Gujarat High Court
Bharatbhai Devchandbhai Mevada vs Kanubhai Ghanshyambhai Bhatia on 18 June, 2018
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/6836/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6836 of 2018
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BHARATBHAI DEVCHANDBHAI MEVADA
Versus
KANUBHAI GHANSHYAMBHAI BHATIA
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Appearance:
MR MEHUL SURESH SHAH, SR. ADVOCATE WITH MR VISHAL C
MEHTA(6152) for the PETITIONER(s) No. 1,2
GAURANG A VAGHELA(8340) for the RESPONDENT(s) No. 2
NOTICE SERVED(4) for the RESPONDENT(s) No. 1
MR MAULIN RAVAL FOR RAVAL AND TRIVEDI ASSOCIATES(9262) for
the RESPONDENT(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 18/06/2018
ORAL ORDER
Heard learned senior advocate Mr.Mehul Suresh Shah with learned advocate Mr.Vishal Mehta for the petitioners and learned advocate Mr.Maulin Raval for respondent No.2 - Corporation.
2. Petitioners are original defendant Nos.1 and 2, who have prayed to set aside the order passed by learned Auxiliary Chamber Judge, Court No.19, City Civil Court, Ahmedabad, in Civil Suit No.109 of 2014 th dated 24 January, 2014 dismissing the prayers below Chamber Summons Exh.43/44 and Exh.47. The petitioners have further prayed to allow the prayers.
3. The attendant facts in the background are that in a co-operative housing society, the petitioners purchased a plot in the year 2002 by Page 1 of 7 C/SCA/6836/2018 ORDER executing sale deed. In the year 2014 respondent No.1
-original plaintiff who was the owner of the adjacent plot, instituted civil suit for permanent injunction on alleged apprehension that the petitioners- defendants would by their conduct damage the common compound wall. Along with the suit, Chamber Summons Exh.6/7 was filed for interim injunction which was allowed by the Court restraining the petitioners from making construction and damaging the compound wall, further restraining the petitioners from causing any hurdle in the enjoyment of easementary right in relation to the plot.
th 3.1 The present petitioners thereafter on 06 May, 2015 filed Chamber Summons at Exh.31/32 for appointment of Court Commissioner for carrying out Panchnama. The Court Commissioner prepared a Panchnama and drew the sketch of the disputed plot. The report of the Court Commissioner indicated that there was no damage to the compound wall. Petitioners thereafter in April, 2017 made an application to respondent-Corporation for obtaining occupancy certificate and/or Building Use permission in respect of the constructed building which was erected by them defendants on their plot which construction was prior to the filing of the suit. The Corporation had not considered the application for grant of permission despite passage of long time.
3.2 On account of the above inaction on part of the authorities of the Corporation, the petitioners were facing hardship. Therefore, they moved Chamber Page 2 of 7 C/SCA/6836/2018 ORDER Summons Exh.43/44 for seeking clarification of the order passed by the lower court in Chamber Summons Exh.6/7 which was earlier filed by the plaintiff. The petitioners further preferred application Exh.47 for appointment of Court Commissioner for carrying out of Panchnama of the construction erected over the plot in question.
3.3 It appears that in the meantime, respondent th Corporation by its letter dated 18 November, 2017 communicated to the petitioners that their application for grant of Building Use permission was lodged in view of the order of interim injunction passed below Chamber Summons Exh.6/7 and in view of opinion of the advocate.
3.4 In application Exh.44 to carry out the Chamber Summons, it was uncontrovertedly stated by the petitioners that order below Chamber Summons th Exh.6/7 was made on 30 March, 2015. Prior to this date, the construction was erected and completed on the suit plot which was as per the approved plan and in consonance with Raja Chitthi of the Municipal Corporation.
3.5 It was further stated that the construction put up had no way damaged the compound wall and the compound wall existed in the same condition throughout as it stood before. It was submitted that though the construction was fully in compliance of the regulations of the Corporation and was already completed prior to injunction, the Corporation Page 3 of 7 C/SCA/6836/2018 ORDER authorities had been misconstruing the injunction order to withhold and deny the Building Use permission.
3.6 It was prayed below Exh.46 to direct the Corporation to grant the B.U. permission by declaring that there was no impediment in granting such permission. Exh.47 application was simultaneously filed seeking to appoint the Court Commissioner on the ground that the actual status and position of the construction was required to be brought on record as the defendants had done nothing to damage the compound wall.
4. It is in the above background of facts, the court below was to consider jointly the prayers in Chamber Summons Exh.43/44 as well as in application Exh.47. The prayers below Chamber Summons as well as application Exh.47 were dismissed by learned City Civil Court.
4.1 The court prefaced that the ultimate purpose of filing the Chamber Summons and the application for appointment of Court Commissioner was to seek direction against the Municipal Authorities to grant Building Use permission. The court then reasoned that by filing the Chamber Summons and the application, the purpose of the defendants was to create evidence about injunction and that such prayer was not germane to the purpose for which Order XXVI Rule 9, C.P.C. could be applied. While dismissing the prayers below Chamber Summons at Exh.44 as well as application Page 4 of 7 C/SCA/6836/2018 ORDER Exh.47, the court below took the view which was far from sound in law.
4.2 The court observed inter alia, "8. Next, even if it for a moment, a hypothetical situation is considered or assumed to exist that the compound wall in question is found intact, yet would that situation enable the Defendants to successfully claim direction from the Court to the Municipal Corporation for providing them with Building Use Permission? The Answer apparently is NO. The Building Use Permission of the Corporation is an administrative act vested concerned authority. It is not for this Court to direct the Municipal Corporation to grant or not to grant the Building Use Permission. The Order of injunction operates in exactly the same words as it was when pronounced by the prior coordinate court. The prior coordinate Court not only forbid the Defendants from causing damage to the compound wall but also granted injunction in favour of the Plaintiff forbidding Defendants from disturbing other easement rights of the Plaintiff."
"9. In wake of above, neither application of the appointment of Court Commissioner is maintainable nor Chamber Summons asking this Court to direct the Corporation to grant of Building Use Permission is maintainable. This Court finds itself loath to substitute its discretion for a power which is vested with the Municipal Corporation."
5. What is overlooked to become an error of law in the order of the City Civil Court was that the factum of absence of damage to the compound wall and it having been existed intact, was not disputable. As th mentioned above, earlier on 09 May, 2015 the previous Court Commission had submitted its report and in this report itself it was shown that the disputed compound wall passing North-South having height of 6 ft. 4 inch and width of 1 ft. 7 inch and having total length of 67 ft and 6 inch was in existence which was plastered on both the sides and glazed tiles were applied in the portion indicated.
Page 5 of 7 C/SCA/6836/2018 ORDERIn other words, no damage was indicated even at that time.
5.1 Even otherwise, when the defendants wanted to bring on record the present status of the compound wall and its construction with a view to require the Municipal Authorities to consider the pending application for grant of Building Use permission, it was a valid reason for the court to accept the plea and to grant the prayer for second commission to take out the spot inspection. The allowing of Chamber Summons Exh.43/44 as well as granting of application Exh.47 would have been in tune with the object and purpose of order XXVI Rule 9, C.P.C., rather than against the purpose of the provision, as erroneously viewed by the court below. The error was compounded when the factum of no-damage to the compound wall was a fact available on record which was to be re- affirmed only. As such the court below accepted that position, yet passed the impugned order of dismissal.
6. As a result of the above discussion and the th fact situation emerging, impugned order dated 24 January, 2018 passed by the Auxiliary Chamber Judge, Court No.19, City Civil Court, Ahmedabad, dismissing Chamber Summons Exh.43 and an application Exh.44 as well as application Exh.47 are hereby set aside. The prayers in the applications are allowed by directing the City Civil Court concerned to appoint Court Commissioner within one week from the date of receipt of this order, as prayed for below Exh.47.
Page 6 of 7 C/SCA/6836/2018 ORDER6.1 The Court Commissioner shall complete his exercise of preparing report within two weeks from the date of appointment. The respondent - Municipal Corporation authorities shall consider the question of granting B.U. permission in accordance with law and as per the prayer below Exh.44, thereafter and accordingly.
7. This petition is allowed as above.
(N.V.ANJARIA, J) Anup Page 7 of 7