Rajubhai Somabhai Bharwad vs Magiben @ Madhuben D/O Chehraji ...
2023 Latest Caselaw 2849 Guj

     C/SCA/3075/2022                             ORDER DATED: 11/04/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 3075 of 2022

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              RAJUBHAI SOMABHAI BHARWAD
                         Versus
 MAGIBEN @ MADHUBEN D/O CHEHRAJI W/O MAHIBHAI RATHOD & 2
                         other(s)
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Appearance:
ABHISST K THAKER(7010) for the Petitioner(s) No. 1
NOTICE SERVED for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                         Date : 11/04/2023

                            ORAL ORDER

1. Heard Mr. Abhisst Thaker, learned advocate appearing

for the petitioner.

2. This Court on 11.02.2022 has passed the following

order.

"1. Heard learned Advocate for the Petitioner through video conference. Learned Advocate has drawn the attention of this Court that the order passed by the learned Principal District Judge, Gandhinagar dated 30.12.2021 in Misc. Civil Appeal No. 9 of 2021, wherein it is stated that there are some ambiguity in paragraph 13 of the order passed by the Trial Court. Further, it is also stated that the learned Trial Court to make necessary amendment in accordance with law on the application of any of the parties. It is also observed that necessary corrections may be made and therefore learned Advocate for the Petitioner

C/SCA/3075/2022 ORDER DATED: 11/04/2023

has urged that the Appellate Court could not pass such order. Further, he has requested this Court to interfere under Article 227 of the Constitution of India and has also requested this Court to remand the matter back to the Trial Court.

2. Considering the averments made in the Petition and also considering the contention raised by the learned Advocate for the Petitioner, the matter requires consideration.

3. Hence, Notice for final disposal, returnable on 21.3.2022.

3. The matter is kept today for final hearing. Pursuant to

the order, a notice issued for final disposal, whereby, notice

issued by this Court served to one Shri Harshad Ravjibhai,

who is the member of the family respondent nos.2 and 3 and

son of respondent nos.2 and 3, has accepted the notice. As the

notices have been served and the period of more than one

month has passed, none has filed appearance on behalf of the

respondent and therefore, the matter is heard on merit, more

particularly, considering the impugned order passed by the

learned appellate Court.

4. Mr. Abhisst Thaker, learned advocate appearing for the

petitioner has drawn my attention towards paragraph-2 and 3

of the impugned order and operative portion of order dated

C/SCA/3075/2022 ORDER DATED: 11/04/2023

30.12.2021, whereby, learned Principal District Judge,

Gandhinagar had decided the appeal, which is filed under

Order 43 Rule 1(r) of the Code in very unusual manner,

neither quashing and setting aside the order, which is

challenging in the appeal nor by confirming the said order,

but has disposed of the appeal by giving some directions,

which is not found in accordance with law. He has further

submitted that the Court either has to decide the matter that

mean an appeal on its own merits and by giving specific

findings in the operative portion, whether the appeal is

allowed or judgment is sustained of the trial Court or

judgment is reversed of the trial Court or appeal is dismissed

and impugned judgment is confirmed by the appellate Court

of the trial Court, none of the appears to be done by the

learned appellate court. He has submitted that even otherwise

also if the Court is of the opinion to remand the matter on

certain aspects before the trial Court then the Court has to set

aside the impugned order and thereafter, the matter is

remanded which was not done by the learned appellate Court

and therefore, serious error committed by the learned

appellate Court while deciding the appeal under the

C/SCA/3075/2022 ORDER DATED: 11/04/2023

provisions of Order 43 Rule 1(r) of the Code. Therefore, he

has prayed to allow this petition and in the alternate quash

and set aside the impugned order by directing the learned

appellate Court to decide the appeal filed by the present

petitioner afresh after giving proper opportunity of hearing to

the concerned parties.

5. Considering the submissions made at the bard and

considering the provisions of Order 43 Rule 1(r) of the code

and also, considering the Sections-96 and 104 of the C.P.C., it

is appropriate to observe that the impugned order passed by

the learned appellate Court is not absolutely in consonance

with the practice and also not in consonance with the

provisions of law. It is expected that the being an appellate

judge, the matter is decided, even while remanding the matter

back to the concerned judge, the Court has to pass specific

order in the operative portion of the judgment, which was not

done in the present case. Therefore, it is appropriate to set

aside the impugned judgment and order dated 30.12.2021

passed in Misc. Civil Appeal No.09 of 2021 by the learned

Principal District Judge, Gandhinagar by directing the learned

C/SCA/3075/2022 ORDER DATED: 11/04/2023

appellate Court to decide the Misc. Civil Appeal No.09 of 2021

afresh after giving opportunity to all the concerned parties.

6. Considering the facts and circumstances of the case,

present petition is allowed. The judgment and order dated

30.12.2021 passed in Misc. Civil Appeal No.09 of 2021 by the

learned Principal District Judge, Gandhinagar is hereby

quashed and set aside. learned Principal District Judge,

Gandhinagar is hereby directed to decide the appeal afresh

after giving opportunity to all the concerned parties in

accordance with law, as expeditiously as possible, preferably

within a period of three months from the date of receipt of

this order. The parties shall co-operate in the appeal, which is

pending before the learned Principal Judge at Gandhinagar.

This Court has not expressed any opinion on the merits of the

case.

Direct service is permitted.

(SANDEEP N. BHATT,J) A. B. VAGHELA