Gujarat High Court
Harsaladevi W/D Of Shrimant ... vs Legal Heirs Of Deceased Natvarbhai ... on 23 March, 2017
Author: A.J.Desai
Bench: A.J.Desai
C/SCA/12528/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12528 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J.DESAI Sd/
=============================================
1 Whether Reporters of Local Papers may be allowed to see the No
judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the judgment ? No
4 Whether this case involves a substantial question of law as to the No
interpretation of the Constitution of India or any order made
thereunder ?
=============================================
HARSALADEVI W/D OF SHRIMANT BHUPENDRASINH SURSINHRAO
GAEKWAD & 2....Petitioner(s)
Versus
LEGAL HEIRS OF DECEASED NATVARBHAI VITHALBHAI
PARIKH....Respondent(s)
=============================================
Appearance:
MR PR THAKKAR, ADVOCATE for the Petitioner(s) No. 1 3
MR NIRAV C THAKKAR, ADVOCATE for the Respondent(s) No. 1
=============================================
CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
Date : 23/03/2017
ORAL JUDGMENT
1. Rule. Mr. Nirav C. Thakkar, learned advocate, waives service of notice of Rule on behalf of respondent.
2. With the consent of the learned advocates appearing for the respective parties, the matter is taken up for final hearing today.
Page 1 of 5
HC-NIC Page 1 of 5 Created On Tue Aug 15 04:24:35 IST 2017
C/SCA/12528/2016 JUDGMENT
3. By way of the present petitioner under Article 227 of the Constitution of India, the present petitioners / original plaintiffs / Appellants have challenged an order dated 13.04.2016 passed below application Exh. 11 in Misc. Civil Appeal No. 43 of 2015 by the learned 15th Additional District Judge, Vadodara, by which, an application submitted by the present petitioners at Exh. 11 to appoint Court Commissioner for the measurement of the land in question has been rejected.
4. The brief facts arise from the record are as under :
4.1 That the present petitioners, who are the original plaintiffs, filed Regular Civil Suit No. 132 of 2014 with regard to the property in question and prayed for several reliefs including restraining the defendants from demolition of the property in question and hand over the peaceful possession thereof. They also filed an application under Order 39 and Rule 1 2 of the Code of Civil Procedure, 1908 and the said application came to be rejected by the trial Court. Being aggrieved, the petitioners filed appeal being Misc. Civil Appeal No. 43 of 2015 before the District Court, Vadodara.
4.2 It is the case of the petitioners that a pursis was filed by respondent at Exh. 29 before the trial Court on 01.08.2014, by which, the respondent had declared that he shall construct the property as per the byelaws of the Corporation and shall keep margin land open as provided in the law. However, the respondents did not abide by the undertaking and started construction in the margin land.
4.3 It is also the case of the petitioners that when the appeal was Page 2 of 5 HC-NIC Page 2 of 5 Created On Tue Aug 15 04:24:35 IST 2017 C/SCA/12528/2016 JUDGMENT preferred by the petitioners, specific direction was given on 07.04.2015 asking the respondent to abide by the pursis at Exh.
29. The respondent started construction on the margin land and therefore, an application at Exh. 11 under Order 39 (2)(a) for breach of injunction contempt and requested the Appellate Court to appoint the Court Commissioner for measurement of the land and the same came to be rejected.
4.4 Hence, the present petition.
5. Mr.P.R.Thakkar, learned advocate appearing for the petitioners, would submit that the respondent has to abide by the undertaking given by him at Exh. 29, by which a declaration was made by him that he shall keep margin land and shall make construction as per the byelaws of the Vadodara Municipal Corporation. The learned Appellate Court has also erred in rejecting the application on the ground that similar application was submitted by the petitioners in the suit proceedings i.e application at Exh. 35, which was rejected on 05.02.2015. However, the case of the petitioners is that the respondent has committed breach of the order passed by the learned Appellate Court and has constructed on disputed land.
He would further submit that the Appellate Court ought to have allowed the application. He, therefore, would submit that the present petition be allowed by quashing and setting aside the impugned order dated 13.04.2016 passed below application Exh.11 in Misc. Civil Appeal No. 43 of 2015 by the learned Appellate Court.
6. On the other hand, Mr. Nirav Thakkar, learned advocate appearing for the respondent, would submit that the order of the learned Appellate Court does not call for any interference since Page 3 of 5 HC-NIC Page 3 of 5 Created On Tue Aug 15 04:24:35 IST 2017 C/SCA/12528/2016 JUDGMENT similar application has been rejected by the trial Court. He would further submit that the respondent is carrying out construction as per plans sanctioned by the Vadodara Municipal Corporation and the respondent is abiding by the undertaking at Exh.29. He, therefore, would submit that the present petition be dismissed.
7. I have heard learned advocates appearing for the respective parties.
8. I have gone through the impugned order as well as pursis at Exh.29 filed by the respondent. Since the petitioners are requesting only for the measurement of the land, I am of the opinion that the following order would meet the end of justice:
[i] The impugned order dated 13.04.2016 passed below application Exh. 11 in Misc. Civil Appeal No. 43 of 2015 by the learned Appellate Court is hereby quashed and set aside.
[ii] The Appellate Court shall appoint the Court Commissioner and shall prepare the report with the help of the responsible officer from Vadodara Municipal Corporation and City Survey Department and the office of the Collector, Vadodara.
[iii] The Court Commissioner shall prepare report in the presence of the parties and the report shall be produced the same before the Appellate Court.
[iv] The petitioners shall deposit an amount of Rs.2,500/ towards the Court Commissioner's expenses with the Appellate Court.
Page 4 of 5
HC-NIC Page 4 of 5 Created On Tue Aug 15 04:24:35 IST 2017
C/SCA/12528/2016 JUDGMENT
[v] All this exercise shall be made within a period of four weeks
from the date of receipt of this order.
[vi] After receiving the report, the Appellate Court shall proceed
further with the appeal in accordance with law.
9. It is hereby made clear that this Court has not gone into the merits of the case.
10. With the above observations and directions, the present petition stands allowed. Rule is made absolute. Direct service is permitted.
Sd/ (A.J.DESAI, J.) *Kazi...
Page 5 of 5HC-NIC Page 5 of 5 Created On Tue Aug 15 04:24:35 IST 2017