Sihor Nagar Palika Bureau vs Bhabhlubhai Virabhai & Co
2023 Latest Caselaw 90 Guj

    C/FA/1751/2003                                      JUDGMENT DATED: 04/01/2023




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/FIRST APPEAL NO.1751 of 2003


FOR APPROVAL AND SIGNATURE :


HONOURABLE MR. JUSTICE A. J. DESAI                                          Sd/-

and

HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN                                          Sd/-

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

  2. To be referred to the Reporter or not ?                             NO

  3. Whether their Lordships wish to see the fair                        NO
      copy of the judgment ?

  4. Whether         this   case   involves       a   substantial        NO
      question of law as to the interpretation of the
      constitution of India, 1950 or any order made
      thereunder ?

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                        SIHOR NAGAR PALIKA BUREAU
                                  Versus
                        BHABHLUBHAI VIRABHAI & CO.,
=========================================
Appearance :
MR YASH N NANAVATY for the Appellant.
MR. ZALAK B PIPALIA for the Defendant.
=========================================

 CORAM:HONOURABLE MR. JUSTICE A. J. DESAI
       and
       HONOURABLE MR. JUSTICE RAJENDRA M.
       SAREEN



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      C/FA/1751/2003                               JUDGMENT DATED: 04/01/2023




                       Date : 04/01/2023
                       ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE A. J. DESAI)

1. By way of the present appeal under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC'), the appellant - original defendant - Sihor Nagarpalika Bureau has challenged the judgment and order dated 3.5.2003 passed by learned 4th Joint Civil Judge (S.D.), Bhavnagar in Special Civil Suit No.308 of 1993 by which decree has been passed in favour of the respondent herein to the tune of Rs.11,78,825/- with running interest @ 8% from the date of filing of the suit till decree is executed towards damages for the alleged breach of agreement dated 29.3.1993 entered into between the parties to the proceedings.

2. The appeal came to be admitted by an order dated 19.9.2003. The appellant has also filed civil application for stay of the implementation and execution of the aforesaid judgment and decree. The coordinate Bench of this Court stayed implementation and execution of the impugned judgment on condition of depositing the aforesaid decreetal amount. The said decision was challenged by the present appellant before the Hon'ble Apex Court by way of filing Civil Appeal No.2799 - 2800 of 2005. The Hon'ble Apex Court vide order dated 21.4.2005 allowed the appeal in favour of the present appellant and directed the appellant to furnish security of the decreetal amount instead of depositing the same.

3. The matter is taken up for final hearing. Registry has received the Records and Proceedings which we have perused.

C/FA/1751/2003 JUDGMENT DATED: 04/01/2023

4. The short facts arise from the record are as under :-

4.1 That pursuant to an advertisement issued by the present appellant Exh.47 for contract of collection of octroi from 1.4.1993 to 31.3.1994, the bid of the respondent was accepted and accordingly, the agreement dated 29.3.1993 (Exh.50) was entered into between the parties with certain terms and conditions. Certain proceedings in the nature of writ petitions against the alleged intended action on the part of the appellant was challenged by the respondent which were disposed of with certain observations which orders are part of the record (however not exhibited before the learned Trial Court).

4.2 The learned Trial Court framed issues at Exh.26. The respondent - original plaintiff produced certain documents and has also examined one witness i.e. Partner of the plaintiff - Partnership Firm at Exh.45, whereas the appellant - original defendant did not produce any documentary evidence, however examined one Dipakbhai Govindbhai Nakum at Exh.58. Thereafter, closing purshish of evidence were filed by the parties. The learned Trial Court relying upon the deposition of said Dipak Govindbhai Nakum (Exh.58) allowed the suit for the so-called admitted amount which is required to be paid by the appellant herein to the respondent herein.

4.3 Hence this appeal.

5. Mr. Kartik S. Bhatt, learned advocate appearing for Mr. Yash Nanavaty for the appellant Municipality has vehemently submitted that the learned Trial Court has committed a grave error

C/FA/1751/2003 JUDGMENT DATED: 04/01/2023

in allowing the appeal solely relying upon the deposition of one Dipak Govindbhai Nakum (Exh.58) who was examined by the appellant. By taking us through his deposition, he would submit that he is not the person who is aware about the terms and conditions of the agreement entered into between the parties. He would further submit that he has only heard the discussion about the same between the Chief Officer of the Municipality with the advocate of the Municipality. He, therefore, would submit that the learned Trial Court ought to have decided the suit in its entirety and not relying upon the hearsay evidence of one of the witness, who in fact, was not working with the appellant - Municipality. He, therefore, would submit that the impugned judgment may be quashed and set aside.

6. On the other hand, Mr. Zalak Pipaliya, learned advocate appearing for the respondent - original plaintiff has supported the judgment of the learned Trial Court. He would submit that the appellant Municipality has neither produced any documents nor examined any other witness except Dipak Govindbhai Nakum (Exh.58). He, therefore, would submit that relying upon the deposition of the said witness of the appellant, the learned Trial Court has allowed the suit in part. In support of his submissions, he has relied upon the provisions of Order 12, Rule 6 of CPC and would submit that the Court is empowered to deliver a judgment on admission made by the parties either in writing or orally. He has also relied upon Section 58 of the Indian Evidence Act, 1872 and would submit that those facts are not required to be proved if they are admitted. He, therefore, would submit that the appeal may be dismissed.

C/FA/1751/2003 JUDGMENT DATED: 04/01/2023

7. We have heard learned advocates appearing for the respective parties. We have perused the Records and Proceedings received from the learned Trial Court, more particularly, judgment and deposition of witness of the appellant, namely, Dipak Govindbhai Nakum - Exh.58. He has categorically stated that he was not working with the appellant in the year 1993 and had no personal knowledge or information about the so-called agreement entered into between the parties. If we closely peruse this evidence, the same is very vague and does not establish that it was the appellant Municipality who was ready to pay the undisputed amount of Rs.11,78,825/-. We accept the submission made on behalf of the appellant that the said witness Dipak Govindbhai Nakum had no authority to depose before the learned Trial Court and had no knowledge about the transaction or admission with regard to talk between the Chief Officer and Advocate of the Municipality.

8. In view of the above facts, the provisions which have been relied upon by learned advocate Mr. Pipaliya for the respondent would not be applicable. It is unfortunate that the appellant Municipality at the relevant time had not agreed to defend the case in its right spirit. In such circumstances, we are of the opinion that the impugned judgment of the learned Trial Court is required to be quashed and set aside and the suit is required to be remanded to the learned Trial Court for fresh consideration.

9. Hence the present appeal stands allowed. The judgment and order dated 3.5.2003 passed by learned 4th Joint Civil Judge (S.D.), Bhavnagar in Special Civil Suit No.308 of 1993 is hereby quashed and set aside. Special Civil Suit No.308 of 1993 is

C/FA/1751/2003 JUDGMENT DATED: 04/01/2023

hereby revived. The parties to the suit may file additional documents, if any within a period of one month from today. Thereafter, it would be open for the parties to examine the witnesses on their behalf. The learned Trial Court shall decide the suit as early as possible, preferably within a period of 8 months from today, without being influenced by any observations made in this judgment or the judgment of the learned Trial Court which we have quashed and set aside. The learned Trial Court shall also discard the oral evidence led earlier in the suit and after considering the documents that may be produced by the parties as well as produced and proved by the parties earlier, shall decide the suit afresh.

As the suit remanded for afresh trial is of 1993, no unnecessary adjournments be sought by the learned advocates for the parties and shall give utmost cooperation to the Court in deciding the suit within time.

Registry is directed to send back the Records and Proceedings to the learned Trial Court forthwith.

Sd/-

(A. J. DESAI, J)

Sd/-

(RAJENDRA M. SAREEN,J)

SAVARIYA