Jitendra Prahladrai Modi vs Shyamlal Belaram Bhatia

Rajesh H. Shukla, J.—Civil Revision Application No. 421 of 1990 is filed by the Petitioner-original Plaintiff u/s 29(2) of the Bombay Rent Act for the prayer that the judgment and order passed by the Appellate Bench of the Small Causes Court, Ahmedabad, in Civil Appeal No. 113 of 1981 and Civil Appeal No. 114 of 1981 confirming the judgment and decree passed in H.R.P. Suit Nos. 4766/76 and 4767/76 passed by the Small Causes, Court, Ahmedabad, may be quashed and set aside on the grounds set out in the memo of revision, inter alia, that the appellate court has erred in appreciating the contents of the notice exh. 41 and has thereby misconstrued it. It is also contended that both the courts have failed to appreciate that the rent was not payable by month and therefore Section 12(3)(a) would not be attracted, but the case would be governed by Section 12(3)(b) of the Rent Act. It is also contended that both the courts have erred in appreciating the oral and documentary evidence produced on record which has resulted in miscarriage of justice and therefore the present revision applications have been filed. Similarly, both the courts below have failed to appreciate the material and evidence with regard to permanent alteration in the suit premises and damage which would warrant eviction.

Civil Revision Application No. 425 of 1990 is preferred by the Petitioner-original Plaintiff u/s 29(2) of the Bombay Rent Act for the prayer that the judgment and order passed by the Appellate Bench of the Small Causes Court, Ahmedabad in Civil Appeal No. 113 of 1981 and Civil Appeal No. 114 of 1981 confirming the judgment and decree passed in H.R.P. Suit Nos. 4766/76 and 4767/76 passed by the Small Causes, Court, Ahmedabad, may be quashed and set aside on the grounds set out in the memo of revision, inter alia, that the Appellate Bench of the Small Causes Court raised the points for determination as stated in this memo and has failed to appreciate that while answering Issue No. 1 in the negative that as the tenants are not in arrears, the tenants were not liable to be evicted. Similarly, it has erred in holding that the case is governed by Section 12(3)(a) though the rent was not payable monthly and it is evident from the record that the taxes were also to be paid by the Defendants-tenants and therefore the case would be governed by Section 12(3)(b). The courts below have failed to appreciate the material and evidence including the document produced with the list exh. 65 for the purpose of considering the arrears of rent. Similarly, both the courts have failed to appreciate the material and evidence, particularly when Issue No. 2 has been answered in the negative holding that the Defendants-tenants made any permanent alteration in the suit premises and have not damaged the suit premises which would warrant eviction. The lower appellate court erred in confirming the findings recorded by the trial court with regard to breach of the terms of the tenancy.

The facts giving rise to these two suits as well as the two appeals filed by the Plaintiff-original landlord/owner are that the Appellant-Plaintiff is the owner of the suit premises bearing M.C. No. 1054/D/21 situated in Jyoti Colony Co-operative Housing Society Ltd., Gitamandir Road, Ahmedabad. Two rooms situated on the ground floor of the premises are let out to the Respondents who are brothers for photographic business. The rent of Kishanchand Belaram Bhatia, Defendant of HRP Suit No. 4766/76 is Rs. 75/- p.m. while the rent of Shyamlal Bhatia, the Defendant of HRP Suit No. 4767/76 is Rs. 100/- p.m. Both the rooms are adjacent to each other and municipal tax, education cess and electric burning charges of the demised premise were required to be paid by the Defendants-tenants. Both the tenants have executed rent-note in respect of the premises and the Appellant-original Plaintiff filed both the suits against the tenants on the ground of arrears of rent from 16.7.72 as well as on the ground that they have made permanent alteration in the suit premises which has caused damage to the premises and also they have committed breach of the terms of tenancy. During the pendency of the suit, by way of amendment, the Appellant-original Plaintiff had incorporated additional ground of subletting of the premises and breach of the conditions that it has been assigned and transferred to one firm Dwarkesh Studio and thereby they have become liable for eviction.

Learned advocate Mr. S.N. Thakkar for the Petitioner referred to the details and submitted that on 18.6.1972 a rent-note was executed between the Appellant and the Defendants-tenants which are produced at exhs. 39 and 40. He submitted that, admittedly, the premises was given to the Respondents-tenants and the tenants were in arrears as the rent fell due in July, 1972 for which the notice was served on 30.10.72. He submitted that a partnership was formed in the name and style of Dwarkesh Studio by both the Respondents-tenants which wold amount to subletting. Therefore, pending hearing of the appeal an amendment was made for adding the ground of subletting. Therefore, the matter was remanded to the Small Causes Court for considering this aspect and thereafter the Appellate Bench decided both the appeals.

Learned advocate Mr. Thakkar submitted that the issue with regard to subletting was negatived and it has not been believed. However, this aspect has not been considered at all by the appellate bench, though it had remanded for decision to the Small Causes Court. He has also submitted that thus the issue of subletting is not at all decided in the appeal, it has not been discussed in the judgment at all by the appellate bench, though it was a specific contention raised by the Appellant-Plaintiff.

Learned advocate Mr. Thakkar submitted that another issue.was with regard to material alteration made without consent of the Petitioner-original Plaintiff and admittedly though it was made in the property, the Respondents-tenants had not taken any consent and both the courts have failed to appreciate this aspect and found that it was not a material alteration, but it was an improvement. Learned advocate Mr. Thakkar, therefore, submitted that whether it is an improvement or alteration, it refers to the alteration in the suit premises without consent and therefore it would amount to breach of the condition, which has not been appreciated by the courts below.

Learned advocate Mr. Thakkar submitted that while considering the issue with regard to the arrears of rent, both the courts have failed to appreciate the report, exh. 60 and it has not been considered by the lower appellate court. He, therefore, submitted that though concurrent findings of facts have been given by the courts below, non-consideration of relevant facts and the issues involved would call for exercise of discretion u/s 29(2) of the Rent Act. He submitted that the observations made by the lower appellate court in Para 22 that the Appellant-Plaintiff had waived the ground of damage or waste to the property or permanent structure is misconceived and therefore as they have failed to appreciate the material and evidence which will go to the root of the matter for the purpose of deciding eviction on the ground of permanent alteration without consent and the breach of the condition, the judgment is erroneous.

Learned advocate Mr. Bharat Jani submitted that the present revision applications are against the concurrent findings of facts and therefore it may not be disturbed. He submitted that the scope of interference with the concurrent findings of facts in exercise of revisional jurisdiction is very limited. He has also referred to the judgment of the Hon''ble Apex Court in the case of Patel Valmik Himatlal and Others Vs. Patel Mohanlal Muljibhai (Dead) Through L.Rs., and submitted that merely because a different view is possible, it does not empower the high Court to reverse the concurrent findings of facts. He has also referred to and relied upon the judgment in the case of Helper Girdharbhai v. Saiyed Mohmad Mirasaheb and Ors. v. reported in 1987 (2) GLH 261.

Learned advocate Mr. Jani submitted that the issues are framed by the court on the basis of the pleadings and the findings of the trial court have been upheld by the lower appellate court and therefore, on re-appreciation of evidence, this Court may not entertain the present revision application. He submitted that when there is appreciation of evidence by both courts below, and again on appreciation of some facts if a different view is possible that would not be sufficient to exercise the revisional powers. He submitted that the issue of subletting was raised subsequently and the matter was remanded and again it has been negatived. He submitted that similarly the issue regarding permanent alteration has not been believed on appreciation of evidence. He submitted that in fact on the aspect of subletting when the matter was remanded back, the findings are in the negative which has not been challenged and there is no appeal. He submitted that therefore the only ground is arrears of rent which has been discussed by both the courts below that the amount has been deposited and therefore the findings arrived at by both the courts below cannot be said to be erroneous. He therefore submitted that the present revision application may not be entertained.

In view of rival submission''s it is required to be considered whether the present revision application can be entertained or not.

It is well-accepted that in light of the settled legal position and catena of judicial pronouncements including the judgment of the Hon''ble Apex Court reported in N. Eswari Rao Vs. K. Swarajya Lakshmi (Late), that concurrent findings of facts are not interfered with easily merely because some other view is possible. A useful reference can also be made to the judgment of Hon''ble Apex Court reported in Patel Valmik Himatlal and Others Vs. Patel Mohanlal Muljibhai (Dead) Through L.Rs., This judgment has referred to an earlier judgment of the Hon''ble Apex Court reported in 1987 (2) GLH 261 : AIR 1987 SC 1782, where the scope and ambit of Section 29(2) of the Rent Act has been considered and it has been observed that it empowers the High Court to correct the errors which may make the decision contrary to law which errors go to the root of the decision, but it does not empower the High Court to re-appreciate the evidence.

Therefore, in light of this decision, the Court would not have been inclined to entertain the present application. However, at the same time, the specific contention raised by learned Counsel Mr. Thakkar that the appellate court has failed to consider the contention with regard to subletting, for which a specific issue was raised. Admittedly, there is no such discussion or finding in the judgment of the lower appellate court, though it may have some reference while discussing about permanent alteration.

Therefore, the present revision applications stand partly allowed. The impugned judgment and order passed by the Appellate Bench of the Small Causes Court, Ahmedabad, in Civil Appeal No. 113 of 1981 and Civil Appeal No. 114 of 1981 confirming the judgment and decree passed in H.R.P. Suit Nos. 4766/76 and 4767/76 passed by the Small Causes, Court, Ahmedabad is hereby quashed and set aside and the matters are remanded back to the Appellate Bench of the Small Causes Court with a direction to decide afresh both the Appeals on all the issues including the issue about subletting on the basis of the material and evidence on record within a period of three months and shall pass a fresh order in accordance with law. No order as to costs.