Dhirubhai Madhabhai Desai vs State Of Gujarat
2021 Latest Caselaw 3853 Guj

       C/SCA/19468/2018                                      JUDGMENT




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CIVIL APPLICATION NO. 19468 of 2018


FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

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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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                          DHIRUBHAI MADHABHAI DESAI
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR RAJESH O GIDIYA(5222) for the Petitioner(s) No. 1
MR. JAYNEEL PARIKH, AGP for the Respondent(s) No. 1,2,3
NOTICE SERVED BY DS(5) for the Respondent(s) No. 4
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 CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                                Date : 05/03/2021

                               ORAL JUDGMENT

1. Heard learned Advocate Mr. Rajesh O. Gidiya for the Petitioner and learned Advocate Mr. Jayneel Parikh for Respondent Nos. 1, 2 and 3. No one has remained present on behalf of Respondent No.4 though served.

C/SCA/19468/2018 JUDGMENT

2. The Petitioner / Original Plaintiff has filed this petition under Article 227 of the Constitution of India challenging the order dated 30.11.2018 passed by the learned Principal Senior Civil Judge and Additional Chief Judicial Magistrate, Palitana below Application Exh.36 in Regular Civil Suit No. 208 of 2017 [Old No. 18/2015 Before the Bhavnagar Court], whereby the prayer of the Petitioner / Original Plaintiff for producing on record the original record came to be dismissed.

3. The dispute between the parties in the Suit is regarding possession of the land bearing Survey No.72 admeasuring 13 Acre 30 Gunthas situated at village Samadhiyala, Taluka Palitana, District Bhavnagar. It is alleged that the Petitioner / Original Plaintiff is in the possession of the said land since 1953.

4. At the request made by the learned Advocates for the parties, as a very short issue is involved in the petition as also the matter touches the year 2018, the matter is taken up for final hearing today.

5. In view of the issue involved in the Petition, Rule returnable forthwith. Learned AGP waives service of Rule on behalf of the Respondent - State of Gujarat. None has remained present on behalf of Respondent No.4 - Talati - cum - Mantri.

7. Having heard the arguments advanced by both the sides, it appears that the learned Trial Court has not granted any accommodation in the Application Exh.36 and has dismissed the Application only on the basis that the Petitioner / Original Plaintiff has already filed the closing purshis on 27.7.2018. Upon such premises, this Court is of the opinion that the learned Trial Court has erred in passing the order dated 30.11.2018. Further, in the opinion of this Court, the documents which are sought to be produced by the Plaintiff are relating to revenue record which cannot be generated later on and therefore when the same in the government record, this Court is inclined to exercise the discretion and

C/SCA/19468/2018 JUDGMENT

the order dated 30.11.2018 passed by the learned Principal Senior Civil Judge and Additional Chief Judicial Magistrate, Palitana deserves to be quashed and set aside.

8. Resultantly, the petition succeeds and accordingly the order dated 30.11.2018 passed by the learned Principal Senior Civil Judge and Additional Chief Judicial Magistrate, Palitana below Application Exh. 36 in Regular Civil Suit No. 208 of 2017 is hereby quashed and set aside. The learned Trial Court shall proceed with the Suit after considering the submissions made by both the parties on its own merit. Both the parties shall have equal opportunity to adduce their evidence in accordance with law.

Rule is made absolute. Direct service is permitted by fax / e-mail / any other electronic mode.

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