Aishaben Mahmadsaeed Maulvi vs Sultanbhai Gafurbhai Multani
2025 Latest Caselaw 182 Guj

Gujarat High Court

Aishaben Mahmadsaeed Maulvi vs Sultanbhai Gafurbhai Multani on 6 May, 2025

                                                                                                               NEUTRAL CITATION




                             C/CRA/416/2024                                    ORDER DATED: 06/05/2025

                                                                                                                undefined




                                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                     R/CIVIL REVISION APPLICATION NO. 416 of 2024

                      ==========================================================
                                              AISHABEN MAHMADSAEED MAULVI
                                                          Versus
                                              SULTANBHAI GAFURBHAI MULTANI
                      ==========================================================
                      Appearance:
                      MR DEEP B KOTHARI(12220) for the Applicant(s) No. 1
                      MR MANAN B PANDYA(12491) for the Opponent(s) No. 1
                      MR SP MAJMUDAR(3456) for the Opponent(s) No. 1
                      ==========================================================

                        CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER

                                                          Date : 06/05/2025

                                                            ORAL ORDER

1. The present Civil Revision Application has been filed under Section 29(2) to of the Bombay Rents, Hotel and Lodging House Rates Control Act,1947 (for short "the Rent Act") challenging the judgement passed in Regular Civil Appeal no.7 of 2021 filed under the provisions of Section 96 of the Code of Civil Procedure, 1908 (for short "the Code") whereby the judgement and decree passed in Regular Civil Suit no.72 of 2008 has been quashed and set aside.

2. For the sake of brevity and convenience, the parties are referred to their original status as that of the suit.

3. The brief facts arising in the present Revision Application are that the plaintiff had filed Regular Civil Suit no.72 of 2008

NEUTRAL CITATION

C/CRA/416/2024 ORDER DATED: 06/05/2025

undefined

claiming to be the tenant of the suit property and for a relief to restrain the defendant from taking away the possession of the suit property without due process of law and for a mandatory relief to restore 11 feet x 11 feet vacant space. The Trial Court had rejected the said suit and aggrieved by the said order, the plaintiff filed Regular Civil Appeal no.7 of 2021 under the provisions of Section 96 read with Order 41 of the Code and after re-appreciating the facts and evidence the First Appellate Court allowed the said appeal and set aside the judgment and decree passed in Regular Civil Suit no.72 of 2008 and remanded the suit to the Trial Court for fresh adjudication in context of the issues framed by the First Appellate Court by virtue of Order 41 Rule 23 of the Code and aggrieved by the said order, the present Civil Revision Application is filed.

4. Learned advocate for the defendant has argued that the Regular Civil Appeal was filed under the provisions of Section 96 of the Code and while deciding the suit before the Trial Court, the plaintiff has alleged that there is relationship of landlord and tenant between the plaintiff and the defendant and the Trial Court while deciding the said suit has also taken into consideration the relationship between the plaintiff and defendant. There is no dispute that the plaintiff has come forward with the case that the suit property was taken on rent

NEUTRAL CITATION

C/CRA/416/2024 ORDER DATED: 06/05/2025

undefined

on 23.6.1986 and the monthly rent of the suit property is Rs.400/-. The entire dispute in the suit is on the ground that there is a relationship of the landlord and the tenant between the parties to the suit and therefore, it has been argued that the plaintiff could not have filed appeal under Section 96 of the Code and the only alternative that the plaintiff had was to file appeal under Section 29 of the Rent Act and therefore as the said appeal under Section 96 of the Code was not maintainable, the First Appellate Court could not have remanded the matter and therefore, the present Civil Revision Application is filed.

5. Thereafter, learned advocate for the defendant has stated that in view of the fact that the defendant is challenging an appeal filed under Section 96 of the Code and as the Second Appeal under the provisions of Section 100 of the Code is maintainable, the defendant be permitted to withdraw the present Civil Revision Application with a liberty to file a Second Appeal under Section 100 of the Code.

6. Per contra, learned advocate for the plaintiff has argued that, after filing the present Civil Revision Application, the defendant cannot be permitted to withdraw the same with a liberty to file a second appeal. It has been argued that in view of Section 105(2) of the Code, as the Appellate Court has remanded the matter and as the appeal is not filed, the

NEUTRAL CITATION

C/CRA/416/2024 ORDER DATED: 06/05/2025

undefined

defendant is precluded to dispute the correctness of the order. Learned advocate for the plaintiff has also relied on the provisions of Order 43 Rule 1(u) of the Code and has argued that as the Appellate Court has remanded the matter, the same has to be challenged by way of an appeal under the provisions of Order 43 of the Code and therefore even the Second Appeal would not lie.

7. It has also been argued that under Order 41 Rule 23, Order 41 Rule 25 and Order 43 Rule 1(u) of the Code, the only remedy available to the defendant would be to file appeal from order challenging the order of remand and therefore, the present Civil Revision Application is not maintainable.

8. Having heard learned advocates for the parties, by way of present Civil Revision Application under Section 29 of the Rent Act, the defendant had challenged an order passed under Section 96 of the Code. The plaintiff has come forward with the case that the plaintiff is a tenant in the property and defendants are trying to dispossess the plaintiff from the suit property and the defendants have taken possession of 11 feet x 11 feet space and therefore mandatory injunction is sought to restore the said possession.

9. Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act,1947 read under:

NEUTRAL CITATION

C/CRA/416/2024 ORDER DATED: 06/05/2025

undefined

"28.[(1)] Notwithstanding anything contained in any law and notwithstanding that by reason of the amount of the claim or for any other reason, the suit or proceeding would not, but for this provision, be within its jurisdiction.

[(a) in the City of Ahmedabad, the Court of Small Causes of Ahmedabad,] [(aa) in any area for which a Court of Small Causes is established under the Provincial Small Cause Courts Act, 1887, such Court, and]

(b) elsewhere, the Court of the Civil Judge (Junior Division) having jurisdiction in the area in which the premises are situate or, if there is no such Civil Judge, the Court of the Civil Judge (Senior Division) having ordinary jurisdiction,

shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this Part apply and to decide any application made under this Act and to deal with any claim or question arising out of this Act or any of its provisions and 140[subject to the provisions of sub- section (2),] no other Court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question.

(2) (a) Notwithstanding anything contained in clause (aa) of subsection(1), the District Court may at any stage withdraw any such suit, proceeding or application pending in a Court of Small Causes established for any

NEUTRAL CITATION

C/CRA/416/2024 ORDER DATED: 06/05/2025

undefined

area under the Provincial Small Cause Courts Act, 1887, and transfer the same for trial or disposal to the Court of the Civil Judge (Senior Division) having ordinary jurisdiction in such area.

(b) Where any suit, proceeding or application has been withdrawn under clause (a), the Court of the Civil Judge (Senior Division) which thereafter tries such suit, proceeding or application, as the case may be, may either re-try it or proceed from the stage at which it was withdrawn.

(c) The Court of the Civil Judge trying any suit, proceeding or application withdrawn under clause (a) from the Court of Small Causes, shall, for purposes of such suit, proceeding or application as the case may be, deemed to be the Court of Small Causes.]

Explanation.-In this section "proceeding" does not include an execution proceeding arising out of a decree passed before the coming into operation of this Act."

10. Therefore, as per Section 28 of the Rent Act any dispute which arises between the landlord and tenant has to be decided by Rent Court and if any party is aggrieved by the said order, the same is required to be challenged by appeal under Section 29 of the Rent Act and admitted position is that the plaintiff has not challenged the said judgment passed by the Trial Court

NEUTRAL CITATION

C/CRA/416/2024 ORDER DATED: 06/05/2025

undefined

under Section 29 of the Rent Act and has challenged the same under Section 96 of the Code and if the defendant is aggrieved by the said order, the same is required to be challenged by way of second appeal and not by way of Civil Revision Application. The argument of learned advocate for the plaintiff that the said order is required to be challenged by way of an appeal from order as the order is of remand, will not have any significance as the challenge to the order passed under Section 96 of the Code is on the ground that no appeal under Section 96 of the Code could have been filed by the plaintiff as the suit was filed by the plaintiff claiming to be a tenant in the property. Therefore, as there will be a substantial question of law involved on the ground that the appeal under Section 96 of the Code could not have been filed by the plaintiff challenging an order whereby the plaintiff is claiming to be tenant in the property and admitting the fact that the plaintiff is a tenant in the property since 1986 and is paying rent since the year 1986.

11. In view of the said fact, the defendant could not have filed Civil Revision Application and had to file a second appeal under Section 100 of the Code and on the fact that as the defendant is seeking liberty to withdraw the present petition with a liberty to move appropriate application under Section 100 of the Code, in view of the fact that the First Appellate Court did not have jurisdiction to hear the appeal under Section 96 of the Code, the permission to withdraw the present

NEUTRAL CITATION

C/CRA/416/2024 ORDER DATED: 06/05/2025

undefined

Civil Revision Application is granted with liberty to the defendant to file Second Appeal under the provisions of Section 100 of the Code. The present Civil Revision Application is accordingly permitted to be withdrawn with the aforesaid liberty and in view of the same, the present Civil Revision Application is accordingly disposed of.

(SANJEEV J.THAKER,J) URIL RANA