DINESH SAKARABHAI PATEL Vs. SURYABEN NAVINCHANDRA SHAH

JUDGEMENT

(1.) The petitioners original defendants have filed this Civil Revision Application under Section 29 (2) of the Bombay Rents, Hotel & Lodging Rates Control Act, 1947 challenging the judgment and order dated 14.05.2010 passed by the Appellate Bench of the Small Causes Court, Ahmedabad in Civil Appeal No.69 of 2008 confirming the judgment and decree passed by the Small Causes Court No.6, Ahmedabad on 25.03.2008 in HRP Suit No.372 of 2005.

(2.) Heard Mr. S. P. Majmudar, learned advocate appearing for the petitioners and Mr. P.C. Kavina, learned Senior Counsel appearing with Mr. Rahul K. Pandya for the respondents on caveat. With the consent of the parties, the matter is taken up for final hearing even at admission stage.

(3.) The brief facts giving rise to the present Civil Revision Application are that the petitioners are the original defendants of HRP Suit No.372 of 2005 which was instituted by the respondent under the provisions of the Bombay Rent Act. The suit was filed on the ground that the petitioners are not using the suit premises for personal use and hence, the respondent is entitled to get the possession of the suit premises. It was also alleged in the suit that the original defendants transferred the suit premises to his son, who is not a tenant. It was further alleged that the defendant has put benches on the open plot and is allowing his customers to sit on the open land which causes nuisance. The said suit was initially filed against the father of the present petitioners i.e. Sakarbhai Patel who has since been expired. On service of the summons in the suit, the appearance was filed on behalf of the petitioners and written statement was filed denying the averments made in the suit. It was stated that there was no breach of any condition of the rent note and from inception, the petitioners were allowed to use front side of the suit premises. The suit premises had not been handed over to the son of the original defendants or there is no nuisance or annoyance. Reliance was also placed by the defendants upon the judgment and order passed by the Small Causes Court in HRP Suit No.1123 of 1993 whereby the suit of the respondent original plaintiff for possession, inter alia, on the ground of arrears of rent was dismissed. The said judgment and order had become final between the parties on the issue of arrears of rent. An agreement dated 04.07.1975 with respect to construction and rent was entered into and reliance was placed by the defendants on the said agreement while defending the suit. In the previous suit, Panchnama was made and Commissioner's report was also made. In the cross-examination, the defendants had contended that an agreement dated 06.03.1975 was also entered into between the parties and both the agreements are required to be read together. The Small Causes Court, Ahmedabad vide its judgment and decree dated 25.03.2008 allowed the suit filed by the original plaintiff.