IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No. 160 of 2007 For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 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 ?
========================================================= STATE OF GUJARAT & 1 - Appellant(s) Versus GHANSHYAMBHAI AMBALAL PATEL - Defendant(s) ========================================================= Appearance :
MR KABIR HATHI, ASST.GOVERNMENT PLEADER for Appellant(s) : 1, MR PM DAVE for Defendant(s) : 1, MR MEHUL S SHAH for Defendant(s) : 1, MR SURESH M SHAH for Defendant(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 13/04/2012
ORAL JUDGMENT
1. Present Second Appeal under section 100 of the Code of Civil Procedure has been preferred by the appellants – original defendants – State of Gujarat and another challenging the impugned Judgement and Order passed by the learned Additional District Judge, Panchmahals at Godhara in Regular Civil Appeal No. 39 of 2003 dtd.15/1/2007 by which the learned appellate court has allowed the said appeal preferred by the respondent herein quashing and setting aside the judgement and decree passed by the learned trial court in dismissing the suit and consequently decreeing the suit, holding that the respondent – original plaintiff is held to be the owner in possession of the suit land admeasuring 6 Acres and 13 Gunthas from the Survey No.78/14 of village Dhanol, Taluka Godhara.
2. That the respondent herein – original plaintiff instituted Regular Civil Suit No.47 of 1998 against the appellants herein – original defendants in th court of learned Civil Judge (S.D.), Panchmahals at Godhara for a declaration and permanent injunction with respect to the land admeasuring 6 Acres and 13 Gunthas from the Survey No.78/14 of village Dhanol, Taluka Godhara. That the learned trial court by the judgement and decree dtd.20/2/2003 dismissed the suit. Being aggrieved by and dissatisfied with the judgement and decree passed by the learned 2nd Joint Civil Judge (S.D.), Panchmahals at Godhara dtd.20/2/2003 passed in Regular Civil Suit No.47 of 1998 in dismissing the suit, respondent herein – original plaintiff preferred Regular Civil Appeal No. 39 of 2003 and the learned appellate court by the impugned Judgement and Order dtd.15/1/2007 has allowed the said appeal quashing and setting aside the judgement and decree passed by the learned trial court in dismissing and consequently decreeing the suit holding that the plaintiff is held to be the owner is in possession of the suit land admeasuring 6 Acres and 13 Gunthas from the Survey No.78/14 of village Dhanol, Taluka Godhara. Being aggrieved by and dissatisfied with the order passed by the learned appellate court, the appellants – original defendants have preferred the present Second Appeal under section 100 of the Code of Civil Procedure.
3. Today when the present Second Appeal is taken up for final hearing and after the matter was argued for sometime, there is a broad consensus between the learned advocates appearing on behalf of the respective parties that let the impugned Judgement and Orders / decrees passed by both the courts below be quashed and set aside and the matter be remanded to the learned trial court directing the learned trial court to permit the parties to lead further evidence, if they so desire and to decide the suit on remand, in accordance with law and on merits. It is submitted by the learned advocates appearing on behalf of the respective parties that they do not invite further reasoned order while quashing and setting aside the orders passed by both the courts below and remanding the matter to the learned trial court.
4. In view of the broad consensus between the learned advocates appearing on behalf of the respective parties, this Court is not assigning further reasons and is not passing reasoned order, while allowing the present Second Appeal and quashing and setting aside the Judgement and Orders / decrees passed by both the courts below.
5. In view of the above and for the reasons stated above, present Second Appeal succeeds. The impugned Judgement and Order dt.15/1/2007 passed by the learned Additional Sessions Judge, Panchmahals at Godhara in Regular Civil Appeal No. 39 of 2003 as well as judgement and decree dtd.20/2/2003 passed by the learned 2nd Joint Civil Judge (S.D.), Panchmahals at Godhara in Regular Civil Suit No.47 of 1998, are hereby quashed and set aside and Regular Civil Suit No.47 of 1998 is hereby ordered to be restored to file and and permit the parties to lead further evidence, if they so desire and the learned trial court is directed to decide and dispose of the suit, in accordance with law and on merits, considering the further evidence led by the parties, if any.
6. In the facts and circumstances of the case, learned trial court is directed to decide and dispose of the Regular Civil Suit No.47 of 1998, in accordance with law and on merits, as aforesaid on remand, at the earliest but later than 31/12/2012 without fail.
Present Second Appeal is allowed accordingly. No costs.
[M.R. SHAH, J.] rafik