Gujarat High Court
Shree Navagam Mahajan Bhatiya Trust And ... vs Ramnikgiri Vimalgiri on 7 December, 2023
NEUTRAL CITATION
C/AO/53/2023 ORDER DATED: 07/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 53 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/APPEAL FROM ORDER NO. 53 of 2023
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SHREE NAVAGAM MAHAJAN BHATIYA TRUST AND TRUSTEES
Versus
RAMNIKGIRI VIMALGIRI
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Appearance:
MR BHAVESH P TRIVEDI(2731) for the Appellant(s) No. 1,2,3,4,5
MR RR TRIVEDI(941) for the Appellant(s) No. 1,2,3,4,5
for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 07/12/2023
ORAL ORDER
1. Heard learned advocate Mr.Bhavesh Trivedi for the appellants.
2. By way of this Appeal From Order, the appellants have challenged the judgment and decree dated 07.05.2021 passed by the learned 4th Additional District Judge, Gondal in Regular Civil Appeal No.25 of 2012, whereby the Regular Civil Suit No.229 of 2001 remanded back and the judgment and decree passed by the learned 2 nd Joint Civil Judge (J.D.) in the said suit was quashed and set aside.
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3. Learned advocate for the appellants has submitted that the present appellants had filed Regular Civil Suit No.229 of 2001 before the learned 2nd Joint Civil Judge (J.D.), Gondal for the possession of the suit property on the ground of arrears of rent. It is submitted that the original defendant was duly served by affixing the notice/summons on the conspicuous part of the suit property and thereby the suit was proceeded and decree for possession passed by the learned 2 nd Joint Civil Judge (J.D.), Gondal on 14.08.2002, whereby the defendant was directed to pay arrears of rent with 9% interest and also further directed to handover the actual peaceful vacant possession of the suit property. The said judgment and decree was assailed before the learned District Judge, Gondal by the tenant - original defendant. The learned District Court, partly allowed the Regular Civil Appeal No.25 of 2012 and the judgment and decree dated 14.08.2002 was quashed and set aside and the suit was remanded back for its fresh trial on 07.05.2021. Against the said order, the present appellants are before this Court.
Page 2 of 7 Downloaded on : Mon Dec 11 20:37:13 IST 2023 NEUTRAL CITATION C/AO/53/2023 ORDER DATED: 07/12/2023 undefined 3.1 The submission of the learned advocate for the appellants is that the learned District Court instead of
remanding the suit could have confirmed the decree passed by the learned trial Court on the ground that since the respondents i.e. original appellants had admitted in the appeal memo, more particularly, in para 8 & 9 that the tenant is in arrears of rent. On such admission, the decree could have been confirmed by the appellate Court.
3.2 It is further submitted that the Notice under Section 12(2) which was given by the present appellants to the present respondent, was refused. Thereafter, Regular Suit was filed for possession and arrears of rent, which came to be rightly decreed by the learned trial Court. It is further submitted that the respondent herein has neither tendered the arrears of rent nor shown any willingness to deposit the arrears of rent. It is further submitted that there is no dispute with regard to the non-service of summons/notice of the Regular Civil Suit Number 229 of 2001 to the original defendant.
Page 3 of 7 Downloaded on : Mon Dec 11 20:37:13 IST 2023 NEUTRAL CITATION C/AO/53/2023 ORDER DATED: 07/12/2023 undefined 3.3 The further submission of the learned advocate for
the appellants is that the learned District Court has committed an error of law by remanding back the Regular Civil Suit. Since the suit is filed in the year 2001 and after about 21 years, the said suit came to be remanded back, no fruitful purpose would be served in remanding the Regular Civil Suit No.229 of 2001.
4. This Court has considered the submissions of learned advocate for the appellants and perused the documents produced on record. The Regular Civil Suit No.229 of 2001 was filed by the present appellants against the present respondent on the ground of arrears of rent. Notice was served to the respondent under Section 12(2) of the Bombay Rent Control Act, which was refused by the tenant. Thereafter, the said suit was filed for possession of the suit property. The learned District Court has observed from the Rojkam of the trial Court of Regular Civil Suit No.229 of 2001 that there is nothing on record to show that the defendant has refused the Page 4 of 7 Downloaded on : Mon Dec 11 20:37:13 IST 2023 NEUTRAL CITATION C/AO/53/2023 ORDER DATED: 07/12/2023 undefined said notice/summons and there is no endorsement of Baliff and the summons of the Court is not exhibited. The learned District Court has considered the judicial note placed on record and from that it was found by the learned District Court that the summons of the Regular Civil Suit was attempted to be served. However, the defendant-tenant was not available at the suit property and the summon was affixed on the conspicuous part of the property.
The findings of the learned District Court is that there is no evidence on record to show that the summons of the suit was affixed from the conspicuous part of the suit property and there is no Affidavit of the concerned Bailiff to that effect. The learned District Court has observed that the copy of summons is also not on record to show that the summons of the suit was served on the conspicuous part of the suit property and there is no mentioned about the such facts of Rojkam. It is also observed by the learned District Court that the Bailiff was also not examined by the plaintiffs as contemplated under Order 5 Rule 19 of the Code of Civil Procedure.
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5. In view of the above factual aspect of the matter, the learned District Court has rightly remanded back the Regular Civil Suit No.229 of 2001 on the ground of absence of proof of service of summons, more particularly, by affixing on the conspicuous part of the suit property. The judgment and order passed by the learned District Court is nothing but to meet the ends of justice and further has given a fair chance to the defendant to represent himself before the trial Court. The learned District Court has not committed any illegality in partly allowing the Regular Appeal No.25 of 2012 and remanding back the proceedings of Regular Civil Suit No.229 of 2001.
6. During the course of submission, learned advocate for the appellants has also submitted that after the order dated 07.05.2021, the proceedings have not been commenced.
7. In view of this submission, and in view of the fact that the suit is of the year 2001, the learned trial Court is directed to hear the suit and decide finally, as expeditiously as Page 6 of 7 Downloaded on : Mon Dec 11 20:37:13 IST 2023 NEUTRAL CITATION C/AO/53/2023 ORDER DATED: 07/12/2023 undefined possible, preferably within a period of 6 months from the date of receipt of the order, in accordance with law, and evidence produced on record, without being influenced of the observations made hereinabove, by this Court. Both the parties shall Co-operate for effective disposal. No fresh Notice of Remand to be issued to the parties. Both the parties are directed to Co-operate learned trial Court for expeditious disposal of suit. The learned trial Court shall not be influenced by the observations made by this Court. Learned trial Court shall decide the Regular Civil Suit No.229 of 2001 on its merits.
8. With these observations and directions, the present Appeal From Order stands dismissed.
ORDER IN CIVIL APPLICATION (FOR STAY) NO. 1 of 2021 In view of the order passed in the main matter, the present Civil Application (For Stay) No.1 of 2021, does not survive and stands disposed of accordingly.
(D. M. DESAI,J) MANOJ Page 7 of 7 Downloaded on : Mon Dec 11 20:37:13 IST 2023