MAHIPATSINH HIMATSINH JADEJA Vs. PANNALAL KHEMCHAND MODI

JUDGEMENT

(1.) This group of Appeals From Order under Order 43 Rule 1(r) of the C. P. Code are preferred by original defendant No. 1-Mahipatsinh Himatsinh Jadeja in the first four Appeals and Dilip Jayantilal Modi in the last Appeal respectively, against common judgment and order dated 20th June, 1995 passed by learned City Civil Judge below Exhs. 5, 21, 34 and 42 filed in Civil Suit No. 941 of 1991 and 1250 of 1991. The first four Appeals along with C. A. Nos. 2731 to 2734 and 3954 of 1995 were placed for preliminary admissional hearing before the learned single Judge of this Court on 27th June, 1995, who was pleased to admit the said four Appeals and on Civil Applications for stay, ad interim relief as prayed for was granted and this Court admitted A. O. No. 415 of 1995 and the learned Counsel for the respondents waived service of admission. The matters were thereafter notified before the very learned single Judge for hearing of ad interim relief in the month of August and September, 1995 and thereafter the same were notified before this Court and since hearing and granting of and/or refusing of interim relief was likely to consume time equivalent to hearing of the group of appeals, with the consent of the learned Advocates appearing for the parties and the parties respectively, the said group was fixed for final hearing on 13th October, 1995. On that very day, Mr. M. B. Gandhi, learned Advocate appearing for the appellant in A. O. No. 415 of 1995 also mentioned that he has also filed Appeal From Order challenging the very common order and that the same should be circulated and heard with the aforesaid four Appeals From Order. Accordingly, on 13th October, 1995, the said Appeal From Order was also ordered to be admitted and the respective Advocates appearing for the respondents waived notice of admission and with the consent of the learned Advocates appearing for the parties, the said Appeal From Order was also heard along with this group of Appeals.

(2.) All the Advocates appearing for the parties agreed that since common judgment and order passed by the learned City Civil Court Judge below four exhibits in the aforesaid two suits are under challenge and since on common facts, common questions of law arise for consideration of this Court, the Appeals should be heard together and decided by common judgment and order and accordingly the hearing of the Appeals commenced on 13th October, 1995. It may be stated that at the request of the learned Advocates appearing for the parties, for their convenience, the final hearing was intercepted and adjourned from time to time and for a longer period on one occasion at the request of Mr. K. V. Shelat for his personal reasons. The hearing of the said five Appeals concluded somewhere in the month of April 1996 and the judgment was kept C.A.V. and by this common judgment and order, these five Appeals are being decided and disposed of.

(3.) The common question of law which is very seriously raised and agitated by all the learned Counsels appearing for the parties revolved round interpretation of S.44 of the Transfer of Property Act, 1882 and more particularly second para of said S.44 and its applicability to the fact situation obtaining before this Court in this proceeding. It must be stated at the outset that respondent No. 1 (original plaintiff) and respondent Nos. 3 and 4 (original defendant Nos. 3 and 4) support the common judgment and order passed by the learned City Civil Court Judge based on the decision of the Apex Court in the case of Dorab Cawasji Warden v. Coomi Sorab Warden, reported in AIR 1990 SC 867 deciding the intendment, scope, nature and extent of applicability of second para of S.44 of the Transfer of Property Act. The appellant (original defendant No. 1) and Dilip Jayantilal Modi (original defendant No. 2) have challenged the order mainly on the ground that in the fact situation obtaining before this Court, the aforesaid decision of the Apex Court in the case of Dorab Cawasji Warden (supra) has no application whatsoever and that none of the ingredients of second para of S.44 are satisfied in these Appeals and hence the common order passed by the trial Court deserves to be quashed and set aside more particularly the order passed below Exhibit 42. It is that part of the order which is passed below Exhibit 42, which is in the mandatory nature which has aggrieved the appellant Mahipatsinh Himatsinh Jadeja the most while the challenge to the order below Exhibits 5, 21 and 34 is half-hearted or to be more precise, not very vehemently and seriously challenged and agitated before this Court. This Court must at once add that it cannot be stated that the challenge was given up. But, no serious arguments were advanced against order passed below Exhibits 5, 21 and 34.