FA/5434/2007 8/ 8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 5434 of 2007 With CIVIL APPLICATION No. 5907 of 2008 In FIRST APPEAL No. 5434 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= GORDHANDAS MOHANLAL MEHTA - Appellant(s) Versus JANAK KANAIYALAL SHETH & 2 - Defendant(s) ========================================================= Appearance : MR RAJNI H MEHTA for Appellant(s) : 1, MR MTM HAKIM for Defendant(s) : 1, None for Defendant(s) : 2, MR SUNIL B PARIKH for Defendant(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA and HONOURABLE MR.JUSTICE M.R. SHAH Date : 27/06/2008 ORAL JUDGMENT
(Per
: HONOURABLE MR.JUSTICE M.R. SHAH)
Appeal
admit.
Mr.M.T.M.Hakim,
learned Advocate who is on caveat waives service of notice of
admission on behalf of the respondent No.1 ý original claimant.
Mr.Sunil Parikh, learned Advocate waives service of notice of
admission on behalf of respondent No.3. As there is consensus between
the learned Advocates appearing on behalf of respondent No.1-
original claimant and learned Advocate appearing on behalf of
respondent No.3 ý Insurance Company who are main contesting party
for remanding the matter to the Tribunal, respondent No.2 is not
required to be heard at this stage, as main contesting party would be
respondent No.1 herein ý original claimant. With the consent of the
learned Advocates appearing on behalf of the respective parties, the
appeal is taken up for final hearing today, printing and paper-book
is dispensed with.
2. Present
appeal is by the appellant ý respondent No.2 in M.A.C.P.No.27 of
1991 challenging the judgment and award dated 05.07.2005 passed by
the learned M.A.C.T.(Auxi.), 5th Fast Track Court,
Panchmahals at Godhra and also challenging the judgment and order in
Misc.Civil Application (M.A.C.P.) No.540 of 2005 passed by the
learned M.A.C.T.(Main), Panchmahals dated 27.03.2006 reviewing the
judgment and award dated 05.07.2005 passed in M.A.C.P.No.27 of 1991
passed by the M.A.C.T.(Auxi.), Panchmahals at Godhra. The appellant
has also challenged the judgment and order dated 25.06.2007 passed by
the M.A.C.T(Main), Panchmahals at Godhra passed in Misc.Civil
Application (M.A.C.P). No.51 of 2006 in rejecting the said
application which was filed for quashing and setting aside the
ex-parte order passed in Misc.Civil Application (M.A.C.P.)No.540 of
2005.
3. We
have heard Mr.Rajni Mehta, learned Advocate appearing on behalf of
the appellant; Mr.M.T.M.Hakim, learned Advocate appearing for
respondent No.1 herein ý original claimant and Mr.Sunil Parikh,
learned Advocate appearing on behalf of respondent No.3 ý Insurance
Company.
4. In
the peculiar facts and circumstances of the case, there is consensus
amongst the learned Advocates appearing on behalf of the respective
parties that all the aforesaid three orders be quashed and set aside
and the matter be remanded to the learned M.A.C.T., Panchmahals at
Godhra for deciding M.A.C.P.No.27 of 1991 afresh with a liberty to
either / any of the parties to the claim petition to request for
further evidence if they so choose.
5. Mr.Rajni
Mehta, learned Advocate appearing on behalf of the appellant;
Mr.M.T.M.Hakim, learned Advocate appearing for respondent No.1 ý
original claimant and Mr.Sunil Parikh, learned Advocate for Insurance
Company have stated at Bar that they have got full authority from
their clients to make above statement for quashing and setting aside
aforesaid orders and to remand the matter to the Tribunal.
Mr.R.V.Shah, learned Advocate who has appeared on behalf of the
original claimant before the Tribunal is also personally present in
the Court and aforesaid statement is made in his presence and also
under his instructions.
6. In
view of the consensus amongst the learned Advocates appearing on
behalf of the respective parties, impugned judgment and award dated
05.07.2005 passed in M.A.C.P.No.27 of 1991 passed by the learned
M.A.C.T.(Auxi.), 5th Fast Track Court, Panchmahals at
Godhra; judgment and order dated 27.03.2006 passed by the
M.A.C.T.(Main), Panchmahals at Godhra in Misc.Civil Application
(M.A.C.P.) No.540 of 2005 and judgment and oarder dated 25.06.2007
passed by the M.A.C.T(Main), Panchmahals at Godhra passed in
Misc.Civil Application (M.A.C.P). No.51 of 2006 are hereby quashed
and set aside. The matter is remanded to the learned M.A.C.T.(Main),
Panchmahals at Godhra for deciding the M.A.C.P.No.27 of 1991 afresh
in accordance with law and on its own merits. However, it is observed
that whatever evidence is already recorded same may be considered by
the learned Tribunal and it is further observed that it will be open
for any of the parties to the claim petition to request for adducing
further evidence if they so choose and as and when such application
is made, same shall be considered and parties may be permitted to
lead further evidence. It is made clear that this Court has not
expressed any opinion on merits of the case and it will be for the
learned Tribunal to pass an appropriate order on remand in accordance
with law and on its own merits upon evidence which is already on
record and that may be further adduced by any of the parties to the
claim petition. As the original claim petition is of 1991, the
learned Tribunal is directed to give priority in early disposal of
the aforesaid claim petition and the learned Tribunal is directed to
see that the claim petition on remand is decided and disposed of as
early as possible but not later than 31st March, 2009. All
concerned are directed to cooperate the learned Tribunal in early
disposal of the aforesaid claim petition. In the facts and
circumstances of the case, it is also directed that aforesaid claim
petition No.M.A.C.P.No.27 of 1991 shall not be heard by learned
M.A.C.T.(Main), Panchmahals at Godhra who passed the order in
Misc.Civil Application No.540 of 2005 dated 27th March,
2006 and in Misc.Civil Application No.51 of 2006 dated 25.06.2007.
Aforesaid order is with consent of the learned Advocates appearing on
behalf of the respective parties.
7. Mr.Sunil
Parikh, learned Advocate for respondent No.3 ý Insurance Company
has stated that the Insurance Company shall withdraw Appeal From
Order No.285 of 2007 which has been filed challenging the aforesaid
orders at the earliest.
8. Looking
to the aforesaid orders and the manner in which impugned judgment and
orders are passed by the aforesaid two Tribunals, we propose to pass
an appropriate order for placing all the aforesaid orders before the
Hon’ble Chief Justice / Hon’ble Acting Chief Justice and concerned
Administrate Judge for their kind consideration and if necessary to
take appropriate action, for which a separate order is being passed.
9. With
these present appeal is allowed with above order and directions. The
MACP is remanded. In the facts and circumstances of the case, there
shall be no order as to costs. Registry to return Rs.25,000/- (Rupees
Twenty Five Thousand only) deposited by the appellant ý Oriental
Insurance Company Ltd. in this appeal by an Account Payee Cheque in
favour of Oriental Insurance Company Ltd. as early as possible.
Registry is directed to send Writ to the Tribunal immediately.
10. In
view of disposal of First Appeal, no order in Civil Application, same
is disposed of.
[J.R.Vora,J.]
[M.R.Shah,J.]
satish