JAYKUMAR RATANLAL JAIN vs DHNSHUKHLAL MANEKLAL JARIWALA
- Court
- Gujarat High Court
C/SCA/14576/2021 JUDGMENT DATED: 22/10/2026
(GJHC240491482021)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14576 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In
R/SPECIAL CIVIL APPLICATION NO. 14576 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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JAYKUMAR RATANLAL JAIN
Versus
DHNSHUKHLAL MANEKLAL JARIWALA & ORS.
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Appearance:
MR MIHIR VAKHARIYA(8336) for the Petitioner(s) No. 1
MR NIRAV C SANGHAVI(5950) for the Petitioner(s) No. 1
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES for
the Respondent(s) No. 1
MR PREMAL S RACHH(3297) for the Respondent(s) No. 1.2,1.3,1.4
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CORAM: HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 22/10/2026
JUDGMENT
1. Heard Mr. Nirav C. Sanghavi, learned advocate for the
petitioner and Mr. Premal S. Rachh, learned advocate for the
respondents.
2. RULE returnable forthwith. Mr. Rachh, learned advocate
waives service of notice of Rule for and on behalf of the
respondents.
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3. The present petition is filed under Article 227 of the
Constitution of India, seeking the following reliefs:-
“(A) Your Lordship may be pleased to admit this Special Civil
Application.
(B) Your Lordship may be pleased to allow this Special Civil
Application by issuing appropriate writ, order or direction for
quashing and setting aside the judgment and order passed by the
learned Judge Small Cause Court, Surat below Exhibit 27 in Civil
Mis. Application- SC No. 9 of 20215 on dated 09.07.2021 in the
interest of justice.
(C) Pending admission hearing and final disposal of the petition
this Hon’ble Court may be pleased to stay implementation,
execution and operation of the judgment and order passed by the
learned Judge Small Cause Court, Surat below Exhibit 27 in Civil
Mis.Application- SC No. 9 of 2015 on dated 09.07.2021 in the
interest of justice.
(D) Pending admission hearing and till final disposal of the
present petition this Hon’ble Court may be pleased to stay the
further proceeding of the execution petition pending before the
learned Executing Court, Surat in the interest of justice.
(E) This Hon’ble Court may be pleased to grant such other and
further relief as deemed just and proper in the interest of justice.”
4. At the outset, Mr. Sanghavi, learned advocate for the
petitioner, would submit that the issue germane to this writ
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application is squarely covered by the decision of the Hon’ble Apex
Court in the case of Prakash Chander Manchanda & Anr. Vs. Smt.
Janki Manchanda reported in AIR 1987 SC 42.
4.1 It is submitted that the Trial Court committed an egregious
error by rejecting the delay application filed in a restoration
application by holding that the restoration application itself is not
maintainable, thus the delay application is rejected.
4.2 It is further submitted that there was an ex-parte proceeding
went against the petitioner who happens to be defendant of Small
Cause Suit No.79 of 2010 instituted by the respondents herein, and
the decree of eviction passed against the petitioner. Therefore, the
petitioner preferred an application under Order 9 Rule 13 of CPC
wherein there was a delay. The impugned delay application filed
below Exhibit-27 in restoration application could not have been
rejected on the ground that it was not maintainable.
5. Per contra , Mr. Rachh, learned advocate for the respondents,
is unable to dispute the proposition of law laid down by the Hon’ble
Apex Court in the case of Prakash Chander Manchanda & Anr.
(supra) . Nonetheless, Mr. Rachh, learned advocate for the
respondents, would submit as per the instructions of his client that
despite the order passed by this Court on 01.10.2021, until date, the
petitioner has not deposited the mesne profit, i.e., Rs.1,200/- per
month and according to his information, the amount is due and
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payable at the instance of petitioner.
5.1 Thus, Mr. Rachh, learned advocate for the respondents, would
request this Court that even if this Court is inclined to set aside the
impugned order passed by the Trial Court and remand the matter
back to the Trial Court for re-adjudicating the delay application in
accordance with law, the petitioner may be directed to comply with
the directions issued by this Court vide its order dated 01.10.2021.
6. Per contra , Mr. Sanghavi, learned advocate for the petitioner,
would inform this Court under the instructions of his client that as
such, there is no amount due and payable and the petitioner is
regularly depositing mesne profit, i.e., Rs.1,200/- per month with the
Trial Court. Nonetheless, Mr. Sanghavi, learned advocate, would
humbly urge before this Court that appropriate direction may be
issued to the Trial Court that in a case where any shortfall in
depositing of the mesne profit by the petitioner, the petitioner may
be given time to clear the arrears.
7. Having heard learned counsel for the respective parties and
upon perusal of the impugned order, prima facie , it appears that the
Trial Court, without going into the merit of the delay application
filed below Exhibit-27 in restoration application being CMA SC
No.9 of 2015, rejected the impugned application solely on the
ground that the aforesaid restoration application is not maintainable.
8. It is an undisputed fact that the suit instituted by respondent
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went ex parte against the petitioner which ultimately resulted into
passing of the eviction decree. Since the respondents are not inviting
any reasoned order in the matter and have conceded to the
proposition of law laid down by the Hon’ble Apex Court, I would
also not like to discuss anything more on the merit of the matter,
except to observe that there is an egregious error committed by the
Trial Court while rejecting the delay application solely on the ground
that the restoration application is not maintainable in law.
9. In light of the aforesaid, the impugned order dated 09.07.2021
passed by the Small Cause Court, Surat below Exhibit-27 in CMA
SC No.9 of 2015 is hereby quashed and set aside. Accordingly, the
delay application filed below Exhibit-27 being CMA SC No.9 of
2015 is restored back on its original file.
10. After giving a reasonable opportunity of hearing to all parties
concerned, the Trial Court is hereby directed to hear and decide
afresh the aforesaid delay application on its own merit without being
influenced by any of its observations made in the impugned order
and/or passed by this Court in any of its orders.
11. Before parting with, it is observed that as per the order dated
01.10.2021 passed by this Court, the petitioner was directed to
deposit the mesne profit as ordered by the Small Cause Court, Surat
at the rate of Rs.1,200/- per month.
12. There is a dispute raised on behalf of the respondents about
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non-compliance of the aforesaid order passed by this Court, whereas,
the petitioner would state before this Court that he is regularly
depositing such amount. Be that as it may, before adjudicating the
aforesaid delay application filed below Exhibit-27 by the petitioner,
the Trial Court is hereby directed to verify the aforesaid aspect. If
there is any shortfall found whereby the petitioner is required to
clear the arrears of mesne profit, a one-week time may be granted to
the petitioner to deposit such amount. In a case where there is no
shortfall and until date, the petitioner has regularly deposited the
mesne profit, then as observed by this Court vide its order dated
01.10.2021, the respondents herein are permitted to withdraw such
amount subject to final outcome of the proceeding.
13. In any case, the Trial Court is hereby directed to first verify the
aforesaid aspect before proceeding with the adjudication of the delay
application (Exhibit-27).
14. Since this Court has neither gone into nor examined the merits
of the delay application, the delay application shall be decided by the
Trial Court on its own merits. Subject to extending cooperation and
support by the parties, the Trial Court is hereby requested to hear and
decide the delay application (Exhibit-27) as early as possible,
preferably within three months from the date of receipt of the copy
of this order.
15. In view of the aforesaid observations and directions, the
present petition is partly allowed. Rule made absolute to the
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aforesaid extent. No order as to costs. Direct service permitted.
16. In view of above, the connected Civil Application would not
survive and stands disposed of accordingly.
(MAULIK J.SHELAT,J)
Lalji Desai
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