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SCA/5698/2008 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5698 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================================
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 ?
=========================================================
GUJARAT
STATE SOCIAL WELFARE ADVISORY BOARD & 1 - Petitioner(s)
Versus
ASHOKKUMAR
JAYANTILAL CHAUHAN & 2 - Respondent(s)
=========================================================
Appearance :
MR
MANOJ N POPAT for Petitioner(s) : 1 - 2.
MR
GIRISH K PATEL for Respondent(s) : 1,
None for Respondent(s) :
2,
MR. VIPUL MISTRY ASST. GOVERNMENT PLEADER for Respondent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 05/08/2008
ORAL
JUDGMENT
1. Rule.
Shri Girish Patel, learned advocate for the respondent No.1 and Shri
Vipul Mistry, learned AGP, for the respondent No. 3 wavies service of
notice of admission on behalf of the respondents. With the consent of
the learned advocate appearing for the respective parties, the matter
is taken up for final hearing today.
2. By
way of this petition under Article 227 of the Constitution of India,
the petitioners-original defendants have prayed for an appropriate
writ, direction and / or order quashing and setting aside the
impugned oder passed by the learned Civil Judge, (S.D.), Palanpur
below Exh. 1 in Regular Civil Suit No. 112 of 1995 rejecting the said
application and not transferring the said suit to the Civil Court at
Patan which would be having the territorial jurisdiction.
3. Respondent
No.1 herein had instituted the Regular Civil Suit No. 112 of 1995 in
the Court of learned Civil Judge (S.D.), Palanpur for declaration and
consequential relief. It appears that the cause of action had arisen
at Varahi, Tal: Santalpur, Dist. Banaskantha. At the relevant time,
Varahi was in Tal: Santalpur, Dist. Banaskantha and, therefore, the
said suit was instituted in the Court at Palanpur. It appears that
subsequently new District Patan is established and all the suits came
to be transferred as per the new territorial jurisdiction, however,
at the relevant time by mistake the present suit in question was not
transferred to the Court of learned Civil Judge (S.D.), Patan and,
therefore, petitioners submitted an application before the learned
trial Court to transfer the said suit to the learned Civil Judge
(S.D.), Patan. However, the said application came to be dismissed by
the learned trial Court by holding that the said Court has no
jurisdiction to transfer the suit from one District to another
District and the said powers are only with the High Court and also on
the ground that earlier the High Court has directed to treat the
issue with respect to the jurisdiction as a preliminary issue. Being
aggrieved with the order passed below Exh. 1 dated 27.12.2007 passed
in Regular Civil Suit No. 112 of 1995, petitioners-original
defendants No.1 have preferred present Special Civil Application
under Article 227 of the Constitution of India.
4. Shri
Popat, learned advocate appearing for the petitioners has submitted
that the cause of action had arisen in Varahi which was at the
relevant time in Tal: Santalpur, Dist.
Banaskantha and, therefore, the said suit was instituted in the Court
at Palanpur. However, subsequently as per the Government Resolution/
Notification dated 30.7.2002 on establishment of District Patan, the
said suit was required to be transferred to the Court at
Patan,however by mistake the same suit was not transferred to the
learned Civil Court, Patan and, therefore, it is requested to
transfer the suit from learned Civil Court, Palanpur to learned Civil
Court (S.D.), Patan, who have the territorial jurisdiction.
5. Shri
Girish Patel, learned advocate appearing for the respondent No.1 has
submitted that as earlier the application of the petitioners was
dismissed and even this Court has directed to decide the question
with respect to jurisdiction as preliminary issue, the learned trial
Court has rightly rejected the application and the said issue is
required to be decided as a preliminary issue, therefore, it is
requested to dismiss the present Special Civil Application.
6. Heard
the learned advocate appearing for the respective parties. It is
required to be noted that the cause of action had arisen in Varahi
which was in Tal: Santalpur, Dist. Banaskantha and, therefore, the
aforesaid suit came to be instituted in the Court at Palanpur,
however subsequently due to the establishment of new Patan District,
the cases were required to be transferred at Patan having the
jurisdiction and all other cases came to be transferred as per new
territorial jurisdiction. It appears that by mistake the suit in
question was not transferred and therefore, application was submitted
by the petitioners to transfer the said suit to the learned Civil
Court, Patan having the territorial jurisdiction. It is not in
dispute that as per the Notification dated 30.7.2002 on establishment
of Patan District for the suit in question only the Court at Patan
would have the territorial jurisdiction and, therefore, the suit in
question is required to be transferred to Court of learned Civil
Judge (S.D.), Patan. Now, the learned Civil Judge (S.D.) would not
have any jurisdiction to decide and dispose of the suit. It is true
that in earlier proceedings, this Court directed to treat the issue
with respect to jurisdiction as a preliminary issue but when on the
face of it, it is found that the learned Civil Court, Palanpur would
not have any jurisdiction now and only the Court at Patan would have
jurisdiction, the said order cannot come in the way of transferring
the suit to the Court having the jurisdiction.
8. Considering
the above, the Regular Civil Suit No. 112 of 1995 requires to be
transferred to the Court of learned Civil Judge (S.D.) Patan, who
will have territorial jurisdiction to decide and dispose of the
controversy involved in the suit.
9. For
the reasons stated above, petition succeeds. It is hereby ordered to
transfer the Regular Civil Suit No. 112 of 1995 pending in the Court
of learned Civil Judge (S.D.) Palanpur to the learned Civil Judge
(S.D.), Patan. Rule is made absolute. In the facts and circumstances
of the case, there shall be no order as to cost.
(M.R.
SHAH, J.)
kaushik
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