Hamidkhan Amirkhan Ghori vs Aamadbhai Batavia Deceased and Another

M.R. Shah, J.

1.00. Present Civil Revision Application, u/s 29(2) of the Bombay Rents, Hotel & Lodging House Rates Control Act (Act No. LVII of 1947)

(hereinafter shall be referred to as ""the Bombay Rent Act"" for short), has been preferred by the petitioner herein-original defendant/appellant

challenging the impugned judgement and decree of eviction passed by the learned 8th Civil Judge, Junagadh dtd. 25/3/2008 passed in Regular

Civil Suit No. 51 of 2000 as well as the impugned Judgement and Order passed by the learned appellate court-learned Principal District Judge,

Junagadh in Regular Civil Appeal No. 44 of 2008 dtd. 27/11/2009, by which the learned appellate court has dismissed the said appeal confirming

the judgement and decree of eviction passed by the learned trial court. Facts leading to the present Civil Revision Application, in nutshell, are as

under:--

1.01. That the original plaintiffs-respondents herein instituted Regular Civil Suit No. 51 of 2000 in the court of learned Civil Judge, Junagadh for

recovery of possession/eviction decree on various grounds viz., the tenant is in arrears of rent for more than six months, more particularly 108

months; that the suit premises is required by the plaintiffs-landlord for their personal use and on the ground of subletting.

1.02. It was the case on behalf of the plaintiffs-landlord that they have purchased the suit premises from one Raj Corporation and Attornment

Notice was served upon the tenant and was directed and/or called upon to pay arrears of rent. It was the case on behalf of the plaintiffs that

instead of making payment of arrears of rent, the tenant disputed the title of the landlord and in fact, it was the case on behalf of the tenant that, in

fact, they have purchased the suit premises from Raj Corporation and therefore, thereafter there is no relationship of landlord and tenant. It was

submitted that as the tenant is in arrears of rent for more than six months and despite the statutory notice u/s 12(2) of the Bombay Rent Act,

arrears of rent has not been paid and on the other grounds stated hereinabove, it was requested to pass eviction decree.

1.03. That the suit was resisted by the defendant-petitioner herein by filing Written Statement at Ex.36. In the Written Statement also the defendant

denied the title of the plaintiffs and it was submitted that no Attornment Notice has been served upon him. It was also submitted in the Written

Statement that as such one Gulamali Jilani was the original owner and landlord and Raj Corporation purchased the same along with the tenants and

thereafter there was a settlement between the partners of Raj Corporation and the defendant, under which the Partners of Raj Corporation agreed

to sell the suit shop to the defendant for a sale consideration of Rs. 40,000/- and it was also agreed that as there was a damage caused to the

defendant of Rs. 20,000/-, and it was agreed to give credit of the same to the defendant and balance amount of Rs. 15,000/- was to be paid after

the suit shop is reconstructed and possession is handed over and sale deed is executed. Therefore, it was submitted in the Written Statement that

thereafter despite the above, partners of the Raj Corporation changed their intention and therefore, the defendant instituted Regular Civil Suit No.

234 of 1997 for permanent injunction and declaration and again there was a settlement and it was agreed to sell two shops and some portion of

the rear portion of the Shop No. 1 on ownership for a sale consideration of Rs. 70,000/- out of which Rs. 50,000/- was paid and therefore, it was

submitted that defendant is ceased to be the tenant of the suit shop on and from 24/4/1997 and therefore, the suit as it is, is not maintainable. The

defendant tenant also denied that he is in arrears of rent for more than six months, as alleged. The defendant-tenant also denied other allegations

made in the plaint and it was requested to dismiss the suit.

1.04. That the learned trial court framed the Issues at Ex.66.

1.05. That both the sides led evidence, documentary as well as oral. On behalf of the plaintiffs, their power of attorney holder came to be

examined at Ex.83. The plaintiffs produced documentary evidence at Ex. Nos. 89 to 104. The defendant also led evidence, documentary as well

as oral. On behalf of the defendant, the defendant himself came to be examined at Ex.110 and one Alimohamed Haji Ghanchi came to be

examined at Ex.112. The defendant produced documentary evidence at Ex. Nos. 92, 93 and 109.

2.00. That on appreciation of evidence, the learned trial court, by the judgement and decree dtd. 25/3/2008 partly allowed the said suit and

passed eviction decree on the ground that the tenant is in arrears of rent for more than six months i.e. on the ground of arrears of rent, however,

did not pass any decree on the ground of subletting and/or bonafide requirement of the plaintiffs.

3.00. Being aggrieved by and dissatisfied with the judgement and decree dtd. 25/3/2008 passed by the learned trial court in Regular Civil Suit No.

51 of 2000, original defendant-tenant preferred Regular Civil Appeal No. 44 of 2008 before the District Court, Junagadh and the learned

appellate court-learned Principal District Judge, Junagadh, by the Judgement and Order dtd. 27/11/2009 has dismissed the said appeal by

confirming the judgement and decree of eviction passed by the learned trial court.

3.01. Being aggrieved by and dissatisfied with the impugned Judgement and Order and decree passed by both the courts below in passing eviction

decree on the ground of arrears of rent as well as denial of title of the landlord, petitioner-original defendant has preferred present Civil Revision

Application u/s 29(2) of the Bombay Rent Act.

4.00. Mr. Mehul S. Shah, learned advocate appearing on behalf of Mr. petitioner--original defendant has vehemently submitted that both the

courts below have materially erred in passing eviction decree on the ground of arrears of rent as well as on the ground of denial of title by the

tenant.

4.01. Mr. Mehul S. Shah, learned advocate appearing on behalf of the petitioner-original defendant/tenant has further submitted that both the

courts below ought to have appreciated that the suit notice Ex.96 itself was illegal and invalid in view of provisions of section 12(2) of the Bombay

Rent Act read with section 106 of the Transfer of Property Act, as there was no demand for the alleged arrears of rent made therein, nor there

was any date of termination specified therein. It is, therefore, submitted that as such the suit itself was not maintainable under the law. In support of

his above submissions Mr. Shah, learned advocate appearing on behalf of the petitioner-original defendant has heavily relied upon the decision of

the learned Single Judge in the case of Khimji Bhimji Majithia Vs. Taraben Lalji Soni, .

4.02. It is further submitted that as such both the courts below have materially erred in passing eviction decree on the ground of arrears of rent u/s

12(3)(a) of the Bombay Rent Act. It is submitted that as such in reply to the statutory notice, dispute with respect to standard rent was already

raised within a period of one month and therefore, the case would not fall u/s 12(3)(a) of the Bombay Rent Act.

4.03. Now, so far as the denial of title is concerned, it is submitted that though it can be said that the tenant has renounced his status as a tenant,

however, the same is not in a manner as provided u/s 111(G) of the Transfer of Property Act. Therefore, relying upon section 111(G) of the

Transfer of Property Act as well as decision of the Hon''ble Supreme Court in the case of Gandabhai Ranchhodji Gandhi Versus Noshir Kavasji

Sabnawala and others, reported in 34 (1) GLR 238 as well as decision of the Bombay High Court in the case of Narayan Vihal Kothari and

others Versus Mangesh Vithal Lad and others, reported in AIR 1932 Bombay 599, it is requested to allow the present Revision Application and

to quash and set aside the impugned Judgement and Order of eviction decree passed by the learned trial court confirmed by the learned appellate

court.

5.00. Present Revision Application is opposed by Mr. Qureshi, learned advocate appearing on behalf of the original plaintiffs. It is submitted that

as such there are concurrent findings of facts given by both the courts below holding the petitioner-original defendant in arrears of rent for more

than six months and also on denial of title, which are on appreciation of evidence and the same are neither perverse nor against the evidence on

record and therefore, the same are not required to be interfered with by this Court in exercise of the revisional jurisdiction. In support of his above

submission, he has relied upon the decision of the learned Single Judge in the case of Labhshanker Manishankar Joshi and Others Vs.

Kamlashanker Bhogilal Pandya and Others .

5.01. Now, so far as the challenge to the validity of the statutory notice u/s 12(2) of the Bombay Rent Act is concerned, it is submitted by Mr.

Qureshi, learned advocate appearing on behalf of the original plaintiffs that as such no such contention was raised either before the learned trial

court or before the learned appellate court and even no such issue has been framed by the learned trial court and therefore, petitioner cannot be

permitted to raise such a contention for the first time before this Court in the present Revision Application. In support of his above submission, he

has relied upon the decision of Bombay High Court in the case of Bai Dahi Vs. Ghanashyam Haridas, .

5.02. Relying upon the reply to the statutory notice (Ex.96) and relying upon the averments made in the Written Statement filed by the defendant, it

is submitted by Mr. Qureshi, learned advocate appearing on behalf of the original plaintiffs-landlord that as such defendant-tenant has not only

denied and/or disputed the title of the landlord, but even he has claimed to be owner and even it was his own case that on and after 24/4/1997,

defendant is ceased to be the tenant of the suit shop and therefore, even the suit as it is, is not maintainable. Therefore, as such no illegality has

been committed by the courts below in passing the eviction decree on the ground of denial of title.

By making above submissions and relying upon the above decisions, it is requested to dismiss the present Criminal Revision Application.

6.00. Heard the learned advocates appearing on behalf of the respective parties at length and considered the impugned Judgement and Order

passed by both the courts below as well as the entire evidence on record from the record and proceedings received from the learned trial court as

well as learned appellate court.

6.01. At the outset, it is required to be noted that there are concurrent findings of facts given by both the courts below holding the petitioner-

original defendant in arrears of rent for more than six months and that the defendant is tenant and the said findings are on appreciation of evidence

and the same are neither perverse nor against the evidence on record and therefore, the same are not required to be interfered with by this Court in

exercise of the revisional jurisdiction.

6.02. Now, so far as the contention on behalf of the petitioner-tenant that there was no valid notice as required u/s 12(2) of the Bombay Rent Act

and therefore, the suit itself was not maintainable, is concerned, it is required to be noted that, as such, no such dispute was ever raised by the

petitioner-tenant either before the learned trial court or before the learned appellate court and as such, no such issue has been framed by the

learned trial court. Under the circumstances, as such, now it is not open for the petitioner-tenant to raise such a contention for the first time before

the revisional court. Even otherwise, in the notice dtd. 2/11/1999 (Ex.96) it is specifically mentioned that the tenant is in arrears of rent for the

period of 108 months, from 1/1/1993 to 31/12/1999 at the rate of Rs. 250/- per month and even tenancy has already been terminated and tenant

is called upon to handover the possession on and after completion of 15 days from the date of the receipt of the statutory notice and therefore, as

such it cannot be said that the statutory notice Ex.96 was not in consonance with the provisions of section 12(2) of the Bombay Rent Act.

6.03. It is required to be noted that as such the petitioner-tenant was served with Attornment Notice by Raj Corporation and from whom the

plaintiffs have purchased the suit property, however, the petitioner tenant not only denied the title of the Raj Corporation but even denied the title

of the plaintiffs on the ground that the erstwhile landlord-land owner has not served Attornment Notice. However, it is required to be noted that in

the Written Statement it is specifically stated that the Raj Corporation has purchased the suit property with tenants i.e. defendant. Despite the

above, and thereafter despite the statutory notice calling upon the petitioner tenant to make payment of arrears of rent, which was more than six

months, petitioner tenant did not make payment of arrears of rent, and not only he denied the title of the landlord, and denied the title of the

plaintiffs-landlord, even he claimed to be owner and so stated in the Written Statement and so stated in the Written Statement that on and from

24/4/1997, the defendant is ceased to be the tenant of the suit shop as he has become owner and therefore, even the suit is not maintainable.

Considering the aforesaid denial of title and the fact that the defendant tenant claimed to be owner of the suit premises, no illegality has been

committed by both the courts below in passing the eviction decree on the ground of denial of title as well as rent.

6.04. Now, so far as the reliance placed by the learned advocate appearing on behalf of the petitioner upon the decisions in the cases of Khimji

Bhimji Majithia (supra), Gandabhai Ranchhodji Gandhi (supra) as well as Narayan Vihal Kothari and others (supra) are concerned, on facts and

considering the Written Statement as well as statutory notice, the said decision would not be of any assistance to the petitioner.

In view of the above and for the reasons stated above, present petition fails and the same deserves to be dismissed and is accordingly dismissed.

Rule is discharged. Ad-interim relief granted earlier, if any, stands vacated forthwith. In the facts and circumstances of the case, there shall be no

order as to costs.