Allowed

Syed Abdul Rafiquoddin Syed Rahimoddin v. Mohd. Abdul Shaikh Ahmad

Bombay HC22 Jul 2014CRA/109/2014

Case brief

AI extract

What is this about?

This High Court allowed a civil revision application against an appellate decree regarding a tenancy dispute. The court quashed the impugned order due to material irregularity, noting the appellate court failed to appreciate evidence and did not frame issues on key grounds before relying on Section 116 of the Indian Evidence Act and confirming the eviction decree.

What did the court decide?

Quashed the judgment and decree dated 11th December, 2013, passed by the Principal District Judge, and remanded the matter to the Lower Appellate Court.

Syed Abdul Rafiquoddin Syed Rahimoddin Vs Mohd. Abdul… — Landlord and Tenant | Bombay HC (2014)

¶1

C.R.A. No.109/14

¶2

(1)

¶3

IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

¶4

CIVIL REVISION APPLICATION NO.109 OF 2014

¶5

Syed Abdul Rafiquoddin s/o Syed Rahimoddin, Age : 43 years, occu. Business, R/o Shop No.4, Sana Bangles, Panwala Building, Gandhi Park, Parbhani ..APPLICANT

¶6

(Orig. Defendant)

¶7

VERSUS

¶8

Mohd. Abdul Gaffar s/o Shaikh Ahmad, Age : 57 years, Occu. Legal Practitioner, R/o Panwala Building, Gandhi Park, Parbhani ..RESPONDENT (Orig. Plaintiff)

¶9

Mr Milind M. Patil (Beedkar), Advocate for applicant; Mr Prashant R. Katneshwarkar, Advocate for respondent

¶10

CORAM : N.W. SAMBRE, JJ. DATE : 22nd July, 2014

¶11

ORAL JUDGMENT

¶12

Rule. Rule made returnable forthwith, heard finally with the consent of the parties.

¶13

(2) C.R.A. No.109/14

¶14

By this Civil Revision Application, the applicant/original defendant challenges the legality, propriety and correctness of the judgment and decree dated 24th July, 2009, passed by the Civil Judge Junior Division, Parbhani, in Regular Civil Suit No.302 of 2004 and the judgment and decree dated 11th December, 2013, passed by the Principal District Judge, Parbhani, in Regular Civil Appeal No.108 of 2009.

¶15

The present applicant is the son of original tenant and the respondent is landlord of the suit shop. It is brought to the notice of this Court by the parties that this is second round of litigation before this Court.

¶16

The respondent - landlord claims that there is a Hibanama executed in his favour on 16th February, 2002 by his mother in relation to the property in question. The property was given on rent to the father of the present applicant by the mother of the respondent.

¶17

The present respondent is a Lawyer and since he was in need of the premises in question for his office, instituted suit for eviction on the grounds of bona fide use , default in payment of rent and damage to the premises.

¶18

The suit came to be decreed by judgment and decree dated 24th

¶19

(3) C.R.A. No.109/14

¶20

July, 2009. An appeal taken out by the present applicant also came to be dismissed by judgment and decree dated 11th December, 2013. As such, present Civil Revision Application.

¶21

Mr Beedkar, learned Counsel for the applicant has invited attention of this Court to the pleadings raised in the plaint and the issues framed by the Trial Court. The issues, as are decided by the Trial Court in the suit, are as under :-

¶22

"1. Whether plaintiff is owner of suit shop ?

¶23

Whether plaintiff proves bona fide requirement as pleaded in para no.7 of plaint ?

¶24

To whom the more hardship cause in case of eviction ?

¶25

Whether plaintiff is entitle for eviction and recovery of possession as prayed ?

¶26

Whether plaintiff is entitle for recovery of rent as prayed ?

¶27

Whether plaintiff is entitled for interest as prayed ?

¶28

C.R.A. No.109/14

¶29

(4)

¶30

7. What order and decree ? "

¶31

Learned Counsel for the applicant submits that the learned Lower Appellate Court, while dealing with the appeal preferred by the present applicant framed points for determination, which are as under :-

¶32

"1. Whether respondent/plaintiff required the suit shop reasonably and bona fide for his own occupation ?

¶33

1-A Whether property purchased under sale - deed of 2011 pending suit in appeal shatters bona fide need of respondent/landlord ?

¶34

To whom greater hardship would cause by passing a decree than by refusing to pass it ?

¶35

Whether denial by the appellant/tenant of the title of the landlord makes him liable to vacate the suit shop ? "

¶36

Learned Counsel for the applicant submits that perusal of the judgment delivered by the Lower Appellate Court reflects that the issues as were framed and decided by the Trial Court, however, the points

¶37

(5)

¶38

C.R.A. No.109/14

¶39

which were raised before the learned Appellate Court, are not decided. The Lower Appellate Court has proceeded to pass the judgment of confirming the decree passed by the Trial Court by taking recourse to the provisions of section 116 of the Indian Evidence Act. Other issues, such as bona fide need, etc. are answered in favour of the present applicant.

¶40

Learned Counsel for the applicant submits that while dealing with appeal in the light of the provision of section 116 of the Evidence Act qua the conduct of the tenant in denying the title of the landlord, neither any specific point was framed nor any opportunity to answer such issue was given to him by the Appellate Court.

¶41

Learned Counsel for the applicant has invited attention of this Court to the evidence led by the parties, more particularly evidence of mother of present respondent landlord, so as to demonstrate that Hibanama was not proved. He further submits that denial of the title was a bona fide act and it was conditional. He submits that all the above referred issues are not dealt with by the Lower Appellate Court and as such, the impugned orders call for interference while exercising revisional jurisdiction.

¶42

While countering the above referred submissions, Mr Katneshwarkar, learned Counsel for the landlord has invited attention of this Court to the fact that once a Hibanama is executed, it need not be

¶43

(6)

¶44

C.R.A. No.109/14

¶45

necessarily in writing. Even oral Hibanama is admissible in Muslim law. He submits that the evidence of the mother of the respondent is required to be read in entirety and cannot be read in part so as to form an opinion that Hibanama was proved. He further submits that the irregular payment of rent made by the present applicant prima facie attracts the ground of default in payment of rent. He tried to rely upon the extract of payment made by the present applicant towards rent, which according to him, is part and parcel of the record before the Lower Appellate Court. He further submits that the evidence in support of the claim of bona fide need, default in payment of rent committed by the applicant and that of the alteration to the premises was very much brought to the notice of the learned Lower Appellate Court. He submits that this Court, in its revisional jurisdiction, can look into and deal with the same.

¶46

Having considered rival contentions of the parties, it is noticed that the judgment delivered by the Lower Appellate Court is on the points which fell for its consideration and are reproduced herein above. The Lower Appellate Court wrote very cryptic judgment while dealing with the issues raised before it. It was expected of the lower Appellate Court, which in my opinion, was open to it, to appreciate entire set of evidence so as to deal with the issues raised before it.

¶47

(7) C.R.A. No.109/14

¶48

It appears that bur for giving finding on the issue as regards section

¶49

116 of the Indian Evidence Act, the Lower Appellate Court has not gone into and appreciated the evidence of the parties. Even so far as the finding qua section 116 of the Evidence Act is concerned, it appears that no proper opportunity was given to the parties as no issue or point for consideration to that effect was framed.

¶50

Furthermore, Lower Appellate Court, in my opinion, has failed to appreciate the evidence brought before it by both the parties, more particularly by the respondent in support of his claim for bona fide need of the premises and default in payment of rent committed by the tenant. The Lower Appellate Court, thus, has exercised the jurisdiction vested in it, with material irregularity warranting interference in revisional jurisdiction.

¶51

In that view of the matter, in my opinion, a fit case for remand before the Lower Appellate Court is made out.

¶52

In the light of above, judgment and decree dated 11th December, 2013, passed by the Principal District Judge, Parbhani, in Regular Civil Appeal No.108 of 2009, is quashed and set aside and the matter is remanded to the Lower Appellate Court.

¶53

(8) C.R.A. No.109/14

¶54

The parties to the present Civil Revision Application agree that they shall appear before the Lower Appellate Court on 19th August, 2014 with written notes of arguments.

¶55

It is expected of the Lower Appellate Court to deal with all the issues which are looked into and dealt with by the Trial Court while dealing with the claim raised in the plaint.

¶56

As the claim of the parties is sub judice since 2004, it is expected of the learned Lower Appellate Court to decide the said appeal, in any case, by 10th October, 2014.

¶57

The parties to the present revision application undertake that they shall co-operate with the learned Lower Appellate Court to adhere to the time schedule prescribed above, which is fixed as per the consent of the parties.

¶58

Civil Revision Application is allowed in above terms. Rule made absolute accordingly with no order as to costs.

¶59

(N.W. SAMBRE, J.)

¶60

amj

Syed Abdul Rafiquoddin Syed Rahimoddin v. Mohd. Abdul Shaikh Ahmad

Case brief

What is this about?

What did the court decide?

Syed Abdul Rafiquoddin Syed Rahimoddin v. Mohd. Abdul Shaikh Ahmad

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Social and Cultural Association at Kusumba and Another Vs Chandrakant Mahadu Chaudhari

Syed Hidayat Sayed Lal Jagirdar Vs Manjoorkha Iqbalkha Jamadar and Others

Usman Baig Hussain Baig and Others Vs Shaikh Nizam Shaikh Jainoddin and Another

The President Hari Om Shikshan Prasarak Mandal Neknoor Dist Beed and Ors. Vs Sukhdeo Namdeo Zirpe and Ors.

Pravin Kundlik Narwade Vs Eshwarsing Fakirsing Tatu

Ramdas Dada Mane Vs Kamalbai Kisan Mane