DHIRENDRABHAI HASMUKHLAL LOTIYA Vs. SONALBEN BHARATKUMAR KHIMANI

JUDGEMENT

(1.) THIS Revision Application under Section 29 (2) of the Bombay Rents, Hotels and Lodging House Rates Control Act, 1947 ['the Bombay Rent Act, 1947', for short] is filed by the original defendant tenant, and is directed against the judgment and decree dated 29.10.2013 in Regular Civil Appeal No.40 of 2007 passed by the learned 11th Additional District Judge (Ad -hoc) Rajkot by which the Appellate Court below while dismissing the Appeal, confirmed the judgment and decree dated 05.05.2007 passed by the learned Judge, Small Cause Court, Rajkot allowing the Regular Civil Suit No.61 of 1996 instituted by the landlord for eviction of the defendant tenant from the suit premises, inter alia on the ground that the tenant has already acquired suitable alternative accommodation.

(2.) HEARD Mr.R.R.Marshal, learned senior advocate, with Mr.A.B.Munshi, learned advocate for the applicant -tenant and Mr.Vimal Patel, learned advocate for the opponentlandlord. Both the learned advocates have taken this Court through the evidence on record, to the extent necessary, not for the purpose of re -appreciation thereof, but to appreciate the contentions raised by them before this Court.

(3.) MR .Marshal, learned senior advocate for the applicant tenant has firstly submitted that the sole defendant alone was not the tenant and other family members, having not been joined as defendants, the proceedings suffered from the vice of non -joinder of necessary parties. It is next submitted that the defendant himself has not acquired any property in his name, at least at the place of the suit property and therefore the Courts below have committed an error which needs to be set right in this Revision Application. Learned advocate has taken the Court extensively through the reasons recorded by the Appellate Court and it is submitted that though the findings may not be termed as perverse, they are atleast questionable. Reliance is placed on the decision of Honourable the Supreme Court in the case of Anandi D. Jadhav vs. Nirmala Ramchandra Kore and others, 2000 AIR(SC) 1386, and that of this Court in the case of Indumati Sadashiv Deshmukh vs. Mohanlal Dahyabhai Gandhi, 2004 3 GLH 503. On the other hand, Mr.Patel, learned advocate for the respondent landlord has submitted that the sole defendant alone was the tenant and no other person was required to be joined as defendant and further that the Courts below have examined in detail the acquisition of properties by all the family members of the tenant and considering the totality, finding of fact is recorded that the defendant tenant has already acquired suitable alternative accommodation. Attention of the Court is also invited to the material on record to show that, the tenant is a tax consultant by profession and it is his own case that he practises mainly at Mumbai where he has his own flat as well as office. Whenever he comes to the city of Rajkot where the suit premises is situated, everywhere he claims, including in his professional affairs, that he is residing at 8 -A, Prashant -Deep, 2/7, Panchvati Society, Rajkot, which is other than the rented premises. This is the same address, for which ample material has come on record to show that the tenant resides there, with his family. It is also submitted that, the summons of the Court was also sent there and the bailiff report reveals that when it was first sought to be served, the wife of the tenant was at home but the summons was not accepted by her saying that the defendant was not at home. Thereafter the same was accepted by the father of the tenant on that very address. It is submitted that both the Courts below have recorded categorical finding that, whenever the tenant is at Rajkot, it is at the above address where the defendant resides with his family, which is a lavish bungalow and the landlord should not be deprived of his property under these circumstances. It is submitted that, the defendant does not need the suit premises, he does not uses it and as a matter of fact, he resides in much lavish bungalow at Rajkot City at the above shown address, over and above his own property at Mumbai, and under these circumstances the eviction decree be not interfered with.