Promoters Of Shri Arihant Co. Op. ... vs Legal Heirs Of Decd. Amadbhai ...
2023 Latest Caselaw 3522 Guj

     C/SCA/4956/2020                                  ORDER DATED: 28/04/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 4956 of 2020

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PROMOTERS OF SHRI ARIHANT CO. OP. HOUSING SOCIETY (SUCHIT)
              ARVINDBHAI SHANTILAL MEHTA
                         Versus
       LEGAL HEIRS OF DECD. AMADBHAI BHURABHAI
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Appearance:
MR TEJAS P SATTA(3149) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
SERVED BY AFFIX(N) for the Respondent(s) No. 4
UNSERVED EXPIRED (N) for the Respondent(s) No. 1.1,1.2,1.3,1.4,3
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                               Date : 28/04/2023

                                ORAL ORDER

1. This petition is filed for the following reliefs:

"11(A) That the Ld. Court be pleased to issue Writ of Mandamus or any other appropriate Writ, Direction or Order in the nature of Mandamus for quashing and setting aside the impugned Order dated 20.01.2020 passed below Exh.1 in the Special Civil Suit No.108/2007 by the Ld. 11th Additional Sr.Civil Judge, Rajkot, in the interest of justice. (B) Pending final hearing and disposal of this present petition, this Hon'ble Court be pleased to stay the impugned Order dated 20.01.2020 passed below Exh.1 in the Special Civil Suit No.108/2007 by the Ld. 11th Additional Sr.Civil

C/SCA/4956/2020 ORDER DATED: 28/04/2023

Judge, Rajkot, in the interest of justice. (C) xxxx"

2. Heard learned advocate Mr.Satta for the

petitioner. He submitted that the petitioner filed

application Exh.74 under Order 6 Rule 17 of Code of

Civil Procedure, 1908 (`CPC' for short) and prayed to

decide it first and then the application which is filed at

Exh.62 under the provisions of Order 7 Rule 11 of CPC

by the defendant in the suit, which came to be rejected

by the trial Court by impugned order dated 20.1.2020.

He has submitted that the Court has dismissed such

application only on the ground that the Order 6 Rule 17

of CPC cannot be considered after the commencement of

trial. He relied on the judgment of Apex Court in the case of Sajjan Kumar V/s Ram Kishan reported in

2005(13) SCC 89 and on the judgment of Punjab and

Haryana High Court in the case of Dera Baba Bhumman Shah Sangar Sarista V/s Dr.Subhash Narula in C.R.No.1973 of 2020 (O & M) and in the case of Bimal Mishra V/s Heetinder Salotra and another in C.R.No.7356 of 2018 (O & M) and submitted that the

application under Order 6 Rule 17 of CPC is required to

C/SCA/4956/2020 ORDER DATED: 28/04/2023

be decided prior to the application under Order 7 Rule

11 of CPC.

3. This petition came to be filed on 17.2.2020 and

thereafter the matter is adjourned on 19.3.2020, 4.1.2021,

22.2.2021.

4. Considering the fact that the impugned order

was passed by the learned trial Court dated 20.1.2020,

this Court inquired from learned advocate Mr.Satta about

the stage of trial, to which, he replied that the matter

is ripe for hearing and at the stage of recording evidence

of the plaintiff. At the time of issuance of notice in this

matter on 22.2.2021, liberty was granted to seek adjournment before the learned trial Court and therefore

it seems that the matter is not proceeded further.

5. Considering the totality of the facts and

circumstances and considering the limited jurisdiction

under Article 227 of the Constitution of India, this Court

does not warrant any interference under Article 227 of

the Constitution of India as per the decision of the

Hon'ble Apex Court in the case of M/s. Garment Craft

C/SCA/4956/2020 ORDER DATED: 28/04/2023

versus Prakash Chand Goel reported in (2022) 4 SCC

181, more particularly, paragraph nos.15 to 17 therein,

where it was held that High Courts while exercising

powers under Article 227 does not act as appellate

authority and cannot reappreciate evidence and the

jurisdiction exercised under Article 227 is in nature of

correctional jurisdiction to set aside grave dereliction of

duty or flagrant abuse of process of law and High Court

cannot substitute its own view on merits.

6. However, since the applications at Exh.62 and

74 are pending for adjudication before the learned trial

Court, as per the submission of learned advocate for the

petitioner, the learned trial Court is directed to decide the same as expeditiously as possible. It is further

directed that as the suit proceeding is pending since

2007 and not proceeded further since last three years

though it is ripe for hearing, the learned trial Court

shall proceed with the suit proceedings also without

granting unnecessary adjournment to the parties and

after giving proper opportunity to the parties and shall

decide the same on or before 31.12.2023, in accordance

with law

C/SCA/4956/2020 ORDER DATED: 28/04/2023

7. With the above observation and direction, this

petition is disposed of. Notice is discharged. Interim

relief granted earlier stands vacated. No order as to

costs.

(SANDEEP N. BHATT,J) SRILATHA