CRA/3520/2008 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No. 35 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI : ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= BHATIA CHIMANLAL PUNAMCHAND & 1 - Applicant(s) Versus SHARDULKUMAR SESHUKUMAR MAJMUDAR & 1 - Opponent(s) ========================================================= Appearance : MR BHARAT JANI for Applicant(s) : 1 - 2. MR SP MAJMUDAR for Opponent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 14/08/2008 ORAL JUDGMENT 1. This revision is directed against the judgment and order dated 06.10.2007 passed by the learned Addl. District Judge, Patan in Regular Civil Appeal No.49 of 2006 whereby, the said appeal CRA/3520/2008 2/6 JUDGMENT was dismissed and the judgment and decree dated 31.12.2005 passed in Regular Civil Suit No.86 of 1993 was confirmed. 2.0 The facts in brief are that the respondents, original plaintiffs, filed a suit being Regular Civil Suit No.86 of 1993 before the Court of learned 5th Addl. Senior Civil Judge, Patan against the petitioners, original defendants, praying for possession of the property bearing revenue Survey No.9/24/42(1) in Sardargunj area of Patan City on the ground that the petitioner had carried out illegal construction over the said property and that petitioner no. 1 had also sub-let the said property to appellant no. 2 without his consent. 2.1 The said suit was decreed in favour of the respondents. Being aggrieved by the same, the petitioners preferred appeal before the District Court. The appellate Court, after appreciaing the evidence on record, dismissed the appeal preferred by the petitioners. Hence, this revision. 3.0 Mr. Bharat Jani, learned Advocate appearing on behalf of the petitioners, has submitted that as per the Rent Note dated 28.01.1969, the standard rent was fixed at Rs.15/- per month and that on that basis, the entire arrears of rent was deposited with the trial Court before the first date of hearing, i.e. before the issues were framed. He has submitted that the issues were framed vide Exhibit – 14 on 25.04.1995 while the arrears of rent was deposited CRA/3520/2008 3/6 JUDGMENT on 10.04.1995. 3.1 Learned Advocate has further submitted that the requisite rent was sent to the landlord's last known address but, it had come back as the respondent had changed his place of residence, which is established from the cross-examination of the landlord before the trial Court. Hence, the petitioners cannot be said to be tenant in arrears of rent. 3.2 Learned Advocate for the petitioners has relied upon a decision in the case of Devkaran Nenshi Tanna (dead) by LR's v. Manharlal Nenshi & anr. reported in A.I.R. 1994 S.C. 2747 wherein, it has been held that there is no need for a pre-existing dispute to subsist before invoking the jurisdiction of the Court u/s. 11(1)(e) of the Act and that filing of an application for determination of the standard rent itself is a dispute entitling the tenant to take the benefit of Section 12(3)(a). It is also further held therein that the standard rent fixed solely on the basis of compromise between the parties does not preclude the tenant from making a second application for fixation of standard rent. 4. Mr. S.P. Majmudar, learned Advocate 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 CRA/3520/2008 4/6 JUDGMENT Court in this revision. 5. Heard learned counsel for the respective parties and perused the documents on record. As per the Rent Note dated 28.01.1969, the standard rent was fixed at Rs.15/- per month. Both the sides fulfilled their part of the obligations until a dispute arose in the year 1979 as regards the amount of standard rent, which, ultimately, led to the filing of the suit being Regular Civil Suit No.123 of 1979 by the respondents. However, the dispute was amicably resolved and the said suit was disposed of by a consent decree whereby, the standard rent was fixed at Rs.30/- per month. 6. It is pertinent to note that though the trial Court had allowed a specific issue to be raised vide Issue No.1 but, the same was rejected in view of the aforesaid factual aspects. Hence, the decision relied upon by the learned Advocate for the petitioners shall not apply to the facts of the case on hand. 7. Now, even if the ratio laid down in the aforesaid decision is applied to the case on hand, it is not the case of either side that the trial Court has not considered the issue regarding standard rent. It is a matter of record that the standard rent fixed in the year 1969 had remained unchallenged for almost 11 years and that it was challenged, for the first time, only by way of filing Regular Civil Suit No.123 of 1979, which came to be disposed of by a consent decree whereby, the standard rent was fixed at Rs.30/- per month. CRA/3520/2008 5/6 JUDGMENT 8. It is also a matter of record that the petitioners had deposited the rent on the basis of the standard rent fixed on 28.01.1969 and not on the basis of the rent agreed upon in Regular Civil Suit No.123 of 1979, meaning thereby, on the date on which the deposit was made, arrears towards standard rent was very much in existence. In above view of the matter, I am of the opinion that the conclusion arrived at by the trial Court that the petitioners were in arrears of rent is just and legal. Nothing is shown from the record to take a contrary view. 9. So far as the contention raised by the petitioners that the petitioners had dispatched the arrears of rent prior to the issuance of Notice by way of a Money Order in favour of the respondents is concerned, no proof thereof has been produced on record. The petitioners have placed reliance on the admission of the original plaintiff no.2 that he was not present at the address shown in the title-clause of the suit. Be that as it may, it is the duty of the tenant to find out the correct address of the landlord and to make the necessary payment thereof. The tenant cannot take shelter under the umbrella that since the landlord has changed his place of residence, he could not make the payment. It appears from the record that no efforts were made by the petitioners to make the said payment. No cogent evidence was produced on record to show that the petitioners had dispatched the Money Order in question to the respondents. CRA/3520/2008 6/6 JUDGMENT 10. In view of the above discussion, I am of the view that the Courts below were completely justified in passing the impugned judgments. I am in complete agreement with the reasonings given by and the findings arrived at by both the Court below and hence, find no reasons to interfere in this revision. 11. For the foregoing reasons, the petition is dismissed. Time to vacate the premises in question is granted up to 15.11.2008 on condition that the petitioners will file an Undertaking before this Court, within a period of three weeks from today, to the effect that they will vacate the premises in question before 15.11.2008 and that they will continue to pay mesne profits to the respondents on regular basis till that date. No order as to costs. [K. S. JHAVERI, J.] Pravin/*