IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No. 130 of 1988 For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= PARBATBHAI MOHANBHAI - Appellant(s) Versus BALUBHAI KANJIBHAI RUDANI & 1 - Defendant(s) =========================================================
Appearance :
MR PV HATHI for Appellant(s) : 1, None for Defendant(s) : 1, 1.2.1, 1.2.2, 1.2.3,1.2.4 - 2. DELETED for Defendant(s) : 2.2.1 NOTICE SERVED for Defendant(s) : 2.2.2,2.2.3 ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH
ORAL JUDGMENT
Date : 04/07/2012
1. Present Second Appeal under section 100 of the Code of Civil Procedure has been preferred by the appellant – original defendant No.2 – Parbatbhai Mohanbhai challenging the Judgement and Order passed by the learned Principal District Judge, Amreli in Regular Civil Appeal No. 7 of 1983 by which the learned appellate court has allowed the said appeal preferred by the respondent No.1 herein – original plaintiff – Kanjibhai Jerambhai by quashing and setting aside the judgement and decree passed by the learned Civil Judge (JD), Dhari dtd.18/10/1982 in Regular Civil Suit No.147 of 1979. It is the case on behalf of the appellant – original defendant No.2 that the impugned Judgement and Order passed by the learned appellate court without bringing the heirs of the respondent No.1 in appeal – original defendant No.2 – Mohanbhai Dahyabhai Tolia. The learned advocate appearing on behalf of the respondent No.1 herein – original appellant is not disputing the aforesaid fact. He has also stated at the bar that as such after the impugned Judgement and Order passed by the learned appellate court appellant herein – original defendant No.2 who was respondent No.2 in the said appeal submitted application Ex.27 before the learned appellate court under Order 22 Rule 4 of the Code of Civil Procedure and no further order has been passed by the learned appellate court on the said ground. It is submitted that even the execution of the application filed by the original plaintiff – original appellant to execute the judgement and decree passed by the learned appellate court was ordered to be stayed on the purshis submitted by the respondent No.1 herein – original plaintiff.
2. It is also reported that even the original plaintiff – Kanjibhai Jerambhai has expired. As such his heirs are already brought on record in the present appeal. Thus, it appears that not only the original respondent No.1 – original defendant No.1
– Mohanbhai Dahyabhai has expired, even the original plaintiff
– original appellant – Kanjibhai Jerambhai has also expired. It is also not in dispute that the heirs of both of them are already brought on record in the present Second Appeal.
3. In view of the above, there is broad consensus between the learned advocates appearing on behalf of the respective parties to quash and set aside the impugned Judgement and Order passed by the learned appellate court in Regular Civil Appeal No. 7 of 1983 and remand the matter to the learned appellate court to decide the same on merits and after bringing the heirs of the plaintiff – appellant in appeal - Kanjibhai Jerambhai as well as respondent No.1 in appeal - Mohanbhai Dahyabhai on record of the said appeal, as they are already brought on record in the present Second Appeal.
4. The heirs of the original appellant – Kanjibhai Jerambhai shall submit an appropriate application before the learned appellate court permitting them to be brought on record as heirs of original appellant Nos.1/1 to 1/4 in the said appeal as well as permitting them to bring the heirs of respondent No.1 in appeal – Mohanbhai Dahyabhai on the record of the said appeal and as agreed by the learned advocate appearing on behalf of the respective parties, the learned appellate court to grant the same and thereafter the learned appellate court to decide and dispose of the aforesaid appeal in accordance with law and on merits.
5. It is also agreed between the learned advocates appearing on behalf of the respective parties that in view of the above, the learned appellate court is not required to pass any order on the application Ex.27 as in view of the above, heirs of the original appellant – Kanjibhai Jerambhai as well as heirs of the original respondent No.1 – Mohanbhai Dahyabhai are permitted to be brought on record. It is also agreed that as the impugned Judgement and Order passed by the learned appellate court is set aside and the matter is remanded to the learned appellate court, execution petition already filed, does not survive and the same may be treated to have been disposed of with a liberty to file a fresh execution petition on the judgement and order that may be passed by the learned appellate court in appeal on remand.
6. In view of the above, without expressing anything on the merits of the case in favour of either of the parties, in view of the above consensus between the learned advocates appearing on behalf of the respective parties recorded hereinabove, present appeal succeeds in part. The impugned Judgement and Order passed by the learned appellate court - learned Principal District Judge, Amreli in Regular Civil Appeal No. 7 of 1983 dtd.14/9/1987 is hereby quashed and set aside and the matter is remanded to the learned appellate court to decide the said appeal in accordance with law and on merits, after permitting the heirs of the original appellant No.1 in appeal – Kanjibhai Jerambhai as well as original respondent No.1 in appeal – Mohanbhai Dahyabhai to be brought on record of the Regular Civil Appeal No. 7 of 1983 and for that the heirs of the original appellant in appeal – Kanjibhai Jerambhai to submit formal applications before the learned appellate court and the learned appellate court to grant/allow the same and see to it that the heirs of the original appellant in appeal – Kanjibhai Jerambhai as well as respondent No.1 in appeal – Mohanbhai Dahyabhai are brought on record and thereafter the learned appellate court to decide the appeal in accordance with law and on merits, on remand at the earliest but not later than 31/3/2013.
7. As agreed by and between the learned advocates appearing on behalf of the respective parties, now the learned appellate court is not required to pass any further order on the application Ex.27. As agreed by and between the learned advocates appearing on behalf of the respective parties, more particularly respondent No.1, even execution proceedings which are initiated by the original plaintiff pursuant to the Judgement and Order passed by the learned appellate court, also be treated to have been disposed of with a liberty to file fresh execution petition on the final outcome of the appeal by the learned appellate court on remand.
8. With this, present Second Appeal is allowed to the aforesaid extent only. In the facts and circumstances of the case, there shall be no order as to costs.
Registry is hereby directed to send writ of this Judgement and Order to the learned appellate court at the earliest and is also directed to return the Record and Proceedings of the case to the learned appellate court - learned Principal District Judge, Amreli at the earliest but not later than 6/8/2012.
[M.R. SHAH, J.] rafik