Shreyas Order HRP

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H.R.P. Suit No.546/2017 Consolidated

H.R.P. Suit No.554/2017 Judgment
Registration No.: SMCST/546/2017.

Filing No.: SMCST/546/2017
Filed On: 27/12/2017.
Registered On: 27/12/2017.
Decided On: 29/12/2023.
Duration: ___ Y ___ M ___ D
Exh.____.
IN THE SMALL CAUSE COURT NO.8, AT AHMEDABAD,

Consolidated Judgment
(1) H.R.P. Suit No.546/2017 and
(2) H.R.P. Suit No.554/2017
(1) H.R.P. Suit No.546/2017
Plaintiff:
1. Shreyas Co-op. Credit So. Ltd.
Shreyas Store, Nr . Football ground,
Kankaria, Ahmedabad,
through their Manager Shaileshbhai Maneklal Shah.
VERSUS
Defendant:
1. Prabhudas Govindbhai Parmar,
18/B, Lalit Co-Ho. Society,
Opp. Viratnagar, Isanpur Road,
Ahmedabad.
Appearance:
Mr. H. K. Yagnik, Learned advocate for the plaintiff.
Mr. B. K. Raval, Learned advocate for the defendant.

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(2) H.R.P. Suit No.554/2017
Registration No.: SMCST/554/2017.

Filing No.: SMCST/554/2017.
Filed On: 29/12/2017.
Registered On: 29/12/2017.
Decided On: 29/12/2023.
Duration: ___ Y ___ M ___ D
Exh.____.
Plaintiff:
1. Prabhudas Govindbhai Parmar,
Age: 65 years, Occupation: Business,
Address: Mu. Ce. No. 558/9/6/4,
Municipal Juni Pilot Dairy, Kankaria
Ahmedabad and
Residing at: B-18, Lalita Society, Isanpur,
Ahmedabad.
VERSUS
Defendants:
1. Shreyas Co-op. Credit Society Ltd.
Chaiman Ghanshyamlal M. Shah,
Adult, Occupation: Business,
2. Shreyas Co-op. Credit Society Ltd.

Manager Shaileshbhai M. Shah,
Adult, Occupation: Business,
Both address: Shreyas Co-op. Credit Society Ltd.
Juna Pilot Dairy, Kankaria, Ahmedabad.
Appearance:
Mr. B. K. Raval, Learned advocate for the plaintiff.

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Mr. H. K. Yagnik, Learned advocate for the defendants.
Coram: M R . NIRAV R. VYAS , J UDGE .
-:: J U D G M E N T ::-
1. Both the suits related to the same premises and

between the same parties; as such they have been
consolidated. Both the suits therefore are being disposed of
by this common Judgment.
2. The short facts of H.R.P. Suit No.546/2017 are that

the plaintiff is owner of the suit premises which was
purchased by the plaintiff’s society in the year 1986 from
its original owner Mr. Kunjbihari Somnath Trivedi, with
sitting tenant-Defendant; which is one room only at the
monthly rent of Rs.75/- for residential purpose and
attornement notice thereof was duly issued to defendant /
tenant on dated 04.06.1986. The plaintiff / landlord has
filed the present suit for eviction of the suit premises on
the grounds of (i) non-use of the suit premises (ii)
alternative suitable accommodation acquired by defendant /
tenant (iii) Reasonable bonafide requirement of plaintiff /
landlord (iv) Attempt to transfer the suit property illegally
and (v) Change in use of the suit premises.
The plaintiff is registered co-operative credit society
ltd. and the plaintiff had purchased the suit premises
narrated in para-1 of the plaint with sitting tenant in year
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1986. The plaintiff has further pleaded that they have given
attornment notice dated 04.06.1986 to the defendant as the
defendant is tenant at monthly rent of Rs.75/- and liability
to pay municipal tax and light bill lies on the defendant
and the suit premises has rented for residence purpose. The
plaintiff has further pleaded that the suit premises is in
closed condition from many years and the defendant is
residing at the address mentioned at title cause of the suit
with his family and hence the suit premises has not been
used for more than six months and the defendant has no
need of the suit premises and the plaintiff is having
bonafide requirement of the suit premises for their own use.
Moreover, the plaintiff has also pleaded that the defendant
is trying to sublet the suit premises to third party and
thereby profiteering. Therefore, the plaintiff has filed this
suit and prayed relief as per para-9 of the plaint against
the defendant.
3. The defendant / tenant was served with the summons

of the suit and he appeared before this Court and filed his
written statement at Exh.20 wherein he has denied all the
facts of this suit and contended that the defendant /
tenants are using the suit premises for commercial purpose
even before plaintiff became landlord / owner of the suit
premises. Defendant / tenant has further pleaded that
defendant is keeping his tailoring materials in suit
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property and occasionally his artificer are doing sewing

work in rented premises. Defendant has also averred that
plaintiff / landlord is having a lot of other assets and not
having any requirement of suit premises and further, if suit
property be handed over to plaintiff / landlord, in such
circumstances defendant / tenant will have to suffer greater
hardship. Defendant / tenant has also contended that the
suit property never remaining in closed condition, on the
contrary, plaintiff / landlord frequentlly threatened
defendant / tenant to handover the rented suit property and
therefore, defendant / tenant constrained to file a H.R.P.
Suit No.554/2017 for injunction against plaintiff / landlord.
However, defendant / landlord has admitted the suit
premises was originally rented by earlier owner by Mr.
Kunjbihari Somnath Trivedi at monthly rent of Rs.75/- and
present plaintiff has purchased the suit property with
sitting tenant by executing registered sale-deed.
Defendant / tenant has denied the grounds mentioned as
‘cause of action’ u/s. 13 of the Rent Act and contended that
plaintiff / landlord has no right to file such suit. Plaintiff
has tendered his rejoinder at Exh.25, however, it is just
denial of written statement filed by defendant / tenant at
Exh.20.
4. The short facts of H.R.P. Suit No.554/2017 are that

the plaintiff is tenant of the suit premises and demised
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rented property which is situated at first floor was

originally rented by one Mr. Kunjbihari Somnath Trivedi at
monthly rent of Rs.75/- plus Municipal tax and electric
burning of the suit property. It is also averred by plaintiff /
tenant that suit property was than after purchased by
present defendant / society along with sitting tenant and
attornment notice thereof was issued to plaintiff / sitting
tenant on dated 04.06.1986 and plaintiff / tenant is paying
regular rent of the suit property even to new purchaser i.e
present defendant / society and therefore, plaintiff is
protected tenant under the provision of Rent Act. Plaintiff /
tenant has further contended that defendant / landlord are
frequently threatening to plaintiff / tenant to handover the
possession of suit property and applying illegal ways to
snatch away the possession of the suit property and
therefore filed present suit for restraining the defendant /
landlord from illegal interferance in possession of suit
property.
5. The defendant / landlord was served the summons of

of the suit and he appeared before the Court and filed his
written statement in which defendant / landlord has
generally denied the contentions made by plaintiff / tenant
in plaint.
6. Both the suit are instituted for same suit property and
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even by the same parties, my predecessor has preferred to

consolidate both the suits by passing order at Exh.31 and
evidence is recorded in H.R.P. Suit No.546/2017
accordingly.
7. The issues in H.R.P Suit No.546/2017 have been

framed by my learned predecessor at Exh.27, which are as
under:-
1. Whether the plaintiff proves that the suit

premises have not been used by the defendant
without reasonable cause for the purpose for
which it was let for a continuous period of six
months immediately preceding the date of
suit ?
2. Whether the plaintiff proves that the

defendant has acquired suitable
accommodation as alleged ?
3. Whether the plaintiff proves that the suit

premises requires for bonafide and personal
use and occupation as alleged ?

defendant is trying to transfer the suit
premises to any third party ?

defendant has make construction as alleged
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without permission of the plaintiff ?
6. Whether the plaintiff is entitled to get relief as

prayed for ?
7. What order and decree ?
8. My findings for the above issues are as under:-
1. In the affirmative.
3. In the negative.
4. In the negative.
5. In the negative.
7. As per final order.
9. The issues in H.R.P Suit No.554/2017 have been

framed by my learned predecessor at Exh.26, which are as
under:-
1. Whether the plaintiff proves that he is legal

and subsisting tenant of the suit premises and
the defendants are trying to dispossess him
forcibly from the suit premises ?
2. Whether the plaintiff is entitled to get relief as

prayed for ?
3. What order and decree ?

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10. My findings for the above issues are as under:-
1. In the negative.
2. In the negative.
3. As per final order.
11. The plaintiff/landlord of H.R.P. Suit No.546/2017 has

produced following oral as well as documentary evidence:-
Oral Evidence
Exh.51. Affidavit of examination-in-chief of the plaintiff

witness no.1 namely, Shailesh Maneklal Shah.
witness no.2 namely, Parikshitbhai
Raghuveersinh Jadeja.
witness no.3 namely, Dipak Punambhai
Patani.
Documentary Evidence
Exh.34. Original municipal corporation tax bill.

Exh.35. Xerox copy of firm registration certificate.
Exh.36. Office copy of attornment notice given by the
plaintiff to the defendant.
Exh.37. Computerized copy of municipal tax bill of suit
premises.
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Exhs.38 Original copies of rent receipts.

and 39.
Exhs.40 Original letter copy of defendant for carrying
and 41. permanent alteration in the suit premises and
copy of reply given by the plaintiff to the
defendant for refusing to make permanent
alteration in the suit premises.
Exh.42. Photographs (3 nos.) of the suit premises and
bill thereof.
Exhs.43 Copies of statement of electric meter
to 46. consumption details of suit premises.
Exh.47. Computerized copy of municipal tax bill of
defendant’s acquired accommodation.
Exh.48. Resolution of the plaintiff’s firm foe entrusting
of power to Shri Shaileshbhai M. Shah.
Exh.57. Original copy of statement of electric meter
consumption details of suit premises.
Exh.61. Court Commission Report.
Exh.77. Xerox copy of registered sale-deed.
Exh.63. Closing pursis.
12. The defendant/tenant of H.R.P. Suit No.546/2015 has

produced the following evidence:-
Oral Evidence
Exh.78. Affidavit of examination-in-chief of the

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defendant namely, Prabhudas Govingbhai

Parmar.
Exh.82. Affidavit of examination-in-chief of the
defendant witness no.2 namely, Mujani
Kamleshbhai Bachubhai.
Exh.85. Closing pursis.
13. In order to prove his case for plaintiff / landlord,

P.W.1, Shailesh Maneklal Shah at Exh.51 and further P.W.2
Parixit Raghuvirsinh Jadeja who is assistant manager of
“Torrent Power Ltd.” at Exh.55. P.W.1 has reiterated the
almost all the facts stated in the plaint. Further plaintiff /
landlord has produced documentary evidence vide Exh.34
to 48, Exh.77, Exh.57.
14. In order to prove his case, the defendant / tenant has

examined D.W.1 - Prabhudas Govindbhai Parmar at Exh.78
and further D.W.2 - Mujani Kamleshbhai Bachubhai at
Exh.82.
15. Heard learned advocates for either side after the

production of closing pursis at Exh.64 and Exh.85
respectively. Perused written arguments produced by
plaintiff / landlord at Exh.90 and Exh.94 produced by the
defendant / tenant.
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16. Before entering in to discussion and evaluation of

evidence adduced by the parties, at the outset; following
admitted fact is required to be noted.
1. Present landlord / plaintiff has purchased the
suit premises with sitting tenant i.e. defendant.
2. Originally the suit premises was rented by
earlier landlord Mr. Kunjbihari Somnath Trivedi
at monthly rent of Rs.75/- p.m. and tenant is old
tenant i.e. protected by tenancy rights.
3. The attornment notice is duly issued by
plaintiff / landlord on dated 04.06.1986, which is
received by tenant / defendant.
4. Present plaintiff / landlord has not raised the
issue regarding “Tenant in arrears” against
defendant / tenant.
17. Considering the above said admitted facts by either

side of the parties, the issues are discussed hereinafter as
follow:-
REASONS
Issue No.1 of H.R.P. Suit No.546 of 2017:-

18. Plaintiff / landlord has averred in para-3 of the plaint and
further in para-4 of affidavit of evidence produced under Order-
18 Rule 4 of the C.P.C at Exh.51 that defendant / tenant has
locked the suit property since many years and even not looked
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after the rented premises and kept the same in non-use. To

prove continuous non-use for immediately preceding of six
months before filing of H.R.P. Suit No.546 of 2017, plaintiff /
landlord has produced supportive documentary evidence at
Exh.45.
19. Before perusing Exh.45 (i.e. electric consumption bill)

Sec.13(1)(k) of the Gujarat Rent Act is required to be referred,
which is as follow:-
Section-13(1)(k) of Bombay Rent Act relates to non-user

without reasonable cause. The landlord has to prove three
criteria for obtaining possession under this clause i.e.
under section-13(1)(k) of Bombay Rent Act:-
I. that the premises have not been used for the purpose
for which they were let;
II. that such non-user was for a continuous period of six

months immediately preceding the date of the suit; and
III.that such non-user was without reasonable cause.
As per requirement of section-13(1)(k), it is necessary to

prove that such non-user was without reasonable cause. Once
the plaintiff / landlord proves that there was non-user of the
premises for a statutory period, the burden shifts to the tenant
to prove that there was reasonable cause for such non-user.
20. Exh.57 is statement of consumption details produced by

P.W.2 Parixitbhai Raghuvirsinh Jadeja, who is assistant
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manager in electric service providing company i.e. Torrent

Power Ltd. P.W.2 has deposed on oath that he is serving in
Torrent Power Ltd. since last 8 years as an assistant manager
and appeared before this Court by serving of summons along
with statement of consumption for service no.245048, which is
admittedly service number of disputed property. The said
Exh.57 is a statement of consumption between the period of
dated 1/1/17 to 31/12/17, which is signed by Asst. Manager of
Account Dept. Mr. J. C. Dave, P.W.2 has deposed that the said
service is registered as residential purpose. Considering Exh.57
i.e. statement of consumption details, it can be ascertain that
from Jun 2017 to Dec. 2017, the consumption units is shown as
‘zero’. In other words, Exh.57 reflects that during the period of
June 2017 to Dec. 2017, the electric consumption was
throughout shown as ‘Nil’. Now, if we verify the date of filing of
H.R.P. Suit No.546/2017, the said suit is filed on dated
27.12.2017 (i.e. in the end of Dec.2017). Therefore, it can be
derived that during the period of six months preceding of filing
of H.R.P. Suit No.546/2017, the suit property did not consume a
single unit of electricity as deposed.
21. Considering cross-examination of P.W.2 at Exh.55, learned

advocate for defendant / tenant seems fail to rebut or to
controvert the said fact and documentary evidence. Further,
P.W.2 is a neutral or non-interested witness, therefore, this
Court does not found any reason to disbelieve the fact narrated
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on oath by said P.W.2.
22. Considering cross-examination conducted by learned

advocate for plaintiff / landlord of D.W.1, who himself is
defendant i.e. Mr. Prabhudas Govindbhai Parmar, the said
D.W.1 has relied on documentary evidence produced at Exh.54
to 57, (i.e. several electricity bills of disputed property).
23. It is pertinent to note here that, the local commissioner

report is produced in present case at Exh.61. Further, plaintiff /
landlord has also examined the local commissioner Mr. Deepak
Poonambhai Patni at Exh.60, who has deposed that he is
serving as Junior Clerk at Small Cause Court, Ahmedabad and
as directed by the Court in H.R.P. Suit No.546/2017, he visited
suit property on dated 28.12.2017, where Manager of plaintiff
trust was found available and the suit property was in closed
condition. P.W.3 has also stated that the suit property was not
seems to be used as residential property. Considering cross-
examination, conducted by defendant / tenant, P.W.3 has
reiterated that the suit property was locked and therefore, he
could not enter into suit property. It is admitted by the P.W.3
that he has observed sewing machines inside the suit property.
Thus, at the time of even local commission, no body found from
defendant / tenant side at suit property and suit property was
in locked condition. No doubt, P.W.3 has observed sewing
machines inside the suit property from window but lying of
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sewing machine in suit property, but by observing sewing

machines lying futile inside suit property; it cannot be
constituted as the suit property was found in use condition at
the time of local commission. On the contrary, sewing machines
can be run by electric consumption, and if electric consumption
found ‘Nil’ during the said span, then it can be ascertained that
the sewing machines ; as well; lying there in non-use along
with suit property. P.W.3 bearing an employee of the Court, can
be treated as independent witness and therefore, the report filed
at Exh.61 and the deposition of P.W.3 at Exh.60, is reliable
evidence on record.
24. Considering the deposition tendered by D.W.1 at Exh.78,

it can be found that defendant / tenant has not given any
explanation for non consumption of electricity during the span
of six months prior to the filing of the suit, which goes to the
root of the case. It is a celebrated principle of law that the word
‘continuous’ applied in Section-13(1)(k) of the Bombay Rent Act
clearly denotes that the premises must not have been opened for
a day even, and what is found form the evidence is that the day
on which the commissioner visited the suit property was found
closed. Therefore, the over-all picture emerging from all the
material facts and circumstances relating to case would only
show that the property was closed over a period of “six months”,
It, however, took into consideration the circumstances that
apart from the suit premises, defendant / tenant had set up his
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shop since many years besides suit property in the name and
style of “Yogi Kala” as admitted during cross-examination at
Exh.78. Further, D.W.1 has admitted that he is residing at the
address of 18/B, Lalita Society, with his family. It is also
admitted by D.W.1 that defendant / tenant is having separate
residential property and shop except suit property since long.
Apart from above evidence, what is of greater significance in
this regard, however, is that defendant / tenant has not even
assigned any explanation for non-consumption of electricity for
six continuous months and further that suit property found in
non-use at the time of local commission. Therefore, defendant /
tenant seems fails to controvert the fact proved by plaintiff /
landlord that the suit premises have not been used by the
defendant / tenant without reasonable cause for the purpose for
which it was let for a continuous period of six months
immediately preceding the date of suit. Hence, reply for Issue
No.1 is given in “Affirmative”.

25. Plaintiff / landlord has averred in para (5) of the plaint
and further reiterated during affidavit of evidence at Exh.51
that defendant / tenant has already acquired suitable
accommodation for residential purpose at 18/B, Lalit Co-op. Ha.
Society, Beside Virat Nagar, Isanpur Road, Ahmedabad and
residing there only. It is also stated by the P.W.1 on oath that
defendant / tenant has acquired another premises to do his
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tailoring work at Aabad Dairy Ward, vide Municipal Tenement

No.0309-19-0031-0002-a, which is used for commercial purpose
and therefore, defendant / tenant has no further need of suit
property for any purpose. It is pertinent to note here that D.W.1
(i.e. defendant / tenant himself) has even not denied the
aforesaid fact during evidence adduced at Exh.78. On the
contrary D.W.1 has admitted during cross-examination at
Exh.78 that defendant / tenant is residing at the address of
18/B, Lalita Nagar Society with his family and running sewing
work nearby suit property in the name of “Yogikala” since 1973.
Defendant / tenant has also admitted that he is occupant of the
property described in document produced at Exh.47. It is also
admitted by D.W.1 that he is already having other residential
and commercial property except suit property. Thus, D.W.1 has
admitted during cross-examination that defendant / tenant is
occupant of other properties, which are separately used for
commercial and residential purpose respectively. Once, it is
proved by the plaintiff / landlord that defendant / tenant is
having alternative accommodation then it is the burden on
defendant / tenant to prove that such alternative property is not
suitable in comparison with suit property. In present case, the
defendant / tenant has not set such defense on record therefore,
defendant / tenant clearly fails to controvert the facts which is
pleaded by plaintiff / landlord. D.W.2 Mr. Kamlesh Bachubhai
Mujani has also deposed at Exh.82 that present defendant /
tenant is residing at Lalita Society. D.W.2 has also admitted
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during cross-examination that defendant is doing his business

in the property which is known as “Yogikala” (i.e. other than
suit property). In short, even D.W.2 has also admitted that
present defendant / tenant is permanently residing in the
property at “Lalita Society” and doing business at “Yogikala”,
which clearly establish that defendant / tenant has acquired
alternative suitable accommodation. Until such fact is
controverted by adducing oral and documentary evidence by
defendant / tenant, considering the evidence on record, the
version of plaintiff / landlord regarding the issue of alternative
suitable accommodation can be ascertained as proved.
Therefore, the issue no.2 is replied in “Affirmative”.

26. It is averred by the plaintiff / landlord / trust that plaintiff
trust is doing business of ceral groceries on a co-operative basis
and having reputation in the society for their social services. It
is also pleaded by plaintiff / trust that they are having bonafide
requirement of the suit property for their above said co-
operative business purpose and said disputed property is lying
in the “Non-use” condition, therefore, plaintiff / trust is entitled
to get possession of suit property on the ground of reasonable
bonafide requirement as well.
27. We shall initially refer to the legal principles applicable to

the case, sec. 13(1)(g) of the Bombay Rent, Hotel and Lodging
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House Rates (Control) Act, 1947 uses the word “the premises
are reasonably and bona fide required by the landlord for his
own occupation etc.”. The requirement must, therefore, be both
reasonable and bona fide. The word ‘reasonable’ connotes that
the requirement or need is not fanciful or unreasonable. It
cannot be mere desire. The word ‘requirement’ coupled with the
work ‘reasonable’ means that it must be something more than a
mere desire but need not certainly be a compelling or absolute
or dire necessity. The use of the word ‘bona fide’ is an additional
requirement u/s.13(1)(g) and it means that the requirement
must also be honest and no be tainted with any oblique motive.
28. With above said established principle, if we consider the

cross-examination held by defendant / tenant of P.W.1 at
Exh.51, the plaintiff / landlord has stated that the building of
the plaintiff / trust is consists three floors and on ground floor,
plaintiff / trust was having one tenant. It is also stated by the
plaintiff / landlord that at the first floor, plaintiff / trust is
having four shops, which were earlier under occupation of
different tenants who have handed over the possession of all
four shops to plaintiff / trust. It is pertinent to note here that
P.W.1 has stated that the present defendant / tenant is having
the possession of one shop on same first floor, where plaintiff /
trust is having possession of four shops. P.W.1 has also stated
that, there exists a big Hall at second floor of said premises and
possession of said Hall is with plaintiff / trust, itself. Further,
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P.W.1 has admitted that the premises, where suit property is

situated, is purchased by plaintiff / trust with sitting tenant.
P.W.1 has clearly admitted on page-09 of Exh.51 that plaintiff /
trust is having many rented properties except present suit
property. Considering the oral evidence itself, it can be
ascertained that plaintiff / trust is having other properties as
well, which are given on rent to other tenants. Further,
plaintiff / trust is already having possession at second floor Hall,
where they can continue their business as required. Further,
plaintiff / landlord also fails to prove that plaintiff / trust will
have to suffer from more hardships in comparison with of
defendant / tenant in case of refusal of eviction decree.
Therefore, the requirement as pleaded by plaintiff / trust does
not fall under the ambit of ‘Reasonable and Bonafide
requirement’ as discussed u/s. 13(1)(g) of the Rent Act. Hence,
reply for issue no.3 is given in “Negative”.

29. It is alleged by the plaintiff / trust that defendant / tenant
is making attempts to sublet or transfer the suit property for
profiteering. The said fact is reiterated even during affidavit of
evidence at Exh.51. Considering cross-examination of P.W.1, the
said witness has first time stated during cross-examination that
in the year of 2017, defendant / tenant has transferred the
possession of suit property to other unknown person. P.W.1 has
also stated that defendant / tenant is having possession of suit
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property at present and he is not having the name of the person,

to whom it has been transferred in the year of 2017. Here, if we
consider, the local commissioner report produced at Exh.61
along with deposition at Exh.60, it can be ascertained that the
suit property was in ‘non-used’ and ‘locked’ condition at the time
of commission. In other words, at the time of commission, no
body found in direct possession of the suit property. Therefore,
considering the evidence produced by plaintiff / trust, it seems
mere allegation that defendant / tenant is making attempts to
transfer the suit property to others. Further, plaintiff / trust has
not produced any criminal complaint;if filed; or name of the
person, to whom the suit property is alleged to be transferred by
defendant / tenant. Hence, plaintiff fails to prove that the
defendant / tenant is trying to transfer the suit premises to any
third party. Therefore, reply for issue no.4 is also given in
“Negative”.

30. Plaintiff / trust has also alleged that defendant / tenant
has made illegal changes of permanent nature without the
permission of landlord / trust in suit property. Considering the
evidence produced to support this version, it seems that plaintiff
/ landlord has not produced any architect or engineer report,
who can suggest that alleged erection is of permanent nature
and suit property cannot be restored in original position
without making serious damage to the structure i.e. permanent
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structure of the suit property. Further considering cross-

examination of P.W.1 at Exh.51, it can be ascertained that P.W.1
has admitted at page-9 that defendant / tenant has not erected
any kind of permanent construction at disputed property. P.W.1
has also admitted that tenant / defendant has wrote an
application produced at Exh.40 to intimate plaintiff / trust that
the door of the suit property was in dilapidated condition. P.W.1
has also admitted that plaintiff / trust has not produced any
evidence to prove that said door was broken down by the
defendant / tenant. It is pertinent to note here that, except the
allegation of removal or broken down of door, no other changes
is alleged as illegal change made in suit property. As mentioned,
for sake of satisfaction, if we believe that defendant / tenant has
changed or removed or broke down the door of the suit property,
in such circumstances as well, the burden to prove such change
as change in permanent structure which cannot be re-instated
without serious damage to suit property; lies on plaintiff /
trust.
On the basis of various decisions surveyed, to decide whether
a particular construction erected by tenant can be characterized
as one of permanent nature for the purpose of Sec.13(1)(b), tests
which may be applied are summarised as under:
(1.)The material used in the structure, durability of the
structure and the very nature of it are dependable criteria;
(2.) What may be called as “the damage test’ or “ the test of
removability’ . This test emanate from the provision of Sec.
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13(1)(b) itself, more particularly from explanation thereof. If

structure in question cannot be removed without causing a
serious damage to the premises, such structure will be
categorised as permanent structure;
(3)The identity test. If the structure changes the whole identity
of the rented premises, the same is also a test applicable. In
other words, it is a test of offending structure vis-a-vis original
structure of the premises. In this, the manner and method of
structure erected and the dimensions of the structure,etc.,
would become relevant in addition to the type of structure itself;
(4)The intention of the tenant in erecting the structure. It is
also a criteria whether the use of the structure /construction is
intended to last-till-tenancy-lasts;
(5)the structure erected is without landlords consent given in
writing.
In present case, the defendant/tenants is alleged to change

door of the suit property. By inserting door in place od old and
dilapidated door; cannot be said to be permanent construction.
It is always removable. This may not seriously damage the
property and thus; plaintiff / trust seems fails to prove such
illegal changes in structure of the suit property., more
particularly; in absence of any independent witness being
examined like an architect or engineer, it cannot be said that
defendant had committed breach of S.13(1)(b) of the ‘Act’.
Therefore, the reply for issue no.5 is also given “Negative”.
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31. As plaintiff / trust seems succeed to prove that the suit
premises had not been used by the defendant / tenant without
reasonable cause for the purpose for which it was let for a
continuous period of six months immediately preceding the date
of suit and further proved that tenant / defendant has acquired
suitable accommodation, therefore, plaintiff seems entitled to
relief as prayed in para-9(a) of the plaint. Hence, reply for issue
no.6 is given in “Affirmative”.
Issue No.1 and 2 of H.R.P. Suit No.554/2017:-
32. Perusing the issues framed at Exh.26, burden to prove the

relationship of tenant and landlord and further; burden to prove
that defendant / landlord / trust are trying to dispossess tenant /
plaintiff forcibly from the suit premises lies on plaintiff /
landlord. Plaintiff / tenant has averred in para (2) of the plaint
that the suit property was originally rented to plaintiff / tenant
by earlier landlord Mr. Kunjbihari Somnath Trivedi at the rent
of Rs.75/- p.m. and the suit property is in possession of the
plaintiff / tenant. It is also averred by plaintiff / tenant that
defendant / trust has purchased the suit property and issued
attornment notice to plaintiff / tenant on dated 04.06.1986. It is
also averred by plaintiff / tenant defendant / trust has
threatened the defendant / tenant at 6:00 p.m. on dated
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28.12.2017 to handover the possession of suit property.
33. To prove above said fact, plaintiff / tenant has tendered his
affidavit of evidence at Exh.78, wherein tenant / plaintiff has
reiterated the fact as averred in plaint of H.R.P. Suit
No.554/2017. It is pertinent to note here that, if we consider the
plaint averment made by defendant / landlord in H.R.P. Suit
No.546/2017, landlord has admitted the fact that present
plaintiff / tenant is old tenant of the suit premises and present
landlord / defendant had purchased the suit property with
sitting tenant (i.e. plaintiff). It is also admitted by other side
that the rent of the suit property is Rs.75/- p.m. As such,
relationship of tenant landlord is admitted fact and the
possession of tenant / plaintiff is also admitted by the defendant
/ landlord. It is deposed by the plaintiff / tenant that the
defendant / landlord is threatening to tenant for handing over
the possession of the suit property. Tenant / plaintiff has
produced tad bills of the suit property and further averred that
suit property was not restricted to use only for residential
purpose from the commencement of tenancy. Therefore, plaintiff
/ tenant is in occupancy of the suit property for commercial
purpose and plaintiff / tenant is running tailoring / sewing
business in suit property. Further, considering the local
commissioner report produced at Exh.61, it can be ascertained
that on the day of local commission, commissioner found sewing
machines inside the suit property. Thus, the possession of suit
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property is undoubtedly with tenant / plaintiff. It reveals from

the documents produced by the plaintiff / tenant that plaintiff /
tenant has not produced a single document which can establish
that the landlord / defendant has threatened the tenant for
handing over the suit property. Even during cross-examination
of defendant / landlord at Exh.51, it can be ascertained that
landlord / defendant has denied such allegations of threatening.
Plaintiff / tenant has not filed / produced any criminal complaint
against such alleged threatening. Further, no independent
witness is examined by the plaintiff / tenant to prove such event
of threatening or attempts made to dispossess the plaintiff /
tenant as alleged. Hence, plaintiff / tenant seems fails to prove
that the defendants are trying to dispossess him forcibly from
the suit premises. Therefore, answer for issue no.1 is given in
“Negative”. As plaintiff / tenant fails to prove that allegation of
attempt made by landlord / plaintiff that the defendant /
landlord are trying to dispossess plaintiff / tenant forcibly from
the suit premises, plaintiff / tenant seems not entitled to get
relief for permanent injunction and other against landlord /
defendant as prayed in para-6 of the plaint. Hence, reply for
issue no.2 is also given in “Negative”.
Issue No.7 of H.R.P. Suit No. 546 /201 7 and

Issue No. 3 H.R.P. Suit No. 554 /201 7 :-
34. The H.R.P. Suit No.546/2017 is filed for the eviction
decree against defendant / tenant and H.R.P. Suit
28/29
No.554/2017 is filed for permanent injunction against

landlord / defendant. As landlord / defendant succeed to
prove the grounds of eviction particularly Non-use of the
rented premises and alternative suitable accommodation,
plaintiff / landlord is entitled to get eviction decree against
defendant / tenant. Further, as plaintiff / tenant of the
H.R.P. Suit No.554/2017 fails to prove that defendant /
landlord are trying to dispossess the plaintiff / tenant
forcibly from the suit property as alleged, I pass the
following final order in the interest of justice for Issue
No.7 of H.P.P Suit No.546/2017 and Issue No.3 of
H.R.P. Suit No.554/2017:-
-:::O R D E R:::-
(1) The H.R.P. Suit No.546/2017 is hereby allowed.

(2) The defendant / tenant is directed to handover the vacant
and peaceful possession of the suit premises to plaintiff /
landlord within 60 days of this order and the defendant /
tenant is hereby restrained permanently by way of
order of permanent injunction from transferring,
assigning or in any other manner the possession of
suit premises to third party.
(3) The H.R.P. Suit No.554/2017 is hereby rejected and

accordingly, if any ad-interim injunction order passed
in the suit is hereby vacated.
29/29
(4) Copy of this Judgment be kept with H.R.P. Suit

No.554/2017.
(5) No order for costs.
(6) Decree be drawn accordingly.
th
Pronounced and signed in the open Court to-day i.e.29
day of December, 2023.
Ahmedabad. (Mr. Neerav Rameshbhai Vyas)

Date: 29/12/2023. Judge, UIC No.GJ01060,
Small Causes Court No.8,
Ahmedabad.
RAT HOD.

Shreyas Order HRP

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H.R.P. Suit No.546/2017 Consolidated

Registration No.: SMCST/546/2017.

IN THE SMALL CAUSE COURT NO.8, AT AHMEDABAD,

(1) H.R.P. Suit No.546/2017

Mr. H. K. Yagnik, Learned advocate for the plaintiff.

Mr. B. K. Raval, Learned advocate for the defendant.

(2) H.R.P. Suit No.554/2017

Registration No.: SMCST/554/2017.

2. Shreyas Co-op. Credit Society Ltd.

Mr. B. K. Raval, Learned advocate for the plaintiff.

Mr. H. K. Yagnik, Learned advocate for the defendants.

Coram: M R . NIRAV R. VYAS , J UDGE .

1. Both the suits related to the same premises and

2. The short facts of H.R.P. Suit No.546/2017 are that

3. The defendant / tenant was served with the summons

property and occasionally his artificer are doing sewing

4. The short facts of H.R.P. Suit No.554/2017 are that

rented property which is situated at first floor was

5. The defendant / landlord was served the summons of

even by the same parties, my predecessor has preferred to

7. The issues in H.R.P Suit No.546/2017 have been

1. Whether the plaintiff proves that the suit

2. Whether the plaintiff proves that the

3. Whether the plaintiff proves that the suit

4. Whether the plaintiff proves that the

5. Whether the plaintiff proves that the

without permission of the plaintiff ?

6. Whether the plaintiff is entitled to get relief as

7. What order and decree ?

8. My findings for the above issues are as under:-

7. As per final order.

9. The issues in H.R.P Suit No.554/2017 have been

1. Whether the plaintiff proves that he is legal

2. Whether the plaintiff is entitled to get relief as

3. What order and decree ?

10. My findings for the above issues are as under:-

3. As per final order.

11. The plaintiff/landlord of H.R.P. Suit No.546/2017 has

Exh.51. Affidavit of examination-in-chief of the plaintiff

Exh.34. Original municipal corporation tax bill.

Exhs.38 Original copies of rent receipts.

12. The defendant/tenant of H.R.P. Suit No.546/2015 has

Exh.78. Affidavit of examination-in-chief of the

defendant namely, Prabhudas Govingbhai

13. In order to prove his case for plaintiff / landlord,

14. In order to prove his case, the defendant / tenant has

15. Heard learned advocates for either side after the

16. Before entering in to discussion and evaluation of

17. Considering the above said admitted facts by either

Issue No.1 of H.R.P. Suit No.546 of 2017:-

after the rented premises and kept the same in non-use. To

19. Before perusing Exh.45 (i.e. electric consumption bill)

Section-13(1)(k) of Bombay Rent Act relates to non-user

II. that such non-user was for a continuous period of six

III.that such non-user was without reasonable cause.

As per requirement of section-13(1)(k), it is necessary to

20. Exh.57 is statement of consumption details produced by

manager in electric service providing company i.e. Torrent

21. Considering cross-examination of P.W.2 at Exh.55, learned

on oath by said P.W.2.

22. Considering cross-examination conducted by learned

23. It is pertinent to note here that, the local commissioner