DEVENDRABHAI DAHYABHAI JANI Vs. BHANUBHAI BAPALAL DAVE

JUDGEMENT

(1.) THE present Revision Application has been filed by the applicant-original defendant under Section 29 of the Bombay Rent Act and under Section 115 of the Civil Procedure Code for challenging the Judgment and Order dated 03.12.2010 passed by the Learned Judge, Small Cause Court, Ahmedabad in Civil Appeal No.89 of 1999 confirming the Judgment and Decree 11.03.1999 passed by the Learned Judge, Court No.7, Ahmedabad in H.R.P. Suit No.37 of 1993 on the grounds set out in the present Revision Application inter alia contending that both the Courts below have erred in holding that the applicant has acquired suitable accommodation at Vishram Park. Similarly, both the Courts below have erred in holding that the applicant-defendant is not using the rented premises for residential purpose and both the Courts below have failed to appreciate the comparative hardships.

(2.) LEARNED counsel, Mr.Nilesh Pandya referred to the both impugned Judgments of both the Courts below delivered in Civil Appeal No.89 of 1999 as well as H.R.P. Suit No.37 of 1993. Referring to the material and evidence and the discussion made in the impugned orders, he submitted that the Courts below have committed an error in appreciating the evidence while deciding about non-user as the electricity consumption has been shown and the average, which has not taken, is not proper and the gas cylinder and the postal communication are also received at the said address. He, therefore, submitted that the ground of non-user by the applicant-original defendant-tenant has not been established and the Courts below have committed an error.

(3.) FURTHER, the submission made by the learned counsel, Mr.Pandya referring to ground (e) before the lower Court that the report of the Court Commissioner has wrongly been exhibited cannot be accepted. The lower appellate court has also considered this aspect and in any view of the matter, as could be seen from the judgment of the lower appellate court that the applicant had in fact chosen not to remain present to protract litigation. The submission made by the learned counsel, Mr.Pandya that the Court Commissioner is not examined and, therefore, the evidence or the reliance placed on the report of the Court Commissioner could not have been made also cannot be accepted. As admittedly, the report has been made by the Court Commissioner, which has been exhibited and such contention does not appear to have been taken before the lower appellate court. Therefore, other contentions also cannot be permitted. Moreover, ground of the comparative hardship and equal number of members is also misconceived as both the Courts below have considered the comparative hardship.