Jitendrabhai Dasrathbhai Patel vs Gautambhai Ishwarbhai Thakor
2021 Latest Caselaw 9720 Guj

     C/CRA/148/2020                                     ORDER DATED: 28/07/2021


           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CIVIL REVISION APPLICATION NO. 148 of 2020
                                 With
              CIVIL APPLICATION (FOR STAY) NO. 2 of 2021
            In R/CIVIL REVISION APPLICATION NO. 148 of 2020
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                      JITENDRABHAI DASRATHBHAI PATEL
                                   Versus
                      GAUTAMBHAI ISHWARBHAI THAKOR
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Appearance:
MR MEHUL SHAH, SR. ADVOCATE WITH MR ARPIT P PATEL(5497) for
the Applicant(s) No. 1
MR MANISH S SHAH(5859) for the Opponent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA

                               Date : 28/07/2021

                                  ORAL ORDER

Heard learned senior advocate Mr.Mehul S. Shah with learned advocate Mr.Arpit Patel for the applicant and learned advocate Mr.Manish Shah for the respondent.

2. What s prayed in this Revision Application is to set aside the findings recorded in judgment and order dated 20th July, 2020, more particularly paragraph Nos.6 and 7, by which the Small Causes Court No.2, Ahmedabad in Civil Miscellaneous Application No.37 of 2020. It is further prayed to direct the Small Causes Court to add and modify the order in light of the compromise purshis. Alternate prayer is made to remand the case to the Small Causes Court to decide PSRP Application No.34 of 2013 after giving opportunity to the parties.

3. The case of the applicant is that the property identified as Narandas Mukhi's Chawl

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situated at Final Plot No.108 of Town Planning Scheme No.2 at Raj-Hirpur, Kakaria, Ahmedabad which is to be kachcha hut bearing Municipal Tenement No.038084500010088U given to the respondent by the grandfather of the applicant for permissive use. Subsequently, as the applicant wanted to develop the property and did not want to continue the permissive use by the other side, he requested the respondent to handover the vacant possession of the premises by issuing notice dated 29th March, 2013.

3.1 As the respondent did not respond and gave vague reply, the applicant filed application nomenclatured as PSRP No.34 of 2013 on 09th May, 2013 under the provision of Section 41 of the Presidency Small Causes Courts Act praying for issuance of possession warrant. During the pendency of the said proceedings, the parties arrived at amicable settlement. The respondent showed willingness to handover the possession and the applicant agreed to provide him the residence on ownership basis to be constructed on the same place by the developer. The settlement was admitted by the respondent and came to be produced by joint settlement purshis (Exh.24) before the Court.

3.2 Pursuant to the settlement purshis, main PSRP application sought to be withdrawn. Below the said PSRP application, the Court recorded order on 30th November, 2018 that, "The parties and their learned advocates are present. They have admitted above facts and stated that they have made

C/CRA/148/2020 ORDER DATED: 28/07/2021

compromise. Hence, it is recorded.". Another order came to be passed on the same day, reading as under.

"In view of withdrawal pursis Exh.24 the parties and their learned advocates have stated that they have made compromise in the matter. Therefore, this P.S.R.P. Application is disposed off accordingly."

3.3 It appears that in view of the aforesaid orders, Civil Miscellaneous Application came to be filed by the applicant under Sections 152 and 153 of the Code of Civil Procedure, 1908 against the respondent to get the possession of the premises. In other words, applicant wanted to carrying out of the settlement terms which was entered into between the parties and which was admitted by the respondent. There is no dispute that the settlement was arrived at between the parties.

3.4 While disposing of Civil Miscellaneous Application No.37 of 2020, learned Judge, Small Causes Court, in paragraph Nos.6 and 7 of the order, made the following observations which made the applicant aggrieved to file the present Revision Application.

3.5 Paragraph Nos.6 and 7 may be extracted from the impugned order of the Small Causes Court.

"6. Further, in the Civil Miscellaneous Application, the applicant has prayed to issue the possession warrant against the opponent regarding the property of the PSRP Application, under Section-43 of the PSRP Act. Looking to the record, it appears that the PSRP Application no.34/2013 is not disposed of on merits but, it is disposed off by way of compromise purshis vide exh.24 according to the terms and conditions of the same. In that circumstances, the Section-43 of the PSRP Act would

C/CRA/148/2020 ORDER DATED: 28/07/2021

not be applicable to issue possession warrant and it cannot be issued. If any party commits breach of the terms and conditions of the compromise then Section-41 and 43 of the PSRP Act cannot be applicable. On perusing the record, the Hon'ble Court has only recorded the compromise purshis vide exh.24 and upon that terms and conditions of compromise purshis, the PSRP application no.34/2013 had been disposed off. Thus looking to the record it transpires that the PSRP application no.34/2013 is not disposed of on merits. Thus, when the matter is not disposed of on merits then the possession warrant under Section-41 and 43 of The PSRP Act cannot be issued.

7. As per Section-41 and 43, after the parties prove the facts that the opponent is permissive user then only the possession warrant can be issued. But, herein the case, the facts like the same has not been proved. But on the contrary, it appears that both the parties have made compromise as per some terms and conditions. Therefore, the issues which are required to be proved to issue possession warrant as per PSRP Act have remained undecided. Therefore, I am of the view that the relief to issue possession warrant cannot be granted."

4. It was submitted by learned senior advocate for the applicant that though the compromise purshis (Exh.24) was tendered and the Court was expected to pass order in terms of the compromise, it misdirected itself to pass order of the nature dated 30th November, 2018. The compromise purshis was treated as withdrawal purshis by the Court and main proceedings were treated as withdrawn without recording compromise as such. It was submitted that upon PSRP Application filed under Section 41 of the Presidency Small Causes Court Act, the Court ought to have passed necessary orders under Section 41, once the respondent endorsed to the purshis as having no objection if the relief of possession was granted.

4.1 On the other hand, learned advocate for the

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respondent submitted that dispute persists between the parties. However, he could not resile away from the factum that the compromise was arrived at and the other side has expressed no objection in that regard.

5. From the facts on record, it could be seen that in the proceedings of the PSRP application, parties had arrived at settlement. It was agreed thereunder that the respondent shall handover the possession of the disputed property to the applicant. The applicant had proposed to raise construction of flats on the said property through developer. It was further agreed in the settlement purshis that respondent will be entitled to have property on the ownership basis amongst the flats sought to be constructed. The terms about payment of rent to the respondent during the interregnum till the construction is completed, were also agreed upon.

5.1 When this settlement purshis (Exh.24) was placed before the Small Causes Court, it recorded as withdrawal purshis and provided in the order dated 30th November, 2018 that the parties did not want to proceed further and accordingly PSRP application was disposed of. The applicant as entitled to file Civil Miscellaneous Application under Section 41 of the Act for acting upon the settlement in light of the above order dated 30th November, 2018 which did not given effect to the settlement.

5.2 While disposing of the Civil Miscellaneous Application, the Small Causes Court recorded to

C/CRA/148/2020 ORDER DATED: 28/07/2021

observe inter alia that if any party commits breach of the terms and conditions of the compromise, then Sections 41 and 43 of the Act would not be applicable. The Small Causes Court justified its order dated 30th November, 2018 disposing of the main proceedings. It provided to observe further that only after the parties prove factum of permissive user, then only the possession warrant can be issued. However such fact was not proved, stated the Small Causes Court, in paragraph No.7.

5.3 As a result of such process of reasoning, the following operative order was passed being order under consideration.

"1 This Civil Miscellaneous Application is partly granted.

2 It is hereby ordered to remove the word "withdrawal" and in place, insert the word "compromise" in the Order dated 30.11.2018 passed below exh.1 in PSRP Application no.34/2013. It is further ordered that the sentence "they do not want to proceed the matter further" in the order passed below exh.1 in theh PSRP Application no.34/2013 be removed.

3 No order as to costs."

5.4 It can be seen that the order only provides that in place of word "withdrawal" in order dated 30th November, 2018, the word "compromise" should be inserted. The sentence "they do not want to proceed the matter further" was directed to be removed. Thus, the impugned order is manifestly not regular inasmuch as Exh.24 settlement purshis was required to be considered appropriately in the order to be part of the order but the same was not done.

C/CRA/148/2020 ORDER DATED: 28/07/2021

6. In the above view, it would be appropriate to remand the proceedings of Civil Miscellaneous Application No.37 of 2020 to the Small Causes Court concerned, Ahmedabad for passing fresh order in terms of compromise, which shall however be done by the Small Causes Court concerned after hearing both the sides. The said exercise may be completed within two months from the date of receipt of the present order.

6.1 In order that the Small Causes Court is enable to decide the proceedings afresh as above in accordance with law and on its own merits, impugned order dated 20th July, 2020 by learned Judge, Small Causes Court No.2, Ahmedabad in Civil Miscellaneous Application No.37 of 2020 is set aside.

7. The Civil Revision Application is allowed and disposed of in the aforesaid extent and in the said terms. Rule is made

ORDER IN CIVIL APPLICATION

Civil Application will not survive in view of disposal of the main Revision Application.

(N.V.ANJARIA, J) ANUP