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SA/38/1984 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 38 of 1984
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA : Sd/-
=======================================================
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 ?
=======================================================
AMRELI
DIST PANCHAYAT & 2 - Appellant(s)
Versus
SHRI
JAGDISHBHAI PURSHOTTAM BHAI NIMBARK - Defendant(s)
=======================================================
Appearance :
MR
HM BHAGAT for Appellant(s) : 1 - 3. MR BAGHEL
for MR HS MUNSHAW for Appellant(s) : 2,
DELETED for Defendant(s) :
1,
MR AM DIVETIA for Defendant(s) : 1.2.1
=======================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 31/01/2011
ORAL
JUDGMENT
The
present Second Appeal has been filed under Section 100 of the Civil
Procedure Code by the appellant-original defendant challenging the
Judgment & Order dated 30.04.1983 passed by the Learned District
Judge at Amreli in Regular Civil Appeal No.91 of 1981 confirming the
Judgment & Decree dated 25.06.1981 passed by the Learned Civil
Judge (SD), Amreli in Regular Civil Suit No.328/1977, wherein
following substantial question of law are raised :-
(a) Whether
in the facts and circumstances of the case, the court below committed
substantial error of law as well as of facts in decreeing the suit of
the respondent plaintiff for declaration and injunction that the
order compulsorily retiring him from the service was illegal, null
and void?
(b) Whether
in the facts and circumstances of the case, the court below erred in
holding that the respondent plaintiff was entitled to pay and
allowances during the period from 30th September 1977 to
10th Separately, 1979?
(c) Whether
in the facts and circumstances of the case, the Appellate court erred
in holding that the respondent plaintiff is deemed to be in service
with all the pecuniary benefits?
(d) Whether
in the facts and circumstances of the case, can a Civil Court grant a
decree and declaration that the birth date of the respondent
plaintiff was erroneously recorded in the Service Book?
(e) Whether
in the facts and circumstances of the case, can the court come to the
conclusion regarding date of Birth even having no positive entry
regarding correct date of birth in the school leaving certificate ?
(f) Whether
in the facts and circumstances of the case, lower court ought to have
declined to interfere on the ground f delay and acquiescence on the
part of the respondent plaintiff ?
The
facts of the case briefly stated are that Regular
Civil Suit No.328/1977 was filed by the respondent-original
plaintiff, who was serving as Talati-cum-Mantri at Keriya-Chad under
Amreli District Panchayat. Suit was filed with regard to correction
in the date of birth. On the basis of evidence, the Suit was decreed
vide Judgment & Decree dated 25.06.1981 passed by the Learned
Civil Judge (SD), Amreli with a declaration that the defendants to
pay all the benefits for a period from 30th
September 1977 to 10th
Separately, 1979. The said Judgment & Decree was carried in
Appeal being Regular Civil Appeal No.91 of 1981 before the District
Court and the Learned District Judge at Amreli vide Judgment &
Order dated 30.04.1983 dismissed the Appeal confirming
the Judgment & Decree of the trial Court. Therefore, the present
Second Appeal has been filed posing the substantial questions of law
as stated above.
In
view of the order passed earlier dated 14.12.2010 by this Court, the
learned counsel, Mr.Baghel for the applicant has placed on record a
communication dated 24.12.2010 from the Amreli District Panchayat
stating with regard to the fact that all the benefits have been
given to the deceased-plaintiff, who was employee of the Panchayat.
Learned counsel, Mr.Baghel, therefore, has stated that in view of
the above fact, the present Seconal Appeal has become infructuous.
Accordingly,
the present Second Appeal stands disposed of as having become
infructuous without any further elaboration. Therefore, substantial
questions of law are not required to be considered or discussed.
Sd/-
(RAJESH
H.SHUKLA, J.)
/patil
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