BHAGWANJI VISHAVJI THAKKAR Vs. PRAVINCHANDRA JIVANBHAI PATADIA

JUDGEMENT

(1.) By this Civil Revision Application, the petitioner-tenant, who has in his favour a temporary mandatory order directing Jivanlal Jerambhai Patadia - second respondent (landlord) to restore possession of the suit premises to the present petitioner, has made grievance that by dubious and diabolical design, the respondent Nos. 1 and 2 (son and father) have not only rendered order of the High Court of Gujarat in favour of the present petitioner meaningless but has obtained prohibitory injunction so as to keep petitioner out of the suit premises. It is such order of injunction granted by two Courts below, which is under challenge in this Civil Revision Application.

(2.) In order to properly appreciate the grievance of the petitioner-tenant and the circumstances under which the respondents son and father have overreached and rendered nugatory the success of the petitioner-tenant in obtaining mandatory direction for restoration of possession of suit premises from three Courts including this High Court by getting subsequent suit instituted at the instance of his son, it is necessary to set out relevant facts giving rise to the present proceeding hereunder : (i) The present petitioner-Bhagwanji Vishavji Thakkar claims to be the tenant of suit premises comprising of shop stituated in "Matru Chhaya" building in Chunarawad Street No. 4 at Rajkot. The respondent No. 2 - Jivanlal Jerambhai Patadia is admittedly the landlord of the suit premises. Respondent No. 1 Pravinchandra Jivanbhai Patadia is the son of the landlord. (ii) Respondent No. 2 - Jivanlal Jerambhai Patadia (landlord) instituted a Regular Civil Suit No. 177 of 1991 on 9-9-1991 against one Ashwinkumar Balvantrai Tanna inter alia alleging that said Ashwinkumar Tanna was the tenant of the shop in question and that he was liable to be evicted for non-payment of rent and for non-user of the suit premises. On 15-6-1992 such suit for possession was decreed in favour of Jivanlal Jerambhai Patadia. He thereupon filed Regular Civil Darkhast No. 22 of 1992 and the Executing Court issued possession warrant under Order 21 Rule 35 of the C.P. Code on 23rd July, 1992. Possession of the suit shop was taken over by Jivanlal Jerambhai Patadia through Court by breaking open lock of the suit shop. The present petitioner (tenant) was not party in this proceeding. (iii) It will not be out of place to mention that such decree was obtained by Jivanlal Jerambhai Patadia by perpetrating fraud with the trial Court and perhaps collusively. The regular address of said tenant Ashwinkumar Balvantrai Tanna is shown in the plaint of that suit at village Bedla and summons of the suit was allegedly served on said Ashwinkumar Tanna at village Bedla. The usual address of the suit shop, namely, at "Matru Chhaya" building in Chunarawad Street No. 4 at Rajkot was not given nor is summons of the suit served on said Ashwinkumar Tanna at the address of the shop. From the record of the proceedings of Regular Civil Suit No. 177 of 1991 it becomes clear that said Ashwinkumar Balvantrai Tanna never appeared in the suit and the suit was ordered to be heard as ex parte. It is also pertinent to note that in the Small Causes Court at Rajkot, ordinarily, rent possession suits are finally heard and decided approximately between 5 to 6 years. The trial Court never cared to know as to why the summons of the suit was sought to be served at village Bedla while the said tenant was carrying on business at "Matru Chhaya" building at Rajkot. Within a short span of six months, the trial Court proceeded to record evidence of Jivanlal Jerambhai Patadia, the landlord, and on the basis of such ex parte evidence, proceeded to pass the ex parte decree of possession against said tenant Ashwinkumar Tanna. From the documentary evidence in the nature of Municipal Bill, Electricity Bill, etc. there was nothing on record before the trial Court to reach a finding that said Ashwinkumar Tanna was ever the tenant of the suit shop. In fact, according to the present petitioner, Bhagwanji Vishavji Thakkar, he is tenant of the suit shop since last 18 years at a monthly rent of Rs. 75.00 and he has never ceased to be the tenant of the suit shop. (iv) The present petitioner, who is claiming to be the tenant of the suit shop and who was out of Rajkot at Talod as wife of his brother was seriously ill, came to know that possession of the suit shop was taken over by the landlord by breaking open the lock on or about 23rd of July, 1992 and he also took possession of all the goods of the present petitioner, which were lying in the suit shop. On coming to know about this fact, he rushed to Rajkot and on 24th July, 1992, filed a Criminal complaint being Criminal Case No. 415 of 1992 in the Court of J. M. F. C., Rajkot. He also filed an application in the Executing Court to return to him the goods of his ownership of which possession was taken during executing of decree by the landlord. Such application was filed with a view to proving that on the date on which ex parte decree was executed and possession was illegally and collusively taken by the landlord, actually the present petitioner-tenant was in possesion of the suit premises and the goods of his ownership were lying in the suit shop. Such application was filed in the Executing Court which was said to be pending and it is clearly stated in such application that all goods attached and recovered from the suit shop were of the ownership of present petitioner-tenant. (v) The present petitioner also instituted Regular Civil Suit No. 150 of 1992 in the Court of Small Causes at Rajkot on 7th August, 1992 against landlord Jivanbhai Jerambhai Patadia for declaration and permanent injunction declaring that the judgment and decree obtained by landlord in Regular Civil Suit No. 177 of 1991 was fraudulent and collusive and was null and void and he also prayed to hand over the goods of his ownership attached and recovered from the suit shop by the landlord and he also applied for temporary mandatory injunction directing the landlord to hand over the possession of the suit shop to him. In such suit, he obviously impleaded Jivanbhai Jerambhai Patadia (landlord) as party defendant because the said landlord has fraudulently and collusively obtained a decree of possession against him and has by executing such decree illegally and unauthorisedly obtained possession of the suit shop. (vi) Such application at Exhibit-5 filed by the present petitioner-tenant for mandatory direction or restoration of possession of suit shop was heard by the Court of Small Causes at Rajkot and by judgment and order dated 25th May, 1993, the Court granted mandatory direction to the landlord Jivanlal Jerambhai Patadia to restore possession of the suit shop to the present petitioner. (vii) It is pertinent to note that the order below Exhibit-5 for mandatory direction for restoration of possession of the suit shop was granted by Small Causes Court at Rajkot in favour of the present petitioner-tenant on 25th May, 1993. It is equally important to note that the landlord Jivanlal Jerambhai Patadia thereupon filed Misc. Civil Appeal No. 40 of 1993 in the District Court at Rajkot which came to be dismissed on 12th of August, 1993 whereby the District Court confirmed the findings reached by the trial Court that possession of the suit shop was fraudulently and collusively taken by the landlord by collusively filing the suit and by impleading one Ashwinkumar Balvantrai Tanna as party defendant though he was never the tenant of the suit shop. (viii) It is still more interesting to note that after such appeal preferred by the landlord (father) came to be dismissed by the District Court at Rajkot on 12th August, 1993, the son, namely, Pravinchandra Jivanbhai Patadia, for the first time came forward and instituted Regular Civil Suit No. 143 of 1993 on 18th August, 1993. There is no manner of doubt in the mind of this Court that his son Pravinchandra Jivanbhai Patadia was acting as a stooge at the instance of his father and having come to know that mandatory direction was issued by two competent Courts to restore possession to the original tenant, the son instituted the present suit being Regular Civil Suit No. 143 of 1993 on 18th August, 1993. This was nothing but a dubious and diabolical device adopted by the father Jivanlal Jerambhai Patadia in collusion with his son, of course, under legal advice with a view to defeating the temporary mandatory injunction granted by two Courts below and with a view to rendering nugatory and ineffective the orders of the competent Civil Courts. This exercise undertaken by the son Pravinchandra Jivanbhai Patadia after the judgment and order passed by the District Court in Misc. Civil Appeal No. 40 of 1993 speaks volume about the intention of the original landlord and his son. In the opinion of this Court, the process of the Civil Court was blatantly misused and abused solely with a view to rendering meaningless the order of temporary mandatory injunction granted by two Courts concurrently directing the landlord to restore possession of the suit shop to the tenant. (ix) To add to this glaring, eye-opening and collusive facts, this Court is surprised to note one another important fact. The father Jivanlal Jerambhai Patadia, being aggrieved by the judgment and order passed in Misc. Civil Appeal by the District Court of Rajkot, preferred Civil Revision Application No. 1251 of 1993 which came to be finally decided by K. R. Vyas, J. on 1st of October, 1993. In such Judgment, Justice K. R. Vyas, in the very first paragraph very pertinently observed as under :

(3.) Aforesaid orders of injunction granted by two Courts below against the petitioner-tenant are under challenge before this Court.