Decided on July 24,1979



N.H.BHATT - (1.) This petition under sec. 115 of the Civil Procedure Code is a glaring example of how technicalities are resorted to the exclusion of the spirit and even letters of law.
(2.) A few facts require to be stated. The Respondent No. 2 Shantilal Maijibhai is the brother of the present applicant Chunilal Maijibhai. They have one third brother also named Paul. The three brothers jointly own some property in the City of Ahmedabad and the respondent No. 1 Shankerbhai Harjibhai admittedly is their tenant of those premises. The respondent No. 2 Shantilal professing to be the manager of the property of the three brothers filed one suit against this respondent No. 1 Shankerbhai for possession on the ground of non-payment of rent. An ex-parte decree came to he passed against Shankerbhai somewhere in May 1975 and it came to be executed also on 7-7-76 by Shantilal obviously both for himself and for his two brothers Chunilal and Paul. The respondent No. 1 Shankerbhai then moved the court for setting aside he ex-parte decree and he succeeded in getting it set aside presumably on the ground that he was not duly served with the summons. Obviously the steps were required to be retraced and therefore Shankerbhai filed an application to the learned Judge dealing with that suit. The learned Judge for curious reasons held that the application in the suit was not maintainable but Shankerbhai should file an independent application presumably under sec. 144 of the Code obviously for the purpose of restitution. On being so told Shankerbhai filed a Misc. Application No. 2910 in that very court. For understandable reasons he made Shantilal the plaintiff as the only party. He also impleaded the alleged new tenant as a party but he did not implead the present applicant Chunilal and Paul. The learned Small Causes Judge decided that application on 21-12-77 and passed an order for restitution. The petitioner Chunilal and his brother Shantilal and Paul obviously would not be interested in allowing the property slip out of their hands and so the present petitioner filed regular civil suit No. 329 of 1978 for an injunction restraining Shankerbhai from taking possession and in that suit an application for interim injunction was also filed but the court did not grant ad interim injunction but issued only a notice.
(3.) Thereafter the bailiff of the Small Causes Court went to the site to execute the order dated 22-12-77 but the present petitioner Chunilal obstructed him and so the respondent No. 1 Snankerbhai filed a Misc. Application No. 3549 of 1979 for removal of the obstruction by resort to Order 21 Rule 97 of the Code but he was advised quite rightly to withdraw that application as misconceived. I say that he withdrew it rightly because the obstructionist was not a person claiming in his own independent right but he was claiming In a way through Shantilal who was the representative of the petitioner and Paul in that suit. Shantilal had procured the decree both for himself and for his two brothers including the present petitioner. If the said decree came to be set at naught the petitioner also will be bound to render restitution. In other words for all practical purposes he was a party to that order through his brother Shantilal through whom this Chunilal and Paul had filed the suit.;

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