Gujarat High Court
Bhimshibhai Kachrabhai Badiyavadra & 3 vs Kunvarben D/O Kachrabhai Badiyavadra ... on 12 November, 2014
Author: Harsha Devani
Bench: Harsha Devani
C/SCA/13142/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO.13142 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE HARSHA DEVANI
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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?
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BHIMSHIBHAI KACHRABHAI BADIYAVADRA & 3....Petitioner(s)
Versus
KUNVARBEN D/O KACHRABHAI BADIYAVADRA W/O RAJESHBHAI
BHADARKA - AHER & 4....Respondent(s)
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Appearance:
MR MEHUL S SHAH, ADVOCATE for the Petitioner(s) No.1 - 4
MR VH KANARA, ADVOCATE for the Petitioner(s) No.1 - 4
MR RAJESH K SAVJANI, ADVOCATE for the Respondent(s) No.1 - 2
NOTICE NOT RECD BACK for the Respondent(s) No.5.5
NOTICE SERVED for the Respondent(s) No.3 - 4 , 5.1 - 5.4 , 5.5.1 , 5.6
- 5.7
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CORAM: HONOURABLE MS. JUSTICE HARSHA DEVANI
Date : 12/11/2014
ORAL JUDGMENT
1. Rule. Mr. Rajesh Savjani, learned advocate waives Page 1 of 4 C/SCA/13142/2014 JUDGMENT service of notice of rule on behalf of the respondents. Having regard to the facts of the case and with the consent of the learned advocates for the respective parties, the matter is taken up for final hearing today.
2. This petition calls in question the order dated 12 th August, 2014 passed by the learned Principal Senior Civil Judge, Khambhaliya on application (Exhibit-310) in Special Civil Suit No.10/2007 whereby the learned Judge has turned down the application made by the petitioners for cross-examining the plaintiffs in respect of the new issue which has been re- casted in the light of the application made by the petitioners.
3. The petitioners are original defendants No.1 to 3 and 6 and respondents No.1 and 2 are the original plaintiffs and defendants No.3, 4 and 7. The first respondent Kunvarben instituted a suit being Special Civil Suit No.10/2007 before the learned Principal Senior Civil Judge, Jamkhambhaliya for partition and share of the jointly owned ancestral property etc. In the said proceedings, the plaintiffs had given deposition vide Exh.174 and 218 and were cross-examined by the petitioners. The first plaintiff was cross-examined by the petitioners and the second plaintiff had also given evidence and was also cross-examined by the defendants on 2nd April, 2012. It appears that the trial court had framed issues vide Exhibit-156 on 24th December, 2009, however, as the original defendant No.2 namely, Arjanbhai Kachrabhai was also joined as plaintiff No.2 on 21st June, 2010, the petitioners requested the court to recast the issues framed, which application came to be allowed by an order dated 5th August, 2014. Since the plaintiff No.2 - Arjanbhai Kachrabhai was transposed as plaintiff No.2 on 21 st Page 2 of 4 C/SCA/13142/2014 JUDGMENT June, 2010, the petitioners had given an application at Exhibit- 306 for recasting the framed issues which was ultimately allowed and the issues were re-framed. In view of the newly framed issues and the burden to prove the same, the petitioners preferred an application at Exhibit-310 to recall the plaintiffs to be cross-examined further on the limited aspect on the newly framed issues.
4. This court has heard Mr. Mehul S. Shah, learned advocate for the petitioners and Mr. Rajesh Savjani, learned advocate for the respondents. The learned advocate for the respondents has submitted that the respondents have no objection if the application filed by the petitioners is allowed subject to certain conditions being put with regard to the time frame within which the cross-examination of the plaintiffs as well as the evidence to be led by the defendants is completed.
5. In the aforesaid premises, the court is of the view that the petition can be allowed by allowing the application (Exhibit-310) filed by the petitioners subject to certain directions.
6. For the foregoing reasons, the petition is allowed. The impugned order dated 12th August, 2014 passed by the learned Principal Senior Civil Judge, Khambhaliya below Exhibit-310 in Special Civil Suit No.10/2007 is hereby quashed and set aside. The application (Exhibit-310) is hereby allowed. The petitioners are permitted to cross-examine the plaintiffs on the limited aspect of the newly framed issue only. The interim relief granted earlier shall stand vacated. Accordingly, the Page 3 of 4 C/SCA/13142/2014 JUDGMENT matter shall be listed for hearing before the trial court on 14 th November, 2014. The trial court shall fix a date for recording the cross-examination of the original plaintiffs in respect of the newly framed issue No.5A only and shall permit the petitioners to cross-examine the plaintiffs in respect of the said issue between 15th November, 2014 to 18th November, 2014. Such cross-examination shall be completed by 18 th November, 2014. Thereafter, the petitioners and other defendants shall adduce evidence and shall ensure that all the witnesses are examined on or before 31st March, 2015. Rule is made absolute accordingly in the aforesaid terms.
Direct Service is permitted to the parties.
( Harsha Devani, J. ) hki Page 4 of 4