CHAMPAKLAL NARSIDAS SHAH Vs. BABUBHAI VITHALDAS THAKKAR

JUDGEMENT

(1.) Rule. Learned Counsel Mr. Y. N. Ravani, waives the service of the Rule for the respondent No. 1. On the oral request coming from learned Counsel Mr. S. M. Shah for the petitioners, the respondent No. 2 is ordered to be transposed as the petitioner. Learned Counsel Mr. Shah undertakes to file the appearance on her behalf.

(2.) The substantial question which falls for my consideration is as to whether when the application to adopt the procedure under Order 8 Rule 10 C.P.C. is preferred by a party to the suit, can the Court straightway pass a decree, without affording a reasonable opportunity of being heard to the other side.

(3.) The question as indicated above arises in the following facts and circumstances. The original plaintiff, Vinthaldas Thakkar had instituted Regular Civil Suit No. 277 of 1984 before the learned Civil Judge (J.D.), Bhavnagar, against the defendant Champaklal Shah. The dispute between the parties was a limited one, namely, whether the defendant should be prevented from using the walls for placing the show cases to run his business. This suit came to be presented before the trial Court, on April 16, 1984. The right of the defendant to file the written statement came to be closed on June 29, 1984. The matter continued to linger on, but during the interregnum, the application at Exh. 5 filed by the plaintiff was heard and the necessary orders were confirmed in favour of the plaintiff. On December 1, 1987, the application to adopt the procedure under Order 8 Rule 10 C.P.C. came to be presented by the plaintiff. The copy of the above said application never came to be served either upon the learned Counsel or the defendant, in the proceedings. On the very same day, acting under the provisions contained under Order 8 Rule 10, the trial Court has passed a decree against the defendant. The matter was carried before the District Court, Bhavnagar, of course, unsuccessfully, by filing Regular Civil Appeal No. 6 of 1988. It is in view of these fact that the petitioners, who are the heirs and legal representatives of the original defendent have approached this Court, by way of the present Civil Revision Application.