Patel Ambaben Wd/O Virabhai vs Dashrathbhai Jivabhai Patel
2021 Latest Caselaw 4265 Guj

             C/CRA/131/2020                         ORDER




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

       R/CIVIL REVISION APPLICATION NO. 131 of 2020

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                PATEL AMBABEN WD/O VIRABHAI
                               Versus
                DASHRATHBHAI JIVABHAI PATEL
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Appearance:
MR MEHUL SHAH, SENIOR ADVOCATE with MA PAREKH(1088)
for the Applicant(s) No. 1,10,11,12,13,14,2,3,4,5,6,7,8,9
MR DAKSHESH MEHTA(2430) for the Respondent(s) No. 1,2,3,4
MR. RUSHANG D MEHTA(6989) for the (s) No. 1,2,3,4
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CORAM: HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

                              Date : 16/03/2021

                                ORAL ORDER

1. RULE. Shri Rushang Mehta, learned Advocate, waives service of notice of rule on behalf of the respondents.

2. Heard Shri Mehul Shah, Senior Advocate, learned Counsel with Shri M.A. Parekh, learned advocate for the applicants as also Shri Rushang Mehta, learned Advocate for the respondents.

3. Shri Mehul Shah, Senior Advocate, learned Counsel, submitted that apart from the pleadings about cause of action and /or limitation in the plaint, the order impugned reflects total non application of mind as the reasonings assigned by the learned Judge appears to be not from the facts of the present case. In the present case, there is no question of reference of any banakhat or

C/CRA/131/2020 ORDER

banakhat coupled with possession. The reliefs prayed in the suit suggest that it is filed for entering names of heirs and legal representatives of one Jevabhai Motidas Dhanabhai in the revenue record in respect of the suit land. Over and above that, according to the submission of the learned Counsel, a declaration is sought for to declare sale deed dated 13.09.2007 executed by defendants nos.1 to 13 in favour of defendants nos.14 and 15 to be false, illegal and without any authority of law, and therefore, he has submitted that the reasons assigned at page 41 under the head "Read the application, Heard learned Advocates. Perused the record" appears to be without any application of mind to the facts of the present case while determining the application filed under Order 7 Rule 11 of the Code of Civil Procedure (hereinafter referred to as 'the Code'). Except the said irrelevant consideration de hors the facts of the present case, there is no reasoning or finding recorded by the learned Judge for the decision of the application filed below Exh.28 praying for rejection of the plaint under Order 7 Rule 11 of the Code.

4. Shri Rushang Mehta, learned advocate, though vehemently opposed the application, is unable to assist the Court in reaching to a conclusion that the reasoning narrated in the impugned order is borne out from the controversy in the suit, and therefore, it would be most appropriate if the impugned judgment and order dated 11.03.2020 passed by the learned Principal Senior Civil Judge, Kalol below Exh.28 in Special Civil Suit No.41 of 2017 is hereby quashed and set aside and the learned Judge is directed to decide afresh after affording an opportunity to the learned advocates for the appearing parties within a period of three months from the date of receipt of the writ of this Court. Needless to say that this application, which, if allowed would terminate the

C/CRA/131/2020 ORDER

proceedings itself, the learned Judge shall give precedence for the decision of this application over any other application, which might be pending before it in the present suit. Hence, the present Civil Revision Application is allowed in the aforesaid terms. Rule is made absolute to the aforesaid extent.

(UMESH A. TRIVEDI, J.)

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