Gujarat High Court
Rabari Harjibhai Mahadevbhai vs Samoda Gram Panchayat on 26 April, 2023
Bench: Sandeep N. Bhatt
C/SCA/14498/2021 ORDER DATED: 26/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14498 of 2021
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RABARI HARJIBHAI MAHADEVBHAI
Versus
SAMODA GRAM PANCHAYAT
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Appearance:
MR HIMANSU M PADHYA(1611) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 26/04/2023
ORAL ORDER
1. The present petition is filed with the following
prayers:
"10(A) This Hon'ble Court may kindly be pleased to issue a
writ of mandamus, a writ in the nature of mandamus or
any other appropriate writ, order or direction, quashing and
setting aside the order dated 17 th March, 2021 at Annexure-
A to this petition, passed by the learned 2 nd Additional
Senior Civil Judge, Siddhpur, District Patan, below Exh.1 in
Regular Civil Suit No.14 of 2021 and further be pleased to
restore the said suit on file and suitable directions may be
given to the learned Judge to proceed with the same on
merits and in accordance with law, in the interest of justice.
(B) Pending admission, hearing and final disposal of this
petition, this Hon'ble Court may kindly be pleased to quash
and set aside the order dated 17th March 2021 at Annexure-
C/SCA/14498/2021 ORDER DATED: 26/04/2023
A to this petition, passed by the learned 2nd Additional
Senior Civil Judge, Siddhpur, District Patan, below Exh.1 in
Regular Civil Suit No.14 of 2021 and further be pleased to
restore the said suit on file and suitable directions may be
given to the learned Judge to proceed with the same on
merits and in accordance with law, in the interest of justice.
(C) Ex-parte Ad-interim Relief in terms of Para (B) may
kindly be granted.
(D) xxxx"
2. At the outset, it is pertinent to note that this
matter is filed in the month of August, 2021 and
thereafter the same is adjourned for about ten times
without issuance of any notice.
3. On perusing the prayer which is made in the
present petition, it is pertaining to the order passed
under Order 7 Rule 11 of the Code of Civil Procedure,
1908 (`CPC' for short), whereby the plaint is dismissed
on the ground that no notice is issued prior to
institution of the suit as required under Section 270 of
the Gujarat Panchayats Act.
4. Section 2(2) of CPC reads as under:
"(2) "decree" means the formal expression of an adjudication
C/SCA/14498/2021 ORDER DATED: 26/04/2023
which, so far as regards the Court expressing it, conclusively
determines the rights of the parties which regard to all or any
of the matters in controversy in the suit and may be either
preliminary or final. It shall be deemed to include the rejection
of a plaint 2 [,the determination of any question within section
144 and an order under rule 60, 98, 99, 101, or 103 of Order
XXI], but shall not include __
(a) any adjudication from which an appeal lies as an appeal
from an order, or
(b) any order of dismissal for default.
Explanation.__ A decree is preliminary when further proceedings
have to be taken before the suit can be completely disposed of.
It is final when such adjudication completely disposes of the
suit. It may be partly preliminary and partly final:"
5. In view of the above, the dismissal of the suit
under Order 7 Rule 11 of CPC will be construed as
decree and therefore, in view of the catena of judgments
of the Hon'ble Apex Court as well as this Court, the
petitioner is having alternative remedy available under
the law in the form of First Appeal and therefore, this
petition filed under Article 227 of the Constitution of
India is not required to be entertained. Accordingly, the
same is disposed of.
(SANDEEP N. BHATT,J)
SRILATHA
