Gujarat High Court
Party Not Given vs Azammiya Mahamadmiya on 6 December, 2022
Bench: Niral R. Mehta
C/SA/184/2005 ORDER DATED: 06/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 184 of 2005
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PARTY NOT GIVEN & 1 other(s)
Versus
AZAMMIYA MAHAMADMIYA & 7 other(s)
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Appearance:
NOTICE SERVED for the Appellant(s) No.
1.1.1,1.1.2,1.1.3,1.1.4,1.1.5,1.1.6,1.1.7,1.3,1.4,1.5,2.1.3,2.1.4,2.1.5,2.2,2.3,2.
4
NOTICE UNSERVED for the Appellant(s) No. 1.2,2.5,2.6
UNSERVED EXPIRED (N) for the Appellant(s) No. 2.1.1,2.1.2,2.7
MR ZUBIN F BHARDA(159) for the Respondent(s) No. 1,2,3,4,5,6,7
UNSERVED EXPIRED (R) for the Respondent(s) No. 8
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CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 06/12/2022
ORAL ORDER
1. The present Second Appeal, at the instance of the
appellants-original plaintiffs, is directed against judgment and
decree dated 05th February, 2005 in Regular Civil Appeal
No.108 of 1995 passed by learned District Judge, Navsari,
whereby the judgment and decree passed by the learned trial
court in Regular Civil Suit No.194 of 1986 came to be set
aside and the suit was ordered to be dismissed.
2. The coordinate Bench of this Court vide order
dated 23rd September, 2005 admitted the Second Appeal by
formulating following substantial questions of law.
(i) Whether the appellate Court could have
relied on documents at Mark 25/4 which were true
copies of certified copies of mutation entry of
C/SA/184/2005 ORDER DATED: 06/12/2022
Village Form No.6 without the proof of the entry
before the Trial Court?
(ii) Whether the first appellate Court could
have drawn an inference against the appellants
under Article 189 of the Mohmedan Law on basis
of the above documents and in absence of specific
admission or denial by the appellants?
3. The coordinate Bench of this Court vide order
dated 13th April, 2005 passed following order.
"As learned advocate for the appellants is elevated
to the Bench of this Court, Registry is directed to
issue notice upon appellants informing them that
as their advocate is elevated to the Bench of this
Court they are required to make alternative
arrangement, notice made returnable on
14.6.2012."
4. The coordinate Bench of this Court vide order
dated 13th August, 2012 passed following order.
"1.00. Present Second Appeal under section 100
of the Code of Civil Procedure has been preferred
by the appellants herein - original plaintiffs to
quash and set aside the impugned Judgement and
Order / decree passed by the learned appellate
court - learned District Judge, Navsari in Regular
Civil Appeal No. 108 of 1995 dtd.5/2/2005, by
which the learned appellate court has allowed the
C/SA/184/2005 ORDER DATED: 06/12/2022
said appeal preferred by the respondents herein,
by quashing and setting aside the judgement and
decree passed by the learned Civil Judge (S.D.),
Navsari in Regular Civil Suit No.194 of 1986 dtd.
18/7/1995 and consequently dismissing the suit.
2.00. As the learned advocate appearing on
behalf of the appellants is elevated to the Bench of
this Court, Registry was directed to issue notice
upon the appellants informing them that as their
advocate is elevated to the Bench of this Court,
they are required to make alternative arrangement
and the notice was made returnable on 14/6/2012
and consequently the Registry has issued notices
upon the respective respondents.
3.00. It is reported that the respondent Nos.1/1A
to 1/1G, 1/3 to 1/5 and 2/1 have been served and
notices upon the respondent Nos.1/2, 2/5 and 2/6
are unserved as they are not residing at the given
address as per the Bailiff Report and that
respondent Nos.2/1A, 2/1B and 2/7 are unserved
as expired.
4.00. Under the circumstances, it is no possible
for the Registry to serve the appellants. Hence,
present Second Appeal is dismissed for non-
prosecution. No costs."
4.1 By virtue of the aforesaid order dated 13 th August,
C/SA/184/2005 ORDER DATED: 06/12/2022
2012 the Second Appeal was dismissed for non-prosecution.
5. It appears that thereafter by way of an order dated
05th September, 2022 the coordinate Bench of this Court
condoned delay of 1331 days caused in filing restoration
application and on the very same day, the application for
restoration was also allowed by restoring the matter to its
original file and status.
6. Today, when the matter was called out, no one
entered appearance on behalf of the appellants nor any
request was made in that regard.
7. Therefore, the present Second Appeal is dismissed
for want of prosecution. Civil Application, if any, also stands
disposed of in view of dismissal of main Second Appeal.
(NIRAL R. MEHTA,J)
ANUP
