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SCA/12541/2009 1/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 12541 of 2009
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ARJANBHAI
KACHRABHAI BARDIYAVADRA - Petitioner(s)
Versus
KUNVERBEN
D/O KACHRABHAI BARDIYAVADRA & 7 - Respondent(s)
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Appearance
:
Mr.NANAVATI
WITH Mr.PREMAL S RACHH for Petitioner(s) : 1,
NOTICE SERVED for
Respondent(s) : 1, 8.2.1, 8.2.3, 8.2.4, 8.2.6,8.2.7
MR VH KANARA
for Respondent(s) : 2 - 4,7 - 8, 8.2.2, 8.2.3, 8.2.4, 8.2.5,
8.2.6,8.2.7
MR VIJAY H NANGESH for Respondent(s) : 2 - 4,7 - 8,
8.2.2, 8.2.3, 8.2.4, 8.2.5, 8.2.6,8.2.7
MR ASIT B JOSHI for
Respondent(s) : 5 - 6.
None for Respondent(s) : 8, 8.3.1,
8.3.2,8.3.3
NOTICE SERVED BY DS for Respondent(s) : 8.2.2
UNSERVED-EXPIRED (N) for Respondent(s) : 0.0.0
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CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 16/04/2010
ORAL
ORDER
Rule.
Learned advocate Mr.V.H. Kanara waives service of rule on behalf of
respondents no.2 – 4,7 – 8, 8.2.2, 8.2.3,
8.2.4, 8.2.5, 8.2.6,8.2.7.
2. Heard
learned advocate Mr.Nanavati with learned advocate Mr.Premal S. Rachh
for the petitioner. The learned advocate invited attention of the
Court to the order passed by this Court (Coram: Smt.Abhilasha Kumari,
J.) on 1st December 2009. The order reads as under:
Mr.
Devang Nanavati for Mr. Premal S. Rachh,
learned Counsel for the petitioner states that he
is not pressing the challenge in the petition
so far as the appointment of Receiver is concerned. The learned
Counsel for the petitioner further states that he does
not want that a Receiver be appointed,
and is confining his prayer only to
the aspect that the respondents may be directed to
render the accounts of agriculture produce.
(emphasis supplied)
3. Today,
when the matter is taken up for hearing on a mentioning being made
for giving priority, learned advocate Mr.Nanavati for the petitioner
reiterated the aforesaid statement which was made on 01.12.2009.
Heard learned advocate for the petitioner and learned advocate
Mr.V.H. Kanara for respondents no.2 – 4,7 – 8, 8.2.2, 8.2.3, 8.2.4,
8.2.5, 8.2.6,8.2.7.
4. Learned
advocate Mr.Kanara submitted that the present petitioner-original
defendant no.2 is not an honest person. He is in Government service.
Therefore, he is misusing his position. In this regard he invited
attention of the Court to the affidavit filed by the mother of
present petitioner-defendant no.2 and submitted that it is
specifically mentioned in the said affidavit that,
‘.. .. the
petitioner is one of the sons and being Government employee, is very
acquainted with the legal provisions. Since his childhood, the
petitioner is very near and dear with my husband and his father and
administered all financial transactions and agriculture produce. The
petitioner was managing the market transactions and kept all
accounts. The petitioner has good relation with all my married
daughters and he, certainly, instigated one of them to file Special
Civil Suit No.10 of 2007 before the Principal Senior Civil Judge,
Jamkhambhaliya. It is denied that any of my sons except the
petitioner has started alienating the ancestral agricultural lands.
The respondent no.1 herein has issued legal notice through her
advocate and the same was replied with denial of submission and
allegations made against the respondent nos. 2 and 3. Rest of the
contents of these paras are denied.
5. He
also invited attention of the Court to para 5 of the affidavit only
to bring home the aforesaid submission.
Assuming
for the sake of argument that the present petitioner is not
conducting himself as per expectations of either the mother or the
other members of the family, but that does not disentitle him under
the law of his lawful rights. If at all it is the case of the other
members of the family that at the relevant time, the petitioner
appropriated a major part from the agricultural income of the family
to himself, it is open to them to take recourse to remedy available
to them under law. Only on that ground he cannot be denied his
reasonable request. In the present case the request of the
petitioner- original plaintiff is that the defendants be directed to
render account to the Court. So far as conduct of the petitioner is
concerned at least before this Court conduct is found to be
reasonable inasmuch as he gave up his relief of getting the
Commissioner appointed. In light of dropping of that request the
agricultural lands remained with the same parties with which they
were. The Court finds that the submission made by learned advocate
Mr.Kanara has no substance.
6. In
view of the aforesaid discussion, the present petition is allowed.
Order dated 21.07.2009 passed by the learned Principal Senior Civil
Judge, Khambhaliya in Special Civil Suit No.10 of 2007 below Exh.73
is quashed and set aside to the extent it refused to direct the
parties to render account.
Exhibit
73 is allowed to that extent only. Rule is made absolute. No order
as to costs.
(RAVI
R. TRIPATHI, J.)
karim
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