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SCA/7465/2009 1/ 3 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7465 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
=========================================
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 ?
=========================================
MANUBHAI
SENDHABHAI BHARWAD
Versus
AMARATLAL
SOMABHAI AND OTHERS
=========================================
Appearance :
MR
PJ VYAS for
the Petitioner
None for Respondent(s) : 1,
NOTICE SERVED for
Respondent(s) : 1.2.1,1.2.2 - 5.
NOTICE SERVED BY DS for
Respondent(s) : 1.2.1,1.2.2 - 5.
MR ASHOK N PARMAR for
Respondent(s) : 1.2.1,1.2.2 - 3.
- for Respondent(s) : 0.0.0
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 20/04/2010
ORAL
JUDGMENT
Heard
learned Advocate Mr.P.J.Vyas for the petitioner.
2. Learned
Advocate for the petitioner invited attention of the Court to the
order impugned in the matter passed below Chamber Summons in Civil
Suit No.2146 of 2006 dated 22.06.2009, whereby the learned Judge,
Court No.9, City Civil Court, Ahmedabad was pleased to reject the
Chamber Summons. The learned Judge has observed in para-4 as under:-
4. After
hearing both advocates and considering the facts and circumstances of
the case stated in this chamber summons and the reply filed by the
defendant No.5 resisting this chamber summons, this Court is of
the opinion that earlier while pending the suit the defendants No.1,
2 and 3 have sold away the property by way the of Banakhat to the
present defendant No.5 and the amount of Rs.50,00,000=00 was stated
as damage to the plaintiff and instead of Rs.50,00,000=00 now the
plaintiff has sought permission to enhance upto Rs.2,50,00,000=00
which cannot be permitted because it changes the whole
nature of the suit so far as amount of Rs.50,00,000=00 is concerned.
Under these circumstances, this chamber summons requires to be
dismissed. Therefore, the following order is passed.
ORDER
This chamber
summons stands dismissed with no order as to costs.
Dictated and
pronounced in the open Court on this 22nd day of June,
2009.
(emphasis
supplied)
This
Court is not able to understand as to how come the whole nature
of the suit gets changed by substituting the amount of damages.
3. Learned
Advocate Mr.Patel for the opponent vehemently submitted that it does
change the nature
of the suit.
However,
he is not able to explain to this Court as to how the nature
of the suit changes. In view of that, the matter requires
consideration.
4. RULE.
Learned Advocate Mr.Ashok N.Parmar waives service of Rule on behalf
of opponent Nos.1 to 3 and learned Advocate Mr.Patel waives service
of Rule on behalf of opponent Nos.4 and 5.
At the joint
request of the learned Advocates, the matter is taken up for
consideration.
5. Having
perused the order impugned, the Court finds no justification for
making an observation that by substituting the amount of
Rs.2,50,00,000/- in place of original amount of Rs.50,00,000/-, how
does the whole nature
of the suit changes. In absence of any reasoning given in support of
the said conclusion drawn by the learned Judge, the petition is
allowed. The impugned order dated 22.06.2009 passed by the learned
Judge in Chamber Summons in Civil Suit No.2146 of 2006 is quashed and
set aside. The Chamber Summons to be heard again by the learned
Judge and after hearing the contesting parties on the same, the
learned Judge to pass a reasoned order. Rule is made absolute. No
costs.
(Ravi
R.Tripathi, J.)
*Shitole
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