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
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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
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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
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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.
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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
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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
