IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No 1099 of 1992 For Approval and Signature: Hon'ble MR.JUSTICE K.M.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- UMAJI M CHODHARY Versus BHAKTIRAM ATMARAM -------------------------------------------------------------- Appearance: MR HR PRAJAPATI for Petitioner MR RC DELIWALA for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE K.M.MEHTA Date of decision: 09/11/2001 C.A.V. JUDGEMENT 1. Umaji Madhuji Chodhary, petitioner, original plaintiff, has filed this revision application under Section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act (hereinafter referred to as `the Bombay Rent Act') challenging the judgement and decree dated 16.7.1990 passed by the Appellate Bench of the Small Causes Court at Ahmedabad in Civil Appeal No. 76 of 1986 wherein the learned judge was pleased to allow the appeal and set aside the decree for possession passed by the learned trial judge in H.R.P. Suit No. 3911/1981 and also held that the standard rent of the suit premises is fixed at Rs. 23/- per month inclusive of taxes and the plaintiff is entitled to recover Rs. 35/- from the defendant as claimed in the suit. FACTS: 2.1 There is a property bearing survey No. 307 and M.C. No. 1822/2 and 1822/3 situated in juna Wadaj (which is hereinafter referred to as `the suit property') which consisted of two rooms admeasuring 9.10 x 14 ft., one kitchen admeasuring 3.8 x 6 ft. and bath room and latrine admeasuring 13.6 x 7.9 ft. It was averred by the plaintiff petitioner herein in the said suit that he has purchased the suit property from Ranchhodlal Tribhovandas Patel and Ramanlal Tribhovandas Patel on 12.12.1977 under registered Sale Deed and the defendant is a tenant on the ground floor in the said house for which he was given attornment notice dated 12.12.1977. It was averred that the defendant is a tenant at a monthly rent of Rs. 23/and he has not paid the rent from 12.12.1977 and he was in arrears of rent and liable to be evicted. It was also stated that the municipal tax is to be borne by the defendant appellant. It was averred that when the plaintiff purchased the suit house, an assurance was given by the defendant to vacate the premises in his possession and therefore the plaintiff had spent Rs. 8,000/- to Rs. 9,000/- for the repairing of the suit premises and thereafter, the plaintiff requested the defendant to vacate the suit premises but he did not vacate the same and therefore the plaintiff is entitled to claim the rent at the rate of Rs. 35/- per month instead of Rs. 23/-. It was further stated that the defendant has obtained suitable accommodation in Gujarat Housing Board situated at Chandkheda, Sabarmati, Ahmedabad and claimed decree for possession under Section 13(1)(L) of the Bombay Rent Control Act and the defendant is liable to be evicted. It was also stated that the defendant was served with a notice dated 24.10.1978 whereby his tenancy was terminated and he was called upon to hand over the possession of the suit premises and to pay rent at the rate of Rs. 35/- per month. But the defendant did not act as per the notice and therefore the suit was filed. 2.2 The defendant-respondent filed his written statement in the suit at Exh. 11 and contended that the suit is not maintainable at law. It was also contended that the plaintiff had accepted rent from 12.12.1977 to 11.1.1978 but thereafter, the plaintiff asked to increase the rent and did not accept the rent paid by him at the rate of Rs. 23/- per month. The defendant filed standard rent application in the court and therefore the plaintiff gave eviction notice dated 24.10.1978. It was contended that the suit notice was also replied by the defendant on 21.2.1979. It was contended that thereafter the plaintiff filed H.R.P. Suit No. 4597/1978 on the same ground which was dismissed by the court on 30.9.1981 and the defendant was awarded a compensatory cost of Rs. 100/- for the said suit. It was further contended that the present suit is filed on the same ground on which previous suit was filed and therefore the same is not maintainable at law. As regards alternative accommodation, it was contended that the suit premises in Chandkheda is in possession of the eldest son of the defendant who is married and resides there with his wife and children. It was pointed out that the premise in Chandkheda consists only one room and Varanda and therefore it cannot be said to be a suitable residence. It was contended that no cause of action has arisen for the plaintiff to file such suit and ultimately it is prayed that the suit may be dismissed with costs. 2.3 The learned trial judge after recording the oral evidence and after perusing documents by his judgement and decree dated 5.2.1986 was pleased to hold that the plaintiff failed to prove that the defendant is in arrears of rent for more than six years. However, the learned trial judge held that the defendant has obtained suitable accommodation at Chandkheda and that he is the owner of that premises and he is possession of the same. On that ground the learned trial judge ordered and declared that the plaintiff do recover vacant possession of the suit premises from the defendant. The learned trial judge also fixed standard rent at Rs. 23/- inclusive of taxes and also directed that the plaintiff do recover Rs. 35/- from the amount deposited by the defendant in the court and the defendant was given time upto 31.8.1986 to vacate the suit premises. 2.4 Being aggrieved and dissatisfied by the said judgement and decree passed by the learned trial judge, the defendant filed Civil Appeal No. 76 of 1986 before the Appellate Bench of Small Causes Court at Ahmedabad somewhere on 18.3.1986. Before the appellate Bench the defendant also gave an application exh. 18 and in that application the appellant prayed that he may be allowed to produce certain documentary evidence. The application Exh. 18 given by the appellant-defendant under Order 41 Rules 29 and 27 of the C.P.C. was allowed by the appellate Bench on 17.7.1989. It was stated that the said application has been allowed with the consent of the respondent. In view of this order passed below application Ex. 18, the appellant-defendant not only produced certain documentary evidence in this case but also he adduced oral evidence in this matter. The defendant Bhaktiram Atmaram is examined before the appellate Bench at Exh. 27. 2.5 The appellate Bench of Small Causes Court, Ahmedabad, in Civil Appeal No. 76 of 1996 by its judgement and decree dated 16.7.1990 was pleased to set aside the decree for possession passed by the learned Trial Judge in H.R.P. No. 3911 of 1981 and the plaintiff's prayer for possession in the suit was rejected. The appellate Bench held that the trial judge has erred in holding that the defendant has acquired possession of the premises in question and he has been allowed suitable accommodation. The learned appellate judge held that looking to the strength of the family, it cannot be said that the tenant has acquired alternative accommodation. 2.6 As stated above, the plaintiff landlord has filed this Revision Application before this court challenging the said judgement and decree of the appellate court somewhere on 7.10.1990. During the pendency of the proceedings the petitioner plaintiff had filed Civil Application under Order 41 Rule 27 of the C.P.C. to bring on record subsequent events/additional evidences of the Civil Revision Application. It is submitted that when the applicant had filed the suit the opponent had acquired the premises situated at Gujarat Housing Board, Chandkheda, Ahmedabad. Now during the pendency of the present petition, the opponent-tenant has also acquired another premises situated at Bungalow No. 36, Narsinhnagar Society, Near Panchalnagar, Rampair Tekra, Old Wadaj. The new premises consist of one drawing room, one kitchen, store room, two latrines, bathroom and cellar wherein rooms have been constructed. Therefore, the petitioner-plaintiff placed on record panchnama of the newly acquired premises by the court Commissioner along what map prepared in HRP suit No. 59/1999. The tenant has not filed any reply to this Civil Application 2.7 The plaintiff landlord has filed another application being Civil Application No. 6376 of 1999 for bringing subsequent events on record. Copy of panchnama is placed on record to show that the tenant is not residing in the suit premises but he is doing business of sarees. The court Commissioner has prepared panchnama in HRP Suit No. 59/99. 2.8 It may be stated that the respondent tenant has filed reply to the said Civil Application No. 6376/1999 and contended that the additional evidence has no bearing on the question and issues involved in the Civil Revision Application. If there is any change of user of the premises, it is entirely a separate and distinct ground and this new ground cannot be raised for the first time in Civil Revision Application. It was stated that the opponent resides in the suit premises and disputed the question of fact regarding user of the premises. 3. Mr. Prajapati, learned counsel for the petitioner submitted that the order of the appellate court dated 16.7.1990 wherein the appeal of the tenant is allowed is clearly illegal and contrary to the facts and evidence on record. He submitted that the appellate court has committed an error in allowing the appeal of the tenant to lead addition evidence under Order 41 Rule 27 of the C.P.C. He submitted that in view of Section 107(1)(d) of the C.P.C. read with Order 41 Rule 22 of the C.P.C. the appellate court has power and jurisdiction to take additional evidence or require such evidence to be taken subject to the conditions laid down in Rule 27 of Order 41 in which the appellate court may admit additional evidence whether oral or documentary. He submitted that the landlord only gave consent for filing the application under Order 41 Rule 27 of the application at Exh. 18 on 17.7.1989. However, the landlord did not give consent for allowing the application on record. It is submitted that it is not the case of the tenant that he desires to bring additional evidence on record but the lower court has improperly refused to admit evidence which ought to have been admitted. It is also not the case of the tenant that such additional evidence was not within his knowledge or could not after exercise of due diligence, be produced by him at that time when the lower court passed the decree. According to him the tenant has failed to establish that with the best efforts such additional evidence could not have been adduced at the first instance. It was submitted that nowhere the appellate court has recorded that the the court requires additional evidence to enable it to pronounce the judgement. It was submitted that the appellate court ought to have considered that the additional evidence sought to be produced by the tenant was very much available to him during the trial and no reasons are given for not producing the same during the course of trial. The appellate court ought not to have allowed the tenant to produce the additional evidence because the provisions of Rule 27 are not intended to allow a litigant who has been unsuccessful in lower court to patch up the weak parts of his case and to fill in gaps. He relied on the judgement of the Hon'ble Supreme Court in the case of STATE OF U.P. VS. MANBODHAN LAL reported in AIR 1968 SC 406. 3.1 The learned counsel further submitted that the appellate court ought to have decided that it requires additional evidence and not of the litigant. The appellate court ought to have held that additional evidence is required to pronounce the judgement. All the same the appellate court cannot pronounce the judgement in this behalf. He has relied on the judgement in the case of PREMIER AUTOMOBILES VS. KABIRUNISSA reported in AIR 1991 SC 91. In view of the same, he submitted that the tenant has failed to establish that there was compliance of Order 41 Rule 27 of the C.P.C. and therefore the order allowing tenant to produce additional evidence is bad in law and subsequently the judgement and order passed by the learned Trial Judge required to be quashed and set aside on this ground. 3.2 The learned counsel further submitted that the lower appellate court has reversed the judgement on the ground that looking to the strength of the family members and area of the alternative premises acquired by the tenant, it cannot be said that it is suitable to the tenant and his family members. The learned counsel has submitted that looking to the area of both the premises, i.e. suit premises as well as the alternative premises acquired by the tenant, it can be said that the alternative premises is big in area than the area of the suit premises. It was the case of the tenant before the trial court that he has sold out the acquired premises as his son could not find it convenient. However, he could not produce any evidence to show that the said premises was sold out by him. Anyway, he stated that the trial court has come to the conclusion that the tenant has acquired alternative suit premises in this behalf. He therefore submitted that the tenant is not entitled to retain the suit premises and is required to be evicted. He submitted that the appellate court has committed a grave error in holding that the alternative premises acquired by the tenant is not suitable to him. 3.3 The learned counsel for the petitioner further submitted that the landlord filed two Civil Applications which I have indicated earlier and contended that the tenant has acquired another premises and this fact the court should take into consideration in this behalf. He submitted that in this case provisions of Order 41 Rule 27 of the C.P.C. are clearly applicable as all the events have been taken place only after the decree passed by the appellate court and therefore he is entitled to produce the additional evidence on record. He further submitted that the tenant has acquired alternative premises and the court should pass order in favour of the landlord under Section 13(1)(L) of the Bombay rent Act. In this connection he has pointed out that two Civil Applications which are pending before the court and that the tenant has acquired suitable premises in this behalf. For the proposition the court can either take into consideration subsequent event after decree passed by the trial court. e has relied on the judgement of the Hon'ble Supreme Court in the case of GURUDEV SINGH VS. SURJIT KUMAR ALIAS JIT AND ANOTHER reported in (1996) 9 SCC 219. He has also relied on another decision of the Hon'ble Supreme Court in the case of M. LAXMI & CO. VS. A.R. DESHPANDE reported in AIR 1973 SC 171 and another judgement of this court and another judgement of this court in the case of LEGAL REP. AND HEIRS OF KARSANDAS GORDHANDAS PARMAR VS. BAHADURSINGH MADHURSINGH DODIS reported in 1999(1) GLH 543. He therefore submitted that in the facts and circumstances of the case it is established beyond shadow of doubt that (i) the tenant has acquired another premises much bigger in size than the suit property during the pendency of the revision application other than the acquired property at the time of filing of the suit. (ii) The tenant is not using the the suit premises for the residential purpose but he was using it for the commercial purposes. He therefore submitted that in view of subsequent event the tenant has acquired another residential accommodation at Narsinhnagar, Bungalow No. 30, Near Panchalnagar, Rampir Tekra, Old Vadaj, Ahmedabad City where the tenant was found residing during the course of panchnama carried out on 8.8.1995 by the Court Commissioner in HRP Suit No. 3897 of 1987 in presence of son of the tenant. This document has been produced before this court by way of Civil Application No. 2245 of 1997 for which the tenant has decided not to file any reply and therefore the say of the petitioner landlord is not denied and in fact to that extent it is not disputed. The learned counsel therefore submitted that comparing the suit premise vis-a-vis the premises acquired by the tenant before filing of the suit as well as during pendency of this revision application, it is more than clear that the tenant has acquired suitable alternative accommodation and therefore he is not entitle to keep possession of the suit premises. In view of the same, on account of acquiring suitable alternative accommodation, the judgement and decree passed by the lower appellate court is required to be modified and tenant may be directed to evict the suit premises. 3.4 The learned counsel further submitted that during the pendency of the revision application the petitioner came to know that the tenant is carrying on business of sarees in the suit premises instead of residing there. It was submitted that in HRP Suit No. 59 of 1989 between the petitioner and the respondent-tenant before the Small Causes Court at Ahmedabad, a panchnama of the suit premises has been carried out by the Court Commissioner on 19.1.1999 and it has been found that the tenant is doing business of sarees. In view of that it cannot be said that alternative accommodation acquired by the tenant is not suitable to him and his family members. It is submitted that the lower appellate court has reversed the decree passed by the trial court only on the ground of suitability by holding that looking to the strength of the family member of the tenant it cannot be said that the tenant has acquired suitable alternative accommodation. In view of the subsequent events, it cannot be said that the tenant has not acquired suitable alternative accommodation. It is submitted that as on today, no son of the tenant is residing in the suit premises along with their family. All sons have separated and they are having their own residents. Therefore, the suitability part has no more in existence and therefore it cannot be said that the tenant has not acquired suitable alternative accommodation. Therefore, the tenant is required to be evicted from the suit premises. 4. On behalf of the respondent H.M. Dave, learned advocate, argued before me. She contended before me that as regards application under Order 41 Rule 27 of the C.P.C. the tenant produced two documents before the appellate court by way of additional evidence namely, ration card and map of another flat (which was sold out during the pendency of the suit). She contended that when the application under Order 41 Rule 27 was preferred, the present opponent made an endorsement on Exh. 18 and another endorsement on Exh. 19 and thereafter the reply given by the opponent at Exh. 20. Arguments were advanced and thereafter order was passed. Oral evidence was also adduced. The opponent was examined and cross-examined by the advocates of both the parties. Once the appellant has participated in the very issue, he has got no right to agitate the issue at the revisional stage. The appellant is not entitled to raise this contention. Therefore she submitted that the contentions of the learned counsel for the petitioner that the appellate court has erred in admitting the additional evidence has no force. 4.1 The learned counsel for the respondent further contended that one of the grounds on which the trial court has passed decree of possession was that the tenant has acquired suitable alternative accommodation. The learned counsel submitted that the case of the opponent was that he has acquired one house which is smaller than the suit premises. The learned counsel for the respondent stated that the tenant has produced ration card and map of new premises and the same can be produced in the interest of justice which is a public document. She contended that both these documents which are produced under Order 41 Rule 27 are relevant in view of provisions of Section 13(1)(L) of the Bombay Rent Act. The learned counsel for the respondent further submitted that in the appeal preferred by the opponent, the ration card and may of the new premises had been produced as additional evidence. The learned counsel for the respondent has submitted that there is no irregularity in allowing additional evidence by the appellate court and this court can always appreciate the fact whether the ration card which is a public document is necessary document in pronouncing the judgement or not. She submitted that as regards suitable accommodation, opponent-tenant's case was that he had purchased house for his sons and the sons with 4 family members were residing in that house which was sold out during the pendency of the suit. This premises was not suitable for him. The premises is outside the limit of Ahmedabad Municipal Corporation. He never resided in that premises at any point of time. CIVIL APPLICATION NO. 2087/1997: 4.1A The tenant has not filed any reply to the said application. However, before me the learned counsel has contended that the petitioner has no right to produce additional evidence in this behalf. She contended that the opponent is residing in the suit premises. Therefore, the contention of acquisition of suitable premises is not tenable. It was contended that no plea is raised in respect of non-user or change of user. Therefore, the plea cannot be taken into consideration by way of additional evidence in revision application. CIVIL APPLICATION NO. 6376 OF 1999: 4.1B The learned counsel contended that the scope of revision is limited. It was submitted that the revisional court cannot take into consideration entirely a new plea. She submitted that the opponent has preferred HRP Suit on the ground of change of user in the court of Small Causes Court. It was submitted that the opponent carries on his business at Maruti Centre and address is given as: 483/4, Nr. Mandir Vas, Veg. Market, New Wadaj, Ahmedabad. It was submitted that the bill book was found and the address in the bill book is also mentioned in the panchnama. It was submitted that the opponent was residing at the suit premises, the panchnama is not a proved document. 4.2 At the time of hearing of this revision application the learned counsel for the petitioner has relied on the judgement in the case of STATE OF U.P. VS. MANBODHAN LAL reported in AIR 1968 SC 406. He submitted that nowhere the appellate court has recorded that the court requires additional evidence to enable them to pronounce the judgement. It is submitted that the appellate court ought to have considered that the additional evidence sought to be produced by the tenant was very much available to him during the trial and no reasons have been given for not producing the same during the course of trial. The appellate court ought not to have allowed the tenant to produce the additional evidence because the provisions of Rule 27 are not intended to allow the litigant who has been unsuccessful in the lower court to patch up the weak parts of this case and fill in gaps. 4.3 The learned counsel for the petitioner has relied on the decision of the Hon'ble Supreme Court in the case of M. LAXMI & CO. VS. A.R. DESHPANDE particularly