ORAL ORDER

By this petition under Article 227 of the Constitution of India, the petitioner has prayed for the following main reliefs:

“(A) YOUR LORDSHIPS may be pleased to issue an appropriate writ, order or directions quashing and setting aside the order dated 07.10.2021 passed below Exhibit -17 application by the learned 9th Chief Judicial Magistrate at Jamnagar in Regular Civil Suit No. 1339 of 2019 at Annexure - N and may kindly be pleased to grant prayer of an application at Exh. 17 in the interest of justice;

(B) During the pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to allow to carry out repairs and renovation work of the tenanted premise in the interest of justice;”

2. The defendant of the suit preferred an application at Exh.17 in RCS no.1339 of 2019 seeking relief from the Court to permit the defendant to make repairs in the tenanted dilapidated premise. The trial court rejected the application which has given rise to this petition.

3. The fact which could be required is that one Mr.Bhupendra Liladhar Sutariya preferred RCS No.1339 of 2019 before the trial court seeking peaceful and vacant possession of the demise premises inter alia on the ground available under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short the Act). One of the ground of non-user of the rented premise is that the defendant has not used the premise without reasonable cause for the purpose of which defendant let for a continuous period of six months immediately preceding the date of the suit as defined in Section 13(1)(k) of the Act. The suit was filed in the year 2019 and at present the suit is at the stage of recording of evidence of the plaintiff. In the midst of this, the defendant–tenant filed an application at Exh.17 with the ground that tenanted premises become dilapidated, ceiling and wooden block in the ceiling are in a position to fall immediately and therefore they may be permitted to repair the rented premises.

This application was moved on 04/03/2022.

4. Heard learned Advocate Mr.Darshan Gandhi for the petitioner and learned Advocate Mr.Yatin Soni for the respondent.

5. Learned advocate Mr.Gandhi for the petitioner would submit that section 23 of the Act giving legitimate right to the tenant to repair the tenanted premises if the landlord feels to keep the same in usable position. In the present case, the landlord failed in its duty to keep the premise and to repair and that has promoted the defendant to file application at Exh.17. He would further submit that trial court has committed serious error in believing that if defendant is permitted to repair the rented premise, it would washout the ground for eviction available under Section 13(1)(k) of the Act as to establish the ground available under Section 13(1)(k) of the Act the landlord is required to prove only non-user of the rented premise continuously for six months prior to filing of the suit and not subsequent to the suit.

5.1 In support of his submission in regards to Section 13(1)(k) of the Act, learned advocate for the petitioner relied upon the decision in case of Ashwinbhai C. Sheth vs. Bank of Baroda [2002 (1) GLR 54] and decision in case of Swarupram Bhikhaji Raval vs. Anjanaben Maheshbhai Tailor [2014 (1) GLH 193] to submit that it is the duty of the landlord to keep the premise in good and tenantable condition even in absence of any express contract. Reliance is also placed upon the decision in case of Nayak Kalidas Motiram vs. Menaben w/o Kadia Punjiram Prabhudas AIR 1975 Guj 36; Rameshvar Madhulal Shah vs. Gordhanbhai Kacharabhai Decd. Thro Heirs 2013 (1) GLR 647 and Gulam Maiyuddin Fakir Mahmad vs. Hassenabibi Jamalji Chaktachetwala 2013 (3) GLR 1998.

5.2 Upon above submissions, he would submit that trial court has committed serious error in denying the tenant to repair the tenanted premises and seeks indulgence of this court.

6. Learned Advocate Mr.Yatin Soni for the respondent no.1 opposing the present petit