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CRA/296/2005 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
REVISION APPLICATION No. 296 of 2005
=========================================================
RAMESHBHAI
KANJIBHAI PARMAR
Versus
BHANJI
DEVJI, THRO' JAYANTILAL DAHYABHAI
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Appearance
:
MR YH VYAS for the petitioner
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CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 25/10/2005
ORAL
ORDER
1. Mr.Rameshbhai
Kanjibhai Parmar, original applicant ? opponent has filed this
Civil Revision Application being aggrieved of order dated 15.03.2005
passed by the learned Joint District Judge (1st Fast Track
Court), Amreli in Regular Civil Appeal No.33 of 1997, whereby the
learned Judge was pleased to allow the appeal and quash and set aside
the order passed by the learned trial Judge in Regular Darkhast No.18
of 1992 dated 03.12.1993. The learned Judge was pleased to direct the
respondent ? tenant (petitioner herein) to hand over the peaceful
and vacant possession of the disputed property to the appellant
within 6 months from the date of the order.
2. Mr.Y.H.Vyas,
the learned advocate for the petitioner tried his best to mislead
this Court by saying that the petitioner, the son of the original
defendant in Regular Civil Suit No.4 of 1972 was not
joined as party, at any stage of the proceedings, i.e. Suit, Appeal
or the Revision Application and still the decree passed by the
learned Judge in Regular Civil Suit No.4 of 1972 against his father
is sought to be executed against him. He submitted that gross
injustice is being done to the petitioner, hence he is before this
Court so as to see that injustice is mitigated.
3. There
has to be a limit of misrepresenting the facts. It was the defendant
who had filed the Appeal being Regular Civil Appeal No.103 of 1976
before the District Court, Amreli against the judgment and decree
passed in Regular Civil Suit No.4 of 1972. The said Appeal was
dismissed by judgment and order dated 23.03.1979 and, therefore, the
original defendant (in Regular Civil Suit No.4 of 1972 ) filed the
Revision Application before this Court being Civil Revision
Application No.1715 of 1979. During the pendency of that Civil
Revision Application, the petitioner therein (father of the present
petitioner ? original defendant) died. In that event it was for
the present petitioner to get impleaded as an heir and pursue the
revision application, but that was not done. Now what is argued is
that the present petitioner was not joined as a party.
This phrase conveys only one meaning that it was the other side who
was under an obligation to implead the present petitioner as party in
the said Civil Revision Application. The Revision Application was
later on dismissed on merits by this Court by judgment and order
dated 24.10.1991.
4. Incidentally,
on 06.06.1989, the original plaintiff sold the suit property to the
present respondent by a registered sale deed. On that sale, the
purchaser stepped into the shoes of the decree holder. On 21.12.1992,
he filed Regular Darkhast No.18 of 1992, which was dismissed on
01.12.1993 without recording any evidence. Being aggrieved of that,
the decree holder preferred Civil Appeal (Appeal from which the
present proceedings arise) being Regular Civil Appeal No.33 of 1997.
5. It
is on record that against the order of dismissal of Regular Darkhast
No.18 of 1992 dated 01.12.1993, a Civil Revision Application was
filed before this Court being Civil Revision Application No.536 of
1994. The said Civil Revision Application was disposed of by this
Court in the year 1997 in view of the Full Bench judgment of this
Court in the case of PRABHATSHANKAR SHANKARLAL JOSHI AND OTHERS
VS. FULSINHJI KESHARISINHJI PARMAR, reported
in 1984 GLH 662, holding that an appeal would lie against
the determination of any question under Section 47 of the Code of
Civil Procedure in execution proceedings under the Bombay Rent Act
and rules made thereunder on the principle of incorporation.
Thereafter,
the District Court entertained the appeal filed by the respondent
herein. The Appeal is allowed and being aggrieved of that, the
present petitioner is before this Court.
6. In
the considered opinion of this Court, the present Civil Revision
Application is an abuse of process of law and, therefore, deserves to
be dismissed with exemplary costs, but then
the Court restrains itself from awarding the cost against the
petitioner because normally, a party acts on the basis of the legal
advice available to it. The Civil Revision Application is dismissed.
(RAVI R.TRIPATHI, J.)
*Shitole
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