Gujarat High Court
Chanchal Bhurabhai Trust vs Pramodkumar on 13 June, 2013
Bench: Jayant Patel, Z.K.Saiyed
CHANCHAL BHURABHAI TRUST....Applicant(s)V/SPRAMODKUMAR VIJAYBAHADURSING CHOUHAN C/CA/5697/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION (FOR ORDERS) NO. 5697 of 2013 In FIRST APPEAL (STAMP NUMBER) NO. 1265 of 2013 With FIRST APPEAL (STAMP NUMBER) NO. 1265 of 2013 With CIVIL APPLICATION (STAMP NUMBER) NO. 5483 of 2013 In FIRST APPEAL (STAMP NUMBER) NO. 1265 of 2013 ================================================================ CHANCHAL BHURABHAI TRUST....Applicant(s) Versus PRAMODKUMAR VIJAYBAHADURSING CHOUHAN & 1....Respondent(s) ================================================================ Appearance: MR DAXAY D PATEL, ADVOCATE for the Applicant(s) No. 1 DS AFF.NOT FILED (N) for the Respondent(s) No. 1 - 2 NOTICE SERVED BY DS for the Respondent(s) No. 1 - 2 ================================================================ CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 13/06/2013 ORAL ORDER
(PER : HONOURABLE MR.JUSTICE JAYANT PATEL) The present application has been preferred by the applicant - Trust seeking leave to prefer Appeal against the Judgment and the Decree dated 7.3.2013 passed by City Civil Court, Ahmedabad, whereby the defendant therein, who is respondent No.2, is directed to hand over the possession of the suit premises with mesne profit as per the Decree.
We have heard Mr. Buch with Mr. Patel for the applicant.
The contention raised on behalf of the applicant is that the applicant is in possession of the part of the premises in the capacity as tenant of one Pipla Dev Mandir Trust, who is claiming the right over the property as protected tenant. It was submitted that if the Decree is executed against the applicant, they would be adversely affected and, therefore, the present application for leave to Appeal has been preferred. It has been submitted that the application was filed for obstructing the execution of the decree under Order-21, Rule-58 of C.P.C., but, the executing Court has not accepted the obstruction application and, therefore, the applicants have no option but to prefer appeal and as the applicant was not a party in the proceeding of the Suit, the present application has been preferred for leave to prefer Appeal.
Mr. Buch, learned Counsel for the applicant did concede to the position that the landlord of the applicant which is another Trust, had filed application to be impleaded as party in the pending Suit, but such permission was not granted and his landlord has not carried the matter before the higher forum. It is also submitted that the Suit has been preferred by his landlord before the Civil Court seeking prayer for declaration to assert right in the property and the said Suit is also pending. It was submitted that inspite of the same the Executing Court did not accept the application under O-21, R-58 of C.P.C. and rejected the same vide order dated 10.5.2013, the copy whereof is produced at Page-57 of the compilation of the Appeal. It has been, therefore, submitted that there is a good ground for granting leave to Appeal and, therefore, such permission may be granted.
It is an admitted position that the Suit is filed in the year 2010 and the decree shows that the Suit was filed on 14.6.2010 and it is decided on 7.2.2013. It is also an admitted position that the applicant has been inducted as tenant by the Pipladev Trust on 1.4.2012. It is also an admitted position that the said Pipladev Trust, through whom the applicant is said to have acquired interest as tenant, had preferred application to be impleaded as party in civil suit and the said application was not granted. It is also an admitted position that Pipladev Trust had preferred Civil Suit No.1110 of 2009, through its trustee for asserting the right in the property. It is also an admitted position that the applicant herein had preferred obstruction application to the execution of the decree and the Executing Court vide order dated 10.5.2013 has rejected the application.
If the matter is considered on the principle of lis-pendance, the so called rights have been acquired as tenant by the so called landlord who is third party to the suit. The landlord i.e. Pipladev Trust has also prosecuted the remedy for asserting the right in the property including for being impleaded as party in the proceeding, but no order has been passed by any competent forum protecting the rights of the so called landlord, if any. When the landlord of the applicant is pursuing the proceeding before the appropriate forum the applicant, is said to have acquired the rights. Even if to be considered for the sake of consideration, such rights are through its landlord and not independent right.
Further, Order-21 Rule-58, sub-rule (5) C.P.C. reads as under:
58.
Adjudication of claims to, or objections to attachment of property -
(1) xxx xxx xxx xxx (2) xxx xxx xxx xxx (3) xxx xxx xxx xxx (4) xxx xxx xxx xxx (5) Where a claim or an objection is preferred and the Court, under the proviso to sub-rule (1), refuses to entertain it, the party against whom such order is made may institute a suit to establish the right which he claims to the property in dispute, but, subject to the result of such suit, if any, an order so refusing to entertain the claim or objection shall be conclusive.
As per the said provision if any application has been rejected, the party against whom such order is made has the remedy of preferring the Suit to establish the right which he claims to the property in dispute and if no such suit is filed, the order of the Executing Court shall be conclusive. The petitioner applicant has remedy of preferring the suit as per O-21, R-58 (sub-rule 5) C.P.C. which has not been exhausted.
Therefore, considering the facts and circumstances, when neither the judgment debtor nor the so called landlord of the applicant Pipladev Trust have preferred appeal against the decree and when the applicant is said to have acquired right through his landlord and when the applicant is inducted in the property pending Suit, that too, by the person who is third party to the Decree, we find that the discretion does not deserve to be exercised for granting leave to prefer appeal, more particularly when considering the facts and circumstances it appears that the appeal could not be termed as bonafide at the instance of the applicant herein.
Mr. Buch, learned Counsel appearing for the applicant did draw the attention of the Court that even prior to the decree, Civil Suit No.2770 of 2012 was preferred by the applicant by way of interpleader Suit requesting the Court to decide about his real landlord and the liability to pay the rent to such person and, therefore, he submits that such conduct of the applicant could be termed as bonafide for prosecuting the right.
We are unable to countenance the submission for the simple reason that when, as per the applicant, he has acquired the right through Pipladev Trust, there was no reason for him to file such a Suit. Further, if the applicant was genuinely interested he could have preferred application to be impleaded as party in the present Suit, but, no such attempt is made. The Suit appears to have been filed for showing the so called dispute only. But, thereby no additional right would be available to the applicant on the basis of the same. In any case, as observed by us herein above, even if the applicant is asserting his right in the property, he has to resort to the remedy by filing the Suit as provided under O-21, R-58 (sub-rule-5) of C.P.C. and not by the present Appeal. Hence, the said contention cannot be countenanced.
In view of the above, we find that the leave does not deserve to be granted and therefore not granted. The application is disposed of accordingly. However, it is observed that if any Suit is filed under O-21, Rule-58 (*sub-rule-5) of C.P.C., the rights and contentions of both sides shall remain open and the rights of either party to the proceeding shall not be prejudiced in any manner by any observation made by this Court.
In view of the order passed in Civil Application No.5697 of 2013, First Appeal (st) No. 1265 of 2013 as well as Civil Application (st) No.5483 of 2013 would not survive and shall stand disposed of accordingly.
(JAYANT PATEL, J.) (Z.K.SAIYED, J.) SAS Page 7 of 7