Jayvantsinh Urfe Jasvantsinh ... vs Rayubha Urfe Ramdevsinh Dilubha ...
2022 Latest Caselaw 2705 Guj

     C/SCA/4431/2018                            JUDGMENT DATED: 09/03/2022




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/SPECIAL CIVIL APPLICATION NO. 4431 of 2018

FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
=======================================

      Whether Reporters of Local           Papers   may be
 1                                                                     NO
      allowed to see the judgment ?

 2 To be referred to the Reporter or not ?                             NO

      Whether their Lordships wish to see the fair copy
 3                                                                     NO
      of the judgment ?
   Whether this case involves a substantial question
 4 of law as to the interpretation of the Constitution                 NO
   of India or any order made thereunder ?

=======================================
     JAYVANTSINH URFE JASVANTSINH GUMANSINH JADEJA
                           Versus
        RAYUBHA URFE RAMDEVSINH DILUBHA JADEJA
=======================================
Appearance:
MR BHAVIN H ANADKAT(6009) for the Petitioner(s) No. 1,2,3
MR. BHAUMIK DHOLARIYA(7009) for the Petitioner(s) No. 1,2,3
NOTICE SERVED BY DS for the Respondent(s) No. 1
=======================================

 CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                       Date : 09/03/2022

                        ORAL JUDGMENT

1. Rule.

2. Despite service, no one has put in appearance for the

respondents leaving no option but to proceed with the matter.

C/SCA/4431/2018 JUDGMENT DATED: 09/03/2022

3. Brief facts of the case on hand are that the petitioners are

the original defendants in the suit being Regular Civil Suit No. 5

of 2018 filed by the respondent - plaintiff in which, an application

Exh. 6 for drawing the panchnama of the disputed property by

appointing the Court Commissioner was preferred, which came to

be allowed by an order dated 06.02.2018 by the learned Principal

Civil Judge, Dhrol and hence, the grieved petitioners are before

this Court.

4. Heard, learned advocate Mr. Bhaumik Dholariya for the

petitioners. He submitted that without giving an opportunity of

hearing to the petitioners, the learned trial Court has granted the

aforesaid application Exh. 6, which is against the principles of

natural justice. He submitted that the learned trial Judge ought

to have issued notice and heard the petitioners, which is not the

case, which is in clear breach of the principles of natural justice.

He submitted that the respondent - plaintiff cannot be allowed to

create evidence that too by way of such an ex parte order.

Accordingly, he requested that this petition may be allowed and

the impugned order may be set aside.

4.1 In support of his case, the learned advocate for the

petitioners has relied upon a decision of this Court in Deny @

Dineshbhai Amarshi Ajmera Thro PoA Ketan Chhabildas v.

C/SCA/4431/2018 JUDGMENT DATED: 09/03/2022

Khutejabibi D/o. Ahmad Mohammad Fajal W/o. Imamkhan

Husainkhan, 2013 (0) GLHEL-HC 230413.

5. The Court has considered the submissions advanced by the

learned advocate for the petitioners and perused the impugned

order as well as the material placed on record so also the

decision relied upon by the learned advocate for the petitioners.

Ex facie, it appears that while passing the impugned order below

application Exh. 6 for drawing of panchnama of the disputed

property through appointment of the Court Commissioner, the

petitioners were not heard and the application was granted and

thus, the same can be said to be an ex parte order. In the

decision relied upon by the learned advocate for the petitioner, it

is observed that, the petitioners were deprived of the opportunity

to raise objections and get an opportunity of hearing. The order

has been passed without issuing notice to the petitioners or

affording them an opportunity of hearing. As such, it can be said

to be an ex parte order as far as the petitioners are concerned,

though for no default in appearance on their side, which is in

violation of the principles of natural justice. In the said case, the

Court eventually remanded back the matter for fresh decision.

5.1 Thus, in view of the aforesaid facts and circumstances of

the case and the fact that the respondent herein has put in no

C/SCA/4431/2018 JUDGMENT DATED: 09/03/2022

appearance to resist this petition, the Court deems it proper to

remand back the matter to the concerned trial Court to decide

the application Exh. 6 afresh, giving an opportunity of hearing to

both the sides.

6. In view of above, this petition succeeds and is allowed

accordingly. The impugned order dated 06.02.2018 passed

below Exh. 6 in Regular Civil Suit No. 5 of 2018 by the learned

Principal Civil Judge, Dhrol, is set aside. The learned trial Court is

directed to decide the application Exh. 6 afresh, after giving

opportunity of hearing to both the sides, in accordance with law,

without being influenced by this order. Rule is made absolute

accordingly. No order as to costs.

[ A. C. Joshi, J. ] hiren /39