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Gujarat High Court · body

2019 DIGILAW 625 (GUJ)

Ketan Anand Indrekar S/o Babubhai Indrekar v. Vishakhaben W/O Harishbhai Ishwarlal

2019-07-01

A.J.SHASTRI

body2019
ORDER : 1. Present Civil Revision Application under Section 115 of the Code of Civil Procedure is filed for the purpose of seeking following reliefs : (A) This Hon'ble Court may be pleased to quash and set aside the impugned order dated 22.03.2019 passed by learned City Civil Judge, Ahmedabad, below application at Exh.31 in Darkhast No.1074 of 2015 whereby learned Judge allowed the said application for issuance of possession of warrant, on the ground that the impugned order is exparte, arbitrary, illegal, improper, unjust, bad in law and in violation of the provisions of Order 21 Rule 35 of the Code of Civil Procedure, 1908 and suffers from patent error of law; (B) Pending hearing, admission and final disposal of this petition, this Hon'ble Court be pleased to stay the implementation and execution of the impugned order dated 22.03.2019 passed by Ld. City Civil Judge below Exh.31 in Darkhast No.1074/2015 and further be pleased to stay the further proceedings of Darkhast No.1074/2015 pending before learned City Civil Court, Ahmedabad. (C) This Hon’ble Court may be pleased to pass such other and further relief(s) as the facts and circumstances of the present case may require in the interest of justice; (D) This Hon'ble Court may be pleased to provide for the cost of this petition.” 2. The background of facts of present Civil Revision Application narrated by the petitioner in the following manner : “1. The respondent herein, is the owner of the subject property consisting of Plot No, 21 to 24 situated in Silver Jyot Cooperative Housing Society Ltd and a primary school is run by the petitioner in the said suit premises since 1999 bearing Plot No. 21 to 24. The petitioner has already paid RS.1,20,000/out of the agreed amount of Rs.3,25,000/at that time, with an intend to purchase. The petitioner is, as in today, also ready and willing to purchase the said property at today’s market price. 2. It has been contended by the petitioner that the defendant has trespassed the school premises by destroying the school toilets and bathrooms. Also, due to backtracking and retraction of the plaintiff with regards to the said deal, it was decided that he had to give the token amount back to the petitioner and the petitioner has to vacate the property, where the petitioner had already started running the primary school. 3. Also, due to backtracking and retraction of the plaintiff with regards to the said deal, it was decided that he had to give the token amount back to the petitioner and the petitioner has to vacate the property, where the petitioner had already started running the primary school. 3. The respondent has filed 2 suits against the petitioner with first suit bearing Regular Civil Suit No.2864/1996 for restraining the petitioners from making any type of construction as well as filed Regular Civil Suit No. 3140/2003 for declaration and permanent injunction along with means of profit for the usage of the property, which were allowed. 4. The Ld. Civil Judge, Ahmedabad passed a decree dated 15.02.2014 to the said Civil Suits that the petitioner has to handover the possession of the said property within 3 months from the date of order. 5. Further, the respondent was awarded means profit by the Ld. Civil Judge on 15.04.2014 for the use of property at the rate of Rs.500/per month from the year 01.06.1993 to 31.01.2014 i.e Rs.1,24,000/less Rs.1,20,000/already received by the respondent. Therefore, only Rs.4,000/was entitled by the respondent as damages till the possession is handed over by the petitioner. The said Rs.4,000/has been paid by the petitioner to the respondent as per the said judgment and decree dated 15.04.2014. 6. Thereafter, the petitioner approached the Hon’ble High Court by filing First Appeal No. 1312/2014 and First Appeal No. 1313/2014 along with Civil Application No.5288/2014 and No.5289/2014 for stay against the said common judgment and decree dated 15.02.2014 passed by the Ld. Civil Judge. 7. The Hon’ble High Court (Coram: Harsha Devani, J.) has passed common oral order dated 23.12.2014 where both the said First Appeals were admitted. However, both the said Civil Applications praying for stay were rejected. 8. Thereafter, the respondents filed Darkhast No. 1074/2015 before the Court of Ld. City Civil Judge, Ahmedabad for execution of the above decree dated 15.02.2014 on 26.03.2015. 9. The Petitioner, meanwhile, approached the Hon’ble Supreme Court by filing Special Leave to Appeal No. 8758/2015 and No. 8759/2015 challenging the impugned orders passed by the Hon’ble High Court in the Civil Applications No. 5288/2014 and No.5289/2014, which were later dismissed vide order dated 30.03.2015.” 3. 9. The Petitioner, meanwhile, approached the Hon’ble Supreme Court by filing Special Leave to Appeal No. 8758/2015 and No. 8759/2015 challenging the impugned orders passed by the Hon’ble High Court in the Civil Applications No. 5288/2014 and No.5289/2014, which were later dismissed vide order dated 30.03.2015.” 3. In the background of aforesaid facts, the respondent submitted an application in June, 2015 for seeking peaceful and vacant possession of suit property and also sought possession warrant vide application dated 22.3.2019. The learned Judge, in exercise of power under Order 21, passed an order which is made the subject matter of present Civil Revision Application. 4. The main plank of argument is that the impugned order was passed on an application which was said to have not been served either upon the petitioner himself or his lawyer and while passing the impugned order, on the very same day no opportunity was given to the petitioner and as such, while passing the impugned order, there appears to be a flagrant violation of principles of natural justice. Based upon such specific assertion, this Court on 11.4.2019 was pleased to pass the following order : “Heard learned advocate appearing for the petitioner. In view of the categorical assertion made on oath contained in para 9 on internal page F of the petition, notice returnable on 30th April, 2019. In the meantime, status quo as on date be maintained qua the suit property, till the returnable date.” 5. Subsequently, upon service of the process of this Court, on behalf of contesting respondent, Mr.Dhaval Vyas, learned advocate, has appeared and candidly submitted that the prime contention which has been made sounds confidence and the opportunity was not given. But, the learned advocate has tried to resist on the ground that there is a systematic attempt made to defer such eventuality. However, be that as it may, learned advocate, has upon aforesaid background of fact and on violation of principles of natural justice, left the matter to the discretion of the Court. 6. But, the learned advocate has tried to resist on the ground that there is a systematic attempt made to defer such eventuality. However, be that as it may, learned advocate, has upon aforesaid background of fact and on violation of principles of natural justice, left the matter to the discretion of the Court. 6. Hence, with broad consensus, the present Civil Revision Application is disposed of on following lines: (1) The impugned order dated 22.3.2019 passed below Exh.31 in Darkhast No.1074 of 2015 is hereby quashed and set aside, with a consequential direction upon the petitioner to present himself before the learned Judge in the court below and request to take up the hearing of Exh.31 application for its fresh consideration. (2) The parties are at liberty to approach the court concerned preferably in the last week of July, 2019, with a request to take up the hearing of Exh.31 application which is submitted by the contesting respondent. (3) As and when such approach is made, the learned Judge is requested to hear and dispose of the application Exh.31, as referred to above, on its own merit, after giving proper opportunity to both the sides and after hearing the present petitioner, fresh order be passed in accordance with law, by assigning cogent reasons. (4) Since this remand is made on account of non-granting of opportunity, the Court has not expressed any opinion on merit on such application and it is independently left it open to the learned Judge to pass suitable order in the interest of justice. (5) This order is passed upon broad consensus of the parties to the proceedings and on a peculiar background of fact, without treating the same as precedent, keeping in view the circumstances the learned Judge is requested to pass suitable orders at the earliest. 7. With these observations and directions, present Civil Revision Application stands allowed, with no order as to costs.