LAWS(GJH)-2009-8-141

RAMNIKBHAI B PATEL Vs. JAYSINH RANSINH KURVAHA

Decided On August 27, 2009
RAMNIKBHAI B PATEL Appellant
V/S
JAYSINH RANSINH KURVAHA Respondents

JUDGEMENT

(1.) PRESENT Appeal from Order has been preferred by the appellants original defendants No. 3 and 4 challenging the impugned order dated 29. 9. 2008 passed by the learned Chamber Judge, City Civil Court, Ahmedabad passed below Notice of Motion in Civil Suit No. 1855 of 2007, by which while allowing the Notice of Motion taken out by the respondent Nos. 1 and 2 herein original plaintiffs, the learned Judge has restrained the appellants original defendants No. 3 and 4 and other defendants from making any kind of construction upon the land admeasuring 66 x 31 feet known as "common plot" of Vishwakarma Avenues till final disposal suit.

(2.) THIS Court has issued a notice upon the respondents herein original plaintiffs on 21. 10. 2008 making it returnable on 19. 11. 2008. Thereafter, as the respondents original plaintiffs were not served at the request of learned advocate for the appellants, this Court passed an order directing the Registry to issue fresh notice making it returnable on 13th January, 2009. and Direct service was permitted and the original plaintiffs came to be served. As such, when on 13. 1. 2009 the Appeal from Order was taken up for further hearing Ms. Kiran Pandey, learned advocate appeared and submitted that she has instructions to appear on behalf of some of the respondents and she prayed for time and, therefore, Appeal from Order came to be adjourned. However, thereafter Ms. Kiran Pandey, learned Advocate has not appeared in the matter and has not filed any appearance. Though served, nobody appears on behalf of the original plaintiffs. Appeal from Order was adjourned to 30. 6. 2009, however it is reported that as the papers of the Appeal from Order were misplaced, the same was not notified on board either on 30. 6. 2009 and / or thereafter. Thereafter, the papers were found out from the other record and that too without even appeal memo and, therefore, the Registry placed the Appeal from Order on board for orders. Learned Advocate for the appellants thereafter submitted the Xerox copy of the appeal memo etc. That thereafter, this Court passed the following order on 21. 08. 2009. Though, served nobody appears on behalf of the respondent, hence Admit. In the facts and circumstances of the case, fixed for final hearing on 27. 08. 2009. To be notified in separate board. If, the concerned respondent do not appear on the next date of hearing either personally or through Advocate, it shall be presumed that the respondents have nothing to say in the matter and an appropriate order shall be passed. Direct service is permitted today. In spite of the above and though the original plaintiffs are served again, nobody has remained present on behalf of the original plaintiffs. Therefore, considering earlier order passed by this Court on 21. 08. 2009 recorded hereinabove as nobody has appeared on behalf of the original plaintiffs, it is presumed that the respondents original plaintiffs have nothing to say in the matter.

(3.) SHRI Jigar Raval, learned advocate appearing on behalf of the appellants original defendants No. 3 and 4 has submitted that as such the disputed plot in question is owned by the appellants and it is not the "common plot" of Vishwakarma Avenues as alleged by the original plaintiffs. It is submitted that even without prejudice to the rights and contentions of the appellants, the appellants are making the statement at the bar and it is so stated in Ground (n) of the memo of Appeal from Order, the appellants do not want to construct any building on the suit land at present and in fact they wanted to use the suit land as parking place for the children and staff members of the school. Therefore, it is requested to pass appropriate order by further requesting to make suitable observation that any observations made by the learned trial Court while deciding the Notice of Motion treating the suit land as "common plot" of Vishwakarma Avenues is tentative while deciding the Notice of Motion only. The learned trial Court to decide and dispose of the suit in accordance with law and on merits and on the basis of the evidence led and without in any way being influenced by the observations made in the impugned order.