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Kaluram Bheruji Vs. Bai Parvati - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 1357 of 1981
Judge
Reported inAIR1982Guj233; (1982)1GLR201
ActsCode of Civil Procedure (CPC), 1908 - Sections 47 - Order 23, Rule 3
AppellantKaluram Bheruji
RespondentBai Parvati
Appellant Advocate P.B. Majmudar, Adv.
Respondent Advocate J.N. Jadeja, Adv.
Excerpt:
.....the bench of court of small causes at ahmedabad, 4. when the appeal was heard by the appellate bench of small causes court at ahmedabad, on behalf of the tenant a pursis was given to the division bench of court of small causes, and in that pursis, it was clearly stated, that if four years time was given to vacate the suit premises, the petitioner tenant would not take any of the contentions raised by him in the appeal. the pursis, clearly in terms provided, that if four years' time was given to the tenant to evict the suit premises in question. i am convinced beyond any doubt, that the decree of eviction passed by the court is without any jurisdiction, and if in pursuance to such a decree, if the possession of the tenant in regard to the suit premises is disturbed or taken away by..........the bench of court of small causes at ahmedabad,4. when the appeal was heard by the appellate bench of small causes court at ahmedabad, on behalf of the tenant a pursis was given to the division bench of court of small causes, and in that pursis, it was clearly stated, that if four years time was given to vacate the suit premises, the petitioner tenant would not take any of the contentions raised by him in the appeal.5. the appellate bench of the court of small causes, without any title, of jurisdiction for reducing the said period, reduced the aforesaid period from four years to three years. and confirmed the eviction decree passed by the learned trial judge.6. it is unfortunate that after the disposal of the appeal, the husband of the respondent-landlady died,7. under the.....
Judgment:
ORDER

1. In extremely unfortunate circumstances this matter has come up before me in revision.

2. I will very briefly indicate the circumstances under which this matter has come up before me for disposal.

3. An eviction decree was obtained by the plaintiff against the petitioner who was the tenant of the suit premises at the relevant time. After the eviction decree was obtained, as appeal was filed by the tenant which came up for disposal before the Bench of Court of Small Causes at Ahmedabad,

4. When the appeal was heard by the Appellate Bench of Small Causes Court at Ahmedabad, on behalf of the tenant a pursis was given to the Division Bench of Court of Small Causes, and in that pursis, it was clearly stated, that if four years time was given to vacate the suit premises, the petitioner tenant would not take any of the contentions raised by him in the appeal.

5. The Appellate Bench of the Court of Small Causes, without any title, of jurisdiction for reducing the said period, reduced the aforesaid period from four years to three years. and confirmed the eviction decree passed by the learned trial judge.

6. It is unfortunate that after the disposal of the appeal, the husband of the respondent-landlady died,

7. Under the aforesaid circumstances, Mr. P, B. Majmudar. the learned advocate for the tenant raised a neat point of law. which in his submission, has resulted into grave and patent miscarriage of justice.

8. Mr. Majmudar the learned advocate for the tenant, urged before me, that in the instant case, what was the pursis which was given by the tenant to the Bench of Small Causes Court? The pursis, clearly in terms provided, that if four years' time was given to the tenant to evict the suit premises in question. the tenant would not press any of the contentions raised by him in the appeal memo, In spite of the said categorical statement made by the tenant in the Appellate Court of Small Causes, the learned Judges of the Appellate Bench of Small Causes Court, without any title of jurisdiction, reduced the aforesaid period of four years to three year.

9. On the aforesaid facts. the controversy which was centered round at the bar was. that the Appellate Bench of the Court of Small Causes has no jurisdiction to reduce the period from four years to three years, and hence. the only alternative open to it was to hear the appeal on the merits of the matter.

10. Under the aforesaid circumstances, when this revision application was placed before me, it was brought to my notice by Mr. Majmudar. that even the decree in question was executed only a few days before the present Civil Revision Application was filed in this Court. and his grievance was, that as it was a decree passed by a Court without any jurisdiction, and hence, a non est decree; and the Executing Court obviously erred in executing the same, and in disturbing the possession of the tenant.

11. Under the aforesaid circumstances. I requested Mr. Shelat on Aug. 28, 1981 to be ready on the point involved in the matter. and gave time to him to study the matter, but when to-day the matter reached hearing, Mr. Jadeja another advocate appeared before me for the opponent-landlady, I requested Mr. Jadeja to satisfy me as to how the Appellate Bench of the Court of Small Causes has the jurisdiction to reduce the period from four years to three years, If the Court of Small Causes was not inclined to accept the suggestion of the tenant, it was open for the court to dispose of the appeal on merits, and that was the only right and legal course open to it, Instead of following that procedure, the Appellate Bench of the Court of Small Causes disposed of the appeal by reducing the period from four years to three years without the consent of the tenant, and possibly without his knowledge or the tenant. 0. 23, R. 3 of the Civil P. C. does not contemplate a situation when the Court can alter the terms of the compromise, The offer which was put by the tenant was altered substantially by the Bench of the Court of Small Causes, and that being so, it was impossible for Mr. Jadeja to satisfy me, that the Appellate Bench of the Court of Small Causes has the jurisdiction to change the terms of offer without the tenant's consent.

12. Had there been consent terms duly signed by the parties and the respective advocates, the Court has to pass & consent decree arrived at between the parties, 0. 23, R, 3 of the C. P. C. also imposes an obligation on the court to scrutinise the consent terms, if there is a minor as one of the litigating parties. But if compromise is not accepted by the parties, the only alternative left to the court is to dispose of the case on its merits in accordance with law.

13. In view of what has been stated above, it is ununderstandable to my mind as to how the Appellate Court of the Court of Small Causes could have ever reduced the time of four years to three years. The only course open to the Appellate Bench was to take the appeal on its file, and should have disposed of the same in accordance with law. Instead of following the only lawful course open to the Appellate Bench, the Appellate Court substantially changed the terms offered by the tenant, and put the tenant to the detriment of his lawful rights. In this view of the matter. there is lot of substance in the grievance made on behalf of the tenant in this Court.

14. As a result of the aforesaid discussion. I am convinced beyond any doubt, that the decree of eviction passed by the Court is without any jurisdiction, and if in pursuance to such a decree, if the possession of the tenant in regard to the suit premises is disturbed or taken away by the landlady, the Exact Court will do its best immediately to take proper steps to see that the tenant is put in possession of the suit premises. Having complied with the said direction, the lower Court is directed to intimate to this Court, that it took all lawful steps to put the tenant in possession of the suit premises, and in fact it did put the tenant in possession of the suit premises.

15. As I am setting aside the decree passed by the Appellate Bench of Small Causes, I hereby direct that this matter should go back to the Appellate Bench of Small Causes, and the Appellate Bench of Small Causes at Ahmedabad should dispose of the Appeal being Civil Appeal No. 323 of 1975 in accordance with law. This is a case where the tenant was Put to undue hardship, and the tenant is without any roof. over her head, and hence, justice demands that I should award costs to the tenant.

16. In the result, the revision application succeeds with costs, and the lower Appellate Court is directed to take Civil Appeal No. 323 of 1975 on the file and the appeal should be disposed of in accordance with law. the lower Court is directed to carry out my directions immediately. Rule is made absolute with costs.

17. Mr. Jadeja made an oral application, that I should stay operation of my order. Having regard to what I have stated above. it is not possible for me to accede to the oral application of Mr. Jadeja. and hence, the same is rejected.

18. Petition allowed.


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