SHANTABEN NARANBHAI DALVADI Vs. VADILAL KACHARABHAI PRAJAPATI

JUDGEMENT

(1.) This is a revision under Sec. 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 at the instance of the heirs of the original tenant, challenging the decree of eviction passed against them by the rent Court, which has been confirmed in appeal. In such revision the jurisdiction of this Court is extremely limited. The Supreme Court has laid down the scope and powers of the High Court while entertaining such revisions under Sec. 29(2) of the Bombay Rent Act. The Supreme Court in the case of Patel Valmik Himatlal & Ors. vs. Patel Mohanlal Muljibhai, (1998 (2) GLH 736 = AIR 1998 SC 3325), while approving and reiterating the principle laid down in its earlier decision in the case of Helper Girdharbhai vs. Saiyed Mohmad Mirasaheb Kadri ( AIR 1987 SC 1782), held that High Court cannot function as a Court of appeal, cannot re-appreciate the evidence on record, cannot discard concurrent findings of fact based on evidence recorded by the Courts below, and cannot interfere on grounds of inadequacy or insufficiency of evidence, and cannot interfere, except in cases where conclusions drawn by the Courts below are on the basis of no evidence at all, or are perverse. A different interpretation on facts is also not possible merely because another view on the same set of facts may just be possible.

(2.) . Only certain factual contention require to be noted.

(3.) . It was contended by the petitioners-tenants (who are the heirs of the original tenant and who are brought on record on the demise of the original tenant during the pendency of the suit) that this very landlord-plaintiff had earlier filed a suit for eviction against the original tenant on the same ground viz. under Sec. 13(1 )(1) of the Bombay Rent Act (amongst other grounds). It was contended that in the said suit the landlord had sought for a decree under Sec. 13(1)(1) of the said Act on the ground "that the tenant after the coming into operation of this Act has built, acquired vacant possession of or been allotted a suitable residence", and such suit had been dismissed including on this ground. It is, therefore, contended that in present suit the landlord has raised the same ground against the tenant, and therefore this suit is barred by principles of res-judicata. 3.1. This contention of learned counsel for the petitioner must fail inasmuch as the very concept of res-judicata has been misunderstood and/or misapplied. There is no controversy that the parties to the earlier suit and in the present suit are the same. There is also no controversy that the cause of action and the ground for seeking a decree is also the same. However, what is relevant and what distinguishes the previous suit and the present suit is the subject matter of dispute viz. the identity of the property in question. In the earlier acquired other premises which consisted of ground floor and first floor, and in the said suit it was found that the tenant had possession of only first floor. As against this, in the present suit the landlord has contended that the tenant has, by renovation and substantial expansion of the very same premises, rebuilt the same and that therefore now the tenant has, within the meaning of Sec. 13(1)(1), acquired premises which consist of a Cellar of two rooms, ground floor of two rooms, with two rooms on first floor and second floor respectively. Thus, so far as the second suit viz. the instant suit is concerned, the identity of the property is substantially different although the location and situs may be the same. It is relevant to note that the cause of action which is referable to Sec. 13(1)(1) of the Act only requires that the tenant should have acquired other suitable accommodation. It is this "other suitable accommodation", which has to be considered in the context of the earlier suit and the present suit. The mere fact that the location of the property is the same, does not make it the same property. In the earlier suit it was a question of ground floor and first floor consisting of one room each, and where the ground floor was not in possession of the tenant. In the instant case the property which the tenant is shown to have acquired is two rooms in the cellar, two rooms on the ground floor plus the fist floor (two rooms) and second floor (two rooms) respectively. In my opinion, when there is substantial difference between the nature of the property amongst the various floors, it cannot possibly be urged that the identity of the property in the first suit is the same as the identity of the property in the present suit. For this reason the principle of res judicata would not apply.