CRA/47/2008 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No. 47 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = SHABBANKHAN ACHHANKHAN PATHAN - Applicant Versus MOHMADSHAFI ABDULHAMID CHUNAMASTER - Respondent ========================================= = Appearance : MR NS SHETH for Applicant : 1, MR MM TIRMIZI for Respondent : 1, ========================================= = CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 01/05/2008 ORAL JUDGMENT 1. Heard learned counsel for the parties. CRA/47/2008 2/5 JUDGMENT 2. The applicant has preferred this Civil Revision Application under Section 42(1) of The Presidency Small Cause Courts Act, 1882 (hereinafter referred to as 'the Act' for short) and under Section 115 of the Code of Civil Procedure, inter-alia challenging the order dated 7.12.2007 passed by the learned Judge of the Small Causes Court in P.S.R.P. Suit No. 12 of 2006. The applicant has in fact approached this Court on earlier occasion challenging the said order by preferring Civil Revision Application No. 9 of 2008, which was permitted to be withdrawn vide order dated 18.2.2008. The said order is reproduced as under: “Shri Suresh Patel, learned advocate appearing for the applicant seeks permission to withdraw at this stage with a liberty to file it again, in case and after the suit is restored, as the Court has not opined anything on merits. The liberty is granted as sought for. Matter is dismissed as withdrawn. Notice discharged. Ad-interim relief granted earlier stands vacated. No cost.” 3. The said Civil Revision Application was ordered to be withdrawn as the applicant was hopeful of having the H.R.P. suit, which had filed in earlier point of time and which was dismissed for default, to have it restored. 4. The counsel for the applicant has made submission that this application is filed as the liberty was reserved. He submitted that the suit i.e. H.R.P. Suit was filed on earlier in point of time and there is an injunction was also obtained against eviction and therefore, there was no cause of action when P.S.R.P. Proceedings was filed under CRA/47/2008 3/5 JUDGMENT Section 41 of the Act. He submitted that therefore, the Court did have jurisdiction to entertain the application. He relied upon the decision of the Apex Court in case of MOHANNAKUMARAN NAIR VS. VIJAYAKUMARAN NAIR reported in 2007(12) Scale, 130 and submitted that the suit can be filed only when there exists a cause of action. In the instant case, relying upon the said judgment, he submits that there was no cause for application to be filed under Section 41 of the Act. The counsel has fairly admitted that the applicant did not move the Court, which was seized with the application under Section 41 of the Act with any application or prayer as envisaged under Sections 46 and 47 of the Act and the said suit was dismissed for want of prosecution and restoration application has also been dismissed and therefore, when the order impugned came to be passed, on that day, there was no suit on the file of the Court concerned. 5. Shri Tirmizi, learned counsel appearing for the respondent submitted that both the proceedings are different and even the rights are reserved to the occupant under Sections 46 and 47 of the Act, when he makes an application. In the instant case, the applicant has never approached the Court even for application for staying the proceedings on account of pendency of the H.R.P.Suit. He has placed reliance upon the following judgments (i) GIRJASHANKAR PRABHASHANKAR RAVAL VS. MANHARLAL JETASHANKAR DAVE, reported in 1983(2) GLR p.1357, (ii) SAIYED JABBARHUSSAIN VS. HASAN ABUBAKAR MALBARI, CRA/47/2008 4/5 JUDGMENT reported in 1997(2) GLH p.142 and (iii) VRUJLAL BHAGUBHAI BAROT & ANR. VS. DHARMNAGAR CO- OPERATIVE HOUSING SOCIETY LTD., reported in 2003(1) GLR p.699 and submitted that these two proceedings were different and therefore, this Civil Revision Application deserves to be rejected. He further submitted that possession has already been taken over and even otherwise also, the applicant has not made out any case for interference. 6. This Court has heard the learned counsel for the parties at length and perused the records and proceedings attached to this application. 7. This Court is unable to accept the submission of Shri Sheth, learned counsel for the applicant as the provision embodied in the Act gives right to the applicant to move the appropriate Court and give security as it is envisaged under Section 47 of the Act. The evidence on the case on hand go to show that the applicant has not moved any application. There is no provision banning such application to be filed and this Court has in fact held that both the proceedings are different and distinct. The application is said to have not been treated as resjudicata to the suit and therefore, the submission of Shri Sheth does not seem to be on merit requiring any consideration. Apart from this, there is no other submission is made by Shri Sheth. Therefore, the application deserves to be rejected. It also deserves to be noted that there is some submission by the counsel for the applicant on earlier occasion and the permission for withdrawal was granted CRA/47/2008 5/5 JUDGMENT as the applicant's counsel and applicant were anticipated restoration of the suit but when the H.R.P. Suit is not restored and the restoration application was also dismissed, the present Civil Revision Application deserves to be dismissed and is dismissed accordingly. The Court is not inclined to interfere with the order impugned. The Revision Application fails and is accordingly dismissed. Rule discharged. No costs. (S.R.BRAHMBHATT, J.) Further order : Shri Sheth for the petitioner requested for continuation of the status-quo, which was granted earlier. Shri Tirmizi, learned counsel for the respondents has opposed the request of Shri Sheth as the status-quo is only to the effect that the respondent is unable to alienate property in any manner, though possession has already been taken over. In light of this, this Court is not inclined to accept the request of Shri Sheth. (S.R.BRAHMBHATT, J.) pallav