Mehmood Kasamji Jamalji vs Mohammed Raza-Ul-Hak Kazi and Others

K.S. Jhaveri, J.—This revision u/s 29(2) of the Bombay Rents, Hotels & Lodging House Rates Control Act, 1947 is preferred against the judgment and order dated 28.07.1997 passed by the learned appellate Bench, Small Causes Court, Ahmedabad in Civil Appeal No. 30 of 1990 whereby, the said appeal was dismissed and the judgment and decree dated 29.12.1989 passed by the learned Small Causes Court No. 7, Ahmedabad in H.R.P. Suit No. 33 of 1984 was confirmed.

The facts in brief leading rise to the filing of the present application are that Respondents Nos. 1 to 6, original Plaintiffs, filed a suit being H.R.P. Suit No. 33 of 1984 against Respondent Nos. 7, 8, 10 to 12 - original Defendant Nos. 3 to 7 and the applicant herein-original Defendant No. 1 praying to recover the possession of the suit premises and arrears of rent of the property bearing Survey No. 4540/26/27/41/42 situated in Jamalpur Ward-1B, Ahmedabad. The trial Court, after hearing the parties and after considering the evidence on record, decreed the suit in favour of the Respondent Nos. 1 to 6 - original Plaintiffs.

2.1 Being aggrieved by the same, the applicant-original Defendant No. 1 preferred an appeal before the appellate Bench, Small Causes Court, Ahmedabad. The lower appellate Bench after considering the entire evidence on record, dismissed the appeal preferred by the applicant-original Defendant No. 1. Hence, this revision application.

Mr. Mehul Shah, learned Counsel for the applicant-original Defendant No. 1 has contended that since the Government had acquired the land under the Land Acquisition Act, the Respondents-original Plaintiffs ceased to be the landlords and therefore, they are not entitled to file the suit. The learned Counsel further contended that the lower appellate Court ought not to have passed decree for possession on the grounds of arrears of rent and unlawful sub-letting. He has submitted that the liability to pay municipal taxes and education cess is of the Respondents-original Plaintiffs.

Mr. M.B. Gandhi, learned Counsel for the Respondents, has supported the orders passed by both the Courts below and has submitted that the Courts below were completely justified in passing the impugned judgments as there is cogent evidence on record to that effect. Hence, no interference is warranted from this Court in this revision.

Heard learned Counsel for the respective parties and perused the documents on record. While appreciating the evidence on record, the trial Court has recorded a finding that the Government has not taken over the possession of the land therefore, the Respondents-original Plaintiffs are entitled to file the suit and they cannot be ceased to be the landlords of the suit land. Apart from that P.W. 1 has also stated that the land acquisition proceeding had been started by the Government since 1960 and it is still in process but the Government had not taken over the possession of the suit land till today. In support of his say he had produced letter dated 27.05.1987 of Land Acquisition Officer, Ahmedabad at Exhibit-45, which shows that the Respondents-original Plaintiffs are still in possession of the suit land and they are the landlords of the said land. The said testimony of P.W.1 has not been cross-examined by the applicant-original Defendants.

It is further recorded that the applicant-original Defendant had not deposited the arrears of rent since 1982 and he is not paying the rent. The said fact is established from the notice at Exhibit-43. Though there is no dispute regarding the standard rent, the applicant-original Defendants had not paid the rent. Apart from that as per the statement of P.W.-1, the applicant-original Defendant no1 had sub-let the suit premises to Defendants Nos. 2 to 7 and the applicant-original Defendant No. 1 is recovering rent from the original Defendants Nos. 2 to 7. Moreover, as per terms and conditions of rent note [Exhibit-42] which was executed on 19.01.1979, applicant-original Defendant No. 1 was restrained to sublet the suit premises without the consent of the Respondents-original Plaintiffs. Though there was such condition, applicant-original Defendant No. 1 had sublet the suit premises to original Defendants Nos. 2 to 7, as per the testimony of P.W.-1 and the same is also not challenged by original Defendant No. 1. Thus, the Court below was completely justified in arriving at a conclusion that the applicant-original Defendant No. 1 was tenant in arrears and that he has unlawfully sublet the suit premises.

Looking to the evidence on record, I am of the view that the Court below was completely justified in dismissing the appeal of applicant-Appellant. I am in complete agreement with the reasonings given by and the findings arrived at by both the Courts below and hence, find no reasons to interfere in this application.

For the foregoing reasons, the application is dismissed. Rule is discharged. Interim relief if any, stands vacated. No order as to costs.