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SA/14620/2008 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 146 of 2008
=========================================================
EXECUTIVE
ENGINEER & 1 - Appellant(s)
Versus
HARISHCHANDRA
MOTISINH PARMAR & 1 - Defendant(s)
=========================================================
Appearance
:
MR
UM SHASTRI for
Appellant(s) : 1 - 2.
None for Defendant(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 14/07/2008
ORAL
ORDER
1. Heard
learned counsel for the parties.
2. The
appellants, original respondent nos. 2 & 3 in Regular Civil Suit
No. 54 of 1991 have approached this Court under section 100 of the
Civil Procedure Code by way of this second appeal assailing the
judgement and order passed by the appellate court in Regular Civil
Appeal No. 16 of 1994 dated 31.12.2007 confirming the order and
judgement dated 15.12.1993 passed by the trial court in Regular Civil
Suit No. 54 of 1991 whereby the suit was partly allowed and the
original claimant was held to be entitled to recover Rs. 16000/- with
interest at the rate of 6%.
3. The
facts in brief giving rise to the present appeal are set out as
under:
3.1 The
original plaintiff-present respondent no.1 had filed Special Civil
Suit No. 54 of 1991 against the present appellants and the present
respondent no.2 to recover Rs. 22000/- by way of damages sustained to
him by the act of the present appellants on the ground of being
negligent in letting the rain water which was stored in the pond to
be spread through out the agricultural land of the present respondent
no.1.
4. Mr.
Shastri, learned advocate appearing for the appellant has submitted
the substantial question of law that whether the courts below were
justified in the facts of the case in passing the order against the
appellants herein when admittedly no notice was served under the
provisions of the Gujarat Panchayat Act and that whether the courts
below are justified in passing the decree when the court commissioner
has stated that there was no water while the panchnama was prepared.
5. As
a result of hearing and perusal of records, it is quite evident that
the trial court has gone into the evidence in detail and more
particularly the panchnama and has found sufficient reasons to partly
allow the suit. It is evident from the evidence on record that the
present appellants are responsible for their own act because before
the preparation on the alleged gates, they ought to have taken some
care or preventive measures. In the event of the present appellants
not being able to show that they had taken due care before throwing
the water in the canal, I am in complete agreement with the
concurrent findings of both the courts below. No substantial
question of law is raised in the present appeal for consideration.
In that view of the matter, this Court has no option but to dismiss
the appeal.
6. Accordingly,
this appeal is dismissed. No order as to costs.
(K.S.
JHAVERI, J.)
Divya//
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