MOHANBHAI VAGHABHAI SINCE DECD.THRO HIS HEIRS vs VAIDYARAJ JANARDAN PRANSHANKAR TRIVEDI (DECEASED)

C/CRA/89/2008 JUDGMENT DATED: 28/10/2026
(GJHC240392422008)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 89 of 2008

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE MAULIK J.SHELAT

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Approved for Reporting Yes No
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MOHANBHAI VAGHABHAI SINCE DECD.THRO HIS HEIRS & ORS.
Versus
VAIDYARAJ JANARDAN PRANSHANKAR TRIVEDI (DECEASED) & ORS.
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Appearance:
MR KIRTIDEV R DAVE(3267) for the Applicant(s) No. 1.1,1.2,1.3,1.4,1.5
MR RAHUL K DAVE(3978) for the Applicant(s) No. 1.1,1.2,1.3,1.4,1.5
FRESH RULE SERVED(4513) for the Opponent(s) No. 1.1,1.2,1.3,1.4
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CORAM: HONOURABLE MR. JUSTICE MAULIK J.SHELAT

Date : 28/10/2026

JUDGMENT

1. Heard Mr. Kirtidev R. Dave, learned advocate for the
petitioners. Though served, none appeared for the
respondents.
2. This revision application is filed by original
defendant under Section 29(2) of the Bombay Rents,
Hotel and Lodgings House Rates Control Act, 1947
(herein after referred to as “ the Rent Act, 1947” ),
directed against the judgment and decree dated
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03.04.2008 passed by Additional District Judge, Fast
Track Court No.1, Surendranagar in Regular Civil Appeal
No. 67 of 2005, whereby the Appellate Court confirmed
the judgment and eviction decree dated 30.09.1995
passed by Joint Civil Judge (Junior Division),
Surendranagar passed in Civil Suit No. 264 of 1988.
3. The petitioners herein are the legal
heirs/representatives of the original defendant –tenant,
likewise the respondents herein are legal heirs and
representatives of the original plaintiff – landlord. For the
sake of convenience and brevity, they will be referred as
tenant and landlord respectively.
SHORT FACTS:
4. The short facts of the case appear to be that
landlord let out the residential premises (herein after
referred to as “ the demised premises” ) to the tenant
which consists of a room, kitchen, bathroom and toilet.
As admitted by the landlord in his cross-examination, he
is residing on upper floor of the demised premises. As per
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the case of the landlord, the demised premises was given
for residential purpose, but the tenant started using it as
a godown for his business purpose (storage of vegetables)
and also acquired suitable residence. Thus, the Civil Suit
No. 264 of 1988 came to be filed.
4.1. The tenant opposed the eviction suit by filing his
reply. According to the tenant, the demised premises was
given for commercial use and as such there was no
change of use by the tenant. Since the demised premises
was given for commercial use, merely because the tenant
acquired suitable accommodation, it would not be a
ground available to the landlord to get back the
possession of the demised premises.
4.2. The Trial Court appears to have framed the issues
below Exhibit-21 and after recording the oral and
documentary evidence led by the parties, arrived at a
findings of fact that the demised premises was let out to
the tenant for residential purpose and he is using it as a
godown, i.e., for commercial use and further arrived at a
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finding that since the tenant acquired suitable
accommodation, the landlord is entitled to get the
possession of the demised premises as the landlord made
out a case under Section 13(1)(k) and 13(1)(l) of the Rent
Act, 1947.
5. Feeling aggrieved and dissatisfied with the judgment
and decree passed by the Trial Court, the tenant
preferred an appeal being Regular Civil Appeal No.67 of
1995 before the Appellate Court.
6. After hearing the parties and upon re-appreciation of
evidence on record, the Appellate Court vide its judgment
and decree dated 03.04.2008 confirmed the eviction
decree passed by the Trial Court. Hence the present
revision application.
SUBMISSIONS OF THE PETITIONER – TENANT:
7. Mr. Dave, learned advocate for the petitioners –
tenant, would submit that the Courts below have
committed a gross error in law by not appreciating that in
absence of any rent note and the landlord having failed to
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prove on record that the demised premises was let out
only for residential purpose to the tenant, the eviction
decree could not have been passed on the ground of
change of use. It is submitted that the landlord failed to
prove on record by leading cogent and reliable evidence
that the demised premises was let out to the tenant only
for residential purpose.
7.1. Mr. Dave, learned advocate, would further submit
that merely because a notice issued by the local
municipality to the tenant to stop the commercial use of
the demised premises would not mean that the demised
premises was let out for residential purpose. It is
submitted that though landlord in his cross-examination
admitted that he is having a proof to show that the
demised premises was let out for residential purpose, but
no such proof was produced on record. It is further
submitted that the demised premises was let out only for
commercial use from its inception, whereby no decree for
eviction under Section 13 (1)(l) of the Rent Act, 1947
could have been passed.
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7.2. Mr. Dave, learned advocate, would submit that the
petitioner preferred an application under Order XLI Rule
27 of CPC to produce additional evidence and such
application was allowed, but thereafter, the matter was
not remanded to the Trial Court for recording the
evidence of the tenant. It is submitted that the documents
sought to be produced by way of additional evidence was
initially submitted before the Trial Court, but it did not
allow the tenant to submit such document during the
course of the trial. Nonetheless, when such documents
were allowed to be taken on record by the Appellate
Court, the tenant ought to have been given an
opportunity to lead his oral evidence to prove those
documents in accordance with law.
7.2. No other and further submissions being made.
Making the above submissions, Mr. Dave, learned
advocate, would request this Court to allow this revision
application.
8. Since none appeared for the respondent, I have
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heard the arguments advanced by Mr. Dave, learned
advocate for the tenant and gone through the impugned
judgment and decree passed by the Courts below as well
as the oral and documentary evidence provided in the
form of paper-book by Mr. Dave, learned advocate for the
petitioner as well as gone through the Record and
Proceedings which is made available to this Court.
ANALYSIS & REASONS:
9. At the outset, it is observed that this revision
application is filed against concurrent findings of fact
recorded against the tenant, whereby the Courts below
have concluded that the tenant has changed the use of
demised premises from residential to commercial and
also acquired a suitable residence. Accordingly, a decree
for eviction came to be passed by the Trial Court which
was confirmed by the Appellate Court.
10. Before proceeding to examine the merit of the case,
first I would like to refer to and rely upon the decision of
the Constitution Bench of the Hon’ble Apex Court in the
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case of Hindustan Petroleum Corporation Limited vs.
Dilbahar Singh - (2014) 9 SCC 78 , where it scanned
different Rent Control Acts of different States of India and
after revisiting the law on the scope and ambit of the
revisional jurisdiction of the High Court in the rent
revision, it observed and held thus:
“28. Before we consider the matter further to find out the scope and
extent of revisional jurisdiction under the above three Rent Control
Acts, a quick observation about the “appellate jurisdiction” and
“revisional jurisdiction” is necessary. Conceptually, revisional
jurisdiction is a part of appellate jurisdiction but it is not vice versa.
Both, appellate jurisdiction and revisional jurisdiction are creatures
of statutes. No party to the proceeding has an inherent right of
appeal or revision. An appeal is continuation of suit or original
proceeding, as the case may be. The power of the appellate court is
coextensive with that of the trial court. Ordinarily, appellate
jurisdiction involves rehearing on facts and law but such
jurisdiction may be limited by the statute itself that provides for the
appellate jurisdiction. On the other hand, revisional jurisdiction,
though, is a part of appellate jurisdiction but ordinarily it cannot be
equated with that of a full-fledged appeal. In other words, revision
is not continuation of suit or of original proceeding. When the aid of
Revisional Court is invoked on the revisional side, it can interfere
within the permissible parameters provided in the statute. It goes
without saying that if a revision is provided against an order passed
by the Tribunal/appellate authority, the decision of the Revisional
Court is the operative decision in law. In our view, as regards the
extent of appellate or revisional jurisdiction, much would, however,
depend on the language employed by the statute conferring
appellate jurisdiction and revisional jurisdiction.
*
43. We hold, as we must, that none of the above Rent Control Acts
entitles the High Court to interfere with the findings of fact recorded
by the first appellate court/first appellate authority because on
reappreciation of the evidence, its view is different from the
court/authority below. The consideration or examination of the
evidence by the High Court in revisional jurisdiction under these
Acts is confined to find out that finding of facts recorded by the
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court/authority below is according to law and does not suffer from
any error of law. A finding of fact recorded by court/authority
below, if perverse or has been arrived at without consideration of
the material evidence or such finding is based on no evidence or
misreading of the evidence or is grossly erroneous that, if allowed
to stand, it would result in gross miscarriage of justice, is open to
correction because it is not treated as a finding according to law. In
that event, the High Court in exercise of its revisional jurisdiction
under the above Rent Control Acts shall be entitled to set aside the
impugned order as being not legal or proper. The High Court is
entitled to satisfy itself as to the correctness or legality or propriety
of any decision or order impugned before it as indicated above.
However, to satisfy itself to the regularity, correctness, legality or
propriety of the impugned decision or the order, the High Court
shall not exercise its power as an appellate power to reappreciate
or reassess the evidence for coming to a different finding on facts.
Revisional power is not and cannot be equated with the power of
reconsideration of all questions of fact as a court of first appeal.
Where the High Court is required to be satisfied that the decision is
according to law, it may examine whether the order impugned
before it suffers from procedural illegality or irregularity.”
(Emphasis supplied)
10.1. Thus, scope of interference by this Court while
exercising its Revisional jurisdiction is limited to an
extent that unless it has been shown by the revisionist
that there is either perversity in recording a finding or by
ignoring or misreading the evidence any finding recorded
or finding is grossly erroneous, this Court should not
interfere with such finding of fact merely another view is
possible. Keeping in mind the ratio of the aforesaid
binding decision of the Hon’ble Apex Court, I would like
to appreciate the submissions advanced by Mr. Dave,
learned advocate appearing for the tenant.
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11. Since the decree for eviction passed under Section
13(1)(k) & (l) of the Rent Act, 1947, I would like to refer
such relevant provisions, which read as follows:
“ 13. When landlord may recover possession.
(1) Notwithstanding anything contained in this Act [but subject to
the provisions of Section 15] a landlord shall be entitled to recover
possession of any premises if the Court is satisfied.-
(a) that, the tenant has committed any act contrary to the
provisions of clause (o) of Section 108 of the Transfer of
Property Act, 1882 (IV of 1882); or

(k) that the premises have not been used without reasonable
cause for the purpose for which they were let for a
continuous period of six months immediately preceding the
date of the suit; or
(1) that the tenant after the coming into operation of this
Act has built. acquired vacant possession of or been allotted
a suitable residence.”

11.1. It is an undisputed fact that there was no written
rent note produced on record, inasmuch as there was no
written agreement between the parties so far as the use
of rented premises is concerned. At the same time, it is
also an undisputed fact that the demised premises let out
is a residential premises located in residential zone. It
appears from the oral evidence of the landlord that the
ground floor of the demised premises is used by the
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tenant and the upper portion is used by him. The Trial
Court has categorically observed that a local municipality
issued a notice to the tenant to stop using the demised
premises for commercial use. The notice appears to have
been exhibited at Exhibit-31. The landlord also examined
one witness namely Shivabhai (Exhibit-33) who supported
the case of the landlord. The tenant has tried to prove his
defence that the demised premises was not never let out
for residential purpose. However, he failed to bring on
record any such material. Rather, in the examination-in-
chief of the tenant (Exhibit-43), wherein it has been
categorically deposed by him that the initial rent of
demised premises was Rs.60/- which later on increased to
Rs.80/- and after occupying one room and kitchen, the
rent was fixed to Rs.90/-. It was also admitted by the
tenant that he has acquired another residential premises.
Apart from that, he has also admitted that the rented
premises is located in residential zone. The tenant has
admitted that he is using demised premises as godown for
storage of his stocks (vegetables/fruits). He has admitted
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that he is not possessing any bills, voucher etc. to show
that goods delivered at the demised premises. The tenant
also examined clerk of tax department of local
municipality (Exhibit-39) but no help to him as the
witness has no personal knowledge about document
produced at Exhibit-40.
11.2. Thus, considering the aforesaid oral and
documentary evidence on record, the Trial Court reached
to the conclusion that when the demised premises
consists of room, kitchen, bathroom and toilet facility and
is situated in the residential zone and having received the
notice from the local municipality, whereby the tenant
was prohibited to use rented premises for commercial
purpose, the demised premises was let out for residential
purpose but later on the tenant has changed its use from
residential to commercial.
12. I would like to state that ordinarily, any house which
is located in residential zone let out by the landlord, it’s
for residential purposes unless there is an express
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agreement otherwise. As recorded above, there was no
such written agreement between the parties. The
landlord, prima facie , able to prove that it was let out for
the residential purpose by leading the evidence, the onus
was shifted upon the tenant to disprove such fact, but he
failed to discharge. It is undisputed fact that the demised
premises in residential zone and it’s located in sheri –
narrow street, surrounded by other residential houses.
The local municipality had issued notice to the tenant to
stop using as commercial purpose. Nothing was brought
on record by the tenant to show that since inception, he
used to pay commercial tax of the demised premises.
13. It is settled position of law that in a civil trial, the
issue is required to be judged on the principles of
preponderance of probability. If the aforesaid fact would
be considered, and when it is an undisputed fact that the
demised premises is located in the residential zone and in
fact the upper portion of the demised premises used by
the landlord for his residence, there is a reason to believe
that such demised premises was given for the residential
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purpose and not for the commercial use. According to me,
considering the entire facts and circumstances and the
reasons assigned by the Trial Court in this regard which
is confirmed by the Appellate Court, it cannot be said that
such finding of fact recorded by the Courts below on this
issue is either perverse or grossly erroneous.
14. So far as the acquisition of suitable accommodation
by the tenant is concerned, it is an undisputed fact, as it
is admitted by the tenant in his cross-examination that he
has acquired other residence for himself and for his
family. Thus, so far as acquiring the suitable residence by
the tenant is concerned, such issue was successfully
proved by the landlord and no error much less any gross
error of law is noticed by this Court on the part of the
Courts below while concluding in favour of landlord on
such issue.
15. As far as the submissions advanced by Mr. Dave,
learned advocate in regard to not allowing the tenant to
lead his oral evidence on additional evidence brought
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before the Appellate Court is concerned, when this Court
asked Mr. Dave, learned advocate that any such request
was made by the tenant to the Appellate Court, Mr. Dave,
learned advocate candidly states that no such request
was made by the tenant. According to me, when the
petitioner - tenant did not request the Appellate Court to
allow him to lead any oral evidence on the additional
evidence brought at the appellate stage, the impugned
judgment and decree passed by the Appellate Court
cannot be vitiated on such ground and for that reason,
the matter cannot be remanded back to the Appellate
Court or the Trial Court, as the case may be, especially
when the eviction suit instituted in 1988.
15.1. Apart from the aforesaid, Mr. Dave, learned
advocate, is not in a position to point out to this Court
that such additional evidence brought on record at the
stage of the appeal would prove that since inception, the
tenant was using the demised premises as his godown
(commercial use). According to me, such additional
evidence would not lead the case of the tenant further, by
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which he can prove that he was using the demise
premises for commercial purpose only.
16. Having gone considered the facts and circumstances
of the case and after perusal of the impugned judgement
of the Courts below, according to me, the landlord made
out the case of eviction under section 13 (1)(k) & (l) of the
Rent Act, 1947.
17. Since this Court has not found any perversity and/or
gross irregularity committed by the Trial Court as well as
the Appellate Court, in a revisional jurisdiction, this Court
cannot re-appreciate the evidence on record and reach to
a different conclusion than what has been reached by the
Courts below. It is well settled position of law that merely
because a second view is possible than the view taken by
the Courts below, it cannot be a ground to interfere with
such view while exercising revisional jurisdiction when
such view is neither perverse nor grossly erroneous.
CONCLUSION:
18. In view of the foregoing discussions and reasons, I
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do not find any merit in this revision application.
Accordingly, this revision application is dismissed. Interim
relief granted earlier stands vacated forthwith. It is open
for the respondents herein - legal representatives of the
landlord to execute the eviction decree in accordance
with law. Rule is discharged. No order as to costs. R & P
shall be sent back forthwith.
(MAULIK J.SHELAT,J)
SHAHANAZ
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