DINESHCHANDRA C. SHETH Vs. MAHESHCHANDRA C. SHAH

JUDGEMENT

(1.) The respondent is full brother of the appellant. The respondent filed one petition in the Court of Small Causes at Ahmedabad under Section 41 of the Presidency Small Cause Courts Act, 1882 (hereinafter to be referred to as 'the Act') for recovery of possession of the suit property from the appellant, on the allegation that the suit property had fallen to the share of the respondent, while the appellant was in permissive possession and was not entitled to continue in possession. The Court of Small Causes at Ahmedabad passed an order in favour of the respondent. The appellant then filed Civil Suit No. 1950 of 1986 in the City Civil Court at Ahmedabad and also filed an application at Exhibit 5 and prayed for temporary injunction to restrain the defendant from executing the possession warrant ordered to be issued by the Small Causes Court in the proceedings started under Section 41 of the Act by the respondent. The learned Judge of the City Civil Court after hearing the learned advocates for the parties refused to grant temporary injunction as prayed for by the Appellant. Being dissatisfied with the order passed by the learned trial Judge, the appellant has come in appeal before this Court.

(2.) Before going to the discussion of the rival submissions made before me, it would be proper to refer to some relevant provisions of the Act. Section 41 of the Act empowers the Court of Small Causes established under the Act to entertain an application against a person in possession of immovable property, as a tenant, or by permission, of another person, or of some person through whom such other person claims. Section 43 of the Act empowers the said Court to direct such person to hand over possession of the immovable property to the applicant. Section 47 of the Act as amended in its application to the State of Gujarat provides that if the occupant, at the earliest opportunity, and in any event, before filing any statement of defence binds himself, with two sureties, in a bond for such amount as the Court thinks reasonable, having regard to the value of the property and the probable costs of the suit, to institute without delay a suit in the City Civil Court against the applicant, for compensation for trespass and to pay all the costs of such suit in case he does not prosecute the same or in case judgment therein is given for the applicant, the Small Cause Court shall stay the proceedings on such application until such suit is disposed of.

(3.) Section 49 of the Act in its application to the City of Ahmedabad lays down that recovery of the possession of any immovable property under Chapter VII of the Act will not be a bar to the institution of a suit in the City Civil Court for trying the title there to.