DAMODARDAS BOGHABHAI PRAJAPATI Vs. PRAVINBHAI KHODABHAI SOLANKI

JUDGEMENT

(1.) THE present Civil Revision Application under Section 29(2) of the Bombay Rent Act has been preferred by the applicant-original plaintiff to quash and set aside the impugned judgment and order passed by the learned appellate Bench of the Small Cause Court at Ahmedabad dated 20/03/2003 in Civil Appeal No. 19/2001 by which the learned appellate Court has allowed the appeal preferred by the respondents-original defendants and has quashed and set aside the judgment and decree passed by the learned trial Court-learned Small Cause Court at Ahmedabad dated 20/12/2000 in HRP Suit No. 1073/1997 by which the learned trial Court decreed the suit preferred by the applicant-original plaintiff-landlord passing the eviction decree under Section 13(1)(b) of the Bombay Rent Act i.e. on the ground that the tenants have committed the breach of condition of tenancy.

(2.) THE facts leading to the present Civil Revision Application in a nutshell are as under;

(3.) HEARD Shri Sunit Shah, learned advocate appearing on behalf of the applicant-original plaintiff and considered the impugned judgment and order passed by the learned appellate Court as well as the judgment and decree passed by the learned trial Court and considered and gone through the entire evidence on record from the Record and Proceedings, which has been received from the learned trial Court. This Court has also considered the consent terms arrived at between the parties in Civil Application No. 143/1982 at Exh. 26 under which the suit property in question was let to respondent no. 1-original defendant no. 1-Pravinbhai Khodabhai Solanki. Under the said consent terms, it appears that the suit property has been let to respondent no. 1-original defendant no. 1 only for himself and for his family members. It is also required to be noted that in the said consent terms respondent no. 2-original defendant no. 2 has also put the signature for himself and other minors and, therefore, as such the suit property was required to be used by respondent no. 1-original defendant no. 1 only and as it was found that respondent no. 2-original defendant no. 2 was residing in the suit premises, the applicant-plaintiff was of the opinion that there is breach of terms of tenancy and, therefore, the applicant-original plaintiff instituted the suit before the learned Small Cause Court at Ahmedabad for eviction decree and for recovery of possession on the ground that respondent no. 1-original defendant no. 1 has committed the breach of tenancy. To prove the same, number of documentary evidences were produced by the applicant-original plaintiff to show that respondent no. 1-original defendant no. 1 has shifted to another society at Hariganga Society, Odhav and that respondent no. 2- original defendant no. 2 is residing in the suit premises. Considering the evidence on record, it appears to the Court that the applicant-original plaintiff has successfully proved that respondent no. 1-original defendant no. 1 has shifted to another premises, Hariganga Society, Odhav as respondent no. 1-original defendant no. 1 himself has given the said address of Hariganga Society in his documents/applications made to the RTO Authority. It is also required to be noted at this stage that though Ashwinbhai alias Himatsingh Khodabhai Solanki in the cross examination has specifically admitted that the suit notice/summons were served upon him at the suit premises, respondent no. 1- original defendant no. 1 in his cross examination had stated that the suit notice is not served upon respondent no. 2-original defendant no. 2 at the suit premises. The aforesaid shows that the deposition of respondent no. 1-original defendant no. 1-Pravinbhai Khodabhai Solanki is not reliable and, therefore, it does not infer any confidence. Thereafter, when the learned appellate Court has passed the eviction decree, the learned appellate Court has materially erred in reversing the same. It appears from the impugned judgment and order passed by the learned appellate Court that the learned appellate Court has not properly appreciated the documentary evidence on record and the finding given by the learned appellate Court on appreciation of evidence is perverse and the impugned judgment and order passed by the learned appellate Court cannot be sustained and the same deserves to be quashed and set aside.