POPATLAL M BHANSHALI Vs. KISHANLAL SHIVLAL MODHIYA

JUDGEMENT

(1.) The petitioner " original plaintiff " appellant landlord is before this Court being aggrieved of a judgment and decree in Regular Civil Suit No.27 of 1986, passed by the learned Civil Judge (J.D.), Zalod dated 18.08.1989, whereby the suit of the plaintiff for possession was dismissed. The learned Judge was pleased to order that plaintiff to recover @ Rs.21 per month the rent with effect from 01.06.1983, totaling to Rs.672/-. It was further ordered that if the defendant had deposited any amount in the Court, the same should be adjusted.

(2.) The plaintiff " landlord being aggrieved of the same, approached the Court of 2nd Extra Assistant, Panchamahals at Godhra by filing Regular Civil Appeal No.59 of 1989, which too was dismissed by judgment and order dated 31st July 1993 confirming the judgment and decree passed by the learned trial Judge.

(3.) Mr.Asim J.Pandya, learned advocate for the petitioner vehemently submitted that the Courts below have erred in holding that the case falls under Section 12(3)(b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as, 'the said Act'). He submitted that the plaintiff had contended that the case falls within under Section 12(3)(a) and not under Section 12(3)(b). The learned advocate submitted that the learned Judge, on a single stray sentence in the cross-examination of the plaintiff (Exh.142), wherein the plaintiff stated that, "I am taking Rs.21 in total towards the rent which includes all taxes", has held that the deposition of the landlord should be construed to mean that, 'the rent payable by the tenant was not payable by month and, therefore, the case is governed by Section 12(3)(b) and not Section 12(3)(a) of the Act. He submitted that the learned Judge has committed an error in so doing. In support of his submission, the learned advocate relied upon a decision of the Hon'ble the Apex Court in the matter of RAJU KAKARA SHETTY VS. RAMESH PRATAPRAO SHIROLE & ANOTHER, reported in Judgment Toady 1991 (1) S.C. 128. The learned advocate relied upon the observations made by the Hon'ble the Apex Court in paragraph Nos.9 and 14, which are produced for the ready reference: