JIVANBHAI JERAMBHAI PATADIA Vs. BHAVANJEE VINASJEE THAKKAR

JUDGEMENT

(1.) In rarest of rare cases the Court passes the order restoring the possession to the tenant at the interlocutory stage. This is one of such cases where the Courts below have done so and in my view rightly so.

(2.) The respondent-plaintiff in his suit being Regular Civil Suit No. 150 of 1992 has averred that he is the tenant of the petitioner-defendant in a shop situated in Rajkot since last 18 years at a monthly rent of Rs.75/- and he is carrying on his business in the rented shop in the name and style of Jay Jalaram Sweet Mart. It is the specific case of the respondent that the petitioner does not give rent receipt. The respondent was required to go to Talod town to see the health of his brothers wife where he stayed for about 3 to 4 months and in his absence his wife and son were carrying on the business in the rented shop. Owing to the sickness of his wife the suit shop was not opened for some time and remained closed. On 23-7-1992 the petitioner illegally broke open the rented shop and look possession of the suit and the goods of the respondent lying in the suit shop. On coming to know about the same the respondent on 24-7-1992 filed a criminal complain being Criminal Case No. 415 of 1992 in the Court of learned J.M.F.C. Rajkot. To the surprise of the respondent in his absence the petitioner filed a suit being Regular Civil Suit No. 177 of 1991 in the Court of Small Causes Rajkot for eviction of one Ashwinkumar showing him as tenant of the suit promises. It is further the case of the respondent that the petitioner in collusion with said Ashwinkumar had obtained decree of eviction which is clear from the fact that in the said suit address of Ashwinkumar was shown at village Bedla and summons was also served on that address. The present respondent was not joined in the said suit. In any case ex parte decree was obtained by fraud in the said suit and therefore according to the respondent he decree obtained by the petitioner is void ab initio. As per the say of the respondent one Balvantrai Somiya was originally a tenant of the suit shop; on his vacating the suit promises in 1979 the respondent has become a tenant of the suit shop and on the dale of filing of Regular Civil Suit No. 177 of 1991 by the present petitioner and even on the date of execution of the decree passed in the said suit the respondent was in possession of the shop as a tenant. The respondent therefore filed the present suit for a declaration that the judgment and decree passed in Regular Civil Suit No. 177 of 1991 is null and void and not binding to the respondent to set aside the same and for possession of the rented shop and goods belonging to respondent illegally seized and for temporary injunction restraining the petitioner from transferring assigning or selling to any other person the suit shop till the disposal of the suit. Similar relief by way of ad interim order was also prayed vide Exh.5 for restoration of the possession of the suit shop and goods to the respondent.

(3.) The petitioner had appeared in the suit and opposed Exh.5 He also denied the averments made in application Exh.5 According to the petitioner the respondent was never a tenant of the suit shop and the suit filed by him is frivolous vexatious and the same is required to be dismissed. It is further stated by him that the respondent is not entitled to the possession of the suit shop as the same has been let out to Ashok Mandap Service from 1 and therefore the possession of the rented shop cannot be ordered to be restored to the respondent.