BHANUPRASAD CHHOTALAL SHROFF Vs. KACHHIYA AMRITLAL GORDHANDAS

JUDGEMENT

(1.) The petitioners were the plaintiffs in Regular Civil Suit No. 303 of 1978 filed in the Court of the learned Civil Judge (J.D.) Petlad for recovering vacant and peaceful possession of the suit premises from the opponent herein as also from the original defendant No. 1 Patel Shanabhai Zaverbhai who was the original tenant. The decree for possession of the suit premises was sought by the petitioners on the ground of subletting by the said Patel Shanabhai Zaverbhai to the present opponents Kachhiya Amritlal Gordhandas. It appears that Patel Shanabhai Zaverbhai had vacated the suit premises much earlier by subletting the same to the opponent. The learned Civil Judge (J.D.) Petlad decreed the suit by his judgment and decree dated 6-2-1985. The present opponent and the original defendant No. 1 had filed Regular Civil Appeal No. 160 of 1985 in the Court of the learned Assistant Judge Kheda at Nadiad. The said appeal was dismissed by the order dated 10-12-1985 and the original decree passed by the learned Civil Judge (J.D.) Petlad was confirmed. The present opponent and original defendant No. 1 pursued the matter further and filed Civil Revision Application No. 335 of 1986 before this Court. This High Court by its order dated 17-3-1986 rejected the said Civil Revision Application summarily the same having been withdrawn (Coram: M. B. Shah J.). While allowing the Civil Revision Application to be withdrawn M. B. Shah J. observed in his order dated 17-3-1986 that Mr. Patel appearing on behalf of the respondents has agreed not to execute the decree upto 1 on an usual undertaking filed by the petitioners. It was further stated in that order that the undertaking should provide that the petitioners would hand over vacant and peaceful possession of the suit premises on or before 1-4-1987 that they would not part with the possession of the suit premises in favour of anybody; that they would go on paying mesne profits regularly and if there is arrears of rent the petitioners would pay it within four weeks from 17-3-1986.

(2.) Pursuant to the aforesaid order the opponent filed an undertaking before this Court on 25-3-1986. We have seen and perused the original undertaking which is on affidavit and which bears the signature of the present opponent Amrutlal Gordhanlal Patel (Kachhiya Amritlal Gordhandas). He has stated in the undertaking inter alia that he will vacate the rented premises on or before 1-4-1986 without raising any objection whatsoever to the respondents original plaintiffs. He has further stated that he gives an undertaking that he would not alienate or transfer the possession of the suit premises or any part thereof in any manner whatsoever to any one and that he would hand over the vacant and peaceful possession of the suit premises on or before 1-4-1987 to the landlord-plaintiff alone and none else. He has further stated in the said affidavit that the members of his family residing with him would not raise any objections or obstruction in the handing over of possession to the respondents. He has further stated that he would pay mesne profits at the rate of R3. 7/- per month to the respondent directly at his address till he occupied the said suit premises.

(3.) The opponent failed to abide by the undertaking and did not hand over the vacant possess on of the suit premises on or before 1 Instead he filed Civil Application No. 420 of 1987 for extension of time to vacate. Despite the resistance by the petitioners herein the Court by its order dated 8-4-1987 granted further time to the opponent till 31-5-1987 to vacate the suit premises on condition that the opponent filed the undertaking on the same day before the Court. Copies of both the undertakings are produced by the petitioners and they are at Annexures B and D to the petition. The copy of the order by which this Court extended the time to vacate is at Annexure C. We have also perused the original second undertaking given by the present opponent. The second undertaking is dated 8-4-1987 and is on affidavit. He has stated therein that he would vacate the rented premises on or before 31-5-1987 without raising any objection whatsoever to the respondent-original plaintiffs. He has failed to abide by his second undertaking also. Hence this Miscellaneous Civil Application.