Gujarat High Court
Bhadreshkumar vs Meruben on 30 August, 2011
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
Gujarat High Court Case Information System
Print
SCA/7847/2011 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7847 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA :
=======================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=======================================================
BHADRESHKUMAR
KANTILAL THAKKAR - Petitioner(s)
Versus
MERUBEN
W/O DADAMIYA DHASURA
AND
D/O KALUKHAN MALLUKHAN & 3 - Respondent(s)
=======================================================
Appearance :
MR
ANKIT Y BACHANI for Petitioner(s) : 1,
NOTICE SERVED BY DS for
Respondent(s) : 1 - 3.
MR GIRISH K PATEL for Respondent(s) : 2 -
3.
MR KISHOR PRAJAPATI for MR MEHUL H RATHOD for
Respondent(s):4,
=======================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 30/08/2011
ORAL
JUDGMENT
Rule.
Learned counsel, Mr.Girish K. Patel for the respondent nos.2 and 3 and learned counsel, Mr.Kishor Prajapati for learned counsel, Mr.Mehul H. Rathod for the respondent no.4 waive service of notice of rule.
The present petition has been filed by the petitioner under Article 227 of the Constitution of India as well as under the provisions of the Civil Procedure Code, 1908 for the prayer that appropriate writ, order or direction may be issued quashing and setting aside the order passed by the 4th Additional Senior Civil Judge, Deesa, Banaskantha below application, Exh.43 dated 02.05.2011 as well as order produced at Annexure-C in Special Civil Suit No.10 of 2010 dated 02.04.2011 on the grounds set out in the memo of petition.
The facts of the case briefly stated are that the petitioner is the original defendant no.4, the respondent no.1 is the original plaintiff and the respondent nos.2 to 4 are the original defendant nos.1 to 3. Suit was filed by the respondent no.1-original plaintiff for permanent injunction and declaration regarding the land bearing Survey No.504 situated at Juna Deesa. However, the petitioner herein-original defendant no.4 was not initially made party and subsequently he was joined. However, as he was suffering from Pneumonia, he could not remain present and the matter was proceeded ex-parte in absence of the petitioner-original defendant no.4. Therefore, an application dated 26.04.2011 produced at Annexure-C was filed by the petitioner-original defendant no.4 under Order 9, Rule 13, which came to be rejected and the present petitioner is, therefore, filed.
Heard learned counsel, Mr.Ankit Y Bachani for the petitioner, learned counsel, Mr.Girish K. Patel for the respondent nos.2 and 3 and learned counsel, Mr.Kishor Prajapati for learned counsel, Mr.Mehul H. Rathod for the respondent no.4. Though served, no one has remained present for the respondent no.1-original plaintiff.
Learned counsel, Mr.Bachani for the petitioner has pointedly referred to the order passed below application, Exh.43, wherein it is clearly observed that the respondent could not remain present due to unavoidable circumstance i.e. due to illness. At the same time on the next page, it is observed that no document is produced and, therefore, the application is rejected, which is challenged by way of present petition. Learned counsel, Mr.Bachani has stated that it would amount to denial of opportunity and in violation of Rules of natural justice when he was prevented by sufficient cause. He, therefore, submitted that the present petition may be allowed when it has been passed without effectively affording opportunity to the petitioner.
Learned counsel, Mr.Girish K. Patel for the respondent nos.2 and 3 and learned counsel, Mr.Kishor Prajapati for learned counsel, Mr.Mehul H. Rathod for the respondent no.4 have resisted the present petition.
In view of the submissions made and considering the facts including the impugned order passed below application, Exh.43 and also considering the fact that the petitioner-original defendant no.4 after having been permitted to implead when he could not remain present due to illness, the order came to be passed. Therefore, as the ground mentioned is unavoidable circumstance of due to illness, the Court below ought to have considered these aspects and could have asked to produce the necessary documents in support thereof instead of straightway disallowing the application even though the ground mentioned is stated to be genuine. However, the said documents have been produced in the petition, which suggest about the genuineness of unavoidable circumstance i.e. illness. Therefore, the present petition deserves to be allowed.
Accordingly, the present petition stands allowed in terms of Para No.13(B). The impugned order passed by 4th Additional Senior Civil Judge, Deesa, Banaskantha below application, Exh.43 dated 02.05.2011 and order produced at Annexure-C in Special Civil Suit No.10 of 2010 dated 02.04.2011 are hereby quashed and set aside. Rule is made absolute.
It goes without saying that the Court below shall pass appropriate order after providing the petitioner-original defendant no.4 the opportunity of hearing in the matter.
(RAJESH H.SHUKLA, J.) /patil Top