BHUPENDRA TAPUBHAI PADIA Vs. PRATAPRAI POPATLAL SONEJI

JUDGEMENT

(1.) The present Revision Application has been filed by the petitioners -original plaintiffs under sec. 115 of the Code of Civil procedure as well as under Sec. 29(2) of the Bombay Rent Act for the prayer that the judgment and order passed by the learned Assistant Judge at Rajkot in Regular Civil Appeal No. 4/92 dated 31.8.1998 confirming the judgment and order passed by the Small Causes Court at Rajkot in Regular Civil Suit No. 200/85 may be quashed and set aside on the grounds set out in the memo of application.

(2.) The facts of the case, briefly summarised, are that the petitioners -original plaintiffs filed Regular Civil Suit No. 200/85 before the Small Causes Court, Rajkot, for eviction and possession of the rented premises on the ground that the defendant -tenant has acquired suitable alternate accommodation. On appreciation of evidence and after hearing the learned Advocates for the parties, the trial Court, by its judgment and order dated 3.12.1991, dismissed the suit. Against the said judgment and order, Regular Civil Appeal No. 4/92 came to be filed by the petitioners -original plaintiffs. The first appellate Court, on appreciation of evidence and after hearing the learned Advocates for the parties, dismissed the appeal confirming the judgment and order passed by the trial Court vide its judgment and order dated 31.8.1998. Therefore, the present revision application has been preferred.

(3.) Learned Counsel Mr. Mehul Shah for the petitioners submitted referring to the judgment of the trial Court in Regular Civil Suit No. 200/85 that once acquisition of alternate premises has been accepted in the written statement as well as in the evidence, the question of suitability of such alternate premises is required to be considered. He submitted that, as transpires from the evidence, admittedly, the respondent -defendant has stated that there are only two persons in his family, as the brother and his family as well as the mother have gone to Bhavnagar, which both the Courts below have not appreciated. Learned Counsel Mr. Shah submitted that, on the basis of the evidence, as could be seen from the issues, particularly Issue No. 5 regarding acquiring of suitable accommodation, the finding is 'yes'. Therefore, the same has been discussed though the suit has been dismissed. He therefore submitted that the first appellate Court ought to have appreciated this aspect and the suit ought not to have been dismissed. He has submitted that acquisition of other accommodation even on rental basis would be sufficient. He submitted that this aspect has not been appreciated by the first appellate Court inasmuch as, if this finding is in favour of the plaintiffs, the cross -objection could have been filed by the defendant -tenant.