AMIT M PATHAKJI Vs. BHAVNABEN AMITKUMAR PATHAKJI

JUDGEMENT

(1.) The petitioners - original plaintiffs have filed this petition under Article-227 of the Constitution of India challenging the order passed by the learned Civil Judge (S.D.) Vadodara. below an application Ex.154 in Regular Civil Suit No.774 of 1987 on 3.1.2005, on the ground that the said order is absolutely illegal, unjust, improper, irrational, invalid and unreasonable. It is also challenged on the ground that the said order is passed with total non-application of mind and on misconception of facts and law. It is further challenged on the ground that it is passed in violation of and in utter disregard of the statutory provisions of the Code of Civil Procedure and against the judicial pronouncements.

(2.) Notice was issued by this Court on 22.2.2005 and ad-interim relief in terms of para-8(E) of the petition was granted and further proceedings of the Regular Civil Suit No.774 of 1987 were stayed. The Court has also permitted the petitioner to delete the name of petitioner No. 2 as he has expired. The Court further observed that when the witness attempted to submit the case other than specifically pleaded in the written statement and the cross-suit, the petitioner was compelled to produce and show one document dated 23.11.1987, addressed by the witness - Bhavnaben. The Court has also asked the petitioner to produce copy of the written statement as well as copy of the plaint of the cross-suit before the Court. The Court thereafter issued rule on 29.3.2005 and ad-interim relief granted earlier was allowed to continue.

(3.) It is the case of the petitioner that the petitioner No.2 purchased the property in question from his income and hence the said property became his self-acquired property. In the year 1987, the petitioner No.2 found it difficult to maintain the property in question and hence for its renovation the respondent went to Vadodara to look after the renovation work of the property in question. The respondent desired to give property in question on rent to some third party. However, the petitioners did not want to give this property on rent to any third party. The petitioner No.2 therefore gave a public notice in the year 1987 through an advertisement in the local newspaper making it clear that the owner of the property did not want to give it on rent and hence no one should enter into any negotiation with the respondent for that purpose. The petitioners apprehended that the respondent might transfer the property in their absence and hence the. petitioners instituted a suit before the Civil Court (J.D.) which ultimately came to be transferred to the Civil Court (S.D.) and came to be registered as Regular Civil Suit No.774 of 1987.