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FA/1199/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 1199 of 2010
=========================================================
VALLABHBHAI
JERAMBHAI VANANI - Appellant(s)
Versus
VITHTHALBHAI
JADAVBHAI MANGUKIYA & 3 - Defendant(s)
=========================================================
Appearance
:
MRTULSHIRSAVANI
for
Appellant(s) : 1,
MR VISHWAS S DAVE for Defendant(s) : 1 -
4.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 13/07/2011
ORAL
ORDER
1. In
Misc. Civil Application No. 368 of 2011, this Court on 06.05.2011,
has passed following order:-
1. The present
application under Section 24 of the Code of Civil Procedure has been
preferred by the applicant-original plaintiff of Special Civil Suit
No. 86/2006 for an appropriate order of transferring the proceedings
of Regular Civil Appeal No. 26/2010 pending in the Court of learned
District Judge, Bhavnagar, which is filed by the present respondents
nos. 3 and 4, to this Court to be heard alongwith First Appeal No.
1199/2010.
2. At the outset, it is
required to be noted that by the judgment and decree dated
04/03/2010, the learned trial Court partly decreed Special Civil Suit
No. 86/2006. Being aggrieved and dissatisfied with the judgment and
decree passed by the learned trial Court in partly decreeing the
suit, respondents nos. 3 and 4 herein have instituted Regular Civil
Application No. 26/2010 before the learned District Court, Bhavnagar.
Being aggrieved and dissatisfied with the judgment and decree passed
by the learned trial Court in not decreeing the entire suit, the
applicant-original plaintiff has instituted First Appeal No.
1199/2010 before this Court to consider the claim in the suit at Rs.
5,40,000/- and, therefore, the judgment and decree passed by the
learned trial Court is now the subject matter of two Appeals before
two different Courts and, therefore, to avoid any conflicting
findings the proceedings pending in the Court of learned District
Judge, Bhavnagar are required to be transferred to this Court as the
proceedings of First Appeal No. 1199/2010 pending before this Court
cannot be transferred to the District Court. Both the Appeals arise
out of the same judgment and decree and, therefore, they are required
to be heard by one Court only so as to avoid any conflicting
decisions and findings.
3. It appears that
initially the suit was valued at Rs. 2,40,000/-. However,
subsequently vide order dated 04/03/2010 the applicant-original
plaintiff was directed to pay the Court fees of Rs. 5,40,00/- and,
therefore, for all purpose and jurisdiction, the claim is required to
be considered at Rs. 5,40,000/- and, therefore, as such appeal field
by respondents nos. 3 and 4 herein was required to be instituted
before this Court only.
4. In view of the above
and considering the aforesaid facts and circumstances of the case,
the proceedings before the learned District Court, Bhavnagar, being
Regular Civil Appeal No. 26/2010, is required to be transferred to
this Court to be heard alongwith First Appeal No. 1199/2010. In view
of the above, the present application is allowed and it is ordered to
transfer the proceedings of Regular Civil Appeal No. 26/2010 pending
in the Court of learned District Judge, Bhavnagar to this Court to be
heard alongwith First Appeal No. 1199/2010. The learned Principal
District Judge, Bhavnagar is hereby directed to transfer the
proceedings of Regular Civil Appeal no. 26/2010 to this Court
immediately on or before 15/06/2011 and on receipt of the same,
Registry is directed to see that the Regular Civil Appeal No. 26/2010
is heard alongwith First Appeal No. 1199/2010. Rule is made absolute
accordingly.
4. Direct service is
permitted.
5. Registry is directed
to send the writ of this order to the learned Principal District
Judge, Bhavnagar on or before 11/05/2011.
2. Office
is directed to comply with the above order. S.O. to 20th
July, 2011.
(K.S.JHAVERI,J.)
pawan
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