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SCA/6781/2008 2/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 6781 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================================
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?
=========================================================
THAKORE
NENAJI MANGAJI & 3 - Petitioner(s)
Versus
THAKORE
AMRATJI BHIKHAJI & 10 - Respondent(s)
=========================================================
Appearance :
MR
SP MAJMUDAR for Petitioner(s) : 1,MR PP MAJMUDAR
for Petitioner(s) : 1,
MR HEMANG R RAWAL for Respondent(s) : 1 -
7, 9,
DS AFF.NOT FILED (N) for Respondent(s) : 8,10 - 11, 11.2.2,
11.2.3,11.2.4
- for Respondent(s) :
11,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 29/07/2008
ORAL
JUDGMENT
1. Heard
Mr.S.P.Majmudar, learned Advocate appearing for the petitioners ?
original defendants and Mr.Hemang Rawal, learned Advocate appearing
on behalf of the respondents ? original plaintiffs, except
respondent No.8.
2. By
way of this petition under Article 227 of the Constitution of India,
the petitioners ? original defendant Nos.2 to 5 have prayed for an
appropriate Writ, direction and/or order quashing and setting aside
the order dated 15.02.2007 passed by the learned Civil Judge (S.D.),
Kalol (Ms.P.K.Vyas) below
Exh.17 in Special Civil Suit No.108 of 2005 dismissing the
application submitted by the petitioners under Order VII Rule 11 of
the Code of Civil Procedure. On considering the impugned order passed
by the learned Judge, the manner in which the learned trial Court has
dismissed and/or disposed of the application submitted under Order
VII Rule 11 of C.P.C. is highly deprecated. On going through the
impugned order, it appears that the learned trial Court has even not
gone through the provisions of C.P.C. more particularly Order VII
Rule 11 and the impugned order is passed by the learned Judge
disposing the application submitted under Order VII Rule 11 of the
C.P.C. in most perfunctory and casual manner. When the application
was submitted by the defendants to dismiss the Suit under Order VII
rule 11 contending inter-alia that the Suit is on insufficient
Court fees, in that case, it was incumbent on the part of the learned
trial Court to decide and dispose of the same rather than disposing
of the said application on the noting made by the original plaintiffs
that if at the time of final disposal of the suit, it is found that
Suit is on insufficient Court fees, then he will pay deficit Court
fees. Only in three lines the learned Judge has disposed of the
application submitted under Order VII Rule 11 and no reasons has been
assigned. As held by the Hon’ble Supreme Court and this Court in
catena of decisions, any order without reasonings can be said to be
non-application of mind. Under the circumstances, impugned order
passed by the learned trail Court cannot be sustained and same
deserves to be quashed and set aside by ordering the learned trial
Court for deciding the application Exh.17 submitted by the
petitioners ? original defendant Nos.2 to 5 under Order VII Rule 11
afresh in accordance with law and on merits and to pass detailed
speaking order.
3. For
the reasons stated above, the petition succeeds. Impugned order dated
15.02.2007 passed by the learned Civil Judge (S.D.), Kalol
(Ms.P.K.Vyas) below Exh.17 in
Special Civil Suit No.108 of 2005 is hereby quashed and set aside and
the matter is remanded to the learned trial Court for deciding the
application Exh.17 in accordance with law and on merits within a
period of three months from the date of receipt of this order and/or
on production of certified copy of the present order and the learned
trial Court to pass detailed speaking order. Registry is directed to
place xerox copy of the impugned order dated 15.02.2007 passed by the
learned Civil Judge (S.D.), Kalol (Ms.P.K.Vyas)
below Exh.17 in Special Civil Suit No.108 of 2005 (Page Nos.55
and 56) before the Administrative Unit Judge of Gandhinagar District
for his kind consideration. Registry is also directed to communicate
present order to the District Judge, Gandhinagar for his
consideration also. In the facts and circumstances of the case, there
shall be no order as to costs. Direct service is permitted.
[M.R.Shah,J.]
satish
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