Gulam Mohammad Musabhai vs Ujiben Mulabhai

K.S. Jhaveri, J.—This is a revision u/s 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 at the instance of the party-in-person- original Plaintiff challenging the judgment and order dated 19.01.1999 passed by the Small Causes Court, Ahmedabad in H.R.P. Suit No. 2513 of 1990 and the judgment and order dated 01.01.2004 passed by the learned Chief Judge, in Civil Appeal No. 28 of 1999 preferred by the Plaintiff by confirming the judgment and decree of the Small Causes Court, Ahmedabad in H.R.P. Suit No. 2513 of 1990.

The applicant is the party-in-person-original Plaintiff and the Respondent is the legal heir of the original Defendant. The applicant appearing as party-in-person- original Plaintiff filed suit against the Defendant stating that the Plaintiff is the owner of the chawl situated in the City of Ahmedabad in Gomtipur Ward behind Topi Mills, known as ''Musabhai''s chawl'' and out the said chawl, the premises bearing M.C. No. 27/227 and bearing City Survey No. 143/234 is in possession of the Defendant-tenant at a monthly rent of Rs. 9/-. The suit is filed by the Plaintiff on the ground of arrears of rent and omission on the part of the Defendant to pay the same in spite of the notice of demand. The Plaintiff thereafter amended the suit as per the order passed by the learned trial Judge below application at Exh. 33 and thereby he adduced a new ground for eviction on the basis of the allegations that the Defendant has encroached upon the land belonging to the applicant-Plaintiff on the western side and thereby constructed one big room without the consent of the Plaintiff. The learned trial Court after framing and issue and appreciating the evidence on record found that the tenant was neither in arrears of rent for more than six months nor he has made any construction on the suit premises. The learned trial Court passed judgment and decree dated 19.01.1990 by dismissing the suit filed by the Plaintiff.

2.1 The applicant thereupon preferred an appeal u/s 29(1) of the Bombay Rent Act to the lower appellate Court. The latter Court, after a total reappreciation of the evidence on record, confirmed the findings of fact recorded by the trial Court and confirmed the judgmement and decree passed by the trial Court while dismissing the appeal. Hence, present revision u/s 29(2) of the Bombay Rent Act.

The applicant appearing as party-in-person submitted that the Defendant-tenant was in arrears of rent for exceeding six months on the date of notice u/s 12(2) of the Bombay Rent Act and the Defendant had not tendered the rent then due within one month from the date of demand notice u/s 12(2) of the Bombay Rent Act nor had he raised a dispute of standard rent within one month from the date of receipt of the said notice. He also states that the Defendants have built permanent structure in the suit premises without the written consent of the Petitioner.

Before proceeding with the merits of the matter it would be pertinent to bear in mind the principles laid down by the Supreme Court while dealing with the revisions arising u/s 29(2) of the said Act. The Supreme Court in the case of Patel Valmik Himatlal and Others Vs. Patel Mohanlal Muljibhai (Dead) Through L.Rs., while approving and reiterating the principles laid down in its earlier decision in the case of Helper Girdharbhai Vs. Saiyed Mohmad Mirasaheb Kadri and Others, , held that High Court cannot function as a court of appeal, cannot reappreciate 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.

In this revision application a few salient features are required to be noted. The case of the Plaintiff as made out in the suit is that the suit premises were let out at a rent of Rs. 9/- per month, that the Defendant-tenant was in arrears of rent from 01.09.1980 till the date of suit; that in spite of receipt of the said notice the tenant had failed to pay the amount of arrears within a month thereof, and that therefore the tenant was liable to be evicted u/s 12(3)(a) of the said Act, that the Defendants have built permanent structure in the suit premises without the written consent of the applicant.

The Defendant-tenant filed his written statement at Exh.80. The Defendant submitted that the Plaintiff has not given any notice as per the provision of the Bombay Rent Act. The Defendant has denied that he has not paid rent since 01.09.1980. The Defendant has also averred that as the Plaintiff and his brothers were co-owners of the suit premises and there were disputes between the Plaintiff and his brothers, the Defendant was not knowing to whom rent is payable. Separate persons came for demanding rent but as the Plaintiff refused to give rent receipts the Defendant has stopped paying the rent. It is also submitted that the suit property was a joint property of the Plaintiff and his brother and as the Plaintiff and his brothers have not paid municipal tax, the Ahmedabad Municipal Corporation has served a notice on 20.03.1979. So the Defendant has paid the rent for 13 months in Municipal Corporation amounting to Rs. 117/- and thereafter on different dates the Defendant has paid rent for 54 months and rent is given to the Plaintiff but the Plaintiff has not issued these receipts. After the death of the original Defendant, his heirs were brought on record who filed their additional written statement in the suit at Exh. 44 to the amended plaint. In reply at Exh. 44, the Defendant submitted that the Defendant is not arrears of rent since 01.09.1980. It is also submitted that Defendant had not encroached upon the land in front of the room. Further, the Defendant-tenant was examined at Exh.70 wherein she has submitted that in the year 1976 the suit premises was auctioned and thereafter the Corporation served notice, so the Defendant has paid rent in Municipal Corporation. The receipts are produced upon Exh. 71 to 73. The Defendant has already paid rent up to 31.12.1998 in the Court and the liability to pay tax is upon the Plaintiff.

After appreciating the evidence on record both the Courts below have found that the Defendant was not in arrears of rent and hence, the Plaintiff is not entitled to decree of eviction u/s 12(2) of the Bombay Rent Act. The Courts below also held that the Plaintiff has failed to prove that the encroachment was made by the Defendant and when the construction on the suit premises was made. Hence, the Plaintiff has failed to prove that the Defendant was in arrears of rent and the construction was made by the Defendant. On the contrary lower appellate Court found that the Defendant has paid excess rent as on 31.12.1998.

Consequently the judgment and decree passed by the trial court and confirmed by the appellate court are eminently sustainable and there is no justification for interference by this Court in the present revision. This revision is, therefore, dismissed. Rule is discharged with costs. Interim relief, if any, stands vacated.