AMITBHAI HARSHADBHAI PATEL Vs. GHANSHYAMBHAI PRABHUDAS PATEL

JUDGEMENT

(1.) The petitioner has filed the present petition under Article 226 of the Constitution challenging the order dated 02.05.1998 passed by the learned Civil Judge (S.D.), Vadodara in Review Application No. 43 of 1997 along with the application at exhibit 5 preferred in such review application by the petitioner. The learned Judge has rejected the review application with application at exhibit 5 by the impugned order. As stated in the petition, respondent No. 1 herein preferred Special Civil Suit No. 39 of 1997 in the Court of learned Civil Judge (S.D.) at Vadodara against respondent Nos. 2 to 16 for specific performance of the contract pertaining to the agriculture land bearing block No. 11 situated in Village : Ampad, Taluka-District: Vadodara (to be referred to as "the suit land"). It is stated that such suit was filed in collusion wherein the respondents submitted consent terms on 28.01.1997 and got the decree based on consent terms for specific performance of the contract. It is further the case of the petitioner that the petitioner had filed Special Civil Suit No. 887 of 1996 against respondent No. 2 to 16 wherein respondent No. 1 was later on added as party and in such suit, the petitioner preferred application at exhibit 5 which was rejected by the Court below against which the petitioner preferred Appeal from Order No. 316 of 1996 before this Court and in the order passed in Appeal from Order, this Court has observed that the decree passed in the suit preferred by respondent No. 1 against respondent Nos. 2 to 16 appeared to be concocted. The petitioner, therefore, preferred Review Application No. 43 of 1997 seeking review of the judgment and decree passed in Special Civil Suit No. 39 of 1997. Such application as stated above is rejected by the impugned order. As stated in the petition, the petitioner had earlier challenged the impugned order by filing Civil Revision Application No. 922 of 1998 before this Court, however, the revision application was disposed of, as not maintainable, by order dated 16.04.2009.

(2.) Learned advocate Mr.Patel for the petitioner submitted that the suit filed by respondent No. 1 against respondent Nos. 2 to 16 was collusive suit to defeat the right of the petitioner which the petitioner acquired by agreement pertaining to the suit land. He submitted that within short time after filing the suit, the respondents got the consent decree and such consent decree was fraud played upon the petitioner as sole aim in filing the suit, in submitting the consent terms in the suit and in getting the decree passed on consent terms was to defeat the right of the petitioner pertaining to the suit land. Mr.Patel submitted that when the right of the petitioner was defeated by the consent decree passed in the suit preferred by respondent No. 1, the petitioner though was not party to the suit was very much entitled to seek review of the judgment and decree passed in the suit. Mr.Patel submitted that the learned Judge committed serious error in rejecting the review application of the petitioner on the ground that no case was made out for review or recall of the judgment and order passed in Special Civil Suit No. 39 of 1997. Mr.Patel submitted that when this Court while deciding the Appeal from Order preferred by the petitioner has clearly observed that the decree obtained was concocted, the learned Judge was required to allow the review application preferred by the petitioner and to review/recall the judgment and decree passed in the suit filed by respondent No. 1.

(3.) Though served with the rule, the respondents have not appeared.