Babubhai Ramabhai Zankant vs Santokben Karsanbhai Vadukar

                                                                                    NEUTRAL CITATION




     C/SCA/20679/2022                              JUDGMENT DATED: 13/09/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 20679 of 2022


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE J. C. DOSHI
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1     Whether Reporters of Local Papers may be allowed                   No
      to see the judgment ?

2     To be referred to the Reporter or not ?                            No

3     Whether their Lordships wish to see the fair copy                  No
      of the judgment ?

4     Whether this case involves a substantial question                  No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                          BABUBHAI RAMABHAI ZANKANT
                                    Versus
                        SANTOKBEN KARSANBHAI VADUKAR
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Appearance:
DEV D PATEL(8264) for the Petitioner(s) No. 1,2,3,4,4.1,4.2,5,6
for the Respondent(s) No. 2,3,4,5
MR KK TRIVEDI(934) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 5.2,6
RULE SERVED for the Respondent(s) No. 5.1,5.4
RULE UNSERVED for the Respondent(s) No. 5.3
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    CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                               Date : 13/09/2023

                               ORAL JUDGMENT

1. Heard learned advocate Mr. Dev Patel for the petitioners and learned advocate Mr.K.K.Trivedi for respondent no.1.

NEUTRAL CITATION C/SCA/20679/2022 JUDGMENT DATED: 13/09/2023 undefined

2. By way of this petition under Article 227 of the Constitution of India, the petitioners challenge order passed below Exh.5 in Regular Civil Appeal No.17 of 2022, whereby, the learned Additional District Judge, Keshod stayed implementation and execution of the order passed in Special Civil Suit No.13 of 2019.

3. Brief facts of the case are as under :-

3.1. Original plaintiff - Santokben Karsanbhai Vadukar filed Special Civil Suit No.13 of 2019 for relief of partition and separate possession under the provisions of Hindu Succession Act for the property of deceased - Karsanbhai being father of the plaintiff. In this suit, application at Exh.59,90 and 96 are moved by different defendants for rejection of the plaint on the ground that suit is barred by principle of law of limitation. Vide order dated 23.08.2022, learned Principal Senior Civil Judge, Keshod allowed all three application and rejected the plaint under Order 7 Rule 11(d) of the CPC with cost of Rs.10,000/- to be paid to all surviving defendant. Since order of rejection of the plaint under Order 7 Rule 11(d) of the CPC is decree within section 2(2) of CPC, aggrieved plaintiff filed Regular Civil Appeal No.17 of 2022 before the learned District Judge, Keshod. Application Exh.5 was moved in the said appeal with relief that defendant may not transfer subject matter of the suit or create any third party interest and also to stay implementation, execution of the order of cost. Learned District Judge, Keshod without noticing relief prayed in the application Exh.5 stayed judgment and decree passed in Special Civil Suit No.13 of 2019.

NEUTRAL CITATION C/SCA/20679/2022 JUDGMENT DATED: 13/09/2023 undefined 3.2. In fact there was nothing to stay the judgment as suit was rejected under Order 7 Rule 11(d) of CPC and no interim order was operating in favour of the plaintiff prior to rejection of plaint. Clear error has been committed by the Court below. However, while passing impugned order, the Court below directed the appellant to deposit Rs.15,000/-. This order is again not within purview of Order 41 Rule 5 of CPC.

4. According to this Court, learned Additional District Judge, Keshod has travelled beyond its jurisdiction and stay the judgment and decree by which suit is dismissed as well as for no reason modify order of cost. Thus, both the orders are required to be set aside.

5. In view of above, the petition succeeds. Order dated 19.09.2022 passed below application Exh.5 in Regular Civil Appeal No.17 of 2022 is quashed and set aside. Application at Exh.5 is also dismissed. Rule is made absolute.

6. Learned advocate Mr.K.K.Trivedi for the plaintiff submits that plaintiff will follow order of cost passed by the learned Principal Senior Civil Judge, Keshod and shall deposit entire amount before the Appellate Court. Needless to say that amount of cost which shall be deposited by the plaintiff, disbursement of the same shall be governed by the outcome of the appeal.

7. On the joint request of learned advocates for the parties, final hearing of the Regular Civil Appeal No.17 of 2022 is expedited. Learned Additional District Judge, Keshod is directed to decide the said Appeal including all pending applications as Page 3 of 4 Downloaded on : Sat Sep 16 17:03:58 IST 2023 NEUTRAL CITATION C/SCA/20679/2022 JUDGMENT DATED: 13/09/2023 undefined early as possible preferably within 6 months from the date of receipt of present order. Both the parties shall co-operate the learned Appellate Court in early disposal of the Appeal.

Direct service is permitted.

(J. C. DOSHI,J) SATISH Page 4 of 4 Downloaded on : Sat Sep 16 17:03:58 IST 2023