JUDGMENT :

1. The present petition, under Article 227 of the Constitution of India, is filed by the petitioners – original defendants No.1 to 5 / appellants challenging the impugned order dated 28.06.2022 passed by the learned Principal District Judge, Bhavnagar in Misc. Civil Appeal No.74 of 2021, whereby the learned appellate Court below has rejected the condonation of delay of 1557 days occurred in filing of the appeal, under the Gujarat Rents, Hotel and Lodging House Rates Control Act, 1947, against the judgment and decree dated 01.04.2017 passed by the learned Additional Senior Civil Judge, Bhavnagar in Regular Civil Suit No.637 of 2004. The petitioners have also prayed for stay of implementation, operation and execution of the judgment and decree dated 01.04.2017 passed by the learned trial Court.

2. The brief facts of the present case are as under :

2.1 The present respondents No.1.1 to 1.3 are the original plaintiffs, who have filed a suit before the learned trial Court being Regular Civil Suit No.637 of 2004 against the defendants – present petitioners No.1 to 5.1 and present respondents No.2 and 3 – original defendants No.6 and 7, for eviction of tenants and recovering arrears of rent.

2.2 The learned trial Court has, after taking into consideration the various evidence – documentary as well as oral, which are mentioned in para : 3 of its judgment, framed the issues at Exh. 20, and after taking into consideration the submissions made by the learned advocates for the respective parties, allowed the suit vide judgment and decree dated 01.04.2017 and thereby directed the defendants to hand over vacant and peaceful possession of the rental premises to the plaintiffs. The learned trial Court has also directed the defendants to pay sum of Rs.26,670=68 ps., as arrears of rent and also directed the defendants to pay sum of Rs.225/- per month towards monthly rent w.e.f. 01.07.2004 to the plaintiffs until possession of the suit property is handed over to the plaintiffs.

2.3 Being aggrieved, the defendants No.1 to 3 have intended to file an appeal before the learned appellate Court below, however, there is a delay of 1557 days in preferring the appeal, therefore, they have preferred an application being Misc. Civil Application No.74 of 2021 for condonation of delay in filing an appeal before the learned appellate Court below.

2.4 The learned appellate Court below has, after considering the submissions made at the bar, rejected the said delay condonation application vide order impugned dated 28.06.2022. Since the delay is not condoned by the learned appellate Court below, the question of filing an appeal against the judgment and decree passed by the learned trial Court does not arise.

2.5 It is this order impugned that is challenged by the petitioners – original defendants No.1 to 5.1 before this Court.

3. Heard learned advocates at length. Rule returnable forthwith. Learned advocate Mr. Kanabar waives service of notice of rule for and on behalf of the contesting respondents. With consent of the learned advocates, this petition is taken up for hearing and final disposal today.

4.1 Learned advocate Mr. Nisarg H. Vyas for the petitioners has submitted that the property in question is a waqf property and therefore, only the Tribunal set up under the WAQF Act has remedy to try the case. He has further submitted that as per the provisions of Section 85 of the WAQF Act, 1995, the suit was not maintainable at all, however, the same was suppressed by the original plaintiffs and ignored by the learned trial Court and therefore, the judgment and decree passed by the learned trial Court was completely contrary to the law.

4.2 He has also submitted that since the judgment and decree itself are void ab initio, the delay in preferring the appeal would not come in the way of the petitioners, and the same is required to be condoned by the learned appellate Court below.

4.3 He has also submitted that when the decree of the learned trial Court is without ju