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SCA/5643/2011 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5643 of 2011
=========================================
PARAGBHAI
DINESHBHAI SANCHANIYA & 1 - Petitioner(s)
Versus
NIRAV
DEVSHIBHAI CHAVDA & 5 - Respondent(s)
=========================================
Appearance :
MR
SP MAJMUDAR for
Petitioner(s) : 1 - 2.
MR PP MAJMUDAR for Petitioner(s) : 1 - 2.
NOTICE
SERVED BY DS for Respondent(s) : 1 - 6.
MR SATYAM Y CHHAYA for
Respondent(s) : 1,
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CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 13/05/2011
ORAL
ORDER
1. By
way of this petition under Article 227 of the Constitution of India
the petitioners-original plaintiffs have prayed for an appropriate
order to quash and set aside the impugned orders passed by the
learned trial Court below Exhs. 10 and 13 dated 28/03/2011 in Regular
Civil Suit No. 89/2011.
2. The
facts leading to the present Special Civil Application in a nutshell
are as under;
2.1. The
petitioners-original plaintiffs have instituted Regular Civil Suit
No. 89/2011 against the respondents-original defendants in the Court
of learned Civil Judge (Senior Division), Rajkot. In the said suit
the petitioners-original plaintiffs submitted an application, Exh. 6
to appoint the Court Commissioner to prepare the panchnama, which
came to be allowed ex parte by the learned 5th Additional
Senior Civil Judge, Rajkot directing to appoint the Court
Commissioner to prepare the panchnama of the suit property. It
appears that one another suit was already pending before another
Court between the same parties with respect to the same property in
which application, Exh. 5 was submitted and the learned trial Court
disposed of the said application, Exh. 5 by directing the parties to
maintain status-quo and only thereafter the petitioners-original
plaintiffs submitted the application, Exh. 6 and the same was decided
without hearing the respondents-original defendants. The
respondents-original defendants submitted the application, Exh. 10 to
stay the order passed below Exh. 6 dated 23/03/2011, which came to be
granted by the learned trial Court and the order dated 23/03/2011 was
stayed, which was further continued. Being aggrieved and
dissatisfied with the aforesaid order staying the order passed below
Exh. 6 dated 23/03/2011, the petitioners-original plaintiffs have
preferred the present Special Civil Application under Article 227 of
the Constitution of India.
3. Having
heard the learned advocates appearing on behalf of the respective
parties and considering the impugned orders as well as the order
passed by the learned trial Court below Exh. 6 dated 23/03/2011, it
appears that as the order passed below Exh. 6 dated 23/03/2011 was
an ex parte order and without giving any opportunity to the
respondents-original defendants, this Court suggested that let all
the orders inclusive of the order passed by the learned trial Court
below Exh. 6 dated 23/03/2011 be quashed and set aside and the matter
be remanded to the learned trial Court for deciding the application,
Exh. 6 afresh in accordance with law on its own merits and after
giving an opportunity to all the concerned. With respect to the
above, there is a broad consensus between the learned advocates
appearing on behalf of the respective parties.
4. In
view of the above, the order passed by the learned trial Court below
Exh. 6 dated 23/03/2011 as well as the subsequent orders passed below
Exhs. 10 and 13 are hereby quashed and set aside and the matter is
remanded to the learned trial Court for deciding the application,
Exh. 6 afresh in accordance with law on its own merits and after
giving an opportunity to all the concerned. The learned trial Court
to decide and dispose of the said application, Exh. 6 in accordance
with law on its own merits, without, in any way, being influenced by
the present order.
5. With
this, the present petition is disposed of.
(M.R.
SHAH, J.)
siji
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