CRA/14920/2008 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No. 149 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================= = 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 ? ========================================= = HASMUKHRAY AMRUTLAL JOBANPUTRA & 1 - Applicant(s) Versus NAVINCHADRA VRUJDAS VAID - Opponent(s) ========================================= = Appearance : MR BD KARIA for Applicant(s) : 1 - 2. MR ASHISH M DAGLI for Opponent(s) : 1, ========================================= = CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 14/11/2008 ORAL JUDGMENT 1. RULE. Shri Ashish Dagli, learned advocate waives service CRA/14920/2008 2/6 JUDGMENT of rule on behalf of the opponent. 2. With the consent of the learned advocates appearing on behalf of the respective parties, the present Civil Revision Application is taken up for final hearing today. 3. The present Civil Revision Application is filed by the applicants-original defendants under Section 29(3) of the Bombay Rent Act challenging the order passed by the learned Presiding Officer, Fast Track Court No. 9, Morbi dated 03/05/2008 in Regular Civil Appeal No. 2/2003 so far as it relates to setting aside the judgement and decree dismissing the Regular Civil Suit No. 33/1991. 4. It is not in dispute that the applicants-original defendants are the tenants of the opponent-original plaintiff-landlord. The opponent-original plaintiff instituted Regular Civil Suit No. 155/1989 against the applicants-original defendants for getting possession on the ground of sub letting and it is not in dispute that in the said suit the applicants-original defendants had deposited the rent on 04/10/1989, 09/01/1990 and 25/01/1990. Subsequently, the opponent-landlord instituted another suit, being Regular Civil Suit No. 33/1991, for getting possession on the ground of arrears of rent. Both the suits came to be tried together and considering the fact that the day on which the Regular Civil Suit No. 33/1991 was preferred by the opponent-landlord for getting possession on the ground of arrears of rent, there was no arrears at all as the entire amount was already deposited/paid much prior to the filing of the suit and in fact more amount was paid/deposited, the learned trial Court dismissed both the aforesaid suits. Being aggrieved and CRA/14920/2008 3/6 JUDGMENT dissatisfied by the judgement and decree passed by the learned trial Court passed in Regular Civil Suit Nos. 155/1989 and 33/1991, the opponent-landlord preferred an appeal, being Regular Civil Appeal No. 2/2003. The learned appellate court by its impugned judgement and order quashed and set aside the judgement and decree passed in Regular Civil Suit No. 33/1991 passing a decree against the applicants-original defendants and in favour of the opponent-landlord on the ground that the deposit of rent in Regular Civil Suit No. 155/1989 cannot be considered while considering Regular Civil Suit No. 33/1991 and that the applicants-original defendants can be said to be in arrears of rent and, therefore, reversed the decree passed in Regular Civil Suit No. 33/1991 and directed the applicants- original defendants to hand over the possession. Being aggrieved and dissatisfied with the same, the applicants- original defendants have preferred the present Civil Revision Application under Section 29(3) of the Bombay Rent Act. 5. Shri B.D. Karia, learned advocate appearing on behalf of the applicants-original defendants has vehemently submitted that the learned appellate court has committed an error in holding that the applicants-original defendants were in arrears of rent on the day on which Regular Civil Suit No. 33/1991 was filed. It is submitted that the day on which Regular Civil Suit No. 33/1991 was filed by the opponent-landlord for getting possession on the ground of arrears of rent, there was no arrears at all and, therefore, the learned appellate court has committed an error in passing the decree against the applicants-original defendants on the ground of arrears of rent and, therefore, it s requested to allow the present Civil Revision Application. CRA/14920/2008 4/6 JUDGMENT 6. Shri Ashish Dagli, learned advocate appearing on behalf of the opponent-landlord has tried to defend/support the judgement and order passed by the learned appellate Court by submitting that the learned appellate Court has not committed an error in holding that the applicants-original defendants were in arrears of rent and, therefore, the learned appellate Court has rightly passed the decree against the applicants-original defendants, which does not call for any interference of this Court in exercise of revisional jurisdiction and, therefore, it is requested to dismiss the present Civil Revision Application. 7. Heard the learned advocates appearing on behalf of the respective parties. It is not in dispute that the opponent- original plaintiff-landlord had instituted two suits for getting possession of the suit premises, one being Regular Civil Suit No. 155/1989 and another being Regular Civil Suit No. 33/1991. Regular Civil Suit No. 155/1989 was filed by opponent-original plaintiff-landlord for getting possession from the applicants- original defendants on the ground of sub letting only and during pendency of the said suit, the opponent-original plaintiff-landlord served notice upon the applicants-original defendants under Section 12(2) of the Bombay Rent Act. It is not in dispute that the applicants-original defendants has deposited/paid the rent in the Court in Regular Civil Suit No. 155/1989 on 04/10/1989, 09/01/1990 and 25/01/1990 and subsequently thereafter the opponent-original plaintiff-landlord instituted Regular Civil Suit No. 33/1991 for getting the possession on the ground of arrears of rent. The learned appellate Court held that the deposit of rent in the Court in Regular Civil Suit No. 155/1989 was without any cause and, CRA/14920/2008 5/6 JUDGMENT therefore, there was no reason for the applicants-tenants to deposit the rent in the Court in Regular Civil Suit No. 155/1989 and, therefore, such a deposit cannot be considered while considering Regular Civil Suit No. 33/1991 and accordingly held that the applicants-tenants were in arrears of rent, the day on which the notice was issued, which has given rise to Regular Civil Suit No. 33/1991 and, therefore, the learned trial Court passed the order for decree on the ground of arrears of rent. For passing the decree on the ground of arrears of rent, what is required is that the rent should not have been paid on the first day of hearing of the suit or on or before the other day, which the Court may fix. If the case is not covered under Section 12(3)(a) of the Bombay Rent Act as per Section 12(3) (b) no decree for eviction shall be passed in any suit, if, on the first date of hearing of the suit or on or before such date as the Court may fix, the tenant pays or tenders in the Court the standard rent within time. 8. In the present case, the day on which Regular Civil Suit No. 33/1991 was filed for getting possession on the ground of arrears of rent, there was no arrears and prior thereto on the aforesaid dates, the rent was already deposited. Whether there was justification for deposit of such rent in the Court or not is not required to be considered at this stage. However, the fact remains that after service of the notice and prior to institution of the suit for getting possession on the ground of arrears of rent, the applicants-tenants had tendered and deposited the rent. Under the circumstances, the learned Appellate Court has materially erred in passing the decree for possession on the ground of arrears of rent as the day on which the Regular Civil Suit No. 33/1991 was filed the CRA/14920/2008 6/6 JUDGMENT applicants-tenants cannot be said to be in arrears of rent. Under the circumstances, the impugned judgement and the order passed by the learned appellate Court deserves to be quashed and set aside and it is to be held that the opponent- original plaintiff-landlord is not entitled to decree on the ground of arrears of rent. 9. For the reasons stated hereinabove, the Civil Revision Application succeeds. The judgement and order passed by the learned Presiding Officer, Fast Track Court No 9, Morbi in Regular Civil Suit No. 2/2003 is hereby quashed and set aside and Regular Civil Suit No. 33/1991 is hereby dismissed. Rule is made absolute. There shall be no order as to costs. (M.R. SHAH, J.) siji