Gujarat High Court
Chandubhai Jagvinbhai ... vs Shailesh Nalinkant Parekh on 9 October, 2025
NEUTRAL CITATION
C/CRA/450/2025 JUDGMENT DATED: 09/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 450 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/CIVIL REVISION APPLICATION NO. 450 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER Sd/-
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Approved for Reporting Yes No
✔
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CHANDUBHAI JAGVINBHAI CHAVDA(DECEASED) & ORS.
Versus
SHAILESH NALINKANT PAREKH
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Appearance:
MR ABID R PATHAN(11217) for the Applicant(s) No. 1,1.1,1.2,1.3,2,3,4,5,6
MR VIRAL M PANDYA(5257) for the Applicant(s) No. 1,1.1,1.2,1.3,2,3,4,5,6
MR DHAIRYAWAN D BHATT(11817) for the Opponent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 09/10/2025
ORAL JUDGMENT
1. The present Revision Application is filed under Section 29(2)
of the Gujarat (Bombay Rents, Hotel and Lodging House Rates
Control Act, 1947) (hereinafter referred to as 'the Act'). Aggrieved
by the judgment and decree passed in Regular Civil Appeal No. 66
of 2019, whereby the Principal District and Sessions Judge, Rajkot,
dismissed the said appeal as abated and confirmed the judgment and
decree dated 30.03.2018, passed by the Small Causes Court, Rajkot,
in Regular Civil Suit No. 26 of 2016.
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2. For the sake of brevity, the parties shall be referred to as per
their original status in the suit.
3. The brief facts arising in the present Revision Application are
that the Plaintiff had filed a suit for eviction on the ground that the
suit property was let by the predecessor-in-title of the Plaintiff to
Jagjivan Hirjee and Diwaliben, who were partners of a partnership
firm, running in the name of Navyug Stores, at a monthly rent of Rs.
48/- . A rent note was executed by the predecessor owner on
24.08.1971. It was the case of the Plaintiff that Diwaliben Kunwarji
Chavda had retired from the said firm and Jagjivan Hirjee Chavda
was doing business of selling shoes and chappals as a sole
proprietor.
4. Thereafter, Jagjivan Hirjee Chavda expired on 27.12.1984, and
until his death, he alone was doing business in the suit property as a
sole proprietor under the name Navrang Stores. At the time of his
death, the Defendant, Padmaben Jagjivan Chavda, was not doing
business with him. After the death of Jagjivan Hirjee Chavda on
05.01.1985, the Defendant's three sons executed a release deed,
Document No. 157, dated 05.01.1985. As the Plaintiff did not
receive any rent from the Defendant after the purchase of the
premises by the Plaintiff on 22.03.1985, a statutory notice was
issued by the Plaintiff to the Defendant, since the Defendant was not
doing business in the suit premises at the time of the death of the old
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tenant, Jagjivan Chavda, the Plaintiff sought a relief to declare that
the Defendant is not a legal tenant of the suit premises. In the
alternative, if the Defendant were to be considered as a tenant in the
suit property, the Plaintiff contended that the Defendant was not
using the suit property for the purpose it was let for the six months
preceding the date of filing the suit, in view of the fact that the
Defendant was residing in the U.K. and not residing in India. The
Defendant appeared through a Power of Attorney (her daughter) and
filed a Written Statement vide Exh. 15.
5. The Trial Court framed issues vide Exh. 19, which read as
under:
(a) Whether the Plaintiff is entitled to recover the possession of the
suit premises on the ground of non-payment of rent for more than six
months, as alleged?
(b) Whether the Plaintiff proves that the rent of ₹5,040/- is due and
payable, as stated in Para No. 13 of the Plaint?
(c) Whether the Plaintiff proves that he is entitled to recover
₹10,126.80 on account of house tax and education cess, as alleged in
Para No. 13 of the Plaint?
(d) Whether the Plaintiff is entitled to recover possession of the suit
premises on account of non-user and keeping the shop closed for the
last four years till the date of the suit?
(e) Whether the Defendant proves herself to be a legal or statutory
tenant in the suit premises?
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(f) Whether the suit notice is legal and validly served?
(g) What amount is due on account of mesne profits?
(h) Whether the Plaintiff is entitled to get the prayer as sought for at
Para-22 of the Plaint?
(i) What order and decree?
6. The Plaintiff deposed before the court vide Exh. 23.
Thereafter, no evidence was produced by the Defendant in support
of the Written Statement, and the Trial Court decreed the said suit on
the ground that the Defendant is a tenant in arrears and that the
Defendant is not using the said property for the purpose it was let,
for the six months preceding the date of filing the suit.
7. Aggrieved by the said judgment and decree, the Defendant,
through her Power of Attorney, filed Regular Civil Appeal No. 66 of
2019. During the pendency of the said appeal, the original defendant
expired; therefore, an application was given to condone the delay in
filing the application to bring the legal heirs on record. After
considering the reasons stated in the said application, the Appellate
Court dismissed the said appeal as abated and confirmed the
judgment and decree passed by the Trial Court in Regular Civil Suit
No. 26 of 2016. Hence, the present Revision Application.
8. The learned advocate for the legal heirs of the Defendant has
mainly argued that the Applicant is the legal tenant of the suit
property. The Appellate Court has not taken into consideration that
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the right to sue has accrued even after the death of the original
Defendant, Padmaben, who had expired on 27.03.2023. As the
original Defendant expired in London, there was a delay in obtaining
the death certificate. The Appellate Court also has not taken into
consideration the delay in obtaining the death certificate of
Padmaben and Chanudbhai and the medical reports of
Tribhuvanbhai.
It has also been argued by the learned advocate for the legal
heirs of the original Defendant that due to the death of two persons
in the family, there was a delay in filing the application, and the
Appellate Court has not taken this fact into consideration and has
dismissed the said appeal. Therefore, the order passed by the
Appellate Court is required to be quashed and set aside, in view of
the facts that there was a delay in filing the application, due to the
reasons stated therein, and consequently, the Appellate Court could
not have dismissed the said appeal on the ground of abatement, as
the legal heirs had already filed an application to be joined as
appellants in place of the deceased appellant, Padmaben. Hence, the
present Revision Application is required to be allowed.
9. Per Contra, the learned advocate for the Plaintiff has taken a
preliminary objection regarding the maintainability of the Revision
Application, in view of the fact that the order under challenge is
purely a procedural order which did not affect the substantive rights
of a party under the Bombay Rent Act, and therefore, as the said
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order does not bear the indelible imprint of the Bombay Rent Act,
the legal heirs of the deceased Defendant could not have filed the
Revision Application, and thus the Revision Application is required
to be rejected.
10. The learned advocate for the Plaintiff has also argued that if
the entire application filed to condone the delay in bringing the legal
heirs is taken into consideration, there is no justification in the said
application to condone the delay in bringing the legal heirs on
record.
11. Moreover, it has been argued by the learned advocate for the
Plaintiff that the Appeal was filed by the Power of Attorney of the
deceased-appellant; therefore, the fact of the proceedings was always
within the knowledge of the legal heirs of the deceased Padmaben.
Furthermore, no justification is given in the application to justify the
delay in bringing the legal heirs on record.
12. The learned advocate for the Plaintiff has also argued that if
the facts of the present case are taken into consideration, the Trial
Court has already held that the original Defendant was not a tenant
under the provision of Section 5(11)(c) of the Rent Act. Though the
said order was under challenge, if the contention of the legal heirs of
the Defendant are taken into consideration, they have also not stated
that they were doing business with the deceased Defendant,
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Padmaben, at the time of her death, and in view of the same, the
right to sue did not survive. Therefore, the Appellate Court has
rightly dismissed the appeal, as the said appeal abates on the death of
the deceased-Defendant, Padmaben. Hence, the present Revision
Application is required to be rejected.
13. Having heard the learned advocates for the parties and having
considered the order passed by the First Appellate Court, and taking
into consideration the application filed to condone the delay and the
application to bring the legal heirs on record, the fact remains that
the Power of Attorney holder of the deceased was handling the entire
litigation, and the said Power of Attorney holder is the daughter of
the deceased Padmaben Chavda. Therefore, the fact of the filing and
pendency of the litigation was always in the knowledge of the
Applicant, and it cannot be said that the Applicants were not aware
of the death of the deceased Padmaben, as she was the mother of the
Applicant.
14. If the entire application to condone the delay is taken into
consideration, the Applicant has only stated that the application
could not be filed because they were waiting for the death certificate
of Padmaben and Chanudbhai and the medical documents of
Tribhuvanbhai. However, if the record of the Appellate Court is
taken into consideration, the fact remains that during the pendency
of the appeal, the learned advocate for the Plaintiff submitted a
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purshis at Exh. 14 on 21.03.2024, declaring that the original
Defendant had expired about ten months prior to the date of filing
the purshis. Therefore, the fact of the original-Defendant's death was
not under dispute, and thus the reason of not obtaining the death
certificate of the deceased Padmaben could not be a ground available
to the Applicant for not filing the application within the prescribed
period of limitation.
15. It has also come on record that after the pursis was filed by the
Plaintiff on 21.03.2024, the learned advocate for the legal heirs of
the deceased original Defendant filed an application seeking
adjournment on 27.06.2024. It was only on 12.07.2024, that an
application vide Exh. 17, was given to condone the delay of 382
days, in preferring an application to bring the legal heirs of the
original Defendant on record, and an application, vide Exh. 18, was
filed to join the legal heirs of the deceased Defendant.
16. This Court will also have to take into consideration the fact
that the appeal was filed by the Special Power of Attorney executed
by the deceased Padmaben in favour of her daughter, and therefore,
it cannot be said that the said Power of Attorney, being the daughter,
was not aware of the death of her mother, which had occurred on
27.03.2023. Neither was the said fact disclosed by the Power of
Attorney holder, nor was an application given to bring the legal heirs
on record within the period of limitation.
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17. The reasons assigned in the said delay application are general
in nature and are not sufficiently stated to prove that there was a
justifiable reason for the legal heirs of the Defendant not to file the
application within the prescribed period of limitation. While
considering the fact that the Revision Application would be
maintainable in view of the fact that the order that has been passed
by the Appellate Court is a procedural order, but in the present case,
the said order has been passed in the Appeal filed under Section 29
of the Bombay Rent Act, and the Trial Court has taken into
consideration the entire proceedings. By virtue of the said order, the
Appellate Court has also confirmed the judgment and decree passed
in Regular Civil Suit No. 26 of 2016. Therefore, in the facts of the
present case, it can be stated that the order that has been passed is
not a purely procedural order, and by way of disposing of the appeal,
the Appellate Court has decided the effective and substantive right
of the party under the Bombay Rent Act, and therefore the Civil
Revision Application is maintainable.
18. This Court will also have to take into consideration the fact
that if the application filed to bring the legal heirs on record is taken
into consideration, there is no pleading in the said application that
after the death of the deceased original Defendant, Padmaben
Chavda, the legal heirs of Padmaben Chavda have become the
tenants in the Suit Property under Section 5(11)(c) of the Bombay
Rent Act.
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19. In view of the said fact and the fact that no sufficient reasons
have been stated in the application to condone the delay of 382 days,
the Appellate Court has rightly dismissed the said appeal. In view of
the said fact, the order passed by the Appellate Court is just and
proper and does not require any interference, and hence the said
Revision Application is dismissed. In view of the disposal of the
main matter, the civil application is accordingly disposed of.
Sd/-
(SANJEEV J.THAKER,J)
Further Order.
After pronouncement of the order, learned advocate for the
petitioner has sought stay of the order.
In view of the fact that the Appellate Court has not protected
the petitioner, the said request is rejected.
Sd/-
(SANJEEV J.THAKER,J)
URIL RANA/RAJAT
