Gujarat High Court
Lh Of Late Ratilal Jivraj Shah, Prop. Of ... vs Sushilaben Shankarbhai Thacker on 14 February, 2025
NEUTRAL CITATION
C/SA/409/2024 ORDER DATED: 14/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 409 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/SECOND APPEAL NO. 409 of 2024
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LH OF LATE RATILAL JIVRAJ SHAH, PROP. OF M/S. HARSHADKUMAR
RATILAL SHAH & ORS.
Versus
SUSHILABEN SHANKARBHAI THACKER & ANR.
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Appearance:
MR.DHAVAL VYAS, SR ADVOCATE for
MR D K.PUJ(3836) for the Appellant(s) No. 1,1.1,1.2,1.3
MR NV GANDHI(1693) for the Respondent(s) No. 1
NOTICE UNSERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 14/02/2025
ORAL ORDER
1.1 The present Second Appeal has been filed seeking prayer to quash and set aside the judgment and decree passed by the 6 th Additional District Judge, Kachchh Bhuj on 17.08.2024 in Regular Civil Appeal No.37 of 2020 confirming the judgment and decree passed by the 4th Additional Senior Civil Judge Bhuj dated 10.02.2020 in Regular Civil Suit No.455 of 2008.
1.2 The present Second Appeal is heard only on the preliminary objection raised with respect to maintainability of the Second Appeal and, therefore, the merits of the Second Appeal is neither argued nor discussed in the present order.
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2. For sake of convenience, the parties herein are referred as per their original status before the trial Court.
3.1 The brief facts stated in the appeal are to the effect that plaintiff filed Regular Civil Suit No.455 of 2008 claiming that the defendant is tenant in the premises and the said suit is filed on the ground of defendant being tenant in arrears of rent and, therefore, eviction is sought under the provisions of Section 13 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 ['the Rent Act', for short]. In the said suit the plaintiff also claimed possession of the premises from the defendant tenant on the ground that the defendant is not using suit premises and sublet suit premises to sub- tenant and that the plaintiff is entitled for physical and peaceful vacant possession of the suit premises. The plaintiff in the plaint had specifically averred that defendant had committed breach of the rent agreement and, therefore, the plaintiff is entitled for possession of the premises as there is a breach of terms of rent agreement and, therefore, under the provisions of Section 13(1)(e) of the Rent Act, the plaintiff is entitled for possession of the suit property.
3.2 After hearing the parties and after going through the oral as well as documentary evidence and after giving all the findings on the issues framed, the trial Court under the provisions of the Rent Act granted judgment and decree whereby a decree of eviction was passed and the defendant were directed to handover peaceful vacant possession of the suit property to the plaintiff.
3.3 The defendant challenged the said order by filing Regular
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NEUTRAL CITATION
C/SA/409/2024 ORDER DATED: 14/02/2025
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Civil Appeal No.37 of 2020. The said appeal was filed under the provisions of 96 of the Code of Civil Procedure, 1908 ['the Civil Procedure Code', for short]. The plaintiff, in the said Civil Appeal, had taken the objection about maintainability of the appeal under Section 96 of the Civil Procedure Code and had argued that an appeal under Section 96 of the Civil Procedure Code was not maintainable and the said proceedings had to be filed under the provisions of Section 29 of the Bombay Rent Act. The said contention having been taken by the plaintiff in Regular Civil Appeal N.37 of 2020, the defendant did not take any step either to withdraw the said appeal filed under Section 96 of the Civil Procedure Code, nor amend the appeal memo and state that the said appeal is under the provisions of Section 29(2) of the Bombay Rent Act and when the said contention was raised, the trial Court held that the appeal ought to have been filed under Section 29(2)(b) of the Bombay Rent Act, however, the Appellate Court held that the said fact would not come in way to decide the appeal on merits and ultimately the appeal filed by the defendant was rejected and the said appeal is challenged by the defendant by way of present Second Appeal.
3.4 Therefore, the preliminary objection is raised by plaintiff about the maintainability of the appeal in view of Section 29(2) of the Bombay Rent Act, which reds as under:
"29. Appeal.
(1) xxx .....
(2) [ No further appeal shall lie against any decision in
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C/SA/409/2024 ORDER DATED: 14/02/2025
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appeal under sub-section (1) but the High Court may, for the purpose of satisfying itself that any such decision in appeal was according to law, call for the case in which such decision was taken and pass such order with respect thereto as it thinks fit.] [Sub-section (2) was substituted for the original by Gujarat 18 of 1965, Section 5.] (3) .... xxx "
4.1 Mr.Dhaval Vyas, learned senior advocate for the appellant herein - original defendants has conceded to the fact that the proceedings that were filed by the plaintiff before the trial Court were under the provisions of Bombay Rent Act and has also conceded to the fact that the challenge to the said order was only by way of appeal under Section 29 of the Bombay Rent Act and, therefore, it has been argued that though the defendant has filed Second Appeal, the permission may be given to defendant herein to convert the present Second Appeal into Civil Revision Application.
4.2 It has been argued by learned senior advocate Mr.Vyas that except for the fact that in the first page of appeal memo it has been mentioned that the appeal is under the provisions of Section 96 of the Civil Procedure Code, the entire appeal does not state that the said appeal is under Section 96 of the Civil Procedure Code and not under Section 29 of the Bombay Rent Act. It has also been argued by learned senior advocate Mr.Vyas that the appellate Court has taken into consideration the said fact and as the appellate Court had also the jurisdiction to decide the appeal under Section 96 of the Civil Procedure Code so also under the provisions of Section 29 of the Bombay Rent Act, the appellate Court has specifically observed that just because the appeal is filed under Section 96 of Page 4 of 11 Uploaded by MISHRA AMIT V.(HC00187) on Mon Feb 17 2025 Downloaded on : Mon Feb 17 23:57:21 IST 2025 NEUTRAL CITATION C/SA/409/2024 ORDER DATED: 14/02/2025 undefined the Civil Procedure Code, the same would not come in the way of appellate Court in deciding the appeal on merits.
4.3 It has been argued by learned senior advocate for the defendants that it is not the case of the plaintiff that the first appellate Court, which had decided the Regular Civil Appeal No.37 of 2020, did not have jurisdiction to decide the first appeal under Section 96 of the Civil Procedure Code as the fact remains that the same Court had also jurisdiction to decide the appeal under Section 96 of the Civil Procedure Code and also an appeal under Section 29 of the Bombay Rent Act and, therefore, the appeal that has been decided by appellate Court be considered as an appeal under Section 29 of the Bombay Rent Act.
4.4 Learned senior advocate Mr.Vyas for the defendants has also argued that the parameters in deciding the appeal under Section 96 of the Civil Procedure Code and an appeal under Section 29 of the Bombay Rent Act are the same and, therefore just because it has been mentioned that the appeal is under Section 96, the same cannot withhold the rights of the appellant to file Civil Revision Application and, therefore, it has been argued that the defendants may be permitted to convert the present Second Appeal into Civil Revision Application. Reliance is placed on the decision reported in 2004 (1) GLH 736 in the case of Mahendrakumar Ramanlal Thakker, Prop. Laxmi Aluminium Ind. vs. Vanechand Morarji Desai Heir of Deed. Dhankuverben Vanechand.
4.5 Learned senior advocate for the defendants has also argued
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that reference to wrong provision would not take away jurisdiction of the Court and to substantiate this argument, learned senior advocate has relied on the decision reported in 2022 LiveLaw (SC) 54 in case of M/s. Premier Sea Foods Exim Private Ltd. vs. M/s. Caravel Shipping Services Private Limited.
4.6 Learned advocate for the defendants has also argued that the defect in nomenclature will not deprive rights of the defendants to decide the dispute and that because the wrong provision is mentioned by the defendants, it has been argued that the same would not by itself be a ground to hold the first appeal as not maintainable.
4.7 Learned senior advocate for the defendants has also argued that though in para:2.5 in the appeal memo it has been pleaded by the defendants that the appellate Court committed mistake and that the first appeal that was filed being Regular Civil Appeal No.37 of 2020, was in fact an appeal under Section 96 of the Civil Procedure Code, with respect to the said fact, learned senior advocate Mr.Vyas has stated that he concedes to the fact that the Second Appeal under Section 100 of the Civil Procedure Code was not maintainable and also the fact that the First Appeal under Section 96 of the Civil Procedure Code was also not maintainable, but the fact remains that the said point was raised before the First Appellate Court and the appellate Court had jurisdiction to decide the appeal filed either under Section 96 of the Civil Procedure Code or under the provisions of Section 29 of the Bombay Rent Act and, therefore, Court can permit conversion of Second Appeal into Civil Revision Page 6 of 11 Uploaded by MISHRA AMIT V.(HC00187) on Mon Feb 17 2025 Downloaded on : Mon Feb 17 23:57:21 IST 2025 NEUTRAL CITATION C/SA/409/2024 ORDER DATED: 14/02/2025 undefined Application.
4.8 Learned advocate for the defendants has also argued that if the First Appellate Court had come to the conclusion that the defendants ought to have filed an appeal under Section 29 of the Bombay Rent Act, the appellate Court could not have gone into merits of the case and, therefore, the order that has been passed by the first appellate Court is required to be quashed and set aside.
5.1 Per contra, learned advocate Mr.N.V.Gandhi for the plaintiffs
- respondent herein has stated that when the contention that was taken by the plaintiffs that appeal under Section 96 of the Civil Procedure Code was not maintainable was brought to the notice of defendants, the defendants could have amended his appeal memo but the defendants chose not to convert and / or amend his appeal memo and choose to proceed further on the ground that the said appeal is under Section 96 of the Civil Procedure Code. The appellate Court has also held that the appeal ought to have been filed under Section 29 of the Bombay Rent Act and the fact that defendants have also conceded to the fact that an appeal under Section 96 of the Civil Procedure Code was not maintainable and that an appeal under Section 29 of the Bombay Rent Act was the only alternative that the defendants had in challenging the order of the trial Court who was exercising powers in deciding the suit under the Bombay Rent Act, the fact remains that the appeal memo that has been filed in the present Second Appeal also states that said appeal before the First Appellate Court i.e. Regular Civil Appeal No.37 of 2020 was also under Section 96 of the Civil Page 7 of 11 Uploaded by MISHRA AMIT V.(HC00187) on Mon Feb 17 2025 Downloaded on : Mon Feb 17 23:57:21 IST 2025 NEUTRAL CITATION C/SA/409/2024 ORDER DATED: 14/02/2025 undefined Procedure Code that itself is a ground on which the present Second Appeal is required to be dismissed.
5.2 Mr.Gandhi, learned advocate for the plaintiffs has also argued the fact that the same Court had jurisdiction to decide the appeal under Section 96 of the Civil Procedure Code and an appeal under Section 29 of the Bombay Rent Act will not allow the defendants to file present Second Appeal as the said is prohibited under Law. On plain reading of the section 29 of the Bombay Rent Act, after an appeal under Section 29 of the Bombay Rent Act is decided, Section 29(2) does not provide for further appeal against the decision in an appeal and, therefore, when no appeal lies on an order under Section 29 of the Bombay Rent Act, the question of present Second Appeal does not arise.
6. Having heard learned advocates for the parties and on perusing the judgment and decree, the question that arises before this Court is that present Second Appeal is filed admittedly on a judgment and decree that has been passed under the Bombay Rent Act. Considering the fact that the appeal was maintainable only under Section 29 of the Bombay Rent Act and the said fact having been conceded by the defendants, the present Second Appeal would not lie. The fact also remains that no appeal under Section 96 of the Civil Procedure Code being maintainable challenging the judgment and decree passed under the provisions of the Rent Act and if the appeal is considered under Section 29 of the Bombay Rent Act then also the Second Appeal is not maintainable and the Page 8 of 11 Uploaded by MISHRA AMIT V.(HC00187) on Mon Feb 17 2025 Downloaded on : Mon Feb 17 23:57:21 IST 2025 NEUTRAL CITATION C/SA/409/2024 ORDER DATED: 14/02/2025 undefined Civil Revision Application is maintainable. But the fact is that the defendants are trying to challenge an order passed under Section 96 of the Civil Procedure Code by stating to convert the present Second Appeal into Civil Revision Application. The Law to that effect is that an order under Section 96 of the Civil Procedure Code can be challenged by way of Second Appeal under Section 100 of the Civil Procedure Code and the Second Appeal can be admitted if there are substantial questions of law involved and if the appeal is under Section 29 of the Bombay Rent Act then under the provisions of Section 29(2) of the Bombay Rent Act no further appeal shall lie. Therefore, in the guise of converting the present Second Appeal into Civil Revision Application, the defendant is trying to challenge the order passed under Section 96 of the Civil Procedure Code by way of Civil Revision Application, which in law is not maintainable.
7. The fact that the present defendants concede to the fact that an appeal under Section 96 of the Civil Procedure Code was not maintainable and it was only under Section 29 of the Bombay Rent Act that the defendants could have challenged the order and the fact that the defendants did not challenge the order under Section 29 of the Rent Act by way of filing an appeal itself suggests that though the defendants were aware that the suit that has been filed is filed under the Bombay Rent Act, more particularly Section 13 of the Bombay Rent Act and the defendants had an opportunity to either withdraw Regular Civil Appeal No.37 of 2020 and / or filed amendment application to consider the said appeal as an appeal under Section 29 of the Bombay Rent Act, the defendants having Page 9 of 11 Uploaded by MISHRA AMIT V.(HC00187) on Mon Feb 17 2025 Downloaded on : Mon Feb 17 23:57:21 IST 2025 NEUTRAL CITATION C/SA/409/2024 ORDER DATED: 14/02/2025 undefined not miserably failed to cure the said important aspect of the matter, and the fact that law does not provide for filing revision application challenging the said order passed under Section 96 of the Civil Procedure Code, the present Second Appeal would be required to be dismissed as being not maintainable. The argument of learned senior advocate for the defendants that Court could not have gone into merits of the appeal after it had opined that an appeal ought to have been filed under Section 29 of the Bombay Rent Act, the said argument will also of no assistance to the defendants as the said appeal was filed by the defendant himself and the said appeal has been dismissed. Therefore, the fact that first appellate Court could not have gone into merits of the case will be of no assistance to the defendants. In view of the aforesaid fact, the present Second Appeal which is filed challenging the judgment and decree of the trial Court exercising powers under the Bombay Rent Act and the same was challenged by way of an appeal under Section 96 of the Civil Procedure Code and not under Section 29 of the Bombay Rent Act, the present Second Appeal is not maintainable and is dismissed as being not maintainable. In view of dismissal of the main appeal, the connected application would not survive and it is disposed of accordingly.
(SANJEEV J.THAKER,J)
8. After pronouncement of the order, learned advocate Mr.Puj for the appellant requested the Court to stay the order so as to enable him to file necessary application. In view of the opinion of the Court when the filing of the Second Appeal itself is not Page 10 of 11 Uploaded by MISHRA AMIT V.(HC00187) on Mon Feb 17 2025 Downloaded on : Mon Feb 17 23:57:21 IST 2025 NEUTRAL CITATION C/SA/409/2024 ORDER DATED: 14/02/2025 undefined maintainable, no question would arise to grant stay of the order in the present proceedings. Request, as sought for, is, therefore, rejected.
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