbhai Tailor Vs. Champaklal Nanalal Modi reported
in 1998 (2) GLH 9 with respect to his submission that in a
case where the tenant, who acquired the possession of the
house transfers the same before the date of filing of the
suit, as held by the learned Single Judge in the said
decision for getting the decree under Section 13(1) (l) of
the Bombay Rent Act what is to be borne in mind is that
the cause must be on the date of the notice and on the
date of filing of the suit and not subsequent to the date of
the suit. Relying upon the above decision it is submitted
that the learned appellate Court has not committed any
error and/or illegality in passing the eviction decree and,
therefore, it is requested to dismiss the present Civil
Revision Application.
5. Heard the learned advocates appearing on behalf of the
respective parties at length. At the outset, it is required to
be noted and it is not in dispute that at the time when
the suit was instituted for recovery of possession under
Section 13(1)(l) of the Bombay Rent Act, the tenant was in
occupation and possession of other premises, which was
suitable alternative accommodation. However, during
pendency of the suit the tenant transferred and sold it to
another person and, therefore, it was contended on behalf
of the tenant that as at the relevant time when the
judgment and decree was passed, he was not in possessionPage 24 of 31
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of the alternative accommodation and, therefore, he
cannot be evicted and no decree for possession can be
passed under Section 13(1)(l) of the Bombay Rent Act.
Unfortunately, the learned trial Court accepted the same
and dismissed the suit and the aforesaid is set aside by
the learned appellate Court by holding that once it is
proved that at the time of institution of the suit, the
tenant had acquired alternative suitable accommodation
the cause for eviction under Section 13(1)(l) of the
Bombay Rent Act has existed. No illegality has been
committed by the learned appellate Court in allowing the
appeal and passing the eviction decree.
6. Identical question came to be considered by the learned
Single Judge in the case of Ramanlal Becharbhai Tailor
(Supra) and considering Section 13(1)(l) of the Bombay
Rent Act and considering the decision of Shivlal Nathuram
Vaishnav Vs. Harshadrai Haribhai Oza reported in
21(1980) GLR 1999, it is held that, if the tenant has built
up or acquired vacant possession of or being allotted with
suitable residence, he loses the protection and the landlord
acquires the right to have the decree of eviction. It is
further held that what is to be borne in mind is that the
acquisition must be on the date of the notice and also on
the date of the suit. It is further held that at any time, on
or before the date of the suit, if the tenant builds the
house or acquires the possession of the house or is alloted
with the suitable residence, he loses protection, regardless
of the fact whether thereafter he continues to be the
owner and in possession of another premises or transfers
the same, because once the wrong done, cannot be
undone by transferring the premises or disposing the same
in any manner whatsoever. Considering the aforesaid
decision of learned Single Judge, which squarely applies to
the facts and circumstances of the present case, it cannot
be said that the learned appellate Court has committed
any error in allowing the appeal quashing and setting
aside the judgment and decree passed by by the learned
trial Court and decreeing the suit against the applicant
under Section 13(1)(l) of the Bombay Rent Act.”
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6.6.3 Learned advocate for the plaintiff has also relied upon the
judgment reported in 2024 GUJHC 65273 in the case of Manjulaben
Bhikhabhai Sikligar vs. Gayatriben Moohitkumar Soni, more
particularly paras:16 and 17 of the said judgment which reads as
under:
“16. Since in this Revision Application, concurrent finding
of learned Trial Court as well as learned Appellate Court is
challenged, scope of interference is very limited. At this
stage, reference is made to findings and observation of
Hon’ble Apex Court in the case of Patel Valmik Himatlal vs.
Patel Mohanlal Muljibhai (Dead) Through Lrs. – 1998 (7)
SCC 383. While examining the ambit and scope of Section
29 of the Rent Act, Honble Supreme Court has observed as
under :
“5. The ambit and scope of the said section came up for
consideration before this Court in Helper Girdharbhai V/
s. Saiyed Mohamad Mirasaheb Kadri and Ors. (JT 1987
(2) SC 599) and after referring to a catena of authorities,
Sabyasachi Mukharji, J. drew a distinction between the
appellate and the revisional jurisdictions of the courts
and opined that the distinction was a real one. It was
held that the right to appeal carries with it the right of
rehearing both on questions of law and fact, unless the
statute conferring the right to appeal itself limits the
rehearing in some way, while the power to hear a
revision is generally given to a particular case is decided
according to law. The Bench opined that although the
High Court had wider powers than that which could be
exercised under Sec. 115 of the Code of Civil Procedure,
yet its revisional jurisdiction could only be exercised for
a limited purpose with a view to satisfying itself that the
decision under challenge before it is according to law.
The High Court cannot substitute its own findings on a
question of fact for the findings recorded by the courts
below on reappraisal of evidence. Did the High Court
exceed its jurisdiction.
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6. The powers under Sec. 29(2) are revisional powers
with which the High Court is clothed. It empowers the-
High Court to correct errors which may make the
decision contrary to law and which errors go to the root
of the decision hut it does not vest the High Court with
the power to rehear the matter and reappreciate the
evidence. The mere fact that a different view is possible
on reappreciation of evidence cannot be a ground for
exercise of the revisional jurisdiction.”
17. In view of above, this Court finds no substance in the
present Revision Application. Accordingly, present Revision
Application is dismissed. Notice is discharged. Interim relief
granted earlier, if any, stands vacated.”
It has been observed in the said decision that revisional
jurisdiction can only be exercised with the limited purpose with a
view to satisfy itself that the decision under challenge before it is
according to law and High Court cannot substitute its own findings
on a question of fact for the findings recorded by the courts below
on reappraisal of evidence.
7. In my opinion, the evidence of the tenant himself is sufficient
to establish that he has acquired suitable residential accommodation
and it is for the tenant to run away from this admission which he
has made in cross-examination at Exh.156.
8. Moreover, learned advocate for the defendant has also argued
that the fact that the possession of the property at Biscuit Gali had
been received by the defendant in the year 1984 and the suit is
filed in the year 1991, therefore also the suit is hopelessly time
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barred, it has been argued that Article 67 of the Limitation Act
provides limitation period of 12 years to recover possession from
the tenant, and the said period of 12 years commence when the
tenancy is determined, the commencement of the said 12 years are
from the date of tenancy being determined, in the present case, the
landlord alleges that after coming into force by the Rent Act the
tenant had acquired suitable accommodation and if the said fact is
proved it is a continuous wrong and it gives cause of action, until
wrong discontinues and, therefore, in view of the said fact Article
67 of the Limitation Act, 1963 could not apply in the present case.
9. Therefore, on the basis of overall basis of the material on
record, on the basis of conclusion that has been referred to by the
Courts below, the Court is of the opinion that there is no material
irregularity nor any perversity reflecting which would permit this
Court to exercise revisional jurisdiction. The entire reasoning of
both the Courts at the findings are based upon clear analysis of the
testimony of the witnesses for either side and also in consonance
with documentary material and according to this Court it cannot be
said that there is any perversity in the said order. Moreover, while
deciding the Revision Application by the High Court in revisional
jurisdiction under this Act is confined to find out that findings of
fact recorded by the courts below is according to law and does not
suffer from any abuse of law. The findings recorded by the courts
below if perverse or has been arrived at without consideration of
material evidence or such finding is based on no evidence or
misreading of evidence or grossly erroneous that, if allowed to
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stand, would result in gross miscarriage of justice. The same is
open for correction because it is not treated as finding according to
Law and in that event the High Court, in exercise of its revisional
jurisdiction under the Bombay Rent Act, is entitled to set aside the
impugned order as being not legal or proper.
10. The High Court can not interfere with the finding of facts
recorded by the first Appellate Court. The consideration or
examination of the evidence by the High Court in revisional
jurisdiction under this Act is confined to find out that finding
recorded by the courts below is according to Law and does not
suffer from any error of Law and only if the finding of facts
recorded by the courts below, is perverse or has been arrived at
without consideration of the material evidence or that such finding
is based on no evidence, or misreading of the evidence, or is
grossly erroneous that, if allow to stand, it would result in gross
miscarriage of justice and the same is open to correction as the
same is not treated as findings according to Law and in the present
case, the finding of facts recorded by the trial Court and the
appellate Court is neither perverse nor arrived at without
consideration of the material evidence. In the present case, in
revisional jurisdiction, the High Court can not exercise its powers as
an appellate power to reappreciate or reassess the evidence for
coming to a different finding of facts. Revisional jurisdiction is not
and can not be equated with the powers of reconsideration of all
questions of fact as a court of first appeal.
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11. The findings recorded by both the courts below are based on
critical appreciation of the evidence led by the parties on record
and does not suffer any error or material irregularities. Both the
courts have rightly come to the conclusion that the tenant has
acquired suitable alternative accommodation and, therefore, there
was no error committed by the courts below which requires any
correction at the hands of the High Court in exercise of revisional
jurisdiction.
12. Under the revisional jurisdiction, the High Court is entitled to
satisfy itself as to the correctness or legality or propriety of any
decision or order impugned before it as indicated above. In view of
the aforesaid facts and proposition of law and in view of the
concurrent findings of fact by both the Courts below, since no case
is made out to call for any interference in the judgment and order
passed by the appellate Court upholding the judgment and decree
passed by the trial Court, the present Revision Application requires
to be dismissed and it is dismissed accordingly.
(SANJEEV J.THAKER,J)
13. After the pronouncement of this judgment, learned advocate
for the defendant, under the instructions of his client, requested to
keep this judgment in abeyance for a period of six months on
account of Ramzan month and after the period of six months the
defendant will vacate the premises and will handover the peaceful
and vacant possession to the plaintiff. Learned advocate for the
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NEUTRAL CITATION
C/CRA/81/2025 CAV JUDGMENT DATED: 04/03/2025
undefined
defendant submitted that defendant is ready to file an undertaking
to that effect.
14. Looking to the nature of request made by learned advocate
for the defendant, this judgment is ordered to be kept in abeyance
for a period of six weeks on a condition that within a period of
one week the defendant shall file an undertaking before the
Registry of this Court that he will vacate the premises and
handover the peaceful and vacant possession of the premises to the
plaintiff, after the period of six weeks is over. The said undertaking
will be filed by the petitioner within a period of one week from
today and in view of the said fact that the undertaking will be filed
with respect to the handing over the possession of the premises to
the landlord, i.e. the respondent herein, the Judgment and Order
are kept in abeyance for a period of six weeks with a condition
that only if an undertaking is filed before the Court within a period
of one week, the present order will be kept in abeyance.
(SANJEEV J.THAKER,J)
MISHRA AMIT V.
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