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SCA/7857/2005 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7857 of 2005
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
=========================================================
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 ?
=========================================================
KANTILAL
HIRACHAND SHAH - Petitioner(s)
Versus
POST
MASTER GENERAL & 1 - Respondent(s)
=========================================================
Appearance :
MR
VIKRAM J THAKOR for
Petitioner(s) : 1,
None for Respondent(s) : 1,
MRS VASAVDATTA
BHATT for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date : 28/04/2011
ORAL
JUDGMENT
1. By
way of this petition, the petitioner has prayed for the following
reliefs :-
[A]
Your Lordships will be pleased to admit and allow this petition.
[B]
Your Lordships will be pleased to call for the record and proceedings
of Regular Civil Suit No. 893/94 and having examined the record and
proceedings be pleased to quash and set aside the impugned order
(Annexure-I) dated 20.03.1998 below Exh.12 and impugned order
(Annexure-J) dated 18.03.2005 below Exhibit-29 passed by the learned
Civil Judge (SD), Surat Camp at Bardoli and be pleased to hold and
declare that both the applications Exhibit-11 and 12 are misconceived
and not maintainable under the law and further be pleased to allow
the application Exhibit-29 filed by the petitioner.
[C]
During the pendency and till final disposal of this petition, by way
of interim relief, your lordships will be pleased to stay the
operation and implementation of the impugned order (Annexure-I) dated
20.03.1998 below Exhibit-12 passed by the learned Civil Judge (SD),
Surat Camp at Bardoli.
[D]
…….”
2. The
facts in brief are that petitioner had preferred Regular Civil Suit
No. 893/1994 in the Court of learned Civil Judge (SD) Surat at
Bardoli against the respondents praying for possession and recovery
of the outstanding rent and mesne profit in respect of the
property bearing No. 271 situated at Village Gangadhara, Taluka
Palsana, District Surat, which was given on lease to the respondents.
Pending the suit, the matter was referred to the Lok Adalat for
compromise. On 30.04.1995, both the parties arrived at amicable
settlement and the respondents agreed to hand over the possession of
the suit property to the petitioner on or before 31.07.1995 and pay
outstanding amount of Rs.85,470/- towards rent for the period
between 01.04.1992 to 30.04.1995. In pursuance of the compromise
arrived at between the parties, decree was drawn accordingly.
However, the respondents did not comply with the terms of compromise.
Therefore, the petitioner had preferred Execution Application
No.6/1996 before the trial Court. It is the case of the petitioner
that after the execution application, the respondents preferred two
different applications Exhibit-11 and Exhibit-12 praying to set aside
the compromise recorded at Lok Adalat and the decree drawn in
pursuance of the compromise and also to proceed with the suit on
merits. The trial Court vide order dated 20.03.1998 rejected the
application Exhibit-11 and directed the parties to proceed with the
matter. However, the trial Court allowed the application Exhibit-12
and stayed the execution of the decree passed in Lok Adalat. On
11.01.2001, the petitioner preferred application Exhibit-29 for
modification of the order dated 20.03.1998. The trial Court vide
order dated 18.03.2005 rejected the said application. Being aggrieved
and dissatisfied with the impugned orders passed below Exhibit-12 and
Exhibit-29 in Regular Civil Suit No. 893/1994, the petitioner has
approached this Court by way of this petition.
3. Heard
learned counsel for the respective parties and perused the documents
on record. The learned counsel for the petitioner has contended that
the order passed below Exhibit-12 is contrary to the order passed
below Exhibit-11 inasmuch as consent decree was passed by the
trial Court. From the record it transpires that the order passed by
the Lok Adalat has attained finality as the same has not been
challenged. Apart from that the application filed by the respondents
for restoration of the suit is also rejected. Looking to the facts
of the case and in view of the fact that the order passed by the Lok
Adalat has attained finality, the impugned orders passed below
Exhibit-12 and Exhibit-29 are required to be quashed and set aside.
4. In
the result, the petition is allowed. The impugned order dated
20.03.1998 passed in application Exhibit-12 and order dated
18.03.2005 passed in application Exhibit-29 are quashed and set
aside. Rule is made absolute to the above extent with no order as to
costs.
[K.S.
JHAVERI, J.]
/phalguni/
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