LABHSHANKER MANISHANKAR JOSHI Vs. KAMLASHANKER BHOGILAL PANDYA

JUDGEMENT

(1.) The present revision application has been filed by the Petitioners-original Plaintiffs, one of whom appears as party-in-person, for the prayer that the judgment and order passed by the Appellate Bench of the Small Causes Court, Ahmedabad in Regular Civil Appeal No. 128/96 dated 25.11.1997 may be quashed and set aside on the grounds stated in the application, inter alia, that the judgment and order passed by the Appellate Bench is based on inference, not warranted by facts and on presumption not permitted by law. It is also contended that the Courts below have failed to appreciate that as the Plaintiffs had used the terrace, open land compound, latrine and therefore the possession cannot be disturbed by the landlord. It is also contended that the Courts below, after holding that so long as the Plaintiff is in possession as tenant of the suit premises, the Defendants should not make any construction on the terrace except by following the procedure provided under the Bombay Rent Act, has grossly erred in dismissing the suit. It is also contended that the Courts below have failed to appreciate that if any construction is made on the terrace or open land, the rights of the Petitioners-original Plaintiffs would be affected. It is also contended that the Courts below have erred in holding that it cannot be said that when one portion was rented to one tenant, he was also rented the terrace.

(2.) Petitioner No. 2, Mr. Indrashankar Joshi has appeared as party-in-person and made the submissions and has also given written submissions. The sum and substance of the submissions are that the Respondent No. 1 landlord has mislead the Court. It is contended that an amount of Rs. 2900/- was paid by cheque dated 19.12.93 and thereafter the account was closed and thereafter when money order was sent for the rent it was not accepted and therefore it cannot said that the Petitioner-tenant is in arrears of rent for 20 years. It is also contended that by misleading the Court and also in violation of the municipal laws, the Respondent-landlord has made the construction by making construction of flats for allotment which has caused prejudice to the rights of the Petitioners as they are entitled to use other portion like the compound as well as the terrace. It is also emphasised by party-in-person Mr. Joshi that he was attacked by the landlord and in spite of the order of status-quo, the common bathroom as well as staircase etc. have been destroyed and construction of flat has been made. He also emphasised that in Lok Adalat the Defendant was fined Rs. 1.25 as he was a senior citizen. However, the party-in-person has stated that the Defendant has made illegal construction. He has referred to both the judgments. Mr. Joshi has submitted that he is ready and willing to make payment of the outstanding rent and he may be granted permission for repairing the premises in his occupation as well as use of the terrace.

(3.) Learned Counsel Mr. K.V. Shelat has referred to the papers and submitted that as stated in the affidavit filed by the Respondents by the Secretary of Muktimonohar Members' Association, a registered NTC for the flats, the Petitioners who are the tenants of one room, kitchen with WC is not disturbed and except this portion the Petitioners are not the tenant of any other portion. The Petitioners have not paid the rent since years for which outstanding amount of Rs. 4,020/- is also mentioned with the mesne profit. It is also contended that the Petitioners are peacefully enjoying the premises, that is, one room kitchen with WC and chokdi facility which is in their possession. It is also contended that the Appellate Bench has given a right to the Respondents-owner that as and when they intended to make construction above the said property, they may apply under Section 13(A) of the Bombay Rent Act and can make construction. He submitted that internal plaster or repairing is not objected and they may carry out such work at their cost. However, the terrace was never forming part of the property let out to them and therefore they cannot claim any right for use and enjoyment of the terrace. Learned Counsel Mr. Shelat submitted that when liberty has been reserved for further construction by the Court, the same may not be disturbed.