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2024 DIGILAW 1023 (GUJ)

Lalitkumar Madanlal Gupta v. Savitaben And Sons

2024-04-25

SANDEEP N.BHATT

body2024
ORDER : 1. The present petition is filed by the present petitioner – original plaintiff by challenging the impugned order dated 15.09.2023 passed below Exh.82 application in H.R.P. Civil Suit No.317 of 2015 by the learned Judge, Small Cause Court Ahmedabad, Court No.6, whereby the same was allowed, which was filed by the defendants and issue No.5 framed vide Exh.13 came to be deleted. 2. Brief facts of the case as per the case of the petitioner in this petition are that the respondents, namely, Gunvantbhai Raval, who was the tenant of the petitioner in respect of the property situated at Ahmedabad city, Usmanpura, Mouje Wadaj, TP Scheme No.15, Final Plot No.18, Shree Niketan Cooperative Housing Society, Sub-Plot No.2, was given on rent. Since the deceased Gunvantbhai Raval did not pay the municipal tax and other amount of rent, he became tenant in arrears and, therefore, the present petitioner has filed HRP Civil Suit No.317 of 2015 before the Small Causes Court, Ahmedabad against the present defendants on 14.5.2015. It is further the case of the petitioner in this petition are as such that originally, the suit was filed against Savitaben & Sons (Sandip Provision Raval Store), partner Gunvantbhai service. Upon summons on 30.09.2015, the written statement was filed and issues has been framed. Thereafter, the petitioner has submitted the deposition on 7.5.2016 and cross-examination of the petitioner was over on 11.1.2017. Thereafter, on 14.4.2017, said Gunvantbhai Raval passed away and on 18.7.2017, the legal heirs of deceased Gunvantbhai Raval had been brought on record, who are the defendants and respondent Nos.1/1 to 1/4 herein. The respondent No.1/1 is the widowed wife, respondent No.1/2/3 are the sons and respondent No.1/4 is married daughter. It is further the case of the petitioner in this petition are as such that after the demise of the defendant Gunvantbhai Raval and the legal heirs had been brought on record, and on 25.6.2018, the petitioner filed an application contending that two issues are to be added to the issues already framed and, therefore, an application was filed. To the aforesaid application, no reply was filed and on 25.9.2018, the same had been rejected. To the aforesaid application, no reply was filed and on 25.9.2018, the same had been rejected. It is further the case of the petitioner in this petition are as such that one of the suggested issues was already framed vide Issue No.5, and so far as the second issue which was to be re-cast according to the petitioner, it observed that there is no such averment and amendment application is preferred and, therefore, such issue cannot be framed at a particular stage. Therefore, such order dated 25.9.2018 was not challenged. In the meanwhile, the defendants filed an application vide Exh.45 and sought to produce so many new documents, which were never produced during the lifetime of deceased Gunvantbhai Raval. The petitioner objected for production of such documents which had straightway been exhibited by the court below which was the subject matter of challenge before this Court by filing SCA No.3163 of 2020, which came to be withdrawn upon the observations made by this Court vide order dated 5.2.2020. Thereafter, on 4.10.2020, further deposition of the petitioner was filed as legal heirs were joined to the proceedings and the cross-examination thereof is to commence. The examination-in-chief submitted on 4.10.2020 has been exhibited vide Exh.81. Thereafter, on 10.3.2022, the present respondents filed an application Exh.82 to struck down the Issue No.5. The said application was objected by the petitioner by filing the reply on 30.4.2022. After hearing the parties, the learned Judge, Small Cause Court Ahmedabad, Court No.6 has allowed the application Exh.82 filed by the defendants and issue No.5 framed vide Exh.13 had been deleted. Being aggrieved by and feeling dissatisfied with the order dated 15.9.2023 passed by the learned Judge, Small Cause Court Ahmedabad, Court No.6, below application Exh.82 in HRP Suit No.317 of 2015, the present petition has been preferred. 3. Heard Mr. Baiju Joshi, the learned counsel for the petitioner and Mr. Vasim Mansuri, the learned counsel for the respondents. 4.1 Mr. Baiju Joshi, the learned counsel for the petitioner, has submitted that initially, at the time of filing the written statement, the original defendant, Gunvantbhai Raval, was alive. On 14 April 2017, Gunvantbhai Raval passed away, and on 18 July 2017, his legal heirs were brought on record. Before that, the court had framed the issues, including issue No. 5. Furthermore, Mr. Joshi has pointed out that two suits are proceeding simultaneously, with issues framed accordingly. On 14 April 2017, Gunvantbhai Raval passed away, and on 18 July 2017, his legal heirs were brought on record. Before that, the court had framed the issues, including issue No. 5. Furthermore, Mr. Joshi has pointed out that two suits are proceeding simultaneously, with issues framed accordingly. He has also submitted that the examination- in-chief has been submitted. Additionally, he mentioned that the plaintiff had filed an application at Exhibit 34 to add two issues to the suit, but this request was rejected by the trial court on 25 September 2018. The examination-in-chief and cross-examination is commenced. The examination-in-chief was submitted on 4 October 2020 and is recorded at Exhibit 81. Subsequently, at Exhibit 82, the present respondents filed an application to strike down issue No. 5. 4.2 Furthermore, he has submitted that the suit is essentially based on the assertion that the original defendant had committed various defaults under the Gujarat Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the "Rent Act"). Therefore, the suit was filed to obtain vacant possession of the premises in question. He has also stated that the application filed at Exhibit 34, which sought the addition of two new issues, was rejected because issue No. 5, concerning the non-user of rented premises, had already been framed by the trial court at Exhibit 13. Therefore, the application at Exhibit 34 was rejected. Moreover, he has pointed out that the respondents had filed an application at Exhibit 82 to delete issue No. 5, which, according to him, would cause serious prejudice the rights of the present petitioner. By referring to Order XIV Rule 5 of the Civil Procedure Code (C.P.C.), he has prayed that the application to delete issue No. 5 should be denied, thereby protecting the rights of the petitioner. Hence, he has prayed to allow the present petition. 5. Per contra, Mr. Vasim Mansuri, the learned counsel for the respondents has strongly opposed the submissions made at the bar by the learned counsel for the appellant. By referring to his affidavit-in-reply, he has submitted that the deceased was running a provision store initially and thereafter, for last so many years, the premises was never used for such purpose and lying vacant. Vasim Mansuri, the learned counsel for the respondents has strongly opposed the submissions made at the bar by the learned counsel for the appellant. By referring to his affidavit-in-reply, he has submitted that the deceased was running a provision store initially and thereafter, for last so many years, the premises was never used for such purpose and lying vacant. Furthermore, he has submitted that the petitioner has already filed the suit for vacant the possession of the premises, and looking to the written statement filed by the deceased – defendant, no such contention of the petitioner is required regarding the non-using the suit premises for more than six months. Hence, by referring to Order XIV Rule 5 of the C.P.C., he has submitted that the trial court has rightly passed the order by saying that in absence of any pleading, such issue is not required to be dealt with and, therefore, he has submitted that no interference is required to be called for as neither the plaintiff nor the defendant has pleaded to this extent and issues No.5 was wrongly framed. Hence, the trail court has rightly deleted that issues and, therefore, the trial court has rightly used its discretion in proper manner by deleting that issue. Therefore, he has submitted that the present petition is required to be dismissed. 6.1 I have considered the rival submissions made at the bar. I have considered the provisions of Order XIV Rule 5 of the C.P.C., as under: “5. Power to amend and strike out, issues.—(1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed. Power to amend and strike out, issues.—(1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed. (2) The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced.” 6.2 Additionally, I have taken into account the fact that the issues were framed in Exhibit 13, where issue No. 5 is set out as follows: “Whether the plaintiff proves that the defendant not using the suit premises for more than six months immediately preceding the date of institution of the suit?” 6.3 It is true that no specific pleading is averred either in the suit or in the written statement, but at the same point of time, if we look at the record, whereby below Exh.34 application is preferred by the plaintiff for adding two issues, which are as under: “(1) Whether the plaintiff proves that this suit premises is a non-used premises? (2) Whether defendants prove that there is legal tenant of the suit premises?” The said application below Exh.34 was rejected by observing as mentioned hereinbelow in paragraph No.3 of the order of the trial court, as under: “3. On perusing the record, it appears that my learned predecessor has framed the issues at Exh.13 wherein issue no.5 is with regard to the non-user of rent premises. Therefore, it is not required to add proposed issue No.1 of the present application.” 6.4 Thereafter, the impugned application has been preferred for deletion of the said issue. On bare reading, it is found that the order passed by the trial court is found on the basis of the pleadings of the parties. However, in the present case, issues are framed at the relevant point of time, whereby issue No.5 is somehow framed. It is possible as submitted by the learned counsel for the petitioner that at the time of the filing of the suit, other suit is also filed, probably, on the basis of that the trail court has framed the issues. However, in the present case, issues are framed at the relevant point of time, whereby issue No.5 is somehow framed. It is possible as submitted by the learned counsel for the petitioner that at the time of the filing of the suit, other suit is also filed, probably, on the basis of that the trail court has framed the issues. In the peculiar facts of this case, thereafter, the plaintiff has filed another application at Exh.34 to add two issues, which is specifically rejected that issued No.5 is already there, which will take care of that issue. That order is not challenged by either of the parties. Thereafter, giving another application vide Exh.82 and allowing that application will certainly cause great prejudice to the rights and contentions of the plaintiff. Otherwise also, remaining of that issue will not cause any serious prejudice to the rights and contentions of the present respondents. Therefore, to that extent, the trial court has not properly considered the materials available on the record and committed error, which requires interference by considering the my supervisory jurisdiction under Article 227 of the Constitution of India. 7. With above observations, the present petition is allowed to the aforesaid extent. 8. The impugned order dated 15.09.2023 passed below Exh.82 application in H.R.P. Civil Suit No.317 of 2015 by the learned Judge, Small Cause Court Ahmedabad, Court No.6 is hereby quashed and set aside. 9. It is also directed that issue No.5 should also be considered during the course of trial. Accordingly, the parties are at liberty to adduce and produce evidence. However, it is clarified that this Court has not expressed any opinion regarding merits and demerits of the issue No.5. It is open for the parties to lead the evidence if it is permissible under the law and also in consonance with the materials available on the record.