Gujarat High Court
Vijay Nomichand Mistry vs Sudhirkumar Chimanlal Shah on 1 September, 2025
NEUTRAL CITATION
C/CRA/62/2016 ORDER DATED: 01/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 62 of 2016
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VIJAY NOMICHAND MISTRY & ANR.
Versus
SUDHIRKUMAR CHIMANLAL SHAH & ORS.
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Appearance:
MR KV SHELAT(834) for the Applicant(s) No. 1,2
MR LALJI R MOKARIA(3085) for the Opponent(s) No. 3,5
MR VIMAL A PUROHIT(5049) for the Opponent(s) No. 1,10,11,2,8,9
NOTICE SERVED for the Opponent(s) No.
4,6.2.1,6.2.2,6.2.3,6.2.4,6.2.5,6.3,6.4,6.5,6.6
NOTICE SERVED BY DS for the Opponent(s) No. 6.7,6.8,7
UNSERVED EXPIRED (N) for the Opponent(s) No. 6.1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 01/09/2025
ORAL ORDER
1. The present Civil Revision Application has been filed under Section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (herein after referred to as "the Rent Act") arising out of the decision of the 3rd Additional District Judge, Dahod in Execution Petition No.24 of 2007 decided on 06.02.2016.
2. For the sake of brevity and convenience, the parties are referred to as per their original status as that in the suit.
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3. The brief facts arising in the present Revision Application are that the plaintiff had filed Regular Civil Suit No.245 of 1986 for eviction on the ground of subletting i.e. Section 13 of the Rent Act that the tenant has changed the use of the property and that the defendant has an alternative accommodation.
4. The Trial Court decreed the said suit and granted eviction of the tenant from the suit property, aggrieved by the said order, the tenant filed appeal no.20 of 1997 which has been thereafter renumbered as appeal no.47 of 2004. During the pendency of the said appeal, the original tenant expired and an application was filed by his legal heirs to be brought on record in view of the fact that the original tenant had expired. The said application filed by the legal heir of the original tenant was dismissed on the ground of delay in the year 2005, aggrieved by the said order, the legal heir of the tenant filed SCA no.24884 of 2005 which was thereafter withdrawn. The legal heirs of the original tenant filed MCA no.1992 of 2007 to recall the said order and the same was also dismissed on Page 2 of 6 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 23:08:08 IST 2025 NEUTRAL CITATION C/CRA/62/2016 ORDER DATED: 01/09/2025 undefined 01.08.2007. Thereafter, the said order was challenged before the Apex Court by filing SLP No.484 of 2008 the same was also dismissed. The order passed in appeal no.20 of 1997 which was renumbered as appeal no.47 of 2004 was challenged by way of Second Appeal No.130 of 2006 which was dismissed for default the said order was challenged by filing MCA 13255 of 2006 for restoration, the same was also dismissed and execution petition no.24 of 2007 has been filed by the original landlord and by order dated 06.02.2010 the Executing Court had allowed the said application and granted possession warrant. Aggrieved by the said order, the present Civil Revision Application has been filed.
5. Learned advocate for the petitioner has mainly argued that the said execution petition no.24 of 2007 was transferred and no notice was issued to the petitioners at the time when the matter was transferred from one Court to the other. It has also been argued that on the date when the warrant was issued, neither the parties were present nor the learned advocates were present Page 3 of 6 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 23:08:08 IST 2025 NEUTRAL CITATION C/CRA/62/2016 ORDER DATED: 01/09/2025 undefined and the executing Court has issued warrant on 29.06.2007 and therefore the said order has been passed without hearing learned advocate for the petitioner and therefore the said order is required to be quashed and set aside.
6. Learned advocate for the respondent has mainly argued that from the rojkam it can be clearly established that on 29.06.2007 when the Executing Court passed an order of issuing warrant, learned advocate for the petitioner was very much present and therefore it cannot be said that at the time when the warrant was issued, the learned advocate for the petitioner was not present.
7. With respect to the contention that no notice was issued, at the time when the execution petition was transferred from one Court to the other. Learned advocate for the respondent has stated that the said transfer is on an administrative side and it is not the case that the said transfer is from one station to the other station but the same is from one Court to the other at the Page 4 of 6 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 23:08:08 IST 2025 NEUTRAL CITATION C/CRA/62/2016 ORDER DATED: 01/09/2025 undefined same station. Moreover, at the time when the matter was transferred the learned advocate for the petitioner was very much present and therefore the question of issuing notice to the petitioner does not arise and therefore the present Civil Revision Application is required to be rejected.
8. Having heard learned advocates appearing for the respective parties and having considered the proceedings before the Executing Court, the fact remains that the legal heirs who are the petitioners herein have all throughout failed in getting the judgment and decree passed in Regular Civil Suit No.245 of 1986 quashed and set aside.
9. The fact also remains that neither there is any documentary proof to suggest that the learned advocate for the petitioner was not present when the Court had issued warrant in the proceedings. Moreover, neither there is any affidavit filed by the said advocate stating that he was not present and the fact of presence is erroneously mentioned in the rojkam. One more Page 5 of 6 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 23:08:08 IST 2025 NEUTRAL CITATION C/CRA/62/2016 ORDER DATED: 01/09/2025 undefined fact is also required to be considered is that neither any obstruction has been filed before the Executing Court nor there is any obstruction raised with respect to the executing the order passed by the Trial Court for executing the judgment and decree passed in Regular Civil Suit No.245 of 1986. In view of the same the present Civil Revision Application does not require any merit and is accordingly dismissed.
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