JITENDRA PRAHLADRAI MODI Vs. SHYAMLAL BELARAM BHATIA

JUDGEMENT

(1.) CIVIL Revision Application No. 421 of 1990 is filed by the petitioner-original plaintiff under Sec. 29(2) of the Bombay Rent Act for the prayer that the judgment and order passed by the Appellate Bench of the Small Causes Court, Ahmedabad, in CIVIL Appeal No. 113 of 1981 and CIVIL Appeal No. 114 of 1981 confirming the judgment and decree passed in H.R.P. Suit Nos. 4766/76 and 4767/76 passed by the Small Causes, Court, Ahmedabad, may be quashed and set aside on the grounds set out in the memo of revision, inter alia, that the appellate court has erred in appreciating the contents of the notice exh. 41 and has thereby misconstrued it. It is also contended that both the courts have failed to appreciate that the rent was not payable by month and therefore sec. 12(3)(a) would not be attracted, but the case would be governed by sec.12(3)(b) of the Rent Act. It is also contended that both the courts have erred in appreciating the oral and documentary evidence produced on record which has resulted in miscarriage of justice and therefore the present revision applications have been filed. Similarly, both the courts below have failed to appreciate the material and evidence with regard to permanent alteration in the suit premises and damage which would warrant eviction.

(2.) CIVIL Revision Application No. 425 of 1990 is preferred by the petitioner-original plaintiff under sec. 29(2) of the Bombay Rent Act for the prayer that the judgment and order passed by the Appellate Bench of the Small Causes Court, Ahmedabad in CIVIL Appeal No. 113 of 1981 and CIVIL Appeal No. 114 of 1981 confirming the judgment and decree passed in H.R.P. Suit Nos. 4766/76 and 4767/76 passed by the Small Causes, Court, Ahmedabad, may be quashed and set aside on the grounds set out in the memo of revision, inter alia, that the Appellate Bench of the Small Causes Court raised the points for determination as stated in this memo and has failed to appreciate that while answering Issue No. 1 in the negative that as the tenants are not in arrears, the tenants were not liable to be evicted. Similarly, it has erred in holding that the case is governed by sec. 12(3)(a) though the rent was not payable monthly and it is evident from the record that the taxes were also to be paid by the defendants-tenants and therefore the case would be governed by sec. 12(3)(b). The courts below have failed to appreciate the material and evidence including the document produced with the list exh. 65 for the purpose of considering the arrears of rent. Similarly, both the courts have failed to appreciate the material and evidence, particularly when Issue No. 2 has been answered in the negative holding that the defendants-tenants made any permanent alteration in the suit premises and have not damaged the suit premises which would warrant eviction. The lower appellate court erred in confirming the findings recorded by the trial court with regard to breach of the terms of the tenancy.

(3.) LEARNED advocate Mr. Thakkar submitted that the issue with regard to subletting was negatived and it has not been believed. However, this aspect has not been considered at all by the appellate bench, though it had remanded for decision to the Small Causes Court. He has also submitted that thus the issue of subletting is not at all decided in the appeal, it has not been discussed in the judgment at all by the appellate bench, though it was a specific contention raised by the appellant-plaintiff.