Gujarat High Court
Hasmukhbhai vs Heirs on 6 April, 2010
Author: M.R. Shah
Bench: M.R. Shah
Gujarat High Court Case Information System
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CRA/53/2008 12/ 14 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
REVISION APPLICATION No. 53 of 2008
With
CIVIL
REVISION APPLICATION No. 54 of 2008
With
CIVIL
REVISION APPLICATION No. 185 of 2006
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. 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 ?
=========================================
HASMUKHBHAI
REVANDAS PATEL HEIR OF DECED REVANDAS S PATEL - Applicant(s)
Versus
HEIRS
OF DECEASED MAFATLAL KAKALBHAI BHAVSAR - NAVNITBHAI & 3 -
Opponent(s)
=========================================
Appearance :
MR
NV SOLANKI for
Applicant(s) : 1,
MR AV PRAJAPATI for Opponent(s) : 1 - 3.
MR
TEJAS P SATTA for Opponent(s) :
4,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 06/04/2010
ORAL
JUDGMENT
1. As all these three Revision Applications are between the same parties and with respect to one suit property but arising out of different proceedings they are disposed of by this common judgment.
2. Civil Revision Application No.53 of 2008 has been preferred by the applicant herein - 3rd party objector (in the Execution petition) to quash and set aside impugned orders passed by the learned Executing Court in the Execution Petition No.320 of 2006 passed below Exh.1 and 11 dated 09.08.2007 as well as impugned judgment and order dated 05.03.2008 passed by the learned Appellate Bench of Small Causes Court at Ahmedabad in Civil Appeal No.181 of 2007 by which the learned Executing Court has removed obstruction / rejected obstruction application submitted by the petitioners and has further directed the petitioners to hand over peaceful and vacant possession of suit premises as per judgment and decree passed by the learned Trial Court confirmed by the learned Appellate Court.
3. Civil Revision Application No.54 of 2008 has been preferred by the petitioners herein (petitioners of Civil Revision Application No.53 of 2008) original plaintiffs to quash and set aside impugned order dated 29.06.2007 passed by the learned Small Causes Court below Exh.6 in H.R.P.Suit No.1627 of 2006 as well as impugned judgment and order dated 05.03.2008 passed by the learned Appellate Court of Small Causes Court, Ahmedabad in Appeal from Order No.51 of 2007 by which both the Courts below have refused to grant any injunction in favour of the petitioners.
4. Civil Revision Application No.185 of 2006 has been preferred by the petitioners original defendant no.2 under section 29(2) of the Act to quash and set aside impugned judgment and order dated 18.04.2006 passed by the learned Appellate Bench of Small Causes Court, Ahmedabad in Civil Appeal No.73 of 2000 as well as judgment and decree dated 22.02.2000 passed by the learned Small Causes Court, Ahmedabad in H.R.P.Suit No. 967 of 1989 by which the both the Courts passed decree in favour of the petitioners on the ground of sub-letting of the suit premises.
5. Original landlord Mafatlal Kakakalbhai Bhavsar instituted H.R.P.Suit No.967 of 1989 in the Court of Small Causes, Ahmedabad against the father of the petitioners of Civil Revision Application Nos.53 of 2008 and 54 of 2008 and one another I.e. Bihari Dayabhai Patel I.e. petitioner of Civil Revision Application No.185 of 2006 to recover arrears of rent and possession of suit premises on various grounds i.e. father of petitioner original defendant no.2 has transferred, assigned and sublet the suit premises in favour of defendant no.2; that original defendant no.1 was not using suit premises for last more than six months; on the ground of arrears of rent by tenant for more than six months; original defendant no.1 has changed user of suit premises without consent of the plaintiffs in writing; that defendant no.1 has acquired suitable accommodation and suit premises is required by the plaintiffs landlord for personal use and occupation. That aforesaid Suit was resisted by defendants by filing Written Statement at Exh.15. Learned Trial Court framed following issues at Exh.17:-
Whether the plaintiffs prove that defendant no.1 is tenant in arrears as alleged ?
Whether the suit notice is legal and valid ?
Whether the defendant no.1 is ready and willing to pay rent as contended in written statement?
What is standard rent of the suit premises?
Whether the plaintiffs prove that defendant no.1 has transferred, assigned or sublet the suit premises on leave and license basis for monetary consideration to defendant no.1 and thereby profiteering?
Whether the plaintiffs prove that defendant no.1 is not using the suit premises for the last more than six monthly immediately preceding the date of the suit as alleged?
Whether the plaintiffs prove that defendant no.1 has changed the user of the suit premises without consent of the plaintiffs in writing ?
Whether the plaintiffs prove that the defendant no.1 has acquired suitable accommodation?
Whether the plaintiffs prove that he reasonably and bona fide requires the suit premises for his personal use and occupation?
Whether defendant no.1 would suffer great hardship if the decree of eviction is passed rather than by refusing to pass in favour of the plaintiffs?
What order and decree ?
6. On behalf of the plaintiff, his son Navnitkumar Mafatlal came to be examined vide Exh.40 and his grandson Ashishkumar Navnitlal was examined at Exh.76. Other two witnesses were also examined vide Exh.78 and 82. On behalf of the defendants both defendants came to be examined vide Exh.90 and 113. Documentary evidence is also produced on behalf of the respective parties. That after considering evidence on record, documentary as well as oral, learned Small Causes Court, Ahemdabad by judgment and decree dated 22.02.2000 decreed the suit on the ground of subletting of suit premises by original defendant no.1 in favour of defendant no.2 for for monetary consideration and also on the ground that defendant no.1 original tenant is not using the suit premises for more than six months immediately preceding the date of the suit and original defendant no.1 original tenant has changed user of suit premises without consent of the plaintiffs in writing. Consequently, learned Small Causes Court, Ahmedabad directed defendants to hand over vacant and peaceful possession of suit premises to the plaintiffs. It is to be noted that during the pendency of aforesaid suit, landlord original plaintiff died and therefore, respondent herein heir of landlord were brought on record of H.R.P.Suit No.967 of 1989. Being aggrieved and dissatisfied with the judgment and decree passed by learned Small Causes Court, Ahmedabad in H.R.P.Suit No.967 of 1989, original defendants jointly preferred Civil Appeal No.73 of 2000 inclusive of father of the petitioner of Civil Revision Application Nos.53 of 2008 and 54 of 2008 before the learned Appellate Court of Small Causes Court, Ahmedabad. That after filing Civil Appeal No.73 of 2000, father of petitioner and original defendant no.1 original tenant died / expired and defendant no.2 of Civil Appeal no.73 of 2000 submitted pursish at exh.16 in the said appeal declaring that he is sole heir and legal representative of original defendant no.1 original tenant Revadas Somabhai Patel. That learned Appellate Bench of Small Causes Court, Ahmedabad by judgment and order dated 18.04.2006 dismissed said appeal confirming the judgment and decree passed by the learned Small Causes Court, Ahmedabad passed in H.R.P.Suit No.967 of 1989 and directed defendant no.2 to hand over vacant and peaceful possession of suit premises to the plaintiffs. Being aggrieved and dissatisfied with the judgment and order passed by the both the Courts below in passing eviction decree, original defendant no.2 subtenant Bihari Dahyalal Patel has preferred Civil Revision Application No.185 of 2006.
7. That original plaintiffs preferred Execution Petition No.320 of 2006 for execution of judgment and decree order passed by the learned Small Causes Court, Ahmedaband in H.R.P.Suit No.967 of 1989 as confirmed by the learned Appellate Bench of Small Causes Court, Ahmedabad in Civil Appeal No.73 of 2000. In the said Execution Petition, petitioner of Civil Revision Application No.53 and 54 of 2008 and son of original defendant no.1 tenant submitted obstruction application as third party contending inter-alia that pursuant to one partnership deed dated 11.10.1998 he was also doing business in the suit premises along with original defendant no.2 and his father original defendant no.1 and also alleging inter-alia that he has become tenant of suit premises under section 5(11)(C) of the Act on the death of his father original defendant no.1. That obstruction applications came to be decided by Executing Court and by common judgment and order dated 09.08.2007 passed below Exh.1 and 11 in Execution Petition No.320 of 2006 and dismissed obstruction applications submitted by the petitioner of Civil Revision Application No.53 of 2008 and 54 of 2008 and vacated ad interim relief granted earlier and directed to issue possession warrant. Being aggrieved and dissatisfied with the orders passed by the learned Executing Court dated 09.08.2007 passed below Exh.1 and 11 in Execution Petition No.320 of 2006, petitioner of Civil Revision Application No.53 of 2008 and 54 of 2008 preferred Civil Appeal No.181 of 2007 before the learned Appellate Bench of Small Causes Court, Ahmedabad which came to be dismissed by the learned Appellate Court, Ahmedabad vide judgment and order dated 05.03.2008 which has given rise to Civil Revision Application No.53 of 2008.
8. After Execution petition was filed and petitioner of Civil Revision Application No.53 of 2008 and 54 of 2008 appeared before the Executing Court who submitted obstruction application, petitioner of Civil Revision Application No.54 of 2008 instituted H.R.P.Suit No.1627 of 2006 before the learned Small Causes Court, Ahmedabad for declaration that he has become tenant by succession under section 5(11)(C) of the Act and consequently prayed for appropriate order restraining defendants from taking over possession pursuant to the judgment and decreed passed by the learned Small Causes Court, Ahmedabad in H.R.P.Suit No.967 of 1989. That in the said suit, petitioner of Civil Revision Application No.54 of 2008 submitted injunction application below Exh.6 restraining respondents original defendants landlord from taking over possession pursuant to the judgment and decreee passed by the learned Small Causes Court, Ahmedabad in H.R.P.Suit No.967 of 1989 and learned Small Causes Court, Ahmedabad vide order dated 29.06.2007 dismissed the application below Exh.6 and refused to grant injunction as prayed for. Being aggrieved and dissatisfied with the order passed by the learned Small Causes Court, Ahmedabad dated 29.06.2007 below Exh.6 in H.R.P.Suit No.1627 of 2006, petitioner preferred Appeal from Order No.51 of 2007 before the learned Appellate Bench of Small Causes Court, Ahmedabad and learned Appellate Bench of Small Causes Court, Ahmedabad by impugned order dated 05.03.2008 has been pleased to dismiss said apepal confirming the judgment and order passed by the learned Trial Court passed below Exh.6 in H.R.P.Suit No.1627 of 2006 which has given rise to Civil Revision Application No.54 of 2008.
9. Mr.N.V.Solanki, learned Advocate has appeared on behalf of the petitioner of Civil Revision Application Nos.53 of 2008 and 54 of 2008 i.e. son of original defendant no.1. Mr.Ravish Bhatt, learned Advocate has appeared on behalf of petitioner of Civil Revision Application No.185 of 2006. Mr.A.V.Prajapati, learned Advocate has appeared on behalf of original plaintiffs landlord.
10. Mr.N.V.Solanki, learned Advocate appearing for the petitioner of Civil Revision Application Nos.53 of 2008 and 54 of 2008 has submitted that learned Executing Court has materially erred in dismissing obstruction application and issuing possession warrant without framing necessary issues and deciding whether petitioner has become tenant by succession under section 5(11)(C) of the Act or not. It is submitted that learned Executing Court has not properly conducted and held proceedings as required under Order 21 Rule 97 of Code of Civil Procedure. It is submitted by Mr.Solanki, learned Advocate that learned Executing Court ought not to have decided obstruction application in such summary manner. It is submitted that both the Courts have materially erred in not appreciating the fact that even petitioner was doing business with his father and Bihari Dayabhai Patel pursuant to partnership deed dated 11.10.1998. It is submitted that on the death of original tenant defendant no.1 father of the petitioner he has become tenant by succession under section 5(11)(C) of the Act and therefore, it is submitted that both the Courts below have materially erred in rejecting obstruction application submitted by the petitioner and in issuing possession warrant against the petitioner. It is further submitted that both the Courts below have materially erred in not granting injunction as prayed for in H.R.P.Suit No.1627 of 2006. It is submitted that when petitioner has sought the declaration in the said suit that he has become tenant by succession on death of his after original tenant under section 5(11)(C) of the Act, both the Courts below ought to have granted injunction as prayed for restraining respondent nos.1,2 and 3 original plaintiffs from executing decree against him. Mr.Solanki, learned Advocate for the petitioner of Civil Revision Application Nos.53 of 2008 and 54 of 2008 has relied upon decision of the Hon'ble Supreme Court in the case of Smt.Gian Devi Anand v/s. Jeevan Kumar and Ors. reported in AIR 1995 SC 796; in the case of Anwarbi v/s. Pramod D.A.Joshi and Ors.
reported in (2000) 10 SCC 405 as well as decision of Himachal Pradesh High Court in the case of Rajeev Dutta and Ors. v/s. Punjab Wakf Board and Anr. reported in 2003 AIHC 3144 in support of his prayer to allow Civil Revision Application Nos.53 of 2008 and 54 of 2008.
11. Mr.Ravish Bhatt, learned Advocate appearing on behalf of petitioner original defendant no. 2 of Civil Revision Application No.185 of 2006 who is held to be sub-tenant has submitted that both the Courts below have materially erred in passing eviction decree on the ground of subletting and change of user. It is submitted that as no consideration has been proved by the plaintiffs, both the Courts below have materially erred in passing eviction decree on the ground of subletting. Mr.Bhatt, learned Advocate has relied upon decision of learned Single Judge of this Court in the case of Babulal Shamrao Joshi v/s. Manubhai Bhatt reported in 1995 (1) GLR 868; decision of Punjab and Haryana High Court in the case of Chela Ram v/s. Parshotam Lal reported in 1999(2) RCR 222 as well as decision of learned Single Judge of this Court in the case of Dahiben Lakhabhai and Anr. v/s. The Administrative Officer reported in XXI 1990 GLR 90 in support of his submission to allow present Civil Revision Application No.185 of 2006.
12. Mr.A.V.Prajapati, learned Advocate appearing on behalf of respondent nos.1,2 and 3 original plaintiffs landlord has submitted that no illegality has been committed by the Executing Court in passing the order below Exh.1 and 11 and dismissing obstruction application submitted by the petitioner of Civil Revision Application Nos.53 of 2008 and 54 of 2008. It is submitted that both the Courts below have rightly disbelieved case on behalf of the petitioner that he has become tenant by succession under section 5(11)(C) of the Act. It is submitted that on one hand the petitioner claimed that he has become tenant by succession on the death of his father under Section 5(11)(C) of the Act on the other hand he has claimed that he was doing business with his father and original defendant no.2 pursuant to the partnership deed dated 11.10.1998. It is therefore, submitted that when both the Courts have concurrently found against the petitioner, it is requested not to interfere with the same in exercise of revisional jurisdiction. It is submitted that considering the fact that after execution petition was filed and petitioner submitted obstruction application and only thereafter petitioner instituted Civil Suit No.1627 of 2006 claiming tenancy under section 5(11)(C) of the Act and considering aforesaid facts and circumstances when both the Courts below have refused to grant injunction as prayed for, it is requested to dismiss Revision Applications. Mr.Prajapati, learned Advocate for the original plaintiffs has submitted that both the Courts below have concurrently rightly passed decree of eviction against original defendants on the ground of subletting and change of user which was on appreciation of evidence and same are not required to be interfered by this Court in exercise of revisional jurisdiction. Therefore, it is requested to dismiss all the Revision Applications.
13. Heard learned Advocates appearing for the respective parties at length.
14. Now so far as Civil Revision Application No.53 of 2008 and 54 of 2008 are concerned, it is filed by petitioner claiming to be heir of defendant no.1 challenging the order passed by the Executing Court in dismissing obstruction application submitted by the petitioner and directing to issue possession warrant. It is to be noted that petitioner submitted obstruction application claiming to be tenant under section 5(11)(C) of the Act on the death of his father. He has also claimed that he was doing business with his father and original defendant no.2 on the basis of partnership deed dated 11.10.1998. There are concurrent findings given by both the Courts below that alleged partnership deed is concocted and created only with a view to make out a case that he was doing business with his father and defendant no.2, which was even never pleaded by original defendants no.1 and 2.
15. Now so far as claim of the petitioner claiming to be tenant under section 5(11)(C) of the Act on the death of his father, same has no substance at all. It is to be noted that original suit was filed against father of the petitioner as original tenant and judgment and decree came to be passed against him along with original defendant no.2 on the ground of subletting and change of user. Both the defendants inclusive of father of the petitioner original tenant preferred appeal before the learned Appellate Court and during the pendency of said appeal father of the petitioner died / expired. Therefore, at the most the petitioner can be in the shoe of original defendant no.1, he cannot have any other independent tenancy rights under section 5(11)(C) of the Act as alleged. Tenancy under section 5(11)(C) of the Act would be applicable in a case where original tenant has died prior to filing of the suit and suit is filed against heirs of original tenant for eviction decree and in that case heirs of original tenant can plead that he has become tenant by succession under section 5(11)(C) of the Act. Under the circumstances, case on behalf of the petitioner that he has become tenant under section 5(11)(C) of the Act is rightly disbelieved by both the Courts below. No illegality has been committed by both the Courts below in rejecting obstruction applicable and directing to issue possession warrant. Considering the fact that H.R.P.Suit No.1627 of 2006 was instituted by the petitioner after obstruction application was filed in execution petition and even on merits also having found that petitioner cannot claim tenancy under section 5(11)(C) of the Act, both the Courts have rightly refused to grant injunction as prayed for more particularly when decree was passed on the ground of subletting in favour of defendant no.2 and original defendant no.2 was found to be in possession of suit premises.
16. Now so far as contention on behalf of Mr.Solanki, learned Advocate for the petitioner of Civil Revision Application Nos.53 of 2008 and 54 of 2008 to the effect that Executing Court ought not to have decided obstruction application summary manner is concerned, it is to be noted that Executing Court has passed detailed reasoned order. It is to be noted that as observed by the Hon'ble Supreme Court in the case of Silverline Forum Pvt. Ltd. v. Rajiv Trust reported in AIR 1998 SC 1754, 'Executing Court can decide whether the resistor or obstructor is a person bound by the decree and he refuses to vacate the property'. As observed by the Hon'ble Supreme Court that question also squarely falls within the adjudicatory process contemplated in O. 21, R. 97(2) of the Code of Civil Procedure. 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.
It is also further observed by the Hon'ble Supreme Court that the Court can direct the parties to adduce evidence for such determination if the Court deems it necessary. Considering above, it cannot be said that Executing Court has committed any error in dismissing the obstruction application submitted by the petitioners.
17. Under the circumstances, both the Revision Application being Civil Revision Application Nos.53 of 2008 and 54 of 2008 fail and they deserve to be dismissed and accordingly they are dismissed.
18. Now so far as Civil Revision Application No.185 of 2006 filed by original defendant no.2 challenging the judgment and decree passed by the learned Small Causes Court, Ahmedabad dated 22.02.2000 in H.R.P.Suit No.967 of 1998 on the ground of subletting and change of user is concerned, it is to be noted that there are concurrent findings given on appreciation of evidence holding that suit premises has been transferred / assigned / sublet to the original defendant no.2 by original defendant no.1 without permission of the landlord. There are concurrent finding of facts given by both the Courts below with respect to change of user. Suit premises was consisting of two premises one for shop and another for storage and it is found by the Courts below that same was used for residence. Under the circumstances, learned Trial Court has passed the decree on the ground of change of user which has been confirmed by the learned Appellate Bench.
19. Now so far as reliance placed upon decision of the learned Single Judge in the case of Babulal Sahrao Joshi (supra) is concerned, it is not appreciable how said decision would be of any assistance to original defendant no.2. It was the case where there were two different tenancies and were sought to be clubbed for deciding mesne profit. Therefore, said decision would not be of any assistance to the petitioner. Similarly, decision of the Punjab and Haryana High Court in relied upon by the petitioner in the case of Chela Ram (supra) also would not be any assistance to the petitioner. In the case before the Punjab and Haryana High Court it was found that eviction decree was passed on the ground of subletting of suit premises to son and eviction decree was passed and during the pendency of proceeding, original tenant died and it was found that said tenant was inherited by son and in such facts and circumstances, Punjab and Haryana High Court set aside eviction decree which was passed on the ground of subletting.
20. Even decision of the learned Single Judge of this Court in the case of Dahiben Lakhabhai and Anr.(supra) would not be applicable to the facts of the present case and /or of any assistance to the petitioner.
21. In view of above for the reasons stated above, all the Civil Revision Applications fail, they deserve to be dismissed and accordingly they are dismissed. Rule discharged in each of Civil Revision Application. Ad-interim relief, if any, stands vacated forthwith. No costs.
[M.R.Shah,J.] satish Top