PATEL KANJIBHAI AMBALAL Vs. MODI MANJULABEN BABULAL

JUDGEMENT

(1.) The petitioners - original defendants have filed this Civil Revision Application under Section 29(2) of the Bombay Rent Control Act challenging the judgment and order dated 13.11.1992 passed by the learned Extra Assistant Judge, Mehsana Camp at Patan in Regular Civil Appeal No. 70 of 1989 dismissing the said appeal and confirming the judgment and order passed by the learned Trial Judge on 31.07.1989 in Regular Civil Suit No. 181 of 1983. The learned Trial Judge has directed all the defendants to hand over the vacant and peaceful possession of the suit shop to the respondents who are the legal heirs of the original plaintiff.

(2.) This Civil Revision Application was admitted and rule was issued on 18.06.1993. At the time of admission of the Civil Revision Application, the Court has passed detailed order observing therein that the Trial Court's finding is that the partnership is sham and bogus and on that point, reliance was placed on Clause 19 in the Partnership Deed at Exh.76. On reading the Partnership Deed as a whole, it is clear that it is not a clear cut clause specifying that the original tenant i.e. defendant No. 3 has thrown the tenancy rights of the suit shop expressly in the assets of the firm. However, Clause 19 speaks about the cooperation to be given by the said defendant whenever the suit rent note is to be transferred in the name of the firm. There is also Clause 20 which says that if at all the landlord files a suit for the purpose of possession, partner No. 4 i.e. the tenant Ambalal Prabhudas will have to bear expenses. Therefore, that Clause has not been considered at all by the learned Appellate Judge. The Court was, therefore, of the view that the present Civil Revision Application requires some consideration by this Court. The Court has also prima facie found that if at all it was the asset of the partnership firm, then, it was not necessary to put this clause because when the partnership firm is getting benefits of tenancy rights, why partner No. 4 alone should bear the expenses. That indicates that still the tenancy rights are intact with the defendant No. 3. But that aspect requires consideration. The Court has also considered the point that the Appellate Court has confirmed the finding with regard to the bonafide and reasonable requirement of the plaintiff and the point of hardship is also answered in favour of the plaintiff under the inference on the point of subletting and bogus partnership. The Court, therefore, granted interim relief against eviction.

(3.) Civil Application No. 10830 of 2005 is filed by the applicants - original petitioners seeking permission to produce the documents referred to in the Civil Application and to consider the changed circumstances pleaded. Alternatively, it is prayed that the matter may be sent to the lower Court for re-trial and for consideration of the additional evidence in the interest of justice. The additional evidence sought to be produced are (1) an order passed by the Income Tax Officer under Section 185(1) of the Act on 05.09.1986 and (2) the Income-tax returns of Shri Laxmi Plywood Center for A.Y. 1991-92 along with statement of income. This application was strongly opposed by the learned advocate appearing for the respondents.