1. As common question of law and facts arise in these group of Civil Revision Applications as well as Special Civil Application and they arise out of the impugned common order passed by the learned Principal District Judge, Surat dated 28/07/2011 below Exhs. 5, 7 and 11 in Regular Civil Appeal No. 5/2009, they are decided and disposed of by this common order.
2. The facts leading to the present Civil Revision Applications and Special Civil Application in a nutshell are as under;
2.1. The applicant-original plaintiff instituted Small Civil Suit No. 466/1988 against the respondent herein-original defendant no. 2 and one another, Shri Devchandbhai Dayaljibhai Patel- original defendant no. 1 for recovery of possession on the ground of arrears of rent and subletting. It is required to be noted that it was the specific case on behalf of the respondent- original defendant no. 2 that there is no question of any subletting by original defendant no. 1 and as such original defendant no. 1 returned the possession to the applicant- original plaintiff and thereafter, original defendant no. 1 became the mediator and became the tenant of the applicant- original plaintiff. The learned trial Court did not accept the case on behalf of the respondent-original defendant no. 2. It is required to be noted at this stage so far as original defendant no. 1 is concerned, he did not contest the suit at all. The learned trial Court allowed the suit by judgment and decree dated 29/03/2008 in Small Civil Suit No. 466/1988 directing the respondent-original defendant no. 2 to handover possession of the disputed suit property in question. It appears that being aggrieved and dissatisfied with the judgment and decree passed by the learned Small Cause Court, Surat is Small Civil Suit No. 466/1988, the respondent-original defendant no. 2 preferred Regular Civil Appeal No. 5/2009 before the learned District Court, Surat and as there was delay in preferring the Appeal, Miscellaneous Civil Application was submitted in the said Appeal by the respondent to condone the delay, which came to be rejected. Being aggrieved and dissatisfied with the order passed by the learned appellate Court in not condoning the delay, the respondent-original defendant no. 2 preferred Special Civil Application No. 14126/2008, which came to be allowed by this Court condoning the delay in preferring the Appeal by keeping the contention on behalf of the applicant-original plaintiff, that the Appeal itself is not maintainable, open. Thereafter, the delay came to be condoned and the Appeal was registered as Regular Civil Appeal No. 5/2009 and thereafter the applicant submitted the application, Exh. 5 in Regular Civil Appeal No. 5/2009 to dismiss the Appeal on the ground that as original defendant no. 1-main tenant is not joined as party respondent in the said Appeal, the Appeal by the respondent-original defendant no. 2, without joining original defendant no. 1-tenant, is not maintainable. Immediately thereafter, the respondent-original defendant no. 2 submitted the application, Exh. 7 permitting him to join original defendant no. 1 as party respondent no. 2 in the said Appeal. Thereafter, one another application, Exh. 11 has been submitted by the very applicant-original plaintiff to dismiss the Appeal on the very ground, which came to be raised while submitting the application, Exh. 5. By impugned common order, the learned Principal District Judge, Surat allowed the application, Exh. 7 submitted by the respondent- original defendant no. 2 permitting him to join original defendant no. 1 as respondent no. 2 in the Appeal and dismissed the applications, Exhs. 5 and 11 submitted by the applicant herein-original plaintiff, which was submitted to dismiss the Appeal. Being aggrieved and dissatisfied with the impugned common order passed by the learned Principal District Judge, Surat below Exhs. 5, 7 and 11 in Regular Civil Appeal No. 5/2009, the applicant-original plaintiff has preferred the present Civil Revision Applications under Section 115 of the Code of Civil Procedure and Special Civil Application under Article 227 of the Constitution of India.
3. Shri Amit Thakkar, learned advocate appearing on behalf of the applicant-original plaintiff has vehemently submitted that the learned appellate Court has materially erred in dismissing the applications, Exh. 5 and 11 in not dismissing the Appeal. It is further submitted that the learned appellate Court has also materially erred in allowing the application, Exh. 7 submitted by the respondent-original defendant no. 2 and has materially erred in permitting the respondent-original defendant no. 2 to implead original defendant no. 1 as party respondent no. 2 in the Appeal. It is further submitted by Shri Thakkar, learned advocate appearing on behalf of the applicant-original plaintiff that as such when the respondent- original defendant no. 2 preferred the Appeal and he was held to be the sub-tenant, while preferring the Appeal against the judgment and decree passed by the learned trial Court, he was required to join original defendant no. 1-tenant as party respondent in the Appeal. Shri Thakkar, learned advocate appearing on behalf of the applicant-original plaintiff has further submitted that the decree was passed against both the defendants i.e. original defendant no. 1 as tenant and original defendant no. 2 as sub tenant and when the respondent- original defendant no. 2 only preferred Appeal and original defendant no. 1, who was considered to the main tenant had accepted the judgment and decree passed by the learned trial Court, relying upon the decision of the Division Bench of this Court in the case of Darayas Bamanshah Medhora Vs. Nariman Bamansha Medhora reported in 2002 (1) GLR 474, it is submitted that therefore the Appeal preferred by the respondent-original defendant no. 2 only and that too without joining original defendant no. 1 as respondent in the Appeal, the said Appeal was not maintainable and, therefore, the learned appellate Court ought to have allowed the application, Exhs. 5 and 11. It is further submitted that consequently, the learned appellate Court has materially erred in allowing the application, Exh. 7 permitting the respondent-original defendant no. 2 to join original defendant no. 1 as party respondent in the Appeal. Making the above submission, it is requested to admit/allow the present Civil Revision Applications and the Special Civil Application.
4. Both the Civil Revision Applications and the Special Civil Applications are opposed by Shri Baghel, learned advocate appearing on behalf of the respondent-original defendant no. 2. it is submitted that it was the specific case on behalf of the respondent-original defendant no. 2 that original defendant no. 1 has colluded with the applicant-original plaintiff and did not contest the suit and allowed the decree to be passed and it was also the case on behalf of the respondent-original defendant no. 2 that as such original defendant no. 1 handed over the possession to the applicant-original plaintiff and thereafter the respondent-original defendant no. 2 became the direct tenant of the applicant-original plaintiff and, therefore, when he has preferred the Appeal, it cannot be said that the Appeal preferred by the respondent-original defendant no. 2 is not maintainable. It is further submitted by Shri Baghel, learned advocate appearing on behalf of the respondent- original defendant no. 2 that as original defendant no. 2 is in possession of the disputed property in question claiming to the tenant of the applicant-original plaintiff and original defendant no. 1 did not contest the suit and, therefore, initially the respondent-original defendant no. 2 while preferring the Appeal did not join original defendant no. 1 as respondent. However, when the objection was taken, to avoid any further technicality when the respondent-original defendant no. 2 submitted the application, Exh. 7 permitting him to join original defendant no. 1 as party respondent in the Appeal and when the same has been granted, it cannot be said that the learned appellate Court has committed any error and/or illegality and, therefore, it is requested to dismiss the present Civil Revision Applications and the Special Civil Application.
5. Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that the applicant-original plaintiff instituted the suit against original defendants nos. 1 and 2 on the ground that original defendant no. 1 has sublet the suit premises to original defendant no. 2. It was the specific case on behalf of the respondent-original defendant no. 2 that in fact original defendant no. 1 returned the possession to the applicant- original plaintiff and surrendered the tenancy and thereafter original defendant no. 1 became the mediator and thereafter the respondent-original defendant no. 2 became the tenant of the applicant-original plaintiff directly and thereafter original defendant no. 1 has colluded with the applicant-original plaintiff and, therefore, as such the respondent-original defendant no. 2 was claiming tenancy right. It is also required to be noted that as such original defendant no. 1 did not contest the suit and permitted the learned trial Court to pass the eviction decree. Presumably either he has colluded with the applicant-original plaintiff as he was not in possession of the suit premises in question. Under the circumstances, when the respondent-original defendant no. 2 alone challenged the judgment and decree passed by the learned trial Court and preferred the Appeal merely because original defendant no. 1 did not contest the suit and is alleged to have colluded with the applicant-original plaintiff, it cannot be said that the Appeal preferred by the respondent-original defendant no. 2 was not maintainable and/or was required to be dismissed on the ground of bar of res judicata as contended on behalf of the applicant-original plaintiff. Under the circumstances, the learned appellate Court has not committed any error and/or illegality in dismissing the application, Exhs. 5 and 11. Even the learned appellate Court has rightly refused to dismiss the Appeal on the ground that original defendant no. 1 is not joined as party in the Appeal. At this stage it is required to be noted that original defendant no. 1 did not contest the suit and permitted the learned trial Court to pass the decree. When the respondent-original defendant no. 2 claims direct tenancy and he was in possession of the disputed suit property in question, under bonafide impression that as original defendant no. 1 has not contested the suit and was not in possession of the suit property he did not join original defendant no. 1 in the Appeal and when subsequently, the application, Exh. 7 was given permitting the applicant-original plaintiff to join original defendant no. 1 in the Appeal to avoid any further technicalities and when the same has been granted, the learned appellate Court has not committed an error and/or illegality in allowing the application, Exh. 7 permitting the respondent-original defendant no. 2 to join original defendant no. 1 as party respondent in the Appeal. The common order passed by the learned appellate Court below Exhs. 5, 7 and 11 are just and proper, which are not required to be interfered with by this Court in exercise of revisional jurisdiction and/or in exercise of powers under Article 227 of the Constitution of India.
6. In view of the above and for the reasons stated hereinabove, the present Civil Revision Application Nos. 47/2012 and 48/2012 and Special Civil Application No. 18792/2011 deserves to be dismissed and are accordingly dismissed. Notice is discharged. No cost.
(M.R. SHAH, J.) siji