SHRI RAJAJI RAMDEV Vs. ABDUL AVVAL HABIBBULAH MANSURI

JUDGEMENT

(1.) The present revision application has been filed by the Appellants-original Defendants for the prayer that the judgment and order passed in Civil Appeal No. 121/2006 dated 30.12.2010 by the Appellate Bench of the Small Causes, Ahmedabad (lower appellate court) confirming the judgment and decree passed in H.R.P. Suit No. 920/98 dated 18.4.2006 may be quashed and set aside on the grounds stated in the memo of this revision application, inter alia, that both the courts below have failed to appreciate and consider that in the chawl there are more than 25-30 rooms and while coming to the conclusion both the courts below have only considered the oral evidence of Defendant No. 1 that he had left the premises in 1994-95, but has not considered the entire evidence. It is also contended that both the courts below have erred in totally relying upon the oral evidence of the Plaintiff, exh. 46. It is also contended that both the courts have failed to appreciate that as Defendant No. 1 had to go to the native place a mere caretaker in possession cannot be said to be a tenant and therefore they have committed a grave error. It is also contended that both the courts below have failed to appreciate that Defendant No. 1 was a mill worker and on closure of mill he had gone to the native place which would not amount to subletting unless there is a specific evidence.

(2.) Learned Counsel Mr. Gandhi referred to the judgment of both the courts below and also the documentary evidence which has been discussed and submitted that the HRP suit was decreed on the grounds of

(3.) Learned Counsel Mr. Gandhi submitted that therefore the main ground for the decree is subletting. For that purpose he referred to exh. 45 as well as exh. 82 the evidence of one Hiralal, exh. 84 Defendants' evidence and also exh. 81 report of the Court Commissioner. He submitted that though both the courts below have come to the conclusion about subletting on the premise that Defendant No. 1 had gone to the native place and in fact he has not occupied the premises and he has let out to the sub-tenant, Defendant No. S. However, learned Counsel Mr. Gandhi submitted that both the courts have failed to appreciate that Defendant No. 1 was a mill worker and on closure of the mill he had gone to his native place for some time which would not be a ground for eviction when he has given it for taking care to someone and in fact the evidence like electricity bills produced at exh. 59-63 suggest that the premises was used and occupied. There is no other evidence produced with regard to the Defendant No. 1 having alternative accommodation. He submitted that earlier Civil Suit No. 921/98 was filed and it was withdrawn. He submitted that issues were framed at exh. 37 and the issue with regard to non-user has also been discussed. Learned Counsel Mr. Gandhi submitted that for the purpose reliance is placed on the oral evidence, but it has not been appreciated that Defendant No. 1 had gone to the native place because of the closure of the mill and he has also stated that he is working in a factory.