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CA/7547/2011 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION - FOR STAY No. 7547 of 2011
In
APPEAL
FROM ORDER No. 258 of 2011
With
CIVIL
APPLICATION No. 7446 of 2011
In
APPEAL
FROM ORDER No. 255 of 2011
=========================================
KOKILABEN
WD/O DECEASED RAMANGIRI MANIGAR THRO P O A & 4
Versus
MADHUBEN
D/O DECD.ATMAGAR SWAROOPGAR & 11
=========================================
Appearance
:
C.A. NO.7547 OF 2011
MR
PS CHAMPANERI for Petitioner(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.3.1,
1.3.2, 1.3.3, 1.3.4,1.3.5 - 2, 2.2.1, 2.2.2, 2.2.3, 2.2.4,2.2.5 - 3,
3.2.1, 3.2.2, 3.2.3,3.2.4 - 4, 4.2.1, 4.2.2, 4.2.3,4.2.4 - 5,
5.2.1,5.2.2
None for Respondent(s) : 1 - 2, 2.2.1, 2.2.2, 2.2.3,
2.2.4, 2.2.5, 2.2.6, 2.2.7,2.2.8 - 5, 5.2.1, 5.2.2, 5.2.3,5.2.4 -
11.
- for Respondent(s) : 0.0.0
MR
KAMAL TRIVEDI, Ld. AG and Senior Counsel with Ms.Sangeeta Vishen with
Mr.Harsh Jani - for Opponent / Respondent No.12
C.A
NO. 7446 OF 2011
MR.
B. B. NAIK WITH MR PARTHIV BHATT for Applicant / Appellant(s) : 1-2.
None
for Opponent / Respondent(s) 1, 1.2.1, 1.2.2, 1.2.3, 1.3.1, 1.3.2,
1.3.3, 1.3.4,1.3.5 - 2, 2.2.1, 2.2.2, 2.2.3, 2.2.4,2.2.5 - 3, 3.2.1,
3.2.2, 3.2.3,3.2.4 - 4, 4.2.1, 4.2.2, 4.2.3,4.2.4 - 5, 5.2.1,5.2.2
None for Respondent(s) : 1 - 2, 2.2.1, 2.2.2, 2.2.3, 2.2.4,
2.2.5, 2.2.6, 2.2.7,2.2.8 - 5, 5.2.1, 5.2.2, 5.2.3,5.2.4 - 11.
MR
KAMAL TRIVEDI, Ld. AG and Senior Counsel with Ms.Sangeeta Vishen with
Mr.Harsh Jani - for Opponent / Respondent
No.16
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 04/10/2011
ORAL
ORDER
ON SPEAKING TO MINUTES
[1] This
speaking to minutes note has been filed by Ms.Sangeeta
Vishen, learned counsel for the respondent No.12 for clarification as
stated in the speaking to minutes in paragraph No.3.
[2] Learned
Advocate General Shri Kamal Trivedi, appearing with learned counsel
Ms.Sangeeta Vishen, has submitted and emphasized that the note has
been filed for clarification with regard to the fact that the
construction has already been completed which was also opposed when
the matter was argued and for which he referred to the chronology of
the events.
[3] Learned
senior counsel Shri B. B. Naik appearing for the applicant –
appellant in Civil Application No.7446/2011 in Appeal from Order
No.255/2011 and learned counsel Shri P. S. Champaneri appearing for
the applicant in Civil Application No.7547/2011 in Appeal from Order
No.258/2011 have raised the objection with regard to the
maintainability of the speaking to minutes. Shri B. B. Naik, learned
senior counsel and learned counsel Shri P. S. Champaneri submitted
that such speaking to minutes is not maintainable and any such
clarification and substitution is beyond the scope. They, therefore,
submitted that no order may be passed.
[4]
Learned Advocate General Shri Kamal Trivedi appearing with learned
counsel Ms.Sangeeta Vishen has referred to and relied upon the
Gujarat High Court Rules more particularly Rules 137, 138 and 138(iv)
and submitted that the clarification of correction after the text is
received, such note for speaking to minutes can be filed. He has
submitted that he does not want addition or alteration in the texture
of order, the condition also remained the same.
[5] In
view of this, the contentions have been raised by the learned senior
counsel Shri B. B. Naik as well as learned counsel Shri P. S.
Champaneri that the speaking to minutes is not maintainable as it is
not clarification but substitution which is not permissible. They
have referred to the speaking to minutes and submitted that as quoted
in the speaking to minutes itself the order is clear and still
clarification is sought to focus about the use of the property.
[6] Though
the submissions have been made, it is evident that the order is clear
and it is regarding both construction as well as development of the
property. What has been requested by way of clarification is that a
depositing the amount of Rs.50 Lakhs, if further development which
would also include use and occupation thereof after the completion of
the construction no right could be claimed. In other words, when the
Court has used the word construction as well as development, that
itself indicate the stage after completion of the construction which
is sought to be clarified. Therefore, in fact the word “development”
has been covering both the use and occupation and further development
after the construction of the premises. Therefore, there is no need
for any clarification.
[7] With
the aforesaid observations, this speaking to minutes stands disposed
of.
[
RAJESH H. SHUKLA, J. ]
vijay
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