ABBASBHAI GULAMHUSSAIN Vs. AEMNA FARIDBHAI

JUDGEMENT

(1.) THIS revision challenges the judgment and decree dated 21st April 2011 passed by the Appellate Bench of the Small Causes Court, Ahmedabad in Civil Appeal No.78 of 2004, whereby the appeal preferred by the appellant herein has been dismissed and the judgment and decree dated 21st April 2004 passed by the learned Judge, Small Causes Court No.4 at Ahmedabad in H.R.P. Suit No.977 of 1998 has been confirmed.

(2.) THE facts of the case are that the revisionist- plaintiff instituted a suit being H.R.P. Suit No.977 of 1998 for possession of the suit premise on the ground that the defendants/tenants have acquired alternative suitable residential accommodation and, therefore, the plaintiff is entitled to get possession of the suit premise. The plaintiff also prayed for a permanent injunction restraining the defendants from transferring or assigning the suit premises to a third party by subletting or by way of leave and license, etcetera and further restraining the defendants from making any construction on the suit premise. Further relief of mesne profit from the date of filing of the suit till realization of the possession was also prayed for.

(3.) THE trial court, upon appreciation of the evidence on record, has found that there was evidence by way of admission of the witnesses of the defendants to the effect that the defendants have acquired a premise other than the suit premise, which stood in the name of the original defendants/tenants, which was a very big premise consisting of three bathrooms, latrines, store rooms, otta portion etcetera. However, the trial court observed that the acquisition of the alternative premise had taken place during the time of the previous owner. Under the circumstances, the plaintiff was required to show that he had purchased the suit premise from the previous owner along with the right accrued on the ground of acquisition of suitable residence by the tenant. The trial court found that the plaintiff had not shown that the plaintiff had purchased the suit premise with actionable claim as contained in section 13(1)(l.of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as "the Act"). The trial court was of the view that inaction on the part of the previous landlord in instituting a suit under section 13(1)(l.of the Act amounts to waiver of the cause of action and that as the cause of action had arisen during the period when the suit premise was of the ownership of the predecessor in title of the plaintiff, the cause of action would not continue without any specific covenant in the sale deed. The trial court, accordingly, held that the new purchaser could not be said to be entitled to the relief claimed under section 13(1)(l.of the Act and, accordingly, dismissed the suit.