1. By way of the present application under section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the original defendant/appellant has challenged the order dated 17/11/2000 passed below Exh 39, being compromise purshis in H.R.P. Civil Suit No. 798/2006 as well as the judgment and order passed by Appellate Bench of Small Causes Court, Ahmedabad dated 20/2/2007 in Civil Appeal No. 74/2003, by which the order recorded by the Trial Court below exh 39 – compromise purshis has been confirmed.
2. The brief facts emerges from the record are as under:
2.1 The present respondent filed H.R.P.Civil Suit No. 798/96 in the Court of learned Small Causes Court Judge for decree of eviction on the ground of nuisance created by present petitioner – tenants. During pendency of the suit, one Mahendrabhai Valiya was joined as defendant No. 2 on the ground that tenant had subleted the suit premises. During pendency of suit, compromise purshis Exh 39 was submitted before learned Small Causes Court on 17/11/2000, by which the parties requested the Court to pass decree according to the compromise arrived at between the parties. Learned Judge, after recording presence of the parties and their respective advocates passed an order to draw decree in terms of compromise as per Exh 39.
2.2 It was the case of the applicant tenant that on 17/11/2000 when the alleged compromise was submitted in the Court, he was not in Ahmedabad city and under force his son had put signature in his name. Therefore, he filed the Civil Suit No. 1880/2001 in the Court of City Civil Judge at Ahmedabad declaring the decree having obtained under a fraud.
2.3 The petitioner filed Civil Appeal No. 74/2003 before the Division Bench of Small Causes Court, Ahmedabad and challenged the impugned order dated 17/11/2000 passed below Exh 39, by which the decree was drawn according to the written compromise.
2.4 It was the case before the Appellate Court that the petitioner was out of Ahmedabad and had never put his signature on the compromise pursis Exh 39. The Appellate Court, after considering the record of the Trial Court dismissed the Appeal. Hence, the present Revision Application.
3. I have heard Mr. D.R.Shah, learned advocate for the petitioner as well as Mr. P.S.Oza, learned advocate for the opponent. I have gone through the record and proceedings of the H.R.P. Civil Suit No. 798/96 as well as Civil Appeal No.
74/2003.
4. Mr. Shah, learned advocate appearing for the applicant has vehemently argued that applicant had sufficient material to establish that he was not in Ahmedabad when the impugned compromise was entered into between the parties and under pressure, his son had put his signature. In support of his submission, he had produced two documents along with an application Exh 26 before the Appellate Court, by which he had established that he was present at village Putri of U.P. State.
5. Mr. Shah, learned advocate has submitted that learned Judge has erred in not considering the relevant documents while deciding the Appeal. He further submitted that the plaintiff had deleted respondent No. 2 i.e. Mahendrabhai by filing purshis Exh 38 and on that purshis, signature of the applicanttenant was not obtained and therefore the presence of the applicant on 17/11/2000 becomes doubtful.
6. He has further submitted that affidavit filed by his son before Appellate Court is not considered by the Bench while deciding the Appeal. Hence, the present Revision Application may be allowed and the judgment and order passed by Appellate Court confirming the order dated 17/11/2000 be quashed and set aside and the case may be remanded to the Trial Court for fresh adjudication.
7. On the other hand, Mr. P.S.Oza, learned advocate appearing for the respondent has taken me through the order passed by the learned Small Causes Court below Exh 39. The applicant himself had put signature and his lawyer also had put signature. The Court had also recorded presence of the parties and thereafter only the order was recorded directing to draw the decree in accordance with the compromise purshis Exh 39.
8. He has further submitted that documents which was produced along with application at Exh 26 before the Appellate Court was not proved by the appellant. The Appellate Court had dismissed the said application Exh 26 after hearing the parties, which was not challenged by present applicant.
9. He has further submitted that the Appellate Court has exhaustively heard and perused the record and proceeding of the Trial Court and has rightly come to conclusion that the applicant himself had put his signature on the compromise purshis and therefore the Appellate Court rightly not interfered with the order passed by the Trial Court. At the outset, I would like to reproduce the order passed by Trial Court below exh 39 which reads as under:
“ORDER The plaintiff and the defendant with their respective advocates are present. They put their compromise pursis. It is read .....and explained to them. They admit. Hence reconstruction of decree to be drawn up in terms of compromise. No order as to costs.”
1. As observed by the Trial Court, it is clear that the plaintiff as well as defendant with their respective advocates were present when the order was passed. Learned Judge had read over and explained the entire purshis and only after that he had ordered to draw the decree in terms of compromise dated 17/11/2000.
2. I have also perused the compromise purshis dated 17/11/2000, which makes it clear that there are signatures of applicant as well as respondents i.e. original plaintiff and defendants as well as their respective advocates.
3. In my view, learned Appellate Court had very limited scope to accept the case of appellant by which allegations were made that the applicant tenant had not put his signature or his lawyer had put his signature. As far as the order passed below Exh 26, by which the applicant had tried to produce two documents is concerned, the application was dismissed by the Appellate Court on 12/7/2005 and thus, two documents which were annexed with application Exh 26 were never proved by the applicant appellant and therefore, the order had become final since it was not challenged by the applicant.
4. Therefore, in my view, the Appellate Court has rightly not considered two documents, which were produced along with Exh 26. This Court therefore cannot look into those documents which were not proved by the applicant/appellant.
5. Mr. Shah, learned advocate appearing for the applicant has also fairly conceded that Civil Suit No. 1808/2001 filed in the City Civil Court for declaration with regard to decree on the ground of fraud is dismissed for default and there is no pronouncement with regard to fraud as alleged in the said suit.
6. Considering the overall aspects and the reasons assigned by the Appellate Court, I am of the view that, there is no merit in the Civil Revision Application and hence the same deserves to be dismissed. Hence, present Civil Revision Application is dismissed with no order as to costs. Interim relief, if any, granted earlier is hereby vacated. Rule is discharged.
Sd/-
(A.J.DESAI, J.) *asma