ZUBEDABIBI WIDOW OF SULEMAN ISUL RAJANI-THROUGH LEGAL HEIRS, vs SURENDRAKUMAR FULCHANDDAS SHAH
- Court
- Gujarat High Court
C/CRA/49/2014 JUDGMENT DATED: 04/11/2026
(GJHC240397042014)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 49 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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ZUBEDABIBI WIDOW OF SULEMAN ISUL RAJANI-THROUGH LEGAL
HEIRS, & ORS.
Versus
SURENDRAKUMAR FULCHANDDAS SHAH
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Appearance:
PARIMALSINH PARMAR(7296) for the Applicant(s) No. 1,1.1,1.2,1.3
MR VASANTS SHAH(810) for the Opponent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 04/11/2026
JUDGMENT
1. Heard Mr. Parimalsinh Parmar, learned advocate for the
Petitioners. None present for the respondent.
2. This Civil Revision Application is filed under Section 29(2) of The
Gujarat Rents, Hotel and Lodging House Rates Control Act, 1947 (for
short ‘the Rent Act’ ) against the judgment and eviction decree dated
th
01.01.2014 passed by 6 Additional District Judge, Panchmahal,
Godhra, in Regular Civil Appeal No.53 of 2009, whereby it has
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confirmed the judgment and eviction decree dated 10.08.2009 passed
rd
by 3 Additional Senior Civil Judge and Judicial Magistrate First Class,
Godhra in Regular Civil Suit No. 315 of 1995.
3. The petitioners herein are original defendants - tenant and
respondent herein is original plaintiff – landlord. For the sake of
convenience and brevity, hereinafter they will be referred to as per their
original position in the suit, i.e. defendant – tenant and plaintiff –
landlord.
4. The short facts of the case appear to be that the landlord
instituted Regular Civil Suit No.315 of 1995 against the tenant on
various grounds, as available to the landlord under Sections 12 and 13 of
the Rent Act. The suit was contested by the tenant by filing written
statement.
4.1 After completion of pleading, necessary issues were framed by the
Trial Court. One of such issue was in regard to non-use of the demised
premises (rented shop) by tenant, being issue No. 7A. It is to be noted
here that Trial Court had not decided the aforesaid issue No.7A on the
ground that since the Trial Court believed that there is a reasonable and
bona fide requirement of the demised premises by landlord, such issue
is not required to be decided.
4.2 After appreciating the evidence on record, the Trial Court decreed
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the suit in favour of the landlord vide its impugned judgment and
eviction decree dated 10.08.2009 passed on the ground of reasonable
and bona fide requirement of the demised premises by the landlord.
4.3 Feeling aggrieved and dissatisfied with the aforesaid judgment
and eviction decree, the tenant preferred the Regular Civil Appeal No.
53 of 2009 before the Appellate Court. It appears that the Appellate
Court, while framing points for determination, framed point No.2 in
regards to non-use of demised premises (rented shop) by the tenant.
The point No.2 for determination couched in a manner which reads
thus;
“Whether Trial Court has committed any error by believing
that the defendant is not using the demised premises (rented
shop)”.
4.4 After hearing the parties and on re-appreciation of evidence, the
Appellate Court found that landlord failed to prove any reasonable and
bona fide requirement of demised premises, but at the same time
arrived at a conclusion that tenant is not using demised premises
(rented shop) by answering the aforesaid point No.2 against the tenant.
Accordingly, it has dismissed the appeal preferred by the tenant.
4.5 Hence, the present Civil Revision Application.
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5. At the outset, Mr. Parmar, learned advocate, would submit that
Appellate Court has committed serious error in law by framing wrong
point No.2 for its determination, which ultimately resulted into injustice
to the tenant. It is submitted that when the Trial Court had not decided
issue No.7A, which was in regard to non-use of suit shop by the tenant,
there was no reason for the Appellate Court to decide such issue, that
too, by framing wrong point for determination in this regard.
5.1 Mr. Parmar, learned advocate, would further submit that the copy
of panchnama produced and available on record of the case was
completely lost sight of by the Appellate Court while arriving at a finding
of fact that tenant is not using the demised premises. It is submitted
that the finding of fact recorded in relation to non-use of demised
premises by tenant is perverse and grossly erroneous.
5.2 Mr. Parmar, learned advocate, would further submit that,
considering the facts and circumstances of the case and when the
Appellate Court believed that landlord failed to prove reasonable and
bona fide requirement of demised premises, even upon re-appreciation
of evidence on record, the Appellate Court could not have arrived at a
different conclusion than the Trial Court in regard to non-use of suit
shop, especially when Trial Court did not answer issue No. 7A.
5.3 Mr. Parmar, learned advocate would further submit that matter
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may be remanded back to the Appellate Court to decide point No.2
afresh with a direction that such point No.2 may be re-framed, as the
Trial Court not at all had decided the issue of non-use.
5.4 It is submitted that this Court may be directed to the Appellate
Court to decide the issue of non-use of suit shop by the tenant by taking
into account all evidence available on record and without being
influenced by its observation made in the impugned judgment, such
point can be redecided by the Appellate Court afresh.
5.5 Making the above submissions, Mr. Parmar, learned advocate,
would request this Court to allow this revision application.
6. Since none appeared for the respondent and this matter is listed
in a very critically old matters for final hearing, this Court has no other
option left but to proceed with the hearing of this matter.
7. Having heard Mr. Parmar, learned advocate for the tenant and
upon perusal of the impugned judgment and decree passed by both
Courts below, it appears that the Trial Court framed several issues,
wherein issue No.7A was framed in regard to non-use of demised
premises (rented shop) by the tenant.
8. It is evident from bare reading of answer to issue No.7A by Trial
Court that such issue remained undecided by the Trial Court on the
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ground that since the landlord proved his reasonable and bona fide
requirement of demised premises, such issue need not be decided.
Accordingly, such issue was never examined by the Trial Court, which is
a Court of first instance.
9. No cavil on the point that the Appellate Court has all powers to re-
appreciate the evidence on record and to arrive at its own conclusion. At
the same time, the respondent of the appeal (landlord) ought to have
raise the dispute about non-deciding the issue of non-use by the Trial
Court, maybe in the appeal filed at the instance of tenant.
10. Be that as it may, when this Court has gone through the points for
determination framed by the Appellate Court, more particularly point
No.2 in question, prima facie , it appears that the Appellate Court has
committed a grave error by wrongly framed the point No.2 for its
determination, as outset observed by me.
10.1 This point could not have been framed at the first instance,
inasmuch as the issue No.7A framed by the Trial Court in regards to
non-use of suit shop by the tenant was not answered by the Trial Court
against the tenant. Thus, there was no occasion for the Appellate Court
to frame such issue, that too, in negative.
11. As observed above, the landlord has all right to challenge any
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adverse findings of fact recorded by the Trial Court in the appeal filed by
the tenant. (See: Order 41 Rule 22 of CPC) and in that view of the
matter, the Appellate Court has all power to decide the issue of non-use
which appears to have been left out to be decided by the Trial Court. At
the same time, without proper framing of the points for determination
in this regard, any answer given by the Appellate Court would surely
affect the right of the party, especially when the Appellate Court appears
to have failed to consider and take note of entire piece of evidence
available on record including the panchnama which prima facie proves
the presence of the tenant at suit premises.
12. At this stage, I would like to observe that without further delving
on the aspect except observed above, I am of the considered view that
the request made by learned advocate for the petitioner requires to be
accepted, thereby the matter needs to be remanded to Appellate Court
with following directions:
12.1 The Appellate Court requires to reframe the point No.2 for its
determination. It ought to have framed such point as follows:
“Whether any error committed by the Trial Court by not
deciding issue No.7A, i.e., non-use of suit shop by the
tenant?”
12.2 If so required, and in a case where any dispute raised by the
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landlord before the Appellate Court that the tenant is not using the
demised premises, it will be opened for the Appellate Court to frame an
additional point for determination that whether the evidence on record
proved that the tenant is not using the demised premises (suit premises)
for his business?
13. In view of the foregoing discussion and reasons, the impugned
th
judgment and decree dated 01.01.2014 passed by 6 Additional District
Judge, Panchmahal, Godhra in Regular Civil Appeal No.53 of 2009 is
quashed and set aside, and matter is remanded back to the Appellate
Court to decide afresh the point for determination as framed above.
14. To decide such point, the Regular Civil Appeal No.53 of 2009 is
ordered to be restored back on its original file. The Appellate Court is
hereby requested to decide the aforesaid appeal as early as possible by
giving reasonable opportunity of hearing to all the parties concerned.
15. It is hereby clarified and observed that upon restoration of the
aforesaid appeal on its file due to remand of the matter by this Court,
the Appellate Court is not required to again decide an issue of the
reasonable and bona fide requirement of the landlord, as the same was
already decided by the Appellate Court against the landlord vide its
impugned judgement/decree, against which there was no revision
application was filed by the landlord.
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16. In view of the foregoing conclusion, the present Revision
Application is partly allowed to the aforesaid extent. Rule is made
absolute accordingly. No order as to costs. Record and proceedings shall
be sent back forthwith to the Appellate Court.
(MAULIK J.SHELAT,J)
Lalji Desai
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