SCA/5029/2008 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5029 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? ========================================================= BIPINCHANDRA HARILAL MODI - Petitioner(s) Versus HARILAL LALLUBHAI MODI DECEAD.THRO LEGAL HEIR - Respondent(s) ========================================================= Appearance : MR HASIT H JOSHI for Petitioner(s) : 1, MR NM KAPADIA for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 29/07/2008 ORAL JUDGMENT 1. Rule. Mr.N.M.Kapadia, learned Advocate waives service of notice of rule on behalf of the respondent. With the consent of the learned Advocates appearing on behalf of the respective parties, the petition is taken SCA/5029/2008 2/3 JUDGMENT up for final hearing today. 2. By way of this petition under Article 227 of the Constitution of India, the petitioner has prayed for an appropriate Writ, direction and /or order quashing and setting aside the orders passed below Exh.61 and 62 dated 02.01.2008 in Regular Civil Suit No.623 of 1997 and also order passed below Exh.57. 3. As the Court proposes to quash and set aside the order passed below Exh.57 as the same is in breach of principles of natural justice and without giving any opportunity to the petitioner, this Court is not further discussing anything on merits. It appears that order below Exh.57 was passed without giving opportunity to the petitioner and/or even without any notice to the petitioner. Therefore, the petitioner submitted applications at Exh.61 and Exh.62 to recall and/or review the order passed below Exh.57 which came to be dismissed by the learned trial Court on 02.01.2008. From the order passed below Exh.57, it appears that neither notice was issued by the learned trial Court nor the petitioner was heard. 4. Under the circumstances, and in view of the serious dispute with respect to the locus of the applicant who submitted application Exh.57, atleast the SCA/5029/2008 3/3 JUDGMENT petitioner was required to be heard. Under the circumstances, only on that ground present Special Civil Application is required to be allowed. 5. For the reasons stated above, the petition succeeds. Impugned orders passed by the learned trial Court below Exh.62 and Exh.57 are hereby quashed and set aside. The learned trial Court is directed to decide Exh.62 and Exh.57 afresh in accordance with law and on merits after giving opportunity to all concerned inclusive of the petitioner within a period of three months from the date of receipt of present order and/or on production of certified copy of the present order. It is made clear that this Court has not expressed any opinion on merits in favour of either parties and the impugned orders are quashed and set aside on the ground that same has been passed without giving opportunity to the petitioner. Rule is made absolute to the aforesaid extent. However, in the facts and circumstances of the case, there shall be no order as to costs. Direct service is permitted. [M.R.Shah,J.] satish