LHS OF DECD. HARJIVANBHAI RANCHHODBHAI NIRMAL, RAJNIBHAI HARJIVANBHAI NIRMAL vs DHIRAJLAL KANTILAL MAKWANA

C/CRA/501/2026 JUDGMENT DATED: 15/10/2026
(GJHC240707472026)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 501 of 2026

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE MAULIK J.SHELAT

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Approved for Reporting Yes No
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LHS OF DECD. HARJIVANBHAI RANCHHODBHAI NIRMAL, RAJNIBHAI
HARJIVANBHAI NIRMAL
Versus
DHIRAJLAL KANTILAL MAKWANA & ANR.
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Appearance:
H P BAXI(9459) for the Applicant(s) No. 1
SHIVANI R MODI(9280) for the Applicant(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE MAULIK J.SHELAT

Date : 15/10/2026

JUDGMENT
1. Heard Mr. H. P. Baxi, learned advocate, assisted by
Ms. Shivani R. Modi, learned advocate for the petitioner.
2. This revision application is filed under Section 29(2)
of the Gujarat Rents, Hotel and Lodging House Rates
Control Act, 1947 (herein after referred to as “ the Rent
Act ”) against the judgment and decree dated 30.06.2026
th
passed by 7 Additional District Judge, Jetpur at Rajkot in
Regular Civil Appeal No. 16 of 2017, whereby the
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Appellate Court confirmed the judgment and eviction
decree dated 19.12.2016 passed by Principal Civil Judge,
Jetpur in Regular Civil Suit No. 247 of 1994.
3. The short facts of the case appear to be that the
petitioner herein is the legal heir of original defendant –
tenant, whereas the respondent No.1 herein is the
original plaintiff and respondent No.2 is the registered
sale deed holder who purchased the rented premises
during the pendency of the litigation.
3.1. The respondent No.1 being a landlord issued a
statutory notice under Section 12, calling upon the
petitioner – defendant to pay the arrears of rent. It is an
undisputed fact that such notice was received by son of
the original defendant and the same was served at the
rented premises. It is also undisputed that despite service
of notice upon the tenant, he did not clear the arrears of
rent within one month from the date of receipt of the
statutory notice. It is also undisputed that a monthly rent
of Rs.150/- is required to be paid by the tenant to the
landlord plus municipal taxes. Since the tenant failed to
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clear the arrears, the Regular Civil Suit No. 247 of 1994
came to be filed by respondent No. 1 seeking eviction of
the petitioner – defendant. After hearing the parties and
considering the fact that the tenant did not clear the
arrears of rent in time, the eviction decree came to be
passed by the Trial Court.
3.2. Being aggrieved and dissatisfied with the eviction
decree, the petitioner – original tenant, preferred an
appeal being Regular Civil Appeal No. 16 of 2017 before
the appellate court. After hearing the parties at length
and upon re-appreciation of the evidence, the Appellate
Court come to the conclusion that tenancy of the
petitioner is governed by Section 12(3)(a) of the Rent Act
and not Section 12(3)(b). Since the petitioner – tenant
failed to clear the arrears of rent within one month from
the receipt of the statutory notice, the eviction decree
passed by the Trial Court is confirmed.
3.3. So far as the aspect of non-receipt of the statutory
notice is concerned, the Appellate Court rejected such
ground raised by the petitioner as the statutory notice
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was received by the son of the original tenant residing at
the rented premises. As far as the aspect of the standard
rent is concerned, the application appears to have not
been filed within a statutory time period, in such
circumstances, the Appellate Court did not find any
favour to the petitioner and accordingly, it dismissed the
appeal, vide its impugned judgment and decree. Thus, the
present revision application.
SUBMISSIONS OF THE PETITIONER:
4. Mr. Baxi, learned advocate for the petitioner –tenant
made the following submissions:
4.1. The original tenant is a protected tenant under the
Rent Act and even though he is required to pay a monthly
rent of Rs 150/-, but the liability to pay municipal taxes
and education cess is upon the tenant, hence the tenancy
in question is governed by Section 12(3)(b) of the Rent
Act, and not 12(3)(a). The statutory notice was never
served upon the tenant, inasmuch as it was received by
the son of the tenant. Therefore, the tenant cannot be
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said to be in default if not cleared the arrears of rent
within one month from the alleged receipt of statutory
notice issued by the landlord.
4.2. The tenant had already paid arrears of rent during
the pendency of the suit, and as such, as on the date of
first hearing of the suit, the tenant was not found in
arrears of rent, whereby as per provisions of Section
12(3)(b) and as per settled position of law, no eviction
decree could have been passed against him. The
application of standard rent filed by the tenant was
remained undecided during the pendency of the suit and
he was not made aware about the fixation of standard
rent by the Trial Court. The respondent No.2 is a
subsequent purchaser of the rented premises and no
decree in his favour could have been passed by the Court
as he is a stranger to the litigation.
4.3. Making above submissions, Mr. Baxi, learned
advocate, would request this Court to exercise its
revisional jurisdiction and interfere with the impugned
judgment and decree passed by the Courts below, as the
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finding of fact recorded by the Courts below while
passing eviction decree is perverse and grossly
erroneous.
ANALYSIS & REASONS:
5. Having heard Mr. Baxi, learned advocate for the
petitioner at length and upon perusal of the impugned
judgment and decree passed by the Courts below,
especially the judgment of the Appellate Court, prima
facie, the Courts below have categorically held that the
tenancy in question is governed by Section 12(3)(a) of the
Rent Act and not Section 12(3)(b) as alleged by the
petitioner.
5.1. To arrive at such conclusion, the Courts below have
recorded the fact that the tenant is required to pay
monthly rent of Rs.150/- to the landlord. The assertion
made on behalf of the petitioner – tenant that since he is
required to pay municipal taxes and educational cess
annually, his tenancy is to be considered as an annual
tenancy, thereby the case is governed by Section 12(3)(b)
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of the Rent Act. Such an assertion and submission
canvassed on behalf of the petitioner is unsustainable in
law, inasmuch as it is squarely covered by the decision of
this Court which follows the decision of the Hon’ble
Supreme Court in the case of Hotel Kings and Ors. v.
Sara Farhan Lukmani and Ors . reported in (2007) 1
SCC 202.
5.2. To put it simply, I would like to refer to the decision
of this Court in the case of Yasin Yusufbhai
Berugarwala Vs. Bhupendrabhai Govindbhai Patel
Through His Poa Holder Mr. Mohmmad Irfan
Mohmmad Yasin Machiswala reported in (2026) 3
GLH 617 . The relevant passages of the aforesaid
decision read thus:
“16.3 According to Mr.Parikh, learned Senior Counsel, the Trial Court
as well as the Appellate Court have committed a serious error, rather a
jurisdictional error, by observing that the case of the landlord would be
governed by Section 12(3)(a), and there is a perversity on the part of the
Courts below by decreeing the suit having found the tenant is in arrears of
rent. According to Mr.Parikh, learned Senior Counsel, since the liability to
pay municipal taxes , etc., was upon the tenant, the case would be governed
by Section 12(3)(b) and not Section 12(3)(a) of the Rent Act. It is submitted
that in absence of any finding of fact recorded by the Courts below that as
on date of first hearing, i.e., date of framing of the issues, the tenant was in
arrears of rent, no decree of eviction as per Section 12(3)(b) of the Rent
Act, can be passed.
17. The controversy raised by Mr.Parikh, learned Senior Counsel,
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is no longer remain res integra; rather, it is settled by the
Honourable Apex Court in the case of Hotel Kings and others V/s.
Sara Farhan Lukmani and others – (2007) 1 SCC 202 , which was
followed in Bhagwatiben Pranshanker Dave (supra), wherein the
Coordinate Bench of this Court (Honourable Mr.Justice M.R.Shah,
as his Lordship then was) observed and held thus :
“ 9. At the outset, it is required to be noted that learned
Appellate Court has passed eviction decree under section 12(3)
(a) of the Bombay Rent Act. However, it is the case on behalf of
the petitioners herein - original defendants that as liability to
pay municipal taxes and other taxes was upon the defendant
and, therefore, tenancy cannot be said to be monthly tenancy
and, therefore, section 12(3)(a) of the Bombay Rent Act would
not be applicable. However, learned Appellate Court has held
that as liability to pay municipal taxes and other taxes was
upon the tenant over and above the monthly rent of Rs.50/-,
tenancy can be said to be monthly tenancy and as no dispute
with respect to standard rent was raised within a period of one
month from the date of receipt of the statutory notice u/s.12(2)
of the Bombay Rent Act and even did not deposit entire amount
of arrears of rent within a period of one month, the case would
fall under section 12(3) (a) of the Bombay Rent Act and,
therefore, learned Appellate Court has passed eviction decree
under section 12(3)(a) of the Bombay Rent Act. Therefore, a
short question, which is posed for consideration of this Court as
to Whether despite the fact that tenant is required to pay rent at
the rate of Rs.50/- per month and over and above that, the
tenant is liable to pay municipal taxes and other taxes, the case
would fall under section 12(3)(a) or 12(3)(b) of the Bombay
Rent Act?
10. The aforesaid controversy is now not res-integra and
is squarely covered by the decision of the Hon'ble Supreme
Court in the case of Hotel Kings and others (supra). In similar
facts where the liability to pay rates and taxes was upon the
tenant over and above the liability to pay the lease rent
monthly, the question that arose before the Hon'ble Supreme
Court was whether despite the specific provisions of lease deed
for payment of lease rents on monthly basis in advance on or
before the 5th day of every English calender month, whether the
trial court was right in holding that having regard to the
provisions relating to payment of rates and taxes and other out
goings by the lessee in effect the lease would be governed under
sec.12(3)(b) and not under sec.12 (3)(a) of the Bombay Rents,
Hotel and Lodging House Rates Control Act, 1947. Answering
the aforesaid question in negative, in para 38 the Hon'ble
Supreme Court has observed and held as under:
“38. Consequently, even though the lease deed
contained a provision for payment of the rates and
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taxes exclusively by the lessee and it is also stipulated
that the lessor will have no liability therefor, the lease
will still be governed under Section 12(3)(a) of the
Bombay Rent Act as held by Appellate Bench of the
Small Cause Court at Bombay and affirmed by the
High Court. The expression “consideration”
indicated in Section 105 of Transfer of Property Act
has been used in a generic sense to include the price
paid or promised or money, a share of crops, service
or any other thing of value. On the other hand, the
lease deed specifies the mount to be paid as rent each
month while the rates and taxes and other outgoings
are treated to be the separate liability of the lessee, no
doubt having regard to the intention of the parties that
a building was to be erected by the lessee on the
demised land.”
Thus, the Hon'ble Supreme Court did not accept the argument
advanced on behalf of the lessee that notwithstanding the
stipulation in the lease deed that the lease rent was required to
be paid on monthly basis, since the lessee was required to pay
rates and taxes either annually or every six months and,
therefore, it should be considered as part of the rent payable
and therefore, sec.12(3)(b) be applicable. The Hon'ble
Supreme Court did not accept the submission made on behalf
of the lessee that since the rates and taxes were payable either
annually or after every six months, the same form part of the
rent and it must be held that the rent was payable not monthly
but after every six months. The Hon'ble Supreme Court has
specifically held that when the rent under the lease deed is
payable monthly and over and above that lessee is liable to
pay rates and taxes, still the case would be governed by
sec.12(3)(a) of the Bombay Rent Act.
11. Thus, considering the lease deed entered into between the
parties and considering the aforesaid decision of the Hon'ble
Supreme Court, present case would fall under sec.12(3)(a) of
the Bombay Rents Act and not under sec.12(3) (b) of the
Bombay Rents Act.
12. Once it is held that the case would fall under sec.12(3)(a) of
the Bombay Rents Act and all the conditions of sec.12(3)(a) of
the Bombay Rents Act are satisfied, in that case, the Court has
no alternative but to pass an eviction decree on the ground of
arrears of rent. Only in a case where it is found that the case
would fall under sec.12(3)(b) of the Bombay Rents Act, the
question with respect to regular payment of rent during the
pendency of suit and/or appeal would arise and in such a case,
if all the conditions under sec.12(3)(b) of the Bombay Rents Act
are satisfied in favour of the tenants and the tenant has paid the
entire rent by the time the final decision is taken in the suit and/
or appeal, though not regularly, the tenant can avoid the
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eviction decree. The aforesaid aspect is required to be
considered only in a case where it is found that the case falls
under sec.12(3)(b) of the Bombay Rents Act. As stated above,
once the case falls under sec.12(3)(a) of the Bombay Rents Act
and all the conditions of sec.12(3)(a) of the Bombay Rents Act
are satisfied, Court has no alternative but to pass eviction
decree. Under the circumstances, even if it is accepted that
entire amount of arrears of rent was paid by the tenant at the
time of suit as well as appeal though not regularly (though in
the present case landlord has disputed that the entire amount
due and payable has not been paid at the time of suit and/or
appeal), as the case falls under sec.12(3)(a) of the Bombay
Rents Act, learned Appellate Court has rightly passed the
decree of possession on the ground of arrears of rent. No case
is made out to interfere with the impugned judgement and
order/decree passed by learned Appellate Court in exercise of
the powers under sec.29(2) of the Bombay Rent Act.”
18. Thus, in view of the aforesaid pronouncement, there is no
scintilla of doubt that, in the case on hand also, since as per
condition No.1 of the rent note, the tenant was required to pay a
monthly rent of Rs.270/- to the landlord and undisputedly, he did
not clear and pay the rent demanded within 30 days of the receipt of
the demand from the landlord, as per Section 12(3)(a) of the Rent
Act, the landlord is entitled to recover possession of the suit
premises. Any contrary view as cited by Mr. Parikh, learned Senior
Counsel, would neither be applicable nor remain good law. The
tenant has specifically admitted that subsequent to withdrawal of
rent upon disposal of suit (i.e. in year 2015), he did not pay any rent
to the landlord and not complied with the statutory notice (Exhibit
73). According to my considered view, once the tenant failed to
comply with notice and case is governed by Section 12(3)(a) of the
Rent Act, nothing further prevents the Court to pass a decree of
eviction. Having found that as on the date of the aforesaid suit, the
tenant was in arrears of rent and the case is governed by Section
12(3)(a) of the Rent Act, there is no need to verify as to whether he
was in arrears of rent as on the date of framing of issues, i.e., the
first date of hearing, inasmuch as the present case would not be
governed by Section 12(3)(b) of the Rent Act.”
(Emphasis supplied)
6. Thus, in view of the aforesaid provisions of law of
stand as on date, it cannot be accepted that merely
because the tenant is paying municipal tax and education
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cess over and above monthly rent, his tenancy is
governed by 12(3)(b) and not 12(3)(a) of the Rent Act.
7. It is undisputed fact that statutory notice was issued
by the landlord, whereby called upon the tenant to clear
the arrears of rent as found in arrears for more than six
months. It was sent by the landlord at the address where
the tenant is residing, i.e., rented premises. Such
statutory notice undisputedly received by the son of the
tenant who is residing at the rented premises. It also
remained undisputed that despite such receipt of the
statutory notice, the tenant did not clear the arrears of
rent by paying the arrears of rent to the landlord in one
month from receipt of the notice. Since the notice has
been received by the son of the tenant residing at the
rented premises, the observation made by the Courts
below that it was validly served upon the tenant, such n
finding of fact cannot be considered in any manner
perverse or grossly erroneous. Rather, such finding of
fact does not warrant any interference of this Court while
exercising its revisional jurisdiction.
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7.1. At this juncture, I would like to refer to and to rely
upon the decision of the Hon’ble Apex Court in the case
of Arjun Khiamal Makhijani Vs. Jamnadas C. Tuliani
& Ors, (1989) 4 SCC 612, wherein the Full Bench of the
Hon'ble Apex Court has categorically held that the
dispute of standard rent must be raised by the tenant
within one month from the date of receipt of the notice
and if failed to clear the arrears of rent in statutory time
limit, the Court has to pass decree of eviction. The
relevant observations made in the said decision read as
follows:
“ 3. This question, as to how a payment is to be made under Section
12(3) (a) and (b), had [ Corrected Vide Corrigendum No. F3/Ed
BJ/26 dated 17-4-1989] been considered by this Court in
Harbanslal Jagmohandas [(1977) 1 SCC 575 : (1976) 3 SCR
628] . There, both the appeals raised a common question as to
whether a tenant in order to resist passing of a decree of eviction
under the provisions contained in Section 12(3)(a) of the Act must
dispute the standard rent within one month from the date of receipt
of the notice from the landlord terminating the tenancy on the
ground of arrears of rent or whether a tenant can raise such a
dispute in the written statement. There was difference of opinion
between Bombay and Gujarat High Courts. The Gujarat High
Court took the view that the dispute as to standard rent had to be
raised within one month from the service of the notice on the
tenant . The Bombay High Court had taken a contrary view and
held that the tenant could raise a dispute as to standard rent in his
written statement in answer to the suit and in such a case the
provisions of Section 12(3)(a) of the Act would apply. In the
Gujarat case, the High Court found that the tenant did not raise
the dispute within one month of the service of the notice
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terminating the tenancy, inter alia, on the ground of arrears of
rent for more than 6 months . In the Bombay appeal, the dispute
was not raised within one month from the date of the receipt of the
notice. It was, however, raised in the written statement. Under
Section 11 of the Act, the court had power to determine standard
rent when there was a dispute between the landlord and tenant
regarding the amount of standard rent. It was held by this Court
that under Section 12 of the Act the landlord is not entitled to
recover possession of the premises so long as the tenant pays or is
ready and willing to pay the amount of standard rent and permitted
increases. Section 12(2) provides that no suit for recovery of
possession shall be instituted by a landlord against a tenant on the
ground of non-payment of the standard rent until the expiration of
one month next after notice in writing of the payment of the
standard rent. This Court held that the view of the Bombay High
Court was erroneous and the view of the Gujarat High Court was
correct. Sub-section (3)(a) of Section 12 categorically provided
that where the rent was payable by the month and there was no
dispute regarding the amount of standard rent or permitted
increases, if such rent or increases were in arrears for a period of
six months or more and the tenant neglected to make payment
thereof until the expiration of the period of one month after
notice referred to in sub-section (2), the court shall pass a decree
for eviction in any such suit for recovery of possession. In the
instant case, as has been found by the court, the rent is payable
month by month . There is no dispute regarding the amount of
standard of rent or permitted increases. Such rent or increases are
in arrears for a period of six months or more. The tenant had
neglected to make payment until the expiration of the period of
one month after notice referred to in sub-section (2) . The court
was bound to pass a decree for eviction in any such suit for
recovery of possession . In terms of the decision of this Court in
Harbanslal Jagmohandas [(1977) 1 SCC 575 : (1976) 3 SCR
628 ] , the eviction order had to follow by operation of law.”
(Emphasis Supplied)
8. Thus, in view of the aforesaid provisions of law, once
the tenant is found in default, inasmuch as not cleared
the arrears of rent, within one month from the date of
receipt of statutory notice from the landlord, as per the
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settled position of law, the eviction decree is required to
be passed and correctly passed by the Trial Court which
is confirmed by the Appellate Court. So far as the aspect
of the standard rent is concerned as per the aforesaid
decision and considering the explanation to Section 12 of
the Rent Act, such dispute is required to be raised within
one month from the date of receipt of statutory notice.
Mr. Baxi, learned advocate for the petitioner is unable to
point out that the tenant has raised such dispute of
standard rent within a statutory time period by filing an
application within time.
9. Thus, in view of aforesaid facts and position of law,
no relief can be granted to the tenant that the aspect of
standard rent was not decided by the Trial Court until the
final outcome of the suit. Likewise, having failed to clear
the arrears of rent within statutory time limit and tenancy
is governed by Section 12 (3)(a) of the Rent Act, the
decree of eviction is inevitable.
10. Lastly, it has been so raised a ground that the
respondent No.2 herein is a subsequent purchaser and no
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decree of eviction can be passed in his favour. It is not in
dispute that the respondent No.2 herein is a registered
sale deed holder of rented premises, thereby he stepped
into the shoe of the original landlord, i.e., respondent
No.1 herein. Accordingly, he is entitled to receive the
benefit of any litigation instituted by his predecessor i.e.,
respondent No.1.
11. Thus, considering the aforesaid aspects of the case,
when both the Courts below have concurrently held that
the tenant has defaulted in making the payment of rent
and having not cleared the arrears of rent within one
month from the receipt of statutory notice from the
landlord, in such circumstances, the eviction decree is
passed against the tenant, I am unable to find any
perversity and/or any gross irregularity committed by the
Courts below while passing the impugned judgment and
decree.
12. It is now well settled position of law that while
exercising its revisional jurisdiction, this Court cannot
interfere with the finding of fact recorded by the Courts
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below unless its perverse or grossly erroneous. (See:
Hindustan Petroleum Corp. Ltd. v. Dilbahar Singh
reported in (2014) 9 SCC 78 ) .
13. Since no perversity and/or any gross irregularity
found in the impugned judgment and decree passed by
the Courts below, rather I am in complete agreement
with the finding of fact recorded by the Appellate Court,
the present revision application is found devoid of merit.
14. In view of the foregoing reasons, this revision
application is dismissed in limine . No order as to costs.
(MAULIK J.SHELAT,J)
SHAHANAZ
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