DIPAK RASBIHARILAL GOYEL Vs. NALINIBEN H RAVAL

JUDGEMENT

(1.) The present First Appeal has been filed by the appellant original defendant challenging the judgment and order rendered in Special Civil Suit No.551 of 2008 by the learned 3rd Additional Senior Civil Judge, Ahmedabad (Rural), Mirzapur, Ahmedabad dated 19.02.2011 on the grounds stated in the memo of appeal.

(2.) The facts of the present case briefly stated are that the suit property flat No.B-13, Venunad Apartment, Near Udgam School, Ahmedabad had been given by the respondent original plaintiff on leave and licence basis as per the agreement of Leave and Licence at Ex.26 subject to the terms and conditions mentioned therein for a period of 11 months. As per the terms and conditions of the Leave and Licence Agreement, the appellant was to handover vacant and peaceful possession on expiry of the period. The appellant was also required to pay Rs.5,500/- regularly, every month and in case of any two consecutive defaults, the tenancy would get terminated automatically. It is also stipulated that, by notice, such leave and licence could be terminated before expiry of 11 months. As there was a default committed by the appellant in making payment of the amount of Rs.5,500/- for the month of October and November 2008, and also there was a breach of the conditions with regard to the use only for the residential purpose, the notice dated 04.10.2008 was served asking to hand over the vacant and peaceful possession within 15 days, or in any case on expiry of 11 months of the Leave and Licence Agreement. The reply was given and ultimately, the aforesaid suit has been filed. It is required to be mentioned that the suit was filed and the same is decreed on appreciation of material and evidence by the Court below, which is assailed in the present Appeal on the grounds stated in the memo of Appeal inter alia the learned trial Judge has committed an error in not appreciating the evidence including the notice. It is contended that, by the Notification, the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short the Rent Act ) has been suspended and the suit is required to be filed instead of Small Causes Court to City Civil Court. It is also contended that as per the Transfer of Property Act, if any breach is committed by the tenant, the landlord is entitled to get the possession after issuing the notice, and the grounds which have been given, have not been justified, and therefore, the impugned judgment is erroneous.

(3.) Learned advocate Mr.J. R. Shah for the appellant has submitted that as per the provisions of the Rent Act, which has been suspended, the only difference would be that the suit would be filed in the Civil Court instead of Small Causes Court i.e. Rent Court. He submitted that for any breach or violation of the terms and conditions of the agreement and to recover the possession of the premises, the notice is required to be given by the landlord even under the Transfer of Property Act. Learned advocate Mr.Shah submitted that the recovery of possession has been sought on two grounds ; (i) default in payment of the rental charges; (ii) the use of the premises in breach of the conditions. He submitted that the notice was issued demanding the rent for the month of November 2008. Therefore, the said ground is not available. Another default is with regard to the use of the premises for residential purpose only whereas the appellant is said to have been using it for tuition. He submitted that it has not been properly appreciated that it is not a commercial use and that ground is also not available. He has referred to the papers the Leave and Licence Agreement at Ex.26 and reply at Ex.28. He pointedly referred to the Leave and Licence Agreement at Ex.26 produced which has been produced with the paper book and referred to clause 10 of the Leave and Licence Agreement which provides that