(Per : HONOURABLE MR.JUSTICE JAYANT PATEL)
1. Present appeal arises against the judgment and order dated 23.1.2001 passed by learned Small Cause Judge, Ahmedabad in M.V.A. No.1552 of 1998, whereby the GRV of the premises is fixed at Rs.5580/- for the assessment year 1997-98.
2. Short facts are that the officers of the Corporation had made assessment of the premises, bearing Survey No.2581/1, situated in Ward Khadiya-1/B, Ahmedabad, by fixing GRV at Rs.32,514/-
for the assessment year 1997-98. The respondent being aggrieved by the aforesaid assessment preferred appeal, being MVA No.1552 of 1998 before the Small Cause Court, Ahmedabad. The lower Court at the conclusion of the appeal, passed the above said judgment and order. Under the circumstances, the present appeal before this Court.
3. We have heard learned counsel Ms. Jirga Jhaveri appearing for the appellant. Learned counsel Mr. Nishith P. Thakkar has filed his appearance for the respondent but no one has appeared for the respondent.
4. The only aspect to be considered by this Court is whether the Court could take into consideration the material which was not proved or no exhibit was given to such material while deciding the appeal. Similar aspect is considered by us in First No.350 of 2003 decided today and it has been observed thus:
"5. It appears from the reasons recorded in the order and record and proceedings, which is called by this Court, that the rent receipt and rent note showing agreed rent of Rs.400/- + municipal tax and education cess was not proved nor the same was exhibited. Under these circumstances, the lower court could not have proceeded to decide the appeal on the basis that the contractual rent was Rs.400/- for the premises in question. Under the circumstances, the judgment and order cannot sustain and the matter deserves to be remanded to the lower court."
5. The same situation prevails in the present matter inasmuch as the Valuer's report was produced but the same was neither exhibited nor proved. It further appears from the reasons recorded by the learned Judge that the Court was guided by the Valuer's report as if proved or exhibited. Under these circumstances, the judgment and order of the learned Judge deserves to be set aside and the matter deserves to be remanded to the learned Judge of the Small Cause Court, Ahmedabad with a direction to decide the same afresh after giving opportunity to both the sides to lead evidence. Hence, the judgment and order of the learned Judge is set aside with a direction that M.V.A. No.1552 of 1998 shall stand restored to the file of learned Small Cause Judge at Ahmedabad. The learned Judge shall give opportunity to both the sides to produce documents on record and thereafter shall decide the appeal afresh in accordance with law, preferably within a period of six months from the receipt of the order of this Court and the record and proceedings. The appeal is allowed to the aforesaid extent. Considering the facts and circumstances, no order as to cost.
6. Record and Proceedings be sent back to the lower Court.
ORDER IN CIVIL APPLICATION :
In view of the order passed in the First Appeal, Civil Application would not survive and the same stands disposed of.
(JAYANT PATEL, J.) (C.L.
SONI, J.) omkar Top