KULSUM ABDUL LATIF GODIL v. AMNABEN WD/o. ABDUL GAFAR VALI MOHAMED MEMON
1997-10-24
S.K.KESHOTE
body1997
DigiLaw.ai
S. K. KESHOTE, J. ( 1 ) THE applicants, by this Misc. Civil Application have prayed for setting aside the order dated 19th September 1995 passed in Civil Revision Application No. 1447 of 1982. Second prayer has been made for restoration of that Civil Revision Application to file. The applicants have thirdly prayed for bringing on record the applicants as heirs and legal representatives of the petitioner Memon Mohmed Yunus Abdul Latif Godil. Fourth prayer has been made for bringing on record, the opponents herein as heirs and legal representatives of deceased respondent, original landlord, Memon Abdul Gafar Valimohmed. ( 2 ) IN this application, the applicants have not given the date on which the original landlord - Memon Abdul Gafar Valimohmad has expired. However, it is stated that he expired during the pendency of the CRA. The sole petitioner-tenant Memon Mohmed Yunus Abdul Latif Godil has expired on 22. 12. 86. ( 3 ) THE plaintiff-landlord-respondent sued the defendant-tenant-petitioner for recovery of possession of suit premises. The eviction of tenant, the petitioner-defendant in the revision application was sought on the ground of default in payment of rent. The learned trial Court decreed the suit vide its judgment decree dated 11. 4. 80. The appeal preferred against the said decision came to be dismissed by the appellate Court under its judgment dated 31. 7. 82. The defendant-tenant-petitioner challenged those decisions of the Courts below in CRA No. 1447 of 1982. In the said CRA arguments were heard in part on 14th September 1995. On the request of learned counsel for petitioner, the matter has been adjourned to 18th September 1995 for completion of arguments. On 18th September 1995, neither the petitioner nor his counsel as well as the counsel for respondents were present and as such, this Court has passed its verdict in the matter. The revision application has been dismissed on 18th September 1995. Hence this MCA. ( 4 ) MR. M. H. BAREJIA, learned counsel for the applicants contended that the order of this Court dated 18th September 1995 came to their notice for the first time on 24th February 1997 through their local advocate Mr. Mohmed Amin Khalifa and then they filed this MCA.
Hence this MCA. ( 4 ) MR. M. H. BAREJIA, learned counsel for the applicants contended that the order of this Court dated 18th September 1995 came to their notice for the first time on 24th February 1997 through their local advocate Mr. Mohmed Amin Khalifa and then they filed this MCA. It has next been contended that as the judgment has been given by this Court against the dead perons, i. e. the petitioner and respondents, it is a nullity and it has to be set aside. Lastly, the learned counsel for the petitioner-applicants contended that right of contesting the revision application has been denied to the applicants though they were heirs and legal representative of deceased tenant as they were not brought on record. ( 5 ) ON the other hand, the learned counsel for respondents Mr. P. V. Hathi contended that the petitioner has not come come up with clean hands before this Court. It is incorrect to say on the part of the applicants that on the death of tenant in the CRA, his heirs and legal representatives were not brought on record. The heirs and legal representatives of deceased tenant petitioner filed Civil Application No. 1319 of 1987 in that CRA to bring them on record. This Civil Application has been granted by this Court on 12. 10. 92. It has further been stated that the aforesaid CA has been filed by the very advocate who was appearing for the tenant in that CRA. A copy of this application has been produced on record of this MCA. In view of this fact, it is incorrect to say on the part of the applicants that without bringing on record the heirs and legal representatives of deceased defendant-petitioner, CRA has been decided. It has next been contended that it is the duty of petitioner-tenant to bring on record the heirs and legal representatives of the plaintiff-landlord-respondent in the CRA and in case those have not been brought on record in time, it will not favour to them but it goes against them. This CRA otherwise abates and it could have been dismissed only on the ground of having been abated for want of heirs and legal representatives of the landlord brought on record.
This CRA otherwise abates and it could have been dismissed only on the ground of having been abated for want of heirs and legal representatives of the landlord brought on record. Even if the provisions of Civil Procedure Code are not applicable to the revision applications, then too when the right to proceed against the landlord-tenant survives to legal heirs and representatives, then they have to be brought on record within reasonable time. The applicants have very conveniently not given the date on which the landlord has expired. However, it is to be noted here that the respondent-opponents No. 7 has also not given the date of death of respondent-landlord. Lastly, it is contended that the heirs and legal representatives of the tenant have already left the premises and they are residing elsewhere. The applicants herein are also not residing in the suit premises. This application has been filed with an ulterior motive. ( 6 ) I have given my thoughtful considerations to the submissions made by learned counsel for the parties. ( 7 ) THE fact that the heirs and legal representatives of the petitioner-tenant-defendant in CRA have filed the CA No. 1319 of 1987 before this Court for bringing them on record has not been disputed by the learned counsel for the applicant. The learned counsel for opponent No. 7 has also filed a copy of the said application which has not been disputed by the applicants. It is also not disputed that this CA has been granted by this Court on 12. 10. 92. The applicants have also not disputed that fact that the said CA has been filed by the very counsel who was appearing for the main petitioner in CRA. The applicants No. 1, 2 and 3 were parties applicants therein. The widow of defendant has only been impleaded as party. So that application has been filed by the persons other than the widow and sons and daughters of Mohmed Yunus. Except one, all other applicant herein were party to the CA. The applicants herein have deliberately and wilfully concealed this material fact from this Court. This Court has decided the CRA on merits and dismissed the same. It is not the case where their counsel was not heard. In fact, their counsel has been heard.
Except one, all other applicant herein were party to the CA. The applicants herein have deliberately and wilfully concealed this material fact from this Court. This Court has decided the CRA on merits and dismissed the same. It is not the case where their counsel was not heard. In fact, their counsel has been heard. He argued the matter, but sought time for making further submissions and on next date he has not turned up. In these circumstances, this Court has decided the matter on merits. This MCA firstly deserves to be dismissed only on the ground of concealment of material facts by the petitioners. A person who approaches this Court with a prayer for exercising its discretionary powers in his favour should come before this Court with clean hands. He has to disclose all the facts and material to the point in issue candidly and fairly. That has not been done in the present case. On the contrary, it is a case where the applicants tried to deceive this Court by concealing this material fact. The application for substitution of heirs and legal representatives of deceased petitioner in CRA has not only been filed and allowed, but still they have come up with the case that they have not been brought on record and this Court has given decision against the dead persons. The very foundation of this application that a decision has been given by this Court against dead persons, i. e. petitioner-tenant has no basis. This foundational ground is based on a fact which is totally incorrect. So, it is not the case where the Court has given decision against the dead person. However, I do not consider it necessary in the present case to decide the question whether the provisions of Civil Procedure Code, 1973, are applicable to the revision application filed by the parties before this Court under Section 29 of the Act 1948 or not. It is a case where the applicants, in the CRA have not brought on record the heirs and legal representatives of respondent-landlord. In the absence of heirs and legal representatives of landlord, decision has been given and a ground that decision has been given against a dead person would have been available to his heirs and legal representatives.
It is a case where the applicants, in the CRA have not brought on record the heirs and legal representatives of respondent-landlord. In the absence of heirs and legal representatives of landlord, decision has been given and a ground that decision has been given against a dead person would have been available to his heirs and legal representatives. Otherwise also, the matter has been decided on merits and this Court has not found any illegality in the judgments passed by the trial Court. This order has been passed in exercise of its revisional powers under Section 29 of the said Act. Taking into consideration the totality of the facts of this case, I do not find any ground to allow this MCA. The MCA is dismissed. The applicants have deliberately and willfully concealed the material fact from this Court and as such, I consider it to be a fit case where exemplary costs should be imposed on them. Order accordingly. The applicants are directed to pay Rs. 2,000. 00 by way of costs of this MCA to the opponent No. 7. .