SCA/1460720/2008 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 14607 of 2008 With SPECIAL CIVIL APPLICATION No. 14608 of 2008 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 ? ========================================= = CHHAGANBHAI SUKHABHAI PATEL DECEASED THROUGH HEIRS & 5 - Petitioner(s) Versus JAYANTIBHAI SUKHABHAI PATEL & 5 - Respondent(s) ========================================= = Appearance : MR ASPI M KAPADIA for Petitioner(s) : 1 - 3, 3.2.1, 3.2.2,3.2.3 - 6. MR RS SANJANWALA for Respondent(s) : 3, None for Respondent(s) : 1,2, 2.2.1, 2.2.2, 2.2.3, 2.2.4, 2.2.5,2.2.6,4 - 6. ========================================= = CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 16/12/2008 ORAL JUDGMENT 1. Heard Shri Aspi Kapadia, learned advocate appearing on SCA/1460720/2008 2/7 JUDGMENT behalf of the petitioners and Shri R.S. Sanjanwala, learned advocate appearing on behalf of respondent no. 3-original appellant of Civil Miscellaneous Appeal No. 76/2005, who is the main contesting party so far as the present Special Civil Applications are concerned. 2. In Special Civil Application No. 14607/2008, the petitioners-original plaintiffs have prayed for an appropriate writ, order or direction quashing and setting aside the impugned order dated 14/07/2008 passed by the learned Presiding Officer, 2nd Fast Track Court, Surat below Exh. 22 in Civil Miscellaneous Appeal No. 76/2005. 2.1. In Special Civil Application No. 14608/2008, the petitioners-original plaintiffs have prayed for an appropriate writ, order or direction quashing and setting aside the impugned order dated 14/07/2008 passed by the learned Presiding Officer, 2nd Fast Track Court , Surat in Civil Miscellaneous Appeal No. 76/2005 in allowing the same relying upon the documentary evidence produced by respondent no. 3 herein alongwith application, Exh. 22 in the said appeal. 3. At the outset, it is required to be noted that the manner in which the learned Presiding Officer, 2nd Fast Track Court, Surat has disposed of Civil Miscellaneous Appeal No. 76/2005 on 14/07/2008 relying upon the documentary evidences produced by respondent no. 3 vide Exh. 22 in the said appeal and allowed the application, Exh. 22 on the very day i.e. on 14/07/2008, without further giving any opportunity to the petitioners-original plaintiffs to meet with the said documents, SCA/1460720/2008 3/7 JUDGMENT is highly deprecated. 4. When the application, Exh. 22 was submitted by respondent no. 3-original appellant for permitting him to produce additional documents/evidence in the appeal, if the learned appellate Court was of the opinion that the said application, Exh. 22 deserves to be allowed and respondent no. 3-original appellant be permitted to be produce on record additional documents/evidence, in that case, after permitting respondent no. 3-original appellant to produce additional documents/evidence, reasonable opportunity ought to have been given to other side to meet with the said documents and/or to give them an opportunity to challenge such an order before higher forum and in the present case, admittedly, order below Exh.22 has been passed on 14/07/2008 permitting respondent no. 3-original appellant to produce additional documents/evidence and on the very day, relying upon those documents and without giving any further opportunity to the petitioners-original plaintiffs to meet with those documents, which are permitted to be brought on record, the learned appellate Court has passed an order in appeal allowing the appeal on the very day. Thus, it appears that the learned appellate Court has passed the impugned order without giving any sufficient opportunity to the petitioners-original plaintiffs to meet with those additional documents/evidence, which were permitted to be brought on record by order dated 14/07/2008. 5. There is a broad consensus between the learned advocates appearing on behalf of the respective parties i.e. the learned advocate appearing on behalf of the petitioners- SCA/1460720/2008 4/7 JUDGMENT original plaintiffs as well as the learned advocate appearing on behalf of respondent no.3-original appellant (in whose favour the impugned order has been passed by the learned appellate Court), that both the orders passed by the learned appellate Court below Exh. 22 in Civil Miscellaneous Appeal No. 76/2005 as well as the order passed in Civil Miscellaneous Appeal be quashed and set aside and let respondent no. 3 herein submit an appropriate application for production of additional documents and the same be decided by the learned trial Court in accordance with law on its own merits and shall also decide the application, Exh. 5 afresh and in accordance with law on its merits. 6. In view of the above, the order passed by the learned appellate Court below Exh. 22 dated 14/07/2008 in Civil Miscellaneous Appeal No. 76/2005 as well as the impugned order passed by the learned appellate Court dated 14/07/2008 in Civil Miscellaneous Appeal No. 76/2005 are to be quashed and set aside and the matter be remitted to the learned trial Court for deciding the application, Exh. 5 afresh in accordance with law on its own merits with a liberty in favour of respondent no. 3 to submit an appropriate application before the learned trial Court for production of additional documents/evidence and the learned trial Court to decide and dispose of the application considering the fact whether respondent no. 3-original can be permitted to produce additional documents/evidence or not and till then, parties are directed to maintain status-quo with respect to land bearing Revenue Survey No. (New) 40/1 i.e. (Old) 16/1. 7. It is reported that the land bearing Revenue Survey Nos. SCA/1460720/2008 5/7 JUDGMENT (New) 56/1 (Old) 17 and (New) 56/2 (Old) 18/1 have been disposed of and, therefore, it will be open for the petitioners- original plaintiffs to submit an appropriate application for joining those purchasers as party defendants and pray for injunction against them and the same may also be considered by the learned trial Court. 8. Hence, the present Special Civil Applications are allowed. The impugned order passed by the learned Presiding Officer, 2nd Fast Track Court, Surat dated 14/07/2008 below Exh . 22 in Civil Miscellaneous Appeal No. 76/2005 and the order passed by the learned Presiding Officer, 2nd Fast Track Court, Surat dated 14/07/2008 in Civil Miscellaneous Appeal No. 76/2005 are hereby quashed and set aside and the matter is remitted to the learned trial Court for deciding the application, Exh. 5 afresh in accordance with law on its own merits within a period of three months from the date of receipt of this order. 9. It will be open for respondent no. 3-original appellant to submit an application to produce additional documents/evidence by way of a separate additional affidavit within a period of two weeks from today and it will also be open for the petitioners-original plaintiffs to reply to the said application. As and when such an application is made, the learned trial Court to decide and dispose of the application in accordance with law on its own merits with respect to permitting respondent no. 3 to produce additional documents/evidences or not. 10. As stated hereinabove, in any case, the learned trial Court to decide and dispose of the application, Exh. 5 within a SCA/1460720/2008 6/7 JUDGMENT period of three months from today. All the parties concerned are directed to co operate for early disposal of the application, Exh. 5. The learned trial Court to decide and dispose of the application, Exh. 5 in accordance with law and on its own merits without, in any way, being influenced by the order passed below Exh. 22, and in Civil Miscellaneous Appeal No. 76/2005, which are quashed and set aside today. 11. Until then, all the parties to the suit, more particularly, respondents-original defendants are directed to maintain status quo with respect to land bearing Revenue Survey No. (New) 40/1 (Old) 16/1. 12. It will be also be open for the petitioners-original plaintiffs to submit an appropriate application permitting them to bring on record subsequent purchaser with respect to land bearing Revenue Survey Nos. (New) 56/1 (Old) 17 and (New) 56/2 (Old) 18/1 and praying for injunction against them also and as and when such an application is made, the same shall be considered by the learned trial Court in accordance with law on its own merits, for which this Court has not expressed any opinion on merits. 13. With this, the present Special Civil Applications are allowed. Rule is made absolute in each of the petitions. There shall be no order as to costs. (M.R. SHAH, J.) siji SCA/1460720/2008 7/7 JUDGMENT