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CRA/4/2008 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
REVISION APPLICATION No. 4 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
=========================================================
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 ?
=========================================================
RAMANLAL
PRAHLADBHAI PATEL - Applicant(s)
Versus
RASIKBHAI
PRAHLADBHAI PATEL - Opponent(s)
=========================================================
Appearance
:
MR
SUNIL C PATEL for
Applicant(s) : 1,
MR HARNISH V DARJI for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 23/02/2011
ORAL
JUDGMENT
The
petitioner – original plaintiff has filed this Revision
Application under Section 115 of the Code of Civil Procedure and
challenged the judgement and decree dated 21.2.2007 passed by learned
Judge, Small Causes Court at Ahmedabad in Summary Civil Suit No. 621
of 2003.
2. According
to the petitioner, the parties are brothers and the respondent was
managing the affairs of the joint family properties but did not
render accounts despite repeated demands by the petitioner. On
account of intervention of relatives, accounts were settled on
12.12.2001 and a writing was executed in that regard. As per the said
writing, the respondent was required to pay an amount of Rs.
1,15,000/-. The respondent agreed to pay the said amount within two
to three months but did not pay the same. Therefore, the petitioner
served a notice dated 13.12.2002 and demanded the amount. The
respondent gave evasive reply to the said notice and therefore the
suit was filed to recover the outstanding amount with interest at the
rate of 18% per annum from the date of suit till realization and cost
of the suit.
3. The
respondent appeared in the suit and contested the same. The
respondent denied the contents of writing dated 12.12.2001 and also
contended that memorandum of understanding was arrived at between the
parties and it was reduced into writing on 15.5.2001. According to
the said writing, accounts were settled and the respondent was not
required to pay any amount and therefore the suit is required to be
dismissed.
4. Learned
trial Judge framed issues and the parties adduced evidence. After
hearing learned advocates for the parties and considering the
evidence on record, learned trial Judge dismissed the suit. Being
aggrieved by the said decision, the petitioner has approached this
Court by way of filing this Revision Application.
5. I
have heard learned advocate Mr. Sunil C. Patel for the petitioner at
length and in great detail.
6. It
is not in dispute that the suit for recovery of outstanding amount
was filed in the Small Causes Court at Ahmedabad and the respondent
appeared in the suit and contested the same. Learned trial Judge
after considering the rival contentions dismissed the suit. It is not
in dispute that the proceeding in the Small Causes Court is governed
by the provisions of the Presidency Small Cause Court Act, 1882.
Section 38 of the said Act reads as under:
“Where
as suit has been contested, the Small Cause Court may, on the
application of either party, made within eight days, from the date of
the decree or order in the suit (not being a decree passed under
Section 522 of the Code of Civil Procedure) order a new trial to be
held, or alter, set aside or reverse the decree or order, upon such
terms as it thinks reasonable, and may, in the meantime, stay the
proceedings.”
Under
Section 37 of the said Act every decree and order of the Small Causes
Court in a suit shall be final and conclusive.
7. In
view of the above provisions, it is clear that every decree and order
of Small Causes Court passed in a suit is final and conclusive but
when the suit has been contested, the Small Causes Court may on the
application of either party, order a new trial or alter, set aside or
reverse the decree or order. Therefore, the present proceeding under
the provisions of Section 115 of the Code Civil Procedure cannot be
entertained as the petitioner has not resorted to appropriate remedy
available under law.
8. In
view of above, the Revision Application fails and stands dismissed
with no order as to costs. Rule is discharged.
(BANKIM N. MEHTA, J)
(pkn)
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