Gujarat High Court
Sarojben Lalitbhai Avalani vs Jayeshbhai Amrutlal Brahmbhatt on 13 June, 2018
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/5498/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5498 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE BIREN VAISHNAV
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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 or any
order made thereunder ?
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SAROJBEN LALITBHAI AVALANI
Versus
JAYESHBHAI AMRUTLAL BRAHMBHATT
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Appearance:
MR DHAVAL N VAKIL(3556) for the PETITIONER(s) No. 1
MR CHINMAY M GANDHI(3979) for the RESPONDENT(s) No. 1
MR MB GANDHI(326) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 13/06/2018
ORAL JUDGMENT
1. This petition has been filed under Article 227 of the Constitution of India, challenging the order dated 04.03.2010 passed in Appeal from Order No. 30 of 2009 by the Appellate Page 1 of 5 C/SCA/5498/2010 JUDGMENT Bench of the Small Causes Court at Ahmedabad.
2. The facts in brief are as under:
2.1 The petitioner is the original defendant and landlord of the suit property. The respondent - tenant of the suit property filed HRP Suit No. 377 of 2009 in the Court of Small Causes at Ahmedabad. In the aforesaid suit, he filed application Ex. 6 praying that pending the suit, the respondent therein - landlord - petitioner herein be restrained from making any interference or evicting him from the marginal land to the suit property. It was his case that since the land was appurtenant to the suit property of which also he was the tenant and had succeeded in a suit filed by the landlord being HRP Suit No. 36 of 1991 and also had succeeded as a plaintiff by which he awas protected to enjoy the peaceful possession, the trial Court ought to restrain the respondent tenant from dispossessing him from the marginal land appurtenant to the said premises which was the subject matter of the present suit.
2.2 Application below Ex. 6 so filed by the original plaintiff -
respondent herein was rejected by the learned trial judge by order dated 15.06.2009 on the ground that the marginal land which was the subject matter of the suit was not part of the tenancy rights. Being aggrieved by the order dated 15.06.2009, the original plaintiff - respondent herein filed appeal before the Division Bench of the Small Causes Court which by the impugned order set aside the order of the trial Court and directed that both the parties to the appeal maintain status quo till the final disposal of the suit being Page 2 of 5 C/SCA/5498/2010 JUDGMENT HRP Suit No. 377 of 2009 and also Civil Suit No. 5373 of 1999 filed by the present petitioner before the City Civil Court alleging that the tenant has trespassed the property.
3. Both the learned advocates for the respective parties have argued at length.
4. Mr. Dhaval Vakil, learned advocate appearing on behalf of the petitioner submitted that the trial Court was right in its finding that the marginal land was never part of the tenancy in favour of the respondent - original plaintiff. The appellate Court, therefore, ought not to have reversed the order directing the parties to maintain status quo.
5. Mr. Chinmay Gandhi, learned advocate appearing on behalf of the respondent - original plaintiff in the suit has taken me extensively through the affidavit-in-reply suggesting that once HRP Suit No. 1709 of 1995 filed by the tenant was decided in his favour and his possession was protected and that in an eviction suit, being HRP Suit No. 36 of 1991 when the respondent - original plaintiff had lost in the eviction decree, the learned Appellate Judge committed no error in directing the parties to maintain status-quo.
6. Be it noted that by an interim order dated 06.05.2010, this Court had passed the following order:
"1. Leave to amend.
2. Heard learned Advocate Mr. D.N.Vakil for the petitioner. Learned Advocate invited attention of the Court to the discussion in the impugned judgment and order dated 04.03.2010 passed by Page 3 of 5 C/SCA/5498/2010 JUDGMENT the Division Bench of the Small Cause Court, Ahmedabad. The Division Bench of the Small Cause Court has allowed the Appeal from Order and set aside the order passed by the learned Single Judge of the Small Cause Court. The Division Bench has also directed that status quo should continue till the final disposal of the present suit H.R.P. Suit No.377 of 2009 and/or the final hearing of Civil Suit No. 5373 of 1999 filed by the present petitioner respondent landlady, whichever may decide earlier.
3. Having perused the discussion made by the Division Bench of the Small Cause Court, this Court is of the opinion that the matter requires consideration. Hence, Rule.
4. Notice as to interim relief returnable on 29th June, 2010.
5. Ad interim relief in terms of para 9(B). Direct service permitted."
6.1 By virtue of the aforesaid order, the order of the learned Appellate Court is stayed. It needs to be noted that the order impugned before this Court is an order in an appeal against the order below Ex. 6. HRP Suit No. 377 of 2009 filed by the respondent herein is at large before the Small Causes Court at Ahmedabad in which the respondent as a plaintiff has prayed that he may not be evicted from the marginal land to the suit property. Similarly, the petitioner is the plaintiff in a civil suit filed by him being Civil Suit No. 5373 of 1999 pending before the City Civil Court at Ahmedabad against the present respondent on the ground of trespass. Decision on merits either way in the present proceedings could result in influencing the outcome of these suits and also considering the passage of time of almost 19 years after filing of the civil suit, I am of the opinion that interest of justice would be Page 4 of 5 C/SCA/5498/2010 JUDGMENT served if the interim order that is passed by this Court on 06.05.2010 is continued to operate with a direction that the Civil Suit No. 5373 of 1999 and HRP Suit No. 377 of 2009 pending before the concerned courts are decided as expeditiously as possible preferably within a period of one year from the date of receipt of the writ of the order of this Court.
7. For the foregoing reasons, the City Civil Court, Ahmedabad and Small Causes Court, Ahmedabad are directed to hear and decide Civil Suit No. 5373 of 1999 and HRP Suit No. 377 of 2009 respectively pending before them as expeditiously as possible preferably within a period of one year from the date of receipt of the writ of the order of this Court. Till the final decision of the suits, the interim order dated 06.05.2010 passed by this Court in the present petition shall operate. Petition stands disposed of accordingly. Rule is made absolute accordingly.
(BIREN VAISHNAV, J) DIVYA Page 5 of 5