LAWS(GJH)-2008-12-108

ARVIND FASHION LTD Vs. MAHIPATSINH LAXMANSINH VAGHELA

Decided On December 04, 2008
ARVIND FASHION LTD Appellant
V/S
MAHIPATSINH LAXMANSINH VAGHELA Respondents

JUDGEMENT

(1.) RULE. Mr. K. V. Shelat, learned Advocate waives service of notice of rule on behalf of the respondent Nos. 1 and 2 herein original plaintiffs and defendant of Regular Civil Suit No. 406 of 2008 in the Court of learned Principal Civil Judge, Sanand. With the consent of the learned Advocates appearing on behalf of the respective parties, the petition is taken up for final hearing today.

(2.) BY way of this petition under Article 227 of the Constitution of India, the petitioner - (original 3rd party) has initially prayed for an appropriate Writ, direction and/or order quashing and setting aside the order dated 23. 10. 2008 passed by the learned Principal Civil Judge, Sanand passed below Exh. 19 in Regular Civil Suit No. 406 of 2008 whereby the learned trial Court has dismissed the application submitted by the petitioner - 3rd party to be joined as party defendant in Regular Civil Suit No. 406 of 2008. By way of amendment which is granted today, the petitioner has also prayed for an appropriate writ, direction order quashing and setting aside the decree dated 23. 10. 2008 passed by the learned Principal Civil Judge, Sanand below Exh. 25 and decree drawn on 04. 11. 2008 in the aforesaid Regular Civil Suit No. 406 of 2008.

(3.) FACTS leading to present Special Civil Application in nutshell and chronological events are as under : respondent No. 2 herein original plaintiff had instituted Regular Civil Suit No. 406 of 2008 in the Court of learned Principal Civil Judge, Sanand on 10. 10. 2008 for permanent injunction restraining respondent No. 1 original defendant from interfering with the possession of the suit property as well as restraining from transferring, alienating and/or dealing with the land in question in any manner whatsoever. In the said suit, application Exh. 6 was submitted by the original plaintiff for temporary injunction claiming temporary injunction on the same terms. That the learned Principal Civil Judge, Sanand issued notice upon the defendant making it returnable on 15. 10. 2008. It appears that the learned trial Court passed the order below Exh. 8 to appoint Court Commissioner and prepare Panchnama on or before 15. 10. 2008. The defendant appeared before the learned trial Court having served with the summons of the notice below Exh. 5 on 15. 10. 2008 and virtually admitted the suit. It appears that on 18. 10. 2008 the plaintiff as well the defendant submitted consent terms / purshis and the original defendant agreed that consent decree be passed in favour of the original plaintiff as the parties have settled the dispute amicably. (said application Exh. 18 alleged to have been submitted on 18. 10. 2008, prima-facie seems to have been submitted subsequently which will be dealt with herein after ). It appears that the applicant herein who claims to be in possession of the suit land in question, who is owner / purchaser of the land in question, having come to know about the aforesaid collusion between the plaintiff and defendant- respondent herein immediately submitted application Exh. 19 permitting him to be joined as defendant in the said suit submitting that the suit has been filed collusive between the plaintiff and the defendant and infact the applicant is absolute owner and possession of the suit land in question. Said application was submitted on 20. 10. 2008. The learned Principal Civil Judge, Sanand passed order 'fixed for hearing. Notice to other side'. That the said application came to be dismissed by the learned trial Court vide impugned order dated 23. 10. 2008. (It is required to be noted at this stage that even when the learned trial Court passed the order on 20. 10. 2008 on the application Exh. 19 issuing notice upon the other side and even at the time of hearing of application Exh. 19 and deciding the same on 23. 10. 2008, there is no reference to consent purshis dated 18. 10. 2008 which is alleged to have been submitted on 18. 10. 2008 at Exh. 18 ). It appears that on the very day i. e. 23. 10. 2008 the applicant - 3rd party requested to stay further proceedings of the aforesaid Regular Civil Suit No. 406 of 2008 submitting that against the order dated 23. 10. 2008 below Exh. 19 they want to approach Hon'ble High Court and the learned trial Court dismissed the said application. It appears from the Rojkam that on 23. 10. 2008 suit was adjourned to 05. 11. 2008. Being aggrieved and dissatisfied with the order passed by the learned Principal Civil Judge, Sanand dated 23. 10. 2008 passed below Exh. 19, the petitioner herein - 3rd party preferred the present Special Civil Application before this Court on 25. 10. 2008 which was circulated in the Diwali Vacation on 27. 10. 2008. The learned Single Judge of this Court issued notice in the present petition and granted stay of further proceedings of Regular Civil Suit No. 406 of 2008. It appears that there was Diwali Vacation in the trial Court and the Court was reopening on 04. 11. 2008. Therefore, Writ of this Court in the present Special Civil Application and the interim order staying further proceedings of Regular Civil Suit No. 406 of 2008 was served upon the learned Judge in the Court on 04. 11. 2008 at 11. 20 a. m. It is the contention on behalf of the petitioner that from the very beginning collusive suit was filed and within five days written statement was submitted admitting the suit by the defendant. Having served with the stay of further proceedings of Regular Civil Suit No. 406 of 2008, therefore, suit which was adjourned to 05. 11. 2008 it is alleged to have been prepared and dated 05. 11. 2008 in Rojkam has been scored off and the learned Judge passed the order below Exh. 18 dated 18. 10. 2008 on 23. 10. 2008 itself at 7. 45 p. m. (evening) and passed the order to dispose of the suit in terms of the consent purshis and directed to prepare decree and the learned Judge passed the decree on 04. 11. 2008 alleged to have been passed at 11. 00 a. m. (as admittedly Writ of this Court staying of further proceedings of the Suit has been served on 11. 20 a. m. on 04. 11. 2008 ). Having come to about the consent purshis disposing of the suit in terms of consent terms and drawing of decree on 04. 11. 2008, the petitioner preferred Civil Application No. 12861 of 2008 before this Court for amendment challenging the decree and order dated 23. 10. 2008 pointing out how decree has been obtained. Aforesaid Civil Application came up for hearing before this Court on 13. 11. 2008 and this Court granted Ad-interim relief in terms of para 8 (B) staying the implementation, execution and operation of the decree passed in Regular Civil Suit No. 406 of 2008 and restrained the respondent Nos. 1 and 2 to deal with the land bearing Survey No. 189 (Hissa No. 1 Paiki) in any manner whatsoever on the basis of the said decree and not to interfere with the possession of the petitioner on the disputed land. This Court further passed an order directing the Registry to call for entire Record and Proceedings of the aforesaid Regular Civil Suit No. 406 of 2008 from the Court of learned Principal Civil Judge, Sanand and Registry was directed to see that said record was sealed by the learned Principal District Judge, Ahmedabad (Rural) forthwith. This Court has received the Record and Proceedings of Regular Civil Suit No. 406 of 2008.