Gujarat High Court
Firozhusen Taherali Delavala vs Abidali Taharali ... on 23 October, 2015
Author: A.J.Desai
Bench: A.J.Desai
C/MCA/2081/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC. CIVIL APPLICATION (FOR REVIEW) NO. 2081 of 2015
In SECOND APPEAL NO. 191 of 2014
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FIROZHUSEN TAHERALI DELAVALA....Applicant(s)
Versus
ABIDALI TAHARALI DELAVALA....Opponent(s)
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Appearance:
MR BJ TRIVEDI, ADVOCATE for the Applicant(s) No. 1
MR JT TRIVEDI, ADVOCATE for the Applicant(s) No. 1
MS JIGNASA B TRIVEDI, ADVOCATE for the Applicant(s) No. 1
MR PJ KANABAR, ADVOCATE for the Opponent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
Date : 23/10/2015
ORAL ORDER
1. By way of present application under Order 47 Rule 1 of the Code of Civil Procedure, the applicant-original plaintiff-appellant has prayed to review the judgment and order dated 25.03.2015 passed by this Court in Second Appeal No.191 of 2014, by which, this Court has dismissed the appeal filed by the present applicant-original appellant and confirmed the judgment and decree passed by the Trial Court, confirmed by the First Appellate Court.
2. Mr.J.T.Trivedi, learned advocate appearing for the applicant-original plaintiff-appellant would submit that the judgment and decree passed by the Trial Court as well as the First Appellate Court is required to be quashed and set aside itself since the Trial Court had no jurisdiction to entertain the Page 1 of 5 HC-NIC Page 1 of 5 Created On Thu Oct 29 00:16:32 IST 2015 C/MCA/2081/2015 ORDER suit and, therefore, after confirming the aforesaid order by this Court in the present Second Appeal may be revived. He would further submit that the applicant and the respondent are brothers, who claimed the tenancy rights in the disputed property and, therefore, the Trial Court ought not to have entertained the suit even though it was filed by the applicant himself. He would further submit that the Trial Court was lacking inherent jurisdiction to try and decide the suit being a civil court and only the judge, who had jurisdiction to try and decide in the suit, should have decided, empowered under the provisions of Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act, 1947. He would further submit that the claim of the plaintiff before the Trial Court was that he had tenancy rights over the suit property since he was residing with his father in the rented premises at the time of death of his father. He would further submit that though the suit was filed under misconception by the applicant/plaintiff, the Trial Court could have returned the plaint for presenting the same before the appropriate Court.
2.1 By relying upon the decision in case of
Shantukkumar Laxmikant Sharma v. Shah
Kumudchandra Valchandbhai, reported in 1986 Volume 27 (1) GLR 232, he would submit that the legal jurisdiction needs to be decided on the basis of the averments of the plaint and when it would be noticed that the dispute relates to the determination of the tenancy rights, the Civil Court would have no jurisdiction and it would be only the Rent Court, which can exercise jurisdiction in such a case. He, therefore, submit that the order passed by this Court be recalled and the Second Appeal be listed for hearing.
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3. On the other hand Mr.P.J.Kanabar, learned advocate appearing for the opponent-original respondent- defendant would submit that the suit was filed by the present applicant-plaintiff himself before the competent Court and has prayed for declaration and permanent injunction restraining the respondent from entering into the disputed property. He would further submit that the applicant and the opponent are real brothers, who were residing in the disputed property, even subsequent to the death of their father and mother on 26.6.1990 and 23.5.1992 respectively. Both the parties of the proceedings as well as the third brother, entered into different agreements and have agreed for different type of settlement including the property in question. He would further submit that the applicant had accepted in the said agreement that the opponent was also in possession on the part of the property and for sometime he was out of the house and, therefore, he had also right over the property being the tenant of legal heirs of his father. He would further submit that there is no dispute with regard to landlord and tenant and the landlord is not made party in the suit proceedings which was filed at the instance of the applicant. He would further submit that since part of the property which was in possession of the opponent was locked by the applicant, counter claim was made for possession of the property from the original plaintiff which was decreed and, therefore, it cannot be said that there was a dispute of tenancy rights. By taking me through the plaint as well as counter claim and deposition of the plaintiff, he would submit that it is not the case of the dispute with regard to tenancy rights. He would further submit that the applicant has never raised such issue Page 3 of 5 HC-NIC Page 3 of 5 Created On Thu Oct 29 00:16:32 IST 2015 C/MCA/2081/2015 ORDER either before the trial court or before the first appellate court at the time of hearing of the second appeal and, therefore, by changing advocate, new contentions have been raised with mala-fide intention since the respondent has already filed execution proceedings before the concerned Court. By relying upon the decision in case of Bhartiya Seva Samaj Trust v. Yogeshbhai Ambalal Patel reported in (2012) 9 SCC 310, he would submit that a person cannot be permitted to take advantage of his own law. He would further submit that the applicant himself has filed suit. He has also relied upon the decision in the case of Oil and Natural Gas Corporation Limited v. Modern Construction and Company reported in (2014) 1 SCC 648. In support of his contention, he would submit that the prayer made by the applicant be rejected.
4. I have heard learned advocates appearing for the respective parties. It is not in dispute that the suit was filed by the present applicant wherein he has made prayer for declaration that he is only legal heir, who has tenancy rights and the respondent, who is opponent, who is the real brother, has no legal right over the property in question. He has also prayed for permanent injunction restraining the opponent from entering into such premises. It appears that the cause of action for filing of the suit arose when the opponent had tried to enter the premises which was locked i.e. the part of the premises for which the agreement was executed. It also appears from the issues framed by the Trial Court with regard to jurisdiction, that no contention was raised even by the respondent about the maintainability of the suit. When the suit was decreed way back in the year 2003 and when subsequent appeal was filed, no such contention was ever Page 4 of 5 HC-NIC Page 4 of 5 Created On Thu Oct 29 00:16:32 IST 2015 C/MCA/2081/2015 ORDER raised with regard to maintainability of suit, even in memo of second appeal does not disclose such contention.
5. As far as the judgment relied upon in the case of Shantukkumar Laxmikant Sharma (supra) is concerned, issues of such cases are different one and which are not applicable. As far as the judgment relied upon in case of Bhartiya Seva Samaj Trust (supra) as well as Oil and Natural Gas Corporation Limited (supra) are concerned, I am respectfully agreement with the ratio laid down by the Hon'ble the Apex Court. Hence, considering the overall facts and circumstances of the case, I am of the opinion that the application is meritless and the same is, accordingly, dismissed. Notice is discharged.
6. Since the decree passed in favour of the respondent is confirmed in the first appeal as well as in the second appeal, there is no question for staying the present order as request made by learned advocate Mr. J.T.Trivedi. Therefore, such prayer is refused.
(A.J.DESAI, J.) Ashish Tripathi Page 5 of 5 HC-NIC Page 5 of 5 Created On Thu Oct 29 00:16:32 IST 2015