S.B. Civil Second Appeal … vs 2/2 on 10 November, 2008

(1) CSA-286/06 - Municipal Council, Pali Vs. Smt. Sampati Devi & Anr. (2)CSA -.270/05
-Municipal Council, Pali Vs. Smt. Sundha Devi & Anr. & (3) CSA NO.02679/06 DR(J) -
Municipal Council, Pali Vs. Smt. Sarala Devi & Anr.            Judgment dt.10.11.2008

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1. S.B. CIVIL SECOND APPEAL NO.286/2006
   Municipal Council, Pali Vs. Smt. Sampati Devi & Anr.
2. S.B. CIVIL SECOND APPEAL NO.270/2005
   Municipal Council, Pali Vs. Smt. Sundha Devi & Anr.
3. S.B. CIVIL SECOND APPEAL NO.02679/2006 DR(J)
   Municipal Council, Pali Vs. Smt. Sarala Devi & Anr.

Date of order                        :               10th November, 2008
                                    PRESENT

            HON'BLE DR. JUSTICE VINEET KOTHARI

Mr. Yashwant Mehta for the appellant.
Mr. Ravi Bhansali) for the respondents.
Mr. Rakesh Kalla )

                                     ---------

1.             Heard learned counsels.

2.             In these appeals, the first appellate court by its judgment

and decree dated 19.4.2005 has decreed the suit filed by the plaintiff-

respondent in which it was held that the appellant Municipal Council,

Pali was not justified in constructing the Kiosks on the public road

leading to industrial area of Pali in front of godown of the plaintiff-

respondent. The court below has found that the road width of the said

area of 75 ft. has been reduced to 46 ft. on account of construction of

the said Kiosks and on account of various activities to be done by

these    Kiosks owners to whom such                Kiosks are allotted by the

Municipal Council itself, there will be further congestion of the said

road which may cause accidents also.

3.             Learned counsel for the appellant submits that the first

appellate court was not justified in reversing the findings of the

learned trial court and despite framing the fresh issue in this regard,
 (1) CSA-286/06 - Municipal Council, Pali Vs. Smt. Sampati Devi & Anr. (2)CSA -.270/05
-Municipal Council, Pali Vs. Smt. Sundha Devi & Anr. & (3) CSA NO.02679/06 DR(J) -
Municipal Council, Pali Vs. Smt. Sarala Devi & Anr.            Judgment dt.10.11.2008

                                        2/2


the first appellate court did not provide any opportunity of leading

evidence to the defendant Municipal Council. He also submits that

on account of statement of power of attorney holder the suit could not

be decreed by the learned appellate court. He relied upon in the case

of Janki Vashdeo Bhojwani & Anr. Vs. Indusind Bank Ltd. & Anr.

- AIR 2005 SC 439.

4.             On the side opposite, Mr. Ravi Bhansali, learned counsel

appearing for the plaintiff-respondent submitted that the witness

appearing on behalf of the defendant Municipal Council DW 1

Kamlesh Prakash Vyas, Junior Engineer had deposed before the

learned trial court that the construction of said Kiosks the width of

the road is likely to be reduced and it is the only road leading to the

Industrial Area of Pali.

5.             Having considered the rival submissions and upon

perusal of the judgments of the courts below, this Court is of the

opinion that the learned First Appellate Court has returned the

findings on various issues on the basis of relevant evidence and there

is no misreading of evidence by the learned court. The judgment of

the first appellate Court does not give rise to any substantial question

of law for determination by this Court under Section 100 C.P.C.

6.             These second appeals are found to be devoid of merit.

The same are accordingly dismissed. No costs.

                                              [ DR. VINEET KOTHARI ], J.

item No.23 to 25

babulal/-