CRA/13920/2007 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No. 139 of 2007 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 ? ========================================================= SAINATH ROAD LINES THRO' MADHAVPRASAD BABUPRASAD - petitioner(s) Versus BABULAL KARSHANBHAI THESHIA & 2 - Opponent(s) ========================================================= Appearance : MR RR TRIVEDI for petitioner(s) : 1, MR BHAVESH P TRIVEDI for petitioner(s) : 1, MR AR THACKER for Opponent(s) : 1, MS BALA R THACKER for Opponent(s) : 1, NOTICE SERVED BY DS for Opponent(s) : 2 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 07/08/2008 ORAL JUDGMENT 1. This revision u/s. 29(2) of the Bombay Rents, Hotels & Lodging CRA/13920/2007 2/7 JUDGMENT House Rates Control Act, 1947 is preferred against the judgment and order dated 10.05.2007 passed by the learned Presiding Officer, Fast Track Court No. 6 in Regular Civil Appeal No.32 of 1999 whereby, the said appeal was dismissed and the judgment and decree dated 30.04.1999 passed by the learned Civil Judge (J.D.), Jetpur in Regular Civil Suit No. 218 of 1995 was confirmed. 2.0 The facts in brief leading rise to the filing of the present application are as under; 2.1 Respondent no. 1, original plaintiff, filed a suit being Regular Civil Suit No.218 of 1995 against respondent nos. 2 & 3, original defendant nos. 1 & 2 and the petitioner herein, original defendant no. 3 praying for a decree of eviction. In the said suit, it was averred that he is having immovable properties at Kanakia plot, Jetpur and that out of the said properties, he had rented one shop and a go-down to respondent no. 2 on a monthly rent of Rs.1200/-. 2.2 It was the case of respondent no. 1 that respondent no. 2 had sublet the shop in question to the petitioner and that respondent nos. 2 & 3 are in arrears of rent. The original defendants filed their written CRA/13920/2007 3/7 JUDGMENT statement in the said suit. The trial Court, after appreciating the evidence on record, decreed the suit in favour of respondent no. 1. 2.3 Being aggrieved by the same, original defendant no. 3 preferred an appeal before the District Court. However, the appellate Court, after considering the evidence on record, dismissed the said appeal. Hence, this revision. 3. Mr. R. R. Trivedi, learned Advocate for the petitioner, submitted that no Notice, as required u/s.12(2) of the said Act, was issued to the petitioner since the respondent no. 1, original plaintiff, had never treated the petitioner as a “tenant” and that such Notice was issued only to respondent nos. 2 & 3. Therefore, the petitioner cannot be held liable to pay the arrears of rent. 3.1 Learned Advocate further submitted that the trial Court has committed an error in law in passing the order dated 30.11.1998 in application below Exhibit – 28. In support thereof, learned Advocate has relied upon a decision of this Court in the case of Usha Ramchandra Kulkarni & Anr. v. Shantaram Kashiram Gotri reported in 1981 (Vol. XXII) G.L.R. 1108 wherein, it has been held that before striking off the CRA/13920/2007 4/7 JUDGMENT defence the Court must first resolve the question of tenancy. Learned Advocate has also relied upon a decision in the case of Laxmandas Chelaram v. Hemdas Hauromal reported in 1984 G.L.H. 462 wherein, it has been held that the Court has to pass an order that failure to deposit the rent within a specific time will result in defence being struck off. However, if the Court does not pass an order to the said effect, then there can be no order striking off the defence for reason of non-deposit. He has, therefore, submitted that the Courts below have committed serious error in passing the impugned decisions. 4. Mr. A. R. Thacker, learned Advocate for respondent no. 1, submitted that from the evidence on record it is clear that the original defendants were in illegal possession of the premises in question and therefore, both the Courts below were completely justified in passing the impugned judgments. Hence, no interference is warranted from this Court in this application. 5. Heard learned counsel for the respective parties and perused the documents on record. Though served none appears on behalf of respondent nos. 2 & 3. It appears from the record that respondent no. 1, original plaintiff, had preferred application Exhibit – 23 for the deposit CRA/13920/2007 5/7 JUDGMENT of arrears of rent and to struck off the defence, which came to be allowed by the trial Court. Since respondent nos. 2 & 3 were not in a position to make the said deposit, respondent no. 3 preferred application Exhibit – 28 for extending the time period to make the said deposit by a further period of three months, which was granted by the trial Court. However, no deposit was made by respondent nos. 2 & 3 even after the expiry of the additional period of three months. Therefore, respondent no. 1 preferred an application for striking off the defence on the ground of non-deposit of the arrears of rent, which came to be allowed by the trial Court vide order dated 30.11.1998. 6. The orders passed by the trial Court below Exhibits – 23 & 28, as stated herein above, had never become subject matter of challenge either before the appellate Court or before any other Court of law, meaning thereby, the said orders had achieved finality. It is a matter of record that in spite of the order passed below Exhibit – 23 by the trial Court, neither the petitioner nor any other person on its behalf, had made the deposit before the date in question. Therefore, admittedly, there was a breach of the order passed by the trial Court. Hence, in my opinion, the trial Court was completely justified in striking off the defence, as though time was extended by a further period of three months to make the CRA/13920/2007 6/7 JUDGMENT deposit with a clear understanding that the failure thereof would result into striking off the defence, the same was not complied with and consequently, recorded the finding that the original defendants were in arrears of rent. Thus, the decisions relied upon by the learned Advocate for the petitioner shall not apply to the case on hand. 7. So far as the issue regarding Notice u/s. 12(2) of the Act is concerned, it is pertinent to note that this revision has been filed after almost ten years from the date of passing of the orders below Exhibits – 23 & 28 by the trial Court, as discussed herein above. It would not be open to the petitioner to take such a stand at this stage, more particularly, when it was joined as a party – respondent in the main proceedings at a subsequent stage. The petitioner has tried to create a picture of “tenant” and “sub-tenant” between the original defendants by taking support of the fact that Notice u/s. 12(2) of the Act was not issued to it and therefore, decree could not have been passed against it. In my opinion, the said contention raised by the petitioner will not hold any ground in view of the fact that the petitioner was a party – respondent in the proceedings before the trial Court itself, as discussed herein above. Therefore, the respondent no. 1 cannot dispute its status as a “tenant”. Hence, the view taken by the Courts below are just and CRA/13920/2007 7/7 JUDGMENT proper. 8. I am in complete agreement with the concurrent findings recorded by both the Courts below and hence, find no reasons to interfere in this revision. 9. For the foregoing reasons, the application is rejected. Time to vacate the premises is granted up to 06.12.2008 on condition that they shall file an Undertaking before this Court, within a period of Three Weeks from today, that they will vacate the premises in question before the said date and will regularly pay mesne profits to respondent no. 1, as per the directions issued by the trial Court. With the above direction, the application stands disposed of. No order as to costs. [K. S. JHAVERI, J.] Pravin/*