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Chunilal Maijibhai Vs. Shankerbhai Harjibhai and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1979)2GLR123
AppellantChunilal Maijibhai
RespondentShankerbhai Harjibhai and anr.
Excerpt:
- .....claiming in a way through shantilal, who was the representative of the petitioner and paul in that suit. shantilal had procered the decree both for himself and for his two brothers, including the prosent petitioner. if the said decree came to be set at naught, the petitioner also will be bound to render restitution. in other words, for all practical purposes, he was a party to that order through his brother shantilal through whom this chunilal and paul had filed the suit.4. the respondent no. 1 shankerbhai then moved the court with an application ex. 37 impleading shantilal and the new tenant as a party and requested the court that the bailiff should be sent again for execution the order. the court passed the order on 29-9-78 directing the bailiff to remove the obstruction and put.....
Judgment:

N.H. Bhatt, J.

1. This petition under Section 115 of the Civil Procedure Code is a glaring example of how technicalities arc resorted to the exclusion of the spirit and even latters of law.

2. A few facts require to be stated. The Respondent No. 2 Shantilal Maijibjai iis the brother of the present applicant Chunilal Maijibhai. They have one third brother also named Paul. The three brothers jointly own some property in the City of Ahmedabad and the respondent No. 1 Shankerbhai Hrjibhai admittedly is their tenant of those premises. The respondent No. 2 Shantilal professing to be the manager of the property of the three brothers filed one suit against this respondent No. 1 Shankerbhai for possession on the ground of non-payment of rent. An ex-parte decree came to be passed against Shankerbhai somewhere in May 1975 and it came to be executed also on 7-7-76 by Shantilal obviously both for himself and for his two brothers Chunilal and Paul. The respondent No. 1 Shankerbhai thern moved the court for setting aside the ex-parte decree and he succeeded in getting it set aside, presumably on the ground that he was not duly served with the summons. Obviously, the steps were required to beretraced and, therefore, Shankerbhai filed an application to the learned Judge dealing with that suit. The learned Judge for curious reasons held that the application in the suit was not maintainable, but Shankerbhai should file an independent application presumably under Section 144 of the Code obviously for the purpose of restitution. On being so told, Shankerbhai filed a Mis. Application No. 2910 in that very court. For understandable reasions he made Shantilal, the plaintiff, as the only party. He also impleaded the alleged new tenant as a party, but he did not implead the present applicant Chunilal and Paul. Teh learned Small Causes Judge decided that application on 22-12-77 and passed an order for restitutution. The petitioner Chunilal and his brother Shanitlal and Paul obviously would not be interested in allowing the property slip out of their hands and so the present petitioner filed regular civil suit No. 329 of 1978 for an injunction restraining Shankerbhai from taking possession and in that suit, an application for interim injunction was also filed, but the court did not grant ad interim injunction, but issued only a notice.

3. Thereafter the bailiff of the Small Causes Court went to the site to execute the order dated 22-12-77, but the present petitioner Chunilal obstructed him and so the respondent No. 1 Shankerbhai filed a Misc. Application No. 3549 of 1979 for removal of the obstruction by resort to Order 21 Rule 97 of the Code, but he was advised, quite rightly to withdraw that application as misconceived. I say that he withdrew it rightly because the obstructionist was not a person claiming in his own independent right, but he was claiming in a way through Shantilal, who was the representative of the petitioner and Paul in that suit. Shantilal had procered the decree both for himself and for his two brothers, including the prosent petitioner. If the said decree came to be set at naught, the petitioner also will be bound to render restitution. In other words, for all practical purposes, he was a party to that order through his brother Shantilal through whom this Chunilal and Paul had filed the suit.

4. The respondent No. 1 Shankerbhai then moved the court with an application Ex. 37 impleading Shantilal and the new tenant as a party and requested the court that the bailiff should be sent again for execution the order. The court passed the order on 29-9-78 directing the bailiff to remove the obstruction and put Shankerbhai into possession of the suit premises forthwith. The bailiff executed the said order on 4-10-78. The petitioner has, therefore, filed the present application under Section 115 of the Code, alleging that the learned Judge of the Small Causes Court had no jurisdiction to pass the order so as to affect adversely the interest of the petitioner without affording him an opportunity of audience.

5. The above-mentioned narration of facts once for all shows that the petitioner has come to this Court with unclean hands. He is out to reap the benefits of some technicality. Even if his plea is legally sound, this Court is not bound to exercise its revisional jurisdiction, which is discretionary in its character from the very nature of things. I, thererfore, decline to interfere with the order passed by the learned Judge. On this short ground of my refusal to interfere, the revision application fails. Even if the plea raised by the petitioner is technically sound, though I hasten to add that the petitioner has no legs to stand upon whatsoever as I shall instantly show.

6. The above-mentioned facts show that the present petitioner Chunilal wanted to reap the benefir of the decree which his brother Shantilal had procured for the common benefit. In other words, Shantilal was his agent for the purpose of litigation. The petitioner Chunilal now cannot turn round and say that the agency was limited only for the purpose of the suit, but was denied to Shantilal for the proceedings which are the offspring of that litigation. The agency in my opinion continues for the purposes of the suit and for all ancillary proceedings that emerge from that suit. The application for restoration was necessarily an ancillary proceeding because it had arisen for the purpose of restitution, which was called for on the event of the ex-parte decree being set aside and the suit being restored to file. Even on merits also, the petitioner is not entitled to claim any relief. In above view of the matter, I dismiss this revision application with costs. Rule is accordingly discharged.


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