Mer Meru Bhima Odedra vs Mer Vasta Lila
2021 Latest Caselaw 12613 Guj

       C/SA/156/2021                                ORDER DATED: 26/08/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/SECOND APPEAL NO. 156 of 2021

                                   With
                CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
                    In R/SECOND APPEAL NO. 156 of 2021
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                          MER MERU BHIMA ODEDRA
                                  Versus
                              MER VASTA LILA
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Appearance:
MR SHAILESHKUMAR B RAYCHURA(10200) for the Appellant(s) No. 1
MR YASH H JOSHI(6495) for the Appellant(s) No. 1
for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA

                               Date : 26/08/2021

                                ORAL ORDER

Heard learned advocate for the appellant.

1. The present Second Appeal is directed against judgment and order dated 31.3.2021 passed by learned Principal District Judge, Porbandar, dismissing Regular Civil Appeal No. 28 of 2016. The appeal was by the original defendant - the appellant herein which in turn confirmed the judgment and decree passed by learned Principal Senior Civil Judge in Regular Civil Suit No. 83 No. 2012.

2. The suit was for declaration and permanent injunction. In decreeing the suit, the trial court prima facie travelled beyond the suit prayers. Learned advocate for the appellant referred to substantial questions of law mentioned in the memorandum of appeal in support of the prayers made.

C/SA/156/2021 ORDER DATED: 26/08/2021

3. In the facts of the case, this appeal is admitted as the following questions of law arise for consideration,

(i) Whether in the facts and circumstances of the case, the decree passed by the trial court was not sustainable in eye of law if it travelled beyond the relief claimed in the suit ?

(ii) Whether the lower appellate court committted an error in confirming the judgment and decree passed by trial court ?

(iii Whether the provisions of sections 101, 102 and 103 of the Evidence Act have been overlooked in passing the judgment and decree.

(iv) Whether the courts below have appropriately appreciated the evidence led by the Power of Attorney and whether the pleadings were based on personal knowledge of facts, to be relied on ?

(v) Whether both the courts below erred in passing the judgment and decree against section 34 of the Specific Relief Act ?

Order in Civil Application

Heard learned advocate for the applicant.

2. The present application is for stay of the judgment and decree impugned in the second appeal.

3. The second appeal has already been admitted by this court as per order of even date on the basis of substantial questions of law framed and recorded in the order.

C/SA/156/2021 ORDER DATED: 26/08/2021

4. Rule, returnable on 5.10.2021.

5. By way of ad-interim relief, the parties are directed to maintain status quo with regard to the subject matter property and further that the decree passed against the appellant shall not be executed.

(N.V.ANJARIA, J) C.M. JOSHI