Gujarat High Court Case Information System
Print
SCA/3072820/2007 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 30728 of 2007
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge?
=========================================================
ASHOKKUMAR
VISHNUPRASAD SHARMA - Petitioner(s)
Versus
SAMSUDDIN
IBRAHIMBHAI - Respondent(s)
=========================================================
Appearance :
MR
MAYUR RAJGURU for Petitioner(s) : 1,
MR DILIP
K ANOJIYA for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 21/07/2008
ORAL
JUDGMENT
1. By
way of this petition under Article 227 of the Constitution of India
the petitioner has prayed for an appropriate Writ, direction and/or
order to quash and set aside order below Exh.23 dated 01.11.2007 in
Civil Appeal No.62 of 2003 in Kirkul Application No.512 of 2001 in
Objection Application in Darkhast No.142 of 2001 and also to quash
and set aside Execution Petition No.142 of 2001 in HRP Suit No.2502
of 1991. It is further prayed to restore the possession of tenanted
suit premises in favour of the petitioner as the petitioner is in
possession as on the day.
2. Facts
leading to the present Special Civil Application in nutshell as under
:
The
respondent is original plaintiff landlord and the judgment
creditor. The petitioner is third party objector. That one Ramjas
Murlidhar was original tenant against whom respondent herein
original plaintiff instituted suit being HRP suit No.2502 of 1991 for
getting disputed possession. That in the said Suit, original
defendant filed written statement inter-ali stating that he does not
indent to transfer the suit premises to anybody. That suit was
decreed on 06.04.1999. That the respondent judgment creditor
filed Execution Petition No.142 of 2001 for execution of decree
passed in HRP No.2502 of 1991 and at the time of execution the
petitioner submitted objections. It was contended on behalf of the
petitioner that the petitioner is in occupation and in possession of
disputed property with knowledge of judgment creditor since 1997 and
as the petitioner was not party to the said suit i.e. HRP No.2502 of
1991, said decree is not binding upon him. That the learned
Executing Court on appreciation of evidence and considering
objections submitted by the petitioner held that the petitioner has
failed to prove any evidence that he was in possession of disputed
property as tenant with knowledge of judgment creditor. So far as
reliance placed upon documentary evidence by the petitioner with
respect to electricity connection in his name and licence obtained by
him under the provisions of Bombay Shops and Establishment Act is
concerned, the learned Executing Court held that said applications
were submitted without signature of original landlord judgment
creditor and therefore, judgment creditor was not aware about
electricity connection and licence obtained by the petitioner under
the Bombay Shops and Establishment Act. Therefore, vide order dated
27.02.2003 learned Executing Court directed to proceed further with
the Execution Petition No.142 of 2001 against the petitioner also by
holding that he is also bound by the decree. That being aggrieved and
dissatisfied with the order passed by the learned Executing Court
dated 27.02.2003 passed in Objection Application No.512 of 2001 the
petitioner preferred Civil Appeal No.62 of 2003 before the learned
Appellate Bench of Small Causes Court, Ahmedabad. The learned
Appellate Bench of Small Causes Court, Ahmedabad by impugned order
dated 01.11.2007 dismissed the appeal confirming the order passed by
the learned Small Causes Court No.4, Ahmedabad. Being aggrieved and
dissatisfied with the both the aforesaid orders, the petitioner
third party has preferred present Special Civil Application under
Article 227 of the Constitution of India.
3. Mr.Mayur
Rajguru, learned Advocate appearing on behalf of the petitioner has
vehemently submitted that both the Courts below have materially erred
in not accepting the objections submitted by the petitioner third
party. It is submitted that the petitioner was infact in possession
of the property on 06.10.1997 inducted by the erstwhile occupier and
tenant with the consent of the respondent landlord and since then the
petitioner was in possession of the occupation of the suit premises
and carrying out the business of petroleum products, both the Courts
below ought to have allowed the objection application submitted by
the petitioner and ought to have held that decree is not binding to
the petitioner and consequently ought not to have proceeded further
with the Execution Petition. It is submitted that the petitioner had
obtained licence from the competent authority and also got proprietor
firm registered and also obtained license under the provisions of the
Bombay Shops and Establishment Act. Therefore, impugned order passed
by both the Courts below deserve to be quashed and set aside. It is
further submitted that the learned Small Causes Court, Ahmedabad has
failed to appreciate and evaluate the evidence adduced by the
petitioner alongwith an application for objection in the Execution
Petition. It is further submitted that even when decree was passed
the petitioner was in possession of suit premises, therefore, any
decree passed in the suit is not binding to the petitioner.
Therefore, it is requested to allow present Special Civil
Application.
4. The
petition is opposed by Mr.Dilip Kanojia, learned Advocate appearing
for the respondent landlord judgment creditor. It is
submitted that there are concurrent findings by both the Courts below
on appreciation of evidence which do not call for interference of
this Court in exercise of powers under Article 227 of the
Constitution of India. It is submitted that admittedly the suit was
filed against tenant Ramjas Murlidhar and even as per the
petitioner he was in possession since 1997 who has taken possession
from said tenant and therefore, when it is the case on behalf of the
petitioner that he is in possession, after filing of the suit decree
passed in the said suit is binding to the petitioner. It is submitted
that on appreciation of evidence, both the Courts below have
concurrently found that the petitioner has miserably failed to prove
and/or lead evidence that he is in possession with the knowledge and
with consent of the judgment creditor. It is further submitted that
even documents relied upon by the petitioner has been dealt with and
considered by both the Courts below. Therefore, it is requested to
dismiss present Special Civil Application.
5. Having
heard the learned Advocates appearing on behalf of the respective
parties and at the outset it is required to be noted that decree has
been passed in favour of respondent landlord judgment
creditor. Thus, Suit has been filed in the year 1991. Admittedly,
it is the case on behalf of the petitioner that he is in occupation
of the suit premises since 1997, therefore, the petitioner is in
possession of suit premises after filing of the suit. It is the case
on behalf of the petitioner that he was inducted as a tenant by the
original tenant and same was with the knowledge and consent of the
judgment creditor. Both the Courts below have concurrently found on
appreciation of evidence that the petitioner has failed to prove that
he was inducted as tenant by the original tenant with the knowledge
and consent of original tenant. Both the Courts below also took note
of the fact that Suit was filed in the year 1991 against original
tenant and written statement was filed by the original tenant that he
is not going to transfer and/or alienate the premises in question.
Still possession has been handed over to the petitioner illegally. It
is also required to be noted that during HRP Suit No.2502 of 1991
original tenant did not disclose before the learned trial Court that
some another person i.e. the petitioner is in possession of tenanted
premises. Therefore, when the petitioner was inducted as tenant by
the original tenant during and pendency of the suit and decree has
been passed against the original tenant, said decree is binding to
the petitioner. Both the Courts below have also considered
documentary evidences relied upon by the petitioner such as
electricity connection in the name of the petitioner; licence issued
by the authority under the provisions of the Bombay Shops and
Establishment Act and on appreciation of evidence both the Courts
below have observed and held that electricity connection as well as
licence have been obtained by the petitioner without signature of
original landlord. Therefore, merely because the petitioner has
obtained electricity connection and/or licence under the provisions
of the Bombay Shops and Establishment Act, it cannot be said that the
petitioner has been handed over the possession with the consent of
the landlord. Decree has been passed which was sought to be executed
and from the prayer it appear that possession is already taken over
from the petitioner and therefore, the petitioner has prayed to
restore possession back to him. Considering overall facts and
circumstances, it cannot be said that both the Courts below have
committed any error in directing to proceed further with the
Execution Petition against the petitioner also and by holding that
decree passed in HRP Suit No.2502 of 1991 is also binding to the
petitioner. No illegality has been committed by both the Courts below
which calls for interference of this Court in exercise of powers
under Article 227 of the Constitution of India.
7. In
view of above and for the reasons stated above, the petition deserves
to be dismissed and accordingly it is dismissed. Notice discharged.
[M.R.Shah,J.]
satish
Top