PATEL KANTIBHAI JETHABHAI Vs. PATEL MANILAL BHIKHABHAI

JUDGEMENT

(1.) The original petitioners, Patel Kantibhai Jethabhai and three others have filed Special Civil Application No.10749 of 2000 before this Court under Article 226 of the Constitution of India and challenged the impugned order dated 27.7.2000 passed by the Mamlatdar, Idar, respondent no.2 herein in Mamlatdar Court Act Case No.30 of 1998 (Annexure 'D' to the main petition). It was dismissed by the learned Single Judge of this Court (Coram: M.S. Shah, J.) on 11.10.2000 on the ground that the decision of the Mamlatdar does not have any finality and the civil court can decide the controversy between the parties on merits of the case without being bound by the decision of the Mamlatdar. It was contended by learned counsel Shri Parekh for the petitioners before the learned Single Judge that they had already lost injunction application, exhibit 5 filed before the Civil Court in Civil Suit No.24 of 1998, against which Misc. Civil Appeal No.46 of 1999 was filed before the District Court, Himatnagar, which was pending. Therefore, the learned Single Judge thought it fit to issue directions to the District Court, Himatnagar to hear and decide the said Misc. Civil Appeal No.46 of 1999 as expeditiously as possible, preferably within two months from the date of receipt of the writ or certified copy of the order whichever was earlier while disposing of the petition. The learned Single Judge also made it clear that it would be open to the petitioners to pray for appropriate relief including appropriate interim relief before the District Court. This order dated 11.10.2000 passed by the learned Single Judge dismissing Special Civil Application No.10749 of 2000 is challenged in this appeal, which was straightway admitted by the Division Bench of this Court (Coram: J.M. Panchal & A.M. Kapadia, JJ.) on 15.11.2000 and on Civil Application the appellant-petitioners are enjoying interim relief of status quo.

(2.) Mr.Parekh, learned counsel for the appellant tried to submit on merits in this appeal that in this case on earlier occasion, this Court (Coram: Kundan Singh, J.) has passed an order dated 26th July 1999 in Special Civil Application No.407 of 1999 directing the Mamlatdar to first decide the preliminary issue as to whether the Mamlatdar's Court has jurisdiction or not. Instead of that the Mamlatdar decided the entire matter on merits. Therefore, the impugned order passed by the Mamlatdar is bad. It is true that the learned Single Judge of this Court directed the Mamlatdar to decide the preliminary issue, but that does not mean that the Mamlatdar was precluded from deciding the matter finally. It is on the contrary good that the learned Mamlatdar decided the entire matter on merits. We find from the impugned order passed by the Mamlatdar that before the Mamlatdar the appellant-petitioners have conceded that the matter be decided on merits. Therefore, on merits also we find no substance in the Appeal.

(3.) Learned counsel Shri Sheetal Patel appearing for respondent no.1 submitted that the appellant-petitioners had filed the writ petition, i.e. Special Civil Application No.10749 of 2000 before this Court on 9.10.2000. In para 11 of the petition it is stated that the petitioners have no other alternative, adequate and efficacious remedy available except by way of writ petition though the impugned order dated 27.7.2000 passed by the Mamlatdar, Idar was appealable and the appeal against the said order was maintainable before the Deputy Collector. In fact after dismissal of the writ petition, Special Civil Application No.10749 of 2000 by the learned Single Judge of this Court on 11.10.2000, the appellant-petitioners filed Appeal/ Revision No.5 of 2000 before the Court of Deputy Collector, Idar wherein notice was issued on 23.11.2000 and hearing of the same was fixed on 14.12.2000. He has produced a copy of the memo of appeal as well as order of notice issued by the Deputy Collector in the said appeal.