Gujarat High Court
Jaykumar Indubhai Patel vs Partner Of K Vadilal And Company ... on 21 January, 2025
NEUTRAL CITATION
C/SCA/201/2025 ORDER DATED: 21/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 201 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 227 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 329 of 2025
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JAYKUMAR INDUBHAI PATEL & ORS.
Versus
PARTNER OF K VADILAL AND COMPANY ,VADILAL VITHHALDAS SINCE
DEAD THU HIS LH DILIPBHAI VADILAL BHATT & ORS.
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Appearance:
MR NV GANDHI(1693) for the Petitioner(s) No. 1,2,3,4
MR VIRENDRA R PATEL(3681) for the Petitioner(s) No. 1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 21/01/2025
COMMON ORAL ORDER
1. On these petitions are arising out of different for rent suit proceedings but there is a common question involved in all these petitions, under request of learned advocate Mr. N. V. Gandhi for the petitioners, taken up for hearing together.
2. At the outset, learned advocate has tendered an additional affidavit in the respective petitions on 18.01.2025 contending the copy of the depositions of the plaintiffs and Rozakam of each suit. The affidavit with supporting Annexure document is taken Page 1 of 6 Uploaded by Vikramsinh Amarsinh(HCW0055) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:27:49 IST 2025 NEUTRAL CITATION C/SCA/201/2025 ORDER DATED: 21/01/2025 undefined on record in each case. Learned advocate Mr. Gandhi appearing for the petitioners would submit that at the relevant point of time, due to non-presence of the learned advocate of the petitioners and due to Covid-19 situation which has severely disrupted functioning of the Court, petitioners could not attain the suit proceedings which are filed by respondent No.1 to recover the suit property in question from the petitioner and other co-respondent of the present petition. Such suits were filed before learned Small Causes Court, Ahmedabad on various grounds. As the petitioners could not remain present before learned Trial Court, suit proceeded ex-parte and eventually decrees of evictions were passed in respective cases.
3. Learned advocate Mr. Gandhi for the petitioners would submit that initially, the petitioners have contested the suit by filing necessary application under Order 7 Rule 11 of Civil Procedure Code but unfortunately, they could not succeed in such application. The petitioners were advised by the lawyer who unfortunately died in the Covid-19 that as and when the presence of the petitioners require, they will be called. So, petitioners under bona-fide impression that as and when the advocate Page 2 of 6 Uploaded by Vikramsinh Amarsinh(HCW0055) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:27:49 IST 2025 NEUTRAL CITATION C/SCA/201/2025 ORDER DATED: 21/01/2025 undefined concerned will call them to appear in the suit, thereafter they will have to appear in the suit.
4. Learned advocate Mr. Gandhi appearing for the petitioners has further submitted that even if there is no written statement is filed by the petitioners but reading the basic document i.e. lease agreement which is sought to be placed reliance upon by the plaintiffs while maintaining the suit before the Small Causes Court, Ahmedabad, prima-facie, according to his submission, such suit itself is not maintainable before Small Causes Court, Ahmedabad that too without joining Kalpnabhoomi Estate as the respective defendant No.1 of respective suits are the lessee of that Kalpnabhoomi Estate which is the firm is never joined in the suit.
5. He would request this Court that if this Court is not inclined to accept the prayers made in the petition, a liberty may be reserved in favour of the petitioners to file an appropriate appeal under Section 29 of Bombay Rents and Lodging House Rates Control Act, 1947 before learned Bench of Small Causes Court, Ahmedabad whereby the petitioners can argue on merits as grounds to be considered while adjudicating an application under Page 3 of 6 Uploaded by Vikramsinh Amarsinh(HCW0055) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:27:49 IST 2025 NEUTRAL CITATION C/SCA/201/2025 ORDER DATED: 21/01/2025 undefined Order 9 Rule 13 are different than scope and power of the appeal which is a substantive right of a litigant to be explored. He would further submit that learned Trial Court having convinced with the explanation tendered in the delay application at the time of the filing of the Restoration Appliction under Order 9 Rule 13 thereby pleased to condone the delay. So, he would request that time consumed in pursuing in the alternative legal remedy available to the petitioners under Order 9 Rule 13 may be given a set of and or something may be observed by this Court thereby and hyper technical approach may not be taken by learned Bench of Small Causes Court, Ahmedabad, when the appeal will be presented.
6. With the aforesaid submissions and under the instructions of his client, at this stage, learned advocate Mr. Gandhi would not press present petitions with a liberty to file an appropriate statutory appeal challenging the original judgment and decree of eviction passed by the Small Causes Court, Ahmedabad in the respective suits before learned Bench of Small Causes Court, Ahmedabad under Section 29 of Bombay Rents and Lodging House Rates Control Act, 1947.
Page 4 of 6 Uploaded by Vikramsinh Amarsinh(HCW0055) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:27:49 IST 2025 NEUTRAL CITATION C/SCA/201/2025 ORDER DATED: 21/01/2025 undefined
7. Considering the aforesaid aspects of the matter and the request made by the petitioners not to pursue the present petitions, at this stage, thereby to avail an alternative efficacious remedy of filing statutory appeal before learned Bench of Small Causes Court, Ahmedabad is required to be accepted. In the light of the fact that when the petitioners have preferred restoration application under Order 9 Rule 13 before learned Trial Court - learned Small Causes Court, Ahmedabad wherein there was delay in filing such application was already condoned by learned Trial Court concerned. So, if the petitioners will file the statutory appeal which they are intended to file before learned Bench of Small Causes Court, Ahmedabad within 4 weeks from today and there is delay application which may be filed in such appeal, learned Bench of Small Causes Court, Ahmedabad is requested to consider the entire set of events including the fact that petitioners have bona-fide a pursue the remedy of restoration under Order 9 Rule 13 wherein time was consumed which may be factor in while adjudicating the delay application which may be filed in the appeal. At this stage, this Court only requests learned Bench of Small Causes Court, Ahmedabad to consider such delay application sympathetically in light of the fact that decree of Page 5 of 6 Uploaded by Vikramsinh Amarsinh(HCW0055) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:27:49 IST 2025 NEUTRAL CITATION C/SCA/201/2025 ORDER DATED: 21/01/2025 undefined eviction was passed in Covid-19 period.
8. With the aforesaid facts, circumstances, observations and directions, the present petitions are disposed of as withdrawn at this stage. It is made clear that this Court has neither gone into the merits nor examined the claim of the petitioners which may be independently examined by learned Appellate Court in accordance with law. No order as to costs.
(MAULIK J.SHELAT,J) Vikramsinh Amarsinh Page 6 of 6 Uploaded by Vikramsinh Amarsinh(HCW0055) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:27:49 IST 2025