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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL  No(s). 3591 OF 2019 (Arising out of SLP(C) No(s).22380 of 2018)

PRADEEPKUMAR GORDHANDAS PATEL                      Appellant(s)

                               VERSUS

CHANDRAKANT JIVANLAL PATEL                         Respondent(s)

J U D G M E N T

R. SUBHASH REDDY, J.:

Leave granted.

(2) This civil appeal is filed aggrieved by judgment and order

dated  19.06.2018  passed  by  the  High  Court  of  Gujarat  at

Ahmedabad in R/Special Civil Application No.10271 of 2013.

(3) The appellant claims that he has purchased the property

being No.86, Vibhaag-1, Uttar Gujarat Patel Society, Asarwa at

Ahmedabad in 1994 and he was put in possession.  At the first

instance,  the  appellant  preferred  a  simplicitor  suit  for

permanent  injunction  bearing  CS  NO.1069  of  2003  which  was

subsequently dismissed.  In the year 2010, the appellant has

also filed Civil Suit No.2929 of 2010 before the City Civil

Court, Ahmedabad, for specific performance for the execution of

the sale deed and seeking directions to restrain the respondent

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and others from disturbing his possession.  The said suit is

still pending.  On 01.07.2011 the respondent herein has filed

an application, P.S.R.P. NO.22 of 2011, under Section 41 of the

Presidency  Small  Causes  Act,  1882  (for  short,  ‘the  Act’),

seeking vacant possession of the property in question.  On

05.08.2011 the appellant herein also filed an application under

Section 47 of the Act seeking stay of the application (P.S.R.P.

No.22 of 2011) filed by the respondent.  The Small Causes Court

by  order  dated  28.01.2013  rejected  the  application  of  the

appellant filed under Section 47 of the said Act.  Aggrieved by

the  same,  the  appellant  preferred  Special  Civil  Application

No.1027 of 2013 before the High Court of Gujarat at Ahmedabad.

The High Court vide order dated 19.06.2018 has dismissed the

said special civil application by giving a further direction to

the appellant to vacate the premises in question which is the

subject-matter of P.S.R.P.No.22 of 2011.

(4) We have heard Mr. Devadatt Kamat, learned senior counsel

appearing for the appellant and Ms. Anushree Prashit Kapadia,

learned counsel appearing for the respondent and also perused

the impugned judgment and the other materials on record.

(5) Mr. Devadatta Kamat, learned senior counsel appearing for

the appellant, has mainly contended that the High Court has

committed an error in issuing the direction to the appellant to

vacate the premises while dismissing Special Civil Application

filed under Article 227 of the Constitution of India, which

application is filed against order dated 28.01.2013 passed by

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the Small Causes Court.  Mr. Kamat has further submitted that

inasmuch as no order is passed under either Section 41 or 43 of

the Presidency Small Causes Courts Act, 1882, the High Court

ought not to have issued any direction to the appellant for

vacating the premises.

(6) Ms. Anushree Prashit Kapadia, learned counsel appearing

for  the  respondent,  has  submitted  that  in  the  application

(P.S.R.P. NO.22/2011) filed under Section 41 of the Act, so far

no order is passed either under Section 41 or Section 43 of the

Act.  Ms. Anushree Prashit Kapadia has further submitted that

the application filed by the appellant under Section 47 of the

Act is rightly rejected by the Small Causes Court and same is

confirmed by the High Court.

(7) The  suit  filed  by  the  appellant  claiming  specific

performance of the contract and for execution of the Sale Deed

is pending consideration.  During the pendency of the said

suit, the respondent herein has filed application in P.S.R.P.

No.22  of  2011  under  Section  41  of  the  Act,  in  the  said

application no order is passed for eviction of the appellant.

The application filed by the appellant herein under Section 47

of the Act is rightly rejected by the Small Causes Court but

the  High  Court,  while  confirming  the  said  order,  has  gone

beyond the scope of the application and issued directions to

the appellant to vacate the premises.  As much as no order is

passed either under Section 41 or under Section 43 of the Act

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by the Small Causes Court, the High Court has committed error

in issuing directions to the appellant to vacate the premises,

which is subject matter of the petition.

(8) For the aforesaid reasons, the direction issued, in the

impugned order to the extent of directing the appellant to

vacate the premises, is hereby set aside.  We make it clear

that all contentions are left open and it is open for the Small

Causes Court to decide the application (P.S.R.P. No.22 of 2011)

filed by the respondent under Section 41 of the Act on its own

merits as expeditiously as possible preferably within a period

of three months from the receipt of a copy of this order.  We

further make it clear that this Court has not expressed any

opinion on the merits of the matter.

(9) The civil appeal is partly allowed with the directions, as

indicated above.  No order as to costs.

.........................J.                 (R. BANUMATHI)

.........................J.         (R. SUBHASH REDDY)

NEW DELHI, APRIL 9, 2019.