SA/155/1986 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No. 155 of 1986 For Approval and Signature: HONOURABLE MR.JUSTICE R.S.GARG ========================================================= 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 ? ========================================================= BAI GUNABEN VITHALBHAI MARATHI - Appellant(s) Versus BAI RAMABEN PARSHOTAMDAS JOSHI - Defendant(s) ========================================================= Appearance : MR MEHUL S SHAH for Appellant None for Respondent ========================================================= CORAM : HONOURABLE MR.JUSTICE R.S.GARG Date : 05/12/2006 ORAL JUDGMENT 1. Mr. Mehul S. Shah, learned counsel for the appellant. None for the respondent though name of Shri Harshad M. Thakore appears. SA/155/1986 2/4 JUDGMENT 2. The two courts below have held that the present appellant-defendant is not a tenant in the suit premises and the two courts below accordingly granted the decree in favour of the plaintiff. 3. The appeal has been admitted for hearing the parties on the following substantial question of law. “Whether the defendant is a tenant protected under the Bombay Rent Act?” 4. The only question on which the appeal has been admitted would be dependent upon the answer of a fact finding inquiry. When the two courts have found that the defendant is not a tenant, then it would not be possible for the second appellate court to reappreciate the evidence and come to a different finding. It is not the case of the appellant that findings are perverse, contrary to the records or evidence which was material has not been read or the material which was not available on the records has been read in favour of the respondent-plaintiff. According SA/155/1986 3/4 JUDGMENT to Mr. Shah, the plaintiff had made an admission that he was receiving a sum of Rs.15/- as rent therefor. Under the circumstances, in view of the said admission, the appellate court should have dismissed the suit. A perusal of the judgment of the appellate court would show that that piece of evidence has been considered by the Court in the appeal and the court has observed that this was some loose statement because rent would not be Rs.15/- per month looking to the nature of the property. It may be a case of wrong appreciation, but it is not a case of mis-appreciation of evidence. When the two courts as fact finding court have found that the appellant is not the tenant, then the provisions of the Bombay Rent Act would not be applicable and the plaintiff cannot seek any protection under the Bombay Rent Act. The question is answered in the negative. 5. The appeal deserves to and is accordingly dismissed. No costs. [R.S. GARG, J.] SA/155/1986 4/4 JUDGMENT pirzada/-