Jagrajsingh Mukhtyarsingh Shikh vs Node Hanifabhai Osman
2021 Latest Caselaw 3083 Guj

         C/SCA/15027/2012                                        ORDER




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CIVIL APPLICATION NO. 15027 of 2012

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                  JAGRAJSINGH MUKHTYARSINGH SHIKH
                               Versus
                       NODE HANIFABHAI OSMAN
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Appearance:
MR BY MANKAD(440) for the Petitioner(s) No. 1
(MR J V BHAIRAVIA)(156) for the Respondent(s) No. 1
ADVOCATE NOTICE SERVED(81) for the Respondent(s) No. 1
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 CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                              Date : 23/02/2021

                               ORAL ORDER

1. Heard learned Advocate Mr. B.Y.Mankad for the Petitioner through video conference. Learned Advocate for the other side has not remained present though served.

2. The Petitioner (Original Plaintiff) has filed this petition under Article 227 of the Constitution of India as well as under Order 11 Rule 14 and Order 13 Rule 1 of the Code of Civil Procedure (for short "the Code") for the following prayer:

"(a) that this Hon'ble Court be pleased to issue writ of certiorari or any other appropriate writ and be pleased to quash and set aside the impugned order at Annexre -C passed on 12.9.2012 below exhibit - 28 in Regular Civil No. 30 of 2011 by Principal Civil Judge at Naliya - Kachchh.

(b) that pending hearing and final disposal of this Petition, the execution and implementation of impugned order at Annexure-C passed on 12/9/2012 below exhibit-28 in Regular Civil Suit No. 30 of 2011 by Principal Civil Judge at Nalia - Kachchh, be stayed by way of interim injunction.

          C/SCA/15027/2012                                         ORDER



       (c)    that any other order or orders that may deem fit in the special

facts and circumstances of this case may pleased be passed in the interest of justice."

3. Learned Advocate for the Petitioner has drawn the attention of this court at page no. 15 which is an order dated 8.2.2012 passed by the learned Principal Civil Judge, Naliya - Kachchh, whereby the Application Exh.18 [Under Order 39 Rule 1 of C.P.C.] of the Respondent (Original Defendant) was disallowed. It is submitted by the learned Advocate for the petitioner that, subsequently, after 7 months, the same Application of the Respondent (Original Defendant) at Exh.28 [under Order 11 Rule 14 C.P.C.] came to be allowed by the same learned Judge after seven months vide order dated 12.9.2012.

3.1 Learned Advocate for the petitioner has vehemently and fervently submitted that the proprietary demands that once the learned Judge has disallowed the Application, how the same application can be allowed after few months by the same learned Judge.

3.2 Learned Advocate for the Petitioner has heavily placed reliance on the judgment passed by this court in the case of Jeevan Aatu Harijan v. State of Gujarat Through Chief Secretary & Ors. In Special Civil Application No. 15063 of 2012 dated 2.11.2012 wherein the identical issue was discussed by this Court and ultimately it was held as under:

"Considering the overall facts of the case as above, prima facie, the learned 3rd Additional District Judge, Kachchh, at Bhuj, while passing the order dated 10.10.2012, has exercised powers contrary to law and bypassing the norms of judicial decoram and propriety. At this stage, a case is made out for issuance of Rule returnable on 26th December 2012. By way of ad-interim relief, the order dated 10.10.2012 passed by the learned 3rd Additional District Judge, Kachchh, at Bhuj, in Civil Miscellaneous Appeal No.42 of 2011, shall remain stayed till final disposal of this petition."

4. Pursuant to the submission made by learned Advocate for the Petitioner

C/SCA/15027/2012 ORDER

and the contents made in the memo of petition and also the order passed by the learned Principal Civil Judge, Naliya - Kachchh dated 8.2.2012 rejecting the Application Exh.18 [under Order 11 Rule 14 C.P.C.] of the Respondent (Original Defendant) and thereafter subsequent order passed by the same learned i.e. Principal Civil Judge, Naliya - Kachchh dated 12.9.2012, allowing the Application Exh.28 [Under Order 11 Rule 14 C.P.C.] and that too passed after 7 months, and also the stand taken by the Petitioner that once the Application is rejected earlier, the same Application, which is allowed subsequently by the same learned Judge, is not tenable in the eyes of law. Learned Advocate for the Petitioner has also submitted that the Respondent (Original Defendant) has neither filed any review application nor has challenged the earlier order passed by the learned Principal Civil Judge, Naliya

- Kachchh dated 8.2.2012 before any higher forum, and therefore, the earlier dated 8.2.2012 passed by the learned Judge is said to have attained its finality.

4.1 Learned Advocate for the Petitioner has further submitted that it is mentioned in earlier order that the same was premature on 8.12.2012. Learned Advocate for the Petitioner has therefore submitted that the subsequent order dated 12.9.2012 passed by the same learned Judge, allowing the Application Exh.18 [Order 11 Rule 14 C.P.C.] deserves to be quashed and set aside.

5. In view of the discussion made herein above, the Petition deserves to be partly allowed with condition upon the Petitioner / Original Plaintiff that as and when the stage comes, i.e. to say, recording of evidence, at that time original document is required to produced for proper adjudication and also for availing the correct outcome of the suit proceedings.

6. The petition stands partly allowed. The impugned order dated 12.9.2012 passed below Exh.28 in Regular Civil Suit No. 30 of 2011 by the learned Principal Civil Judge, Naliya - Kachchh is hereby quashed and set aside with

C/SCA/15027/2012 ORDER

condition upon the Petitioner / Original Plaintiff that as and when the stage comes, i.e. to say, recording of evidence, at that time original document shall be produced for proper adjudication and also for availing the correct outcome of the suit proceedings.

The learned Principal Civil Judge shall proceed with the suit in accordance with and without being influenced by the order passed by this court.

(A. C. JOSHI,J) J.N.W