ORDER IN FIRST APPEAL:
Admit. Learned advocate Mr. A. R. Lakhia waives service of notice of admission for and on behalf of the respondents no.2 to 4.
Present appellant, who was original defendant before the trial Court in Civil Suit No. 2384 of 2014, has challenged the judgment and decree dated 4th May 2018 directing the present appellant/original defendant to handover peaceful and vacant possession of premises, and pay damages and charges amounting Rs. 2,00,000/-; as awarded.
Brief facts of the case reflects as under:
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C/FA/4517/2018 ORDER That, one Rameshchandra Nagindas Modi had purchased premises with tenants as the Corporation being in occupation on ground floor of the property vide registered sale deed dated 25th October 1978. The plaintiffs were legal heirs of the deceased-Rameshchandra Nagindas Modi. In the suit, they claimed that original owner was given the suit premises for running health centre and since according to them, activities were not undertaken and facilities were shifted, therefore, suit was filed by the plaintiffs before the City Civil Court, Ahmedabad.
On receiving the summons issued by the court below, the defendant appeared through his advocate but did not file any written statement nor any evidence was laid by him. The defendant did not make any cross examination of the original plaintiffs, and therefore, the suit came to be allowed by the judgment and decree dated 4th May 2018 inter alia directing to handover peaceful and vacant possession of the suit premises and to pay damages and charges of Rs. 2 lacs.
Heard learned advocate Mr. Deep Vyas for the appellant/original defendant and learned advocate Mr. A. R. Lakhia for the respondents/original plaintiffs. Page 2 of 7
C/FA/4517/2018 ORDER As a very narrow issue is involved in the present appeal, as to non-representation in a suit filed by the plaintiffs before the trial Court as well as now filing of written statement and no cross-examination of the plaintiffs was made by the defendant and no evidence was laid by the defendant, on a joint request made by learned advocates for the respective party, this matter is taken up for final disposal today.
It is submitted by learned advocate for the appellant/original defendant that the defendant was occupying the suit premises and was running dispensary since long. He drew attention of this Court towards tax bills issued by Ahmedabad Municipal Corporation for the year 2013, which clearly shows that dispensary was running from the year 2013. He also invited attention of this Court towards Section 28(1) of the Bombay Rent Act and submitted that the City Civil Court has no jurisdiction to entertain and try the suit. He submitted that due to the said reason, the suit was not opposed, nor written statement was filed to contest the suit. It is further submitted that no evidence was laid by the defendant and in absence of any evidence, the trial Court was pleased to allow the same.
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C/FA/4517/2018 ORDER It is requested by the learned advocate for the appellant that the suit may be remanded back for decision, afresh and necessary orders may be passed by this Court, remanding back the matter to the trial Court for afresh decision.
On the other side, learned advocate for the respondents/ original plaintiffs supported the findings and reasons assigned by the trial Court contending that sufficient opportunity was given to the defendant to file written statement and to lead evidence. That, though summons were duly served upon the defendant-Corporation, and even advocate was engaged, no written statement was filed nor any evidence was led by the defendant intentionally. That, necessary evidence; oral as well as documentary, were produced by the plaintiffs in support of their case and the learned Judge, after considering the entire evidence laid by the plaintiff, allowed the suit.
Learned counsel contended further that there was no sufficient reason not to defend the suit by the defendant, though represented by a lawyer. That, the suit was filed in the year 2014 and it was decreed in the year 2018. That, this Court may not remand the matter for deciding it afresh because after passing of four years a defence has come fore Page 4 of 7 C/FA/4517/2018 ORDER against the suit which was allowed on merits. Hence, it was requested by him to dismiss the appeal.
Having considered the facts and submissions made by learned advocates for the respective parties, it is undisputed that the appellant was holding possession on the ground floor of the suit premises; as reflected from the sale deed executed by the deceased namely Rameshchandra Nagindas Modi. His possession was shown in the sale deed executed on 25th October 1978. Of course, no other record was available before this Court nor it was placed by either the side, but from the tax bills produced before the Court, it reflects that a dispensary was operating in the suit premises. Admittedly, suit was not contested by the defendant, nor there was any active participation, though, court awarded cost for the same at each and every stage of the suit.
It also appears from observations made by the trial Court that no written statement was filed till the stage of final argument of the suit, and therefore, the suit was adjourned from time to time in the interest of justice by the trial Court. More particularly, evidence produced by the plaintiffs has remained unchallenged and the suit was finally decided. It Page 5 of 7 C/FA/4517/2018 ORDER appears from the findings arrived at by learned trial Judge that the trial Judge has considered evidence led by the plaintiffs and thereafter, came to a conclusion, allowing the suit by directing the defendant-Corporation to handover peaceful, vacant possession of the suit premises and to pay damages of Rs. 2 lacs (Rupees Two lacs) towards damages and occupation charges to the plaintiffs vide order dated 30.04.2018.
Prima facie, it appears that the appellant/Corporation was negligent in defending the suit and in filing written statement as well as to produce documentary as well as oral evidence on record. This court, considering the fact that the appellant/defendant was a tenant in the suit premises, where it was purchased by Modi Rameshchandra Nagindas, a dispensary was running in the suit premises.
Without going into merits of the case, this court is of the view that the suit needs to be decided on merits by giving further opportunity to the defendant to lead evidence before the trial Court, and therefore, this appeal is hereby allowed. Judgment and decree dated 4th May 2018 passed by the learned Judge, Court No. 17, City Civil Court, Ahmedabad in Civil Suit No. 2384 of 2014 is hereby set aside. Page 6 of 7
C/FA/4517/2018 ORDER Appellant is hereby directed to pay cost of Rs. 10,000/- (Rupees Ten thousand only) to the respondents within a period of 2(two) weeks and after depositing amount of cost by the appellant, the respondents shall be permitted to withdraw the said amount.
Learned trial Judge will decide the suit fresh without being influenced by the order of this Court.
The trial Court is hereby directed to decide the suit within a period of six months from the date of receipt of this order. ORDER IN CIVIL APPLICATION:
As the main matter is disposed of, Civil Application does not survive and is accordingly disposed of.
(B.N. KARIA, J) ksdarji Page 7 of 7