FA/1115/1984 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1115 of 1984 with FIRST APPEAL No. 1266 of 1984 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ========================================= = 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 ? ========================================= = MUNICIPAL CORPORATION OF THE CITY OF AHMEDABAD Versus ARUN CORPORATION ESTATE DIVISION ========================================= = Appearance : FA No.1115/1984 MR MG NAGARKAR for Appellant MR MB GANDHI for Respondent MRS TRUSHA M GANDHI for Respondent FA No.1266/1984 MR MB GANDHI for Appellant MR BP TANNA for Respondent ========================================= = CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 08/05/2008 ORAL JUDGMENT FA/1115/1984 2/5 JUDGMENT [1] The original defendant has preferred First Appeal No.1115/1984 and the original plaintiff has preferred First Appeal No.1266/1984. [2] The appellant – original defendant has preferred the present appeal i.e. First Appeal No.1115 of 1984 challenging the judgment and order dated 31.12.1983 passed by City Civil Judge, City Civil Court No.14, Ahmedabad in Civil Suit No.4065 of 1979 praying for allowing the present appeal by quashing and setting aside the judgment and order passed the the trial Court. [3] The appellant – original plaintiff has preferred the appeal i.e. First Appeal No.1266 of 1984 challenging the judgment and order dated 31.12.1983 passed by City Civil Judge, City Civil Court No.14, Ahmedabad in Civil Suit No.4065 of 1979 praying for allowing the present appeal by quashing and setting aside the judgment and order passed the the trial Court. The trial Court, after considering the entire evidence on record, dismissed the suit of the original plaintiff vide the impugned judgment and order. [5] Heard learned counsels appearing on behalf of the FA/1115/1984 3/5 JUDGMENT respective parties in both the appeals. [6] Mr.M.G.Nagarkar, learned counsel appearing on behalf of the appellant in the present appeal and for respondent in First Appeal No. 1286 of 1984 has raised the contentions that the trial Court has wrongly refunded the decreetal amount which has already been made by the original plaintiff of the said suit in view of the parking space as per the sanctioned plan. However, after considering the evidence on record, contentions and undertaking given by the original plaintiff of the said suit before the Corporation for requirement to keep parking space for cycle and the car and there was no undertaking to keep the space for the scooter. In that view of the matter, after considering the evidence on record, the trial Court has discussed the evidence at length and come to the conclusion that the original plaintiff is entitled for refund amount which has been paid in view of the scooter parking. [7] Mr.M.B.Gandhi, learned counsel for the respondent in the present appeal and for the appellant in First Appeal No.1266 of 1984 has further submitted that the undertaking given by the original plaintiff is as per the Rules, sanctioned plan to make payment in view of car parking and cycle parking. The trial FA/1115/1984 4/5 JUDGMENT Court had discussed in detail in para-35 of the judgment and order, the evidence and has come to the conclusion that since the space for car and scooter parking were required to make the provision. [8] In para-36, the trial Court has held as under. “The plaintiff is only entitled to recover Rs.79,500/- which amount was illegally recovered in lieu of scooter parking, at the relevant time, the plaintiffs were not required to make provision for scooter parking. Hence, the defendant Corporation could not recover any contribution in lieu of scooter parking. The defendant – Corporation has recovered Rs.79,500/- in lieu of scooter parking space. That recovery cannot be said to be legal. Hence, the plaintiff is entitled to recover that amount from the Corporation.” [9] For the foregoing reasons, the present appeals stand dismissed. No order as to costs. [10] Mr.B.P.Tanna, learned counsel appearing in First Appeal No.1266 of 1984 has fairly submitted that the decreetal amount will be paid within three months. [K. S. JHAVERI,J.] FA/1115/1984 5/5 JUDGMENT vijay