IMPORTANT POINT
Issue regarding rent shall be decided by City Civil Court at the time of adjudication of suit for eviction of respondent.

JUDGMENT (ORAL)

Dr. Ashokkumar C. Joshi, J.—This petition is filed under Articles 226 and 227 of the Constitution of India, by the petitioner – original plaintiff against the impugned order dated 18.2.2020 passed by the learned City Civil Judge, Court No.14, Ahmedabad below application Exh. 94 in Civil Suit No.1599 of 2008.

2. Heard learned advocate Mr. Digant Popat for the petitioner at length. Though duly served, none is present for the respondent. On the earlier occasion, also last chance was also given to the respondent. Today, at the request of learned advocate for the petitioner, this matter is taken up for final hearing.

3. Rule.

4. Brief facts of the case on hand are that the petitioner is the owner of the Flat No.1/15, Aashray Apartment, near Devdeep Tower, Judges Bunglow Road, Bodakdev, Ahmedabad. That, on 25.9.2004, the petitioner entered into leave and license agreement with the respondent for a period of 11 months starting from 1.10.2004. That, upon expiry of the leave and lincense agreement, the respondent continued to reside in the said flat as she wanted to move out of India and needed the Flat only for a couple of months, therefore, no further leave and license agreement was entered into between the petitioner and the respondent and the respondent was allowed to stay for further two months as she was having a seven years old child at the relevant time. That, for the reasons best known to the respondent, she did not go out of India and therefore, the petitioner repeatedly requested to the respondent to vacate the flat in question or enter into a new leave and lincense agreement. That, instead of vacating the flat or entering into a new leave and license agreement, the respondent filed a suit being Civil Suit No. 1220 of 2007 before the learned City Civil Court, Ahmedabad, praying that she be not dispossessed without following the due process of law. That, even after filing of the suit by the petitioner, the respondent did not regularly pay the amount of rent and hence, the petitioner preferred an application before the learned Trial Court and the learned Trial Court directed the respondent to pay the arrears of rent as was calculated at the relevant time. That, the respondent irregularly paying the arrears of rent as per her convenience.

5. Learned advocate Mr. Digant Popat for the petitioner heavily and fervently argued that the learned Court below has committed an error in rejecting the application of the plaintiff – the present petitioner by order dated 18.2.2020 passed by the learned City Civil Judge, Court No.14, Ahmedabad. He further contended that as such there is no sufficient reason assigned by the learned City Civil Court, therefore also, this petition may be allowed.

6. Before we advert to the merits of the case, it would be worthwhile to refer to a decision of the Apex Court in Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, (2010) 8 SCC 329, wherein, the Court has considered in detail the scope of interference by this Court to hold and observe that Article 227 can be invoked by the High Court Suo motu as a custodian of justice. An improper and a frequent exercise of this power would be counterproductive and will divest this extraordinary power of its strength and vitality. The power is discretionary and has to be exercised very sparingly on equitable principle. The observations of the Hon’ble Supreme Court, read as under:—

“57. Articles 226 and 227 stand on substantially different footing. As noted above, prior to the Constitution, the Chartered High Courts as also the Judicial Committee of the Privy Council could issue prerogative writs in exercise of their original jurisdiction. [See 1986 (Suppl.) SCC 401 at page 469)].

58. However, after the Constitution every High Court has been conferred with the power to issue writs under Article 226 and these are original proceeding. [State of U.P . and others vs. Dr. Vijay Anand Mahara j - AIR 1963 SC 946, page 951].

59. The jurisdiction under