Heard Mr. Bhatt, learned counsel, with Mrs. M.M.Bhatt, learned advocate for the petitioner.
Mr.
R.C.Kakkad, learned advocate has appeared on caveat for some of the respondents, however, while raising objections with regard to the cause title of the petition vis-a-vis the cause title in the appeal memo before the learned first appellate Court and also vis-a-vis the cause title of the plaint before the learned trial Court, submitted that he is not in position to ascertain the number at which the names of the respondents for whom he has instructions to appear, are mentioned since the cause title of the petition memo is not in conformity with the cause title of the memo of the appeal before the learned first appellate Court. He, however, after some discussion submitted that he would be appearing for the caveator-respondents whose names are mentioned at Sr. Nos.2 to 7 in the cause title of the memo of the petition.
The petition is directed against common order dated 30.09.2010 passed by the learned first appellate Court in Civil Misc. Appeal Nos.44 of 2007 and 45 of 2007.
By the impugned order, the learned first appellate Court has allowed the Civil Misc. Appeal Nos.44 of 2007 and 45 of 2007. So far as the petitioner is concerned, only the order dated 30.09.2010 passed in Civil Misc. Appeal No.44 of 2007 is brought under challenge and the petition is not preferred against the learned first appellate Court's order qua Civil Misc. Appeal No.45 of 2007.
The petitioner herein is the original plaintiff and also the respondent No.1 in the concerned appeal.
The petitioner herein preferred R.C.S.No.664 of 2006, inter alia, seeking relief for administration of the property and appropriate directions/declaration including relief in the nature of injunction. Along with the suit, the plaintiff also filed an application seeking interim relief (Exh.5).
By the order dated 23.05.2007, the learned trial Court allowed the application Exh.5 and by way of interim relief, restrained the defendant Nos.1 to 7 (in the said suit being R.C.S.No.664 of 2006) from transferring and/or selling/alienating the suit property, either directly or through agent.
Aggrieved by the learned trial Court's order dated 23.05.2007 (below application Exh.5) two appeals viz. Civil Misc. Appeal Nos.44 of 2007 and 45 of 2007 came to be preferred.
Mr.
Kakkad, learned advocate, has raised objection with regard to the cause title in the judgment passed by the learned first appellate Court and has submitted that the appellants of the respective appeals are not properly and correctly described in the cause title of the judgment. However, any grievance on the said count and/or any corrective/rectification application does not appear to have been made by the respondent Nos.2 to 7.
By the impugned order dated 30.09.2009, the learned first appellate Court allowed the said appeals and set aside the order dated 23.05.2007 passed by the learned trial Court below application Exh.5.
While setting aside the said order dated 23.05.2007, the learned first appellate Court has also issued various other directions, as mentioned in the operative part of the impugned order.
Mr.
Bhatt, learned counsel for the petitioner, has submitted that the directions are contradicting inter-se. He has also submitted that the learned first appellate Court has committed serious error in restricting the claim of the petitioner for share in the suit property to the extent of 10% whereas the petitioner plaintiff has made claim to the extent of 1/5th share in the suit property. He also submitted that there is no material or any base for the learned first appellate Court to restrict the claim of the petitioner for share in the property to 10%. He also submitted that the learned first appellate Court failed to appreciate that the suit property was illegally and unauthorizedly converted into non-agricultural land, which would adversely effect the petitioner's right as an agriculturists.
Mr.
Kakkad, learned advocate, has vehemently resisted the petition. He has submitted that the suit in its original form as filed by the plaintiff is not maintainable. He has submitted that the suit has been filed in representative capacity and any permission as required under O-1 R-8 has not been obtained. He also submitted that the suit is ex-facie barred by limitation. He further contended that the suit is not maintainable on account of non-joinder of necessary parties. On the said contentions, Mr. Kakkad submitted that the suit being not maintainable, the order passed by the learned trial Court deserved to be set aside and has been rightly set aside by the learned first appellate Court. He opposed the maintainability of the petition also on the ground that it has been filed without permission of the Court, though the petition also has been filed in representative capacity.
To support his submission, Mr. Kakkad relied upon the judgment in the case of Ramchander Sunda & Anr. v. Union of India & Ors. [ (1999) 9 SCC 105].
Heard the learned counsel appearing for the contesting parties and perused the impugned order dated 30.09.2010 as well as the order dated 23.05.2007 passed by the learned trial Court.
On perusal of the impugned order dated 30.09.2010, it emerges that the learned first appellate Court has proceeded on the premise that the original plaintiff claimed share in the suit property to the extent of 10%. It also appears that keeping such understanding in focus, the learned first appellate Court has, while passing the impugned order, directed the appellants to maintain status-quo with regard to 10% of the total land bearing Survey No.968/1 and to not to disturb or deal with 10% of the total suit property in any manner whatsoever. The said direction would translate into the permission to the appellants of Civil Misc. Appeal Nos.44 of 2007 and 45 of 2007 to deal with the balance property. Having thus directed, the learned first appellate Court has also directed the concerned appellant(s) to file an undertaking that if ultimately any additional land i.e. more than 10% goes to the share of the plaintiff then the same shall have to be returned by the appellant i.e. shall have to be made available to the plaintiff.
Mr.
Bhatt, learned counsel, has submitted that in view of the directions contained in sub-para (1) and sub-para (2) of the operative part of the order, the direction in para 3 of the order would be incapable of being complied with.
Having regard to the said contention and also the objections raised by Mr. Kakkad against the maintainability of the suit before the learned trial Court as well as of the appeals before the learned first appellate Court, it appears necessary to examine the record of the appeals so as to ascertain as to whether such objection is tenable and justified or not and whether it was at all raised before the learned trial Court and/or before the learned first appellate Court or not because from perusal of the order impugned in the present petition, it does not transpire that such contention was raised by the respondent at any stage. Mr. Kakkad has not been able to point out from the impugned orders either of the learned trial Court or of the learned first appellate Court that such contention was raised.
Furthermore, when the concerned appellant/s filed the appeal, he/they also carried the same cause title as must have been on record of the plaint and the same appears to have been followed while filing the petition.
Under the circumstances, so as to ascertain the exact position about the appeal memo and the suit, it would be appropriate to take into account the record. The registry is directed to call for the Record & Proceedings of Civil Misc. Appeal Nos.44 of 2007 and 45 of 2007. The Record & Proceedings shall reach this Court on or before 26th October, 2010.
In response to the petitioner's request for interim relief, the learned counsel for the contesting respondents has submitted that the operation of the order passed by the learned first appellate Court has been suspended by the learned first appellate Court itself.
Having regard to the contentions raised in the petition against the impugned order and submissions of caveator-respondents and subject to the examination of Record & Proceedings of the Civil Misc. Appeal Nos.44 of 2007 and 45 of 2007, it appears that the contentions raised in the petition require further consideration. Hence, Notice to the respondents, returnable on 28th October, 2010. So far as respondent Nos.2 to 7 are concerned, Mr. Kakkad, learned advocate, waives service of notice for the said respondents. The petitioner shall effect direct service of notice qua the respondent Nos.1 and 8 so as to serve them on or before 25th October, 2010.
In the meanwhile, the contesting parties will maintain status-quo as regards the suit property.
[K.M.Thaker, J.] kdc Top