BHASKARBHAI LAKSHMISHANKER MEHTA Vs. PRAVINBHAI MOHANBHAI ZALAVADIYA

JUDGEMENT

(1.) BY this application under section 115 of the Code of Civil Procedure, 1908 (the Code), the applicant has challenged the order dated 20th July, 2011 passed by the Deputy Collector, Rajkot in Revision Case No.1/2011 as well as order dated 30th April, 2011 passed by the Mamlatdar, Padadhari, district Rajkot in Mamlatdar's Court's Case No.4/2009.

(2.) THE facts of the case as appearing in the memorandum of the application are that one Maganbhai Nanjibhai Zalavadiya filed an application before the Mamlatdar, Padadhari seeking directions against the applicant and other defendants not to restrain the original plaintiffs from passing through the land situated on Survey No.135 paiki 2, village Targhadi, taluka Padadhari, district Rajkot which land is of the ownership of the applicant. By an order dated 16th October, 2009, the Mamlatdar granted an ex parte injunction and directed the applicants and others not to obstruct the plaintiffs from passing through the disputed way ( Gaada Marg ) till the final disposal of the case and further directed them to maintain status quo. The applicant alongwith other defendants filed their detailed reply to the aforesaid suit contending that the disputed gaada marg never existed on the land of the applicant. In the said case, the original defendants, including the applicant and the original plaintiff Maganbhai Zalavadiya, filed a settlement purshis before the Mamlatdar in the month of August, 2010 wherein it was inter alia stated that there does not exist any disputed way (gaada marg) on the land of the applicant. The original plaintiff Maganbhai Zalavadiya also filed an affidavit on oath for withdrawing the case, inter alia stating that the disputed way does not pass through the lands of the applicant and that the original plaintiff Maganbhai Zalavadiya was under a wrong impression as regards the same. The applicant and the other defendants filed an application on 19th October, 2010 alongwith the aforesaid affidavit requesting the Mamlatdar that since the original plaintiff Maganbhai Zalavadiya has filed the aforesaid affidavit for withdrawal, the case may be disposed of. Thereafter on 2nd November, 2010, twenty one persons including the respondents No.1 to 19 herein filed an application before the Mamlatdar raising certain objections against the affidavit filed by Maganbhai Zalavadiya and stated that they are desirous to proceed with the case. On notices being issued by the Mamlatdar, two of the aforesaid persons namely one Shri Viralbhai Laljibhai Busa and Hira Ranchhodbhai vide communication dated 12th November, 2010 and 15th November, 2010 stated that they were not aware about the aforesaid suit before the Mamlatdar and that they are not even aware about how they were joined as plaintiffs in the case and that do not have any dispute with the applicant and other defendants. On 19th November, 2010, the applicant and other defendants made an application stating that the aforesaid case was filed by persons who do not even happen to be the neighbours of the applicant nor do they even have any land nearby the land of the applicant and that the said persons are wrongly added as plaintiffs, and accordingly, requested the Mamlatdar to make verification of the said persons in presence of the applicant. Pursuant to the said application, the Mamlatdar did not call any of the aforesaid persons for their verification.

(3.) MR . Shakti Jadeja, learned advocate for the applicant vehemently assailed the impugned orders, submitting that the same are in breach of the provisions of the Mamlatdars' Courts Act, 1906 (the Act) as well as in breach of the principles of natural justice. Inviting attention to the provisions of section 7 of the Act, it was pointed out that a plaint presented before the Mamlatdar under the said provision is required to contain the details as enumerated thereunder. Emphasis was laid on clause (d) of section 7 of the Act, namely, the date on which the cause of action arose . Referring to the plaint, it was pointed out that the plaint is totally silent as regards the date on which the cause of action arose.