IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No 126 of 1988 For Approval and Signature: Hon'ble MR.JUSTICE H.H.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 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 -------------------------------------------------------------- MANGLADAS DEVJIBHAI Versus LALITKUMAR N DOSHI -------------------------------------------------------------- Appearance: MR S.M.SHAH for MR GAURANG H BHATT for Petitioner MR P.C.KAVINA for MR PM THAKKAR for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE H.H.MEHTA Date of decision: 28/09/2000 CAV JUDGEMENT This is a Civil Revision Application filed by original defendant/tenant under Sec.29(2) of the Bombay Rents Hotel & Lodging House Rates Control Act, ( for short the "Act"), challenging the correctness, legality, propriety and regularity of the Judgment Ex.16 dt. 28th January, 1988 passed by the learned Assistant Judge, Surendranagar (who will be referred to hereinafter as the learned Appellate Judge),in Civil Appeal No.67 of 1984, whereby the learned Appellate Judge was, by dismissing the appeal, pleased to confirm the Judgment Ex.107 dt. 8th March, 1984 rendered by the learned 2nd Joint civil Judge (J.D.), Surendranagar (who will be referred to hereafter as the learned Judge of the trial Court) in Regular Civil Suit No. 221 of 1982. The learned Judge of the trial Court, by rendering his said Judgment in Regular Civil Suit No.221 of 1982, allowed the plaintiff's suit directing the defendant to hand over vacant and peaceful possession of the suit godown to the plaintiff within one month from the date of his Judgment, and further directing the defendant to pay costs of the suit to the plaintiff and bear his own. 2. Here in this Civil Revision Application, the revision petitioner was the original defendant/tenant and revision opponent was the original plaintiff/landlord in Regular Civil Suit No. 221 of 1982 before the trial Court, and therefore, the parties will be referred to hereinafter as the plaintiff and defendant respectively at appropriate places. 3. The facts leading to this prevent Civil Revision Application, in a nutshell, are as follows:- The plaintiff is an owner of suit godown (which will be referred to hereafter as the "suit premises") which is known as "Sayala-na-Utara" situated at Surendranagar. The said suit premises were let to the defendant for monthly rent at the rate of Rs.40/-. It is the case of the plaintiff that defendant was a tenant in arrears of rent for more than six months and that the defendant neglected to make the payment of said rent due from him to the plaintiff within one month from date of reeceipt of his notice undeer Sec.12(2) of the Act i.e. his case falling under Sec. 12(3)(a) of the Act. It is also the case of the plaintiff that the suit premises have not been used without reasonable cause for the purpose for which they wre let for a continous period of six months immediately preceeding the date of the suit i.e. his case falling under Sec.13(1)(k) of the Act. Before filing the suit, the plaintiff by addressing a suit notice Ex.28 dt. 9/6/1982, terminated the tenancy of the defendant. Thereafter, plaintiff filed Regular Civil Suit No. 221 of 1982 against the defendant mainly for relief of eviction of the defendant from suit premises. In that suit, plaintiff had advanced aforesaid two grounds for claiming a decree of eviction. 4. In the suit, defendant appeared and contested the suit by filing his written statement dated 06-12-1982 at Ex.12, wherein he had practically denied all the pleadings of the plaintiff pleaded in the plaint of the suit. It is his case that he had sent money order of Rs.280/- on 26/6/1982, and that money order was accepted by the plaintiff. He has denied the case of the plaintiff for eviction of defendant from suit premises on the ground of non-user of suit premises. Lastly, he has requested the trial court to dismiss the suit of the plaintiff with costs. 5. From the pleadings of the parties, the learned Judge of the trial Court was pleased to frame issues at Ex.14. Keeping in mind the aforesaid issues, both the parties led their oral as well as documentary evidence in support of their respective cases. The learned Judge of the trial Court, after hearing the arguments of the learned advocates for both the parties, and after appreciating the evidence on record, did not accept the cae of the plaintiff so far as it relates to case falling under Sec.12(3)(a) of the Alct, but he accepted the case of the plaintiff falling under Sec.13(1)(k) of the Act, and therefore, by rendering his Judgment Ex.107, dated 8th March, 1984, the learned Judge of the trial Court allowed the suit of the plaintiff and decreed the suit in favour of plaintiff, direecting the defendant to hand over vacant and peaceful possession of the suit premises to the plaintiff within one month from the date of the order i.e. 8th March, 1984 with a further direction to defendant to pay costs of the suit to the plaintiff and bear his own. 6. Being aggrieved against and dissatisfied with the said judgment Ex.107 dated 8th March, 1984 rendered in Regular Civil Suit No. 221 of 1982, the original defendant/tenant preferred Civil appeal No.67 of 1984 to the District Court, Surendranagar. The learned Appellate Judge, after hearing the arguments of learned advocates for both the parties and after perusing records and proceedings of the suit and after analysing and appreciating the evidence of both the parties led in the case, by rendering his Judgment Ex.16 on 28th January, 1988 in said Regular Civil Appeal No. 67 of 1984, dismissed the appeal preferred by the defendant/tenant, meaning thereby the learned Appellate Judge confirmed the Judgment rendered by the learned Judge of the trial Court, who had passed a decree in favour of the plaintiff. 7. Being aggrieved against and dissatisfied with the said Judgment Ex.16 dated 28th January, 1988 rendered by the learned Appellate Judge in Civil Appeal No.67 of 1984, the original defendant/tenant has preferred this present Civil Revision Application to this Court. 8. I have heard the arguments of learned advocates for both the parties, in detail, at length. Shri S.M.Shah, learned advocate for the revision petitioner has submitted certain xerox copies of relevant evidence tendered in Regular Civil Suit No.221 of 1982. Shri S.M.Shah has taken me through this evidence by reading that xerox copies of documents produced by him. Shri Kavina, learned advocate for the revision opponent has also taken me through the Judgment rendered by the learned Appellate Judge, which is challenged in this Civil Revision Application. 9. It is an admitted fact that initially, plaintiff had filed suit against defendant for eviction of defendant from suit premises mainly on two grounds -(i) that his case is falling under Sec.12(3)(a) of the Act and (ii) that his case is falling under Sec.13(1)(k) of the Act. The plaintiff has not filed any appeal against the Judgment by which decree was refused by the trial Court on the ground falling under Sec.12(3)(a) of the Act, and therefore, this present Civil Revision Application is limited only for plaintiff's case falling under Sec.13(1)(k) of the Act. 10. Shri S.M.Shah, the learned advocate for the revision petitioner has argued that following ingredients are required to be proved by plaintiff to secure a decree on the ground falling under Sec.13(1)(k) of the Act : (i) Premises have not been used- (a) without reasonable cause for the purpose for which they were let; (b) for continuous period of six months immediately preceding the date of the suit. Shri Shah has argued that looking to the words used in Sec.13(1)(k) of the Act, it is not only necessary for plaintiff to prove that suit premises have not been used for continuous period of six months immediately preceding the date of suit, but the plaintiff has further to prove that such non-user of the suit premises by tenant was without reasonable cause for the purpose for which they were let. Admittedly, the suit premises is a Godown. The plaintiff is an owner of more than one godowns in the area which is known as "Sayala-na-Utara" in Surendranagar and out of that Godowns, one Godown has been let to defendant. Looking to the contents of plaint, it is not the case of the plaintiff that rent note was executed by the defendant for taking said suit Godown on rental basis from the plaintiff, and therefore, there is no documentary evidence to show as to for which purpose the said suit Godown was let to defendant. But from bare reading of the plaint, it is very much clear that suit Godown was let to defendant for business purpose. It is clarified in the plaint that said suit Godown was let to defendant for storing of the goods of the defendant for his business purpose, for which there is no dispute with regard to purpose of letting the suit Godown to the defendant. 11. Shri S.M.Shah, the learned advocate for the revision petitioner has argued that the learned Judge of the trial Court who framed issues at Ex.14 has framed issue with regard to non-user of suit premises at Issue No.2. He has put much emphasis on this Issue No.2 by reading it and then argued that the learned Judge of the trial Court has not mentioned in Issue no.2 that defendant is a non-user of the suit premises since more than six months without reasonable cause. He has argued that absence of words " without reasonable cause" in said Issue No.2 has caused serious prejudice to the defendant. He has further argued that had the learned Judge of the trial Court mentioned the words "without reasonable cause" immediately after the words " more than six months " in Issue no.2, possibly defendant would have led his evidence to prove that non-user of the suit Godown was "with reasonable cause", if the Court comes to a conclusion that plaintiff has proved the case of non-user of the suit premises for a continuous period of six months immediately before the date of filing of the suit. He has cited an authority of LUHAR JAGJIVANBHAI RAMJIBHAI AND OTHERS VS. MUKUNDLAL PITAMBARDAS SHAH , reported in 1987(1) 7 G.L.R. 395 wherein it has been held that- " In order to succeed under Cl.(k), the landlord has to prove not only non-user or change of user but has also to prove that it is without reasonable cause. In that cited case, the landlord had utterly failed even to allege and prove absence of reasonable cause, and on the other hand, reasonable cause was duly established by long user for the purpose of business to the knowledge of the landlord and in view of that, in cited case, the decree of eviction passed by the lower court was set aside. 12. Shri S.M.Shah, the learned advocate for the revision -petitioner has argued that when the learned Judge of the trial Court has not mentioned the words "without reasonable cause" in Issue No.2, then the defendant, keeping in mind the said Issue No.2, led evidence only to prove that suit Godown has been continuously used for six months. He has further argued that alternatively, defendant could have led his evidence for "reasonable cause" provided plaintiff has proved his case of non-user of suit Godown for a continuous period of six months before filing the suit, and thus, defendant has been seriously prejudiced. Aforesaid cited authority is not applicable to this present case merely on the ground that the plaintiff has averred specifically in Para 5 of the plaint that defendant is not using the suit Godown for more than six months and keeps that Godown closed without reasonable cause, and therefore, in this case, pleading was there from side of plaintiff. If we read the written statement Ex.12 filed by the defendant, we find that in Para 6 of said written statement, defendant has come out with a specific case that it was not true that he is not using the Godown and keeps it closed. He has averred positively that he is using Godown, and therefore, plaintiff is not entitled to evict him from the suit premises. It may be noted that both the parties were fully aware of the fact that the learned Judge of the trial Court is going to decide a case of the plaintiff falling under Sec.13(1)(k) of the Act and keeping in mind the ingredients of Sec.13(1)(k) of the Act, both the parties have led their respective evidence in that suit. 13. Shri Kavina, the learned advocate for the revision opponent has argued that here in this case, evidence of defendant is very much necessary to be considerd to meet with the arguments advanced by Shri S.M.Shah. The defendant has entered into witness-box and has given his evidence at Ex.38. The defendant has deposed in Para 8 of his deposition that in the year 1968-66, he started his business in name and style of "Mangaldas Devji" and that business was continuous and for that business, he is using the suit Godown. He has further deposed that he is making use of suit Godown since 1965-66 and he is storing the business articles of grocery like sugar, chillies, coconuts, turmeric etc. etc. He has further deposed that he is carrying on his business by sitting in Godown for about two to four hours, daily. Thus, defendant has made out his case that he has never closed the suit Godown. It is not true that suit Godown has never been used within six months immediately before the date of filing of the suit. 14. Shri Kavina, the learned advocate for the revision opponent has argued that in view of what is deposed to by defendant himself in his evidence, now for plaintiff question does not arise to prove the fact that suit premises had not been used by defendant without reasonable cause because it is not the case of the defendant that suit premises have not been used by him. Question will arise for plaintiff to prove absence of reasonable cause for premises having not been used by tenant will arise only if defendant comes with a case that suit premises have been kept closed for continuous period of six months prior to the date of filing of the suit. 15. Looking to evidence of defendant, defendant was very much conscious when he gave his evidence that if he would depose that suit premises have not been continuously used for six months prior to the date of filing of the suit, then it would be for him to prove that suit Godown was not used for some reasonable cause, and therefore, here in this case, defendant has, from the very beginning advanced his case that suit premises have never been kept closed prior to filing of the suit, and on that point, defendant has led certain documentary evidence also. At this stage, it would be necessary to refer an authority of MOLAR MAL (dead) THROUGH LRS. VS. M/S KAY IRON WORKS (P) LTD., reported in AIR 2000 SUPREME COURT 1261, wherein it has been held in Para 7 as follows : " We are not inclined to accept the first two points raised on behalf of the appellant before us. It is true in the original eviction petition all the material particulars of the requirement of the landlord were not mentioned in detail, but then in the rejoinder application all the necessary particulars are given by the landlord, notice of which the appellant had and the original authority had struck a proper issue on this question and parties understood each others case and led evidence on this issue, though Rule 4 of the Rules doe require the landlord to give material particulars, this Court has held with reference to the same rule in the case of M/s. Rubber House v. M/s. Excelsior Needle Industries Pvt. Ltd. (1989) 2 SCC 413): (AIR 1989 SC 1160) that the said rule is not mandatory and is only directory. Therefore, the fact that the landlord did not give all the material particulars of his requirement in the first instance cannot be made a ground for rejection of the application."..... And therefore, when there is no reference of "without reasonable cause" in Issue No.2 framed by thee learned Judge of the trial Court at Ex.14, it cannot be said that the parties were not knowing the case of each other. The defendant was well aware of the fact that plaintiff has filed a suit for eviction of suit premises on the ground falling under Sec.13(1)(k) of the Act. At this stage, it is necessary to know that plaintiff has pleaded the facts regarding necessary ingredients required to be proved for a case under Sec.13(1)(k) of the Act in Para 5 of his plaint, and therefore, defendant cannot agitate on the ground that absence of words " without reasonable cause " in Issue No.2 framed by the learned Judge of the trial Court, has prejudiced the case for defence of the defendant. Therefore, this first contention raised by Shri S.M.Shah cannot be accepted. 16. The second contention of Shri S.M.Shah is to the effect that looking to Sec. 13(1)(k) of the Act, plaintiff is required to prove that the premises have not been used without reasonable cause for the purpose for which they were let for continuous period of six months immediately preceding the date of the suit. The plaintiff filed his suit on 8/9/1982, and therefore, he is required to prove that during last six months prior to 8/9/1982, the defendant did not use the suit Godown for the purpose for which it was let, during the period in between 8/3/1982 and 8/9/1982. To prove the fact that defendant never closed the suit Godown within aforesaid six months, he has led certain documentary evidence in support of his oral evidence. At this stage, it is required to know as to for what purpose the suit Godown was let to defendant. In Para 1 of the plaint Ex.1, plaintiff has categorically stated that Godown has been let to defendant for business purpose. He has also explained the use of Godown by stating in Para 1 of plaint that use for business purpose means to store the goods meant for business in said Godown. Shri S.M.Shah, the learned advocate has argued that looking to the nature of use for which the suit Godown was let, it was not necessary for all times to store the goods in Godown in all the available space. It may happen that in business in slake season, Godown may not be utilised for storing goods completely in full space, and in some season when business is on prime time, Godown may be found vacant also, and therefore, looking to nature of use, the space for Godown may not be used for all the days, and therefore, plaintiff cannot expect that defendant should use suit Godown with goods fully utilising all the space of the Godown. Under the circumstances, merely because, some less quantity of goods was found in Godown, it cannot be said that the suit Godown is not being used for the purpose for which it is let. 17. Shri S.M.Shah, the learned advocate for the revision petitioner has produced a paper book containing xerox copies of certain documents namely copy of plaint, copy of written statement, copies of depositions and certain documents etc. etc. From Bill Book, he has produced certain office copies of bills issued by defendant to his customers. Bill book is produced at Ex.48. One bill dt. 15/1/1978 for Rs.77/appears to have been issued for sale of gunny bags containing coconuts issued in favour of Hasanali Pirmiya. Then bill dt. 18/1/1978 is for Rs.87/- for gunny bags of chillies issued in favour of Vanaji Ladhaji. Third bill dt. 30/2/1978 is for Rs. 137-50 for gunny bags of chillies issued in favour of Patel Kanaji Laxmanji. Shri S.M.Shah has argued that looking to these bills, it is crystal clear that defendant is carrying on business of coconuts, chillies, etc. He has also produced certain Purchase Bills. Ex.54 is a bill in name of Mangal Devjibhai i.e. defendant issued by M/s. Dungarmal Dhanraj & Co. under which defendant purchased sugar in quantity of 2 gunny bags. That bill is at Ex.54. Ex.55 is another bill of same M/s. Dungarmal Dhanraj & Co. under which defendant purchased certain articles worth Rs. 450/-. It is dated 31/10/1983. Except bill Ex.70, all other Purchase Bills are for the period subsequent to date of filing of the suit, and therefore, that bills are not relevant for Issue No.2 framed by the learned Judge of the trial Court. Ex.70 is a bill dated 24/3/1982 issued by M/s. Champaklal Chandulal. By Ex.70 dated 24/3/1982, defendant purchased 75 Nogs. of coconuts contained in gunny bag. This bill Ex.70 is for Rs. 121-50 Ps., and therefore, it can be said that defendant had purchased goods for his business within six months prior to the date of filing of the suit, and therefore, his business was going on within six months. Likewise, defendant has produced one duplicate Cash Memo Ex.75 dated 10/7/1982 by which the defendant purchased certain articles worth Rs.40/- from Ramniklal Raychand. Ex.76 is also a duplicate bill dated 5/7/1982 by which defendant purchased some article in quantity of five from Shah Ramniklal Raychand. Likewise he has produced bills Exs.77, 78 and 79 dated 08/04/1982, 05/04/1982 and 31/03/1982 respectively to show that defendant purchased articles from M/s. Champaklal Chandulal. 18. Shri S.M.Shah, the learned advocate for the revision petitioner has argued that the learned Appellate Judge has discussed last bill in Para 13.7. He has also discussed with regard to Bill Book Ex.48 from which certain bills of sale have been produced by the defendant. Shri S.M.Shah has argued the learned Appellate Judge has observed in Para 13.8 that apparently, all the documentary evidence show that these purchases are not for selling from the suit Godown but are most likely to be purchased for his household use. Shri S.M.Shah has argued that this finding of the learned Appellate Judge is perverse, because he has made certain inference without any base. He has argued that the learned Appellate Judge has not come to a conclusion that these all bills and documentary evidence are bogus and false. From all these documents, he he has come to a conclusion that all these purchases were made for household use and not for business purpose. He has argued that there is no evidence on record to make such type of inference which is made by the learned Appellate Judge, and therefore, the finding of the learned Appellate Judge is perverse. He has argued that revisional court can read evidence and decide as to whether the conclusion is correct or not. He is not expecting this revisional Court to reappreciate the evidence. He has argued that when the learned Appellate Judge has based his finding on mere inferences, then that finding cannot be said to be according to law, and therefore, whatever final conclusion has been reached by him is perverse. For this, he has cited an authority of Morar Mal (dead) (supra) in which it has been held in Para 7 as follows:- " It is to be noticed that under sub- section (6) of Section 15 of the Act, the High Court as a revisional authority has the power to call for and examine the records relating to any order passed or proceedings taken under this Act for the purpose of satisfying itself as to the legality or propriety of such order and is entitled to pass