Gujarat High Court
Damyantiben vs Jayantibhai on 12 October, 2010
Author: K.M.Thaker
Bench: K.M.Thaker
Gujarat High Court Case Information System
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SCA/5617/2009 1/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5617 of 2009
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DAMYANTIBEN
YASHVANTBHAI PATEL & 18 - Petitioner(s)
Versus
JAYANTIBHAI
SUKHABHAI PATEL SELF & KARTA OF HIS HUF & 54 - Respondent(s)
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Appearance
:
MR
AMIT V THAKKAR for
Petitioner(s) : 1 - 19.
NOTICE SERVED BY DS for Respondent(s) : 1
- 55.
MR ADIL R MIRZA for Respondent(s) : 1 - 19.
- for
Respondent(s) : 0.0.0
- for Respondent(s) : 0.0.0
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CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 12/10/2010
ORAL
ORDER
The petitioners herein are the original defendant Nos. 10 to 13, 17 to 23 and 25 to 32.
It is the case of the petitioners that they were defendants in the suit proceedings, however for the reasons mentioned in the application (exhibit-143) dated 19.12.2008, the petitioners (original defendant Nos. 10 to 13, 17 to 23 and 25 to 32) requested the learned trial Court to allow them to be transposed as plaintiffs.
While the said application was pending and more particularly though the suit was not scheduled for hearing or for any other purpose on 14.4.2009 an application was moved, without serving a copy of the said application to the petitioners (who had filed the application for being transposed as plaintiff-since they apprehended that the original plaintiffs may withdraw the suit for partition at their back and against their interest) on the said date i.e. on 14.4.2009 by the plaintiffs seeking permission to withdraw the suit. Without there being any endorsement of service of the copy of the application to the petitioners and though it was not the scheduled date, the proceedings were preponed and taken up for orders by the learned Trial Court and without hearing the petitioners the impugned order dated 14.4.2009 permitting the withdrawal of the suit came to be passed.
The petitioners have claimed that the impugned order has frustrated the petitioners application dated 19.12.2008 and seriously hurt their interest. Hence, the petitioners have preferred present petition.
The allegations by the petitioners with regard to the schedule date of hearing and/or service of the copy of the application seeking withdrawal of the suit etc. are denied by the respondents.
Before entering into said controversy, it appears necessary, so as to consider and appreciate the allegations made by the petitioner, to call for the records and proceedings of the Special Civil Suit No.390 of 2006 from the Court of 2nd Additional Senior Civil Judge, Surat (since the suit is disposed off by the impugned order, the direction calling the records and proceedings of the suit will not affect the suit proceedings) so that the records and proceedings and more particularly the ordersheet (Rojkam) can be examined.
This appears to be necessary also for the reason that in the copy of the ordersheet (Rojkam) produced on record of present petition by petitioners, the last noting appears to be of 16.2.2009 whereas the order is passed on 14.4.2009 and there are no notings in the Rojkam, (copy of which is produced by the petitioners) after 16.2.2009.
Hence, the registry is directed to call for the records and proceedings of the aforesaid Special Civil Suit No.390 of 2006 so as to reach the office of this Court on or before 24.11.2010. After the records and proceedings is received the same shall be placed before the Court along with the present petition on 26.11.2010.
S.O to 26.11.2010.
(K.M.THAKER,J.) Suresh* Top