SCA/9771/2008 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9771 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 ? ========================================================= CHHAYABEN PRAKASHBHAI PILLAI - Petitioner(s) Versus STATE OF GUJARAT & 5 - Respondent(s) ========================================================= Appearance : MR KH BAXI for Petitioner(s) : 1, MR VIPUL MISTRY AGP for Respondent(s) : 1, None for Respondent(s) : 2,5 - 6. MR PRANAV G DESAI for Respondent(s) : 3 - 4. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 29/07/2008 ORAL JUDGMENT 1. Present Special Civil Application is filed by the petitioner – original plaintiff under Article 227 of the Constitution of India for appropriate writ, order and/or direction to quash and set aside the judgement and order dtd.30/6/2008 passed by the learned Presiding Officer, FTC No.10, SCA/9771/2008 2/7 JUDGMENT Vadodara in Misc.Civil Appeal No.38 of 2008 in allowing the appeal and by quashing and setting aside the order dtd.16/2/2008 passed by the learned trial court below application Ex.5 in Regular Civil Suit No. 957 of 2007. 2. The petitioner herein – original plaintiff filed Regular Civil Suit No. 957 of 2007 against the respondents for declaration and permanent injunction with a prayer to declare the plaintiff as owner by adverse possession. It was the case on behalf of the petitioner that one “Samrat Hotel” is situated in Sayajiganj area, near Railway Station, Vadodara and there was open portion of land on the back side of the said Samrat Hotel, which was known as “Garden” admeasuring 5 feet X 8 feet and the plaintiff was running her business in the name and style as “Samrat Tava Center” since many years, which is not coming within road and it is not encroached by land owners. It was the case of the plaintiff that the Vadodara Municipal Corporation removed the structure / Tava Center, along with other 142 Cabin Holders and the said Tava Center was removed by the Corporation illegally and a notice was given to the Corporation that their Tava Center has been removed/demolished illegally and they will put the superstructures again and as there was no SCA/9771/2008 3/7 JUDGMENT reply, the plaintiff again put Tava Center and thereafter, she filed the aforesaid suit. In the said suit an application at Ex.5 was submitted for temporary injunction restraining the Corporation from interfering and disturbing the use and occupation and in legal possession of the plaintiff in respect of the suit place known as “Samrat Tava Center” without due process of law. The learned trial court allowed the application Ex.5 vide order dtd.16/2/2008 by directing the original defendant No.3 Corporation to maintain status-quo position of the suit property known as “Samrat Tava Center” till final disposal of the suit. Being aggrieved by the said order passed by the learned trial court below application Ex.5 allowing the application Ex.5, the respondent Nos.3 and 4 – Vadodara Municipal Corporation and its Commissioner preferred Civil Misc.Appeal No.39 of 2008 which came to be heard by the learned Presiding Officer, FTC No.10, Vadodara, who vide his judgement and order dtd.30/6/2008 allowed the said appeal by quashing and setting aside the order passed by the trial court below application Ex.5. Being aggrieved by and dissatisfied with the same, the petitioner – original plaintiff has preferred present Special Civil Application SCA/9771/2008 4/7 JUDGMENT under Article 227 of the Constitution of India. 3. Mr.K.H. Baxi, learned advocate appearing on behalf of the petitioner has vehemently submitted that the learned appellate court has materially erred in allowing the appeal by quashing and setting aside the order passed by the trial court below application Ex.5 when the plaintiff is already running the Tava Center on the suit land/place. It is submitted that as such the trial court while allowing the application Ex.5 directed to maintain status quo which was not required to be interfered with, as the plaintiff was running the Tava Center since many years. It is further submitted that as such there was already a dispute between the railway authority and the Corporation with regard to ownership of the suit land and therefore, the Corporation had no authority to remove the Tava Center. It is submitted that the Tava Center of the petitioner came to be removed by the Corporation illegally along with other 142 cabin holders, who had approached this Court and lost. It is submitted that so far as the petitioner is concerned her case cannot be compared with the case of other 142 cabin holders who lost before this Court. Therefore, it is requested to allow present Special Civil Application. SCA/9771/2008 5/7 JUDGMENT 4. Mr.Pranav G.Desai, learned advocate appearing on behalf of the Corporation has vehemently submitted that as such the son of the petitioner had also filed Special Civil Application before this Court along with other 142 cabin holders who lost and having lost before this Court, the petitioner – plaintiff ought not to have filed the suit. It is submitted that even there was no reference of filing of the Special Civil Application by the son of the plaintiff in the suit and there was suppression of material facts. It is submitted that the Tava Center of the petitioner was removed after the order passed by this Honourable Court in Special Civil Application along with other 142 cabin holders. It is submitted that considering the above when the appellate court has allowed the appeal and quashed and set aside the order passed by the trial court below application Ex.5, it cannot be said that the appellate court has committed any error. 5. Heard the learned advocate appearing on behalf of the respective parties. 6. At the outset, it is required to be noted that the petitioner had no title over the land in question and is an encroacher on the land in question. It is also required to be noted that the son of the petitioner had filed Special SCA/9771/2008 6/7 JUDGMENT Civil Application before this Court along with other 142 cabin holders, who lost and the learned Single Judge of this Court directed that it will be open for the Corporation to take appropriate action and demolish the cabin. Thereafter, the Tava Center run by the petitioner came to be demolished/removed. However, the petitioner, again without any authority restored the Tava Center. Filing of the Special Civil Application by the son of the petitioner before this Court and having lost, is not mentioned by the plaintiff in the plaint. It is not the case of the petitioner that the son of the petitioner filed Special Civil Application for some other cabin and/or place. Once having lost before this Court, it was not open for the petitioner to file the suit. At least filing of the petition and having lost before this Court ought to have mentioned in the plaint as well as in the application at Ex.5. Thus, there is suppression of the material fact by the petitioner. A person who approaches the Court and prays for discretionary relief, must come with clean hands. Considering the above when the appellate court has allowed the appeal by quashing and setting aside the order passed by the trial court below application Ex.5, it cannot be said that the learned appellate court has SCA/9771/2008 7/7 JUDGMENT committed any error. In the facts and circumstances of the case and considering the fact that the son of the petitioner has lost before this Court in Special Civil Application in respect of very suit land/place, present Special Civil Application deserves to be dismissed and is accordingly dismissed. Notice is discharged. In the facts and circumstances of the case, there shall be no order as to costs. [M.R. SHAH, J.] rafik