Manishbhai Mohanbhai Patel vs Mohanbhai Chimanbhai Patel- ...
2022 Latest Caselaw 8343 Guj

    C/SCA/8313/2016                            ORDER DATED: 22/09/2022




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 8313 of 2016

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              MANISHBHAI MOHANBHAI PATEL
                         Versus
MOHANBHAI CHIMANBHAI PATEL- SINCE DECEASED THROUGH HEIRS
                       & 3 other(s)
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Appearance:
MR MANAN A SHAH(5412) for the Petitioner(s) No. 1
DECEASED LITIGANT for the Respondent(s) No. 1
MR SHITAL R PATEL(2166) for the Respondent(s) No. 4
NOTICE SERVED BY DS for the Respondent(s) No. 2,3
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 CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

                          Date : 22/09/2022

                            ORAL ORDER

Heard Mr.Manan A. Shah, learned advocate for the petitioner. Apart from the merit of the case, Mr.Shah, learned advocate for the petitioner submitted that Rule 2 of Order XLIII of the Code of Civil Procedure, 1908 (for short, 'the Code') prescribes procedure for hearing of an appeal as provided under Order XLI of 'the Code' which shall apply to the appeals preferred under Order XLIII of 'the Code'. Drawing attention of the Court to the appellate Court's judgment, it is submitted that as required under Rule 31 of Order XLI of 'the Code',

(i) points for determination, (ii) the decision thereon,

(iii)the reasons for the decision and (iv) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, should be reflected from the

C/SCA/8313/2016 ORDER DATED: 22/09/2022

decision of the appellate Court itself, which is missing in this case. He has, therefore, submitted that this petition be entertained and allowed.

Having heard learned advocate for the petitioner and going through the impugned order as also documents annexed with the petition, it is clear that petitioner- plaintiff on presentation of a suit was never granted any ex-parte injunction and his application Exh.5 praying for injunction against the defendant came to be rejected vide an order dated 8.5.2012. The said suit came to be filed in the year 2007. Petitioner-plaintiff preferred Misc. Civil Appeal challenging the order passed below Exh.5 refusing injunction to the petitioner-plaintiff which also came to be dismissed by judgment and order dated 17.10.2015. As on date, nearly 15 years have passed by and petitioner - plaintiff is not granted any injunction and therefore, it would not be in the fitness of things, while exercising a jurisdiction under Article 227 of the Constitution of India, interfering with concurrent finding of facts as also the discretionary orders passed by the Court below and therefore, this petition is not required to be entertained and therefore, it is hereby rejected. Notice discharged.

It is made clear that this Court has not examined the merit of the case in respect of rights of the parties.

(UMESH A. TRIVEDI, J) ASHISH M. GADHIYA