CRA/278/2006 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No. 278 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 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 ? ========================================================= WIDOW JAYABEN KAMESHWARBHAI JOSHI - Applicant Versus ARVINDKUMAR MATHURDAS CHANDRANI – Respondent ========================================================= Appearance : MR RC KAKKAD for Applicants : 1, 1.2.1,1.2.2 MR KIRTIDEV R DAVE for Respondent : 1, MR RAHUL K DAVE for Respondent : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 03/03/2008 ORAL JUDGMENT 1. Heard learned counsel for the parties. CRA/278/2006 2/7 JUDGMENT 2. The present applicants, who happen to be the tenants of the suit premises has preferred this Civil Revision Application under Section 29(2) of the Bombay Rent Act challenging the judgment and decree passed by learned District Judge, 3rd Fast Track Court, Junagadh passed in Regular Civil Appeal No. 13 of 2002 on 29.08.2006. 3. This Court (Coram: K.M.Mehta, J.)(as he then was) while issuing notice on 24.11.2006 granted stay regarding possession. 4. Facts in brief deserve to be set out in order to appreciate the controversy in the present Civil Revision Application. 5. The respondents-landlords filed suit being R.C.S. No. 131 of 1997 against the tenant of the rented shop in question on ground of non-payment of rent. The shop premises being shop No. 14 was rented to the tenant on 18th March, 1987 and the Bhada Chitthi i.e rent note to that effect was effected on 18.3.1989. The tenant had not bothered to pay rent and other government taxes for long times. The landlord through his advocate issued notice on 4.11.1992. Thereafter, a kind of understanding had been arrived at between the parties. Then again, in an understanding was arrived, whereunder, it was agreed that the tenant was to make regular payment of rent and other taxes. Tenant did not CRA/278/2006 3/7 JUDGMENT bother to pay rent and other taxes. Hence, notice on 14.10.1996 was required to be issued and ultimately, a notice on 15.8.1997 came to be issued terminating the tenancy and demanding rent, which was due since last 57½ months aggregating to Rs.10,305=30ps. Notice was produced on record. The tenant was duly served and was represented by an advocate. During the pendency of the suit, the tenant had not paid amount towards rent and had not given any instructions to his advocate. The advocate of the tenant had to even file a 'no instruction purshish' and even after filing 'no instruction purshish', the tenant was issued notice, which was served upon him and no written statement controverting the version of the landlord came to be filed nor any evidence came to be led against the version of the landlord. The trial Court after recording the evidences and its finding based thereon, decreed the suit in favour of the landlord on 21.12.2001. The tenant assailed the same by preferring Regular Civil Appeal No. 13 of 2002 before the District Judge and 3rd F.T.C at Junagadh, which Court also after discussion the merits of the matter at length, dismissed the same vide order dated 29.8.2006. Thus, being aggrieved and dissatisfied with the same, the applicants have preferred present Civil Revision Application under Section 29 of the Bombay Rent Act. CRA/278/2006 4/7 JUDGMENT 6. Shri Kakkad, learned counsel appearing for the applicants has submitted that though the tenant did not appear nor had he filed written statement, a duty was caste upon his advocate to file appropriate written statement and a duty was also caste upon the concerned court to pronounce the judgment only after ascertaining the truth in the matter. Based upon the evidences, the trial Court has in fact recorded in its judgment at one place that details regarding arrears of rent from which date the tenant is in arrears etc. have not been mentioned by the plaintiff. Despite this basic infirmity in the plaint, the trial Court decreed the suit which ought to have been appreciated by the Appellate Court. As the Appellate Court has not appreciated the same, Civil Revision Application deserves to be allowed. Shri Kakkad has submitted that the tenant cannot be made to suffer eviction decree on account of any lapse on the part of their advocate. In the instant case, as could be seen from the record, the advocate did not bother to file written statement and even the trial Court has not thereafter taken sufficient care to see that the defendant was served properly and was given adequate opportunity to defend the case as his advocate has filed 'no instruction purshish' before the Court. He accordingly submitted that CRA/278/2006 5/7 JUDGMENT the present Civil Revision Application deserves to be allowed. 7. Shri K.R.Dave, learned counsel appearing for the respondent has submitted that the tenant has no right to make grievance with regard to proceedings conducted before the trial Court. The notice with regard to arrears had been duly served and the evidence to that effect has also been produced on record, which the trial Court has believed. The non-mentioning of details in the deposition of the plaintiff, though the details were mentioned in the plaint that in itself would not be sufficient to dismiss the suit. In fact, the evidences on record unequivocally lead to one and only conclusion that the tenant did not bother to pay rent when the rent was due since last 57½ months and thereafter also no action is taken whatsoever by the tenant to make up the deficiency which would have sufficient to award the eviction under the Bombay Rent Act. Shri Dave submits that in view of this, this Civil Revision Application is patently misconceived and same deserves to be dismissed. 8. This court has heard learned counsel for the parties at length and perused the papers of Civil Revision Application. 9. The trial Court's decision in fact, go to show CRA/278/2006 6/7 JUDGMENT that the suit is decreed in favour of the landlord on the ground that the legal notice had in fact been served as there were sufficient documentary proof on the record. The notice dated 15.8.1997 demanding arrears of rent and terminating the tenancy was in fact served upon the defendant-tenant and despite that when no action was taken, the suit was required to be filed. During the suit proceedings also as could be seen from the findings recorded by the trial Court, the tenant has not bothered to make up deficiency which would have warranted his eviction, if not ratified. The advocate of the defendant also cannot be said to be at fault as on number of occasions, he was required to seek time and ultimately, after having failed in his attempt to seek any instruction, he was constrained to file 'no instruction purshish'. This conduct of the tenant shows that tenant had permitted the suit to proceed the way it has been proceeded. The tenant now in this Civil Revision Application cannot be permitted to take specious plea of so called lapses on the part of their advocate in conducting the suit. This Court is unable to agree with the submission of Shri Kakkad that trial Court has also not appreciated that there was no tangible evidence leading to the fact that tenant was in arrears. In fact the trial Court has discussed the evidence in detail. The notice and its receipt by the tenant, the arrears of rent and fact that CRA/278/2006 7/7 JUDGMENT despite sufficient opportunity, the deficiency which warranted his eviction had never been sought to be removed by the tenant. The trial Court has considered this fact and in an revision application, this Court is not inclined to interfere with the concurrent findings of both the courts below. The Civil Revision Application deserves to be dismissed and is accordingly dismissed. Rule discharged. Interim relief stands vacated. No costs. (S.R.BRAHMBHATT, J.) pallav