AI Structured Summary
Not yet generated for this judgment
Judgment
Paresh Upadhyay, J
This appeal is filed by the original defendants and is directed against the judgment and decree passed by the Principal Civil Judge, Padhadhri, dated
19.06.2012 in Regular Civil Suit No.168 of 2010 (Old Number â€" Regular Civil Suit No.537 of 2008), which is confirmed by the 2nd Additional
District Judge, Rajkot, vide judgment and decree dated 06.11.2017 in Regular Civil Appeal No.61 of 2013. The suit was for removal of encroachment.
2.1 Mr.Hemal Shah, learned advocate for the appellants has submitted that the Trial Court fell in error by not appreciating the documents which were
placed on record, as marked documents and further that appropriate opportunity ought to have been given to the appellants â€" original defendants. It
is submitted that non-consideration of the material has resulted into miscarriage of justice. It is submitted that, even before the Appellate Court below,
request was made that, the matter be remanded back to the Trial Court for fresh adjudication and before this Court also, request is made to allow the
appellants to put their case before the Trial Court. Civil Application is also filed for placing additional documents on record which were not exhibited
before the Trial Court.
2.2 Without prejudice to the above, Mr.Shah, learned advocate for the appellants has submitted that, substantial questions of law arise for
consideration by this Court which are indicated in the memo of appeal. Learned advocate for the appellants has taken this Court extensively through
the paper book, which is tendered to the Court, which also contains some documents, which are not exhibited documents.
2.3 Learned advocate for the appellants has relied on the decision of this Court (Coram : Hon’ble Mr.Justice J.B.Pardiwala) recorded on Second
Appeal No.146 of 2018. It is submitted that, this appeal be entertained.
On the other hand, Ms.Trusha Patel, learned advocate for the respondent â€" original plaintiff has vehemently contested this appeal. It is submitted
by her that the documents which were not exhibited before the Trial Court, and for which no attempt was made before the Trial Court to take on
record, can not be looked into by this Court, to decide the merits of this appeal. It is submitted that, the opportunity which was not availed by the
defendants, can not be given at this belated stage, more particularly, when the plaintiff is decree holder and execution of which is obstructed by the
present appellants - judgment debtor since long. It is further submitted that, neither the Trial Court nor the Appellate Court below has committed any
error, in appreciating the material on record and no question of law muchless any substantial question of law arises for consideration of this Court and
therefore this appeal be dismissed. Ms.Patel, learned advocate for the respondent has relied on the following authorities in support of her submissions.
(1) (2012) 8 SCC 148â€"Union of India Vs.Ibrahim Uddin.
(2) (2007) 14 SCC 257 â€" K.R. Mohan Reddy vs. Net Work INC.
(3) (2015) 17 SCC 713 â€" A. Andisamy Chettiar VS. Subburaj Chettiar.
(4) Decision of Madras High Court dated 04.04.2014 recorded on C.M.A. No.1424 of 2012.
(5) 2006 (9) SCC 772 â€" State of Gujarat Vs. Mahendrakumar Parshottambhai Desai.
(6) AIR 1976 Gujarat 140 â€" Chudasma Jasubha Manubha Vs. Chudasma Raisinh Bapubha.
(7) AIR 2003 Gujarat 3 â€" State of Gujarat Vs. Mahendrakumar Parshottambhai.
(8) 1997 (2) G.L.H. 506 â€" John Mithalal Desai Vs. Dineshbhai K. Vora.
(9) 2015 (11) SCC 782 â€" Lisamma Antony Vs. Karthiyayani.
(10) 2016 (10) SCC 315 â€" Syeda Rahimunnisa Vs. Malan Bi.
It is noted that both the learned advocates have extensively taken this Court through the material on record, including the dates of the proceedings
before the Appellate Court below and the Executing Court, and the date and contents of the order passed by the Executing Court for removal of
encroachment.
Having heard learned advocates for the respective parties and having considered the material on record, this Court finds as under.
5.1 The Trial Court had, on the basis of the pleadings before it, framed various issues, and on the basis of the evidence led before it, answered them in
favour of the plaintiff â€" present respondent.
5.2 The Appellate Court below has also, after framing the points for determination, found that the Trial Court has not committed any error.
5.3 This Court finds that none of the Courts below have committed any error by arriving at the conclusion that the suit was required to be decreed.
This Court finds that, no question of law, muchless any substantial question of law arises in this case worth being gone into by this Court in exercise of
appellate jurisdiction under Section 100 of Code of Civil Procedure, 1908. The findings recorded by the Courts below do not suffer from any
perversity. There is no non-reading or misreading of evidence on record. This Second Appeal, therefore, needs to be dismissed.
5.4 The authority relied by the learned advocate for the appellants would not take the case of the appellants any further in the facts of this case.
So far the alternate argument of remanding the matter to the Trial Court is concerned, it is noted that the opportunity was already given by the Trial
Court, which the defendants did not avail and therefore remanding the matter at this stage would only nullify the decree which the Trial Court has
passed and the Appellate Court has confirmed.
In view of the above, the following order is passed.
7.1 This Second Appeal is dismissed.
7.2 The application for production of additional documents is rejected.
7.3 Civil applications for direction and stay would not survive.
Both are disposed of accordingly.
At this stage, learned advocate for the appellants has requested to stay this order for some time. Considering the totality, this request is rejected. It
is noted that, even at the time of issuance of notice, the judgment and decree passed by the Courts below were not stayed by this Court. Only after
issuance of notice, on the grievance made on behalf the present appellants, ex-parte interim protection against the demolition was granted on
19.02.2018, which after bipartite hearing is vacated by this Court vide order dated 28.01.2019.