Motiji Gugaji vs State Of Gujarat
2021 Latest Caselaw 16998 Guj

     C/FA/4176/2018                               ORDER DATED: 28/10/2021



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 4176 of 2018
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                              MOTIJI GUGAJI
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR DEVENDRA A PATEL(1801) for the Appellant(s) No. 1
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP(99) for the
Defendant(s) No. 1
MR KM PARIKH(575) for the Defendant(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                              Date : 28/10/2021

                               ORAL ORDER

1. By way of this appeal under Section 96 of the Code of Civil Procedure, 1908 ['CPC', for short ], the present appellant has challenged the judgment and order dated 03.08.2018 passed by the learned 6th Additional Senior Civil Judge, Gandhinagar below Exh.7 in LAR No.991 of 2009.

2. Since the controversy involved is in very narrow compass, today both the learned advocates have consent for final disposal of the appeal.

3. It is contended by learned advocate for the appellant Mr.Vibhuti Nanavati that the short question in regard to this appeal is that the Land Reference Case preferred by the present appellant was dismissed by the Court only on the ground that the applicant has neither appeared

C/FA/4176/2018 ORDER DATED: 28/10/2021

before the lower Court to participate in the proceedings and nor led any evidence in the case. He has drawn attention of the Court to para:2 of the judgment which reads as under:

"The Court issued a notice to the parties of this reference specifying the day on which the Court will proceed to determine the objection, and directing their appearance before the Court on that day in view of Section - 20 of the said Act. The Ld. Advocate for the applicant as well as Ld.A.G.P. for the opponents appeared before the court. Then after the Court has proceeded to hear the reference. The issues have been framed vide exhibit - 7. The applicant has not appeared before the Court to participate in the proceeding and not led any evidence in this case. Hence the right of the applicant to adduce her evidence has been closed by the court on 28-06-2018. Then after the Ld. AG.P. for the opponents have not appeared before the Court to participate in the proceeding and not led any evidence in this case. Hence the right of the opponents to adduce his evidence has been closed by the court. Then after the matter has been taken for passing award as per section -26 of the Land Acquisition Act."

4. Learned advocate Mr.Nanavati submitted that the advocate was engaged earlier by the present appellant was not keeping good health and, therefore, though the said advocate was replaced by another advocate, the newly appointed advocate could not attend the matter and the matter was proceeded ex parte. He further submitted that the original Land Reference Case No.991 of 2009 is a part of a group of 35 matters and except this Land Reference Case No.991 of 2009, all remaining Land

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Reference Cases are pending before the trial Court and therefore he prayed for remanding back the matter for considering the same afresh on merits.

5. The aforesaid submission made by learned advocate Mr.Nanavati is vehemently opposed by learned advocate Mr.K.M.Parikh who submitted that the appellant could not be granted second chance to lead evidence as despite ample opportunity, newly appointed advocate has failed to remain present before the trial Court.

6. Considering the submissions made by the learned advocates for the respective parties and considering the averments made in the appeal in paras:4 an5 of the appeal which are as under, which are not converted by the advocate for the respondents in the interest of justice would be served if the appellant is granted one more opportunity to lead the evidence and if matter is permitted to be decided on merits considering the fact that remaining 35 matters pertaining to the same group are still pending, the present First Appeal needs to be allowed.

"4. The appellant submits that his advocate was not keeping good health due to age and age related complications and was having difficulty of hearing also. In that view of the matter, the applicant filed an application Exh.5 dated 27.3.2018 to remove his advocate. Advocate Shri A.S.Mehta was replaced by another advocate as per the vakalatnama Exh.6 on 27.1.2018. The newly appointed advocate also failed to attend to the matter and the

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matter proceeded ex-parte. The learned Reference Court was pleased to dismiss LAR No.991 of 2009 on the ground of non- submission of documents for enhancement of compensation.

5. The appellant submits that thereafter he met his original advocate to find out the status of other 35 cases pending before the learned District Court at Gandhinagar. He came to know that other 35 cases arising from the same group are still pending adjudication."

7. Accordingly, the present First Appeal is partly allowed. The impugned judgment and order dated 03.08.2018 passed by the learned 6th Additional Senior Civil Judge, Gandhinagar in L.A.R. No.991 of 2009 is hereby quashed and set aside. The matter is remanded back to the Court of the learned learned 6th Additional Senior Civil Judge, Gandhinagar for hearing of the reference afresh. The appellant shall take steps to see that the reference before the Court is argued within a period of four weeks from today and the Court concerned shall dispose of the reference within four weeks thereafter by an appropriate judgment.

(NIRZAR S. DESAI,J) MISHRA AMIT V.