1. The present Civil Revision Application under Section 29(2) of the Bombay Rent Act has been preferred by the applicants- original defendants nos. 1 and 2 to quash and set aside the impugned judgment and decree passed by the learned Small Cause Court at Ahmedabad dated 05/02/1988 in HRP Suit No. 26/1991 as well as the impugned judgment and order passed by the learned appellate Bench of the Small Cause Court at Ahmedabad dated 03/12/2002 in Civil Appeal No. 40/1998 by which the learned appellate Court has dismissed the said appeal preferred by the applicants-original defendants nos. 1 and 2 and another confirming the judgment and decree passed by the learned trial Court decreeing the suit and passing the eviction decree against the applicants-original defendants nos. 1 and 2 and one another on the ground of unlawful subletting by applicant no. 1-original defendant no. 1 in favour of original defendants nos. 2 and 3.
2. Today, when the present Civil Revision Application is taken up for final hearing, Shri K.V. Shelat, learned advocate appearing on behalf of the applicants-original defendants nos.
1 and 2 has declared that applicant no. 1-original defendant no. 1, who was the head tenant, has expired and no steps are taken to bring the heirs of applicant no. 1-original defendant no. 1 on record. Hence, the present Civil Revision Application is dismissed as having been abated so far as applicant no. 1- original defendant no. 1 is concerned.
2.1. Now so far as the present Civil Revision Application qua applicant no. 2-original defendant no. 2 is concerned, Shri K.V. Shelat, learned advocate appearing on behalf of the applicants- original defendants nos. 1 and 2 does not press the present Civil Revision Application and seeks permission to withdraw the present Civil Revision Application in view of the concurrent finding of fact given by both the Courts below of subletting by applicant no. 1-original defendant no. 1 in favour of original defendants nos. 2 and 3, however, has requested to grant reasonable time to applicant no. 2-original defendant no. 2 to vacate the suit premises, more particularly, nine months time to vacate the suit premises on filing usual undertaking. He has stated at the bar that usual undertaking to the effect that applicant no. 2-original defendant no. 2 is in exclusive possession of the suit premises and he shall handover vacant and peaceful possession of the suit premises to the respondents on or before 30/04/2013 and in the meantime, he shall continue to pay the mesne profit at the rate of Rs. 36/- per month and monthly tax as and when due and payable shall be filed. He has also stated at the bar that applicant no. 2- original defendant no. 2 shall also file an undertaking that in the meantime, he shall not transfer, alienate the suit premises to any other person in any manner whatsoever. He has stated at the bar that such an undertaking, with a copy to the learned advocate appearing on behalf of the respondents, shall be filed on or before 07/08/2012.
3. Shri M.D. Pandya, learned advocate appearing on behalf of the respondents-original plaintiffs has requested to pass an appropriate order by granting reasonable time to applicant no. 2 to vacate the suit premises on filing usual undertaking and complying the same and liberty be reserved in favour of the respondents-original plaintiffs to execute the decree passed against original defendant no. 3 who has not challenged the same if he is found to be in possession of the portion of the suit premises.
4. In view of the above and for the reasons stated herienabove and considering the request made by Shri K.V.
Shelat, learned advocate appearing on behalf of the applicant no. 2-original defendant no. 2, the present Civil Revision Application is dismissed as withdrawn. However, applicant no. 2-original defendant no. 2 is granted time to vacate the suit premises up to 30/04/2013 on filing usual undertaking as stated hereinabove and is directed to handover peaceful and vacant possession of the suit premises to the respondents- original plaintiffs on or before 30/04/2013 without fail.
5. With this, the present Civil Revision Application is dismissed as withdrawn. If, for any reason, applicant no. 2- original defendant no. 2 does not handover peaceful and vacant possession to the respondents-original plaintiffs on or before 30/04/2013 it will be open for the respondents-original plaintiffs to take immediate steps to vacate the suit premises and/or to get the premises vacated inclusive of initiating contempt proceedings in breach of undertaking. It goes without saying that it will be open for the respondents-original plaintiffs to execute the decree against applicant no. 3-original defendant no. 3, who has not challenged the impugned judgment and decree passed by both the Courts below. If original defendant no. 3 is found to be in possession of any portion of the suit premises, the same shall be considered in accordance with law and on its own merits. Rule is discharged.
(M.R. SHAH, J.) siji