Gujarat High Court
Lh Of Late Hematsangbhai ... vs Bhupatsanf Jivabhai Chavda on 5 August, 2022
Bench: Aniruddha P. Mayee
C/CRA/449/2022 ORDER DATED: 05/08/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 449 of 2022
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LH OF LATE HEMATSANGBHAI MAVASANGBHAI CHAVDA
Versus
BHUPATSANF JIVABHAI CHAVDA
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Appearance:
MB DODIA(3389) for the Applicant(s) No. 1,1.1,1.2,1.3,1.4,1.5,1.6,1.7,2,3
for the Opponent(s) No. 1,2,3,4,5,6
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CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 05/08/2022
ORAL ORDER
Heard learned advocate Mr. M.B.Dodia appearing for the
applicants.
2. The present Civil Revision Application impugns the
judgment and order dated 5.3.2022 passed below Exh.15 in
Regular Civil Suit No.356 of 2020 whereby the applicants have
filed an application under Order-7 Rule-11(d) of the Civil
Procedure Code ["CPC" for short] for rejecting the suit on the
ground that the suit of the plaintiff does not disclose any cause
of action and further has also suppressed the material fact and
also that the suit is barred by limitation.
3. Mr. M.B.Dodia, learned advocate for the applicants,
submits that with respect to the prayers prayed for in the suit,
similar proceedings before the Mamlatdar were also initiated by
the plaintiff in earlier point of time, however, that has not been
stated in the suit plaint. He submits that with respect to the use
of the common well between the boundaries of the farms of the
C/CRA/449/2022 ORDER DATED: 05/08/2022
plaintiff as well as defendants in the suit, the issue has been
settled by the Mamlatdar's Court. He further submits that the
appeal against the Mamlatdar's order has also been rejected by
the Dy. Collector, Botad. He further submits that since the well
mentioned by the plaintiff has not been used by the parties since
last more than 20 years so the suit of the plaintiffs is barred by
limitation. He, therefore, submits that the suit has been
dismissed under Order-7 Rule-11(d) of CPC as barred by
limitation.
4. The learned trial Court in para-8 of the impugned order
has given following reasons:-
"(8) Considering all the facts of the defendants application and the
objections raised by the plaintiff, I am of the view that the dispute
raised by the defendants regarding bar of limitation and bar of
jurisdiction to entertain this suit cannot be decided by mere reading of
the plaint and written statement and application for rejecting plaint as
per provisions of Order-7, Rule-11 of CPC and the objections filed by
the plaintiff. To decide the dispute between the parties, it is necessary
to record evidence of the parties and after recording evidence and
hearing the parties regarding disputes between them, this Court can
come to the conclusion that whether the suit of the plaintiff is
maintainable or not or is barred by any law. . . ."
5. In the present case, the earlier proceedings before the
Mamlatdar and the Dy. Collector are not placed on record. The
said contentions are by way of defence of the defendants herein.
Even otherwise, whether the use of the well by the parties is
there or not since last 20 years is a question of fact which will be
gone into by leading of evidence by the parties.
6. This Court is, therefore, of the opinion that no interference
is called for in the present impugned judgment and order as the
contentions raised by the learned counsel before the learned trial
Court as well as this Court involves questions of fact which will
C/CRA/449/2022 ORDER DATED: 05/08/2022
have to be decided only after leading of evidence. In the premise,
the impugned judgment and order is upheld. No interference is
called for. The present Civil Revision Application is dismissed
accordingly. No order as to costs.
(ANIRUDDHA P. MAYEE, J.)
KAUSHIK D. CHAUHAN
