Gujarat High Court
Girish Chandra Ojha vs Pramodkumar Amritlal Ojha on 29 June, 2021
Bench: Sonia Gokani
C/SCA/6134/2010 ORDER DATED: 29/06/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6134 of 2010
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GIRISH CHANDRA OJHA
Versus
PRAMODKUMAR AMRITLAL OJHA & 13 other(s)
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Appearance:
MR JA ADESHRA(107) for the Petitioner(s) No. 1
MR KV SHELAT(834) for the Respondent(s) No. 1
RULE SERVED BY DS(65) for the Respondent(s) No.
10,11,12,14.1,14.2,14.3,2,3,4,5,6,7,8,9
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CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
Date : 29/06/2021
ORAL ORDER
1. This is a petition preferred under Articles 226 and
227 of the Constitution of India with the following reliefs:
"7...
(A) The Hon'ble Court be pleased to quash & set aside the
impugned judgment and order dtd.15.04.2010, passed by
learned 9th Additional Senior Civil Judge, Rajkot below Ex.1
in Spe.C.S. No.21 of 1995 at Annexure-D and be pleased to
grant the prayer made by the petitioner in his application
Ex.502 in Sp.C.S.No.21 of 1995.
(B) Pending admission, hearing and final disposal of this
petition, this Hon'ble Court be pleased to stay the operation,
implementation and execution of the judgment and order
dtd.15.04.2010, psssed by learned 9 th Additional Senior Civil
C/SCA/6134/2010 ORDER DATED: 29/06/2021
Judge, Rajkot below Ex.1 in Sp.C.S. No.21 of 1995 at
Annexure-D and further be pleased to order / direct the Trial
Court to decide application Ex.502 in Sp.C.S.No.21 of 1995,
strictly on merits, without taking into consideration the
observations made in para 13 and 14 of the impugned order
At Annexure -D.
(C) This Hon'ble Court be pleased to grant any such other
and further reliefs deemed just and proper looking to the
facts and circumstances of this case and in the interest of
justice."
2. This Court (Coram:Justice Ravi Tripathi) at the time of
issuance of notice and on considering the request of
interim relief passed the following order on 13.05.2010:
"1. Heard learned Advocate Mr. Adeshra for the petitioner.
2. Learned Advocate submitted that the petitioner is
original defendant No.17 in suit - Special Civil Suit No. 21
of 1995, which was filed by his brother Shri Pramodkumar
Amritlal Oza. That suit being the suit of partition of the
ancestral property and there being an order dated 01.03.1995
below Exh.5 directing the parties to maintain status quo ,
the plaintiff was under duty to maintain status quo qua the
property in question. (emphasis supplied).
2.1 Learned Advocate submitted that despite that, plaintiff
in collusion with some of the defendants, sold away the
property for which the present petitioner filed an application
C/SCA/6134/2010 ORDER DATED: 29/06/2021
Exh.502 on 28.07.2009 complaining about the breach of
injunction. As a counter blast to this application dated
28.07.2009, the plaintiff filed an application on 29.07.2009
seeking withdrawal of the suit and when the petitioner came
to know about the same, he filed an application on
23.09.2009 seeking transposition of the present petitioner -
(defendant No.17) as a plaintiff. Learned Advocate submitted
that the Court below without giving any heed to the request
made in application filed on 23.09.2009, a copy of which is
produced at page 134, permitted the withdrawal of the suit
saying that if at all the petitioner - defendant No. 17 is
aggrieved by breach of an injunction order granted by the
Court, he can file a separate application. Learned Advocate
for the petitioner submitted that it is a settled law that in a
suit for partition, plaintiff though is a plaintiff before the
Court for all practical purposes, defendants are also plaintiffs
and therefore the application for transposition of the present
petitioner as plaintiff ought to have been granted.
3. In view of above, matter requires consideration. Rule.
4. Notice as to interim relief returnable on 25th June,
2010.
5. Ad interim relief in terms of para 7(B). Direct service
permitted today."
4. This Court (Coram:Justice Anant S.Dave) on
23.08.2010 has continued the interim relief till final
disposal of the petition.
C/SCA/6134/2010 ORDER DATED: 29/06/2021
5. This Court (Coram:Justice S.G.Shah) has directed the
matter to be listed for final hearing on 14.10.2015.
6. When the matter came up for final hearing, learned
advocate, Mr.J.A.Adeshra appearing for the petitioner has
fairly submitted that the detail that he has gathered is to
an effect that the petitioner has passed away and
moreover, he is married to a German lady and hence, he
does not have any other contact and therefore, learned
advocate is unable to establish any contact. He used to
call him on a regular basis, but for the obvious reason, it
has stopped. He, however, is unable to produce death
certificate of the petitioner and according to him, he would
not be in a position to either get any document to
substantiate his say nor is it feasible for him to concretely
avail any details from any one as close relatives he knows
of the petitioner are the respondents herein and learned
advocate representing them also is not in a position to
help either in getting the death certificate or getting any
information the surest way.
C/SCA/6134/2010 ORDER DATED: 29/06/2021
7. In this scenario, this petition is disposed of as
withdrawn with a specific mention that there is no
adjudication which has taken place in wake of the details
furnished herein above. In the event of any difficulty or
change of circumstances, the parties are permitted to take
a cause afresh. Interim relief stands vacated.
8. Rule is discharged.
(SONIA GOKANI, J)
M.M.MIRZA
