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2020 Supreme(Guj) 538
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Ashutosh J. Shastri, J.
Hazrat Chhota Ansrues Masjid and Dargaj Trust - Petitioner
Versus
Godavariben Velsimal Sinced Deceased Thro Her Heir & 4 Others - Respondents
R/Special Civil Application No. 17185 of 2012
Decided On : 19-06-2020
For the Petitioner: Mr. M.B. Gandhi.
For the Respondent:Mr. Mehul S. Shah, Senior Advocate with Mr. Dharmesh V. Shah, Mr. Pranav G. Desai.
Point of Law:
It is by-now well settled by the Apex Court in catena of decisions that at an initial stage of trial of the suit, no substantive relief can be granted, especially when the main issue is yet to be adjudicated upon. This view has also been reiterated by the Apex Court in a decision reported in (2015) 2 SCC 156. As a result of this, considering the aforesaid principle as well, this Court is of the opinion that the order impugned is not sustainable in the eye of law. Apart from that, the principle of perversity is also well propounded by series of decisions which are reported in (2015) 9 SCC 443 as well as (2016) 6 SCC 672. Considering the aforesaid principles in mind, this Court is of the considered opinion that the views expressed by the trial court are not sustainable. Accordingly, the impugned order deserves to be corrected.
Headnote:
Constitution of India, 1950 – Articles 226 and 227 – Bombay Rent Act – Section 29(3) – Original defendant no. 1 for challenging the legality and validity of the order in Civil Revision Application passed by the learned Appellate Bench of Small Causes Court – petitioner – Trust is a landlord of the suit premises which was originally let out to respondent no. 1 – original plaintiff, namely Smt. Godavariben Venshimal, who died during the pendency of the proceedings, and thereafter to original plaintiff no. 2. However, a written contract was entered into and with the consent of the landlord, the property in question was sublet to respondent no. 2, who is original defendant no. 2, namely the UCO Bank and for that purpose tri-partite agreement came to be entered – Held, It is by-now well settled by the Apex Court in catena of decisions that at an initial stage of trial of the suit, no substantive relief can be granted, especially when the main issue is yet to be adjudicated upon. This view has also been reiterated by the Apex Court in a decision reported in (2015) 2 SCC 156. As a result of this, considering the aforesaid principle as well, this Court is of the opinion that the order impugned is not sustainable in the eye of law. Apart from that, the principle of perversity is also well propounded by series of decisions which are reported in (2015) 9 SCC 443 as well as (2016) 6 SCC 672. Considering the aforesaid principles in mind, this Court is of the considered opinion that the views expressed by the trial court are not sustainable. Accordingly impugned order deserves to be corrected – Issue which has been interwoven between the parties to the proceedings and continuing since long, the suit proceedings itself are required to be expedited and to be disposed of within the stipulated period. This is more so, when a clear stand is taken by the petitioner that the suit is at evidence stage. Therefore, without much examining the rival submissions at length – Instead of granting substantive relief to the applicant at Exhibit-29, at this stage it would be desirable that the suit itself be disposed of at the earliest without creating any further complication in the proceedings – Directions issued – Petition disposed of. (Paras 28 to 32)
Facts of the Case:
Background of facts in which the present petition came up for consideration is that the petitioner – Trust is a landlord of the suit premises which was originally let out to respondent no. 1 – original plaintiff, namely Smt. Godavariben Venshimal, who died during the pendency of the proceedings, and thereafter to original plaintiff no. 2. However, a written contract was entered into and with the consent of the landlord, the property in question was sublet to respondent no. 2, who is original defendant no. 2, namely the UCO Bank and for that purpose tri-partite agreement came to be entered – Original contract stated above was initially for tenure of 15 years and it was thereafter agreed that the renewal at the interval of every five (5) years twice to be effected and as such, accordingly, both tri- agreements were for a period of 20 years in total. However, the agreement which was executed for which permission was sought from the Charity Commissioner was obtained.
Finding of the court:
It is by-now well settled by the Apex Court in catena of decisions that at an initial stage of trial of the suit, no substantive relief can be granted, especially when the main issue is yet to be adjudicated upon. This view has also been reiterated by the Apex Court in a decision reported in (2015) 2 SCC 156. As a result of this, considering the aforesaid principle as well, this Court is of the opinion that the order impugned is not sustainable in the eye of law. Apart from that, the principle of perversity is also well propounded by series of decisions which are reported in (2015) 9 SCC 443 as well as (2016) 6 SCC 672. Considering the aforesaid principles in mind, this Court is of the considered opinion that the views expressed by the trial court are not sustainable. Accordingly impugned order deserves to be corrected – Issue which has been interwoven between the parties to the proceedings and continuing since long, the suit proceedings itself are required to be expedited and to be disposed of within the stipulated period. This is more so, when a clear stand is taken by the petitioner that the suit is at evidence stage. Therefore, without much examining the rival submissions at length – Instead of granting substantive relief to the applicant at Exhibit-29, at this stage it would be desirable that the suit itself be disposed of at the earliest without creating any further complication in the proceedings – Directions issued.
Result: Petition disposed
JUDGMENT :
1. Rule. Mr. Dharmesh V. Shah, learned advocate waives service of notice of rule on behalf of the contesting respondent.
2. The present petition under Articles 226 and 227 of the Constitution of India is filed by original defendant no. 1 for challenging the legality and validity of the order dated 03.12.2012 in Civil Revision Application No. 11 of 2011, passed by the learned Appellate Bench of Small Causes Court, Ahmedabad.
3. The background of facts in which the present petition came up for consideration is that the petitioner – Trust is a landlord of the suit premises which was originally let out to respondent no. 1 – original plaintiff, namely Smt. Godavariben Venshimal, who died during the pendency of the proceedings, and thereafter to original plaintiff no. 2. However, a written contract was entered into and with the consent of the landlord, the property in question was sublet to respondent no. 2, who is original defendant no. 2, namely the UCO Bank and for that purpose tri-partite agreement came to be entered into on 19.01.1974.
4. The original contract stated above was initially for tenure of 15 years and it was thereafter agreed that the renewal at the interval of every five (5) years twice to be effected and as such, accordingly, both tri- agreements were for a period of 20 years in total. However, the agreement which was executed for which permission was sought from the Charity Commissioner was obtained.
5. It appears from the assertion in the proceedings that the landlord had issued a notice calling upon defendant no. 2 – UCO Bank to vacate the suit premises and hand over the possession of the same. Despite the termination of tenancy, the landlord was accepting the rent from original defendant no.2 for September, 1999. It is the say of the petitioner that this has generated multiple litigations, but then renewal was required to be executed from the year 2000 onwards the landlord had withdrawn the suits which were filed at the relevant point of time. Subsequently, Wakf Act, 1999 was brought into effect and Wakf Board refused to give necessary permission for renewal of lease since the same cannot be renewed for a period beyond three (3) years and despite the fact that the period has expired, there was no renewal of lease and according to the petitioner, as per the facts on record, after 24.07.2003, there was no renewal of lease. As a result of this, the situation has resulted into filing of H.R.P. Suit No. 220 of 2002 filed by the landlord for eviction of the suit premises against respondent nos. 1, 2 and 3 as well. The said suit was withdrawn and the lease of original tenant came to be terminated and subsequently on account of the said situation, original plaintiff filed the present suit bearing H.R.P. Suit No. 477 of 2008 for recovery of rent and possession. During the pendency of the present proceedings, when the evidence came to be led, by that time, an application came to be filed at Exhibit-29 under Section 11(4) of the Bombay Rent Act with a prayer that defendant no. 2 – UCO Bank to pay rent of Rs.1,27,896/- and to go on paying the same regularly in the Court. This application at Exhibit-29 appears to have been contested and after full-fledged hearing and its adjudication, the said application came to be dismissed vide order dated 27.04.2011 passed below Exhibit-29, by the Small Causes Court, at Ahmedabad.
6. Feeling aggrieved by the said order at Exhibit-29, respondent nos. 1 and 2 herein have filed a revision application before the learned Appellate Bench of the Small Causes Court, Ahmedabad being Civil Revision Application No. 11 of 2011. After hearing, the learned Appellate Bench was pleased to allow the revision application by granting relief in terms of para 11(a) of the application at Exhibit-29 vide order dated 03.12.2012.
7. It appears further from the record that in the main suit, amendment was already carried out and three new trustees have been appointed and brought on record. But when responden
