Rajkot Municipal Corporation vs Hirabhai Kalabhai Koli
2022 Latest Caselaw 5512 Guj

        C/AO/92/2013                                 ORDER DATED: 27/06/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/APPEAL FROM ORDER NO. 92 of 2013

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                        RAJKOT MUNICIPAL CORPORATION
                                    Versus
                            HIRABHAI KALABHAI KOLI
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Appearance:
MR NISHANT LALAKIYA(5511) for the Appellant(s) No. 1
MR HARSHIT S TOLIA(2708) for the Respondent(s) No. 1
MR PARTH S TOLIA(5617) for the Respondent(s) No. 1
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 CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
       ARAVIND KUMAR

                                 Date : 27/06/2022

                                  ORAL ORDER

1. This Appeal is directed against the order dated

25.11.2011 passed in Regular Civil Appeal No. 81 of 2011,

whereunder the Appellate Court had remanded the matter

back to the trial court.

2. As could be seen from records, the respondent

herein filed a Regular Civil Suit No. 1293 of 1993 for

permanent injunction and declaration in respect of the suit

scheduled property which came to be dismissed by judgment

and decree dated 02.09.2011. Being aggrieved by the same,

Regular Civil Appeal No. 81 of 2011 was filed and lower

Appellate Court remanded the matter back to the trial court

C/AO/92/2013 ORDER DATED: 27/06/2022

to decide question of adverse possession based on the

Commissioner's report. The appellant herein has preferred a

Second Appeal in Special Civil Application No. 297 of 2012

and this Court after noticing that against the order of

remand, an appeal from order as provided under Order 43

Rule 1(u) CPC is maintainable, Second Appeal was withdrawn

and the present appeal has been filed.

3. Undisputedly against the order of remand passed by

the lower Appellate Court, the matter has been taken up by

the trial court and thereafter by order dated 20.01.2018

appeal has been dismissed for default under Order 17 Rule 1

CPC. There is no material available on record to indicate that

suit having been restored. Infact the beneficiary of the said

order is the appellant herein namely who was the defendant

before the trial court. As such appellant cannot have any

grievance even otherwise the suit itself having been

dismissed for default, the prayer sought for in the present

Appeal would not survive for consideration.

4. Reserving liberty to the appellant to urge all grounds

C/AO/92/2013 ORDER DATED: 27/06/2022

which has been urged in the present Appeal in the event of

suit being restored, this Appeal stands disposed of as having

become infructuous and not surviving for consideration.

5. Pending applications, if any, stands consigned to

records.

(ARAVIND KUMAR,CJ) AMAR SINGH