Ratanben Wd/O Ravjibhai Motibhai ... vs Hemalbhai Manubhai Patel
2023 Latest Caselaw 2265 Guj

     C/FA/1572/2022                         ORDER DATED: 15/03/2023




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/FIRST APPEAL NO. 1572 of 2022
                               With
           CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
                                 In
                 R/FIRST APPEAL NO. 1572 of 2022
=============================================
 RATANBEN WD/O RAVJIBHAI MOTIBHAI PATEL DIED THROUGH LHR
                              Versus
                    HEMALBHAI MANUBHAI PATEL
=============================================
Appearance:
DECEASED LITIGANT for the Appellant(s) No. 1,1.1
MR KV SHELAT(834) for the Appellant(s) No. 1.1.1,1.1.2,1.1.3,1.2
for the Defendant(s) No. 5
MR GAURANG K PATEL(2613) for the Defendant(s) No. 3,4
MR VIMAL A PUROHIT(5049) for the Defendant(s) No. 1
MR VINOD M GAMARA(5910) for the Defendant(s) No. 2
=============================================

 CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
                      and
       HONOURABLE MS. JUSTICE NISHA M. THAKORE

Date : 15/03/2023

ORAL ORDER

(PER : HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI)

1. By way of this First Appeal, the appellants - original

plaintiffs have challenged the legality and validity of the

judgment and order dated 04.01.2019 passed by the learned 3 rd

Additional Senior Civil Judge, at Gandhinagar in Special Civil

Suit No. 122 of 2010.

2. It is the case of the appellants that though sale

C/FA/1572/2022 ORDER DATED: 15/03/2023

consideration was fixed at Rs.1,55,60,000/- in view of the

representation made by the intending purchaser Hemalbhai

Manubhai Patel, six owners agreed to execute the registered

sale deed as per Jantri value of Rs.28,38,000/- and there was a

reference in MOU to that effect. The MOU is said to have been

executed between Sureshbhai Ravjibhai Patel for himself and as

Karta of HUF, Pankajkumar Ravjibhai Patel, Ratnaben Wd/o

Ravjibhai Patel, Devilaben Ravjibhai Patel, Urmilaben Ravjibhai

Patel and Ranjanben Ravjibhai Patel on one side and Hemalbhai

Manubhai Patel being defendant no. 1 - respondent no. 1 on the

other side. The said MOU was executed on 28.12.2006. The

controversy which has erupted, resulted in filing of the suit in

which defendant no. 2 as a third party gave an application for

being joined on 18.02.2011 inter alia contending that by

registered sale deed dated 18.02.2011, he purchased the

property during the pendency of the suit and as such, he was

joined as party defendant no. 2. On 07.10.2016, the mother of

the appellants Ratnaben wd/o of Ravjibhai died and it is the

allegation that on or around that time, plaintiff nos. 1 and 2

being Ranjanben and Urmilaben daughter of Ravjibhai joined

C/FA/1572/2022 ORDER DATED: 15/03/2023

hands and colluded with the defendants and made some

secretive transaction to deprive the true information with

regard to the death of Ratnaben. Further, in March, 2018

plaintiff nos. 1 and 2 produced documents, but then did not

remain present to give the evidence and on behalf of the

defendants also, nobody remained present and as such, right to

lead evidence was closed and finally the trial court dismissed

the suit without any evidence and without true knowledge with

regard to death of appellants' mother. The trial court even

passed the judgment and decree on 04.01.2019 against plaintiff

no. 3 (appellant's mother Ratnaben) who died on 07.10.2016

and as such, the decree being collusive of dismissal of the suit,

the present appellants being aggrieved by the same have

preferred the present appeal.

3. During the pendency of this appeal, the parties have

negotiated as indicated on the previous occasion that there is

possibility of settlement between the parties and therefore, after

recording such stand, the co-ordinate Bench of this Court on

16.02.2023 was pleased to adjourn the matter to 15.03.2023

and with this background the present appeal has come up for

C/FA/1572/2022 ORDER DATED: 15/03/2023

consideration before this Court. Today, when the matter is

taken up for hearing, the learned advocates appearing for the

respective parties have jointly submitted that in view of the

previous deliberation which has taken place and which has been

recorded, settlement has taken place between the parties and

the affidavits are filed on behalf of appellant no.1.1.1 -

Raginbhai Ravjibhai Patel, appellant no. 1.1.2 - Vidhi Raginbhai

Patel as well as appellant no. 1.1.3 - Keyur Raginbhai Patel and

also appellant nos. 1.2 - Sureshkumar Ravjibhai Patel. All the

appellants have resolved the issue and the grievance between

the parties now does not survive and as such, have jointly

submitted their respective affidavits indicating that the matter

is resolved between the parties and in due deference to such

resolution of the dispute, learned advocate appearing on behalf

of the appellants under the instructions seeks permission to

withdraw the present appeal from this Court as early as

possible. One of such affidavit dated 27.02.2023 filed has

indicated clearly in paragraph 15, which reads as under :-

"15. I say and submit that, in view of the above facts and circumstances, since settlement is arrived with the respondent no. 5, I abide that, any proceedings pending before this Hon'ble High Court or any other courts shall

C/FA/1572/2022 ORDER DATED: 15/03/2023

withdraw immediately as early as possible. In view of the above, I earnestly request to this Hon'ble High Court to dispose of the FA No. 1572 of 2022 along with Civil Application (For Stay) No. 1 of 2019 in view of the present affidavit."

4. In view of such affidavits which are placed on record, and

in view of joint submission of learned advocates appearing on

behalf of both the sides, since resolution of the dispute has

already taken place, in view of the affidavits, a request is made

that appellants may be permitted to withdraw the present

appeal.

5. Accordingly, the present appeal stands disposed of as

withdrawn. It is however, made clear that the Court has not

expressed any opinion on the merits of the case since the appeal

is withdrawn on written instructions.

6. Since the main appeal is withdrawn, Civil Application (For

Stay) No. 1 of 2019 does not survive for consideration and

hence it stands consigned to records.

(ASHUTOSH SHASTRI, J)

(NISHA M. THAKORE,J) phalguni