Gujarat High Court
Vijay Nomichand Mistry vs Sudhirkumar Chimanlal Shah on 1 September, 2025
NEUTRAL CITATION
C/CRA/62/2016 ORDER DATED: 01/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 62 of 2016
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VIJAY NOMICHAND MISTRY & ANR.
Versus
SUDHIRKUMAR CHIMANLAL SHAH & ORS.
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Appearance:
MR KV SHELAT(834) for the Applicant(s) No. 1,2
MR LALJI R MOKARIA(3085) for the Opponent(s) No. 3,5
MR VIMAL A PUROHIT(5049) for the Opponent(s) No. 1,10,11,2,8,9
NOTICE SERVED for the Opponent(s) No.
4,6.2.1,6.2.2,6.2.3,6.2.4,6.2.5,6.3,6.4,6.5,6.6
NOTICE SERVED BY DS for the Opponent(s) No. 6.7,6.8,7
UNSERVED EXPIRED (N) for the Opponent(s) No. 6.1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 01/09/2025
ORAL ORDER
1. The present Civil Revision Application has been filed under
Section 29(2) of the Bombay Rents, Hotel and Lodging House
Rates Control Act, 1947 (herein after referred to as "the Rent
Act") arising out of the decision of the 3rd Additional District
Judge, Dahod in Execution Petition No.24 of 2007 decided on
06.02.2016.
2. For the sake of brevity and convenience, the parties are
referred to as per their original status as that in the suit.
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3. The brief facts arising in the present Revision Application are
that the plaintiff had filed Regular Civil Suit No.245 of 1986
for eviction on the ground of subletting i.e. Section 13 of the
Rent Act that the tenant has changed the use of the property
and that the defendant has an alternative accommodation.
4. The Trial Court decreed the said suit and granted eviction of
the tenant from the suit property, aggrieved by the said order,
the tenant filed appeal no.20 of 1997 which has been thereafter
renumbered as appeal no.47 of 2004. During the pendency of
the said appeal, the original tenant expired and an application
was filed by his legal heirs to be brought on record in view of
the fact that the original tenant had expired. The said
application filed by the legal heir of the original tenant was
dismissed on the ground of delay in the year 2005, aggrieved
by the said order, the legal heir of the tenant filed SCA
no.24884 of 2005 which was thereafter withdrawn. The legal
heirs of the original tenant filed MCA no.1992 of 2007 to
recall the said order and the same was also dismissed on
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01.08.2007. Thereafter, the said order was challenged before
the Apex Court by filing SLP No.484 of 2008 the same was
also dismissed. The order passed in appeal no.20 of 1997
which was renumbered as appeal no.47 of 2004 was
challenged by way of Second Appeal No.130 of 2006 which
was dismissed for default the said order was challenged by
filing MCA 13255 of 2006 for restoration, the same was also
dismissed and execution petition no.24 of 2007 has been filed
by the original landlord and by order dated 06.02.2010 the
Executing Court had allowed the said application and granted
possession warrant. Aggrieved by the said order, the present
Civil Revision Application has been filed.
5. Learned advocate for the petitioner has mainly argued that the
said execution petition no.24 of 2007 was transferred and no
notice was issued to the petitioners at the time when the matter
was transferred from one Court to the other. It has also been
argued that on the date when the warrant was issued, neither
the parties were present nor the learned advocates were present
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and the executing Court has issued warrant on 29.06.2007 and
therefore the said order has been passed without hearing
learned advocate for the petitioner and therefore the said order
is required to be quashed and set aside.
6. Learned advocate for the respondent has mainly argued that
from the rojkam it can be clearly established that on
29.06.2007 when the Executing Court passed an order of
issuing warrant, learned advocate for the petitioner was very
much present and therefore it cannot be said that at the time
when the warrant was issued, the learned advocate for the
petitioner was not present.
7. With respect to the contention that no notice was issued, at the
time when the execution petition was transferred from one
Court to the other. Learned advocate for the respondent has
stated that the said transfer is on an administrative side and it
is not the case that the said transfer is from one station to the
other station but the same is from one Court to the other at the
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same station. Moreover, at the time when the matter was
transferred the learned advocate for the petitioner was very
much present and therefore the question of issuing notice to
the petitioner does not arise and therefore the present Civil
Revision Application is required to be rejected.
8. Having heard learned advocates appearing for the respective
parties and having considered the proceedings before the
Executing Court, the fact remains that the legal heirs who are
the petitioners herein have all throughout failed in getting the
judgment and decree passed in Regular Civil Suit No.245 of
1986 quashed and set aside.
9. The fact also remains that neither there is any documentary
proof to suggest that the learned advocate for the petitioner
was not present when the Court had issued warrant in the
proceedings. Moreover, neither there is any affidavit filed by
the said advocate stating that he was not present and the fact of
presence is erroneously mentioned in the rojkam. One more
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fact is also required to be considered is that neither any
obstruction has been filed before the Executing Court nor there
is any obstruction raised with respect to the executing the
order passed by the Trial Court for executing the judgment and
decree passed in Regular Civil Suit No.245 of 1986. In view of
the same the present Civil Revision Application does not
require any merit and is accordingly dismissed.
(SANJEEV J.THAKER,J)
URIL RANA
