SCA/1404720/2008 1/14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 14047 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 ? ========================================================= JASWANTLAL VASHRAMBHAI THAKKAR - Petitioner(s) Versus BHAVINBHAI PAWANKUMAR JAIN & 1 - Respondent(s) ========================================================= Appearance : MR MB GANDHI for Petitioner(s) : 1, MR IQBAL M KHAN for Respondent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 18/12/2008 ORAL JUDGMENT 1. RULE. Mr.Iqbal M. Khan, learned advocate waives the service of notice of rule on behalf of the respondents. 2. At the request of the learned advocate appearing on behalf of the respective parties, present petition is taken SCA/1404720/2008 2/14 JUDGMENT up for final hearing today. 3. By way of this petition under Article 227 of the Constitution of India, the petitioner – original plaintiff has prayed for appropriate writ, order and/or directions quashing and setting aside the orders passed by the learned Chamber Judge, City Civil Court, Ahmedabad below Notice of Motion Ex.7 as well as the below application Ex.1 in Review Application No.1168 of 2008. 4. Being aggrieved by the order dtd.23/9/2008 passed by the learned Chamber Judge, City Civil Court at Ahmedabad below Notice of Motion Ex.7 in Civil Suit No. 2350 of 2007, the petitioner herein – original plaintiff had preferred Appeal From Order No.329 of 2008. At the relevant time, it was submitted on behalf of the petitioner – original appellant that while disposing of the Notice of Motion, the learned Chamber Judge has considered the facts incorrectly and contrary to the report of the Court Commissioner. It was further submitted that in para 6(xi) it was observed by the learned Chamber Judge that so far as window situated in first floor is concerned, the same appears to be recently fixed, however, it was submitted that the same was factually incorrect and even contrary to the report of the Court Commissioner. It was SCA/1404720/2008 3/14 JUDGMENT also further submitted that inspite of the affidavits of the neighbouring owners/occupiers, copies of which are produced on record, suggesting that they have seen the construction since last more than 30 to 40 years, the learned Chamber Judge observed that the affidavits of the neighbouring owners/occupants have not been produced by the petitioner. Considering the above and instead of quashing and setting aside the order passed by the learned Chamber Judge, City Civil Court at Ahmedabad below Notice of Motion - application Ex.7, this court disposed of the said Appeal From Order No.329 of 2008 observing that it will be open for the appellant to submit appropriate application for review before the learned trial court pointing out the aforesaid facts. This Court aslso directed the learned Chamber Judge to consider the same and pass appropriate order in accordance with law and on its own merits without in any way being influenced by the impugned order. It appears that thereafter pursuant to the observations made by this Court in order dtd.15/10/2008 in Appeal From Order No.329 of 2008, the appellant had preferred Review Application No.1168 of 2008 pointing out that certain observations are incorrect and/or contrary to the record SCA/1404720/2008 4/14 JUDGMENT and instead of considering the same on merits, the learned Chamber Judge, Court No.16, City Civil Court, Ahmedabad by the impugned dtd.14/11/2008 dismissed the said review application on the ground that the same is not maintainable. Being aggrieved by and dissatisfied with the order passed by the learned Judge, City Civil Court, Court No.16, Ahmedabad dtd.14/11/2008 passed in Review Application No.1168 of 2008, the petitioner – original plaintiff has preferred present Special Civil Application under Article 227 of the Constitution of India. 5. Mr.M.B. Gandhi, learned advocate appearing on behalf of the petitioner – plaintiff has vehemently submitted that the learned Chamber Judge has materially erred in dismissing the review application without considering the same on merits. It is submitted that when this Court permitted the petitioner to submit appropriate Review Application pointing out the incorrect observations and when this Court directed the learned Chamber Judge to decide and dispose of the same on merits, it was not open for the learned Chamber Judge, Ahmedabad to dismiss the said review application on the ground that the same is not maintainable. It is submitted that as such this Court could have allowed Appeal From Order No.329 of SCA/1404720/2008 5/14 JUDGMENT 2008 by quashing and setting aside the order passed below Notice of Motion - application Ex.7 and could have remanded the matter to the learned Chamber Judge, however, instead of that when this court directed the petitioner to submit review application and when this Court directed the learned Chamber Judge to decide and dispose of the Review Application on merits, the learned Chamber judge was duty bound to consider the same on merits. It is submitted that the learned Judge of the City Civil Court has passed the impugned order as if he is sitting as an appellate authority over the decision of this Court in the aforesaid Appeal From Order, and as if this Court was not aware of the limitation in review application. Therefore, it is requested to quash and set aside the impugned order passed by the learned Chamber Judge in Review Application. Even on merits also it is submitted by Mr.Gandhi, learned advocate appearing on behalf of the petitioner that the learned Chamber Judge has not considered the relevant aspects, more particularly the report of the Court Commissioner as well as the affidavits of the neighbours produced by the petitioner - plaintiff which are on record, suggesting that they have seen the construction since last 30 years. SCA/1404720/2008 6/14 JUDGMENT Submitting accordingly, it is requested to allow present Special Civil Application by quashing and setting aside the impugned order passed by the learned Chamber Judge below Notice of Motion - application Ex.7. 6. The petition is opposed by Mr.Iqbal Khan, learned advocate appearing on behalf of the respondents. It is submitted that the learned trial court has rightly held that the review application is not maintainable and the learned Chamber Judge has considered all the documents which were on record. Submitting accordingly, it is requested to dismiss the present Special Civil Application. 7. Heard the learned advocates appearing on behalf of the respective parties. 8. At the outset, it is required to be noted that earlier the petitioner – plaintiff had preferred Appeal From Order No.329 of 2009 before this Court challenging the order passed by the learned Chamber Judge, City Civil Court, Ahmedabad below Notice of Motion - application Ex.7 and it was submitted on behalf of the petitioner - plaintiff in the said Appeal From Order that while dismissing the Notice of Motion, the learned Chamber Judge has considered the facts incorrectly and/or which are contrary to the report of the Court Commissioner. It was SCA/1404720/2008 7/14 JUDGMENT submitted in para 6(iv) it is observed by the learned Chamber Judge that so far as the window situated on the first floor is concerned, the same appears to be recently fixed, however, the same is factually incorrect and even contrary to the report of the Court Commissioner. It was also further submitted that in para 6(xiv), the learned Chamber Judge has observed that the affidavits of the neighbouring owners / occupants have not been produced by the petitioners, however, the same is also factually incorrect and such affidavits of the neighbouring owners / occupants have been produced suggesting that they have seen the construction since last 30 to 40 years. Considering the above, instead of quashing and setting aside the order passed below Notice of Motion - application Ex.7, this Court relegated the petitioner – appellant to submit the review application before the learned Chamber Judge pointing out the aforesaid facts so that the learned Chamber Judge, who has passed the impugned order, can consider the same and this Court disposed of the aforesaid Appeal From Order No.329 with Civil Application No.12071 of 2008 while passing the following order on 15/10/2008:- SCA/1404720/2008 8/14 JUDGMENT “1. What is challenged in the present Appeal from Order is the order passed by the learned Chamber Court, Ahmedabad City dated 23/09/2008 below Notice of Motion (Exh. 7) in Civil Suit No. 2350/2007 in dismissing the same and vacating the ad-interim relief granted earlier. 2. Shri Chinmay Gandhi, learned advocate appearing on behalf of the appellant has submitted that while dismissing the Notice of Motion, the learned Chamber Judge has considered the facts incorrectly and/or which is contrary to the Court Commissioner's report. It is submitted that in paragraph 6(ix), it is observed by the learned Chamber Judge that so far as the window situated in the first floor is concerned, the same appears to be recently fixed. However, the same is factually incorrect and even contrary to the Court Commissioner's report. He has further submitted that in paragraph 6(xiv), the learned Chamber Judge has observed that the affidavits of the neighbouring owners/occupants have not been produced by the applicant. However, the same is also factually incorrect and it is submitted that as such affidavits of the neighbouring owners/occupants have been produced suggesting that they have seen the SCA/1404720/2008 9/14 JUDGMENT construction since last more than 30-40 years. 3. If that is so, it will be open for the appellant to submit an appropriate application for review before the learned trial Court pointing out the aforestated facts and the learned trial Court is directed to consider the same and pass an appropriate order in accordance with law on its own merits without in any way being influenced by the present order and/or the impugned order. As and when such a review application is filed, the learned Chamber Judge is directed to decide and dispose of the the same at the earliest. It will be open for the appellant to submit an appropriate application for interim order, which may be considered by the learned Chamber Judge. 4. With this, the present Appeal from Order is disposed of at this stage. CIVIL APPLICATION No. 12071/2008 In view of disposal of the Appeal from Order, no order in the Civil Application and the same is disposed of accordingly.” 9. That thereafter pursuant to the aforesaid order passed by this Court dtd.15/10/2008, the petitioner – original SCA/1404720/2008 10/14 JUDGMENT plaintiff submitted Review Application No.1168 of 2008 pointing out that what was submitted before this Court at the time of hearing of the aforesaid Appeal From Order. However, unfortunately the learned Chamber Judge, City Civil Court, Ahmedabad by the impugned order dtd.14/11/2008 has rejected the said review application without considering the same on merits by holding that the said review application under Order 47 of the Code of Civil Procedure is not maintainable. 10.It is required to be noted that first of all, this Court directed the learned Chamber Judge consider the review application and pass appropriate order in accordance with law and on merits, and therefore, the learned Chamber Judge was bound by the said direction and it was the duty of the learned Chamber Judge to decide and dispose of the said review application on merits. It appears that the learned Chamber Judge wants to convey that though review application is not maintainable, this court has passed the order dtd.15/10/2008 directing the learned Chamber Judge to consider review application on merits as if this Court has not aware of the provisions of law. It is to be noted that when it was pointed out by the SCA/1404720/2008 11/14 JUDGMENT petitioner - plaintiff that certain incorrect findings are recorded by the learned Chamber Judge in the impugned order which are contrary to the record, instead of quashing and setting aside the order passed below Notice of Motion - application Ex.7 and instead of remanding the matter to the learned Chamber Judge for deciding the matter afresh, this Court relegated the petitioner - plaintiff to submit appropriate review application before the learned Chamber Judge pointing out the aforesaid mistakes and/or incorrect and inaccurate findings, so that the same can be considered by the learned Chamber Judge on merits. Even otherwise, this Court could have quashed and set aside the order passed below Notice of Motion - application Ex.7 and could have remanded the matter to the learned Chamber Judge for deciding the Notice of Motion afresh, considering the relevant records, to record correct findings. It appears that message has not reached the learned Chamber Judge for deciding the review application on merits and considering the aforesaid aspect. Instead the learned Judge Chamber Judge has dismissed the review application on the round that the same is not maintainable, without proper appreciating and/or understanding the order passed by SCA/1404720/2008 12/14 JUDGMENT this Court dtd.15/10/2008 in the aforesaid Appeal From Order No.329 of 2008 and the purpose for which the review application was directed to be submitted, the learned Chamber Judge has dismissed the review application. Under the circumstances, the impugned order passed by the learned Chamber Judge in the review application cannot be sustained as the same is even contrary to the directions issued by this Court in the order dtd.15/10/2008 passed in Appeal From Order No.329 of 2008 in Appeal From Order No.329 of 2008. 11.Even on merits also it appears that the impugned order passed below Notice of Motion - application Ex.7 deserves to be quashed and set aside, as prima facie it seems to be contrary to the Report of the Commissioner and material on record. Under the circumstances, without further expressing any opinion on merits, the impugned order passed by the learned Chamber Judge, City Civil Court, Ahmedabad below Notice of Motion - application Ex.7 also deserves to be quashed and set aside and the matter is to be remanded to the learned Chamber Judge for deciding the Notice of Motion - application Ex.7 afresh on the basis of the documents SCA/1404720/2008 13/14 JUDGMENT available on record. 12.For the reasons stated above, the petition succeeds. The impugned order passed by the learned Chamber Judge, City Civil Court at Ahmedabad below Review Application No.1168 of 2008 as well as order passed below Notice of Motion - application Ex.7 in Civil Suit No. 2350 of 2007 are hereby quashed and set aside and the matter is remanded to the learned City Civil Judge, Ahmedabad for deciding Notice of Motion - application Ex.7 in accordance with law and on merits, considering the documents on merits within a period of two months from the date of receipt of writ of this order. The learned Principal City Civil Judge, Ahmedabad is directed to see that the copy of this order is placed before the concerned Chamber Judge who passed the impugned order in Review Application No.1168 of 2008. Rule is made absolute accordingly. In the facts and circumstances of the case, there shall be no order as to costs. [M.R. SHAH, J.] SCA/1404720/2008 14/14 JUDGMENT rafik