Devendrabhai Dahyabhai Jani v. Bhanubhai Bapalal Dave

The present Revision Application has been filed by the applicant-original defendant under Section 29 of the Bombay Rent Act and under Section 115 of the Civil Procedure Code for challenging the Judgment & Order dated 03.12.2010 passed by the Learned Judge, Small Cause Court, Ahmedabad in Civil Appeal No.89 of 1999 confirming the Judgment & Decree 11.03.1999 passed by the Learned Judge, Court No.7, Ahmedabad in H.R.P. Suit No.37 of 1993 on the grounds set out in the present Revision Application inter alia contending that both the Courts below have erred in holding that the applicant has acquired suitable accommodation at Vishram Park. Similarly, both the Courts below have erred in holding that the applicant-defendant is not using the rented premises for residential purpose and both the Courts below have failed to appreciate the comparative hardships.

Learned counsel, Mr.Nilesh Pandya referred to the both impugned Judgments of both the Courts below delivered in Civil Appeal No.89 of 1999 as well as H.R.P. Suit No.37 of 1993. Referring to the material and evidence and the discussion made in the impugned orders, he submitted that the Courts below have committed an error in appreciating the evidence while deciding about non-user as the electricity consumption has been shown and the average, which has not taken, is not proper and the gas cylinder and the postal communication are also received at the said address. He, therefore, submitted that the ground of non-user by the applicant-original defendant-tenant has not been established and the Courts below have committed an error.

He also submitted referring to the grounds mentioned in the Appeal filed before the lower appellate court, particularly, ground (e) and also referring to the report of the Court Commissioner that it has been wrongly exhibited and it could not have been relied upon. He has referred to other grounds including ground (k) to emphasize that there is a discrepancy with regard to the area.

He also submitted that the family of the respondent-original plaintiff-landlord of the present applicant is almost same and both are having similar hardship, which has not been appreciated. He, therefore, submitted that the present application may be allowed.

Though the submissions have been made referring to these aspects, the detailed discussion by both the Courts below clearly establish about the fact that the applicant-original defendant-tenant was having alternate premises at Vishram Park, which has been established by the documentary evidence. Not only that, but there is some kind of ipse dixit of the respondent-tenant in making a proper disclosure, which has also been noted for the purpose of considering the conduct. Further, as could be seen while referring to the discussion that the consumption for the electricity has been considered for February, 1992 to December, 1994. Admittedly, the voters' list, Exh.27 for the Ellisbridge division shows the name of the members of the family of the applicant having residential premises at Vishram Park Society. There are other evidence also and on the basis of such evidence, conclusion has been arrived at by both the Courts below about the non-user of the premises and acquisition of the suitable accommodation by the applicant-tenant.

Further, the submission made by the learned counsel, Mr.Pandya referring to ground (e) before the lower Court that the report of the Court Commissioner has wrongly been exhibited cannot be accepted. The lower appellate court has also considered this aspect and in any view of the matter, as could be seen from the judgment of the lower appellate court that the applicant had in fact chosen not to remain present to protract litigation. The submission made by the learned counsel, Mr.Pandya that the Court Commissioner is not examined and, therefore, the evidence or the reliance placed on the report of the Court Commissioner could not have been made also cannot be accepted. As admittedly, the report has been made by the Court Commissioner, which has been exhibited and such contention does not appear to have been taken before the lower appellate court. Therefore, other contentions also cannot be permitted. Moreover, ground of the comparative hardship and equal number of members is also misconceived as both the Courts below have considered the comparative hardship.

Therefore, moot question, which is required to be considered is that when admittedly the applicant-tenant is having alternate accommodation, which he has been using and rented premises is not used, the decree passed by the lower Court in H.R.P. Suit No.37 of 1993 for eviction, which has been confirmed by the lower appellate court in Civil Appeal calls for any interference in exercise of revisional jurisdiction. It cannot be said that the findings and conclusion arrived at are perverse or based on extraneous consideration resulting into miscarriage of justice. Therefore, in exercise of revisional jurisdiction, it does not call for any interference with the impugned order considering the limited scope of revisional jurisdiction.

A useful reference can be made to the observation made by the Hon'ble Apex Court in a judgment reported in AIR 2008 SC 2607 in case of Yunis Ali (Dead) Thru his L. Rs. V/s Khursheed Akram, wherein it has been observed referring to the scope of exercise of discretion under Section 115 of the Indian Penal Code as under :-

It is well-settled position in law that under Section 115 of the Code of Civil Procedure the High Court cannot re-appreciate the evidence and cannot set aside the concurrent findings of the Courts below by taking a different view of the evidence. The High Court is empowered only to interfere with the findings of fact if the findings are perverse or there has been a non-appreciation or non-consideration of the material evidence on record by the courts below. Simply because another view of the evidence may be taken is no ground by the High Court to interfere in its revisional jurisdiction.

Therefore, in view of the findings given by both the Courts below, this Court is not inclined to interfere with the impugned order and, hence, the present Civil Revision Application deserves to be dismissed.

Accordingly, Second Appeal stands dismissed.

After the order was dictated, learned counsel, Mr.Pandya for the applicant has requested for the stay of the order to enable applicant to approach the Hon'ble Apex Court. Therefore, the operation of the order is stayed to enable the applicant to approach the Higher Forum for three weeks. Direct service is permitted.

Sd/-

(RAJESH H.SHUKLA, J.) /patil Top