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CRA/8/2011 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
REVISION APPLICATION No. 8 of 2011
=========================================================
PATEL
BHIKHABHAI BHAVANBHAI NATHANI - Applicant(s)
Versus
BHAGWANJIBHAI
KHIMABHAI NATHANI - Opponent(s)
=========================================================
Appearance
:
MR
SP MAJMUDAR for
Applicant(s) : 1,MR PP MAJMUDAR for Applicant(s) : 1,
NOTICE
SERVED for Opponent(s) : 1,
MR UMANG R VYAS for Opponent(s) :
1,
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CORAM
:
HONOURABLE
MS.JUSTICE BELA TRIVEDI
Date
: 09/05/2011
ORAL
ORDER
1. The petitioner by way
of present Civil Revision Application under Section 115 of Code of
Civil Procedure has challenged the judgment and order dated 13th
December 2010 passed by the Deputy Collector in the Revision
Application filed against the order dated 2nd November
2009 passed by the Mamlatdar, Rajkot Taluka in Mamlatdar’s Court Case
No.11 of 2009 under the provisions contained in the Mamlatdar’s Court
Act, 1906 (hereinafter referred to as the said Act).
2. The short facts
giving rise to the present application are that the present
respondent (original applicant) submitted an application under the
said Act before the Mamlatdar alleging inter alia
that the present petitioner (original opponent) was having the land
bearing survey No.11 situated at village Ratanpar, District: Rajkot
and the present petitioner was having land bearing survey No.35/2
(Paiki) in the said village; that the present respondent had his
right to use the way from the land of the present petitioner. It
appears that the Mamlatdar, without assigning any reason or giving
sufficient opportunities to the parties to lead their respective
evidence, passed the order dated 2nd
December 2009 allowing the application of the respondent (original
applicant), restraining the present petitioner from causing any
obstruction to the respondent in his right of way through ‘Shedha’ of
survey No.11 of the present petitioner. Being aggrieved by the said
order, the present petitioner preferred the revision before the
Deputy Collector under the provisions contained in the said Act. The
Deputy Collector while observing that the present respondent –
original applicant, had not submitted the application as per Section
7 of the said Act and the Mamlatdar had also not followed the
procedure under Section 8 of the said Act, rejected the said revision
application of the present petitioner vide order dated 13.12.2010.
Being aggrieved by the said judgment and order passed by
the Deputy Collector, the petitioner has preferred the present
revision application under Section 115 of C.P.C.
3. During the course of
arguments it had transpired that the respondent – original
applicant had not filed his application as per Section 7 of the said
Act, nor the Mamlatdar had followed the procedure as required under
Section 8 of the said Act before entertaining the application of the
respondent. Under the circumstances, Mr. Majmudar submitted that let
the matter be remanded to the Mamlatdar’s Court for considering the
matter afresh, after the respondent follows the procedure as
prescribed under Section 7 and the Mamlatdar follows the procedure if
required under Section 8 of the said Act. Mr. Umang Vyas for the
respondent has no objection if the matter is remanded to the
Mamlatdar Court for deciding afresh in accordance with law.
4. In
view of the above, with the consent of learned advocates for the
parties, the judgments and orders dated 13th
December 2010 and 2nd
November 2009 passed by the Deputy Collector and Mamlatdar
respectively are required to be set aside and are hereby set aside.
The matter is remanded to the Mamlatdar for deciding afresh, after
respondent – original applicant complies with the requirement
under Section 7 of the said Act and the Mamlatdar follows the
procedure, if required, under Section 8 of the said Act. The
Mamlatdar shall, thereafter, decide the matter afresh in accordance
with law, after giving both the parties the opportunity of leading
the evidence and of hearing.
5. It is clarified that
till the Mamlatdar decides the matter afresh, both the parties shall
maintain status quo as on today. The Mamlatdar is directed to decide
the matter as expeditiously as possible, and both the parties are
directed to co-operate the Mamlatdar in the proceedings. The Civil
Revision Application stands allowed to the aforesaid extent.
(BELA TRIVEDI, J.)
jani
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