KRUPA ARIHANT TRADERS OWNER Vs. RUKEIYA MOHAMMADBHAI AJEMARI

JUDGEMENT

(1.) The present Civil Revision Application under Section 29 (2) of the Bombay Rent Act is filed for the purpose of seeking the following reliefs :-?

(2.) The case of the present applicant who is original appellant is that respondent no. 1 herein -? plaintiff having purchased a rented premises from the original landlord in the year 1991 has filed H.R.P. Suit No. 1502 of 2008 against the present applicant (defendant no. 2) for seeking possession of the suit shop, more particularly, described in the plaint. It was contended in the suit that respondent no. 2 was on rent at Rs.135/-? per month with all taxes since before 1994. Respondent no. 2 has paid only rent upto the year 1994 to respondent no. 1 and thereafter, deposited the standard rent by filing an application in the year 1997. Respondent no. 1 then issued notice on 16.10.2003 for outstanding rent. As a result of this, Standard Rent Application No. 553 of 2003 was submitted and rent of Rs.10,800/-?for 54 months came to be deposited for the period commencing from 01.12.2003 to 31.05.2008. Since the outstanding amount of Rs.7,290/-? was not paid, a notice was issued by respondent no. 1 for terminating the tenancy on 17.05.2008. But as per the say of the original plaintiff, the same is not complied with, as a result of this, respondent no. 1- original plaintiff was required to file Regular Civil Suit for recovery of possession. It was also mainly contended that respondent no. 2 has started a business at another place so, the present applicant i.e. original respondent no. 2 is not in need of the premises whereas, the plaintiff wants to actually start a business for his son at the place. It was also a case of sub-?letting alleged against respondent no. 2 and thereby the applicant by sub-?letting has generated a huge profit and as such recovery of possession was sought. This suit has been contested by submitting written statement at Exhibit-?37 by raising multiple contentions. However, after framing of issues at Exhibit-?18 and after allowing the parties to lead oral as well as documentary evidence, the learned Small Causes Court, was pleased to pass the judgment and decree on 02.05.2011. This decree which has been passed by the learned Small Causes Court, was challenged by way of appeal being Civil Appeal No. 65 of 2011 before the learned appellate Bench of Small Causes Court, Ahmedabad and the said appeal also came to be dismissed vide order dated 06.12.2018 whereby, the original judgment and decree came to be confirmed and it is this concurrent decisions and conclusion, the present applicant has filed this revision application under Section (29) 2 of the Bombay Rent Act.

(3.) Learned advocate Mr. Hardik B. Shah appearing for the applicant has vehemently contended that both the courts below have concurrently committed error in exercising jurisdiction. It has also been contended what while passing the judgment and order, both the courts below have misconstrued the relevant provisions of Bombay Rent Act, precisely Section 12(3) (b) and additionally Section 13(1) (e) of the Bombay Rent Act (the "Act" for short). It has been contended that the courts below have committed serious error in holding that the appellant is in arrears of rent for a period of more than six months and as such by virtue of Section 12(3)(a) of the Act, the plaintiff is entitled to get back the possession. It has further been contended that while considering the question of sub-?letting and examining the provisions of Section 13(1)(e) of the Act, erroneous approach is shown by the courts below and has committed serious error in coming to the conclusion that the father of the applicant was a partner of M/s. Gautam Traders and at present the applicant is in exclusive possession of the suit shop and doing his own business in the name and style of 'Krupa Arihant Traders' and not in the name of Gautam Traders and since the courts below have committed serious error in examining this issue about the partnership, such erroneous approach deserves to be corrected. It has been contended that the courts below have failed to hold that there is no signature of three rent receipts of voucher book at Exhibit Nos. 47, 48 and 49 and has arrived at a perverse finding. In fact, according to the applicant, the written statement has indicated that the applicant has joined his father's hardware business before three years from the date of the death of his father in the year 2007. It is erroneously asked in question relating to the year 1988 and 1989 with respect to the three rent receipts in cross-?examination and as such by analyzing this evidence, an attempt is made to indicate to consider and grant the relief as prayed for in the revision application. It has further been submitted that the property in question was used by the family members and as such by virtue of Section 5(11)(c) of the Act, the decree of possession could not have been passed and by raising the contention with the support of the several decisions, a request is made to set aside the impugned orders which have been passed by the courts below. Though several decisions have been mentioned, two are emphasized by the learned advocate for the applicant to convenience the court to consider the revision application. The decision in the case of Luhar Jagjivanbhai Ramjibhai v. Mukundlal Pitambardas Shah reported in 1986 Law Suit (Guj) 222 and in the case of Smt. Vijaya Madhukar Desai & Ors., v. Shri Bharat Shantilal Mehta & Ors., reported in 2011 (2) RCJ 380 (Bom.) and by referring to these two decisions, a request is made to set aside the concurrent orders which have been passed by the courts below. No other submissions have been made.