SBCSA NO.60/2008 –SATTAR KHAN V/S CHAIRMAN, MUNICIPAL BOARD AND ORS.. : JUDGMENT DTD.14.7.2008 1/3 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. S.B. CIVIL SECOND APPEAL NO.60/2008 Sattar Khan versus Chairman, Municipal Board and ors. PRESENT HON'BLE Dr.JUSTICE VINEET KOTHARI Mr.Pawan Ojha, for the petitioner. Mr.Yashwant Mehta, for respondents DATE OF JUDGMENT : 14th July, 2008. O R D E R 1. Heard the learned counsels for the parties. 2. This appeal is directed against the judgment and order of the learned Dist. Judge dtd.6.2.2008 arising out of the judgment and decree of the learned trial Court dtd.16.4.2007. 3. After hearing at some length, it transpires that the learned trial Court decreed the counter-claim of the defendant No.3 Sattar Khan SBCSA NO.60/2008 –SATTAR KHAN V/S CHAIRMAN, MUNICIPAL BOARD AND ORS.. : JUDGMENT DTD.14.7.2008 2/3 and while rejecting the suit of the plaintiff directed the plaintiff to remove the illegal construction over the disputed site by mandatory injunction. The learned trial Court did so after the advocate appearing for the plaintiff pleaded no instructions before the learned trial Court on 9.4.2007. However, the learned trial Court without sending any fresh notice to the plaintiff, rejected the suit and decreed the counter claim filed by the defendant No.3. The appeal filed by the plaintiff before the appellate Court also failed. 5. Having heard the learned counsel, this Court is of the opinion that without going into the question whether the substantial question of law would arise or not, since it is considered appropriate that the learned trial Court ought to have sent fresh notices to the plaintiff to pursue his suit and should not have rejected the suit after the advocate concerned pleaded no instruction. 6. Accordingly this second appeal is allowed and the impugned judgment of the learned trial Court dtd.16.4.2007 and that of the appellate Court dtd.6.2.2008 are set aside and the suit no.19/2007 – Sattar Khan V/s The Chairman, Municipal Board, Churu and ors. is SBCSA NO.60/2008 –SATTAR KHAN V/S CHAIRMAN, MUNICIPAL BOARD AND ORS.. : JUDGMENT DTD.14.7.2008 3/3 restored to the trial Court i.e. Civil Judge (J.D.), Churu for fresh trial in accordance with law. The said trial may be expedited and may be concluded within a period of one year from today. No order as to costs. (Dr.VINEET KOTHARI)J. Item No.41 Ss/-