IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No 156 of 1985 Hon'ble MR.JUSTICE Y.B.BHATT ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES 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 -------------------------------------------------------------- VINAY TRADING CO Versus PRAVINCHANDRA V SHAH -------------------------------------------------------------- Appearance: MR PM THAKKAR for Petitioners MR ND NANAVATI for Respondent -------------------------------------------------------------- CORAM : MR.JUSTICE Y.B.BHATT Date of decision: 11/02/2000 ORAL JUDGEMENT 1. This is a revision under section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 at the instance of the tenants (original defendants). 2. Before proceeding with the merits of the matter it would be pertinent to bear in mind the principles laid down by the Supreme Court while dealing with the revisions arising under section 29(2) of the said Act. The Supreme Court in the case of Patel Valmik Himatlal & Others Vs. Patel Mohanlal Muljibhai [1998(2) GLH 736 = AIR 1998 SC 3325], while approving and reiterating the principles laid down in its earlier decision in the case of Helper Girdharbhai Vs. Saiyad Mohmad Mirasaheb Kadri [AIR 1987 SC 1782], held that High Court cannot function as a court of appeal, cannot reappreciate the evidence on record, cannot discard concurrent findings of fact based on evidence recorded by the courts below, and cannot interfere on grounds of inadequacy or insufficiency of evidence, and cannot interfere, except in cases where conclusions drawn by the courts below are on the basis of no evidence at all, or are perverse. A different interpretation on facts is also not possible merely because another view on the same set of facts may just be possible. 3. The respondent landlord had filed a suit under the provisions of section 28 of the Bombay Rent Act for a decree of eviction against the petitioners tenants on the ground of arrears of rent of more than six months. The trial court, after appreciating the evidence on record, found that the tenant was in fact in arrears of rent of more than six months, that he had not deposited in court the rent regularly (during the course of the suit and also the appeal) and was, therefore, not entitled to the benefit of section 12(3)(b) of the Rent Act. The trial court, therefore, passed a decree for eviction and the consequential decree for arrears of rent, municipal taxes, education cess, etc. The tenant thereupon challenged this decree of eviction by way of appeal under section 29(1) of the Rent Act. The lower appellate court, after considering all the submissions of the appellants tenants and after reappreciating the evidence on record, confirmed the decree of eviction granted by the trial court in toto. The present revision arises under section 29(2) of the Bombay Rent Act challenging the aforesaid two judgements and decrees. 4. I have heard the learned counsel for the parties extensively on the merits of the matter and I have perused such documents on record to which my attention has been drawn. Learned counsel for the petitioners is unable to make out a case for interfering with the concurrent findings of fact, particularly when he could not urge let alone establish that such findings of fact are in any way perverse, particularly when it is found that the decree of eviction would be justified even on the admitted facts of the case. 5. Apart from the fact situation that the concurrent findings of fact recorded by the two courts below do not justify interference in the present revision under section 29(2) of the Bombay Rent Act, I find that the courts below have proceeded to decide the case under the provisions of section 12(3)(b), which gives a far larger latitude to the tenants. On the admitted facts of the case I am of the opinion that the case would fall under section 12(3)(a) of the Bombay Rent Act. 6. It has been repeatedly observed both by the trial court as well as by the lower appellate court that "there is no dispute that the rent from 1.1.1975 for more than six months had become due on the date of the suit notice dated 1st August 1977, a copy of which is produced at Exh.31 in the record of Regular Civil Suit No.591/77. There is also no dispute that after receiving the suit notice the tenant had not paid up the dues as demanded in the suit notice, nor had the tenants raised a dispute as to standard rent within the meaning of section 11(1) of the Bombay Rent Act within 30 days of the receipt of the suit notice. It is an admitted fact that the contention as to standard rent was taken for the first time in the written statement. Clearly a contention as to standard rent, which is taken for the first time in the written statement, is not sufficient to take the case out of the purview of section 12(3)(a), when arrears of rent of more than six months are admitted. This position is well settled by various decisions of the Supreme Court and particularly in the case of Harbanslal Jagmohandas Vs. Prabhudas Shivlal (AIR 1976 SC 2005), and a relatively recent decision of the Supreme Court in the case of Joshi Bhuraram Dattaram Vs. Jivibai D. Mulchand (1995 Supp(3) SCC 416). Had the two courts below been conscious of the well settled case law on the subject, they would not have dealt with the case under section 12(3)(b), but under section 12(3)(a) of the Bombay Rent Act. When it is found that the rent is payable by the month (on this there is no dispute in the present case), and there is no dispute regarding the amount of standard rent or permitted increase, if such rent is in arrears for a period of six months or more, and the tenant neglects to make payment thereof until the expiration of period of one month after the suit notice, the court may pass a decree for eviction in such suit for recovery of possession. As already discussed hereinabove, there is no dispute that the rent was payable by the month, there was no dispute regarding the amount of standard rent (no dispute being raised within one month of receipt of the statutory notice) and there is no dispute that the tenant had not paid the due amount within one month of receipt of the statutory notice. On these facts both the courts could have passed a decree for eviction under section 13(3)(a) of the Bombay Rent Act. In fact this is what the two courts ought to have done. However, the mere fact that the courts below gave a higher latitude to the tenants and further opportunity to comply with the provisions of section 12(3)(b), would not be of any assistance to the petitioners tenants. In any case, even under the larger latitude available under section 12(3)(b), both the courts have found on facts established from the evidence on record, that the tenants had failed to make deposit in the court of the amounts due and payable till the conclusion of the appeal and that therefore they have also lost the protection of section 12(3)(b). 7. On the facts of the case, therefore, I find that the decree passed by the trial court as also the lower appellate court is eminently justified and calls for no interference by this court in the present revision. This revision is therefore dismissed. Rule is discharged with no order as to costs. Ad interim relief stands vacated. 8. At this stage learned counsel for the petitioners tenants requests that some time be granted to the tenants to vacate the premises in question. By consent of learned counsel for the respondent landlord time is granted to the tenants to vacate the premises upto 30th June 2000, subject to both the petitioners filing the appropriate undertaking on usual terms in this court latest by 15th March 2000. It is clearly understood that there shall be no extension of time for filing the undertaking in question. ********