Gujarat High Court
Arunaben Pranshankar Dave vs Narendra Shankarbhai Dave & 2 on 8 September, 2014
Author: G.B.Shah
Bench: G.B.Shah
C/SCA/12189/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12189 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.B.SHAH
===========================================================
1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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ARUNABEN PRANSHANKAR DAVE....Petitioner(s)
Versus
NARENDRA SHANKARBHAI DAVE & 2....Respondent(s)
================================================================
Appearance:
MR BJ TRIVEDI, ADVOCATE for the Petitioner(s) No. 1
MR JT TRIVEDI, ADVOCATE for the Petitioner(s) No. 1
MS JIGNASA B TRIVEDI, ADVOCATE for the Petitioner(s) No. 1
MR KIRTIDEV R DAVE, ADVOCATE for the Respondent(s) No. 1
MR RAHUL K DAVE, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE G.B.SHAH
Date : 08/09/2014
CAV JUDGMENT
Page 1 of 42
C/SCA/12189/2013 CAV JUDGMENT
1. With the consent of the learned advocates appearing for the respective parties, this petition is taken up for hearing for final disposal.
2. Rule. Learned advocate, Mr.K.T.Dave for the respondent No.1, who appears on caveat, waives service of notice of rule.
3. The case on hand is a classic example of unscrupulousness of the then tenants, who have attempted to bypass the undertaking given by them before the Hon'ble Apex Court by taking help of their sister and tried to continue to harass the existing landlord-respondent No.1-original plaintiff-decree holder, who is 86 years old and who is as such the near relative of the original tenant as well as the present petitioner and the then tenants-respondent Nos.2 and 3 herein, waiting and fighting the legal battle with a desire that he will be able to enter his house in question during his lifetime. It is to be noted that though this Court is experiencing great pain while considering the issue involved in the case, this Court is quite conscious and aware of the fact that emotions and sentiments have no place in the court of law. It is pertinent to note at this juncture that it has been vehemently submitted by learned advocate for the petitioner Page 2 of 42 C/SCA/12189/2013 CAV JUDGMENT that the present case is one of misplaced sympathy for respondent No.1 but I am not agreeable to the said submission which will be dealt with at the relevant time.
4. It is the case of the petitioner Arunaben Pranshankar Mayashankar Dave that she was residing with her father and mother at Bhavnagar prior to their death for about six months or so and hence, she is entitled to tenancy rights under section 5(11)(c)(i) of the Bombay Rents Act being the tenant in succession. It is also her case that after the death of the defendant-original tenant, name of present petitioner was sought to be joined in the application at Exh.14 submitted by the plaintiff-landlord as the legal heir No.4 of her deceased father in the suit along with other heirs. It is also her case that notice too was issued upon her which could not be served and hence, a pursis at Exh.31 on 17/3/1997 was filed by respondent No.1-plaintiff to the effect that he does not intend to join the present petitioner as heir No.4 and accordingly an appropriate order was passed below Exh.14 on 30/6/1997.
5. Present petition has been filed by the petitioner-original third party objector in Execution Petition No. 115 of 2012 and appellant in Regular Civil Appeal No. 69 of 2013 challenging judgment and decree dated 20/7/2013 passed in Regular Civil Page 3 of 42 C/SCA/12189/2013 CAV JUDGMENT Appeal No. 69 of 2013 by the learned 2nd Additional District Judge, Bhavnagar so also the order dated 1/7/2013 passed below application Exh.33 in Execution Petition No. 115 of 2012 by the learned Principal Senior Civil Judge, Bhavnagar.
6. I have heard learned advocate, Mr.J.T.Trivedi for the petitioner and the learned advocate, Mr.K.T.Dave for respondent No.1, who appears on caveat.
7. Uncontroversial facts between the parties right from the beginning upto filing of the present petition are as under:
7.1 Present respondent No. 1-original plaintiff preferred Regular Civil Suit No. 397 of 1991 for obtaining peaceful and vacant possession of the rented premises. In the said suit, an application at Exh.14 dated 20/1/1995 was submitted by respondent No.1 for joining proposed legal heirs of the deceased defendant-Pranshankar Mayashankar Dave. Out of four legal heirs, notices to heir Nos.1 to 3 were served but notice to heir No.4 was not served. Said suit was rejected vide judgment dated 30/9/2003 by the learned Civil Judge (Junior Division), Bhavnagar. Against the said judgment dated 30/9/2003, Regular Civil Appeal No. 332 of 2003 preferred by respondent No. 1-original plaintiff was allowed by judgment dated 25/1/2008 by the learned Additional District Judge, Page 4 of 42 C/SCA/12189/2013 CAV JUDGMENT Bhavnagar, dismissing the Cross-objections filed by respondent Nos.1/1 to 1/3 vide Exh.9. Being aggrieved with the said judgment dated 25/1/2008, the said respondent Nos.1/1 to 1/3 preferred Civil Revision Application No. 39 of 2008 before this Court. However, same was dismissed by judgment dated 31/7/2012. When the said judgment was carried in appeal before the Hon'ble Supreme Court by way of Special Leave to Appeal (Civil) No. 32111 of 2012, it was dismissed by order dated 19/10/2012, however, time to vacate the premises in question was granted till 30/6/2013 subject to filing of usual undertaking in the Registry of the Hon'ble the Apex Court within four weeks failing which, said order would automatically stand vacated. Meanwhile, respondent No.1-
original plaintiff filed Execution Petition No. 115 of 2012 before the learned Principal Senior Civil Judge, Bhavnagar for obtaining peaceful possession, as per the decree. The notice issued by learned trial Judge to the Judgment debtors was duly served. In the said Execution Petition No.115 of 2012, the present petitioner filed third party objections against issuance of Possession Warrant. After hearing both the sides, the learned trial Judge vide order dated 1/7/2013 rejected the said objections raised by the present petitioner. The request of stay of that order was also rejected. That order dated Page 5 of 42 C/SCA/12189/2013 CAV JUDGMENT 1/7/2013 was the subject matter of challenge in Regular Civil Appeal No.69 of 2013, which also came to be dismissed vide order dated 20/7/2013 passed by the learned 2nd Additional District Judge, Bhavnagar. Hence, present petition has been filed by the petitioner challenging both the aforesaid orders passed by the learned Courts below viz. order dated 20/7/2013 passed in appeal confirming the order passed by the trial Court dated 1/7/2013.
8. It is pertinent to note at this juncture that the learned advocate for the petitioner submitted photostat copy of certified copy of rojkam related to Regular Civil Suit No.397 of 1991 and the relevant documents related to efforts made by respondent No.1-original plaintiff for serving the notice on the proposed legal heir No.4 i.e. the petitioner herein vide page Nos.257 to 326 and the Registry is directed to take the same on record.
9. Learned advocate, Mr.K.T.Dave, produced affidavit-in- reply dated 1/8/2013 of respondent No.1-original plaintiff together with relevant documents related to litigation undertaken between respondent No.1-plaintiff and present respondent Nos.2 and 3-original defendants and Registry is directed to take the same on record which are at page Page 6 of 42 C/SCA/12189/2013 CAV JUDGMENT Nos.120 to 256.
10. Learned advocate, Mr.J.T.Trivedi for the petitioner submitted that it is the cardinal principle of law that tenancy rights are heritable and therefore, section 5(11)(c)(i) of the Bombay Rents Act is a salutary and wholesome provision to take care thereof and because of the said provision, the heir of tenant would feel safe otherwise they may be thrown out unceremoniously from the demised premises. During the course of submissions, he also admitted that though it is true that the challenge is made now, but the said challenge was not ever needed for the purpose until recently and when it was needed, the same is made by the petitioner. He also admitted that while it is equally true that a decree of eviction has been passed against respondent Nos.2 and 3 and the same has been confirmed upto the Hon'ble Supreme Court, the moot question is as to whether the challenge by the petitioner would be set at naught by putting an end to her tenancy rights more particularly when admittedly she has been sought to be joined as one of the heirs of her deceased father by respondent No.1-plaintiff, who has submitted an application at Exh.14 in Regular Civil Suit No.397 of 1991 to bring the heirs of petitioner's deceased father on record of the said suit on 20/1/1995. The petitioner herein was sought to be joined as Page 7 of 42 C/SCA/12189/2013 CAV JUDGMENT the heir No.4 of her deceased father and notice too was ordered to be issued upon her by the Court. Thereafter, it transpires that as the petitioner could not be served, a pursis at Exh.31, copy of which is at Annexure-C, was filed by respondent No.1-original plaintiff on 17/3/1997 to the effect that respondent No.1 does not intend to join the petitioner as heir No.4 and accordingly an appropriate order was passed below Exh.14. He also submitted that if the petitioner- proposed heir No.4 could not be served, respondent No.1 could and ought to have resorted to the available provisions of the Code of Civil Procedure, 1908 (hereinafter referred to as 'Code' for short) like substituted service. He then put stress on the said submission by submitting that the factum of submitting application at Exh.14 dated 20/1/1995 in Regular Civil Suit No.397 of 1991 to bring the heir of petitioner's deceased father on record of the said suit itself is enough to prove that it is an admission on the part of respondent No.1 that the petitioner is not only an heir of her deceased father but that she was required to be joined, as she did fulfill the ingredients of Section 5(11)(c)(i) of the Bombay Rents Act and if that is not so, it would not have been necessary to include the petitioner in the application Exh.14 in Regular Civil Suit No.397 of 1991. Lastly, on this issue, learned Page 8 of 42 C/SCA/12189/2013 CAV JUDGMENT advocate for the petitioner submitted that it is worth bearing in mind that women, who get married, are not joined, as they would not generally claim tenancy rights. The present case is one of the glaring injustice to the gender and it is the crying need of the day that gender justice need to be meted out and the same would sub serve the cause of justice and under the circumstances, if a decree of eviction is passed against respondent Nos.2 and 3, the same would not be binding to the petitioner.
11. Learned advocate for the petitioner then submitted that, as submitted earlier, application Exh.14 dated 20/1/1995 filed by respondent No.1 does have a rectal to the effect that the possession of the rented premises was with the heirs of defendant viz., deceased Pranshankar Mayashankar Dave and if that is so, the finding of the learned 2 nd Additional District Judge, Bhavnagar, that there is not even an iota of evidence that the petitioner resides in the suit premises is vitiated. Moreover, 'objection' filed by the petitioner in the execution proceedings i.e. the Divani Darkhast No.115 of 2012 can be equated to 'obstruction'. Such a finding by the learned Additional District Judge was unwarranted because if an application for removal of obstruction would be filed by respondent No.1, it would stand on par with the suit as Page 9 of 42 C/SCA/12189/2013 CAV JUDGMENT provided in Order XXI of Code and evidence would have to be recorded therein and thus, it is crystal clear that the learned 2nd Additional District Judge, Bhavnagar, has not appreciated the import of the admission on the part of respondent No.1 and that in view of the same, no evidence was needed to be led by the petitioner. He further submitted that when objections are filed by the third party which was not joined in the suit in question, said party requires to be heard treating the objections as obstruction within the meaning of Order XXI of Code and by not giving opportunity of hearing to the third party, a grave miscarriage has been caused to the petitioner. In this connection, he placed reliance on the ratio laid down in Leelavantiben Mohanbhai Dabhi Vs. Prakashbhai Nathabhai Sonagara in Special Civil Application No.11749 of 2008 decided by a learned Single Judge of this Court on 7/10/2008.
12. Per contra, learned advocate Mr. K. T. Dave for respondent No.1-plaintiff submitted that the proper remedy was to file Second Appeal which would require substantial question of law and therefore, on the ground of alternative substantial statutory remedy of Second Appeal, present petition deserves to be dismissed. He further submitted that in the judgment and decree dated 30/9/2003 passed in the Page 10 of 42 C/SCA/12189/2013 CAV JUDGMENT Regular Civil Suit No. 397 of 1991, the learned trial Judge had framed one of the issues as to whether the suit is bad for want of proper parties, to which the learned trial Judge replied in negative. Moreover, in the appeal preferred by respondent No.1-original plaintiff, Cross-objections were filed by respondent Nos.2 and 3 herein wherein the said issue of proper party was specifically pleaded. The said appeal was allowed by the first appellate Court and the Cross-objections were dismissed. Moreover, Civil Revision Application as well as Special Leave Petition came to be dismissed and therefore, the say of the learned advocate for the petitioner that the original plaintiff had proposed to join the present petitioner in the suit and thereby, the present petitioner can be treated as a tenant in the suit premises is not tenable. He further submitted that the tenants-original defendants were required to file undertaking before the Registry of the Hon'ble the Apex Court as per the order passed by the Hon'ble the Apex Court, and since the answering respondent had no information of the same, and as the copy of undertaking was not available, Execution Petition No. 115 of 2012 was filed for execution of the decree, in which the Judgment debtors-respondent Nos.2 and 3 have filed objections and in the said objections, there was no reference to the undertaking to be filed before the Page 11 of 42 C/SCA/12189/2013 CAV JUDGMENT Hon'ble Apex Court. He also submitted that after 10 days, a pursis was filed in the said Execution Petition No.115 of 2012 to the effect that undertaking was filed before Hon'ble the Apex Court, however, no copy of such an undertaking has been produced nor given to the answering respondent. He further submitted that as the date for handing over the possession of the suit premises was approaching soon, the Judgment debtors-respondent Nos.2 and 3 used another idea and ill-advice. The petitioner herein filed the Regular Civil Suit No. 245 of 2013 through the same learned advocate, who was representing the Judgment debtors-respondent Nos.2 and
3. He further submitted that as it had become inevitable to hand over the possession on 30/06/2013, the petitioner filed objections in the Execution Petition with a view to stall the proceedings. During the pendency of said proceedings, the present respondent Nos. 2 and 3 filed pursis to comply with the undertaking filed by them before the Hon'ble Apex Court to the effect that the suit premise is vacated. The said pursis was for vacating the premises and for handing over the possession and there was no reference as to the possession of the petitioner. The said objections were rejected after hearing both the sides by order dated 1/7/2013, which was challenged by way of Regular Civil Appeal No. 69 of 2013, Page 12 of 42 C/SCA/12189/2013 CAV JUDGMENT which was also dismissed by judgment and decree dated 20/7/2013. He also submitted that it is the case of the petitioner that she was residing with her father and mother at the time of their death, however, it is the fact that in the application Exh.14, the address of the petitioner as heir No.4 was mentioned to be of Rajkot and not of the suit premises, which is situated in Bhavnagar. He further submitted that as per the provisions of Section 5(11)(c)(i) of the Bombay Rents Act, person residing with the deceased tenant before three months prior to his death can claim tenancy right, however, in the case on hand, the petitioner had raised her claim on 7-4- 2013 for the first time in the suit filed by her, however, as referred above, it is the fact that as per the application Exh.14 in the earlier suit filed by respondent No. 1 (Regular Civil Suit No. 397 of 1991), the petitioner was stated to be residing at Rajkot with her in-laws' family and therefore, the say of the petitioner that she was residing with her parents at the time of their death and that too for three months is highly improbable. He further submitted that usual undertaking before the Hon'ble the Apex Court was to handover the vacant possession, however, the persons, respondent Nos.2 and 3 herein, claiming to have made such undertaking used their sister as a tool to undo their action as contemplated and Page 13 of 42 C/SCA/12189/2013 CAV JUDGMENT bound by the order of the Hon'ble the Apex Court, which is a clear case of willful refusal to act as per the decision of the Hon'ble the Apex Court, which amounts to serious contempt of the Court. He further submitted that just before a fortnight to hand over the vacant possession, the petitioner got up from deep slumber and filed the Regular Civil Suit No. 245 of 2013 claiming that respondent No.1-original plaintiff has obtained a decree by fraud. Not only the issue of legal right of the petitioner was raised and decided against respondent Nos.2 and 3 i.e. original defendants but the cross-objections filed were also dismissed and therefore, there is no question of fraud at all having played by respondent No.1-original plaintiff. Drawing attention of this Court on the rojkam related to Regular Civil Suit No.397 of 1991, he submitted that it would reflect as being clear from a minute perusal of the same about the conduct of the Judgment debtors- respondent Nos.2 and 3 herein speaking volume regarding their calculative move to initiate the second inning as and when they so desired.
13. Before proceeding with the above referred rival submissions made by the learned advocates for the parties, it is desirable to peruse the rojkam related to Regular Civil Suit Page 14 of 42 C/SCA/12189/2013 CAV JUDGMENT No.397 of 1991 in which respondent No.1-plaintiff has filed an application at Exh.14 for joining the proposed legal heirs of original defendant-deceased-Pranshankar Mayashankar Dave and efforts made by him to serve the notices to said legal heirs as per the order passed by the court concerned. 13.1 The relevant dates and the proceedings undertaken by the court concerned as per the rojnama related to Regular Civil Suit No.397 of 1991 read as under:
Date Exhibit Details Adjournment
Case No.397 of 1991
No. Date
20-1-95 13 Today, as the advo. of the plaintiff
had given the application to take
the case on board, it is granted.
14 Also the advo. of plaintiff had
given an application to join the
heirs of the defendant as the
defendant has been dead, the
order was made to issue the notice
to the heirs of the deceased
defendant. Also the
15 affidavit has been produced with
the list of documentary evidences
and the death certi. of the
defendant. It has been recorded.
Case is adjourned to serve the
notice to the heirs of the
defendant.
Sd/- illegible
1 . Jt. Civil Judge (JD)
st
28-2-95
& JMFC, Bhavnagar
28-2-95 The case is resumed today,
Advo. of the plaintiff is present,
the notice has been served to the
heirs of the deceased defendant,
Page 15 of 42
C/SCA/12189/2013 CAV JUDGMENT
the heir no. 2 of the deceased
defendant is present, and he had
given an adjournment application
17 for giving reply by engaging an
advocate. Hence it is granted.
It is adjourned for the reply.
Sd/- illegible
1 . Jt. Civil Judge (JD)
st
5-4-05
& JMFC, Bhavnagar
05/04/95 Produced today,
Advo. of Plaintiff is present, the
advo. of defendant is not present.
It is Adjourned for the reply.
Sd/- illegible
1st. Jt. Civil Judge (JD)
& JMFC, Bhavnagar
26-4-95 Produced, Advo. of plaintiff is
present, the notice of the heir no.
4 of the deceased defendant has
returned without being served.
Hence the case is adjourned for
the reply.
Sd/- illegible
1st. Jt. Civil Judge (JD)
& JMFC, Bhavnagar 15-6-95
15-6-95 Produced, Advo. of Plaintiff is
present. The summons has been
served to heirs nos. 1 to 3 of the
deceased defendant. As they are
not present on being called out,
Ex- party order was made at
exhibit - 1.
Advo. of Plaintiff had given an
application to serve the notice
18
again to the heir no. 4 of the
deceased defendant through Reg.
AD. The same has been granted.
The summons to be issued again.
Hence, adjourned to serve the
same.
Sd/- illegible
1 . Jt. Civil Judge (JD)
st
26-7-95
& JMFC, Bhavnagar
Page 16 of 42
C/SCA/12189/2013 CAV JUDGMENT
26-7-95 Produced, Advo. of Plaintiff is
present. The heirs nos. 1 to 3 of
the deceased defendant had
remained present and had given
an application to join as By-Party
in the case. Hence it is kept for the
19 reply and is fixed for hearing .
20 Also the affidavit has been
produced and it is recorded
21 Also the V.P. of Advo. Mr. P.P.
Shukla has been produced on
behalf of them, and the same has
been recorded.
The notice is to be issued again to
the heir no. 4 of the deceased
defendant.
Adjourned for being served the
same to no. 4 and for the reply of
exhibit - 19 and its hearing.
Sd/- illegible
1 . Jt. Civil Judge (JD)
st
& JMFC, Bhavnagar
13-9-95 Produced, Advocates of the parties
are present. Advo. of Plaintiff had
given an adjournment application
for the reply of exhibit- 19 about
the application of the defendant
and the same has been granted.
22
The case is adjourned for the reply
of exhibit -19, and for awaiting for
no. 4.
Sd/- illegible
1 . Jt. Civil Judge (JD)
st
& JMFC, Bhavnagar
17-10-95 Produced, Advocates of the parties
are present. The advo. of the
Plaintiff had produced the reply of
the application of the defendant at
exhibit - 19, which is kept with the
23
records.
Advo. of the defendant had given
an adjournment application, the
24
same has been granted.
The case is adjourned for the
Page 17 of 42
C/SCA/12189/2013 CAV JUDGMENT
hearing of exhibit - 19 and for
awaiting of no. 4
Sd/- illegible 27-11-95
1 . Jt. Civil Judge (JD)
st
& JMFC, Bhavnagar
27-11-95 Advo. of Plaintiff is present. Advo.
of defendant is not present.
Adjournment application is given
25 by the heirs of the defendant.
.......
Adjourned, for the hearing of exh.
-19.
Sd/- illegible
1 . Jt. Civil Judge (JD)
st
& JMFC, Bhavnagar
18-12-95 Produced. Advo. of Plaintiff is
present. VP of Advo. Mr. D.K. Vyas
26
has been produced on behalf of
the heirs nos. 1 to 3 of the
deceased defendant which has
been recorded.
Also an application had been given
for not to proceed the case until it
27
has not been served to heir no. 4,
which is kept for hearing.
Hence, kept for hearing of exh -19
& 27.
28 PF report of no. 4
Sd/- illegible
1st. Jt. Civil Judge (JD)
22-1-96
& JMFC, Bhavnagar
22-1-96 Today, as the advocates abstained
from court proceedings, adjourned
for serving to no. 4.
Sd/- illegible
1 . Jt. Civil Judge (JD)
st
& JMFC, Bhavnagar
4 -3 - 96 Produced, Advo. of the Plaintiff is
present. The summons was issued
to the heir no. 3 instead of heir no.
4 of the deceased defendant due to
oversight. Hence, the notice is to
be served by Reg. AD to the heir
no. 4 of the deceased defendant.
Page 18 of 42
C/SCA/12189/2013 CAV JUDGMENT
Adjourned for serving to no. 4
Sd/- illegible
1st. Jt. Civil Judge (JD)
15-4-96
& JMFC, Bhavnagar
15-4-96 Advo. of Plaintiff is not present.
Advo. of defendant is present.
Notice is to be issued to heir no. 4
of the opponent.
Adjournment application of the
advo. of Plaintiff is received, and it
29
is granted.
Adjourned for the serving to no. 4.
Sd/- illegible
1st. Jt. Civil Judge (JD)
25-6-96
& JMFC, Bhavnagar
25-6-96 Today, as the advocates abstained
from court proceedings, adjourned
for serving .
Sd/- illegible
1st. Jt. Civil Judge (JD)
5-8-96
& JMFC, Bhavnagar
05/08/96 Today, as the advocates abstained
from court proceedings, adjourned
for serving .
Sd/- illegible
1 . Jt. Civil Judge (JD)
st
3-9-96
& JMFC, Bhavnagar
03/09/96 Produced, The advocates of the
parties are present. As the notice
of the heir no. 4 of the deceased
defendant has not been returned
served or without served, hence
adjourned for waiting for the said.
Sd/- illegible
Jt. Civil Judge (JD)
20-10-96
& JMFC, Bhavnagar
20-10-96 Produced, advocates of the parties
are present. Advo. of the plaintiff
had given an application to issue
30 the notice to the heir no. 4 of the
deceased defendant through
Reg.AD, and the same is granted
on giving the PF of it.
The notice is to be issued to the
Page 19 of 42
C/SCA/12189/2013 CAV JUDGMENT
heir no. 4 of the deceased
defendant.
Adj. for serving the same.
Sd/- illegible
Jt. Civil Judge (JD)
16-12-96
& JMFC, Bhavnagar
16-12-96 Produced, Advocates of the parties
are present. As it is pending to
issue the notice through Reg. AD
to the heir no. 4 of the deceased
defendant, hence again the notice
is to issued. Adj. for serving.
Sd/- illegible
Jt. Civil Judge (JD)
22-1-97
& JMFC, Bhavnagar
22-1-97 Produced, Advo. of Plaintiff is
present. Ld. Advo. of the heirs nos.
1 to 3 of the deceased defendant is
present. As it is pending to issue
the notice through Reg. AD. to
heir no. 4 of the deceased
defendant, the notice is to be
issued again.
The argument of the application of
exh. - 19 is heard. Adj. - for the
order of exh. - 19.
Sd/- illegible
Jt. Civil Judge (JD)
12-2-97
& JMFC, Bhavnagar
12/02/97 Produced, Advo. of Plaintiff is
present. Advo. of defendant is also
present. The order below exh. - 19
was declared in the open court.
Application of Exh. - 19 is granted.
Adj. - for hearing of exh. - 14
Sd/- illegible
Jt. Civil Judge (JD)
& JMFC, Bhavnagar
17-3-97 Produced, Advocates of the parties
are present. The advo. of the
plaintiff had declared on purshish
that they does not want to add the
heir no. 4 of the deceased
defendant, the said has been
Page 20 of 42
C/SCA/12189/2013 CAV JUDGMENT
31 recorded.
Adj. - for hearing of exh. - 14.
Sd/- illegible
Jt. Civil Judge (JD)
-----
& JMFC, Bhavnagar
15-4-97 Produced, advocates of the parties
are not present. There is no any
report of the adjournment. Then
also, it has been adjourned for the
hearing of exh. - 14 in the interest
30-6-97
of justice.
Sd/- illegible
Jt. Civil Judge (JD)
& JMFC, Bhavnagar
30-6-97 Produced, Advocates of the parties
are present. Heard for exh. - 14,
and the order has been passed
under exh. - 14. As per the order,
the advo. of the plaintiff had
amended the application of suit,
hence it has been ordered to
produce the amended Application
of the suit.
Sd/- illegible
Jt. Civil Judge (JD)
16-7-97
& JMFC, Bhavnagar
14. If the above referred rojkam together with application Exh.14 at Annexure-B on page 66 is perused, it would prima facie appear that the application at Exh.14 was given by respondent No.1-original plaintiff under Order XXII Rule 4 read with Section 151 of Code on 20-1-1995 for joining legal heirs of deceased defendant-Pranshankar Mayashankar Dave and to show name of present petitioner as heir No.4 wherein address of the petitioner as heir No.4 was mentioned as under:
Page 21 of 42 C/SCA/12189/2013 CAV JUDGMENT
"4. Aruna Pranshankar Dave, Age: Adult, Occupation: Household work, C/o Hareshkumar Fulshankar Dave, Resident of Jivantika Nagar, Sheri No.6, Near Lakh-na Bungalow, Gandhigram, Rajkot."
14.1 It would also appear that the order related to notice to deceased heirs of defendant was passed on 20/1/1995. Referring to the rojkam referred above in para 13.1 from 20/1/1995 when Exh.14 referred above was given till 17/3/1997 when Exh.31 pursis declaring that they do not want to join heir No.1/4 was given by the learned advocate of respondent No.1-original plaintiff, it would show that decision to give Exh.31 pursis after giving Exh.14 took approximately two years and two months during which, adequate efforts were made by respondent No.1-original plaintiff, however, for multiple reasons, the same could not be served. In the above backdrops, the conduct of all the proposed heirs of deceased original defendant-Pranshankar Mayashankar Dave as depicted in the rojkam referred above would speak volume. After the notice related to Exh.14 is being served on 28-2- 1995, it appeared that heir No.2, Jitendra Pranshankar Dave, is the only male member, who remained present before the Court and gave adjournment application at Exh.17 for giving reply by engaging an advocate. On 5/4/1995 and 26/4/1995, Page 22 of 42 C/SCA/12189/2013 CAV JUDGMENT matter was adjourned for reply. On 15/6/1995, though notice had been served to heir Nos.1 to 3 and they remained absent, ex-parte order was passed below Exh.1 by court and adjourned the matter to 26/7/1995. On 26/7/1995, heir Nos.1 to 3 remained present by engaging their advocate and gave application at Exh.19 to join as party and to hear the suit by- parte on the ground narrated therein. On 17/10/1995, vide Exh.23, reply against Exh.19 was filed by respondent No.1- original plaintiff and as the adjournment application at Exh.24 was filed by the learned advocate for the defendant, the case was adjourned for hearing of Exh.19 and awaiting No.4. On 18/12/1995, on behalf of heir Nos.1 to 3, the learned advocate, Mr.D.K.Vyas filed appearance vide Exh.26 and submitted application at Exh.27 seeking relief of not proceeding with the case unless and until notice was served on heir No.4. Copy of said application Exh.27 is at page 322. The learned advocate for respondent No.1-original plaintiff had put endorsement on said Exh.27 that "service of summons on No.4 has no nexus with the application given by defendant Nos.1 to 3(proposed) .....". It was fixed for hearing. This application given by learned advocate for heir Nos.1 to 3 was a calculative move and pressure tactics adopted by heir Nos.1 to 3 and their advocate which has resulted in submitting application at Page 23 of 42 C/SCA/12189/2013 CAV JUDGMENT Exh.31 which will be discussed a little later. When application at Exh.27 was given, the matter was fixed for hearing of Exh.19 and service to heir No.4 was awaiting. To make the case by-parte as requested by heir Nos.1 to 3 vide Exh.19, service to heir No.4 was not required or compulsory and therefore, question of not proceeding with the case unless and until service to heir No.4 was effected was not arising at all. On the one hand, heir Nos.1 to 3 did not show their readiness and willingness to proceed with Exh.19 though it was ripe for hearing and on the other hand, they are not discharging their pious duty to inform and see that heir No.4 files her appearance. Moreover, with a calculative move to prolong the litigation, heir Nos.1 to 3 and their advocate gave application at Exh.27 as referred above on 18/12/1995. On 22/1/1996, the advocate abstained from court proceedings and hence, matter was adjourned to 4/3/1996 for service to heir No.4. On 4/3/1996, summons/notice returned unserved as, through oversight, instead of heir No.4, the same was issued on heir No.3 on whose behalf, the learned advocate, Mr.D.K.Vyas has already filed his appearance vide Exh.26 as referred above. On 15/4/1996, application Exh.29 given by learned advocate for plaintiff was granted and matter was adjourned to 25/6/1996. On 25/6/1996 and 5/8/1996, Page 24 of 42 C/SCA/12189/2013 CAV JUDGMENT advocates abstained from court proceedings. On 3/9/1996, court awaited service to heir No.4 as notice issued did not return back either served or unserved. On 20-10-1996, application at Exh.30 was given by the learned advocate for the plaintiff requesting to serve heir No.4 through registered post A.D. and it was granted and matter was adjourned to 16/12/1996 for issuance of notice to heir No.4. On 16/12/1996, the case was adjourned to 22/1/1997 and on 22/1/1997 also, it was adjourned to 12/2/1997 as on both the occasions, court did not issue notice to heir No.4. It is not mentioned that process fee was not paid. It is mentioned that because of some lapses on the part of court official, the same was not issued and accordingly, on 22/1/1997, the Court had heard learned advocates for the parties on Exh.19 and adjourned the matter for issuance of notice to heir No.4 and also for passing order below Exh.19 to 12/2/1997. On 12/2/1997, order below Exh.19 was passed which was granted and it was adjourned for hearing of Exh.14. Under the above circumstances, on the next date i.e. on 17/3/1997, vide Exh.31, the learned advocate for respondent No.1 herein-original plaintiff had filed said pursis declaring that plaintiff did not want to join heir No.4 Arunaben Pranshankar Dave, resident of Rajkot, which was recorded. Said application at Exh.31 presumably was filed by Page 25 of 42 C/SCA/12189/2013 CAV JUDGMENT learned advocate for the plaintiff so that plaintiff can come out with the hurdle of hearing of Exh.27 and thereby hearing of Exh.14 can take place as early as possible. On 15/4/1997, though the learned advocates for the parties remained absent, matter was adjourned to 30/6/1997 and on the said date, court had heard the learned advocates for the parties and passed an order on the same date. Referring to said order passed below Exh.14, it is observed that original plaintiff had submitted the said application within the prescribed period of law after the death of defendant Pranshankar Mayashankar Dave and it was observed by the court that heir Nos.1/1 to 1/3 had appeared. Moreover, as heir No.1/4 could not be served, by submitting pursis, the plaintiff declared that they do not want to join heir No.1/4. The heirs have not taken any objection regarding the same. Accordingly, application at Exh.14 was granted.
14.2 In light of the above discussion, if the conduct of the parties is looked at this juncture, it can be seen that respondent No.1-original plaintiff had not left any stone unturned to see that heir No.1/4 of deceased defendant be served and she remained present, if at all she desired. Now, if the conduct of the legal heir Nos.1/1 to 1/3 and their Page 26 of 42 C/SCA/12189/2013 CAV JUDGMENT advocate, who filed his appearance on 18/12/1995 and submitted application at Exh.27 not to proceed further with the matter unless and until notice to heir No.1/4 is served is considered, it would appear that filing of application at Exh.27 was a calculative move by heir Nos.1/1 to 1/3 and their advocate to prolong the litigation undertaken by the plaintiff and to pressurise the plaintiff to take a hasty step to fall prey into the trap and ultimately made the learned advocate for the plaintiff to file Exh.31 presumably with a view to expedite hearing of Exh.14 which was pending since last more two years. From the above discussion, it is clear that there was no negligence on the part of the plaintiff if the court official forwarded summons/notice at the address of heir No.1/3 which was supposed to be issued at the address of heir No.1/4. Although process fee was paid for a considerable long time, no care appears to have been taken by the Court and twice the Court missed issuing notice at the address of heir No.1/4. Section 5(11)(c)(i) says that in relation to premises let for residence, any member of the tenants family residing with the tenant at the time of, or within three months immediately preceding, the death of the tenant as may be decided in default of agreement by the Court, tenancy right can be claimed. However, from the above facts, it is clear that though Page 27 of 42 C/SCA/12189/2013 CAV JUDGMENT respondent No.1-original plaintiff had put his best efforts to see that order of issuance of notice passed below Ex.14 to serve heir No.1/4 is complied with in letter and spirit but the same could not happen for the reasons referred hereinabove and I am of the view that when rest of the heir Nos.1/1 to 1/3 had been duly served, it is their and their advocate's pious duty to see that heir No.1/4 should come to the Court and put her legal claim to the effect that she had lived with her father and mother for about six months prior to their death. After approximately 20 years and that too at the fag end of the Execution Petition more particularly when possession was to be handed over by respondent Nos.2 and 3, as discussed hereinabove, a show has been made by her with a view to see that a second inning is initiated against respondent No.1 with the indirect help of respondent Nos.2 and 3 herein and with the direct help of learned advocate, Mr.S.H.Trivedi, who also appears in the Execution Petition on behalf of respondent Nos.2 and 3 herein, which cannot be permitted in light of the decision rendered by the Apex Court in the case of Atma Ram Builders P. Ltd. v. A.K.Tuli and Others reported in (2011)6 SCC 385 more particularly in paragraph No.5, which reads as under:
"It is deeply regrettable that in our country often litigations between the landlord and tenant are fought Page 28 of 42 C/SCA/12189/2013 CAV JUDGMENT up to the stage of the Supreme Court and when the tenant loses in this Court then he starts a second innings through someone claiming to be a co-tenant or as a sub-tenant or in some other capacity and in the second round of litigation the matter remains pending for years and the landlord cannot get possession despite the order of this Court The time has come that this malpractice must now be stopped effectively. "
14.3 Learned advocate for the petitioner also submitted that if the petitioner-proposed heir No.4 could not be served, respondent No.1 could and ought to have resorted to the available remedy under the provisions of Code like substituted service. The question of substituted service would arise when notice which had been issued returned unserved. If the Rojkam dated 4/3/1996, 15/4/1996, 25/6/1996, 5/8/1996 and 3/9/1996 as referred above in paragraph No.13.1 is perused, it can be seen that notice on heir No.4 was issued through Registered Post with A.D. After lapse of considerable long period on 3-9-1996, the case was adjourned as the said notice has not returned served or unserved. Under the above circumstances, in my view, Court should inquire for the said postal article, which has not returned within stipulated period, with the postal machinery. Moreover, looking to the reasons mentioned by the Bailiff for non-service of the said notice, an application for substituted service could have been applied for as a last resort. However, as discussed hereinabove, when the Page 29 of 42 C/SCA/12189/2013 CAV JUDGMENT notice which was supposed to be issued at the address of heir No.4, forwarded at the address of heir No.3, had returned unserved as well as an application submitted by respondent No.1-plaintiff for serving the notice of heir No.4 by registered post A.D. was though granted and process fee appears to have been paid, but for the mistake on the part of court official, twice the same was not issued, then, under the said circumstances, the question of service through substituted service does not arise at all. The learned advocate for the petitioner is quite aware of the fact that the petitioner herein is claiming her right, as referred hereinabove, after a considerable long period of 20 years and to meet with that aspect, he submitted that though it is true that the challenge is made now, but the said challenge was never needed for the purpose until recently and when it was needed, the same is made by the petitioner. I do not find any substance and merit in the said submission for the reasons discussed hereinabove. Moreover, looking to the conduct of the petitioner, who is as such supported indirectly by respondent Nos.2 and 3 herein and directly by learned advocate, Mr.S.H.Trivedi, who has filed appearance on behalf of respondent Nos.2 and 3 in the execution proceedings, a show has been made, by twisting the provision of law of Section 5(11)(c)(i) of the Bombay Rents Page 30 of 42 C/SCA/12189/2013 CAV JUDGMENT Act, 1947 and showing niceties of law, by her that a need has arisen recently and therefore, she is knocking at the door of the Court which, in my view, is not permissible in the eye of law more particularly when the petitioner gets up from slumber with an ulterior motive, to harass respondent No.1- plaintiff and that too after getting the sympathy of the Apex Court which had granted stipulated time to respondent Nos.2 and 3 herein for vacating the suit property on the basis of the undertaking given by them. This action on the part of all concerned as referred hereinabove is nothing but an attempt to stall the execution proceeding and to frustrate the decree just to satisfy their ego or the reasons best known to them, rather than the bona fide claim by the petitioner. 14.4 It has also been argued by the learned advocate for the petitioner that it is the crying need of the day that gender justice need to be meted out and the same would subserve the cause of justice and hence, the decree of eviction, which has been passed against respondent Nos.2 and 3 would not be binding to the petitioner. As discussed hereinabove and as submitted by learned advocate for respondent No.1, respondent Nos.2 and 3 had inducted their sister i.e. the present petitioner, to see that the undertaking given before Page 31 of 42 C/SCA/12189/2013 CAV JUDGMENT the Hon'ble Supreme Court is frustrated. Gender justice is always required to be meted out but for that, one is expected to come with clean hands. In the case on hand, after a considerably long period of time, the petitioner has come with the case as referred above joining hands with respondent Nos.2 and 3 and not come with clean hands, then in that circumstances, the petitioner, who has made deliberate attempt to cause delay and hamper the cause of justice with sheer love and affection towards brother and sister, i.e. respondent Nos.2 and 3, cannot claim for gender justice. Under the above circumstances, in my view, the courts below had passed just and proper order, which is little elaborated by this Court.
15. Learned advocate, Mr.Trivedi, for the petitioner placed much reliance on the decision rendered by this Court in Leelavantiben Mohanbhai Dabhi Vs. Prakashbhai Nathabhai Sonagara in Special Civil Application No.11749 of 2008 decided by a learned Single Judge of this Court on 7/10/2008 contention of which is also reflected in ground (E) on pages 18, 19, 20 and 21 of the petition. Facts of the said case are that respondent No.1 was the auction purchaser and respondent No.2, a teacher, was the husband Page 32 of 42 C/SCA/12189/2013 CAV JUDGMENT of the petitioner therein. Respondent No.2 had obtained housing loan from respondent No.3-State Bank of India for purchasing the property in question which was in possession of the petitioner-wife and their children. According to the petitioner-wife, instalments of the said loan were being paid from the joint salary account of the petitioner-wife and respondent No.2-husband as per the mutual understanding, however, after one year, respondent No.2-husband deliberately avoided payment of instalments with a view to render petitioner-wife and her two children homeless. The petitioner-wife paid few instalments and thereafter the loan instalments remained unpaid. Therefore, a suit was filed by respondent No.3-State Bank of India for recovery of dues in which petitioner-wife was not joined as party defendant. On the first date of hearing of the said suit, respondent No.2- husband admitted the liability and a consent decree was accordingly drawn. A pursis was also filed by the respondent No.2-husband declaring that decretal amount be recovered from the residential house occupied by petitioner and two children. Respondent No.3-State Bank of India-the decree holder, initiated execution proceedings wherein the Executing Court directed to realize the decretal amount by sale of residential house in question by way of public auction and Page 33 of 42 C/SCA/12189/2013 CAV JUDGMENT accordingly, auction was held and said property was purchased by respondent No.1, who is cousin of the respondent No.2-husband. Respondent No.1 thereafter moved an application Exh.33 for handing over possession of auctioned property occupied by petitioner-wife. Petitioner- wife filed objection contending the fact that she has been in occupation of the property was well within the knowledge of respondent Nos.1 and 2. However, property was allowed to be auctioned. Though the petitioner and two children were having right, title and interest in the property in question, auction purchaser ought to have moved application under Order XXI, Rule 97 of Code instead of filing application under Order XXI, Rule 95 of Code. In the background of above referred peculiar facts of the case, this Court held that when the decree is resisted and objections are raised, decree holder or purchaser has to submit application for removing obstructions as contemplated under Order XXI, Rule 97 of Code and until then, the Executing Court cannot pass any order delivering the possession but has to adjudicate upon the objections submitted by the objector before directing to hand over possession.
16. In light of the above referred facts and the ratio laid Page 34 of 42 C/SCA/12189/2013 CAV JUDGMENT down by this Court, I have carefully perused Order XXI Rule 97 of Code and it appears that the object for extensive amendments which have been made in Order XXI of Code by the Amendment Act, 1976 is to shorten the litigation and to expedite process of execution. Sub-Rule (1) of Rule 97 allows a decree-holder or auction-purchaser of immovable property, who is resisted or obstructed by any person in obtaining possession of such property, to make an application to the Executing Court complaining of such resistance/obstruction. In the case on hand, objection application has been submitted by the petitioner third party vide Exh.33 on 27.6.2013 through her advocate, Mr.S.H.Trivedi, in Regular Civil Execution Petition No.115 of 2012. The reply appears to have been submitted on 29/6/2013 vide Exh.35. Respondent Nos.1 and 2 raised objections and challenged maintainability of the execution proceedings on 5/4/2013. After the application is submitted for issuance of Possession Warrant, on 16/4/2013, the said learned advocate, Mr.S.H.Trivedi remained present before the Court on behalf of respondent Nos.2 and 3- judgment debtors and declared that as per the order passed by the Hon'ble Apex Court, undertaking has been given by the respondent Nos.2 and 3-judgment debtors that they will hand over possession on or before 30/6/2013. Moreover, the Page 35 of 42 C/SCA/12189/2013 CAV JUDGMENT petitioner has filed Civil Suit No.245 of 2013 against respondent No.1-plaintiff and as the Court did not grant ex- parte injunction and as, after filing of written statement by the respondent No.1 in the said suit, learned advocate felt that there is now no chances of getting injunction, the petitioner has thought it fit to file objection application and accordingly filed the same on 27-6-2013 at Exh.33 as referred above. Under the circumstances, the trial court appears to have treated the reply at Exh.35 filed by respondent No.2 on 29/6/2013 as an application for removing the objection as contemplated under Order XXI Rule 97 of Code. It further appears that the Executing Court under Sub-Rule (2) of Rule 97 of Order XXI adjudicated the dispute in accordance with the procedure. So far as Order XXI Rule 97(2) of the Code is concerned, the Hon'ble Supreme Court in the case of Silverline Forum Pvt. Ltd. v. Rajiv Trust reported in AIR 1998 SC 1754 has held as under:
"It is clear that executing Court can decide whether the resistor or obstructor is a person bound by the decree and he refuses to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21, Rule 97(2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. Court can make the adjudication on admitted facts or even on the averments made by the resistor. Of course the Court can direct the parties to Page 36 of 42 C/SCA/12189/2013 CAV JUDGMENT adduce evidence for such determination if the Court deems it necessary."
Under the circumstances, it is clear that the Executing Court can decide whether the resistor or obstructor is a person bound by the decree and he/she refuses to vacate the property. The said question also squarely falls within the adjudicatory process contemplated in Sub-Rule (2) of Rule 97 of Order XXI of Code. In my view, in each and every case, the adjudication mentioned therein does not necessarily go through a detailed inquiry or collection of evidence. Considering the facts of the case, Court can make the adjudication on admitted facts or even on the averments made by the obstructor, which the courts below have done. I do not find any reason to interfere with the said decisions passed by the courts below. In the case of Lilavantiben(supra), considering the malafides of the respondent No.2-husband, who had decided to get possession of residential house at any cost from the petitioner-wife and two children, proceeded by calculated move with the help of auction purchaser, who is respondent No.1 and cousin of the respondent No.2 in whose trap, the respondent No.3-State Bank of India had no option but to file suit and accordingly, decree was invited by the respondent No.2-husband and hence, this Court has held as Page 37 of 42 C/SCA/12189/2013 CAV JUDGMENT referred above. However, in the case on hand, said ratio is not applicable so far as Order XXI Rule 97 of Code is concerned.
17. While dealing with the provision related to Order XXI Rule 97 of Code, the Hon'ble Supreme Court has observed in Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal and another reported in (1997)3 SC 694 : AIR 1997 SC 856 as under:
"On the contrary the statutory scheme envisaged by Order XXI, Rule 97, CPC as discussed earlier clearly guards against such a pitfall and provides a statutory remedy both to the decree-holder as well as to the obstructionist to have their respective say in the matter and to get proper adjudication before the Executing Court and it is that adjudication which subject to the hierarchy of appeals would remain binding between the parties to such proceedings and separate suit would be barred with a view to seeing that multiplicity of proceedings and parallel proceedings are avoided and the gamut laid down by Order XXI, Rules 97 to 103 would remain a complete code and the sole remedy for the concerned parties to have their grievances once and for all finally resolved in execution proceedings themselves."
18. As discussed hereinabove, in the present case, the petitioner herein preferred Regular Civil Suit No.245 of 2013 on 17/4/2013 and sought various reliefs against the respondent No.1 related to suit property and interim protection i.e. interim injunction was not granted by the court concerned. In the said suit, the respondent No.1 has filed his Page 38 of 42 C/SCA/12189/2013 CAV JUDGMENT appearance and filed reply and the hearing related to Exh.5 was as such over and the matter was posted for final order. At that point of time, the petitioner herein-the third party has come out with an application at Exh.33 more particularly on 27/6/2013 and the petitioner third party has filed objection application as referred hereinabove. Thus, prior to filing of objection application, the petitioner has already filed Civil suit challenging decree passed in Regular Civil Suit No.397 of 1991 as well as judgment and order passed in Regular Civil Appeal No.332 of 2003. Over and above, in the said suit, the petitioner has also sought relief in paragraph No.13(d) related to Regular Execution Petition No.115 of 2012 of permanent injunction against the respondent No.1 to restrain him from taking possession of the rented premises. In view of the said position also, judgment and order passed by the concerned court was just and proper.
19. Under the circumstances referred hereinabove, it cannot be said that the tenancy rights of the petitioner-original third party objector are being snatched away with malafide manner and that too at the sweet-will of the existing landlord- respondent No.1-original plaintiff-decree holder herein because the person, who has slept over her right for 20 years, has no right at all to claim the tenancy rights. Under the Page 39 of 42 C/SCA/12189/2013 CAV JUDGMENT above circumstances, I do not find any substance and merit in the submissions made by learned advocate for the petitioner that the present case is one of injustice to gender and it is crying need of the day that gender justice needs to be meted out and the same would sub-serve the cause of justice, more particularly when the said gender appears to have filed Regular Civil Suit No.245 of 2013 with ulterior motive and with ulterior design just to help respondent Nos.2 and 3, who have given the undertaking before the Hon'ble the Apex Court and thus, it is clear that the petitioner is not coming with clean hands before the Court, but indirectly wants to help the respondent Nos.2 and 3 to satisfy their ego for the reasons best known to them.
20. It appears to me that the intention of the petitioner is only to delay the proceedings further and deprive the respondent No.1-decree holder from reaping the fruits of the decree and that too, indirectly joining hands with respondent Nos.2 and 3, who had given undertaking before the Hon'ble the Apex Court as referred above and, as observed by the Hon'ble Apex Court in Atma Ram Builders Pvt.Ltd. (supra), time has come to stop such malpractice in an effective manner, so that genuine tenant can get the dwelling house to meet with their genuine need. On a careful consideration of Page 40 of 42 C/SCA/12189/2013 CAV JUDGMENT the entire case, I am of the opinion that the judgment and decree dated 20/7/2013 passed in Regular Civil Appeal No.69 of 2013 by the learned 2 nd Additional District Judge, Bhavnagar, and order dated 1/7/2013 passed below application Exh.33 in Execution Petition No.115 of 2012 by the learned Principal Senior Civil Judge, Bhavnagar, are just and proper and there are no reasons to interfere with the same by invoking powers under Articles 226 and 227 of the Constitution of India.
21. In the above backdrop, the petitioner-third party has failed to make out any case against respondent No.1-landlord- original plaintiff-Judgment creditor and hence, the present petition deserves to be dismissed. Considering the deliberate attempt to initiate second round of litigation only with a motive to indirectly help the respondent Nos.2 and 3, who had given undertaking before the Hon'ble Apex Court as referred above, for which the respondent No.1 was forced to take part in the said litigation, he is required to be compensated in terms of money. Hence, this petition is hereby dismissed with costs and the petitioner is directed to pay Rs.20,000/- (Rupees Twenty Thousand only) towards costs of the litigation for which he was forced to fight the said battle as referred above. Rule is discharged.
Page 41 of 42 C/SCA/12189/2013 CAV JUDGMENT
(G.B.SHAH, J.) RADHAN Further Order After pronouncement, Mr. J. T. Trivedi, learned advocate for the petitioner, requested to stay the implementation and operation of the present judgment and order for eight weeks as he is desirous of challenging the same before the higher forum.
Taking into consideration the peculiar facts and circumstances of the case narrated herein above, the request is rejected.
(G.B.SHAH, J.) RADHAN Page 42 of 42