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SCA/3077/2009 3/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3077 of 2009
For
Approval and Signature:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
=========================================================
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 ?
=========================================================
SHANTANUBHAI
BALBHADRARAI MAJMUNDAR - Petitioner(s)
Versus
PUNAMCHAND
RAGHURAM THAKKAR - Respondent(s)
=========================================================
Appearance
:
MR
SP MAJMUDAR for
Petitioner, MR PP MAJMUDAR for Petitioner
MR SATYAM Y CHHAYA for
Respondent
=========================================================
CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 27/01/2010
ORAL
JUDGMENT
Rule.
Mr.Satyam Y.Chhaya, learned advocate, waives service of notice of
Rule on behalf of the respondent. On the facts and in the
circumstances of the case, and with the consent of the learned
counsel for the respective parties, the petition is being heard and
finally decided today.
This
petition has been filed with a prayer to quash and set aside order
dated 02.03.2009 passed by the Trial Court below application at
Exhibit 48 in Regular Civil Suit No.153 of 1999, whereby, the said
application filed by the petitioner (original plaintiff) under the
provisions of Order 6, Rule 17 and Section 151 of the Code of Civil
Procedure ( the Code for short) has been rejected.
The
brief facts of the case are that the above-mentioned suit had been
filed by the petitioner (original plaintiff), interalia, for grant
of permanent injunction, claiming certain easementary rights against
the respondent. The suit was instituted on 14.10.1999. On
12.08.2008, the petitioner filed the application at Ex.48 praying
for certain amendments in the plaint, incorporated therein. The said
application has been rejected by the impugned order, giving rise to
the filing of the petition.
Mr.S.P.Majmudar,
learned counsel for the petitioner, has submitted that the said
application has been rejected by the Trial Court mainly on two
grounds. The first ground is that as per Section 65 of the
Limitation Act, the plaintiff is required to file such application
within a period of three years. It is submitted that even assuming
that the Court was referring to Article 65 of the Limitation Act,
the said Article is not applicable in a suit for easementary rights.
The second ground on which the application has been rejected goes to
the very root of the matter and touches upon the merits of the case
as the reason for rejection is that no documentary evidence has been
produced in support of the contention of the petitioner that the
respondent has put up doors and windows in his premises, thereby
creating new easementary rights. It is submitted that the
application could not have been rejected on this ground as the
parties are required to lead evidence, even assuming that the
application might have been allowed.
On
the other hand, Mr.Satyam Y.Chhaya, learned counsel for the
respondent, has submitted that the suit was instituted on 14.10.1999
and the Panchnama upon which the petitioner is relying was carried
out on 16.10.1999. The application is highly belated and there is no
mention in the said application regarding the reasons for the delay.
I
have heard the learned counsel for the respective parties, perused
the averments made in the petition and contents of the impugned
order.
At
the very outset, for reasons stated hereinafter, this Court is not
inclined to go into the merits of the case. A perusal of the
impugned order, especially, paragraph-3 thereof makes it clear that
the Court has relied upon Section 65 of the Limitation Act
while rejecting the application of the petitioner. Even assuming
that the Court was referring to Article 65, the said Article is not
applicable to the facts and circumstances of the present case, as it
lays down the period of limitation for adverse possession. The
second ground on which the application has been rejected is on the
merits of the case which could not have been gone into by the Trial
Court at this stage.
As
the grounds on which the application has been rejected are not
germane to the provisions of Order 6 Rule 17 of the Code and as the
Trial Court appears to have proceeded on an erroneous footing that
Section 65 (Article 65) of the Limitation Act is applicable, the
petition is partly-allowed and the impugned order, having been
erroneously passed, is quashed and set aside. The matter is remanded
to the same Court for fresh hearing of the application Ex.48, in
accordance with law. The Trial Court shall hear the respective
parties and pass a fresh order within a period of one month from the
date of the receipt of the Writ of this Court. It is open to the
learned counsel for the respective parties to urge all rights and
contentions available to them, before the Trial Court. Rule is made
absolute, to the above extent. There shall be no orders as to costs.
(Smt.Abhilasha
Kumari, J.)
(sunil)
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