Gujarat High Court

Shree Navagam Mahajan Bhatiya Trust And ... vs Ramnikgiri Vimalgiri on 7 December, 2023

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      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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     C/AO/53/2023                              ORDER DATED: 07/12/2023

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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.






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      C/AO/53/2023                                         ORDER DATED: 07/12/2023

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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.






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      C/AO/53/2023                                 ORDER DATED: 07/12/2023

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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

NEUTRAL CITATION

C/AO/53/2023 ORDER DATED: 07/12/2023

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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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     C/AO/53/2023                          ORDER DATED: 07/12/2023

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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.