Gujarat High Court
Ruksanabanu Mohammadhanif ... vs Gulambhai Kalubhai Khatki on 16 June, 2025
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C/SCA/7696/2025 ORDER DATED: 16/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7696 of 2025
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RUKSANABANU MOHAMMADHANIF BANGADIWALA
Versus
GULAMBHAI KALUBHAI KHATKI & ORS.
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Appearance:
MR NK MAJMUDAR(430) for the Petitioner(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 16/06/2025
ORAL ORDER
1. Heard learned Advocate Mr. N. K. Majmudar for the
petitioner.
2. The present application is filed under Article 227 of the
Constitution of India, seeking the following reliefs:
"A. Be pleased to admit / allow this Petition;
B. Be pleased to quash and set aside the order dated 23/01/2025 passed by Ld.
Small Cause Court, Vadodara, passed below Exh-90 in Small Cause Civil Suit
No. 2593 of 2018 (ANNEXURE-C) and be pleased to pass further order and be
pleased to allow the application preferred by the petitioner below Exh.90 in
Small Cause Civil Suit No. 2593 of 2018 (Annexure-B), in the interest of justice;
C. Be pleased to grant stay of proceedings in respect to the Small Cause Civil
Suit No. 2593 of 2018, pending before Ld. Small Cause Court, Vadodara,
pending admission and final hearing of the present petition; in the interest of
justice;
D. Be pleased to pass such orders as thought fit in the interest of justice."
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3. The parties will be referred to as per their original positions
before the Court.
4. The short facts of the case are as follows :
4.1 The petitioner herein is the original plaintiff who filed Small
Cause Civil Suit No. 2593 of 2018 (i.e. Rent Suit No.104/2018)
against the respondents before the Trial Court, wherein respondent
No. 1 happens to be one of the legal heirs of the original tenant,
whereas the remaining respondents are alleged to be sub-tenants
in the suit premises.
4.2 After the completion of pleadings and the framing of issues,
the plaintiff-landlord has completed his oral evidence. After the
completion of his oral evidence, the plaintiff filed an application
below Exh.90, whereby it has requested the Trial Court to allow the
plaintiff to join the legal heirs of the remaining co-tenants of the
rented premises.
4.3 According to the plaintiff, the other legal heirs of the original
tenant namely late Asif Abdulrasid and late Maherajbibi have
executed possession receipt in favour of the predecessor of plaintiff
on 21st July, 1994, thereby they handed over paper possession of
the suit premises in favour of predecessor of the plaintiff along with
defendant No. 1.
4.4 Nonetheless, the plaintiff was not aware of the names of the
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legal heirs of the said deceased co-tenant, they were not brought
on record at the relevant time. So, impugned application was filed
below Exh-90 under Order I, Rule 10 of the Code of Civil Procedure
to join them as co-defendants.
4.5 After hearing the parties, it is noted that the proposed
defendants (i.e., the legal heirs of aforesaid co-tenant) were not
remained present and was not contested the application, but
defendant Nos. 2 to 8 have objected to the impugned application.
5. After hearing the all parties concerned, the Trial Court vide
its order dated 23rd January, 2025, has rejected the impugned
application, against which the present writ application has been
filed by plaintiff-landlord.
6. SUBMISSION OF THE PETITIONER/PLAINTIFF
6.1 Learned Advocate Mr. Majmudar would submit that the
proposed parties to be joined in suit are not only necessary but also
proper parties, inasmuch as they are legal heirs of co-tenants,
required to be joined in the suit proceedings and erroneously not
joined by the Trial Court.
6.2 Learned Advocate Mr. Majmudar would further submit that
the Trial Court has erroneously observed that at the time of filing
of suit, those parties could have been joined, but there is a delay in
filing application, which is nothing but perversity on the part of the
Trial Court, which resulted into miscarriage of justice.
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6.3 Learned Advocate Mr. Majmudar would further submit that,
as per settled legal position of law, rule of procedure is handmaid
of justice and a hyper-technical approach ought to have been
avoided by the Trial Court.
7. So, he would request at this Court that qua effective
adjudication of suit in question, the presence of the proposed
parties is required.
8. To buttress his arguments, learned Advocate Mr.Majmudar
would relies upon the following decisions, which are as under:-
(i) Sajjan Kumar V/s. Ram Kishan, reported in 2005 (13) SCC 89;
(ii) Raj Kumar Bhatia V/s. Subhash Chander Bhatia reported in 2018 (2)
SCC 87
(iii) Moreshar S/o. Yadaorao Mahajan V/s. Vyankatesh Sitaram Bhedi in
Civil Appeal Nos.5755-5756 of 2011 dated 27th September, 2022.
ANALYSIS
9. At the outset, it is required to be observed that the facts
which are noted hereinabove are not in dispute.
10. The impugned application was filed by the plaintiff below
Exh.90, wherein it has been categorically mentioned that the legal
heirs of the original tenant are not in possession of the suit
premises, as all legal heirs of the original tenant have executed a
possession receipt in favour of predecessor of plaintiff on 21 st July,
1994.
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11. A plain reading of the impugned application would suggest
that none of the legal heirs of the original tenant were and are in
possession of suit premises, either on the date of filing of suit
and/or on the date of filing the impugned application, as the case
may be.
12. It is a specific case of the plaintiff that all legal heirs of the
original tenant have executed possession receipt in favour of
predecessor of plaintiff on 21st July 1994, much prior to the filing of
the eviction suit, and despite their request, defendant No. 2 to 8 (to
whom the suit land was sublet by them) are not vacating suit
premises, the suit came to be filed by the plaintiff in the year 2018.
13. It further appears that one of the legal heirs of the original
tenant namely Gulambhai Kalubhai is joined as defendant No.1,
being a tenant of the suit premises. It is apposite to refer to and
rely upon the definition of "tenant" under the Bombay Rents, Hotel
and Lodging House Rates Control Act, 1947 (hereinafter "the Rent
Act"), which defines a tenant reads as under:
"5. (11) 'tenant' means any person by whom or on whose
account rent is payable...
(c) Where any tenant dies, his heir or successor-in-interest who
continues in possession of the premises, and any person--
(i) in relation to premises let for residence, any member of the
tenant's family residing with the tenant at the time of, or within
three months immediately preceding, the death of the tenant as
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may be decided in default of agreement by the Court,...."
14. According to the aforesaid provision of law, also not all legal
heirs of the original tenant would be considered tenants; but a
legal heir who is residing along with the original tenant three
months prior to the death of the original tenant continue in
possession of tenanted premises would be considered as a tenant.
It is not stated by the petitioner herein that the other two legal
heirs of the original tenant namely late Asif and late Maherajbibi,
were residing with the original tenant three months prior to death
of original tenant in suit premises.
15. The Trial Court has correctly observed that when according
to the plaintiff, all legal heirs of original tenant have handed over
possession to the predecessor of the plaintiff by executing a
possession receipt on 21st July, 1994, the other legal heirs of
original tenant (Kalubhai) have no relation with the suit property. It
has been further observed that the proposed parties are neither
necessary nor proper parties for effective adjudication and so also,
in a case of execution of the decree, their presence would not be
necessary in light of pleading made by plaintiff that they are not
residing in the suit premises.
16. It is also required to be observed that the oral evidence of the
plaintiff got over i.e. the cross-examination of the plaintiff was over
and the suit is at the stage of recording further evidence of
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plaintiff. It is open for the plaintiff to examine the witness,
including the legal heirs of the original tenant, in support of his
case and pleadings.
17. The judgments so relied upon by learned Advocate Mr.
Majmudar would not be applicable to the facts of the present case,
as according to the Trial Court and this Court, plaintiff has failed to
prima facie so that the proposed parties are necessary and proper
party for effective adjudication of the suit. In view of above, such
decisions would not be helpful to the case of petitioner anymore.
18. Lastly, it is apposite to refer and relied upon the following
two decisions of the Hon'ble Supreme Court of India, whereby it
has been clearly laid down that the scope and ambit of the power of
the High Court while exercising its power under Article 227 of the
Constitution of India is very limited and in narrow compass;
inasmuch as every error of law committed by the Trial Court
cannot be interfered by the High Court unless there is any gross
error of law, perversity, and or any erroneous approach on the part
of the Trial Court while passing the impugned order/writ
application, as the case may be. [See Sameer Suresh Gupta TR PA
Holder vs. Rahul Kumar Agarwal, reported in 2013 (9) SCC 374
(Para 6 and 7) and Garment Craft v. Prakash Chand Goel, reported
in (2022) 4 SCC 181 (Para 15 and 16)].
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CONCLUSION
19. In light of the aforesaid observations, discussions and
reasons, I am in complete agreement with the reasons assigned by
the Trial Court while rejecting the impugned application filed by
the plaintiff below Exh.90 in Small Cause Civil Suit No. 2593 of
2018 (i.e. Rent Suit No.104/2018). The present writ application
lacks merit and, therefore, deserves to be rejected; it is hereby
rejected. No order as to costs.
(MAULIK J.SHELAT,J)
Nilesh
