STATE OF GUJARAT Vs. MAHENDRAKUMAR PARSHOTTAMBHAI DESAI

JUDGEMENT

(1.) The applicants-appellants State of Gujarat and Collector Vadodara have filed above appeal against the judgment and decree dated 21.3.1994 passed by the Joint Civil Judge (S.D.), Vadodara in Special Civil Suit No.776/92 whereby the learned Judge dismissed the Special Civil Suit No.776/92 filed by the appellants for declaration and permanent injunction in respect of land bearing survey No.371 and 372B Tika No.27/15, 27/16, 27/17 Survey No.1/A/2 situated within the municipal limits of Vadodara Municipal Corporation admeasuring 128073 sq.mtr. of land i.e. 53 vighas and 17 vassas. The appeal was admitted way back on 13.5.1994. It seems that the appeal was earlier listed for final hearing on 22.6.2000 before other Division Bench wherein Civil Application No.4849 of 2000 was moved on the previous day i.e. on 22.6.2000 and it was placed before the concerned Bench on 22.6.2000 under the orders of the Hon'ble Chief Justice. The said application was filed under Order 41 Rule 27 of Civil Procedure Code seeking permission to adduce additional evidence in the First Appeal. However, the said Civil Application No.4849 of 2000 for production of additional evidence in the First Appeal was rejected by the concerned Division Bench by its order dated 22.6.2000 running into 8 typed pages. Special Leave to Appeal (Civil)..CC 4453 of 2001 filed against the aforesaid order passed by the Division Bench of this court before the Hon'ble Supreme Court was dismissed as withdrawn on 19.7.2001 by a brief order which reads as under :-

(2.) Under the order dated 17.1.2002 passed by the Hon'ble Chief Justice, the main appeal was specially assigned to this Bench because of exception of of M.H.Kadri, J.. Accordingly it was placed before us.

(3.) Senior advocates Shri K.G.Vakharia and Shri Sharad Vakil, appearing for the respondents raised preliminary objections in the appeal regarding maintainability of suit. And in alternative it was submitted that if the suit was maintainable then it must be held that it was time barred by the period of limitation and accordingly appeal be dismissed. Shri Trivedi, learned AAG tried to meet with the preliminary objections raised by the learned counsel for the respondents and also addressed us on merits of the case. Shri Trivedi tried to rely upon certain documents which were not produced on record before the trial court, therefore, it was objected by the learned counsel for the respondents that the said documents which were never produced on record or exhibited cannot be looked into by this court for the first time in the appeal. When this objection was raised by the learned Senior advocates for the respondents, realizing the difficulties in his way Shri Trivedi, learned AAG submitted above Civil Applications for production of the documents as additional evidence in this appeal on 6.2.02 and 12.2.02, respectively.