Gujarat High Court
Bhimabhai Harbhambhai Godhaniya vs Rajsibhai Karabhai Godhaniya on 11 June, 2024
NEUTRAL CITATION
C/SA/231/2024 ORDER DATED: 11/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 231 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/SECOND APPEAL NO. 231 of 2024
With
CIVIL APPLICATION (FOR DIRECTION) NO. 2 of 2024
In R/SECOND APPEAL NO. 231 of 2024
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BHIMABHAI HARBHAMBHAI GODHANIYA & ANR.
Versus
RAJSIBHAI KARABHAI GODHANIYA & ANR.
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Appearance:
MR BJ TRIVEDI(921) for the Appellant(s) No. 1,2
MS JIGNASA B TRIVEDI(3090) for the Appellant(s) No. 1,2
UNSERVED REFUSED (N) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 11/06/2024
ORAL ORDER
1. Learned advocate Mr.Hari Brahmbhatt submits that he has
instructions to appear for respondents and he will file
Vakalatnama. Registry to accept the same.
2. Heard learned advocates for both the sides.
3. Considering the limited issue of law involved in Second
Appeal, upon request of learned advocates for both the sides,
Second Appeal is taken for final hearing at admission stage.
4. Regular Civil Suit No.139 of 2017 was preferred by the
present appellant in capacity of plaintiffs before the learned
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C/SA/231/2024 ORDER DATED: 11/06/2024
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Trial Court seeking declaration and injunction to restrain
defendants from passing through their field. Counter claim was
moved under Order 8 Rule 6(a) of CPC by defendants of the suit
who are respondents herein by claiming that they have right of
way through field of plaintiff. Counter claim has effect of the suit
in view of Order 8 Rule 6(a) of CPC. Regular Civil Suit No.139 of
2017 after appreciating evidence ended in favour of the plaintiffs.
Suit was decreed in favour of the plaintiff and counter claim was
dismissed. Defendants of the suit were retrained from passing
through field of the plaintiffs and to that effect permanent
injunction has been issued by the learned Principal Senior Civil
Judge, Porbandar by judgment and decree dated 31.01.2023.
The unsuccessful defendants filed Regular Civil Appeal No.10 of
2023 before the Court of learned Additional District Judge
challenging the judgment and decree passed in Regular Civil
Suit No.139 of 2017.
5. What appears from the record that only one first appeal
has been filed, though there are two separate decrees, decree one
which favours the plaintiff and decree one which disfavours
defendants. Section 96 of the CPC permits first appeal against
decree and not against decrees or multiple decree. So two
appeals was required to be filed. The respondents herein -
original defendants filed only one appeal. On reading appeal
memo, it is not clear whether unsuccessful defendants /
respondents herein has challenged the judgment and decree
favoring the plaintiff or judgment and decree disfavoring the
defendants. In any circumstances filing of one appeal is bad as
principle of res-judicata enshrined in section 11 of CPC is
attracted. Vivid and extensive discussion on this legal aspect
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C/SA/231/2024 ORDER DATED: 11/06/2024
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has been made by Division Bench of this Court in the case of
Darayas Bamanshah Medhora v/s. Nariman Bamansha Medhora
reported in 2002(1) GLR 474 after referring various judgments
including one of the leading judgment in the case of Premier
Tyres Ltd. v/s. The Kerala State Road Transport Corporation
[AIR 1993 SC 1201]. Thus, only on this count, judgment and
decree of learned Appellate Court in first appeal is bad in law.
6. Another aspect which requires to be noted that pursuant to
the judgment passed by the learned Appellate Court dated
01.06.2024, present respondents have demolished wall which
was in existence at the time of Rojkam drawn during pendecy of
Regular Civil Suit No.139 of 2017 and opened up alleged way,
though permanent injunction restraining them issued by learned
Civil Court was in force.
7. Today when this Second Appeal is taken up for hearing, it
is broadly conceded that two appeals are required to be filed, one
challenging judgment and decree favouring plaintiff and another
judgment and decree whereby counter claim of the defendants is
rejected and for that purpose, first appeal is to be remanded
back. It is agreed that at present, keeping all the contentions
open, respondents herein viz. Rajsinhbhai Kara Godhaniya and
Karabhai Chhaganbhai Godhaniya or their successor shall
deposit Rs.25,000/- before the learned First Appellate Court, as
wall has been demolished.
8. At this stage, learned advocate Mr.B.J.Trivedi for the
appellants - original plaintiffs submits that during appeal time
period, judgment and decree delivered in Regular Civil Suit
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C/SA/231/2024 ORDER DATED: 11/06/2024
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No.139 of 2017 shall have to be continued. The submission has
all force as application Exh.51 filed under Order 41 Rule 5 of
CPC in appeal was dismissed by the learned Appellate Court. In
view of that decree passed by the learned Trial Court in Regular
Civil Suit No.139 of 2017 was never kept in abeyance and by
that judgment defendants of the suit were restrained from
passing through the field of the plaintiff.
9. In view of above, without entering into merits and de-
merits of the case, I pass following order :-
(a) Judgment and decree delivered in Regular Civil
Appeal No.10 of 2023 is set aside and Regular Civil Appeal
No.10 of 2023 is restored to original proceedings for further
hearing.
(b) Since principle of law requires to file another appeal
challenging another judgment and decree passed in
Regular Civil Suit No.139 of 2017, respondents herein -
defendants are at liberty to move learned Appellate Court
for appropriate proceedings, whereby contention of the
present appellant is kept open.
(c) Amount of Rs.25,000/- which is agreed shall be
deposited by respondents herein before the learned
Appellate Court within three weeks from today and that
amount shall be invested in FDR and shall be subject to
outcome of the appeals.
(d) Needless to say that judgment and decree delivered
by learned Trial Court in Regular Civil Suit No.139 of 2017
shall remain in force till disposal of the appeals.
(e) In peculiar facts and circumstances, the appeals
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C/SA/231/2024 ORDER DATED: 11/06/2024
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shall be invariably heard and decided by the learned
Principal District Judge, Porbandar. It is expected from
learned Principal District Judge to decide the appeals as
early as possible in time bound manner considering
pendency before it.
10. In view of above, Second Appeal stands disposed of.
Connected Civil Applications does not survive and accordingly,
stands disposed of. Direct service is permitted.
(J. C. DOSHI,J)
SATISH
