Hitendra Ambaram Jariwala vs Chunilal Ambaram Jariwala

K.A. Puj, J.—The petitioner has filed this petition under Article 227 of the Constitution of India, praying for quashing and setting aside the order dated 30th July, 2005 passed by the learned Presiding Officer, Fast Track Court, Surat, allowing the appeal preferred by the respondent and thereby quashing and setting the order passed by the learned Joint Civil Judge (S.D.), Surat, dated 13.7.2001 below Exh.5 in Regular Civil Suit No. 74/2001.

This Court had issued rule on 5.4.2007. However, no stay was granted by the Court.

Heard Mr. N.K.Majmudar, learned advocate appearing for the petitioner and Ms. K.J.Brahmbhatt, learned advocate appearing for the respondent.

It is the case of the petitioner that the petitioner is the original defendant against whom one suit being Regular Civil Suit No. 74/2001 came to be filed b the respondent. In the said Suit, it was prayed that the Release-Deed dated 2.1.1999 executed in respect of property being City Survey Ward No. 3 paiki, Plot No. 7, admeasuring 284.36 sq.mts, be declared as without consideration, unimplemented and be quashed and set aside. In the said Suit, an application Exh.5 came to be filed by the respondent and it was prayed that during the pendency of the Suit, the petitioner / original defendant be restrained from selling, mortgaging and assigning the property in question. It was contended in the said application on behalf of the respondent / original plaintiff that since the Release-Deed dated 2.1.1999 has been forged by the petitioner / original defendant and the suit has been filed for declaration of the Release-Deed dated 2.1.1999 to be null and void, the petitioner / defendant be restrained from transferring the property in any manner till the final disposal of the suit.

The petitioner appeared through advocate and filed reply to the Suit as well as application Exh.5. In the reply filed by the petitioner, various documents were produced, namely, will and other documents to substantiate the say of the petitioner. It was denied in the said reply that the Release-Deed dated 2.1.1999 has been forged by the petitioner. It was also contended in the said reply that since the respondent had failed to obtain injunction in the suit instituted by him being Special Civil Suit No. 64/1988 seeking partition of the property in question, he has filed the present suit being Regular civil Suit No. 74/2001. It was also contended that the respondent / original plaintiff was given his share in the property in question in the year 1977. In 1981, other brothers had released their shares in favour of the present petitioner and the respondent / original plaintiff was also given his share in the property in question by making payment of dues. After hearing the parties, the learned Civil Judge (S.D.), Surat passed the order dated 3.7.2001 rejecting application Exh.5.

Being aggrieved by the said order, the respondent / original plaintiff preferred an appeal being Civil Misc. Appeal No. 62/2001 in the Court of learned District Judge, Surat. After hearing the parties, the said appeal was allowed by the learned Presiding Officer, Fast Track Court, Surat by his order dated 30.7.2005 and the order passed by the learned Civil Judge (S.D.), Surat below Exh.5 was set aside. It is this order which is challenged in the present petition.

Mr. N.K.Majmudar, learned advocate appearing for the petitioner, has submitted that the learned Civil Judge (S.D.) rejected the application Exh.5 after considering all the issues and documents. There was no infirmity in the said order and hence, the learned District Judge should not have disturbed the said order and should not have allowed the appeal filed by the respondent / original plaintiff.

Ms. K.J.Brahmbhatt, learned advocate appearing for the respondent, on the other hand, supported the order passed by the learned District Judge and submitted that sound reasons are given by the learned appellate Judge while disturbing the order passed by the learned Civil Judge (S.D.). She has further submitted that in view of the reasons given by the learned appellate Judge for allowing the appeal and on the facts and evidence on record, there is no reason to disturb the findings arrived at by the learned appellate Judge while exercising writ jurisdiction under Article 227 of the Constitution of India.

Having heard the learned advocates for the parties and having gone through the orders passed by the Courts below and in the light of the submissions as well as the documents produced, this Court is of the view that the learned District Judge has observed that if the release-deed was executed by fraud, then the same would have been contended in the earlier suit and consequential action would have been taken by the defendant. The learned District Judge has further observed that the age mentioned in the Deed appears to be false, signature appears to be bogus and the address is also incorrect. He has, therefore, come to the prima facie conclusion that the Release-Deed is not genuine. The learned Judge has also enumerated in his order certain facts stated in the written-statement. After considering all these aspects, the learned District Judge has allowed the appeal and granted the relief prayed for in the application Exh.5. There is no material before this Court to take a different view than the view taken by the learned District Judge. There is no merit or substance in the present petition. Hence, it deserves to be dismissed.

It is however made clear that the findings arrived at by the learned District Judge are of prima facie nature and it cannot be accepted as final one at the time of final disposal of the suit. The learned Civil Judge is, therefore, directed to dispose of the Suit as expeditiously as possible and while disposing of the Suit, he will not be influenced by the observations made by the learned District Judge as well as by this Court in this order dismissing the present petition. The learned Civil Judge will decide the Suit on its own merits and on the basis of the documents and material available on the record.

With the aforesaid observations and directions, this petition stands dismissed. Rule is discharged, without any order as to costs.