JAYSHREEBEN VASANTKUMAR VITHLANI Vs. MANJIBHAI AND CO

JUDGEMENT

(1.) This application has been moved by the heirs of the original defendant of Regular Civil Suit No. 221 of 1982 under the provisions of Section 29(2) of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (the Act) challenging the judgment and order dated 11.07.2006 made by the Appellate Court in Regular Civil Appeal No. 10 of 1994 whereby the judgment and decree made by the trial Court on 30.12.1993 in Regular Civil Suit No. 221 of 1982 came to be confirmed.

(2.) The facts are that the plaintiff had let-out the suit premises to the original defendant late Shri Vasantkumar Khimjibhai Vithalani for monthly rent of Rs. 150/- (Rupees One Hundred and Fifty only). The suit premises are situated at Yagnik Road, Rajkot and comprise of one shop which had been hired by the defendant for carrying on medical practice as a bone-setter in Ayurvedic system. The defendant was also working as a Physiotherapist. According to the plaintiff by virtue of the provisions Section 13 (1) (k) of the Act as the suit premises had not been used for the purpose for which the suit premises had been let-out and the non-user was for a continuous period of six months immediately preceding the date of the suit the plaintiff was entitled to decree of eviction against the defendant tenant. The trial Court vide its impugned judgment dated 30.12.1993 accepted the case put up by the plaintiff and decreed the suit in favour of the plaintiff. This came to be challenged by the defendant through his legal heirs, the defendant having passed away during the pendency of the proceedings. The Appeal came to be dismissed vide impugned judgment dated 11.07.2006 which is under challenge.

(3.) Mr. S. M. Shah, learned Advocate for the defendant has assailed the order of the Appellate Court principally on two grounds : (1) that admittedly the judgment and decree were made by the trial Court in absence of the Advocate of the defendant, which is a matter of record, and the Appellate Court erred in not granting the prayer of remand made by the appellants in the appeal. That a party should not be penalized for the absence of the Advocate. He has placed reliance on the decision of the Apex Court in the case of Rafiq v/s. Munshilal reported in AIR 1981 SC 1400 in this regard. (2) The order of the Appellate Court was not an order in the eye of law as the same suffers from non-fulfillment of the pre-requisite conditions stipulated by the provisions of Order XLI Rule 31(a) of the Civil Procedure Code. That the Appellate Court having failed to set out points for determination the entire order was vitiated in law and only on this count the same was required to be quashed and set aside relegating the parties to the Appellate Court in the first instance. In support of this proposition he has placed reliance on the following decisions :