Important Decisions 2011-2018 Civil PDF

-:: IMPORTANTANT DECISIONS ::-
CIVIL
[2011 To 2018]
[1] 2018 (1) GLR (SC) 103 [Joining of Party-At any Stage]
PANKAJBHAI RAMESHBHAI ZALAVADIYA V. JETHABHAI

KALABHAI ZALAVADIYA (DECD.) THROUGH L.RS. AND ORS.
PARA-10: Order 1, Rule 10 of the C.P.C. enables the Court to add any person as
a party at any stage of the proceedings, if the person whose presence in Court is
necessary in order to enable the Court to effectively and completely adjudicate
upon and settle all the questions involved in the suit. Order 1, Rule 10 of the C.P.C.
empowers the Court to substitute a party in the suit who is a wrong person with a
right person. If the Court is satisfied that the suit has been instituted through a bona
fide mistake, and also that it is necessary for the determination of the real matter in
controversy to substitute a party in the suit, it may direct it to be done. When the
Court finds that in the absence of the persons sought to be impleaded as a party to
the suit, the controversy raised in the suit cannot be effectively and completely
settled, the Court would do justice by impleading such persons. Order 1, Rule
10(2) of the C.P.C. gives wide discretion to the Court to deal with such a situation
which may result in prejudicing the interests of the affected party if not impleaded
in the suit.
[2] 2018 (1) GLR 132 [Charity Commissioner’s Powers u/s 41]
KANTILAL MANIBHAI PATEL V. RANCHHODBHAI MORARBHAI

PATEL (DECD). THROUGH HEIRS AND ORS.
PARA-7 & 8: The powers under Section 41 of the Public Trust Act are
essentially designed and are intended for regulating the administration of the Trust,
and are meant to exercise control in the administrative sphere. Where the
functioning of the Trust falters or it travels beyond trust-deed, application under
Sec. 41 of the Trust Act would lie. While exercising powers under Sec. 41, the
Charity Commissioner is required to act within such bounds, and cannot enter into
the adjudicatory arena. The Charity Commissioner would not be justified in
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P.R.Patel, Retired Principal District Judge
entering into the realm of adjudication in the name of securing better
administration of the Trust. He cannot proceed to decide a lis under the guise of
exercising administrative control of the Trust. Whether the vendor had become
owner under the Gujarat Devasthan Inams Abolition Act, whether the property was
trust property or of the ownership of the seller etc., were the issues related to and
invoking civil rights of the parties. The issues and aspects of such nature may be
subjected to civil or other remedies, but they cannot be brought within the corners
of Sec. 41A of the Trust Act.
[3] 2018 (1) GLR (SC) 204 [Divorce by Consent u/s 13B(2)]
AMARDEEP SINGH V. HARVEEN KAUR
PARA-21: Where the Court dealing with a matter is satisfied that a case is made
out to waive the statutory period under Sec. 13B(2), it can do so after considering
the following :
(i) the statutory period of six months specified in Sec. 13B(2), in addition
to the statutory period of one year under Sec. 13B(1) of separation of
parties is already over before the first motion itself;
(ii) all efforts for mediation/conciliation including efforts in terms of
Order 32A, Rule 3 C.P.C./Sec. 23(2) of the Act/Sec. 9 of the Family
Courts Act, 1984 to reunite the parties have failed and there is no
likelihood of success in that direction by any further efforts;
(iii) the parties have genuinely settled their differences including alimony,
custody of child or any other pending issues between the parties;
(iv) the waiting period will only prolong their agony. (Para 18)Since the
Court is of the view that the period mentioned in Sec. 13B(2) is not
mandatory, but directory, it will be open to the Court to exercise its
discretion in the facts and circumstances of each case where there is
no possibility of parties resuming cohabitation and there are chances
of alternative rehabilitation.
[4] 2018 (1) GLR 505 [Electricity Connection – Occupancy]
KANUBHAI JETHABHAI ROHIT AND ORS. V. STATE OF GUJARAT

AND ORS.
PARA-14: It is not in dispute that the petitioners are having occupation of the
land in question. Even if the possession is doubted, the legality and propriety of
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such possession or occupancy of the premises is a matter to be decided in
appropriate forum, and merely to say that the tenancy proceedings are pending and
the land is said to have been vested with the Government, it is again a subject-
matter of adjudication before the authority. It could not be conclusively assumed
by respondent Nos. 2 and 3 that the land belongs to the Government and no supply
of electricity could be given. Therefore, any such submissions are de hors the
statutory provisions including the Electricity Supply Code.
[5] 2017 (1) GLR (FB) 1 [Power of Attorney – Stamp Duty]
ASSET RECONSTRUCTION CO. (INDIA) LTD. V. CHIEF

CONTROLLING REVENUE AUTHO RITY
PARA-6: In view of the contents of the power of attorney in question and the
rights conferred in favour of the power of attorney holder, under the power of
attorney, such power of attorney is liable to be and/or subjected to the stamp duty
under Art. 45(f) of the Stamp Act.
[6] 2017 (1) GLR (SC) 51 [Decree for Eviction – Arrears/Requirement]
KALIDAS CHUNILAL PATEL (DEAD) BY L.RS. V. SAVITABEN AND
ORS.
PARA-28: In the light of findings recorded by the first Appellate Court that the
defendants are defaulters in paying monthly rent and that the plaintiff's need for
residence in the suit house is bona fide and that the defendant was not able to prove
greater hardship if the eviction decree is passed against him, the decree for
eviction, arrears of rent and mesne profit was rightly passed against the defendant
in relation to suit house. Since these findings were rendered in conformity with the
requirements of the Act, there is no good ground to set aside these findings.
[7] 2017 (1) GLR 142 [MACP- Non-renewal of Driving Licence – Effect]
NATIONAL INSURANCE CO. LTD. V. CHANDRAKANTBHAI

KESHVJIBHAI KARIA AND ORS.
PARA-7 & 8: When in case of non-renewal of licence in time when fine is

recovered, it makes clear that it does not confirm that for that period, person is
prohibited to drive the vehicle or he does not have any authority to drive vehicle.
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Mere absence or invalid driving licence or even disqualification of a driver to drive
at the relevant time are not themselves defence available to the insurer against
insured or 3rd party but disqualification of a driver under Sec. 149(2)(A)(II) of the
Motor Vehicles Act has to prove, and therefore, if no evidence is lead to establish
absence of licence or disqualification for holding the same, Insurance Company
cannot be exonerated from making payment to the claimants.
[8] 2017 (1) GLR 273 [Filing of Civil Suit – Gross Delay – Effect]
EMRALD CO-OPERATIVE HOUSING SOCIETY LTD. V. MANGUBEN

THAKOR, DAUGHTER OF AATAJI CHATURJI THAKOR AND ORS.
PARA-24.8: The respondent No. 1 was in knowledge about the sale-deeds in

question from the year 2004 which is 9 years prior to the date of filing of the Civil
Suit Nos. 67 and 68 of 2013. In such situation the date of knowledge though not
expressly mentioned in the plaint, even if taken to be of year 2004, the present suits
are clearly time-barred as per the provisions of Art. 56 of Part-III of the Schedule
of Limitation Act as such suits for declaration of forgery of any instrument could
have been brought within a period of 3 years only. Hence the suits are grossly
time-barred. Even if it is assumed that fraud was played upon respondent No. 1 in
connection with the sale-deeds in question then also the suits cannot be allowed on
the ground of forgery after a long period of 31 years, when sale-deeds in question
were registered, mutation entries were made. Suit filed after the period of 31 years
is hopelessly time-barred.
[9] 2017 (1) GLR 360 [Commercial Dispute – Use of Property]
UJWALA RAJE GAEKWAR D/O. UDAYSINGHRAO SHIVAJIRAO

GAEKWAR AND W/O. JAY VIKRAM SHAH V. HEMABEN ACHYUT
SHAH AND ORS.
PARA-5.4: The suit is instituted for a declaration that the sale-deed executed by
the appellant-original defendant No. 1 in favour of the respondent No. 4-original
defendant No. 2 be declared illegal and also for permanent injunction with respect
to the land in question. Therefore, by no stretch of imagination it can be said to be
a dispute arising out of the agreements relating to immovable property used
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exclusively in trade or commerce. Merely because the immovable property in
question is going to be used or is being used exclusively in trade or commerce, the
dispute would not become "commercial dispute" as defined under Sec. 2(1)(c) of
the Commercial Courts Act.
[10] 2017 (1) GLR 385 [MACP- Defence about Driving Licence – Burden]
ICICI LOMBARD GENERAL INSURANCE CO. LTD. V. KANCHANBEN

VIRJIBHAI AND ORS.
PARA-7: When the appellant-Insurance Company has taken up the contention

that the deceased was not holding licence or not duly licensed to drive the vehicle
in question, the Insurance Company was required to resort to the provisions of the
law as provided under the procedural law for production of such document on
record or the record even from the R.T.O. authority whether the deceased was
licensed to drive the vehicle or not, but the appellant-Insurance Company has not
done anything so far to prove whether the deceased was duly licensed or not. In
this view of the matter, this contention also having no merit cannot be accepted.
[11] 2017 (1) GLR 463 [MACP – Involvement of Two Vehicle – Negligence]
NEW INDIA ASSURANCE CO. LTD. V. GIRABEN DILIPBHAI PATEL

AND ORS.
PARA-6: In the F.I.R. which was given by an independent person, it is

specifically mentioned that Maruti Car was coming from Vadodara and proceeding
towards Ahmedabad which all of sudden jumped/crossed the road divider and
which came ahead of the Truck, due to which accident had taken place. If the
F.I.R. is relied upon by the claimants themselves, the contents of the F.I.R. cannot
be ignored.
When all of a sudden the Maruti Car which was coming from opposite side jumped
and crossed the road divider and came in front of the Truck, and thereafter, when
the Truck dashed with the Maruti Car, the driver of the Truck cannot be said to be
responsible and/or liable for the accident at all. Driver of the Maruti Car can be
said to be sole negligent for the accident. Under the circumstances, the appellant-
Assurance Company cannot be held liable to pay the compensation.
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[12] 2017 (1) GLR 706 [MACP-Subsequent Renewal of Driving Licence]
NATIONAL INSURANCE CO. LTD., VADODARA V. RAKESHBHAI

MOHANBHAI PATEL AND ORS.
PARA-5.7: As observed by the Hon'ble Supreme Court in catena of decisions,

beneficial statute must receive a liberal interpretation. It cannot be disputed that the
Motor Vehicles Act, 1988 is a beneficial statute, and therefore, it must receive a
liberal interpretation in favour of the claimant. Therefore also, on conjoint reading
of Secs. 14 and 15 of the Motor Vehicles Act, 1988,it should be held that if the
accident had occurred within 30 days from the date of expiry of the licence and
even if the licence is subsequently renewed after 30 days from the date of its
expiry, it can be said that the licence remains valid for 30 days from the date of its
expiry, and therefore, the Insurance Company can he held liable to pay
compensation.
[13] 2017 (1) GLR 812 [Parents – Maintenance – Possession of House]
RAJESHKUMAR BANSRAJ GANDHI AND ANR. V. STATE OF

GUJARAT AND ORS.
PARA-6 & 7: To hold that since a party was harassing other party, and
therefore, the other party was entitled to get the possession of the house property is
not the adjudication of the rights of the parties on correct line under and in the
context of the provisions of the Maintenance and Welfare of Parents and Social
Citizens Act, 2007. From the standpoint of above reasoning, the order is cryptic
and illegal. Even if the question whether the authority under the Act can assume
the powers of Civil Court to evict a person or to force hand over or transfer the
possession of the house property is left to be debated in an appropriate case in
future, the present order cannot sustain for the aforesaid equally weighty
consideration. In the above entire view of the matter, the Maintenance Tribunal
shall take up the case afresh and pass an order anew after keeping in view inter alia
object of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 is
for grant of maintenance.
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[14] 2017 (1) GLR 819 [Space for Public Purpose – Ownership]
NALANDA CO-OPERATIVE HOUSING SOCIETY LTD. V. RAJKOT

MUNICIPAL CORPORATION AND ORS.
PARA-5: The space reserved by society in the plan of property for the public
purpose viz. Park, School, etc. cannot vest in the Corporation as it will amount to
transfer of the ownership of society to the Corporation free of cost which is not
permissible in law.
[15] 2017 (1) GLR 887 [MACP -Non-production of Medical Bills]
DAMOR RAMJIBHAI BECHARBHAI V. SWAMI ISHWARGIRI

SHAMBHUGIRI AND ANR.
PARA-4: There cannot be bill of each and every item, and therefore, if there are
bills of medicines for more than Rs. 8,000/-, then it can certainly be considered that
there would be similar or more expenditure for hospitalization etc. and only
because appellant is unable to produce receipt by the Doctor, it cannot be said that
he has not spent anything for Doctor and Hospitalization charges etc. Though, it
can be said that one is supposed to prove such expenditure by reliable and cogent
evidence, it cannot be ignored that victims are not litigants but they are claimants
and they are not expected to collect documentary evidence first, rather than getting
better treatment, and therefore, it would be inappropriate to ignore such fact and
not to award reasonable amount on such count.
[16] 2017 (2) GLR 1100 [MACP - Owner is not a Third Party]
IFFCO TOKIO GENERAL INSURANCE COMPANY LTD. V.

DEEPAKBHAI BHIKHABHAI PATEL
PARA- 8: The claimant himself stands as registered owner and he himself was
driving the offending vehicle as well as he himself has preferred the claim petition
against his own Insurance Company claiming compensation for injuries sustained
by him and resultant damages suffered by him. Indisputably, the claimant is not the
third party. He is insured and the respondent-Insurance Company is the insurer.
Chapter 11 of the Act makes the provision for insurance of the motor vehicle
against the third party risk and the statute has made it compulsory for securing the
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risk of the third party and in the case on hand, if the injury or damage is suffered
by the third party, then the third party can claim and maintain the claim petition
before the Motor Accident Claims Tribunal constituted under the said Chapter.
[17] 2017 (2) GLR 1615 [Family Court - Minor- Custody – Jurisdiction]
LT. COL. IQBALBAHADUR TEGHBAHADUR DUTT (RETD.) AND ANR.

V. ANN SAURABH DUTT
PARA-6.3: Section 7 of the Family Courts Act, clause (a) to (f) to sub-sec. (1) of
Sec. 7 can be said to be in respect of the disputes between parties to the marriage.
However, clause (g) of Explanation to sub-sec. (1) of Sec. 7 provides that the
Family Court would have jurisdiction to decide a suit or proceeding in relation to
the guardianship of the person or the custody of, or access to any minor. It does not
speak about the dispute between the husband and wife (father and mother of the
minor). There are no such restriction in clause (g) of Explanation to sub-sec. (1) of
Sec. 7. Under the circumstances, considering clause (g) of Explanation to sub-sec.
(1) of Sec. 7, Family Court would have jurisdiction to decide a suit or proceeding
in relation to the guardianship of the person or the custody of, or access to, any
minor, even if the same is initiated by the person other than husband and wife
(father and mother of the minor). The impugned order passed by the Family Court
cannot be sustained and it is to be held that the Family Court would have
jurisdiction to decide the dispute/proceedings in relation to custody or access to
minor 'D' initiated by the grandfather and grandmother of the minor 'D'.
[18] 2017 (3) GLR 2032 [Family Court – Striking of Defence]
PRAVINSINH HIMMATSINH SOLANKI V. INDUBEN SOLANKI W/O.

PRAVINSINH HIMMATSINH AND D/O. SAJJANSINH NAVALSINH
PARA- 5: In an application given by the respondent-Wife for appropriate order

to strike off the defence, the learned Judge has dismissed the entire Hindu
Marriage Petition. Thus, the learned Family Court has passed the impugned order
beyond the prayers sought in the application Exh. 46. Even otherwise, also the
impugned order passed by the learned Family Court dismissing the Hindu
Marriage Petition on the ground that arrears of maintenance has not been
cleared/arrears has not been paid, cannot be sustained. Even if such an order can be
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passed in exercise of powers under Sec. 151 of the Code of Civil Procedure, to do
complete justice to the wife in whose favour order of interim maintenance is
passed, in that case also before passing order of dismissal of the Hindu Marriage
Petition or his defence is struck off, an opportunity is required to be given to the
husband by giving him reasonable time, so that the husband if desirous to make the
payment can do so and on failure to pay/clear the arrears of maintenance only,
consequences of either dismissal of Hindu Marriage Petition or order of striking
off the defence may follow.
[19] 2017 (3) GLR 2050 [RTS Proceedings – Civil Rights –Scope]
VADLIBEN WD/O. BHURABHAI NARSANHJI PUROHIT V. STATE OF

GUJARAT AND ORS.
PARA-6: The respondent No. 7 had not filed any suit seeking cancellation of
the sale-deed executed in favour of the petitioner, nor any authority had initiated
any proceedings under the Prevention of Fragmentation Act or other Act alleging
that the sale in favour of the petitioner was in violation of any of such statutes.
Under the circumstances, the respondent-Collector could not have assumed the
jurisdiction of the Civil Court for the purpose of holding that such sale was in
violation of the Hindu Minority and Guardianship Act or in violation of the
Fragmentation Act or the Tenancy Act. It is needless to state that the scope of
R.T.S. proceedings is very limited and is confined to the maintenance of revenue
record for fiscal purpose only. The authorities conducting R.T.S. proceedings have
no jurisdiction to decide the validity of the transaction entered into between the
parties.
[20] 2017 (3) GLR 2067 [Govt. Land – Lease –Purpose –Breach]
JAMNAGAR PROPERTIES PVT. LTD. V. STATE OF GUJARAT AND

ORS.
PARA-10 & 11: The lease-deed executed in favour of the original petitioner
contained certain conditions, including the condition that the said petitioner had to
use the lands for the purpose as mentioned in Condition No. 4 and that the said
lease-deed was liable to be cancelled by the Government in case of breach of any
of the conditions contained therein. Since, the show-cause notice was issued on the
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ground that the petitioner was not using the lands for the purpose for which they
were granted, it was incumbent on the part of the petitioner to respond to the said
notice and satisfy the concerned authority about the use of the land. That part, even
in the petition, there is no averment made that the lands in question were being
used for the purpose for which they were allotted. Under the circumstances, the
respondent No. 2 was perfectly justified in initiating the action against the
petitioner for committing breach of the conditions contained in the said lease-deed.
As per the settled legal position the provisions contained in the Transfer of
Property Act, would not be applicable to the lands granted by the Government by
way of lease.
[21] 2017 (3) GLR 2088 [MACP - Future Promotion – Negligence]
AYASHABEN AMANJIBHAI SHERASIYA L.R. OF AMANJIBHAI H.

SHERASIYA AND ORS. V. KANABHAI LALABHAI MANATH AND ANR.
PARA-13: In the case of Reshma Kumari v. Madan Mohan, 2013 (9) SCC 65, the
method of multipliers determined in the case of Sarla Verma v. D.T.C., 2010 (1)
GLR 17 (SC) : 2009 (6) SCC 121, was approved. It was observed that an addition
of 50% of actual salary be made to the actual salary income of the deceased
towards future prospects where the deceased had a permanent job and was below
40 years, and the addition should be only 30% if the age of the deceased was 40 to
50 years, and no addition should be made where the age of the deceased is more
than 50 years.
PARA-17: As per panchnama, the motorcycle (scooter) was lying in the right
direction on the edge of the Road which was 22 feet broad. The findings arrived at
by the Tribunal towards the contributory negligence are not in consonance with the
panchnama. The panchnama clearly indicates that the deceased was on the right
side of the Road. The rickshaw driver, who can be said to be the best witness to
explain the manner in which the accident had taken place, has not stepped into the
witness box. Under the circumstances, an adverse inference can be drawn against
him. On the analysis of the award of the Tribunal, the findings arrived at by the
Tribunal on the contributory negligence qua the deceased is not based upon any
cogent or specific evidence. Thus, the Tribunal has erred in assessing the
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contributory negligence. It can be said that the contributory negligence of the
rickshaw driver is liable to be assessed at 100%.
[22] 2017 (3) GLR 2183 [Defective Meter – Supplementary Bill]
UTTAR GUJARAT VIJ COMPANY LTD. V. PATEL OIL MILL JINNING

FACTORY
PARA-9: When the statute provides that if there is any dispute or issue with
regard to the defect of the meter not recording consumption properly, the
procedure has to be followed and the licensee like the appellant herein cannot
decide and has no jurisdiction to decide. Admittedly, the fact remains that it has
not been decided by the Electrical Inspector though it was obligatory that it should
have been referred to the Electrical Inspector. Admittedly, there is no issue with
regard to the fact that there was any theft of energy as it is not even the case of the
appellant regarding the theft of energy. Therefore, unless it could be shown that
there was malfunctioning of the meter as decided and found by the authority like
the Electrical Inspector, the appellant had no authority to issue supplementary bill
in exercise of provisions of Sec. 26(6) of the Electricity Act, 1910, which has also
been interpreted by the Hon'ble Apex Court.
[23] 2017 (3) GLR (SC) 2318 [Condonation of Delay]
OIL AND NATURAL GAS CORPORATION LTD. V. GUJARAT ENERGY

TRANSMISSION CORPORATION LTD.
PARA-15: The Constitution Bench in Supreme Court Bar Assn. v. Union of

India, 1998 (2) GLR 1711 (SC) : 1998 (4) SCC 409 has ruled that there is no
conflict of opinion in A. R. Antulay case [1988 (2) SCC 602] or in Union Carbide
Corporation v. Union of India, 1991 (4) SCC 584, with the principle set down in
Prem Chand Garg v. Excise Commr., AIR 1963 SC 996. Be it noted, when there is
a statutory command by the legislation as regards limitation and there is the
postulate that delay can be condoned for a further period not exceeding sixty days,
needless to say, it is based on certain underlined, fundamental, general issues of
public policy as has been held in Union Carbide Corporation v. Union of India,
1991 (4) SCC 584. As the pronouncement in Chhattisgarh S.E.B. v. Central
Electricity Regulatory Commission, 2010 (5) SCC 23, lays down quite clearly that
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the policy behind the Act emphasising on the constitution of a special adjudicatory
forum, is meant to expeditiously decide the grievances of a person who may be
aggrieved by an order of the adjudicatory officer or by an appropriate Commission.
The Act is a special legislation within the meaning of Sec. 29(2) of the Limitation
Act, and therefore, the prescription with regard to the limitation has to be the
binding effect and the same has to be followed regard being had to its mandatory
nature. To put it in a different way, the prescription of limitation in a case of
present nature, when the statute commands that this Court may condone the further
delay not beyond 60 days, it would come within the ambit and sweep of the
provisions and policy of legislation. It is equivalent to Sec. 3 of the Limitation Act.
Therefore, it is uncondonable and it cannot be condoned taking recourse to Art.
142 of the Constitution.
[24] 2017 (3) GLR 2399 [Surrendering of Tenancy Rights by Tenant]
SHANABHAI GHANABHAI BARAIYA (SINCE DECD.) THROUGH

HEIRS V. CHUNIBHAI GOVINDBHAI (DECD.) THROUGH HEIRS AND
KARTA OF H.U.F. AND ORS.
PARA-12: The Court finds force in the submissions made by the learned
Advocate for the applicant based on law laid down by the High Court of Bombay
in the decision of Bhikubhai Bhima Gaidhane v. Khandu Daji Pagar, AIR 1973
Bom. 101, that because the tenant has made a statement before the Mamlatdar and
A.L.T., and therefore, he was no more tenant and no more in possession and it
should be treated as good as his giving up his tenancy rights, is not correct position
of law and duty is cast upon Mamlatdar and A.L.T. to hold proper inquiry and in
the above case A.L.T. had dropped the proceedings based on the statement of the
tenant that he had surrendered his tenancy and had given up his possession, but at
the same time operation of the social legislation, which is for the benefit of the
tenants and also to safeguard their interest, will not stop their termination of
tenancy by virtue of surrender should be in accordance with Sec. 15 of the Tenancy
Act at the same time possession of the landlord should be in accordance with Sec.
29 of the Tenancy Act.
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[25] 2017 (3) GLR 2511 [Suit challenging Sale deed – Limita tion]
POONAMBHAI SHANABHAI VALAND (DECD.) AND ORS. V.

HASMUKHBHAI BACHUBHAI PARSANA AND ANR.
PARA-10 & 11: When prima facie the suit which has been filed for cancellation
of the registered document/sale deed executed in the year 2001 is filed in the year
2010 the Court is obliged to consider the aspect of limitation. Therefore, when the
suit is found to be hopelessly time barred the submissions made by learned
Counsel for the appellants that the issue of limitation is a mixed question of law
and fact, and therefore, it ought to have allowed the parties to lead evidence is
misconceived and it cannot be readily accepted. It is evident that the copies of
entries mutated in the revenue record has been obtained in May 2007 by the
appellants original plaintiffs, and therefore, the suit could have been filed within a
period of 3 years as provided in Art. 59 of the Limitation Act. Admittedly, the suit
is beyond the period of 3 years. Moreover, as observed in the judgment of the
Hon'ble Apex Court as well as the judgment of this Court in the case of Becharbhai
Zaverbhai Patel v. Jashbhai Shivabhai Patel, 2013 (1) GLR 398, the registration of
document is the deemed notice for the purpose of knowledge.
[26] 2017 (3) GLR 2632 [MACP – Accident while boarding the Train]
UNION OF INDIA V. LAXMIBEN BHAVRAV SENDHANE (W/O. DECD.)
PARA-7: Sec. 123(c)(2) of the Railways Act provides that the untoward
incident would cover such accident that the person, who falls down would also
amount to untoward incident. Further, a useful reference can be made to the
judgment of the Hon'ble Apex Court in case of Union of India v. Prabhakaran
Vijaya Kumar, 2008 ACJ 1895. The Hon'ble Apex Court has observed that it
would be an untoward incident even if the accident occurs while mounting or
alighting the train. A close look at Sec. 124 read with Sec. 124(A) of the Railways
Act also make the position clear that Sec. 124 of the Railways Act refers to the
extent of liability and Sec. 124(A) refers to the compensation on account of
untoward incident. The proviso to Section carves out a limited exception where the
Railway may not be liable and the case of the deceased does not fall in any of the
exceptions provided in the proviso on the basis of which the Railway could avoid
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the liability. Section 124(A) of the Railways Act provide for the strict liability or
no fault liability once the incident is proved or established. Section 124 of the
Railways Act provides that the Railway could avoid the liability only in certain
circumstances as provided in the proviso once the untoward incident has taken
place.
[27] 2017 (4) GLR 2705 [ University – Disputes about Works Contract]
GHANSHYAMBHAI INDRAVADANBHAI PANDYA - REGD. PARTNER

OF M/S. GOPINATH CONSTRUCTION V. MAHARAJA SAYAJIRAO
UNIVERSITY
PARA-6: The issue whether the original defendant-M. S. University can be said
to be Public Undertaking as defined under the provisions of the Act of 1992 is
already concluded by the Division Bench of this Court in the case of Sorathia Velji
Ratna & Co. v. Gujarat Agricultural University, 2000 (4) GLR 3666, and by the
learned Single Judge in the case of Sardar Patel University v. Patel & Co., 1999 (2)
GLR 1264. In the case of Gujarat Agricultural University, while considering the
similar provisions of the Gujarat Agricultural University Act, the Division Bench
of this Court has specifically observed and held that the Gujarat Agricultural
University can be said to be/called as Corporation aggregate, and therefore, will be
deemed to be Public Undertaking within the meaning of Sec. 2(k)(i)(ii) of the
Arbitration Tribunal Act, and therefore, the dispute arising out of the Public Works
Contract between the Gujarat Agricultural University and the Contractor shall have
to be decided by the learned Tribunal constituted under the provisions of the
Arbitration Tribunal Act of 1992.
[28] 2017 (4) GLR 2733 [Change into Phase – Supplementary Bill]
MADHYA GUJARAT VIJ COMPANY LTD. V. AMBALAL

RANCHHODBHAI PARMAR AND ANR.
PARA-8: As per clause (ii) in clause (b) of Sec. 126 of the Electricity Act, use
of electricity by means not authorised by the concerned person or authority or
licensee would mean unauthorised use of electricity. As mentioned in the
14
checking-sheet, the respondent No. 2 converted one phase into three phase through
capacitor and by making change in fuses in I.C.T.P. box. Thus, the respondent No.
1 derives power supply through three phase instead of one phase allowed by the
licensee by adopting means not authorised or permitted by the licensee. It could
thus be said that the respondent No. 1 had indulged into unauthorised use of
electricity. (Para 8)Thus, in light of Supreme Court judgment and in the facts of the
case, the Appellate Authority was not justified in arriving at the conclusion that by
converting one phase into three phase, since no change was made in recording the
consumption in the meter and the meter was not tampered with, issuance of the
supplementary bill was not called for.
[29] 2017 (4) GLR 2749 [ Proposed Society – Transfer of Agri. Land]
GHANSHYAMBHAI TRIKAMLAL PROMOTER OF

(PROPOSED)KALPTARU V. STATE OF GUJARAT
PARA-8: In view of the said provision, a society becomes a body corporate with
perpetual succession and common seal only on its registration, and a Society would
have the power to acquire, hold and dispose of the property, or to enter into
contracts, to institute and defend suits and other legal proceedings only on its
registration and not otherwise. Hence, the proposed Society, which was not
registered at the relevant time, and is not registered even as on the date, under the
Gujarat Co-operative Societies Act could neither acquire, hold or dispose of any
property, nor enter into any contract, nor institute or defend any legal proceedings,
in view of Sec. 37 of the said Act.
PARA-9: Though it was sought to be contended by the learned Sr. Advocate for
the petitioner that the said sale-deeds were required to be treated as having been
executed in favour of the promoter Mr. G. who was an agriculturist and not in
favour of the proposed society, the said submission cannot be accepted. All the
said sale-deeds are required to be treated as having been executed and were in fact,
executed in favour of the proposed society only, which had no power to enter into
any contract or acquire the property as per Sec. 37 of the Gujarat Co-operative
Societies Act. Such sale-deeds being in favour of the proposed Society, which did
not have any legal entity, could not be said to be an agriculturist under the Tenancy
15
Act, and therefore, were executed clearly in violation of Sec. 63 of the Tenancy
Act.
[30] 2017 (4) GLR 2768 [MACP – Policy Covers Owner’s Goods]
RAJESHBHAI LAXMANBHAI KOYANI V. VINODRAI SHAMJIBHAI

KAKADIA
PARA-6: Now in all policies after 14-11-1994, the liability of Insurance

Company is not limited to 3rd person only but it would include owner of the goods
or his authorised representative carried in the vehicle though, it is not necessary for
the Insurance Company to include the liability under the Workmen's Compensation
Act for the employees engaged either by the owner of the vehicle or owner of the
goods. Thereby, for such liability, Insurance Company may charge extra premium
but for the insurance to the owners of the goods or his authorised representative
carried in vehicle, Insurance Company shall stand liable even under Act policy
because the requirement of the policy confirms that the policy for insurance must
be a policy which insures the person including the owner of the goods or his
authorised representative carried in the vehicle.
[31] 2017 (4) GLR 2857 [Civil Judge – Recruitment – 5 years Service]
HARDIK BHARATBHAI TRIVEDI AND ORS. V. STATE OF GUJARAT

AND ORS.
PARA-12: In the new Rules, 2005, when minimum experience of 3 years is done
away with for fresh law graduates who seek entry into Judicial Service for the post
of Civil Judge, there is no reason to contemplate 5 years of minimum experience
for such similarly placed law graduates who enter into service and choose to come
into Judicial Service thereafter. In that view of the matter, the Court is of the view
that the impugned Rule 7(2)(b) of the Gujarat State Judicial Service Rules, 2005 is
discriminatory to the extent it requires minimum experience of 5 years for the law
graduates who are working in the Courts and allied departments, and it violates
equality clause enshrined in Art. 14 of the Constitution of India. Further, the Court
is also of the view that, the said impugned Rule has no nexus with the object
sought to be achieved. So long as there is no requirement of minimum practice for
allowing the law graduates who are practicing in the Courts of law, there is no
16
reason to insist for requirement of minimum experience for similar law graduates
who are in service of Courts and allied departments and seeking entry into Judicial
Service, as such, the impugned Rule is arbitrary and discriminatory.
[32] 2017 (4) GLR 2977 [Electricity Line – Maintenance – Liability]
TORRENT POWER LTD V. BISMILLAHBIBI WD/O.

MAHMADMIYAAEHMADMIYA SUMRA
PARA- 16, 17 &23: The conductor was broken which led to the falling of the
over head line on the road when the deceased was passing and he died due to
electrocution. When the Appellant/Original Defendant Company is under an
obligation to maintain the line, it is their liability to see that such incidents are
averted or avoided. If any such incident by which suddenly the conductor is broken
and the wire has fallen on the road, they cannot escape the liability. Moreover, as
rightly submitted by learned Counsel for the respondents the concept of strict
liability would make the aspect of negligence irrelevant inasmuch as the strict
liability cast an obligation upon the authority or the entity like the licensee and the
Appellant/Original Defendant Company to take proper care to avoid any such
mishap. It is the absolute liability while undertaking the maintenance of such lines
that no such incident takes place. For whatever reason if such incident had
occurred, the liability has to be accepted by the licensee like the Appellant/Original
Defendant and the submissions made that unless the negligence is established, the
liability cannot be fastened, is misconceived. The deceased would have no role and
could not be said to be negligent or contributed in the occurrence of incident in any
manner, and therefore, the finding of the Court below holding the deceased liable
for contributory negligence to the extent of 20% cannot be sustained and deserve to
be set aside.
[33] 2017 (4) GLR 3083 [Civil Rights – Jurisdiction of Revenue Dept.]
BHIKHUBHAI NARANJI DESAI DECEASED BY HEIRS V.

CHHOTUBHAI RANCHHODJI DESAI DECEASED BY HEIRS AND ORS.
17
PARA-8: The Revenue entries are made only for fiscal purpose and the
Revenue Authorities have no jurisdiction to decide about the civil rights of the
parties. A beneficial reference of the judgment of this Court in the case of
Gandabhai Dalpatbhai Patel v. State of Gujarat, 2005 (2) GLR 1370 : 2005
eGLR_HC 10001370, be made in this regard. (Para 8) In view of the afore-stated
legal position, it is required to be held that the S.S.R.D. has committed error in
assuming the jurisdiction of Civil Court and in deciding the civil rights of the
parties in the R.T.S. proceedings. As per the settled legal position, the Revenue
Authority is required to go by the documents i.e. the registered sale-deed produced
before it and give effect in the Revenue entry. It cannot decide the question of title
in the Revenue proceedings.
[34] 2017 (4) GLR 3097 [Renewal of connection – Payment of Dues]
M/S NEMCHAND JAIN V. STATE OF GUJARAT AND ORS.
PARA-12: The person applying for the electricity supply is to comply with terms
and conditions of supply. Therefore, when Clause 4.1.11 of the Regulations
provides that no application for new connection or reconnection or change of name
or shifting of service line for any premises need to be entertained unless any dues
relating to that premises are clear, the petitioners are required to satisfy the
condition regarding clearance of the outstanding dues in relation to the premises
for which they have applied for permanent electric supply. In Clause 4.1.11, no
limitation is provided for Vij Company to ask for clearance of the dues of erstwhile
consumer. When the petitioners purchased the premises, they could have
ascertained and satisfied themselves as to the electricity dues in connection with
the premises. However, no distinction could be made between the purchaser of the
premises who was aware that there were outstanding electric dues against the
previous owner of the premises and one who was not aware of it. In either case, the
dues have to be paid by the purchaser or new occupant of the premises, once there
is a condition of statutory nature like Clause 4.1.11 for clearance of the dues before
the supply could be given to the purchaser or the new occupant of the premises.
18
[35] 2017 (4) GLR 3119 [Vehicle Tax in case of Non-use.]
ABDUL SAMAD ABDUL HAMID SHAIKH V. STATE OF GUJARAT -

THROUG ADDL. CHIEF SECRETARY AND ORS.
PARA-5: It is required to be noted that considering sub-sec. (1) of Sec. 3 of the

Gujarat Motor Vehicles Tax Act, 1958, once the vehicle is transferred and put to
use the liability to pay the tax arise. If the vehicle is repossessed by the financier
subsequently, in that case the remedy available to such financier would be by
submitting an appropriate application before the appropriate authority of non-use
of such vehicle and for the period of such non-use, the liability to pay the tax shall
not arise. Otherwise the liability to pay the tax continues.
[36] 2017 (4) GLR 3327 [Commercial Disputes – Scheme for Plots]
MADHURAM PROPERTIES V. TATA CONSULTANCY SERVICES LTD.
PARA-5: The agreement of lease was entered into between the plaintiff and
defendant in respect of aforesaid residential flats to be used for residential purpose.
The project "Madhuram Greens" is a residential project/scheme. Therefore, the
agreement/indenture between the plaintiff and the defendant in respect of aforesaid
216 residential flats cannot be said to be an agreement relating to immovable
property used exclusively in trade or commerce. Considering the sub-sec. (vii) of
Sec. 2(c) of the Commercial Courts Act, the "commercial dispute" means a dispute
arising out of agreements relating to immovable property used exclusively in trade
or commerce. As observed hereinabove, the agreements are relating to immovable
property exclusively for residential purpose and same cannot be said to be
agreement relating to immovable property used exclusively in trade or commerce.
Merely because, the activity of the defendant is in the trade or commerce and/or
merely because the plaintiff is a builder and in the business of real estate and
leasing the property any dispute between the plaintiff and defendant cannot be said
to be "commercial dispute" within the definition of Sec. 2(c) of the Commercial
Courts Act.
19
[37] 2017 (4) GLR 3392 [Compromise – Review Permissible]
AMITBHAI HARSHADBHAI PATEL V. GHANSHYAMBHAI

PRABHUDAS PATEL AND ORS.
PARA-9: As provided in Rule 3A of Order XXIII, no suit shall lie to set aside a
decree on the ground that the compromise on which the decree is based was not
lawful. However, if a person feels that the decree passed on compromise is
concocted, or obtained by collusion to defeat his right pertaining to the suit land,
he could certainly challenge such decree by filing separate suit seeking declaration
that the decree is collusive decree obtained with only aim to defeat his right
pertaining to the suit land. But such reason is not available for seeking review of
the judgment and decree as it would require leading of evidence to establish the
right acquired pertaining to the suit land and the aspect of collusion in obtaining
the decree on compromise with intention to defeat the right of the party applying
for review.
[38] 2016 (1) GLR 186 [Bank’s Dues – Public Notice with Photos]
MONAL DINESHBHAI CHOKSHI AND ORS. V. STATE BANK OF INDIA

AND ANR.
PARA-23, 25 & 29: There may be conflicting claims which need to be

balanced. On one hand person's right to privacy or "right to be let alone" with
another person's "right to be informed" has to be considered. The Hon'ble Apex
Court in the case of Mr. 'X' v. Hospital 'Z', 1998 (8) SCC 296 has made clear that
the right to privacy is not an absolute right. The banks have, pursuant to the R.B.I.
circular or their own circular, evolved a mechanism by which every defaulter's
name is not published with photograph and it is only after proper scrutiny at the
higher level and with the approval of the Chief Manager, such publication of notice
with photograph is permitted. It is required to be mentioned that the fact that the
publication of notice with photograph has a social impact and it is a more effective
measure for recovery as the person would like to have his reputation protected, and
therefore, would clear the outstanding dues and would not make the default.
20
[39] 2016 (1) GLR (SC) 377 [Arrears of Rent – Section 12(3)(b)]
YUSUFBHAI NOORMOHAMMED JODHPURWALA V. MOHMMED

SABIR IBRAHIM BYAVARWALA
PARA-10: On facts, it is clear that the tenant was in arrears of rent prior to the
filing of the suit and continued to be so. On the date of the first hearing of the suit,
that is the date on which issues were struck, namely, 3-8-1994, the rent that was
paid admittedly fell short by Rs. 270/-. It is clear therefore, that assuming that the
respondent is a bona fide tenant, the right that is conferred upon him by the
legislature can be availed of only twice and on both occasions the tenant was found
to be in arrears. The High Court was wrong in interpreting Sec. 12(3)(b)
purposively holding that so long as the High Court, in its discretion, feels that there
is a readiness and willingness on the part of the tenant to pay rent, the High Court
can in its discretion say that substantial compliance with Sec. 12(3)(b) is good
enough for the tenant to escape eviction on the ground of non-payment of arrears
of rent. Having regard to the judgments of this Court and the fact that Sec. 12(3)(b)
has been construed to be a mandatory provision which must be strictly complied
with.
[40] 2016 (1) GLR 477 [Petition under Articles 226 or 227 – Limitation]
SURESHBHAI SUVALAL JAYSWAL AND ANR. V. STATE OF GUJARAT

AND ORS.
PARA-3: For filing proceedings under Arts. 226 and 227 of the Constitution of
India, no period of limitation is prescribed though such proceedings are required to
be filed within reasonable time period. Therefore, provisions for limitation under
Art. 120 of the Limitation Act to the proceedings filed under Art. 226/227 of the
Constitution of India will have no application. Similarly, if any application is filed
in proceedings filed under Art. 226/227 of the Constitution of India, especially the
application for bringing heirs of the deceased party on record of such proceedings,
neither provisions for Order 22 of the Code nor Art. 120 of the Limitation Act will
apply. It will, therefore, not be required to seek condonation of delay occurred in
late filing of the application for bringing heirs of the deceased party on record of
the proceedings filed under Art. 226/227 of the Constitution of India.
21
[41] 2016 (1) GLR 560 [Hearing of Appeals – Jurisdiction]
KHURSHID CYRUS MEDHORA V. CYRUS RATANSHAW MEDHORA

AND ANR.
PARA-10: The Appeals, which were pending before this Court at the time of
issuance of the Notification by the High Court of Gujarat dated 14-10-2014,
enhancing the pecuniary jurisdiction of the Courts below with effect from 1-11-
2014, cannot be transferred to the concerned District Court on the ground that, now
it is the concerned District Court which would be competent to consider such
Appeals, in view of the enhanced pecuniary jurisdiction. Those Appeals, therefore,
need to be considered by this Court. If the date of the judgment/decree appealed
against is prior to the effective date of the said Notification i.e. upto 31-10-2014,
such appeals need to be considered by the High Court only, if it was otherwise
required to be filed before this Court, but for the said Notification dated 14-10-
2014.
[42] 2016 (1) GLR 574 [Injunction Matters – Orders Appealable]
SANDESH LTD. AND ANR. V. TRANSMEDIA SOFTWARE LTD.

THROUGH JASMIN B. SHAH
PARA-27: Any order passed by the trial Court, either granting ex-parte
injunction or refusing to grant such ex-parte injunction is an order under Rule 1 or
Order 39 of C.P.C., and hence, appealable. An order passed by the trial Court
issuing notice in an injunction application without granting ex-parte injunction,
with or without recording reasons, is appealable under Order 43, Rule 3 of C.P.C.
[43] 2016 (1) GLR 624 [Exhibiting of Documents – Objections]
RAMNIKLAL SHIVLAL BAVISHI (SINCE DECD.) THROUGH HIS L.H.

AND RS. V. TULSIDAS CHAKUBHAI GORVADIYA (SINCE DECD.)
THROUGH HIS HEIRS AND L.RS. AND ORS.
PARA-15: When an objection that the document which is sought to be proved is

itself inadmissible in evidence, is raised, the procedure laid down in Bipin
Shantilal Panchal v. State of Gujarat, 2001 (3) GLR 2024 (SC) : 2001 (2) GLH 545
(SC), can be followed and the Court can give a tentative exhibit number to such
22
document and deal with the admissibility thereof at the final stage of judgment;
however, when a case falls within the second category, viz., where the objection
which is raised does not dispute the admissibility of the document in evidence, but
is directed towards the mode of proof alleging the same to be irregular or
insufficient, such objection has to be decided at the time when it is raised as the
same would enable the party tendering the evidence to cure the defect and resort to
such mode of proof as would be regular.
[44] 2016 (1) GLR 673 [Typographical/clerical errors in Judgment]
VENILAL GANGARAM SHARMA V. ARVINDBHAI MADHUSINH

CHAUHAN AND ORS.
PARA-5: The petitioner-plaintiff has categorically submitted list of errors in the

judgment of the Court and on verification of all those 6 errors in presence of
learned Advocates for both the sides, now it becomes clear that all such errors are
in fact either typographical and clerical in nature or it is purely because of non-
application of mind and negligence of the concerned Court in disclosing certain
facts in the judgment. Hence the trial Court should have corrected the mistakes and
errors in the judgment at the earliest, so as to enable the decree holder to get the
fruits of the decree of the year 2006 in the suit of the year 1991.
[45] 2016 (1) GLR 679 [Board of Nominee – Appointment]
GUJARAT CO-OPERATIVE BAR ASSOCIATION AND ANR. V. STATE

OF GUJARAT AND ORS.
PARA-66: As per the mechanism of Secs. 96 and 97 of the Co-op. So. Act, the
Registrar or its nominee may be competent to decide the disputes but when the
powers of adjudication of civil litigation are delegated by the Legislature to other
statutory authority, it should have the qualifications to decide such disputes like a
Judicial Officer or qualifications to be appointed as a Judicial Officer. Such aspect
did not fall for the consideration of this Court in its decision in the case of Rasiklal
Patel v. Kailashgauri Ramanlal Mehta, 1971 GLR 355, since a declaration was
made to appoint the Registrar's Nominee from amongst the retired Judicial
Officers.
23
[46] 2016 (2) GLR 976 [Board of Nominee - Proceedings]
DIPAKBHAI PRAHALADBHAI PATEL AND ANR. V. RAMESHBHAI

TRIBHOVANBHAI PATEL AND ANR.
PARA-10: Wherever the Legislature has intended to apply any provision of the
Code for the proceedings of the Lavad suit, it is specifically so provided in the
provisions of the Act and except where it is so specifically provided, the provisions
of the Code shall not apply to the proceeding of the Lavad suit in general. Though,
the Legislature has not made such provision applicable for the Lavad suit filed
before the Board of Nominee, however, even if on issue of limitation or on the
issue of bar to the suit, created by any law, if the Board of Nominee wants to
decide the suit, it has to try such issue with other issues which may require
adducing of evidence by the parties. Thus, there is no provision for outright
rejection of the suit on the issue of limitation or non-disclosure of cause of action.
In any case, since the provision of Order 14 has no application to the suit filed
before the Board of Nominee under the provisions of the Act, even such
opportunity of raising the issue of limitation or issue of bar of suit created by any
law is not available so as to decide such issues first in the Lavad suit filed under
the Act.
[47] 2016 (2) GLR 1041 [Condonation of Delay – Sufficient Cause]
DEVCHANDBHAI BACHUBHAI VAJA AND ORS. V. STATE OF

GUJARAT AND ORS.
PARA-10: The discretion to condone delay has to be exercised judiciously based

on facts and circumstances of each case - "Sufficient case" cannot be liberally
interpreted if negligence, inaction or lack of bona fides is attributed to the party -
Even though, limitation may harshly affect rights of a party but it has to be applied
with all its rigour when prescribed by statute Courts have no choice but to give
effect to the same - Result flowing from statutory provision is never an evil. Courts
do not have power to extend period of limitation based on equitable ground. If
Courts start substituting period of limitation, then it would amount to legislation,
which is impermissible. The fact of delay being condoned and the fact that these
days there is a tendency to perceive delay as a non-serious matter, and hence,
24
lackadaisical propensity can be exhibited in a non-chalant manner will also have to
be looked into. However, it has to be within legal parameters.
[48] 2016 (2) GLR 1102 [Registration of Documents – Powers]
SITARAM SUGARS AND ALLIED INDUSTRIES LTD. V. BARODA

CENTRAL CO-OPERATIVE BANK LTD. AND ANR.
PARA-6: Rule 45 of the Rules unequivocal to specifically say that the

registering officer is not to concern himself with regard to the validity of the
document. The Rule mentions the grounds which can form basis of examination by
the registering officer. The powers of the registering authority having been clearly
defined and demarcated in the Act for registration of a document, it is not open to
the authority to embrace for its decision to refuse the registration any other ground
than one traceable under the Act. As already noted, the registration of a document
is merely an event which notifies the factum of execution of document. It
evidences occurrence of a transaction affecting title qua any person or property.
What necessarily follows is that the registration of a document has nothing to do
with legality of transaction. Nor it has anything to do with nature of title that
passes, or with title related question of the property being conveyed. If a document
presented for registration satisfies legal requirements under the Registration Act
and is sufficiently stamped, etc., the registering authority cannot refuse to register
the same. Authority's adversion to any aspect of defect in title or legality of the
transaction to make it a ground for refusal to register would be in excess and de
hors his statutory powers.
[49] 2016 (2) GLR 1643 [MACP – Provisions of Sec. 140 & 163A]
HEIR OF DECD. DEVRAJBHAI NATHABHAI BHUVA - GEETABEN

DEVRAJBHAI AND ORS. V. DRIVER - AUMPRAKASH RAMSURAT
CHAUHAN AND ORS.
PARA-12: Sections 163A and 163B of the M. V. Act bare perusal of both these
Sections makes it clear that Sec. 163A of the M. V. Act provides for special
provisions as to payment of compensation on structured formula basis confirming
that the owner of the motor vehicle or the authorized insurer shall be liable to pay
in the case of death or permanent disablement due to accident arisen out of use of
25
motor vehicle, compensation, as indicated in the Second Schedule, to the legal
heirs or the victim. Sec. 140 of M. V. Act, 1988 makes it quite clear and obvious
that there may be an award of additional compensation in addition to the
compensation paid either under Sec. 140 or under Sec. 163A with only restriction
that in such situation, amount already awarded under either of such Sections, is to
be reduced from the total amount to be awarded under any other provision.
Therefore, provision of Sec. 163A is not alternative or equal to Sec. 166, but it is
alternative or equal to the provisions of Sec. 140.
[50] 2016 (3) GLR 1955 [MACP – Travelling with Goods]
ORIENTAL INSURANCE COMPANY LTD. (SUBSIDIARY OF GENERAL

INS.) V. MUNNABHAI JERAMBHAI KOLI (MINOR)
PARA-15: The injured claimants were travelling along with their goods, and
therefore, by virtue of provision of Sec. 147 of the Motor Vehicles Act, their risk is
covered under the policy of insurance.
[51] 2016 (3) GLR 1967 [MACP – Defence about Valid Licence]
HEIRS AND L.RS. OF DECD. GALABHAI AND ORS. V. KARA GOGAN

RATHOD AND ORS.
PARA-25: Driver does not have valid driving licence to drive the non-transport
vehicle and that settled legal position is such that in all such cases now when the
statute is confirming that initially Insurance Company has to pay the amount and
then it can recover from its owner, then the Court does not hesitate to modify the
award by confirming that initially the Insurance Company shall pay the amount of
compensation as awarded to the claimants and then they may recover it from the
owner only if it is proved that there is any breach of any statutory provision or
condition of policy. For the purpose, Insurance Company may initiate appropriate
proceedings in accordance with law.
26
[52] 2016 (3) GLR 2074 [MACP – Goods Carriage Vehicle – Passenger]
NATIONAL INSURANCE CO. LTD. V. DEVABHAI SIDHABHAI

BHARVAD AND ORS.
PARA-7: Once learned Tribunal founds a person travelling in goods carriage

vehicle as passenger and not owner of goods or its representative, in such situation,
insurer of goods carriage vehicle is not liable to pay compensation and learned
Tribunal cannot fasten the liability upon the insurer to pay compensation and then
to recover it from its insured. On going through the particulars of the policy, it can
be noticed that no additional premium is being paid by the insured to the insurer
for coverage of risk of any passenger travelling upon the vehicle involved in the
accident. The risk of passenger travelling in goods carriage vehicle is not covered
under Motor Vehicle Act, 1988. The Act has not envisaged risk of passenger to be
covered under Sec. 147 of Act and law in this regard has been declared by the
Hon'ble Apex Court in a case of Asha Rani and reiterated in other decisions.
[53] 2016 (3) GLR 2110 [Powers to Review – Apparent Error]
SURESHBHAI DULLABHAI PATEL AND ORS. V. RAMNIKBHAI

RAVJIBHAI PATEL AND ORS.
PARA -13: Review is not available as a matter of right and unless it is pointed out
that there is error apparent on the face of record committed by the Court or the
Tribunal while deciding the matter or that certain material or evidence was not
available with the party when the matter was decided and such material or
evidence will have bearing on the controversy involved in the main proceedings,
and that for any sufficient good cause, review of the decision was required.
[54] 2016 (3) GLR 2144 [MACP - Stationary Truck –Negligence]
NATIONAL INSURANCE CO. LTD. V. DAKSHABEN DIPAKBHAI

KHANAKHARA AND ORS.
PARA-7: In the present case, Truck No. GTP 6016 which was found stationary
in the middle of the road without keeping any tail light or any reflector so that a
person coming from behind can locate and notice that vehicle is in stationary
condition on the middle of the highway road and can take due care and caution to
27
save his own vehicle as well as belonging to it. Therefore, without reflectors and
tail light during nocturnal hours, another vehicle coming from behind, by no
stretch of imagination, can locate the stationary truck in the middle of the road. As
a result, the incident in question occurred which clearly indicative of the
negligence on the part of driver of the stationary truck. Therefore, the argument
advanced by learned Advocate for the appellant-Insurance Company for
apportioning liability upon another vehicle involved in the accident is not
acceptable.
[55] 2016 (3) GLR (SC) 2280 [Gift – Handing over of Possession]
KHURSHID BEGUM (DECD.) BY L.RS. AND ORS. V. MOHAMMAD

FAROOQ (DECD.) BY L.RS. AND ANR.
PARA-11: While gift of immovable property is not complete unless the donor
parts with the possession and donee enters into possession but if the property is in
occupation of tenants, gift can be completed by delivery of title-deed or by request
to tenants to attorn to the donee or by mutation. It is further clear that gift of
property which is capable of division is irregular but can be perfected and rendered
valid by subsequent partition or delivery. Exceptions to the rule are : where the gift
is made by one co-heir to the other; where the gift is of share in a zemindari or
taluka; where gift is of a share in freehold property in a large commercial town,
and where gift is of share in a land company.
[56] 2016 (3) GLR (SC) 2294 [Mortgage by way of Conditional Sale]
PATEL RAVJIBHAI BHULABHAI (DECD) THROUGH L.RS. V.

RAHEMANBHAI M. SHAIKH (DECD) THROUGH L.RS. AND ORS.
PARA-14: The above condition in Exh. 23 that if the plaintiffs (respondents)

make repayment of Rs. 10,000/- within a period of five years, the defendants shall
handover the possession of property in suit back to the plaintiffs, reflects that the
actual transaction between the parties was of a loan, and the relationship was of
debtor and creditor existed, as such, the Court is of the view that the High Court
has rightly held that the deed in question Exh. 23 read with Exh. 37 is a mortgage
by way of conditional sale and the decree passed in favour of the plaintiffs does not
require to be interfered with. Needless to say, since the possession of the land was
28
handed over to the mortgagee, no interest was charged. It has also come on record
that the defendants leased the land to third parties, after possession was given by
the plaintiffs in 1960. In the circumstances, after perusal of the evidence on record,
the Court agrees with the view taken by the High Court.
[57] 2016 (3) GLR 2342 [MACP – Negligence of Deceased Driver]
UNITED INDIA INSURANCE CO. LTD. V. [DRIVER OF JEEP NO. GJ-6-

JJ-9875 NOT JOINED] MAGANBHAI DARUBHAI PARMAR THROUGH
L. HEIR AND ORS.
PARA-6: At the time of accident the jeep was being driven by the deceased
himself. There is a specific finding recorded by the learned Tribunal that the
deceased himself can be said to be negligent for the accident. In that view of the
matter, the tort-feasor cannot be permitted to take benefit of his own wrong, and
therefore, also, the Insurance Company-Insurer could not have been held liable to
pay the compensation. This view is supported by the decisions of the Hon'ble
Supreme Court in the case of Sadanand Mukhi, [2009 (2) SCC 417] and decisions
of this Court in the case of Hiteshbhai Sureshbhai Patel, [2011 (2) GLR 1003] and
Jagatsinh Valsinh, [1986 GLH 573].
[58] 2016 (4) GLR 2775 [Will – Basis for Joining as Party]
UJWALA RAJE GAEKWAR V. HIREN ACHYUTBHAI SHAH
PARAT-9: The fact remains that the respondents herein have applied to bring
them on record as legal heirs and representatives of the deceased plaintiff so as to
continue the suit proceedings in respect of immovable properties bequeathed to the
deceased plaintiff by Late Princess and therefore, without probate/succession
certificate, the deceased plaintiff and so, the respondents herein can maintain such
applications for being impleaded them as parties on demise of deceased plaintiff.
(Para 8)Upon perusal of Will dated 9-12-1991, it appears that the deceased plaintiff
being legatee, obtained 1/3rd share of Late Princess, and therefore, he becomes the
legal representative of the estate of Late Princess under the said Will, and
therefore, the deceased plaintiff is a legal representative as defined under Sec.
2(11) of the C. P. Code. A legatee under the Will, who intends to represent the
estate of the deceased testator, being an intermeddler with the estate of the
29
deceased, will be a legal representative. So, the determination of an issue as to who
is the legal representative under Order 22, Rule 5 of the C. P. Code will be for the
limited purpose of representation of the estate of deceased, for adjudication of the
above suits and will not confer on the person held to be the legal representative,
any right to the property and consequently, the legal representatives, who
succeeded to deceased plaintiff's estate, should be heard in their capacity as
persons representing the estate of the deceased. So, it cannot be gainsaid that upon
demise of the plaintiff, right to sue would not survive in favour of the respondents.
In Court's considered opinion, the Court cannot hold inquiry as to whether 'right to
sue' survives or not without joining legal representatives of the deceased plaintiff,
and for that limited purpose also, joinder of the legal representatives of the
deceased plaintiff is must. In nutshell, the question, which the Court is required to
address, is whether enforceable right of the respondents would be affected if they
are not joined.
[59] 2016 (4) GLR 2893 [MACP – Inability in enjoying Married Life]
VINODBHAI JIVABHAI VAGHORA V. HASAMALI MUSHTAKEEMALI

KHURESHI AND ORS.
PARA-9 & 10: We may notice that the Tribunal in the award has recorded that
the applicant had not produced any certificate from the Specialist certifying that
the appellant is unable to enjoy his marital life due to the said injuries. Merely
because a Specialist's certificate is not produced by the appellant certifying about
his inability in enjoying the married life, the appellant cannot be denied the
compensation towards loss of marital life. In our view to the Tribunal has erred in
not granting compensation to the appellant for his inability in enjoying marital life.
The Apex Court in the case of Kumaresh, in Paragraph No. 12 has awarded
compensation of Rs. 3,00,000/- towards loss of amenities and enjoyment of life,
including loss of marital prospects. In that case, the appellant was 20 years of age
and one of his legs was amputated below the knee and disability was determined as
50%. In the present case, one leg of the appellant was amputated and due to the
injuries in the pelvic area one of the testicles was removed and other was shifted to
right area. In the present case the appellant is already married, hence, considering
the injuries caused by the appellant and his marital status, we deem it fit that an
30
additional amount of Rs. 60,000/- can be awarded to the appellant towards loss of
marital life, as observed by the Apex Court in the case of Kumaresh . Accordingly,
we enhance the amount of compensation from Rs. 5,25,800/-, as per the chart
produced on behalf of respondent No. 3-Insurance Company, which is reproduced
hereinabove. Further, amount of Rs. 60,000/- is added towards loss of marital life
of the appellant i.e. amount of Rs. 5,85,800/- will be awarded as total
compensation to the appellant.
[60] 2016 (4) GLR 2916 [Seizure of Issue/Matter by Foreign Court]
MEHDI A. ATTARWALA S/O. ABBAS ATTARWALA V. STATE OF

GUJARAT AND ANR.
PARA-20: In the case of Surya Vadanan v. State of Tamil Nadu, AIR 2015 SC
2243 : 2015 (5) SCC 450, the Supreme Court recognised the principle of comity of
Courts which is applicable when a foreign Court is seized of the issue of custody of
a child prior to the domestic Court , and therefore, observed that considering the
twin principles of comity of Courts and the principle of the best interests and
welfare of the child and keeping in view the "most intimate contact" doctrine and
the "closest concern" doctrine it may be appropriate that the foreign Court having
the most intimate contact and the closest concern with the child is better equipped
and perhaps best suited to appreciate the social and cultural mileu in which the
child has been brought up rather than a domestic Court.Both the petitioner and the
respondent No. 2 are naturalised citizens of U.S.A. and so also their minor sons
Aadil and Aamir. They have been residents of DuPage, Illinois, U.S.A. and are
born and brought up in Illinois. Illinois has been the matrimonial home of the
petitioner and the respondent No. 2. The respondent No. 2, has moved out of the
matrimonial home at DuPage, Illinois, U.S.A., with the minor sons Aadil and
Aamir, admittedly, without any support/consent of the petitioner/father of the
minor children. Taking into consideration the principle of "most intimate contact"
doctrine and the "closest concern" doctrine coupled with the welfare and best
interests of the children, it cannot be ignored that it is the foreign Court i.e. the
Circuit Court of the Eighteenth Judicial Circuit, DuPage County, Illinois, which is
the Court of intimate contact and closest concern, in absence of any pre-existing
orders of a domestic Court in India, to take upon itself the task of the best interests
31
and welfare of the child. The contention on behalf of the respondent No. 2 that the
petitioner should file an application under Sec. 9 of the Guardians and Wards Act,
1890 is also rejected as misconceived. The word "ordinary residence" as defined in
the said Section cannot be construed in a manner where the residence is by
compulsion or it cannot have the same meaning as "the residence at the time of the
application", and therefore, the contention that the since the minors Aadil and
Aamir are residing in Ahmedabad at the moment, the application under Sec. 9 of
the Guardian and Wards Act, 1890 is the only remedy, is also without any merit.
[61] 2016 (4) GLR 2973 [Presentation of Deed for Registration by POA]
DHIRAJLAL BECHARDAS DHAMELIA AND ANR. V.

PRAMODCHANDRA RATILAL GAJJAR AND ORS.
PARA-11: Where a deed is executed by an agent for a principal and the same
agent signs, appears and presents the deed or admits execution before the
registering officer, that is not a case of presentation under Sec. 32(c) of the Act. As
mentioned earlier the provisions of Sec. 33 will come into play only in cases where
presentation is in terms of Sec. 32(c) of the Act. In other words, only in cases
where the person(s) signing the document cannot present the document before the
registering officer and gives a power of attorney to another to present the document
that the provisions of Sec. 33 get attracted. It is only in such a case, that the said
power of attorney has to be necessarily executed and authenticated in the manner
provided under Sec. 33(1)(a) of the Act.
[62] 2016 (4) GLR 3011 [N.A. Permission – Fraud/Suppression]
RAMESHBHAI BHUPATSINH PARMAR V. DISTRICT COLLECTOR,

RAJKOT AND ANR.
PARA-7: From the impugned order passed by the Collector, it appears that the
original owner had suppressed the material fact, while obtaining the N.A.
Permission from the Deputy Collector and while getting the lay-out plans
sanctioned that part of the land bearing Final Plot No. 208 for which N.A.
Permission was being asked for, had already vested in the government in the
32
proceedings under U.L.C. Act. It is needless to say that fraud vitiates all
proceedings, and the orders obtained by suppressing material facts or committing
fraud could be set aside by the higher authority, when it comes to know about the
same. The Collector, therefore, has rightly set aside the order passed by the Deputy
Collector granting N.A. Permission, on having come to know that the mischief was
played by the original owner while obtaining the N.A. Permission from the Deputy
Collector.
[63] 2016 (4) GLR 3204 [Payment of Consideration – Presumption]
PARMAR NARMADABEN WD/O. VITHALBHAI RAMABHAI AND ORS.

V. AMRATLAL MOTIBHAI PRAJAPATI AND ORS.
PARA-6: Considering Sec. 54 of the Transfer of Property Act read with Sec. 92
of the Evidence Act, it can be said that there is a presumption of execution of the
sale-deed, but there cannot be any presumption of actual payment of sale
consideration even if it is mentioned in the sale-deed that a particular amount
towards full sale consideration has been paid. The contents in the sale-deed with
respect to payment of sale consideration are always question of fact which is
required to be proved by leading evidence. It is required to be noted that in the
plaint it is specifically averred and alleged by the plaintiff that though in the sale-
deed it is stated that Rs. 10 Crores towards sale consideration has been paid by
cheques, there is no averment in the application below Exh. 14 submitted by the
original defendant that he has actually paid the full consideration of Rs. 10 Crores
by cheques as stated in the sale-deed and how and by which cheques they are paid.
Under the circumstances, the Court opinion that the suit/plaint is not liable to be
rejected under Order 7, Rule 11(d) of the C.P.C. As per the catena of decisions of
the Hon'ble Supreme Court, while considering the application under Order 7, Rule
11(a) of the C.P.C., only the averments in the plaint are required to be seen.
Considering the averments in the plaint more particularly in Para 6, it cannot be
said that the plaint does not disclose any cause of action. Cause of action pleaded
in the plaint is playing fraud and non-payment of the sale consideration of the Rs.
10 Crores.
33
[64] 2016 (4) GLR 3273 [Examination of POA and then Plaintiff]
CHANDUBHAI LAVJIBHAI LUNAGARIYA V. RAMNIKBHAI

NATHABHAI SARDHARA
PARA-8 & 9: Whether after conclusion of trial, the respondent-plaintiff can

be permitted to offer him as a witness to answer the questions/suggestions which
remained unanswered in the deposition of power of attorney holder. Looking to the
frame of the application Exh. 117, it appears that there is an attempt on the part of
the respondent-plaintiff to overcome the lacuna, which remained in his case. If
such course is allowed, the very purpose and object of right of cross-examination
will be defeated and it will amount to examination of the plaintiff once again in the
matter. The provisions of Sec. 151 of the CPC do not permit such course. In nut-
shell, the respondent-plaintiff adopted such a course to do that which is prohibited
by law or the Code, and therefore, the Court cannot exercise its inherent powers
and permit the respondent-plaintiff to reopen the stage of evidence after
examination of his power of attorney holder the respondent-plaintiff's power of
attorney holder already examined before the trial Court, who dealt with the suit -
transaction for and on behalf of the plaintiff. It is not the case of the respondent-
plaintiff that he comes across some evidence, which he could not lay his hands
earlier or some evidence came into existence after completion of evidence or was
not within the knowledge of Power of Attorney.
[65] 2016 (4) GLR 3281 [Revisional Powers u/s 211 – Limitation]
KAMLABEN BABARBHAI SOLANKI THROUGH POWER OF

ATTORNEY V. STATE OF GUJARAT AND ORS.
PARA-6 & 8: It is open to the State Government under Sec. 211 of the G.L.R.
Code to exercise revisional powers either suo moto or otherwise and to examine
the order or decision of the Collector to find out whether it is legal and proper. This
power could be exercised by the State Government or Revenue Officer at the
instance of any person, even if he is not the aggrieved party. There is nothing in the
said Section to suggest that it could be invoked suo moto only and not at the
instance of the aggrieved or private party. No period of limitation is prescribed for
exercising the powers under Sec. 211, however, the same should be exercised
34
within reasonable time. Since there is no period of limitation prescribed, the
question of condoning delay also would not arise. It is needless to say that the
powers are discretionary in nature, and therefore, the State Government may, if it
deems fit, not entertain the Revision Application on the ground of delay, laches
and acquiescence etc., however, in absence of any specific time limit prescribed in
the said Sec. 211, the same could not be rejected on the ground that it has been
preferred after the prescribed period of limitation.
[66] 2016 (4) GLR (SC) 3329 [Divorce – Settlement – Duty of Court]
VENNANGOT ANURADHA SAMIR V. VENNANGOT MOHANDAS

SAMIR
PARA-14, 19 & 20: In the peculiar facts of the present case if we consider the
instant settlement, which is nothing but a contract to dissolve the marriage, the
Court has to satisfy itself that the contract is legal and valid in the eye of law. From
perusal of the facts of the case and the development which has taken place in the
present case, it seems that the petitioner-Wife agreed for divorce by mutual consent
on the condition that the respondent-Husband will pay her Rs. 12,50,000/- as full
and final settlement. The petitioner-Wife is suffering from such a disease which
has compelled her to agree for the mutual consent divorce. The fact that petitioner-
Wife is ready for the mutual consent divorce after knowing about her medical
condition raises a suspicion in our mind as to whether the consent obtained from
the petitioner-Wife is free as required by law for granting the decree of divorce by
mutual consent. Section 23 casts a duty upon a Court to record its satisfaction
before passing a decree in a suit or proceeding. One more doctrine is to be taken
into consideration i.e. "Pre-existing duty doctrine". It is a principle under the
Contract Act that states that if a party to a contract is under a pre-existing duty to
perform, then no consideration is given for any modification of the contract and the
modification is, therefore, voidable. The Court can apply this principle in the
present case. As discussed above, it is a duty of the respondent-Husband to take
care of the health and safety of the petitioner-Wife. In the instant case also it is a
primary duty of the Husband only to provide facilities for the treatment of the
petitioner. This is a pre-existing duty of the Husband, provided the Husband has
sufficient means and he is diligently doing his part in taking care of her. In the
35
present case, by the settlement agreement the respondent-Husband is promising to
do something which he is already duty-bound, is not a valid consideration for the
settlement.
[67] 2016 (4) GLR 3397 [MACP – Right to Contest]
VARSHABEN DEEPAKBHAI VAGHASIYA V. DRIVER-CUM-OWNER

AND ANR.
PARA-5 & 6: Bare perusal of above two Sections, makes it clear that the
Insurance Company can defend the claim petition only on limited grounds as
enumerated in Sec. 149(2) viz., breach of policy conditions or if policy is void on
the date of accident. Whereas Sec. 170 makes it clear that the Insurance Company
can be impleaded as party only if there is collusion between the claimant and
driver/owner or when driver and owner of vehicle in question fail to contest the
claim. In the present case, when there is positive evidence that the driver and
owner have appeared to contest the claim petitions by filing written statement and
cross-examining the witnesses of the claimants and more particularly when there is
no defense regarding breach of policy conditions by the Insurance Company, in
absence of positive evidence regarding negligence in contesting the claim or
collusion by the driver and owner of the vehicle in question, the Insurance
Company has no right to be made a party to the claim petition or to defend the
same as opponent except notice of commencement of such proceedings by the
Tribunal.
[68] 2016 (4) GLR 3485 [MACP – Hypothecation – Ownership]
HIMMATNAGAR NAGRIK SAHAKARI BANK LTD. V. SURESHKUMAR

JAYANTILAL THAKKAR AND ORS.
PARA-5.14: Considering the definition of "owner" contained in Sec. 2(19)

of the Motor Vehicles Act, 1939, and considering the fact that the appellant-Bank -
creditor was in possession of the Jeep under both the agreements i.e. agreement of
pledge as well as hypothecation agreement, the appellant-Bank can be said to be
"owner" within the definition of Sec. 2(19) of the Motor Vehicles Act, 1939, and
36
therefore, being "owner", the appellant-Bank is liable to pay compensation to the
victim of the accident. Under the circumstances, as such no error has been
committed by the learned trial Court in holding the appellant-Bank jointly and
severally liable to pay compensation to the victim of the accident.
[69] 2015 (1) GLR 152 [Tenancy – Alternative Accommodation]
LILAVATIBEN KANJIBHAI PATEL THROUGH P.O.A. KANJIBHAI T.

PATEL V. MANSUKHLAL AMRUTLAL JOSHI
PARA-6 & 8: A ground under Sec. 13(1)(l) stands established once it is

shown that the tenant has acquired suitable residence. As already noted, it is not
necessary that at the time of passing of decree in the suit, he must be continued to
be in possession. It is the event of a tenant acquiring suitable alternative
accommodation creates a liability in law for him to be evicted from the rented
premises, correspondingly giving right to the landlord to obtain possession.
Whether the acquisition of alternative accommodation is temporary or that the
same was not permanently acquired is also not a valid defence to resist decree for
eviction once the factum of acquisition is established on evidence. The
Government quarters allotted to the defendant-tenant was an accommodation
available to him where he could have gone to stay. What is important is that the
alternative accommodation is acquired by the tenant of his own right and that the
same was available to be occupied by him. Intention of the tenant not to go to
reside to the alternative suitable residence acquired is irrelevant. What matters is
the factum of alternative accommodation acquired or allotted, which is suitable,
and the event of such acquisition or allotment.
[70] 2015 (1) GLR 169 [Compensation in terms of Money – Injunction]
PRAMUKHKRUPA ENTERPRISE THROUGH MANAGING PARTNERS

V. KUNVERBEN CHATURDAS PATEL THROUGH P.O.A.
MAHENDRABHAI C. PATEL AND ORS.
PARA-33: The learned trial Judge was required to address the issue whether the
plaintiffs have plausible case and even if the plaintiffs succeed at the end of trial,
37
then, it was the duty of the trial Court to see whether the plaintiffs are likely to
suffer for the action of the defendants complained of, can be compensated in terms
of money, and if so, whether there is a standard for ascertaining such
compensation. As recorded and found hereinabove, the plaintiffs have willingly
and voluntarily agreed to sell the suit property to the defendant Nos. 2, 2/1 and 2/2
at Rs. 361 lacs. There is no dispute that the plaintiffs have 7.5% shares in the suit
property. Meaning thereby, if the sale transaction goes smoothly as per condition
of sale agreement dated 4-5-2011, in that eventuality, the plaintiffs would get Rs.
27,07,500/-. Except this, plaintiffs cannot get anything more than agreed amount.
In these circumstances, assuming for the sake of argument that the defendants have
forged Power of Attorney dated 11-9-1997 and illegally executed the sale-deed in
favour of the defendant Nos. 2, 2/1 and 2/2, the said action complained of can be
compensated in terms of money because the plaintiffs are entitled to receive Rs.
27,07,500/- of the total sale proceeds of Rs. 361 lacs. Here, it is necessary to note
that learned Advocate for the defendant Nos. 2, 2/1 and 2/2 fairly conceded before
this Court that the defendant Nos. 2, 2/1 and 2/2 are ready and willing to pay 7.5%
of Rs. 361 lacs from 4-11-2011 which is the date fixed for execution of sale-deed
as per condition No. 2 of the sale agreement with interest that may be ordered by
this Court subject to result of the suit.
[71] 2015 (1) GLR 216 [MACP - Composite Negligence – Liability]
ORIENTAL INSURANCE CO. LTD. V. RAVAL RUPSIBHAI PASABHAI

(DECD.) AND ORS.
PARA-14: Tribunal is not only competent to apportion and specify the inter se
liabilities of the driver/owner/Insurance Company, as the case may be, of each of
the offending vehicles, but there is a statutory mandate cast upon the Tribunal in a
case of composite negligence to specify the inter se liabilities of the
owner/driver/Insurance Company as the case may be, of each of the vehicles and
thereafter to specify that in case the claimant recovers the entire awarded amount
from the owner/driver/Insurance Company of one of the offending vehicles, then to
the proportion of the liability of the owner/driver/Insurance Company of the other
offending vehicle/vehicles, the award shall be treated as a decree between the
owners/drivers/Insurance Companies, as the case may be, of the offending vehicles
38
which has been adjudicated in favour of the party who has satisfied the award and
against the party who has also been held liable to the extent of such liability. The
party, who has satisfied the award, shall accordingly be entitled to execute the
decree against the owner/driver/Insurance Company of the other offending
vehicle/vehicles. It would also be permissible for such party to take recourse to the
provisions of Sec. 174 of the M.V. Act.
[72] 2015 (1) GLR 245 [Specific Performance/Injunction – Execution]
GIRISHCHANDRA RASIKLAL SHAH V. HASUMATIBEN JAYANTILAL

RANA
PARA-9: Where a decree for specific performance of a contract or for an

injunction has not been obeyed, the executing Court has power to direct that the act
required to be done may be done so far as practicable by the decree-holder or any
person appointed by the Court. In the present case, the decree for injunction has
not been obeyed by the respondent, therefore, the executing Court has ample
power under the above provision of law to appoint any person, including a Court
Commissioner to perform any necessary act in order to execute the decree.
[73] 2015 (1) GLR 268 [No reference to Electrical Inspector – Effect]
M/S. J.R.K. SEA FOODS PVT. LTD. V. PASCHIM GUJARAT VIJ CO.
LTD. AND ANR.
PARA-12 & 16: When the meter of the petitioner was found running slow to the
extent of 12.83%, it could be said that there was a dispute as to correctness of the
meter. However, since the petitioner did not make any application for referring the
dispute to the Electrical Inspector, it remained bound by the bill given to it for slow
running of the meter. Similarly, when the respondents chose not to apply for
reference to the Electrical Inspector, they would remain bound by their act of
issuing bill for slow running of the meter to the petitioner. It was not open to the
respondents to bypass the reference to Electrical Inspector and to get the meter
tested in the laboratory. The law mandates for decision of the disputes as regards
correctness of the meter only by Electrical Inspector and such mandate cannot be
permitted to be violated by the respondents by taking recourse to laboratory test.
The provisions of Sec. 26(6) of the Act cannot be allowed to be frustrated at the
39
whims of the respondents. The only remedy available to the respondents was to
refer the meter for inspection to the Electrical Inspector under Sec. 26(6) of the Act
after the meter was found running slow. That having not been done, even if the
laboratory test suggested tampering with right side meter body seals and found
duplicate, the petitioner could not have been issued supplementary bill for theft of
energy.
[74] 2015 (1) GLR (SC) 343 [Decretal Amount – Short Payment]
V. KALA BHARTHI AND ORS. V. ORIENTAL INSURANCE COMPANY

LTD., BRANCH CHITOOR
PARA-26: In view of the provisions of Order 21, Rule 1, C.P.C., if the amount
deposited by the judgment-debtor falls short of the decretal amount, the decree-
holder is entitled to apply the rule of appropriation by appropriating the amount
first towards interest, then towards costs and subsequently towards principal
amount due under the decree. The appellants herein are entitled to the amount
awarded by the Executing Court, as the amounts deposited by the judgment-debtor
fell short of the decretal amount. After such appropriation, the decree-holder is
entitled to interest only to the extent of unpaid principal amount. Hence, interest be
calculated on the unpaid principal amount.
[75] 2015 (1) GLR 378 [Order 37 – Leave to Defend – Triable Issues]
CHLOCHEM LTD. V. LIFELINE INDUSTRIES LTD.
PARA-22, 23, & 25: There is no material on record to show that there is an
agreement between the parties regarding the claim of interest. Moreover, the claim
for interest cannot be said to be a liquidated demand. A perusal of Order 37, Rule
1, sub-rule (2) of the Code makes it clear that the dispute does not fall in any of the
sub-clauses of sub-rule (2), in view of the claim of interest made by the petitioner.
This alone raises a triable issue. Therefore, unconditional leave to defend has
rightly been granted by the City Civil Court. The present is also a case where the
account prepared by the petitioner has been seriously disputed by the respondent,
therefore, the principles of law enunciated by the Court in the judgment referred to
would apply squarely to the present case.
40
[76] 2015 (1) GLR 425 [Amendment – Special Provision – Effect]
ISHWARBHAI GIRDHARDAS PABARI V. CHANDALBEN DHIRAJLAL

VARIYA AND ORS.
PARA-17: As per proviso to sub-sec. (2) of Sec. 22 of the Specific Relief Act,
the Court shall, at any stage of the proceedings, allow the plaintiff to amend the
plaint on such terms as may be claimed for possession. The language of the proviso
is mandatory. Moreover, Sec. 22 itself begins with a non-obstante clause. The
Specific Relief Act is a special enactment and Sec. 22 thereof is enacted for a
specific purpose which appears to be to avoid a multiplicity of proceedings. A
specific provision in a special enactment would, therefore, override the procedural
law, more particularly, Order 6, Rule 17 of the C.P.C. Under the circumstances, the
restrictions upon the amendment of pleadings, as placed by the proviso to Order 6,
Rule 17 of the C.P.C. would not be attracted in a case where the amendment of the
plaint is sought in a suit for specific performance of an agreement to sell. The
provisions of Sec. 22 of the Specific Relief Act entitle the plaintiff to claim the
relief of possession in a suit for specific performance of an agreement to sell at any
stage of the proceedings. The case of the petitioner in the present petition is
squarely covered by the provisions of Sec. 22 of the Specific Relief Act.
[77] 2015 (1) GLR 433 [Order 2 Rule 2 CPC – Not claiming of Relief]
SHARDABEN WD/O. BIPINBHAI MANIBHAI PATEL V. THAKORBHAI

ASHABHAI PATEL AND ANR.
PARA-14: Order 2, Rule 2(1) of the C.P.C. requires that civil suit shall include
the whole of the claim to which the plaintiff is entitled in respect to any particular
cause of action. The plaintiff has notice of registration and execution of sale-deed
dated 23-12-2010 when the plaintiff filed first suit on 1-1-2011. In the matter of
specific performance of sale-agreement, subsequent vendee is always necessary
party. The cause of action, namely right to obtain a sale-deed and possession of the
property purchased concerns both the defendants entitles the plaintiff to pray for
the relief against both the defendants. However, the plaintiff without incorporating
relief to cancel the sale-deed in the previous suit and without obtaining any leave,
filed second suit i.e. Special Civil Suit No. 7 of 2011 on 10th January, 2011. Under
41
these circumstances, though the plaintiff has a liberty to challenge the subsequent
sale-deed dated 23-12-2010 in the first suit itself, the plaintiff chose to file second
civil suit i.e. Special Civil Suit No. 7 of 2011 without claiming relief of specific
performance of sale-agreement dated 17-10-2008 against the defendant No. 1. On
this count, the subsequent suit i.e. Special Civil Suit No. 7 of 2011 becomes non-
maintainable in absence of relief for specific performance of sale-agreement dated
17-10-2008.
[78] 2015 (1) GLR 494 [Limitation – Extension of Period – Minor]
RAMANBHAI SHAMALBHAI PATEL AND ANR. V. RAVJIBHAI

MOTIBHAI PATEL AND ORS.
PARA-5, 6 & 8: Section 6 of the Limitation is an enabling Section for a person

with legal disability such as minor, insane, idiot. It entitles such person to sue after
legal disability comes to an end. This is, however, subject to Sec. 8. Section 8
operates as a proviso and is a controlling Section. It says that in no case for a
person who was under disability, entitled to a benefit of Sec. 6, period of limitation
would extend beyond three years from the date the disability of such person has
ceased. Section 6 does not arrest the running of original limitation period which
may be applicable in a given case. It only entitles a person with disability to wait
until the cessation of disability. It was always open for a person with disability to
institute a suit or initiate legal action through his best friend within the limitation
period normally prescribed when right to sue for him accrues. Thus, a person with
disability has a choice. However, if such person with disability opts to wait until
his disability ends, then Sec. 8 will apply and the period of limitation, then in no
case extend beyond three years from the date of cessation of disability. The case
pleaded by the plaintiffs was that in the year 1960, a partition of properties of
deceased Motibhai took place and writing was executed and at that time taking
advantage of minor age of plaintiff No. 1, he was denied his share. If the year 1960
is to be taken as point of time when cause of action for the plaintiffs could be said
to have been accrued, he attained majority on 1st March, 1974 and instituted the
suit on 15th October, 1977, which was clearly time-barred.
42
[79] 2015 (1) GLR 542 [Order 18 Rule 4 CPC – Examination-in-chief]
JAGABHAI MICHARABHAI (DECD.) THROUGH HIS HEIRS V.

VESTABHAI JATARIYABHAI CHAUDHARI AND ORS.
PARA-10, 12, &13: Rule 4 of Order 18 of the Code, as it now stands, is the
result of an amendment that came into force with effect from 1-7-2002, it is no
longer necessary to take oral evidence of the witness in the open Court. Instead of
this, it is now specifically provided that the examination-in-chief shall be on an
affidavit. The legislature has used the word 'shall' that denotes the mandatory
nature of this provision. No exceptions to this rule are provided. The provisions of
Order 18, Rule 4 make no distinction whatsoever regarding appealable and non-
appealable cases. The specific language used in Rule 4 of Order 18 is indicative
that it applies to appealable and non-appealable cases equally. The words "in every
case" indicate that examination-in-chief of a witness shall be tendered on affidavit,
irrespective of whether the case is appealable or non-appealable. The requirement
of tendering the examination-in-chief by way of affidavit would apply in all cases.
It, therefore, follows that the provisions of Order 18, Rule 5 cannot be read as an
exception to Rule 4 of Order 18. Order 18, Rule 5, only lays down the mode and
manner in which evidence is to be taken or recorded in appealable cases. There is
no dispensation of the mandatory requirement of tendering the examination-in-
chief by way of an affidavit. A conjoint perusal of the provisions of Order 18, Rule
4 and Order 18, Rule 5 would make it amply clear that there is no conflict between
the two provisions, which are required to be read harmoniously.
[80] 2015 (1) GLR 597 [Promissory Note – Burden of Proof]
RAMILABEN JASHUBHAI PATEL AND ORS. V. RASIKLAL CHUNILAL

KOTHARI
PARA-5: When the case of the plaintiff was that the Promissory Note was
executed, and it was specifically denied by the defendants in the written statement,
the burden of proving the execution rested on the plaintiff. The plaintiff was
required to lead evidence, and thereby, to shift the onus of proof on the other side.
Focus of consideration is, therefore, that whether the plaintiff led sufficient and
satisfactory evidence strong enough to prove the execution and discharge his
43
burden in law. The plaintiff did not produce any independent evidence except
examining himself to establish the factum of the execution and to prove the
signature. Even in a case where signature is admitted, the burden continues on the
plaintiff to prove the contents. The proof required for establishing the execution of
a Promissory Note would include the proof of signature as well as the proof of
contents thereof when its execution is under dispute. There was no evidence from
his side either to prove the signature or the contents of the Promissory Note.
[81] 2015 (1) GLR 625 [Order u/O. 6. R. 17 CPC – Not Appealable]
RATANJIBHAI MANJIBHAI VAGHELA V. KESARKHA BADARKHA

BLOCH
PARA-11: When there is no provision in the Code for preferring an appeal

against an order passed under Order 6, Rule 17 of the Code, it follows that the
appeal preferred by the respondent against the order of the trial Court rejecting the
application of the respondent under Order 6, Rule 17 of the Code, would not be
maintainable and could not have been entertained by the District Court.
[82] 2015 (1) GLR 644 [Non-registration of Rent Agreement – Effect]
DILIPKUMAR SOMABHAI PATEL AND ORS. V. J. K. AMIN AND CO.

THROUGH ITS PARTNERS AND ANR.
PARA-7: Once the relationship of landlord and tenant existed between the
parties, rights and obligations in law arising by virtue of it would operate. The
landlord would become entitled to seek possession of the rented premises under the
Bombay Rent Act on the permissible grounds including on the ground of sub-
letting under Sec. 13(1)(e) of the Act. It was a statutory ground available to the
landlord to press into service and to obtain possession by proving it. Considered
from these standpoints, non-registration of the rent agreement would not be a
circumstance or aspect of any avail. The act of sub-letting is held to be a
continuous cause of action.
44
[83] 2015 (1) GLR 726 [Births & Deaths Registration – Powers]
PATEL BHAVESH VISHNUBHAI V. STATE OF GUJARAT
PARA-17: The respondent No. 2 has been empowered by Sec. 15 of the Act and
Rule 11 of the Rules to make a correction in any entry in the Register of Births and
Deaths, or to cancel such entry. Of course, the procedure envisaged in Sec. 15 of
the Act and Rule 11 of the Rules will have to be followed. Without following such
procedure, respondent No. 2 cannot state in the affidavit-in-reply, that the
petitioner did not produce sufficient material when, evidently, the application has
been decided by him on the sole ground that he does not have the power to make
the necessary corrections.
[84] 2015 (1) GLR 884 [Order 23 Rule 3 CPC – Simple Withdrawal]
TULEBAHADUR MAHAVIR PRASAD (SINCE DECD.) THROUGH

HEIRS V. DINESHBHAI SHIVLAL PATEL AND ORS.
PARA-11 & 13: Simply because it is mentioned in the withdrawal Pursis that
since the settlement is arrived at, the suit is not to be prosecuted further, it could
not be termed as an agreement or compromise in writing between the parties as
contemplated under Order 23, Rule 3 of the Code. It would also not warrant any
satisfaction of learned Judge as required by Order 23, Rule 3 of the Code.
Therefore, the withdrawal Pursis could be said to be just a volition of the plaintiffs
to withdraw the suit without inviting any further order from the Court. Such
request for withdrawal of the suit is not to be decided under Order 23, Rule 3 of the
Code. Learned Judge, therefore, could not have refused to accept the withdrawal
Pursis and dispose of the suit on the basis of the said Pursis. Undisputedly, the
respondent No. 7 wanted to join as plaintiff in the suit on the basis of the
agreement to sell dated 27-4-2009. The reliefs claimed in the suit are not against
the respondent No. 7. In the suit, the plaintiffs have claimed rights as co-owners
against other co-owners and the purchasers of their share in the property.
Therefore, even if the suit was to be allowed and decreed or even if the suit was to
be disposed of on the basis of out of Court settlement between the parties to the
suit, in noway, the rights of the respondent No. 7 were to be affected being not
45
party to the suit. The right which the respondent No. 7 has is to enforce his
agreement. Therefore, it is always open to the respondent No. 7 to enforce the
agreement to sell by taking recourse to law.
[85] 2015 (1) GLR 899 [MACP – Travelling on the Roof of Train]
KALLUPRASAD KRUSHNANAND DUBE AND ANR. V. UNION OF

INDIA
PARA-7: The First Proviso of Sec. 124A inter alia says that no compensation
shall be payable if the passenger dies or suffers injuries due to, as per clause (c),
his own criminal act. Section 156 is clear to provide travelling on roof by
passenger to be a criminal act. Therefore, a passenger travelling on the roof
commits a criminal act by virtue of his conduct and would not be entitled to seek
compensation, even if he suffers injuries or dies. Such passenger may have
purchased a valid ticket, but when he travels on the roof for whatever reasons, in
respect of injury or death, he may suffer, the railways cannot be held liable to
compensate. A person who sits on the roof and travels, cannot be termed as
"passenger" within the scope of explanation to the First Proviso to Sec. 124A,
inasmuch as the requirement to be a passenger is not only just purchase of a valid
ticket, but "travelling by a train carrying passengers". A person who sits on the roof
of the bogie or train and travels is not same as "travelling by a train carrying
passengers". In order to be a bona fide passenger, the passenger must travel within
the space or portion provided by the railways for the purpose of passenger to
travel. Roof of bogie is not such space provided. When a passenger is inside the
train and falls down, or that a passenger falls down while trying to board into the
bogie or train and falls down, the concept of strict liability under Sec. 124A
applies. An accidental falling in course of a criminal conduct or while doing a
criminal act cannot come within the definition of "untoward incident" in Sec.
123(c)(2) for the purposes of Sec. 124A. A passenger travelling on the roof would
be outside the purview and his falling down is not an "untoward incident".
46
[86] 2015 (1) GLR 907 [Maintenance u/s 24 pending Appeal]
HANSABEN W/O. ASHWINKUMAR K. PATEL V. ASHWINKUMAR

KACHARABHAI PATEL
PARA-12: Section 24 of the H.M. Act provides for interim maintenance pending
proceedings under the said Act either in favour of the wife or the husband when the
Court finds that he has no independent income sufficient for her or his support and
that necessary expenses of the proceedings. It is well settled that an appeal is
continuation of the original proceeding. In the appeal filed by the husband,
therefore, the proceeding arising in the Family Suit thus continue. It would,
therefore, not be difficult to arrive at a conclusion that an application under Sec. 24
of the H.M. Act, would lie at an appellate stage. It would be incorrect to suggest
that once the proceedings before the trial Court are over, provisions of Sec. 24
would not apply at an appellate stage. Besides, there is nothing in Sec. 24 of the
H.M. Act to suggest that if no such application for maintenance pendente lite was
filed before the Court below, the same cannot be presented for the first time before
the appellate Court. Equally, it makes no difference whether such an application
has been presented by the wife or the husband. Section 24 of the H.M. Act only
refers to any proceedings where either the wife or the husband can claim such
interim maintenance, if it is established that he or she had no independent income
sufficient for her or his support and necessary expenses for the proceedings.
[87] 2015 (2) GLR 941 [Grant of Probate – Jurisdiction/Requirement]
SHASHIBEN BACHUBHAI RANA IN RE. V. *
PARA-5 & 6: In a matter of issuance of probate, the prime requirement would

be, 'whether the Will of the deceased was proved or not'? If the Will is found to be
proved and as per the contents of the Will, the person in whose favour bequeath is
made, has applied for the probate of the Will, such can be granted unless the
genuineness of the Will is doubted or any person affected by the Will may be the
legal heirs of the executants of the Will or otherwise have raised any objections. If
any objections are raised, in a given case, the Court may be required to be
examined the aspect as to whether the Will is genuine or not? or the Court may
further examine the aspect for the inter-se rights, if such arises out of Will. But in a
47
case where no objections are filed by any of the person and the Will is proved, the
person in whose favour the property is bequeathed or the administrator of the Will
would be entitled to get the probate. Apart from the above, on the second aspect, it
appears to us that the learned Judge misdirected himself. It is true that as per the
decisions; in case of Minaxiben S. Patel v. District Collector, Gandhinagar, 2007
(1) GLR 277 as well as in case of Clearance Paise v. Union of India, AIR 2001 SC
1151 it may not be mandatory to get probate for a Will executed by Hindu in
respect of the property situated outside the presidential area, but thereby, the Bar
would not operate over the jurisdiction of the Court to issue probate. If any person
who is beneficiary of the Will or any administrator of the Will is desirous to get
probate voluntarily and the genuineness of the Will is proved before the Court and
nobody has raised any objections, the application cannot be dismissed on the
ground that it is not compulsory for the beneficiary of the Will to get the probate.
[88] 2015 (2) GLR 944 [MACP – Involvement of Vehicle – Proof]
GITABEN DINESHBHAI THAKKAR AND ORS. V. MUSABHAI

AHMEDBHAI GARASIYA AND ORS.
PARA-6: Now, so far as the contention on behalf of the original claimants

before the learned Tribunal that the police filed the charge-sheet against original
opponent No. 1-driver of Luxury Bus and therefore, involvement of Luxury bus is
established and proved is concerned, the aforesaid plea is not available as,
subsequently, the original opponent No. 1-driver of Luxury Bus No. GJ-1-T-5144
has been acquitted. Now, so far as the reliance placed on the decision of this Court
in Damor Kacharabhai Ghanabhai, 2006 (3) TAC 722 (Guj.), by the learned
Advocate appearing for the claimants in support of his submissions that as
observed by the Division Bench in the said decision, strict rules of evidence cannot
be made applicable to the claims under the Motor Vehicles Act is concerned, there
is no dispute about the proposition of the law laid down in the said decision.
However, it has to be noted that there must be some evidence to prove the
48
involvement of Luxury Bus No. GJ-1-T-5144 in the accident, which is lacking in
the present case.
[89] 2015 (2) GLR 957 [Mischief in Meter-wiring – Presumption]
DHIRAJBHAI ISHWARLAL GOGIA V. APPELLATE AUTHORITY AND

ELECTRICAL INSPECTOR, PASCHIM GUJARAT VIJ CO. LTD.,
RAJKOT AND ANR.
PARA-11: In laboratory testing, seal wires of all the seals were found to have
been cut, the seal wires were so placed that they can easily be removed from the
sealing screws and from the meter body, must lead to one and only one, inevitable
inference that it was nobody else than the petitioner who was interested in seeing
that he draws an undue benefit by not paying for the actual electricity
consumption.
[90] 2015 (2) GLR (SC) 1002 [MACP – Income of Housewife]
JITENDRA KHIMSHANKAR TRIVEDI AND ORS. V. KASAM DAUD

KUMBHAR AND ORS.
PARA-11: Even assuming the deceased was not self-employed doing embroidery
and tailoring work, the fact remains that she was a housewife and a home-maker. It
is hard to monetize the domestic work done by a house-mother. The services of the
mother/wife is available 24 hours and her duties are never fixed. The Courts have
recognized the contribution made by the wife to the house is invaluable and that it
cannot be computed in terms of money. A house-wife/home-maker does not work
by the clock and she is in constant attendance of the family throughout and such
services rendered by the home-maker has to be necessarily kept in view while
calculating the loss of dependency. Thus even otherwise, taking deceased as the
home-maker, it is reasonable to fix her income at Rs. 3,000/- per month.
49
[91] 2015 (2) GLR 1080 [Lok Adalat – Award is a Decree]
RAMABHAI MALJIBHAI PARMAR (SINCE DECD.) V. SPECIAL LAND

ACQUISITION OFFICER AND ORS.
PARA-11 & 13: As per Sec. 21 of the Legal Services Authorities Act, every
award of the Lok Adalat is deemed to be a decree of a Civil Court or, as the case
may be, an order of any other Court. Thus, not only such award made by Lok
Adalat is a decree of the Civil Court, but has become executable award of the
Reference Court, as Sec. 21 of the Legal Services Authorities Act also refers about
the order of any other Court. Such award, therefore, could be relied on for the
purpose of Sec. 28A of the Old Act.
[92] 2015 (2) GLR 1087 [Secondary Evidence – Procedure]
PATEL RAMESHBHAI DAHYABHAI V. PATEL PRANAV KIRITBHAI

(VANDANA) AND ORS.
PARA-5: Section 65 of the Evidence Act deals with the cases in which
secondary evidence relating to documents may be given. Section 66 mentions
about rules as to notice to produce. Section 65 inter alia reads clause (a) provides
that secondary evidence may be given of the existence, condition, or contents of a
document when the original is shown or is in possession or power of a person
against whom the document is sought to be proved and when after the notice
mentioned in Sec. 66, such person does not produce it. As per Sec. 66, secondary
evidence of the contents of the document referred to in clause (a) of Sec. 65 shall
not be given unless the party proposing to give such secondary evidence as
previously given to the party in whose possession document is, a necessary notice
to produce it. Since the case of the plaintiff was that document (Mark 3/1) was in
the custody of defendant No. 1 and the plaintiff produced only xerox copy, if he
wanted to rely on the said secondary evidence, he was enjoined to give notice to
produce as required under Sec. 65(a) read with Sec. 66 above. The plaintiff did not
gave any such notice. The view taken by the Courts below, therefore, that Mark 3/1
was not liable to be accepted as secondary evidence was proper.
50
[93] 2015 (2) GLR 1109 [Order 6 Rule 17 CPC – Amendment – Delay]
SHAILESHKUMAR NATHALAL MODH AND ORS. V. CHAUDHARY

TAKAHATBEN KESHARBHAI
PARA-8: After the amendment of Rule 17 of Order 6 of the Code, no

application for amendment is to be allowed after trial has commenced unless the
Court comes to the conclusion that in spite of due diligence, parties could not raise
the matter before commencement of trial. In other words, proviso to Order 6, Rule
17 of the Code, put an embargo on the exercise of jurisdiction by the Court unless
the jurisdiction fact, as envisaged in proviso, is found to be existing. With a view
to first ensure, whether the plaintiffs had exercised due diligence so as to enable
the Court to examine their application for amendment or not, it requires to be noted
that unfortunately, the amendment application is absolutely silent on this issue. It is
an admitted fact that the plaintiffs, prior to filing of the suit and pending suit, were
well aware of the consistent case of the defendant that the defendant has agreed to
sale the suit land as per Agreement to Sale dated 9-4-2007 for Rs. 36/- per sq.ft.,
therefore, amendment of nature, as sought for, is not to be allowed at the asking of
a party and as a matter of course. The Legislature in its wisdom and with a view to
curb menace of the litigation being prolonged felt necessity to circumvent same.
And with a view to achieve this object, amended C.P.C. vide Code of Civil
Procedure (Amendment) Act, 2002 adding proviso to Order 6, Rule 17 of the
Code.
[94] 2015 (2) GLR 1040 [Powers to convert the Land u/s 70A]
STATE OF GUJARAT AND ORS. V. MAGANBHAI V. DESAI & ORS.
PARA-13: The Government has inserted Sec. 70A of the Tenancy Act by way of
the Gujarat Tenancy and Agricultural Lands (Amendment) Act, 2014. In view of
the aforesaid clear-cut provisions of Sec. 70A, it clearly indicates that now the
question as to whether the Mamlatdar has any power to remove the restriction or
not has become irrelevant and even if the Mamlatdar has exercised the power of
conversion of land from new tenure to old tenure, and thereafter, if the transaction
of sale has been taken place, the power to regularize such sale by levying rupee
one as the penalty and in consideration of payment of such amount as may be
51
determined by the State Government, is vested with the Collector in view of
provisions of Sec. 70A.
[95] 2015 (2) GLR (SC) 1175 [MACP – Contributory Negligence]
ASHVINBHAI JAYANTILAL MODI V. RAMKARAN RAMCHANDRA

SHARMA AND ANR.
PARA-14: From the evidence produced on record, the two-wheeler of the

deceased was dragged up to a stretch of about 20-25 feet on the road after the
collision with the offending truck. We are of the considered view, that to be able to
create this kind of enormous effect on the two-wheeler of the deceased, the
offending truck must have been travelling at a fairly high speed and that its driver
did not have sufficient control over his vehicle. The driver of the offending truck
should have been aware that he was driving the heavy motor vehicle and taken
sufficient caution. We do not see any direct evidence that shows negligence on the
part of the deceased that led to the accident. Therefore, as per the principles laid
down by this Court in the case referred to above in this aspect, the contributory
negligence apportioned by the Courts below on the part of the deceased, is set
aside.
[96] 2015 (2) GLR 1228 [MACP – Transfer of Dealership/Business]
NATIONAL INSURANCE COMPANY LTD. V. DINESHBHAI G. PATEL

(DECD.) THROUGH L.RS.
PARA-8: After the death of the deceased, dealership of petrol pump came to be
transferred in the name of the widow of the deceased and the business of running
petrol pump has been continued and the family members/claimants are receiving
the same income, rather some more income by running the petrol pump which the
deceased was running. Therefore, as such there is no loss of income from the
business of the petrol pump to the family members of the deceased. Therefore, as
such the learned Tribunal has materially erred in awarding future economic loss
considering family dependency at Rs. 9,350/- per month considering the income of
52
the deceased at Rs. 14,000/- per month. However, at the same time, it cannot be
lost sight that after the death of the deceased and for the purpose of running petrol
pump and even as admitted by the son of the deceased in his cross-examination
that for the purpose of running petrol pump they were required to engage one
person for administration and management of the business of running petrol pump,
who has been paid Rs. 2,000/- to Rs. 2,500/- per month, and therefore, the
claimants would be entitled to the said amount. Similarly, when widow of the
deceased is running petrol pump after the death of the deceased, she would be
entitled to reasonable amount towards supervision also, considering the fact that
one another person was engaged for supervision and management of the petrol
pump on payment of salary at Rs. 2,000/- to Rs. 2,500/- per month, and therefore,
if an amount of Rs. 2,500/- per month is awarded towards the supervision by
widow of the deceased, it will meet the ends of justice.
[97] 2015 (2) GLR 1416 [Births & Deaths Registration – Correction]
MADHAVI SANDIP PATEL V. REGISTRAR - BIRTH AND DEATH

DEPARTMENT
PARA- 18, 21 & 22: A perusal of sub-rule (4) of Rule 11 of the Rules, makes
it clear that it is the duty of the Registrar to correct an erroneous entry in the
Register of Births and Deaths in the manner prescribed by Sec. 15 of the Act and
Rule 11, upon production by that person a declaration setting forth the nature of the
error and true facts of the case made by two credible persons having knowledge of
the facts of the case. In the present case, it does not appear from the record that the
petitioner was given a chance to produce any further documents or declarations.
The petitioner has produced an affidavit of her mother. If, the respondent was of
the view that further evidence is required, it was the duty of the respondent to call
upon the petitioner to produce the necessary evidence. Without doing so, it is not
open to the respondent to reject the application of the petitioner. Moreover, delay is
not a factor that can prevent the respondent from exercising the jurisdiction vested
in him, as Sec. 15 of the Act does not prescribe any period of limitation.
53
[98] 2015 (2) GLR 1446 [MACP – Reimbursement from Two Sources]
UNITED INDIA INSURANCE CO. LTD. V. HASUMATIBEN KANUBHAI

PATEL AND ORS.
PARA-8: Whether having received Rs. 4,45,000/- by the owner of the vehicle
from her Insurance Company-United India Insurance towards settlement of her
claim under the insurance policy of covering risk of "own damage" to the car,
whether the original claimant-owner of the motor car in question can maintain the
claim petition to recover the compensation towards the damage caused to the
motor car from the tort-feasor-appellant ? The claimant should not be permitted to
earn profit out of accident which he met. Whatever expenses are incurred, he is
entitled to get reimburse but no law provides that he can get reimbursement from
two sources resulting in undue enrichment. As observed herein-above, if the
contention on behalf of the original claimant is accepted, in that case, as observed
hereinabove, owner of the vehicle will get more amount then the actual market
value/value of the motor car and to that extent the claimant shall earn profit, which
is not permissible. Therefore, on the ground of unjust enrichment and/or double
benefit the amount of Rs. 4,45,000/- which the owner of the car received from her
Insurance Company towards "own damage" to the car is required to be deducted,
while awarding the compensation towards damage caused to the motor car from
the appellant.
[99] 2015 (2) GLR 1605 [RTI – BPL - Voluminous Information]
THAKOR SARDARJI BHAGVANJI V. STATE OF GUJARAT
PARA-8, 10 & 11: Since the information sought is voluminous, it would

indeed be uneconomical to make copies of every piece of paper contained in the
relevant files. The appellant-original petitioner claiming to be a B.P.L. card-holder
demanding voluminous information without assigning any reason is itself
indicative of abuse of process of law. Photocopying such documents will certainly
kill thousands of human hours as well as manpower and supplying such
54
voluminous information under the guise of B.P.L. at the cost of public exchequer
cannot, at any stretch of imagination, be the object of any legislation. Moreover,
acceding to such request may be akin to opening Pandora's Box. The competent
authorities have been vested with the power to decline furnishing of an information
under certain circumstances and in the specified situations. For disclosure of
information, which involves the question of prejudice to a third party, the
concerned authority is required to issue notice to the third party who can make a
representation. Thus, it involves an adjudicatory process. It is not mandatory for
the authorities to allow all requests for information in a routine manner. The Act
imposes an obligation upon the authorities to examine each matter seriously being
fully cautious of its consequences and effects on the rights of others. It may be a
simple query for information, but can have far-reaching consequences upon the
right of a third party or an individual with regard to whom such information is
sought. Undue inroad into the right to privacy of an individual which is protected
under Art. 21 of the Constitution of India or any other law in force would not be
permissible. However, in the present case, the appellant has asked for copies of
registered documents belonging to various other parties, and in that case, it would
next to impossible to issue notices to all such parties and to adjudicate their
matters. As the application made by the appellant is nothing but an abuse of
process of the Act, and appears to have been made by the appellant-original
petitioner on instruction of someone which has not been disclosed.
[100] 2015 (2) GLR 1680 [Section 145 CrPC – Applicability – Duties]
KANAIYANAND @ KANAIYALAL RAMBASANT PANDEY V.

BINDADEVI HIRANAND PANDEY AND ORS.
PARA-32: The jurisdiction conferred upon an Executive Magistrate under Sec.

145 of the Cri. Pro. Code is an exceptional one and the provisions of the Section
should have to be strictly followed while taking action under it. The object of the
Section is not to provide parties an opportunity of bringing their civil disputes
before a Criminal Court or of maneuvering for possession for the purpose of the
subsequent civil litigation, but to arm the Magistrate concerned with power to
maintain peace within his local area. Therefore, a duty is cast on the Magistrates, to
55
guard against abuse of provisions by persons using it with the object of getting
possession of property while attempting to drive the other side to a Civil Court.
The very jurisdiction of the Magistrate to proceed under this Section, arises out of
his satisfaction, of a dispute likely to cause breach of peace either on a report of a
Police Officer or upon other information, which satisfaction must be reflected in
the order which he should make in writing, stating the grounds of his satisfaction.
The provision of making the order in writing after initial satisfaction and stating
the grounds of his satisfaction have been held to be mandatory.
[101] 2015 (3) GLR 1944 [MACP – Contributory Negligence]
DAXABEN PARSOTTAMBHAI DHAMI L.H. OF PARSOTTAMBHAI

HARIBHAI AND ORS. V. LERUJI DINAJI BHATI (VANJARA)
PARA-6: The panchnama shows that the scooter of the deceased was found near
white strip which is on the centre of the road. The motor-cycle had jerk marks on
the right side. The story narrated by the complainant is that the truck came from
the front side and dashed with the motor-cycle resulting into the accident. If jerk is
given by the truck to the motor-cycle on the right side, the motor-cycle may be
thrown on the extreme left side of the road. In spite of that, the motor-cycle, as per
the panchnama, even after the accident is found nearby the centre of the road
nearing white strip on the center of the road. The accident has happened during day
time in the morning 7-00 O'clock. Therefore, had the deceased driving the vehicle
on the extreme left of the road, the chances of avoiding the accident could not be
ruled out. But at the same time, more care was required to be taken on the part of
the driver of the truck for the small vehicles being driven by the persons coming
from the front side. Under these circumstances, the Tribunal has assessed the
contributory negligence to the extent of 18% to the driver of motor-cycle, i.e.,
deceased and 82% to the driver of the truck. In our view, it cannot be said that the
Tribunal has taken any unreasonable view, which may call for interference in
exercise of the appellate power.
56
[102] 2015 (3) GLR 2047 [MACP – Perks beneficial to Family]
JASBHAI BHAILALBHAI PATEL AND ORS. V. BALMURBHA K.

MUNIPATE DEVRE AND ORS.
PARA-5: As observed by the Hon'ble Supreme Court in the case of Indira

Srivastava, AIR 2008 SC 845, the amounts which were required to be paid to the
deceased by his employer by way of perks, should be included for computation for
his monthly income. It is observed and held by the Hon'ble Supreme Court in the
aforesaid decision that while considering the accident compensation and
considering the income of the victim, not only pay package, but perks which are
beneficial to his family, also must be considered. However, at the same time, all
the perks/allowances which were received by the deceased employee are not
required to be included in the income for the purpose of awarding future economic
loss. There are certain allowances which go with the person and which are paid for
the personal use and for the concerned employee and they are paid by virtue of his
profession. Thus, while considering the income of the victim/deceased employee
the allowances like washing allowance, conveyance allowance are not required to
be included while determining the income for the purpose of awarding future
economic loss. It is required to be noted that in the present case, as such, even the
conveyance allowance was reimbursed on producing the vouchers and conveyance
allowances are paid to an employee for the purpose of his conveyance/travelling
expenses from his residence to office and office to residence. Under the
circumstances, the said conveyance allowance is not required to be included in the
income of the victim for the purpose of awarding future economic loss. Similarly,
the overtime allowance also is not required to be included in the income of the
victim.
[103] 2015 (3) GLR 2109 [MACP – Increase of Income in Future]
FULSHANKAR UMIYASHANKAR PANDIT THROUGH HEIRS V.

GUJARAT STATE ROAD TRANSPORT CORPORATION AND ORS.
PARA-6: The prospective income which ought to have been considered has not
been considered by the Tribunal. As a matter of fact, the effect of rise in prices
which directly impacts the cost of living is minimal on the rich and maximum on
57
those who are self-employed or who get fixed income/emoluments. They are the
worst affected people. Therefore, they put extra efforts to generate additional
income necessary for sustaining their families. The salaries of those employed
under the Central and State Governments and their agencies/instrumentalities have
been revised from time to time to provide a cushion against the rising prices and
provisions have been made for providing security to the families of the deceased
employees. The salaries of those employed in private sectors have also increased
manifold. Till about two decades ago, nobody could have imagined that salary of
Class IV employee of the Government would be in five figures and total
emoluments of those in higher echelons of service will cross the figure of rupees
one lac. Although, the wages/income of those employed in unorganized sectors has
not registered a corresponding increase and has not kept pace with the increase in
the salaries of the Government employees and those employed in private sectors,
but it cannot be denied that there has been incremental enhancement in the income
of those who are self-employed and even those engaged on daily basis, monthly
basis or even seasonal basis. It would be reasonable to say that a person who is
self-employed or is engaged on fixed wages will also get 30 per cent increase in his
total income over a period of time and if he/she becomes victim of accident then
the same formula deserves to be applied for calculating the amount of
compensation.
[104] 2015 (3) GLR (FB) 2202 [Gujarat State Social Welfare Board is “State]
BHAVSAR URMEEBEN KANAIYALAL V. STATE OF GUJARAT

THROUGH THE DIRECTOR SOCIAL SECURITY AND ORS.
PARA-8: It needs to be held that, the Gujarat State Social Welfare Board is
controlled by the Government(s) and there is 'deep and pervasive' control of the
Government inasmuch as by the Rules of the Board itself, the employees of the
State Board are directed to be governed by the State Government Rules in terms of
their service conditions, and further, the State Board is also to follow the State
Government Rules in case of other financial and administrative matters. For the
reasons recorded above, our view is that, the Gujarat State Social Welfare Board is
'State' within the meaning of Art. 12 of the Constitution of India and is amenable to
the writ jurisdiction of this Court.
58
[105] 2015 (3) GLR 2282 [Court Fees – ONGC Pipeline Matters]
RAJ DILAWARSINH CHANDRASINH'S HEIRS MAHENDRASINH AND

ORS. V. GAS AUTHORITY OF INDIA LTD. AND ORS.
PARA-12: The State Government is not empowered to charge any fee, under the
Gujarat Court Fees Act, 2004, on an application, that may be filed by any party to
the District Judge, invoking Sec. 10 of the Petroleum and Minerals Pipelines
(Acquisition of Right of User in Land) Act, 1962.
[106] 2015 (3) GLR 2584 [Granting of Probate – Jurisdiction]
TUSHARBHAI NATWARLAL PATEL V. RAKSHIT NATWARLAL

PATEL
PARA-31, 33, & 34: Section 24 of the Gujarat Civil Courts Act, 2005 provides
that the High Court may invest any Senior Civil Judge, within such local limits and
subject to such pecuniary limitation as may be specified in such order, with all or
any of the powers of a District Judge or a Court of District Judge under the
Succession Act. Under Rule 255 of the Civil Manual, the High Court has appointed
all Civil Judges to act for the District Judge as delegates to grant probate and letters
of administration under the Succession Act. Similarly Sec. 15 of the Civil
Procedure Code provides that every suit shall be instituted in the Court of lowest
grade competent to try it. Therefore, when the concurrent jurisdiction is given to
the District Court as well as to the High Court to entertain testamentary petition,
the testamentary proceedings are required to be filed before the District Court first.
Under Sec. 299 of the Succession Act, an appeal can be preferred to the High
Court against the order passed by the District Court while exercising the powers
conferred upon him under the said Act. Thus, if the testamentary petition is directly
filed before this Court, then the aggrieved party will not get a chance to prefer
statutory appeal.
59
[107] 2015 (3) GLR 2681 [MACP – Prospective Income – Age Group]
ORIENTAL INSURANCE CO. LTD. V. KOKILABEN WD/O.

ARVINDBHAI CHHAGANBHAI DODIYA AND ORS.
PARA-4.9: The Tribunal has committed error in considering the prospective

income of the deceased to the extent of 50% though the deceased was aged 48
years. As per the decision of the Apex Court in the case of Smt. Sarla Verma v.
Delhi Transport Corporation, reported in 2009 (6) SCC 121 : [2010 (1) GLR 17
(SC)] normal prospective income would be 30% for the age group of 40 to 50
years. Hence, if 30% is added towards the prospective income, such amount would
come to Rs. 4,500/- per month. Hence, per month including prospective income,
the income would be Rs. 19,500/- and per annum, it would be Rs. 2,34,000/-. Out
of the said amount, future deduction towards income tax would be required to be
considered. The date of accident is 16-1-2003 and the exemption limit in the
income tax was Rs. 50,000/-. Hence, after exemption limit, the taxable income
would be Rs. 1,84,000/-. A judicial notice can be taken of the fact that the
exemption-limit for the subsequent year has been substantially increased and the
tax slabs have also subsequently gone down. Under the circumstances, we find it
proper to consider the deduction at the rate 10% for income tax. Accordingly, the
income tax deduction would be Rs. 18,400/- per annum, which can be rounded off
to Rs. 18,500/-. If the income tax deduction is considered of Rs. 18,500/-, the net
amount would come to Rs. 2,15,500/- per annum. (Para 4.8)The Tribunal has
committed error in deducting 1/3rd amount towards personal expenses in spite of
the fact that the number of claimants were exceeding 3. It is an admitted position
that number of claimants 5, and therefore, as per the decision of the Apex Court in
Smt. Sarla Verma, [2010 (1) GLR 17 (SC)], 1/4th of the amount was required to be
deducted towards personal expenses of the deceased. Out of the aforesaid amount
of Rs. 2,15,500/-, 1/4th amount would come to Rs. 53,875/- and 3/4th amount
would come to Rs. 1,61,625/-, which can be considered towards economic loss per
annum.
60
[108] 2015 (3) GLR 2760 [Order 7 Rule 11 CPC – Considerations]
BAHADURBHAI LALJIBHAI MALHOTRA V. AMBALAL JOITARAM

HEIR OF JOITARAM RANCHHODDAS AND ORS.
PARA-10: According to the plaintiffs, they were not aware about the subsequent
sale executed on 2-5-2003. Only shortly before filing of the suit, they were
prevented from use and enjoyment of the property upon which they inquired and
learned about the execution of the sale. For the purpose of deciding the defendants'
application under Order 7, Rule 11, the Court would have to proceed on such basis,
particularly, in absence of any clinching and irrefutable indication to the contrary
presented before it or before the Court below by the defendants. If these averments
are, therefore, at this stage to be accepted, the suit which was filed within a short
period of such knowledge, would not ordinarily be hit by limitation.
[109] 2014 (1) GLR 53 [Notice u/s 12(2) of the Land Acqui. Act]
MAVJI BHOJA KOLI V. STATE OF GUJARAT AND ANR.
PARA-12: When the notice under Sec. 12(2) of the Land Acquisition Act did not
include the contents of the award, it cannot be said as a valid notice under Sec.
12(2) of the Act. Once, the said conclusion is arrived at, the requirement of 6
weeks would not operate but the matter will have to be considered as from the date
of the award. The award is dated 5-3-2012, whereas, the application has been made
on 4-7-2012 i.e. within a period of 6 months from the date of the award. Therefore,
it cannot be said that the applications made by the petitioner were barred on the
date when it was made.
[110] 2014 (1) GLR 108 [Effect of Remarriage Pending Appeal]
RITABEN ASHWINKUMAR PARMAR V. ASHWINKUMAR MANILAL

PARMAR
PARA-17 & 23: If a party after getting a divorce by a trial Court intends to
remarry, it is the duty of such party to ascertain on the date of marriage whether
any appeal has been preferred in the meantime by the other spouse. Viewing
second marriage had taken place, the husband is not entitled to a decree for
61
divorce, and cannot be allowed to take advantage of his own wrong. It is well
settled that what cannot be granted directly cannot be achieved indirectly.
[111] 2014 (1) GLR 155 [Granting of Probate – Requirement]
GIRIRAJSINHJI S/O. MAHARAJKUMAR SHIVRAJSINHJI JADEJA, IN

RE V. *
PARA-14: In Minaxiben Shashikanthbhai Patel's case, [2007 (1) GLR 277] this
Court has not laid down that when the property is situated outside the cities of
Calcutta, Madras and Bombay and the executor of the Will is a Hindu, then in that
case no probate can be granted. There is no bar for grant of probate either under the
Succession Act, 1925, nor has been so laid down in Minaxiben Shashikantbhai
Patel's case, [2007 (1) GLR 277]. It may be borne in mind that in Minaxiben
Shashikantbhai Patel's case , rejection of the application by the District Collector
had led the Court to examine the issue, while in the present case, the Court has
proceeded to give advice to the applicants that they should not incur expenditure
for obtaining probate. By holding so, the Court rejected the applicants' application.
Such a crude reasoning deserves criticism.
[112] 2014 (1) GLR 470 [Order 39 Rule 3 CPC – Notice is rule]
TECNIMONT I.C.B. PVT. LTD. V. AFCONS INFRASTRUCTURE LTD.

AND ORS.
PARA-27 & 31: To issue notice is a rule and to issue injunction without issuance
of notice is an exception which is to be resorted to in a case where the Court would
find that the object of granting injunction would be defeated by delay. In the
present case, it is not possible to say that if the Court had issued show-cause notice,
then the other side would have so altered the position by that time that it would
have defeated or frustrated the object. The Court has committed serious error in
granting ex-parte ad-interim injunction in disregard of the proviso to Rule 3 of
Order 39 of the Code of Civil Procedure.
62
[113] 2014 (1) GLR 486 [Section 24 CPC – Transfer – Requirements]
KALPTARU LAND (SURAT) PVT. LTD. V. DISTRICT COURT SURAT

THROUGH PRINCIPAL DISTRICT JUDGE
PARA-7: What is expected from the respondent was to add few words related to
the confidential letters of the High Court on its administrative side and in the
public interest. The only reason shown in the impugned order 'public
administration' is not enough because the party could not get any clue from the said
ground 'public administration' as to what was the reason, more particularly, when
neither the concerned Judge has shown any grievance nor any party has made any
grievance related to the said transfer of the suits. Section 24 of the Code has not
given unfettered powers or discretion either to the District Court or to this Court to
transfer the suit without any reason. Moreover, cogent reasons are required to be
mentioned in the impugned administrative order for which the petitioner or a party
is definitely entitled to know the same. A judge is impartial administrator of law
and "judicial balance" is mark of his authority and source of respect to judicial
system.
[114] 2014 (1) GLR 503 [Transfer of Tenancy by way of Partnership]
SHERA IBRAHIMBHAI LAMALBHAI V. HEIRS OF JAYANTILAL

FOJALAL CHOKSHI
PARA-6: The evidence which was on record tore the veil to show that the
partnership was a device created wherein the tenant had transferred his interest and
possession in favour of defendant No. 2. In Associated Hotels of India Ltd. v. S. B.
Sardar Ranjitsing, AIR 1968 SC 933, the Supreme Court held that if the landlord
prima facie shows that the third party is in exclusive premises let out, it would be
then for the tenant to rebut the evidence. Similar was the law reiterated in
Krishnawati v. Hans Raj, 1974 (1) SCC 289. In Gopal Sharan v. Satyanarayan,
1989 (3) SCC 556, it was observed that sub-letting means transfer of exclusive
rights to enjoy the property in favour of third party. The acid test is parting with
legal possession for valuable consideration which could be ordinarily a hidden
circumstance.
63
[115] 2014 (1) GLR 566 [Divorce u/s 13B – Powers]
JIGNESHKUMAR DILIPBHAI PATEL AND ANR. V. PRINCIPAL

SENIOR CIVIL COURT
PARA-30: In Anil Kumar Jain v. Maya Jain, 2009 (10) SCC 415 the Supreme
Court has clearly held, in no uncertain terms, that the doctrine of irretrievable
breakdown of marriage is not available even to the High Courts which do not have
powers similar to those exercised by the Supreme Court under Art. 142 of the
Constitution of India. Neither can the High Court, nor the Civil Court, pass orders
before the periods prescribed under the relevant provisions of the Act, or on
grounds not provided for in Secs. 13 and 13B of the Act. This principle of law has
been reiterated by the Supreme Court in Manish Goel v. Rohini Goel, 2010 (4)
SCC 393.
[116] 2014 (1) GLR 596 [Compromise – Subsequent Challenge]
ULLASBHAI PARSOTTAMBHAI (LEGAL HEIRS OF DECD.) AND ORS.

V. PATEL DINESHBHAI RAMABHAI
PARA-73 & 74: In the present case, the application for compromise was filed on
11th January, 2011 duly signed by the parties and their respective Counsel. On the
same day, the learned Civil Judge, after being satisfied with the genuineness and
the legality of the settlement, passed an order recording the compromise subject to
the final order below Exh. 1. The learned Civil Judge has very clearly observed in
its order that the parties and their Advocates were present. The contents of the
compromise purshis containing the terms of the settlement were read over before
the parties. The parties also confirmed that the settlement was arrived at without
any undue influence or pressure. The record further reveals that the defendants
placed the settlement arrived at before the Court for the purpose of obtaining
anticipatory bail in connection with the complaint which was lodged by the
plaintiff and the learned Additional Sessions Judge, Anand, after taking into
consideration the settlement, granted anticipatory bail as well as regular bail to the
defendants. It is, thus, clear that the defendants received the benefits and after
deriving such benefits the conduct of the defendants is wholly inconsistent with the
stand that they had been forced or coerced to enter into the settlement.
64
[117] 2014 (1) GLR 862 [Suit relating to affairs of the Public Trust]
HEIRS AND L.RS. OF RAMANGIRI AMRITGIRI GOSWAMI AND ORS.

V. GOVERNMENT OF GUJARAT AND ORS.
PARA-8: This was not a suit for purpose of declaration of private right of a
Pujari in the temple. The prayer was also made to have the accounts of the
offerings received as income by the temple which was a public trust. In the
circumstances, it could not be said that the suit did not raise any question relating
to the affairs of the public trust. The income of offerings was the property of the
trust in respect of which the plaintiffs were claiming their right and were further
claiming accounts thereof. Since, the temple was registered as a public trust in
early 1950s, the plaintiff worked under the trust as Pujari. The cause of action for
instituting the suit was based on order of removal of plaintiff as Pujari passed by
the Mamlatdar trustee in 1976. In this view of facts, when the prayer was also
made to have the accounts of the income of the trust, which was in terms of
offerings paid in the temple, the suit fell within the purview of Sec. 50 of the
Bombay Public Trusts Act. The relief claimed was one which was falling within
the ambit of the provisions of the Bombay Public Trusts Act. Therefore, the bar of
Sec. 80 of the Act wherein express language is used stating that "any question
which is by or under this Act be decided or dealt with by any officer or authority
under the Act .....would apply."
[118] 2014 (1) GLR 874 [Issues relating to Environment – Jurisdiction]
LIYAKAT MAHMAD CIRCLE AND ORS. V. STERLING SEZ AND

INFRASTRUCTURE LTD. AND ANR.
PARA-6: The averments in the plaint, more particularly in Paras 5 and 6 read
with the averments in Para 9 brought out in no uncertain terms that in the questions
raised by the plaintiff, questions relating to the enforcement of legal rights relating
to the environment were ingrained. In the process of adjudication of the suit
arising, the statutes amongst the legislation mentioned in the Schedule would have
their play. The entire premise of the grievance was that the defendant companies
had not obtained permission from the Gujarat Pollution Control Board. It was the
case that the canal constructed for discharge of effluent was unfit for carrying the
effluent discharge and because of its breakage, the crops in the fields were open to
serious damage. It was alleged that it would also have harmful effect on the public
life and public health. The grievance was also raised with regard to placing of
65
chimney by stating that it was against the norms prescribed to be observed at the
time of establishing the industries. In other words, the essential substance of the
suit subject-matter, the grievance raised and the prayers made unfailingly attracted
the statutory provisions of the Acts mentioned in the Schedule to the Act. The
subject-matter raised substantial questions relating to environment as defined under
Sec. 2(m) and contemplated under Sec. 14 of the Act. The trial of the suit was to be
necessarily for enforcement of legal right relating to environment. From the nature
of the suit and the subject-matter, controversy raised herein, which is highlighted
hereinabove, it can hardly be denied that the averments in the suit and the prayers
of the plaintiffs do raise the disputes which are required to be settled by the
Tribunal under Sec. 14 of the Act.
[119] 2014 (2) GLR (SC) 970 [Execution and Attestation of Will]
M. B. RAMESH (DEAD) BY L.RS. V. K. M. VEERAJE URS (DEAD) BY

L.RS. AND ORS.
PARA-25 & 28: The issue of validity of the Will in the present case will have to
be considered in the context of these facts. It is true that in the case at hand, there is
no specific statement by P.W. 2 that he had seen the other attesting witness sign the
Will in the presence of the testator, but he has stated that the other witness had also
signed the document. He has proved his signature, and on the top of it, he has also
stated in the cross-examination that the other witness (Mr. M.), Smt. N, himself
and one Iyanger and the writer of the Will were all present while writing the Will
on 24-10-1943 which was registered on the very next day. This statement by
implication and inference will have to be held as proving the required attestation
by the other witness. This statement along with the attendant circumstances placed
on record would certainly constitute proving of the Will by other evidence as
permitted by Sec. 71 of the Evidence Act.
As stated by this Court also in H. Venkatachala Iyengar v. B. N. Thimmajamma,

AIR 1959 SC 443 : 1959 Supp. (1) SCR 426 and Jaswant Kaur v. Amrit Kaur,
1977 (1) SCC 369, while arriving at the finding as to whether the Will was duly
executed, the Court must satisfy its conscience having regard to the totality of
circumstances. The Court's role in matters concerning the Wills is limited to
examining whether the instrument propounded as the last Will of the deceased is or
is not that by the testator, and whether it is the product of the free and sound
disposing mind [as observed by this Court in Paragraph 77 of Gurdev Kaur v.
66
Kaki, 2007 (1) SCC 546]. In the present matter, there is no dispute about these
factors.
[120] 2014 (2) GLR 1122 [Validity of Mutation Entry – Refusal]
THAKORE VARVAJI TALAJI V. COLLECTOR AND DISTRICT

MAGISTRATE, MEHSANA AND ORS.
PARA-8: The mutation entry would violate any provision of law provided the
acquisition of right which is sought to be entered vide the said entry is contrary to
any provision of law. In other words, if the Mamlatdar finds that there is a breach
of any law which would render the transaction itself illegal or unlawful, whereby
the mutation entry would violate the provisions of the B.L.R. Code or any other
Act, resort can be made to sub-sec. (8) of Sec. 135D of the B.L.R. Code. But for
breach of any other provision of law, which has no direct relation to the validity of
the transaction/acquisition of right, the Mamlatdar cannot refuse to certify an entry.
In the facts of the present case, the deficiency in payment of stamp duty in respect
of the Power of Attorney would not render either the transaction in question or the
mutation entry violative or being in contravention of any of the provisions of the
B.L.R. Code or any other Act. Thus, in respect of any ancillary breach, which has
no direct bearing to the transaction in question, resort cannot be made to sub-sec.
(8) of Sec. 135D of the B.L.R. Code. Such provision would be applicable where
there is a breach of the provisions of the Bombay Tenancy and Agricultural Lands
Act, 1948, the Bombay Prevention of Fragmentation and Consolidation of
Holdings Act, 1947 or such other Act which would render the transaction itself
invalid.
In the case of Suraj Lamp and Industries Pvt. Ltd. v. State of Haryana, 2012 (1)
SCC 656, wherein it has been held that a Power of Attorney is not an instrument of
transfer in regard to any right, title or interest in an immovable property. The
Power of Attorney is creation of an agency whereby the grantor authorises the
grantee to do the acts specified therein, on behalf of the grantor, which when
executed will be binding on the grantor as if done by him. Even an irrevocable
attorney does not have the effect of transferring the title to the grantee. Thus, the
first ground on which the Mamlatdar has rejected the mutation entry cannot be said
to be consistent with the provisions of sub-sec. (8) of Sec. 135D of the Code, and
therefore, cannot be sustained.
67
[121] 2014 (2) GLR 1161 [Amendment – Removal of Defect]
SHAILESHBHAI OCCHAVLAL KADAKIYA THROUGH P.O.A.

PRAVINCHANDRA V. PANNALAL MITHALAL DARJI L.H. OF
MITHALAL MOTILAL DARJI AND ORS.
PARA-19: It is trite that procedure is handmaid and not the mistress of judicial
process. Examination of the provisions under Rule 14 and Rule 15 - particularly
proviso to Rule 14 also gives out that the provisions are not mandatory and if the
pleadings are infected by any defect due to which the requirement of Order 6, Rule
14 or Rule 15 is not fully complied, then it would not be fatal. Such defect can be
characterized as procedural irregularity. Moreover, such defect can be cured and
corrected even at appellate stage and even after the expiration of period of
limitation for filing the suit. The Court has the discretion to allow the party to
remove the defect at later stage though the period of limitation may have expired.
Once, the learned Court exercises the discretion and in pursuance of the
order/permission granted by the learned Court the plaint or the reply, as the case
may be, is amended or the fresh signature is put or verification of the plaint is
made, then such amendment or the fresh signature or the verification of the plaint
would relate back to the original date of the suit.
[122] 2014 (2) GLR 1223 [Divorce – Desertion – Breakdown of Marriage]
BINABEN W/O. KULINBHAI SHAH, D/O. SUNDERLAL SHAH V.

KULINBHAI CHANDRAVADAN SHAH
PARA-5, 6 & 7: In order to reach conclusion as to which party deserted other,

the concept of desertion has to be comprehended, which means intentional,
permanent, forsaking and abandonment of one spouse by the other without
reasonable cause. It is a total repudiation of the obligations arising out of the
marriage. So far as deserting spouse is concerned, two essential conditions must
exist to constitute desertion, namely, factum of separation and the intention to
bring cohabitation permanently to an end, which is also called animus deserendi.
Similarly, two elements are necessary so far as deserted spouse is concerned. The
first is absence of consenting and the second is absence of conduct giving
reasonable cause to the spouse leaving the matrimonial home. Whether the
desertion is proved or not, necessary inference has to be drawn from facts of
particular case, and the desertion is viewed always in light of the facts revealed by
the acts or conduct as well as the intention of spouse.
68
To the facts of the case highlighted above, the scenario of married life between the
parties was one of continuous discord. The matrimony between them had strewn
apart spread over long. Out of the total period of 17 years of marriage, the husband
and wife stayed together for about three years and four months only. The attempts
of reconciliation and settlement met the dead end. From the facts noted above, their
cohabitation even when happened was short-lived. It was possible to conclude that
the state of affairs had reached point of no return. The bond was in the name only,
which was a burdensome bond. The intention to revive the matrimony had ceased
since long.
It is true that irretrievable breakdown of marriage is not provided as one of the

ground in law by the Legislature for grant of divorce, the factum obtained in a
given case that the marriage life of husband and wife has reached a state of nadir
and is beyond repair, and therefore, the marriage has irretrievably broken down, is
certainly a relevant circumstance. This circumstance will have a reinforcing effect
when any of the ground under Sec. 13 of the Act for grant of divorce is found to be
proved. A marriage which is dead and reached a stage where it is not possible to
infuse life into it, the Supreme Court has observed that the public interest and
interest of parties lie in permitting such a marriage to be dissolved.
[123] 2014 (2) GLR 1255 [Tenancy – Change in Use of Property]
HEIRS OF DECD. LALCHANDDAS GOPALDAS AND ORS. V. HEIRS OF

DECD. SHIVKUMAR RAM-PARAD DAVE
PARA-5: In the landlord-tenant relationship, the primary document is rent-note.

The terms of the tenancy flow from the rent-note. Those conditions govern and
determine the rights and obligations of both the landlord and the tenant. In the
instant case, when the rent-note (Exh. 78) itself mentioned that the premises was to
be used for residential purpose, would remain predominant purpose and other use,
to which the premises was put to, would remain incidental. It would not change the
agreed purpose of the residence for which contract of tenancy was created and
reduced in the rent-note. Even if it is assumed on demurer that the tenant had used
the premises for business purpose also it would not unmake the residential purpose
for which the tenancy existed. The dominant purpose remained to be residential.
The landlord had cause of action to institute the suit when the tenant was found to
be using the premises exclusively for business purposes only totally forsaking the
purpose of residence agreed in the rent-note. It could not be said that merely
because the landlord applied for non-residential use in the premises, that by itself
69
and alone amounted to conversion of the purpose of tenancy to be one of business,
to substitute what was mentioned in the rent-note. It could also not have been
validly and legitimately contended as was sought to be, that since the tenant was
using the premises for business purpose for long time, the purpose of tenancy got
changed from residence to business.
[124] 2014 (2) GLR 1315 [Notice u/s 135D BLR Code to POA Holder]
RAVINDRABHAI CHHOTABHAI PATEL V. STATE OF GUJARAT AND

ORS.
PARA-15, 16, &18: Section 135D of the B.L.R. Code requires the village
accountant to give written intimation to all persons appearing from the record of
rights or register of mutations to be interested in the mutation. Thus, what is
required to be examined is as to whether notice to the Power of Attorney holder
can be said to be due intimation as envisaged under the said Section.
In the present case, no notice under Sec. 135D of the B.L.R. Code had been issued
to the petitioner. The Power of Attorney holder had appeared before the concerned
revenue authority and had accepted service of notice under Sec. 135D. Though,
strictly speaking, the provisions of the Code of Civil Procedure would not be
applicable to the proceedings under the Bombay Land Revenue Code, however,
with a view to answer the question involved in the present case, support can be
taken of the provisions of Rule 12 of Order 5 of the C.P.C.
It is only when the agent acts within the authority given to him under the Power of
Attorney that the same is binding upon the principal. Any act not authorised under
the Power of Attorney cannot be said to be an act which is binding upon the
principal. In the present case, under the Power of Attorney executed by the
petitioner in favour of the eighth respondent, there is no power to accept service on
behalf of the petitioner. Under the circumstances, taking a clue from Rule 12 of
Order 5 of the Code of Civil Procedure, it cannot be said that because the Power of
Attorney holder had been served, there was due service of the notice under Sec.
135D of the Code on the petitioner. The Tribunal, was therefore, not justified in
holding that service of notice on the Power of Attorney holder was due service to
the petitioner.
70
[125] 2014 (2) GLR (LB) 1373 [Articles 226 & 227 – Powers]
GUJARAT STATE ROAD TRANSPORT CORPORATION V. FIROZE M.

MOGAL AND ANR.
PARA-94, 95 & 96: The very fact that the Constitution contains two separate
provisions in respect of two powers which are described differently in two separate
Articles, which stand next door to each other, would indicate that the framers of
the Constitution must have contemplated two separate and distinct powers and that
the power to issue writ was considered by them as a power distinct and separate
from the power of superintendence. The word 'superintendence' is not used in Art.
226 of the Constitution at all. Similarly, the word 'writs' is not referred to in Art.
227 of the Constitution at all. The analysis of the two Articles would also bare out
a conclusion that the power conferred under them are distinct and separate. A
perusal of Art. 227 of the Constitution would indicate that the power of
superintendence conferred on the High Court is a power that is confined to Courts
and Tribunals in relation to which it exercises jurisdiction. On the other hand, the
power conferred on the High Court under Art. 226 is not a power that is confined
to Courts and Tribunals, but it extends to any person or authority including, in
appropriate cases, any Government within the territorial jurisdiction of the High
Court.
[126] 2014 (2) GLR 1482 [Power of Attorney – Irrevocable or Not]
MAHESH GOVINDJI TRIVEDI V. LEGAL HEIRS OF BHAGVANJI

GOVINDJI TRIVEDI AND ORS.
PARA-19 & 20: In the deed (Exh. 97), the donor has not even remotely
expressed an intention to create or transfer any interest in favour of the donee. In
absence of creation or transfer of interest in the property, it cannot be said that
donor intended to execute irrevocable Power of Attorney. Although the deed in the
heading is referred as "irrevocable Power of Attorney", mere referring and
labelling as "irrevocable" would not make the deed irrevocable. Reading of the
deed (Exh. 97) leaves no doubt that it is not irrevocable.
Bequeathing the property in favour of defendant No. 1 makes rooms for defendant
No. 1 to urge that the donor has created interest in favour of donee by executing
Will. Apart from the fact that execution of Will is not simultaneous with the
execution of Exh. 97, which alone is sufficient to reject such submission. Later
71
execution of another Will in 2001 in favour of the plaintiff considerably weakens
such plea of defendant No. 1.
[127] 2014 (2) GLR 1761 [Rent Agreement – 11 Months – Proceedings]
PANKAJBHAI MURABHAI DHORIA V. SHANTILAL VALLABHDAS

JOGIA DECD. THROUGH LEGAL HEIRS AND ORS
PARA-7 & 12: It is not in dispute that the agreement in question Exh. 34 is
dated 29-7-2002 and it was effective for eleven months from 1-8-2002. In view of
above, the Rent Control Act did not have any applicability, and therefore, it cannot
be said that the owner was before a wrong forum.
Keeping above observations and mandate of the Apex Court in view, in the facts of
this case the status of present appellant is nothing beyond a trespasser. He had
stepped into the suit premises pursuant to the agreement Exh. 34 dated 29-7-2002,
with effect from 1-8-2002, for a period of eleven months. The owner had right to
get back his property even before expiry of eleven months, which he had
unsuccessfully asserted.
[128] 2014 (3) GLR 1996 [Leave to Defend In Lavad Suit]
MODI HARISHKUMAR HASMUKHLAL AND ANR. V. PEOPLE'S CO-

OPERATIVE CREDIT SOCIETY LTD.
PARA-12 & 13: There appears a difference between the provisions of Order 37
of the Code and Sec. 99(4)(5) of the Act as well as Rule 41A of the Rules as
regards condition for leave to defend and the effect of non-compliance of the
condition. Under the provisions of Order 37, discretion is available with the Court
to grant unconditional leave whereas sub-sec. (4) and (5) of Sec. 99 of the Act with
Rule 41A mandates to impose condition of deposit of 33.5% amount of the claim
of dispute or such less amount as may be fixed by the learned Board of Nominees.
Clause (e) of sub-sec. (5) of Sec. 99 of the Act provides that non-compliance of the
condition may result in passing of award against the defendant as if the defendant
has not been granted leave to defend.
From the above provisions of the Act and Rules, what appears is that the defendant
would lose his right to defend the suit if he does not comply with the condition of
deposit of the amount for leave to defend. Such right would not be revived if the
order imposing condition for leave to defend is allowed to attain finality by not
72
challenging the same by-way of revision application during the pendency of the
suit.
VILASBHAI THORE V. SHIVABHAI TEJABHAI HARIJAN AND ORS.
PARA-6 & 10:The concept of contributory negligence requires to be considered in

this case. The vehicles were not of equal magnitude. It was an involvement of
truck of one side which was coming down of the slope and there were marks of
brakes of car, and therefore, it can be said that the driver of the car had taken pre-
caution, whereas the driver of the truck lost the control and collusion took place.
The contributory negligence of small vehicle is less compare to a big vehicle. The
driver of the big vehicle has to take more caution. In light of the facts and
circumstances as emerges before this Court, the driver of the truck was more
negligent than the driver of the car, and therefore, the negligence of driver of the
car can be attributed to 30% instead of 50%.
It goes without saying that two vehicles of different magnitude have dashed with
each other. The car was on the left side of the road whereas the truck was on wrong
side which is born out from the judgment of the Tribunal. In light of this fact, it
cannot be gain said that both the drivers were equally responsible for the accident
just because the vehicles had collided on the side of the driver. The panchnama
ought to have been appreciated by the learned Tribunal, wherein the Truck has
come on the side of the car and therefore, this fact cannot be looked aside, and
therefore, in view of catena of decisions to the effect that the accident took place
between bigger and small vehicle where it is an admitted position of fact that the
bigger vehicle would throw the smaller vehicle and hence 30% negligence is
attributed to the present appellant instead of 50% and the award is modified to this
effect only.
[130] 2014 (3) GLR 2097 [Order 7 Rule 11 CPC – Considerations]
BEENA W/O. KALPESHBHAI AMRUTLAL LAVINGIA

(SONI/CHOWKSI) V. KALPESHBHAI AMRUTLAL LAVINGIA (SONI
CHOWKSI)
PARA-5: As per the settled law, while considering the application under Order
7, Rule 11 of the Code of Civil Procedure, Court is required to consider the
averments made in the plaint/petition and the Court is not required to go into the
73
merits in detail and as such the Court is not required to consider the defence of the
opponent. As per the settled proposition of law, if on the face of the record, it is
found that the suit/petition is barred by any law, in that case only, in exercise of the
powers under Order 7, Rule 11 of the Code of Civil Procedure, plaint can be
rejected and as such the suit is not required to be dismissed but the plaint is to be
rejected. The learned Family Court has allowed the application on the ground that
there was suppression of material fact on the part of the appellant-original
petitioner in not disclosing the fact that earlier she was converted to Muslim and
she had married to Muslim boy and on the ground that once she was converted to
Muslim, and there is nothing on record to show that she was reconverted to Hindu
after performing Shuddhikaran ceremony.
It is also averred in the plaint that the marriage between the parties had taken place
according to Hindu rites and Saptapadi (following seven steps by the parties) was
also taken place, and thereafter, they lived as husband and wife. Thus, it appears
that as such the parties lived as husband and wife for more than 5 to 6 years. Now,
at the time of reconversion to Hindu, any Shuddhikaran ceremony was performed
or not, is a defence of the respondent which is required to be considered at the time
of trial on the basis of the evidence led. Thus, considering the averments made in
the petition, on the face of it, it prima facie cannot be said that the petition for
decree of dissolution of the marriage between the appellant and the respondent is
barred by provisions of Hindu Marriage Act. In the facts and circumstances of the
case, the learned Family Court has materially erred in going into the merits of the
case and considering the defence of the respondent that the marriage between the
appellant and the respondent can be said to be between a Hindu and a Muslim, and
therefore, the provisions of the Hindu Marriage Act would not be applicable.
[131] 2014 (3) GLR 2248 [Joining of Party on the basis of Will]
HIRABHAI DAHYABHAI PATEL V. LT. HIRABEN WD/O. BHAGUBHAI

MANILAL THROUGH L.RS. AND ORS.
PARA-13: A person who in law represents the estate of a deceased, includes

different legatees under the Will, even though the estate that devolved upon the
said legatee may not be the whole of the estate of the deceased. Considering the
principle of law enunciated by the Supreme Court and the definition of "legal
representative" in Sec. 2(11) of the Code, in the view of this Court, respondent No.
3, being the beneficiary of the estate of the deceased defendant No. 1 by way of a
Will, can certainly be said to be the "legal representative" of the deceased. In that
capacity, there does not appear to be any legal infirmity in the impugned order,
74
joining him as party-defendant in the suit. It is noteworthy that the Will of the
deceased has not been challenged by the petitioner. Respondent No. 3 would be a
necessary party in the suit, being the person upon whom the estate of the deceased
has devolved.
[132] 2014 (3) GLR 2418 [Maintenance under different Enactments]
MAHESH AGGARWALA V. STATE OF GUJARAT AND ORS.
PARA-15: There cannot be duplication of order of maintenance under different

enactment or provisions. But at the same time, it cannot be ignored that the
principle of awarding maintenance under Hindu Adoption and Maintenance Act
and Code of Criminal Procedure are different and at present award under Hindu
Adoption and Maintenance Act is for interim maintenance. Therefore, it would be
appropriate for the petitioner to take necessary stand before final order is passed in
the Family Suit No. 842 of 2005 under Hindu Adoption and Maintenance Act.
However, it cannot be ignored that maintenance under Code of Criminal Procedure
is regarding basic necessities whereas maintenance under Hindu Adoption and
Maintenance Act is based upon total earning and life style of both the sides, and
therefore, it cannot be coupled with each other.
[133] 2014 (3) GLR 2509 [Search Warrant u/s 97 CrPC – Not for Minor]
GIRISHBHAI HARISHBHAI CHHATWANI V. STATE OF GUJARAT

AND ANR.
PARA-14 & 15: There cannot be any second opinion of thought that while
considering the custody of the minor, the paramount consideration should be his
welfare, health, study and development, but it is with reference to confirm the
custody of a particular person against the lawful guardian may be amongst the
parents or a third person. However, in none of the above cited cases by the
Sessions Court, it is confirmed that the learned Magistrate has power to issue
search warrants. The Sessions Court has also considered needs and requirements of
the minor, however, it would be a consideration when legal custody and
guardianship of a child is to be decided, for the simple reason that taking away
custody of a minor child through police is not warranted in any manner. If at all,
the respondent-wife is able to prove that the applicant-husband is not able to take
care of the minor child, then she could have certainly filed an application for
custody and guardianship under appropriate law.
75
The respondents have also relied upon the provision of Sec. 6 of the Hindu
Minority and Guardianship Act, which provides that the custody of a minor who
has not completed five years shall ordinarily be with the mother. When respondent
is aware about such provision, it would be appropriate for her to file necessary
application under such statute where competent Court can consider the relevant
aspect while deciding the issue of custody, otherwise, the same Section also
confirms that the natural guardian of a minor in respect of minor son is the father
and mother will be natural guardian in absence of father. The consideration
governing custody of a child is a welfare of children and not the right of the
parents. Similarly, jurisdiction to grant custody is vested in a Civil Court and not
under Sec. 97 of the Cr.P.C.
ICICI LOMBARD GENERAL INSURANCE COMPANY LTD. V. GESWA

DHAPUDEVI MECHARAM CHAUDHARY AND ORS.
PARA-5 & 7: This Court is of the opinion that the Hon'ble Tribunal has
committed an error in not giving sufficient weightage to the fact that truck bearing
registration No. GJ-12-X-3345 was absolutely on wrong side, more particularly
when the road was double road and truck bearing registration No. GJ-18-T-9779
was on its correct side. Besides that, the helper of the truck who lodged F.I.R. has
deposed that, "driver of his truck had taken his truck to extreme left and still he
could not avoid the accident". In that view of the matter, this Court is of the
opinion that if both the truck drivers are held to be equally negligent, it will be
doing injustice to the driver of the truck who was on right side of the road and he
tried till the last minute to avoid the accident, but could not do so.
This Court is of the opinion that approving the aforesaid finding of combine
negligence and its apportionment will result into miscarriage of justice inasmuch
as, truck driver who drove his truck on wrong side of the road and caused accident
is not entitled for a lenient approach in the matter only because he lost his life in
the said accident. The truck driver of truck bearing registration No. GJ-12-X-3345
has lost his life on account of his own negligence and while driving his truck in
that negligent manner caused injuries to the helper and the driver of truck bearing
registration GJ-18-T-9779. Therefore, taking into consideration the contents of the
F.I.R. and the contents of the panchnama - Exh. 49, this Court is of the opinion that
ratio of apportionment of negligence is required to be changed to 30 : 70. It will be
30% negligence on the part of the driver of truck bearing registration GJ-18-T-
76
9779 as he could not successfully avoid accident and 70% negligence on the part
of the driver of truck bearing registration No. GJ-12-X-3345, who was driving his
truck absolutely on the wrong side of the double highway.
[135] 2014 (3) GLR 2692 [MACP – Section 140(4) – No Reduction]
DHIRUBHAI KARSHANBHAI CHAU V. KARMANBHAI HARJIBHAI

PIPALIYA AND ORS
PARA-7: Sec. 140(4) of the M.V. Act clearly lays down that the quantum of
compensation recoverable in respect of death or permanent disability shall not be
reduced on the basis of the share of such person in the responsibility. In the present
case, the Tribunal has done exactly what is prohibited under sub-sec. (4) of Sec.
140 of the M.V. Act namely, that it has held that since both the vehicles were
involved and the claimant who was riding the motorcycle is also a tort-feasor and
steps into the shoes of the owner.
The Tribunal evidently has lost sight of the fact that under sub-sec. (4) of Sec. 140
of the M.V. Act, a claim of compensation cannot be reduced on the basis of the
share of such person in the responsibility for such permanent disablement. Besides,
at the stage of an application under Sec. 140 of the Act, the Tribunal is not required
to go into the question of contributory negligence. Once two vehicles were found
to be involved in the accident, the owners of both the vehicles were required to be
held jointly and severally responsible for payment of compensation thereunder. In
the present case, as noticed earlier, it is only the original respondent No. 4-
Insurance Company of the motorcycle that had been deleted, however, the owner
of the motorcycle was very much on record. It was not permissible for the Tribunal
to reduce the amount of Rs. 25,000/- to Rs. 12,500/- by holding the opponent Nos.
1 and 2 liable to pay such amount.
[136] 2014 (4) GLR 2841 [MACP – Compensation u/s 163A - Effect]
GEETABEN W/O. KISHORSINH JADEJA AND ORS. V. GOVIND MALSI

DANIYA AND ORS.
PARA-8: when order passed by Motor Accident Claims Tribunal granting

compensation under Sec. 163A has been acted upon and implemented and
claimants get benefit thereunder the claim petition under Sec. 166 cannot be
77
allowed to be proceeded with, in view of the decision in Deepal Girishbhai Soni v.
United India Insurance Co., 2004 (2) GLR 1597 (SC).
[137] 2014 (4) GLR 2859 [MACP – Gratuitous Passenger in Goods Vehicle]
ORIENTAL INSURANCE CO. V. BHIKHUBHAI NAGARBHAI MISTRY

AND ORS.
PARA-9.4: Passenger sitting in trailer attached to tractor died in accident

occurred due to negligence of driver of tractor. When there is an Act policy,
Insurance Company will not be liable to any bodily injury or loss of life of a
passenger in goods vehicle, who is a gratuitous passenger.
[138] 2014 (4) GLR 2907 [Notice to Advocate – Negligence – Effect]
L.H. OF BHANUPRASAD LABHSHANKAR PANDYA - CHARUMATIBEN

AND ORS. V. TEJUBHAI JAVANJI AND ORS.
PARA-11 & 17: It is clear from the record that no notice was sent to the
petitioners but was issued only to their learned Advocate. In the circumstances, if
the Advocate for the petitioners chooses to remain absent and does not bother to
inform the petitioners to be present on the date of hearing, the petitioners cannot be
visited with the penalty for his carelessness. The Court is enjoined to do substantial
justice to the parties, and in the present case, the cause of substantial justice would
be advanced by restoring the appeal, rather than in depriving the petitioners of an
opportunity of hearing and decision of the appeal on merits, for no fault of their
own.
[139] 2014 (4) GLR 2970 [Order 37 CPC – Leave to Defend]
BENEFIT PUBLICATION AND ORS. V. ADARSH CO-OPERATIVE

BANK LTD.
PARA-25: If the defendant raises a triable issue indicating that he has a fair, bona
fide or reasonable defence, even though, it may not be a positively good defence,
he is entitled to unconditional leave to defend. Where the defendant discloses facts
that may be deemed to be sufficient to entitle him to defend, but the defence may
not be immediately clear, then the Court may, in its discretion, impose a condition
78
as to the time or mode of trial, but not as to payment into Court or furnishing
security. If the trial Court finds that the defence set up by the defendant is illusory,
sham or practically moonshine, then leave to defend is ordinarily refused.
However, in such a situation, the trial Court may impose a condition that the
defendant be asked to deposit certain amount in the Court.
[140] 2014 (4) GLR 2982 [Rights of Legal Heirs in Tenancy]
SIKANDARKHA AHMEDKHAN PATHAN AND ORS. V. SARDAR PATEL

UNIVERSITY
PARA-21: In absence of any right in favour of the legal heirs of the deceased
tenant, as crystallized by any of the provisions under Sec. 32 of the Act, the
contention of learned Counsel for the petitioners in Special Civil Application No.
18106 of 2011 and Special Civil Application No. 17409 of 2011, about the tenant
became deemed purchaser on 'the Tillers' day', has no substance and falls flat on
the ground in view of the fact that the tenant had expressed his inability and
unwillingness to purchase the subject land and, consequently, by virtue of an order
passed on 5-1-1968 by the Deputy Collector, Petlad, in Tenancy Appeal No. 215 of
1966, it is held that there was no 'sitting tenant' on the land in question on 1-4-
1957, i.e. 'the Tillers' day' and the proceedings under Sec. 32G of the Tenancy Act
were dropped.
[141] 2014 (4) GLR 3001 [Order 21 Rule 2 CPC – Adjustment of Decree]
PRAVINBHAI BHAGVANJIBHAI POPAT V. SHAMBHUBHAI

VALJIBHAI BHUA
PARA-14 & 15: Sub-rule (1) of Rule 2 stipulates that where any money payable
under a decree of any kind is paid out of Court, or a decree of any kind is otherwise
adjusted in whole or in part to the satisfaction of the decree-holder, the decree-
holder shall certify such payment or adjustment to the Executing Court. It then
becomes the duty of the Executing Court to execute the decree and record the same
accordingly. This provision clearly provides for the adjustment of the decree, in
79
whole or in part, to the satisfaction of the decree-holder which if certified by the
decree-holder, is bound to be recorded by the Executing Court.
In the present case, the original decree is sought to be adjusted by a compromise

arrived at between the parties, whereby it is agreed by the decree-holder that he is
satisfied with land admeasuring 2 Acres and 7 Gunthas, instead of land
admeasuring 3 Acres and 10 Gunthas as ordered in the decree. The respondent has
agreed to waive the remaining amount of sale consideration of Rs. 1,07,500/- as
also the objections raised by the brothers of the respondent. The proposed
compromise between the parties amounts to an adjustment of the decree in part, to
the satisfaction of the decree-holder, and in the view of this Court, would definitely
fall under the provisions of Order 21, Rule 2 of the Code, which specifically
applies to execution proceedings. As such, there was no legal impediment in the
way of the Executing Court in recording the compromise. It appears that while
passing the impugned order, the Executing Court has overlooked the provisions of
Order 21, Rule 2 of the Code.
[142] 2014 (4) GLR 3059 [MACP – Section 170 – Permission to Contest]
UNITED INDIA INSURANCE CO. LTD. V. KALAVATIBEN

KESHAVBHAI @ DURLABHBHAI TANDEL AND ORS.
PARA-8: The short question which is posed for consideration of this Court is
whether the present first appeals at the instance of the Insurance Company, in
absence of any order passed by the learned Tribunal under Sec. 170 of the Act
granting permission to the Insurance Company to contest the claim petition on all
the grounds are maintainable or not? The aforesaid issue is now not res integra in
view of the decision of the Hon'ble Supreme Court in the case of Shila Datta, AIR
2012 SC 86. In the case of Shila Datta, AIR 2012 SC 86, the Hon'ble Supreme
Court has specifically observed and held that when the insurer is a party-
respondent in the claim petition, either on account of being impleaded as a party by
the Tribunal under Sec. 170 or being impleaded as a party-respondent by the
claimants in the claim petition voluntarily, it will be entitled to contest the matter
by raising all grounds, without being restricted to the grounds available under Sec.
149(2) of the Act. (Para 8.2)In the present case, admittedly the claimants
themselves have impleaded the appellant-Insurance Company as party-respondent
80
to the claim petition, may be by subsequent amendment. Under the circumstances,
considering the aforesaid decision of the Hon'ble Supreme Court, the Insurance
Company can raise all contentions that are available to resist the claim, without
any order/permission granted by the Tribunal under Sec. 170 of the Act, and
therefore, the present appeals at the instance of the appellant-Insurance Company
are maintainable.
[143] 2014 (4) GLR 3105 [Additional Evidence at Appellate Stage]
PATEL VASHRAM PANCHA AND ANR. V. STATE OF GUJARAT
PARA-8.2: The Appellate Court is not supposed to allow additional evidence

before it to supplement the evidence adduced by one party or the other at the trial
stage. A party to be trial is expected to exercise diligence in the matter as to what
evidence it should adduce and produce in course of the trial. If an inadvertence or
negligence in that regard has resulted into non-production of certain documents for
which the party had sufficient time and opportunity, on the spacious plea that the
said evidence is important for his case, the same cannot be allowed as additional
evidence at the appellate stage.
[144] 2014 (4) GLR 3115 [Entry in Births & Deaths Registers - Powers]
ZALA JAYENDRASINH SATUJI-MINOR V. STATE OF GUJARAT AND

ANR.
PARA-9 & 11: A combined perusal of Sec. 15 and Rule 11, as reproduced
above, leaves no manner of doubt that respondent No. 2 Talati is vested with the
power to make a correction in an entry in the Register of Births and Deaths, and
therefore, in the Birth Certificate. In Nitaben Nareshbhai Patel v. State of Gujarat,
2008 (1) GLR 884 : 2008 (1) GLH 556, this Court has exhaustively dealt with the
refusal of the Competent Authority to exercise power in cases similar to the present
one
It is disheartening to note that even though this Court has, on various occasions,
rendered a plethora of judgments setting aside the orders whereby the Competent
Authority has refused to exercise the jurisdiction vested in him by the Statute, the
same kind of stereotyped orders are being passed time and again, refusing to
81
exercise the power vested by law. It would, therefore, be appropriate to direct the
State Government to take appropriate steps, so that the judgments rendered by this
Court in this regard are brought to the notice of the competent authorities under the
Act so as to put an end to continuous multifarious litigation on an issue that has
already been decided.
[145] 2014 (4) GLR 3353 [MACP – Transport Vehicle – Valid Licence]
UNITED INDIA INSURANCE CO. LTD. V. BHIKHUBHAI

AMARSINHBHAI PARMAR AND ANR.
PARA-18: The driver of the offending vehicle clearly did not hold a licence to
drive a transport vehicle. The offending vehicle was a truck which was in the
nature of a transport vehicle. On the question of negligence, the Tribunal has held
that the accident had occurred on account of the total negligence on the part of the
driver of the offending vehicle. It is not the case of the claimants or the owner and
driver of the offending vehicle that the accident had occurred on account of some
mechanical failure or any other similar cause, having no nexus with the driver not
possessing requisite type of licence. Clearly therefore, there is a direct nexus
between the occurrence of the accident and the driver not having the licence to
drive a transport vehicle. Therefore, in the light of the provisions of sub-sec. (2) of
Sec. 149 of the Act read with sub-sec. (7) thereof, the appellant-Insurance
Company is entitled to avoid its liability under the policy.
[146] 2014 (4) GLR 3405 [Non-Consumption – Minimum Charges]
M/S. JETFAB INDUSTRIES, ANKLESHWAR AND ANR. V. DAKSHIN

GUJARAT VIJ CO. LTD.
PARA-7: Once the obligation to pay minimum charges arose from the contract,
and the contract was not terminated, for the purpose of liability to pay the
minimum charges agreed, non-supply of the electricity and non-consumption of
electricity are at the same pedestal. The observation made by the Apex Court in
Raymond Ltd., 2001 (1) SCC 534 brings home the point.
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[147] 2014 (4) GLR 3487 [Dual Capacity as a Licensor and Tenant]
BHARAT PETROLEUM CORPORATION LTD. V. BHAVNAGAR AUTO

RESORTS AND ORS.
PARA-16 & 26: If the tenant is in possession after expiry of the period with the
assent of landlord, then he is regarded as tenant holding over and if he is in
possession without assent of landlord, then he is considered tenant at sufferance.
Though the term 'statutory tenant' embraces different kinds of tenants, protection of
Rent Act is, in a sense, beneficial particularly to the tenant at sufferance. In the
present case, the dispute arose in 2004, skipping the detail of less or no
consequence and put it simply, it can be said that respondent - licence holder had
become owner of the property. Petitioner was a tenant of predecessor of the
respondent and at the same time, he was licensor of the property.
Ownership and possession are two different concepts. One may be owner of the
property without being in its possession and vice versa. Herein, petitioner was
carrying dual capacity of a licensor and tenant. Respondent was licensee of the
petitioner and he has later on become the owner. Respondent was in possession of
the property in question by virtue of licence. The licence was to run the petrol
pump. The dealership or agency to run the petrol pump has not bearing or
relevance to the ownership of the property in the sense that person may not have
any concern with the said property, yet he may be holding agency or a dealership.
If it is not in dispute that petitioner was tenant of suit property, then licensee
acquiring ownership of suit property in the circumstances of the case - by itself is
of no consequence.
[148] 2013 (1) GLR 155 [Amendment of Pleadings – Nature of Suit]
MAHESHKUMAR BALUBHAI V. PRAMODBHAI BALUBHAI PATEL

AND ORS.
PARA-27: Assuming for a moment that even this apparently unpalatable stand he
is permitted to take under the law as customary adoption is a matter of proof, then
also, in the opinion of this Court, this amendment is sure to change the entire
83
nature and structure of the suit. As the initial suit was merely seeking relief of
declaration of right, partition and injunction in respect of jointly owned family
property, challenging the relinquishment deed on the ground of alleged fraud
played by the respondents herein whereas at this stage what is being challenged is
the adoption deed, which he could not have done by preferring suit, and therefore,
trial Court rightly held that the petitioner does not fulfil very basic criteria to allow
his plea. This Court is of the firm opinion that since amendment would change
entirely the nature of suit, the same cannot be permitted. This adoption deed was
executed way back in the year 1979 and if he had intended to challenge by way of
a separate suit, ex-facie such claim would be time-barred. His knowledge does not
begin from the date of his knowledge of the entry in the revenue record. His
knowledge will be from the date of deed of adoption and if not on that day, at least
on the date of which he made an application for changing his name in the Official
Gazette which was dated 14-12-1996. Thus, even simply calculating the period of
his such claim to challenge the deed from 1996, ex-facie it is a time-barred claim.
His case even otherwise does not require any consideration as this is an apparent
case of manipulation of facts to gain advantage of the situations on the basis of
legal provisions. There are no complicated facts which require adjudication as far
as plea of amendment is concerned. Ordinarily merit of the case at length may not
be necessary to be gone into at this stage, yet the facts which are necessary to be
dealt with for allowing or disallowing such plea, will need consideration of course.
[149] 2013 (1) GLR 204 [Non-payment of Rent pending Appeal - Effect]
KUSUMBA JATUBHA V. NIRMALABEN NARSHIBHAI VAYA
PARA-10: When the appeal is continuation of proceedings of the suit, tenants

were bound to pay the rent even in absence of direction by the appellate Court. The
tenants cannot be permitted to enjoy the suit premises without paying any rent to
the landlady when the proceedings before the appellate Court are going on. In view
of the above discussion, it is not mandatory for the appellate Court to issue specific
direction to the tenants to pay or tender the rent and permitted increases during the
pendency of appeal. Therefore, the appellate Court did not commit any mistake in
considering the question of breach of Sec. 12(3)(b) of the Rent Act.
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[150] 2013 (1) GLR 212 [Order 23 Rule 1(4) CPC – Maintainability]
HABIB HASANBHAI AND ORS. V. ABDULHUSAIN KIKABHAI TRUST

AND ORS.
PARA-13: There is no escape from the legal effect flowing from the provisions
of Order 23, Rule 1(4) of the Code once it is found that the subject-matter of both
the suits is the same and the relief prayed for is also same. However, the learned
appellate Judge has recorded that the cause of action arising in the year 1983 can
be said to be different because of the passage of time and such cause of action has
continued to be incurring from day-to-day, and therefore, the suit would be
maintainable. If, such conclusion of the learned appellate Judge allowed to stand,
would run counter to the object and purpose of Order 23, Rule 1(4) of the Code.
Simply because long time had elapsed after the former suit was withdrawn, that
would not change the cause of action for filing the latter suit without there being
any change in the ultimate base of the suit and the cause of action of the suit and
the relief of the suit. Rule precluding filing of the another suit is imperative and the
bar contained in Order 23, Rule 1(4) of the Code is absolute and the long passage
of time cannot take away the statutory bar imposed by Order 23, Rule 1(4) of the
Code.
[151] 2013 (1) GLR 378 [Trust Property – Civil Court Jurisdiction]
BALVANTRAI @ BHIKHUBHAI SOMABHAI AND ANR. V. RATILAL D.

WADIWALA AND ORS.
PARA-15: In the case on hand, the plaintiff wants declaration that the property is
trust property, that the defendants are not trustees and are not entitled to deal with
the trust property and that there was no decision on the change report and names of
the defendants were not enrolled as trustees of the trust. Such being the fact
situation of the present case, as per the decision of Hon'ble the Supreme Court in
the case of Church of North India, [2005 (10) SCC 760] and as per the decision in
the case of Sevantilal, [2009 (20) GHJ 431] the Courts below have not committed
any error in holding that the Civil Court has no jurisdiction. So far as the last
substantial question of law is concerned, it is required to be noted that Sec. 41E
was special provision made for the State of Maharashtra whereunder the Charity
Commissioner is given special powers to grant injunction and to make such orders
for the purpose of staying and preventing wasting, damaging, alienation, sale,
removal or disposition of such property. Said provisions also provide for the
85
consequences of disobeying the injunction order. Simply because no provision of
issuing injunction order is made for the State of Gujarat, is no ground to hold that
the Civil Court has jurisdiction to decide the suit of the nature filed by the
plaintiffs. When it is found that the questions raised in the suit are to be decided by
the competent authority under the Act, the jurisdiction of the Civil Court will stand
excluded. The absence of the provisions like Sec. 41E made for the State of
Maharashtra would make any difference and absence of such provision would
never confer jurisdiction on Civil Courts in the State of Gujarat to decide the suit
of the nature filed by the plaintiff wherein the questions are required to be decided
by the officers under the Act.
[152] 2013 (1) GLR 398 [Order 7 Rule 11(d) CPC – Considerations]
BECHARBHAI ZAVERBHAI PATEL AND ANR. V. JASHBHAI

SHIVABHAI PATEL AND ORS.
PARA-6: While considering application under Order 7, Rule 11(d) of the Code
of Civil Procedure, the Court is required to consider the averments in the plaint and
the supporting documents produced along with plaint. However, it cannot be
disputed that if on the face of it and even considering the averments made in the
plaint, it is found that the suit is clearly barred of law of limitation, the plaint can
be rejected in exercise of powers under Order 7, Rule 11(d) of the Code of Civil
Procedure.
As held by the Hon'ble Supreme Court in the case of Dilboo (Smt.) (Dead) by
L.Rs., [2000 (7) SCC 702] whenever the document is registered the date of
registration becomes the date of deemed knowledge and in other cases where a fact
could be discovered by due diligence then deemed knowledge would be attributed
to the plaintiff because a party cannot be allowed to extend the period of limitation
by merely claiming that he had no knowledge.
[153] 2013 (1) GLR 405 [Parking of Vehicle on Road without Light]
NATIONAL INSURANCE COMPANY V. VARSHABEN BHARATBHAI

GOHIL AND ORS.
PARA-7: It is clear from the evidence recorded before the Tribunal and placed
before this Court that cause of accident was parking on the highway of the truck
86
without any reflectors or light or indicators during night hours. It is common place
that all the vehicles and particularly cars are plied at high speed on the wider
highways and the traffic is increasing by the day. Therefore, even without any
specific evidence in that regard, it could be assumed that vehicles on both sides of
the road would be plying at high speed and the vehicles approaching from opposite
side with their headlights on would not allow the driver of any vehicle to see
anything on his side of the road on account of being dazzled by the lights. There
cannot be a presumption that driver of any vehicle would be so negligent as to dash
into the back of another vehicle to commit a fatal accident in spite of seeing any
obstruction on the left side of the road. Therefore, it is very difficult to attribute
any negligence on the part of the driver dashing his vehicle into a parked vehicle.
In the facts of the present case, the car was driven by brother of the deceased and
he is not stated to have been seriously hurt, which leads to the inference that the
driver would have tried to take a turn at the last moment after seeing the stationary
truck standing ahead in the dark. The panchnama of the scene of incident hardly
sheds any clear light on the position of the vehicles at the site of the road. The
provisions with regard to proper parking are codified in Chapter VIII of Motor
Vehicles Act, 1988, but more often they are observed in their violation.
[154] 2013 (1) GLR (FB) 487 [Purchase of Property – Electricity Dues]
SANJAY BALVANTRAI DESAI AND ORS. V. DAKSHIN GUJARAT VIJ

COMPANY LTD. AND ORS.
PARA-18: If a person purchases a property from a consumer who is defaulter and

whose electricity has been disconnected on that ground, he has no liability to pay
the personal debt of the consumer unless such dues become a charge on the
property by any inter vivos transaction entered into between the consumer and the
licensee before the purchase by a third party or by operation of the law. There is no
dispute that under the Electricity Act, 2003, the dues of a consumer do not become
a charge on his property and in this case, there is no dispute that at the time of
purchase of the property, there was no existing order of attachment of the said
property in any Court of law. Therefore, in accordance with the law of the land, a
purchaser from a consumer, who is a defaulter, has no liability to pay the defaulted
amount as a condition of getting new connection, unless an order of attachment has
been obtained by the licensee from a competent Court of law.
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[155] 2013 (1) GLR 518 [Delay – Condonation – Sufficient Cause]
PETRO POLYOLS LTD. AND ORS. V. REGIONAL MANAGER,

GUJARAT INDUSTRIAL DEVELOPMENT CORPORATION, SURAT
AND ORS.
PARA-7.8: Sufficient cause, as contained in Sec. 5 of the Limitation Act was

considered in light of earlier decisions and held that even if the term "sufficient
cause" has to receive liberal construction, it must squarely fall within the concept
of the reasonable time and proper conduct of the party concerned. Once, a valuable
right has accrued in favour of one party as a result of the failure of the other party
to explain the delay by showing sufficient cause and its own conduct, it will be
unreasonable to take away that right on the mere asking of the applicant,
particularly when the delay is directly a result of negligence, default or inaction of
the party. Justice must be done to both the parties equally. The Apex Court has
held that the explanation has to be reasonable or plausible.
[156] 2013 (1) GLR 595 [Mortgage by Conditional Sale]
AMINABIBI WD/O. RAHEMANBHAI MOHAMADBHAI SHAIKH AND

ORS. V. SUSHILABEN D/O. PATEL RAVJIBHAI AND ORS.
PARA-15, 16 & 17: The question whether a particular deed can be construed
to be transaction of mortgage with conditional sale would be required to be
considered only when condition to re-transfer is provided in the same document
but by incorporation of such condition, whether the intention of the parties to take
such transaction as ostensible sale or mortgage could be gathered only from the
language of the deed. It is also settled law that the nomenclature of the document is
hardly conclusive and it is always the intention of the parties which requires to be
gathered from the document. A mortgage by conditional sale must be evidenced by
one document whereas sale with condition to re-transfer could be evidenced by
more than one document.
In the case on hand, the condition in this very deed provides for transfer of the suit
property to the executants of document by the persons in whose favour the deed
was executed. In fact, there is no term in the deed providing for sale becoming
absolute on default of payment or the sale becoming void on payment being made.
What is clearly provided in the deed is that if the payment referred to in the deed is
88
made by the appellants-executants of the deed, the respondent Nos. 1 and 2 shall
transfer the property to the appellants. Therefore, though the deed is given
nomenclature of conditional sale, but the intention of the parties as could be
gathered from the language of the deed cannot be taken to be in any manner to
make the transaction as sale with condition to repurchase. The transaction between
the parties by the deed Exh. 23 was a transaction of mortgage with a condition to
give back the property to the appellants if the appellants make payment within the
period of five years. In Court's view, the transaction was purely with condition to
transfer the property back to the appellants if the payment was made by the
appellants within the period of five years. There is no further term providing that in
case such payment is not made, the transaction would become a sale. Still, for all
purposes, the transaction in Exh. 23 could be taken as a mortgage by conditional
sale, and not sale with condition to repurchase. Therefore, the transaction in deed
at Exh. 23 is a transaction of mortgage with conditional sale.
As regards the condition in the deed itself providing for not claiming the suit
property after a period of five years, it is required to be noted that the right of
redemption is a statutory right and such provision in the document of mortgage
itself would amount to a clog on the equity of redemption of mortgage. Such term
in the mortgage deed itself can be said to be void because the very deed which is
for the transaction for mortgage cannot provide for taking away the right of
mortgagor to redeem the mortgage, and cannot be enforced against the mortgagor.
[157] 2013 (1) GLR 791 [Redemption of Property – Effect]
AMRUTLAL BECHARJI AND ORS. V. RAMSINGJI ARAJANJI AND

ORS.
PARA-13: Once, the property is free from clutches of mortgagee at the instance
of one of the mortgagors, it does not remain to be mortgaged property. In view of
this position, right available to the non-redeeming co-mortgagor is for partition of
the property and the limitation for filing of suit for partition would be on the basis
of cause of action arising for filing such suit for partition. In the case on hand,
plaintiffs have clearly established on admitted evidence that the plaintiffs' right of
partition was denied by the defendants in the year 1978. In fact, very wisely, the
plaintiffs have prayed for partition of the suit property and not for redemption.
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[158] 2013 (1) GLR (SC) 886 [Revenue Tribunals – Consultation]
STATE OF GUJARAT AND ANR. V. GUJARAT REVENUE TRIBUNAL

BAR ASSOCIATION AND ANR.
PARA-32 & 33: The observations made by the High Court, taking into
consideration various Statutes dealing with not only the Revenue matters, but also
covering other subjects, make it crystal clear that the Tribunal does not deal only
with Revenue matters provided under the Schedule I, but has also been conferred
appellate/revisional powers under various other statutes. Most of those Statutes
provide that the Tribunal, while dealing with appeals, references, revisions, would
act giving strict adherence to the procedure prescribed in the C.P.C., for deciding a
matter as followed by the Civil Court and certain powers have also been conferred
upon it, as provided in the Cr.P.C. and I.P.C. Thus, there is no hesitation in
concurring with the finding recorded by the High Court that the Tribunal is akin to
a Court and performs similar functions.
During the course of arguments before the High Court, learned Additional
Advocate General had conceded that the judgments and orders passed by the
Tribunal can be challenged under Art. 227 of the Constitution. Thus, it has been
conceded before the High Court that the High Court has supervisory control over
the Tribunal, to the extent that it can revise and correct the judgments and orders
passed by it. In such a fact-situation, the consultation/concurrence of the High
Court, in the matter of making the appointment of the President of the Tribunal is
required.
[159] 2013 (2) GLR 929 [MACP – Earning Capacity – Compassionate]
NATIONAL INSURANCE COMPANY V. RAMRAJSINH BHAGWANSINH

ZALA AND ORS.
PARA-7: Although, the victim suffered permanent disability only to the extent
of 70%, it appears that he is unable to understand or speak properly, and at the
same time, he has been found to be not suitable for any job. Thus, the victim was
not capable of earning any amount in view of such disability of 70%. He was
serving as a Helper with Gujarat Electricity Board and it appears from the evidence
that there is even no chance of any future recovery. In such circumstances, there is
no justification for deducting 30% amount from the amount assessed by the
Tribunal towards future loss of income. It should be also noted that since the
victim is alive, there will be further expenses in future for his maintenance,
90
medical treatment and for constant attendance. So, there is no reason to reduce the
amount awarded under the head of future loss of income by 30% as suggested by
the Counsel for the appellant.
PARA-10: The fact that wife of the victim is given employment on

compassionate ground cannot be a relevant factor in considering the total amount
of compensation for the loss suffered by the victim in a proceedings under the
Motor Vehicles Act involving two vehicles where employer has no role to play.
The Gujarat Electricity Board, the employer of the victim, has given employment
to the wife of the victim because she is otherwise capable of doing the job and the
wife of the victim is earning the amount by giving her labour for performing her
duties towards employer and it is not a gratuitous payment given to her by the
owner of the offending vehicles. She might do similar job in other organisations
than that of the employer of the victim, and by giving such labour, she could also
earn her livelihood by earning similar income. Therefore, the fact that an
employment is given to the wife of the victim on compassionate ground by his
employer does not justify reduction of the amount otherwise entitled by the victim
from the owners of the offending vehicles.
[160] 2013 (2) GLR 999 [MACP - Legal Heirs Class II]
SHANTABEN HARIBHAI LALLURAM BHATT SINCE DECD.

THROUGH HEIRS V. STATE OF GUJARAT AND ORS.
PARA-14: A conjoint and cumulative reading of the above-quoted provisions of

law, makes it very clear that the petitioners are Class-II heirs of the husband of the
deceased being husband's brothers children. As the deceased had no children of her
own, her heirs and legal representatives would be the legal heirs of her husband.
The reasons given by the Tribunal in the impugned order, holding that the
petitioners are not the legal heirs of the deceased, are not in consonance with the
legal position flowing from the above provisions of law, and cannot be sustained.
[161] 2013 (2) GLR 1074 [Section 59 TP Act – Oral Mortgage – Effect]
VAGHELA RAGHUVIRSINH V. PRATAPBA WD/O. ADESINH

DALALBHAI AND ORS.
PARA-15: the plaintiff in his suits has come out with a specific case that the
father of the plaintiff had placed the suit property with the husband of defendant
No. 1 and father of defendant Nos. 2 to 7 by way of oral mortgage for an amount
91
of Rs. 350/-. As against the above case of the plaintiff, the defendants have denied
the title of the plaintiff and have come out with a specific case that they are owners
of the suit property, and therefore, there is no question of redemption of mortgage
of the suit property. As per the provisions of Sec. 59 of the Transfer of Property
Act, mortgage other than mortgage by deposit of title-deed for principal money of
more than Rs. 100/- can be effected only by registered instrument. In the present
case, admittedly, principal money secured was Rs. 350/-, i.e. above Rs. 100/-, and
as per the case of the plaintiff, the suit property was orally mortgaged with the
husband of defendant No. 1 and father of defendant Nos. 2 to 7. The plaintiff has
relied on entry made in the revenue record to establish the oral mortgage made by
his father in favour of the husband of defendant No. 1 and father of defendant Nos.
2 to 7. The plaintiff has also relied on deposition recorded in Tenancy Case No.
198 of 1965, certified true copy of the same was produced at Exh. 49, of the
deceased husband of defendant No. 1 and father of defendant Nos. 2 to 7 admitting
the oral mortgage made by the father of the plaintiff in his favour. Trial Court has
accepted the mortgage of the property by the father of the plaintiff in favour of the
husband of defendant No. 1 and father of defendant Nos. 2 to 7 and found that the
defendants have failed to prove title to the suit property and also held that the
defendants could be said to be mortgagee and on that basis, the suits were allowed.
However, the first appellate Court has come to the conclusion that there is no valid
mortgage in the eye of law, and therefore, suits for redemption of the mortgage are
not maintainable. In my view, the appellate Court has committed no error in
holding that suits for redemption of oral mortgage for the money secured above Rs.
100/- were not maintainable.
[162] 2013 (2) GLR 1109 [Order 5 Rule 17 CPC – Refusal – Procedure]
PIPLESHVAR DIESEL SERVICE THROUGH PROPRIETOR V. KOTDA

DEYODAR GRAM PANCHAYAT AND ANR.
PARA-25, 26 & 27: It is certain that even in case of refusal of notice by the
litigant, the notice or summons is required to be affixed at the given address in
presence of the witnesses as provided under the Rules and such facts must be
properly disclosed with proper affidavit and proper endorsement on original copy
of the summons by the process-server of the Court, who is a public servant.
Therefore, in the present case when petitioner, who is not a process-server of the
Court and hence not a public servant also, has failed to take appropriate steps so far
92
as second part of the provisions of Order 5, Rule 17 of the Code regarding affixing
the notice at the address of the respondent in the presence of the witnesses and
endorsement on the notice, return of original copy of the notice with endorsement
of witnesses etc. are concerned. Therefore, notice cannot be considered as deemed
served, as requested by the petitioner.
Therefore, in absence of proper compliance of the provisions of Order 5, Rule 17,

no notice can be considered as deemed served only because of statement given by
the party/litigant that his opponent has refused to accept the notice. To make it
clear, it is stated that in such cases litigant who has obtained Direct Service has to
request the nearest Civil Court to affect the service to the concerned litigant
through the process-server of that Court at the given address and proper affidavit is
necessary by the process-server as required under the Rule and Proforma affidavit
in Appendix-B.
[163] 2013 (2) GLR 1230 [Copy of Sale-deed – Secondary Evidence]
ISMAIL GAFURBHAI VOHRA V. KIRIT BHAGVATPRASAD VYAS

THROUGH P.O.A. HIMANSHU K. VYAS
PARA-19 & 23: The photo-copy of registered sale-deed between the plaintiff
No. 1 and respondent coming from the office of the Sub-Registrar was allowed to
be produced as secondary evidence. This photo-copy was required to be sent by the
office of the Sub-Registrar to the respondent on his making payment of deficit
stamp duty, the receipt of which is produced on record with the said photo-copy
because the original sale-deed was not available with the office of the Sub-
Registrar. The fact about the non-availability of the registered sale-deed of the
respondent got supported by the communication from the office of the Deputy
Collector, Stamp Duty Valuation Department, Anand and from the office of the
Sub-Registrar. Thus, in the present case, secondary evidence allowed to be given
was of public document within the meaning of Sec. 74 of the Evidence Act and all
copies of sale-deeds and Indices produced on record since signed and sealed by the
Sub-Registrar were admissible in evidence for the purpose of proving the contents
of original documents as per the provisions of Sec. 57 of the Registration Act.
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[164] 2013 (2) GLR 1281 [Issue of Tenancy – Reference to Authority]
BHIKHUMIYA GURUMIYA V. USMANKHAN MISRIKHAN PATHAN

SINCE DECD. THROUGH L.RS.
PARA-6: When tenancy is asserted in the suit proceedings and when an issue is
framed in that regard, it is obligatory for the Civil Court to refer the issue to the
competent authority under the Bombay Tenancy Act. Another reason supplied by
the Court below for rejecting the application Exh. 151 is that the application is
made to delay the proceedings, which reason is stated to be rejected inasmuch as
the petitioner-defendant would make the application in question as of right in light
of the provisions contained in the Bombay Tenancy Act. Therefore, the order of
the Court below proceeded on an erroneous reasoning all along.
[165] 2013 (2) GLR 1386 [Dispute touching the Business of the Society]
BANASKANTHA DISTRICT OIL-SEEDS GROWERS CO-OP. UNION V.

M/S. KRISHNA OIL MILLS
PARA-11 & 13: Law is well settled that when dispute raised in the civil suit is
touching the business of the co-operative society, notice under Sec. 167 of the Act
is required to be served to the defendant before filing of the suit.
The plaintiff could not be taken to have accepted that the activity of the defendant
of purchase, sale and export of the oil is in consonance with its objects, and
therefore, by such averments, the defendant cannot be absolved from its obligation
to prove that the activity of purchase, sale and export of oil was part of the business
of the defendant, especially when the defendant has raised objection against the
maintainability of the suit on the ground of non-service of the statutory notice
under Sec. 167 of the Act. When the plaintiff is a non-member and when the
defendant takes up plea of non-service of the notice under Sec. 167 of the Act, it
was for the defendant to clearly prove that the transaction entered into between the
parties was the business of the society and that could have been done only by
production of the bye-laws.
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[166] 2013 (2) GLR 1535 [Entry in Births & Deaths Register – Correction]
RAMESHBHAI NATHUBHAI SOLANKI V. RAJKOT MUNICIPAL

CORPORATION AND ANR.
PARA-10: The law on the subject is already settled. In the case of Mulla Faizal
@ Fazillabanu Suleman Ibrahim v. State of Gujarat, 2000 (2) GLR 1553, it has
been held that the Registrar, Birth and Deaths has power to correct the entries
made in the Register.
[167] 2013 (2) GLR 1677 [Will – Thumb Impression – Explanation]
KIRITBHAI MELABHAI TADVI V. NARMADASHANKAR PREMJIBHAI

DAVE AND ORS.
PARA-14, 15 & 16: Section 63 of the Succession Act itself makes a provision
that the testator shall sign or shall affix his mark to the Will. Therefore, even if the
testator was in habit of putting signature, law permitted him to affix mark to the
Will. However, usually, when a person who is in habit of putting his signature
wherever required, is found to have put his thumb mark, it creates a suspicion in
the mind of anybody, and therefore, in given case, it becomes necessary to know
the circumstances for which thumb impression is put by such person. It is
undisputed fact that the testator on the date of execution of the Will was 75 years
of age and his wife was 70 years of age. It has come in evidence that the testator
had also undergone cataract operation. Therefore, in old age and with lack of
vision in eyes, the testator if decided to put his thumb mark, it would not raise any
suspicion against genuineness of the Will. Putting of thumb impression by testator
was witnessed by three witnesses and the Notary, as could be found from the
evidence of witness Umedbhai Vallabhbhai examined at Exh. 14 by the applicants.
Therefore, simply because the testator had put his thumb mark is no ground to
doubt execution of the Will by the testator.
As regards proof of the Will is concerned, it has come in evidence that two
attesting witnesses were not alive when evidence was taken in the probate
proceedings. However, third witness Umedbhai at Exh. 14 in whose presence the
testator and other two witnesses had signed, has given evidence stating in
unequivocal terms that the testator and his wife had put their thumb impression in
his presence and he had identified their thumb impression. He has further stated
that two attesting witnesses also put their signatures in his presence and the Will
95
was read over by the Notary to the testator and the Notary put her seal and
signature also. This witness stated that he and other witnesses had signed in
presence of the testator. As per the settled principles of law, any of the witnesses
signing the Will in presence of the testator can prove due execution of the Will.
As per the provision of Sec. 68 of the Evidence Act, if a document is required by

law to be attested, it shall not be used as evidence until one attesting witness at
least has been called for the purpose of proving execution of the Will, if there be an
attesting alive and subject to the process of the Court and capable of giving
evidence. In the present case, two persons who signed the Will as witnesses were
not alive, and therefore, third person, named Umedbhai, who has also put his
signature for identifying the thumb impression of the testator and his wife and who
stated that he was present at the time of execution of the Will by the testator, was
examined by the applicants to prove the Will and by his evidence, Will was
proved. When the Will could be said to be proved by evidence of Umedbhai, even
if Notary was not examined, it will not make any difference as witness Umedbhai
has deposed that the Notary and other witnesses had put their signatures on the
Will.
[168] 2013 (3) GLR 1841 [MACP – Compensation more than Claimed]
SHAILESHKUMAR SHANTILAL GANDHI AND ANR. V. SUNIL

BABULAL DIXIT AND ORS.
PARA-7, 10 & 15: It is, now, well settled law that concession made at the
time of trial by a learned Counsel on a question of fact is binding upon the client,
but a concession made on the question of law by a Counsel is never binding, as
there is no estoppel against law.
On taking into account the decision of the Supreme Court in the case of Lata
Wadhwa, [2001 (8) SCC 197] relied upon in the case of Kaushalya Devi, [2007
(11) SCC 120], a three-Judge Bench of the Supreme Court, ultimately, arrived at
the conclusion that the compensation amount for children between the age group of
5 to 10 years should be 1.5 lackh to which a conventional amount or Rs. 50,000/- is
required to be added, and thus, the total amount which comes should be Rs.
2,00,000/-.
It is, therefore, apparent that in course of a proceeding for compensation under

Motor Vehicles Act even if at an appellate stage, an Appellate Court finds that the
claimant is entitled to have more amount of compensation than the one claimed
96
either in the claim application or in the Memorandum of Appeal against the award
of compensation and if the Tribunal or Court comes to the conclusion that the just
amount of compensation would be more than the amount restricted by the
claimant, such fact will not stand in the way of the Court in awarding just amount
of compensation. However in such a case, the Court should pass direction for
payment of additional amount of Court-fees.
[169] 2013 (3) GLR 1865 [MACP – Composite/Contributory Negligence]
BABUBHAI VITHALBHAI VASAVA V. DAUOODBHAI ISHULKHA

KURESHI AND ORS.
PARA-9: Composite negligence refers to the negligence on the part of two or

more persons. Where a person is injured as a result of negligence on the part of two
or more wrong-doers, it is said that the person was injured on account of the
composite negligence of those wrong-doers. In such a case, each wrong-doer is
jointly and severally, liable to the injured for payment of the entire damages and
the injured person has the choice of proceeding against all or any of them. In such
a case, the injured need not establish the extent of responsibility of each wrong-
doer separately, nor is it necessary for the Court to determine the extent of liability
of each wrongdoer separately. On the other hand, where a person suffers injury,
partly due to negligence on the part of another person or persons, and partly as a
result of his own negligence, then the negligence on the part of the injured which
contributed to the accident it referred to as his contributory negligence. Where the
injured is guilty of some negligence, his claim for damages is not defeated merely
by reason of the negligence on his part but the damages recoverable by him in
respect of the injuries stand reduced in proportion to his contributory negligence.
Therefore, when two vehicles are involved in an accident, and one of the drivers
claims compensation from the other driver alleging negligence, and the other
driver denies negligence or claims that the injured claimant himself was negligent,
then it becomes necessary to consider whether the injured claimant was negligent
and if so, whether he was solely or partly responsible for the accident and the
extent of his responsibility, that is, his contributory negligence. Therefore, where
the injured is himself partly liable, the principle of composite negligence will not
apply nor can there be an automatic inference that the negligence was 50:50 as has
been assumed in this case. The Tribunal ought to have examined the extent of
contributory negligence of the appellant, and thereby, avoided confusion between
97
composite negligence and contributory negligence. The High Court has failed to
correct the said error.
[170] 2013 (3) GLR 1881 [Mandatory Interim Relief – Requirements]
DISTRICT APPROPRIATE AUTHORITY V. PRAKASH PATEL AND

ANR.
PARA-14: The petitioner may be having a good case on merits and the learned
Single Judge may also have found a prima facie case in favour of the petitioner,
but mere prima facie case by itself is not sufficient to justify grant of mandatory
interim relief in matters of the present nature. For grant of mandatory interim
relief, standard much higher than just prima facie case is required.
[171] 2013 (3) GLR 1998 [Section 23 Rent Act – Need of Repairs]
GULAM MAIYUDDIN FAKIR MAHMAD AND ORS. V. HASEENABIBI

JAMALJI CHAKTACHETWALA
PARA-15: Sec. 23 provides for obligation of the landlord to carry out repairing
work in the tenanted premises where the condition of the premises calls for such
repairing work when the attention of the landlord is drawn to such condition of the
premises. Section 23 does not provide that the landlord shall be required to carry
out the repairing work only when the notice is issued by the tenant of the premises.
If the landlord is otherwise aware about the need for repair, it is his obligation to
carry out the same. It clearly appears that the landlord had full knowledge about
the dilapidated condition of the suit premises and he himself had made application
to the concerned statutory authorities for removing of the dangerous structure of
the suit premises. The petitioners have categorically stated in their application that
the respondent was requested many a times to immediately carry out repairing
work. Such assertion of the petitioners read with conduct on the part of the
respondent in making application to the Corporation and further conduct of the
respondent for filing of the suit for recovery of possession on the ground that the
suit premises has been rendered unfit for use because of damage in its structure
would clearly go to establish that the respondent had full knowledge about need of
repairing work in the suit premises, and therefore, even if the petitioners had not
issued statutory notice to the landlord for carrying out the repairing work in the suit
premises, the respondent was not absolved from his obligation to carry out the
repairing work and the respondent having failed to carry out the same, petitioners
98
were justified in making the application to the Court relying on provisions of Sec.
23 of the Act.
[172] 2013 (3) GLR 2126 [Gambling/Wagering/Betting – Meaning]
H. S. ONLINE MARKETING PVT. LTD. V. STATE OF GUJARAT AND

ORS.
PARA-8 & 14: The element of 'gambling' consists of wagering or betting.

Perusal of the definition of gambling would clearly show that there should be an
element of wagering or betting to call it gambling. As per the dictionary meaning
of gambling also, the essential element is wagering or betting.
Here, in the present case, the petitioner is Pvt. Ltd. Company registered under the
Companies Act. The petitioner is having the selling outlet agreement for running
the business of all kind of products, sales and service through
e-bidding, e-selling throughout the India for selling of yantras, pooja products,
vastu products, religious artefact, feng-shui etc., related and allied products and
promotion activities. Thereafter, for further growth of business, some promotional
and gift schemes were to be implemented and on purchasing the items sold by the
petitioner, the customer is given I.D. number on receipt of purchase and that I.D. is
to be feed on the online website of the petitioner-Company and if such I.D. number
is selected in online draw then such person is given silver coin of Rs. 100/- as an
incentive and in case of the coin is not available, then a reward of Rs. 100/- is
given to the purchaser. Therefore, looking to the nature of business, it is not
established that there is element of wagering or betting and said elements are
necessary to prove that the petitioner is engaged in such game connected to the
gambling. Therefore, the petitioner is not doing any act which is opposed by public
policy or illegal.
[173] 2013 (3) GLR (SC) 2149 [Order 23 Rule 3 CPC – Entire Matter]
MAHALAXMI CO-OPERATIVE HOUSING SOCIETY LTD. AND ORS. V.

ASHABHAI ATMARAM PATEL (DEAD) THROUGH L.RS.
PARA-40, 41 & 43: Rule 3 of Order 23, on the other hand, speaks of
compromise of suit. Rule 3 of Order 23 refers to distinct classes of compromise in
suits. The first part refers to lawful agreement or compromise arrived at by the
parties out of Court, which is under 1976 Amendment of the C.P.C. required to be
in writing and signed by the parties. The second part of the Rule deals with the
99
cases where the defendant satisfies the plaintiff in respect of whole or a part of the
suit claim which is different from first part of Rule 3. The expression 'agreement'
or 'compromise' refers to first part and not the second part of Rule 3. The second
part gives emphasis to the expression 'satisfaction'. In Pushpa Devi v. Rajinder
Singh, 2006 (5) SCC 566, this Court has recognised that the distinction deals with
the distinction between the first part and the second part.
Further, it is relevant to note the word 'satisfaction' has been used in contra-
distinction to the word 'adjustment' by agreement or compromise by the parties.
The requirement of 'in writing and signed by the parties' does not apply to the
second part where the defendant satisfies the plaintiff in respect of whole or part of
the subject-matter of the suit.
So far as the present case is concerned, pursis falls under Order 23, Rule 3 since
the defendant has satisfied the plaintiffs in respect of whole of the subject-matter of
the suit. Since objections were raised by plaintiff No. 3 and defendant No. 3, those
objections had to be dealt with by the Court in accordance with Order 23, Rule 3.
The proviso to Order 23, Rule 3 cast an obligation on the Court to decide that
question at the earliest, without giving undue adjournments. Objections raised by
plaintiff No. 3 and defendant No. 3 were examined by the Court and rejected,
rightly. Cogent reasons have been stated by the Court while rejecting their
objections and accepting the pursis.
[174] 2013 (3) GLR 2193 [Arbitration Award – Requirement of Reasons]
STATE OF GUJARAT AND ANR. V. NITIN CONSTRUCTION CO.
PARA-14: In Raipur Development Authority, [1989 (2) SCC 721], it has been
held that an Arbitrator or Umpire is under no obligation to give reasons in support
of the decision reached by him unless under the arbitration agreement or the deed
of submission he is required to give such reasons, and if the Arbitrator or Umpire
chooses to give reasons in support of his decision it is open to the Court to set aside
the award if it finds that an error of law has been committed by the Arbitrator or
Umpire on the face of the record on going through such reasons, and an award can
neither be remitted nor set aside merely on the ground that it does not contain
reasons in support of the conclusion or decisions reached in it except where the
arbitral agreement or the deed by submission requires him to give reasons.
100
[175] 2013 (3) GLR (SC) 2209 [Disqualification as MP/MLA]
LOK PRAHARI, THROUGH ITS GENERAL SECRETARY S. N. SHUKLA

V. UNION OF INDIA AND ORS.
PARA-16, 17 & 20: The provisions in Arts. 102(1)(e) and 191(1)(e) of the
Constitution would make it abundantly clear that Parliament is to make one law for
a person to be disqualified for being chosen as, and for being, a member of either
House of Parliament or Legislative Assembly or Legislative Council of the State.
In the language of the Constitution Bench of this Court in Election Commission,
India v. Saka Venkata Rao, AIR 1953 SC 210, Art. 191(1) [which is identically
worded as Art. 102(1)] lays down "the same set of disqualifications for election as
well as for continuing as a member". Parliament thus does not have the power
under Arts. 102(1)(e) and 191(1)(e) of the Constitution to make different laws for a
person to be disqualified for being chosen as a member and for a person to be
disqualified for continuing as a member of Parliament or the State Legislature. To
put it differently, if because of a disqualification a person cannot be chosen as a
member of Parliament or State Legislature, for the same disqualification, he cannot
continue as a member of Parliament or the State Legislature. This is so because the
language of Arts. 102(1)(e) and 191(1)(e) of the Constitution is such that the
disqualification for both a person to be chosen as a member of a House of
Parliament or the State Legislature or for a person to continue as a member of
Parliament or the State Legislature has to be the same.
Once a person who was a member of either House of Parliament or House of the
State Legislature becomes disqualified by or under any law made by Parliament
under Arts. 102(1)(e) and 191(1)(e) of the Constitution, his seat automatically falls
vacant by virtue of Arts. 101(3)(a) and 190(3)(a) of the Constitution and
Parliament cannot make a provision as in sub-sec. (4) of Sec. 8 of the Act to defer
the date on which the disqualification of a sitting member will have effect and
prevent his seat becoming vacant on account of the disqualification under Art.
102(1)(e) or Art. 191(1)(e) of the Constitution.
Looking at the affirmative terms of Arts. 102(1)(e) and 191(1)(e) of the

Constitution, Parliament has been vested with the powers to make law laying down
the same disqualifications for person to be chosen as a member of Parliament or a
State Legislature and for a sitting member of a House of Parliament or a House of
a State Legislature. The provisions of Art. 101(3)(a) and 190(3)(a) of the
Constitution expressly prohibit Parliament to defer the date from which the
101
disqualification will come into effect in case of a sitting member of Parliament or a
State Legislature. Parliament, therefore, has exceeded its powers conferred by the
Constitution in enacting sub-sec. (4) of Sec. 8 of the Act, and accordingly, sub-sec.
(4) of Sec. 8 of the Act is ultra vires the Constitution.
[176] 2013 (3) GLR 2283 [MACP – Use of Vehicle for hire as Taxi]
NEW INDIA ASSURANCE CO. LTD. V. JAYSUKHLAL MAGANLAL

DOSHI AND ORS.
PARA-15, 16 & 19: In the insurance policy, it has been very specifically
stated that the use of the vehicle shall only be for social, domestic and pleasure
purposes and for the insured's own business. The policy does not cover the use for
hire or reward.
There is no reason not to believe what has been stated in the first information
report itself. To say that the contents of the first information report should not be
believed as the same could be termed as hearsay in the absence the first informant
entering the witness box to prove the F.I.R., will be contrary to the well-settled
principles of the Evidence Act. The first information report Exh. 32 was produced
by wife of the deceased in her own evidence and she relied upon the same in toto.
Accordingly, the same was taken in evidence and marked as Exh. 32.
Having regard to the evidence on record, that the defence of the Insurance
Company that the vehicle was used as a taxi to carry passengers for hire or reward
and the same was in breach of the conditions of the insurance policy, and therefore,
no liability should be imposed on them, deserves to be accepted.
[177] 2013 (3) GLR 2329 [No Instruction Pursis – Hearing on Merits]
ARJAN NARAN (DECD.) THROUGH LEGAL HEIRS V. JEDIBAI

MOHAN AND ORS.
PARA-12 & 13: It is required to be noted that because of no instruction purshis

there was no representation on behalf of the appellants, when the appeal was taken
up for hearing. In such circumstances, learned Appellate Judge ought not to have
proceeded and decided the appeal on merits. At this stage, a reference to two
judgments of the Hon'ble Supreme Court is required to be made. In the case of
Desa Singh v. Ajit Singh, 2007 (15) SCC 235 and in the case of Ghanshyam Dass
Gupta v. Makhan Lal, 2012 (8) SCC 745. In light of the above, when there was no
102
instruction purshis, the first Appellate Court ought not to have decided the appeal
on merits.
However, even while deciding the appeal on merits, learned Appellate Judge has
not discharged his appellate function properly. Learned Appellate Judge has just
cursorily mentioned about the merits of the appeal and went on putting its seal on
the correctness of the judgment and decree passed by the trial Court. The first
Appellate Court has not dealt with any of the issues independently on the basis of
evidence. It is true that while affirming the judgment and decree of the trial Court,
detailed discussion is not required. However, the judgment should reflect
application of mind on the points involved. The first Appellate Court is under
obligation to decide the points arise in the appeal in the context of evidence
available on record. For that purpose to some extent, the evidence is required to be
discussed. The judgment of the first Appellate Court does not reflect such exercise
undertaken by the first Appellate Court.
[178] 2013 (3) GLR 2337 [Co-Operative Banks – RDBI Act]
ADMINISTRATOR, SHRI DHAKDI GROUP CO-OPERATIVE COTTON-

SEED AND ORS. V. UNION OF INDIA AND ORS.
PARA-16 & 18: Once the Supreme Court has specifically laid down that a
Tribunal constituted under the R.D.B.I. Act has no lawful jurisdiction or authority
to pass any order relating to a debt if the applicant happens to be a co-operative
society, it necessarily follows that the right of appeal under Sec. 17 of the
Securitization Act against an order under Sec. 13(4) provided therein cannot also
be exercised by the Tribunal appointed under the R.D.B.I. Act either in favour of a
co-operative society or against such society.
Thus, so long the appellate power under Sec. 17 is vested with the Tribunal
established under the R.D.B.I. Act, there is no scope of bringing a co-operative
society within the definition of a Bank so as to vest the power of adjudication in
relation to the recovery of debt due to such society from its members in direct
violation of the mandate of the Supreme Court in the case of Greater Bombay Co-
operative Bank Ltd., [2007 (6) SCC 236]. Consequently, the argument that by way
of notification in terms of the definition of a Bank given in the Securitization Act,
even a Co-operative Bank can be notified is not tenable.
Therefore, in order to issue notification for inclusion of Bank in terms of the
definition clause of the Securitization Act, such Bank must be regular Bank over
103
which the Parliament must have power to legislate in respect of recovery of its
dues, but at least, not a co-operative society.
[179] 2013 (3) GLR 2407 [Section 10 & 11 CPC – Identical Matter/Issues]
SHREYAS RATILAL SHAH V. CHISTIYA KHANKAH (DARGAH)

KABRASTAN AND MASJID PUBLIC AND ANR.
PARA-8, 13 & 15: It can be noticed that Secs. 10 and 11 use the term
"matter" as distinguished from issues referred to in Order 14. Reading Secs. 10
and 11 with Order 14, it is clear that pleadings and documents represent "matter"
and to address the matter, the Court is required to raise distinct "issues". Therefore,
the pleadings as a whole including prayer is a "matter", and individual issues do
not constitute the "matter". Sections 10 and 11 will be attracted only if the "matter"
in two suits is identical as held by the Hon'ble Supreme Court in National Institute
of Mental Health and Neuro Sciences v. C. Parameshwara, 2005 (2) SCC 256.
The question which is required to be addressed, at this stage, is whether in the Civil
suit, the matter is the same and identical ? In the Civil Suit, the respondents have
prayed for possession of the piece of land admeasuring 3,600 sq.ft. of the same
description. Admittedly, the said piece of 3,600 sq.ft. of land is different than 1,200
sq.ft. of land. The suit is based upon encroachment allegedly made by the
petitioner over the said piece of land, although the petitioner denies such
encroachment in the written statement. Therefore, encroachment is directly and
substantially in issue in Civil Suit. On proof of encroachment, relief can be granted
only by a Civil Court and not by a Rent Court, and therefore, such an issue is not
directly and substantially in issue in the H.R.P. Suit.
It cannot be disputed that the Rent Court under the Bombay Rents, Hotel and
Lodging House Rates Control Act, 1947 is incompetent to grant any relief in
absence of the relationship of the landlord and tenant. The relief based upon the
encroachment is beyond the purview of the Rent Court. Similarly, relief based
upon relationship between the landlord and tenant is unavailable in the Civil Suit.
Thus, there is no question of two Courts possessing "competent concurrent
jurisdiction" when their jurisdictions and area of inquiry is different. The matter
directly and substantially in issue in one suit is not directly and substantially in
issue in other suit.
104
GUJARAT STATE ROAD TRANSPORT CORPORATION V. SISIR

RAJENDRAKUMAR MISHRA (MINOR), THROUGH KRUSHNAMURARI
AND ORS.
PARA-26, 27 & 29: There are six photographs on record. It appears from the
photographs that the Bus was travelling from Vadodara towards Vaghodia on the
left hand side of the road and the Maruti Van was travelling on the right hand side
of the road i.e. from Vaghodia towards Vadodara. The perusal of the photographs
would indicate that the Maruti Van which was on the right hand side of the road,
while travelling from Vaghodia towards Vadodara, rammed into the front portion
of the Bus and it also appears that the driver of the S.T. Bus, with a view to avoid
the contact, swerved the Bus on the extreme left hand side i.e. on the kachcha road,
almost brushing the trees standing on the edge of the road.
Even the panchnama would indicate that the Bus was travelling in the middle of
the road i.e. towards Vaghodia and was not on the wrong side so as to meet with an
accident with a Maruti Van. It appears from the evidence of the driver of the S.T.
Bus Exh. 55 that the driver slowed down the Bus near Ankhol Patia as the driver
saw that a Maruti Van was coming from the opposite direction and was travelling
in a zigzag manner. According to the evidence of the driver of the S.T. Bus, Exh.
55, he apprehended the accident, as a result of which he swerved the Bus on the
extreme left hand side and immediately thereafter the Maruti Van dashed into the
front portion of the Bus.
Thus, taking into consideration the oral evidence on record as well as the
documentary evidence, we are of the opinion that the Tribunal committed an error
in coming to the conclusion that the driver of the Bus was 100% negligent. In our
opinion, the Tribunal ought to have addressed itself on the issue of contributory
negligence. We are of the opinion that the driver of the Maruti Van should be held
negligent to the extent of 50%.
105
[181] 2013 (3) GLR 2448 [ Banachitti – Concluded Contract]
TARABEN D/O. NANUBHAI KASANBHAI PATEL AND W/O.

NAVINKUMAR PATEL AND ANR. V. SHAILESHBHAI RANGILBHAI
PATEL AND ORS.
PARA-26, 27, 28 & 32: As could be seen from the record referred to by
both the sides, the understanding or the oral agreement has been arrived at which
has been reduced to writing by the parties in the form of banachitti dated 18-11-
2010. The said banachitti has been entered into or reduced to writing reflecting the
intention of the parties for the transaction. Further, it is also revealed that there was
an issue with regard to the consent of the sisters and defendant No. 1-mother and
brother are said to have promised to get the consent of the sisters coupled with the
fact that the power-of-attorney of the sisters is with the mother who has signed the
aforesaid banachitti.
Therefore, one is required to consider a situation where the parties have agreed for
a transaction with the major aspects like the price/consideration, the property, the
schedule of payment and the parties who could execute the necessary documents. It
is in this background when sizable consideration has been paid in part-performance
of such writing or the agreement, can it be said that in spite of such further steps in
furtherance of the transaction, it was only at the stage of negotiation or
understanding and what the parties intended was to enter into an agreement to sell
at a later stage? If that argument is accepted, there is no explanation for payment of
substantial consideration and the aspect of assurance for the consent of the sisters.
At the same time, what has been pleaded in the reply by respondents about the
conduct of the appellants that due to escalation in the prices there was a demand
for higher price resulting in this dispute though substantial part of the consideration
has been accepted. In other words, having accepted part of the consideration in
part-performance of the agreement to sell or the transaction, there is a second
thought with regard to the price already agreed and contentions are sought to be
raised about the very document/banachitti itself that it is not an agreement to sell
and it was merely an understanding, which is misconceived. In fact, the
understanding which has been arrived at has been reduced to writing in the form of
banachitti and in part-performance thereof, part-payment of the consideration has
been received.
It is well accepted that an agreement/contract need not be in any particular form

unless it is so provided like in case of Government organisations. The
106
understanding arrived at between the parties reduced to writing in the form of
banachitti would always have a bearing on the transaction even though the
agreement to sell or Banakhat with further stipulations may not have been made. In
other words, the banachitti itself would be an agreement as there is no specific
format or form is provided for an agreement or contract under the law. Therefore,
when the banachitti itself provides the relevant aspects as stated above which has
also been acted upon, and in part-performance thereof, substantial payment has
been made, it cannot be said that it was merely a desire or intention of the parties
to enter into an agreement/contract or to enter into a transaction at a later stage
subject to fulfilment of some conditions. If that be so, like the consent of the sisters
was necessary and was required to be obtained, then, the banachitti itself would not
have been made after the understanding is arrived at between the parties since the
sisters were not available or their consent was not there. In that case, the
consideration or part-payment which is substantial could not have been accepted. It
reflects, therefore, that the parties having arrived at an understanding, reduced to
writing in the form of banachitti, and it was an assurance based on the power-of-
attorney of the sisters to sell, substantial consideration has been paid.
Therefore, as discussed above, when it is evident that a writing has been executed
containing all essential requirements of agreement, it cannot be said that merely
because a formal agreement has not been executed or entered into between the
parties, there is no binding or concluded contract.
[182] 2013 (3) GLR 2474 [Order 7 Rule 1(d) & Order 32 Rule 3 – Minor]
MAHESHKUMAR BHALAJI V. REKHABEN CHHOTAJI THAKORE

AND ORS.
PARA-7, 8 & 10: Once the statement as to minority of the defendant is

made as required by Order 7, Rule 1(d), it is the bounden duty of the Court to
proceed to make appointment of guardian of the minor-defendant under Order 32,
Rule 3 of C.P.C. and in absence of such appointment, decree, if any, would be
against a person not a party and thus without jurisdiction.
Provisions being procedural in nature, in the event of their non-compliance,

corrective measures can be taken. The plaint, in absence of proper representation
of minor, cannot be said to have been instituted in terms of the above provisions. It
is not in dispute that no orders, under Order 32, Rule 3, were passed by the Court
and the parties assumed that interest of the minor-defendant was represented
107
validly by his mother who was his natural guardian. In view of Order 7, Rule 1(d),
before guardian is appointed, two aspects are required to be verified on affidavit :
(i) that the proposed guardian has no interest in the matter in controversy in the suit
adverse to that of the minor, and (ii) that he is a fit person to be so appointed.
These facts were never ascertained.
It is a settled law that the procedure is a handmaid of law and the rules,
contemplating the procedure, cannot be so interpreted as to defeat the ends of
justice. Having so read, Order 32, Rule 12 cannot be interpreted as excluding the
minor-defendant's right to represent the suit upon his attaining majority.
[183] 2013 (3) GLR 2503 [Partnership – Completion of Purpose – Effect]
VINUBHAI NAJIBHAI CHAVDA V. MAHESHKUMAR RAMCHANDRA

RAVAL
PARA-10: Section 42(b) provides that subject to contract between the partners, a
firm is dissolved if constituted to carry out one or more adventures or undertakings
by the completion thereof. As stated above, the adventure or undertaking of
carrying business with the help of truck between the parties stood completed on the
truck being sold out. Who sold out the truck is not the question relevant, but what
is relevant is the factum of selling out the truck with the help of which the business
in partnership was started. Once, the truck did not remain, adventure or
undertaking of doing the business in partnership came to an end, and therefore, for
all purposes, partnership firm stood dissolved.
[184] 2013 (3) GLR 2730 [Default on the part of Advocate]
HARISINH BHAGWATSINH SARVAIYA V. STATE OF GUJARAT AND

ANR.
PARA-18: The explanation offered by the appellant that his Advocate could not
remain present as he inadvertently forgot to post the next date of hearing in his
diary, leading to further defaults on four occasions, appears to be credible. It is not
as though the default was deliberate or continued for a number of years. It would
be highly unjust and unfair to penalise the appellant because of the default
committed by his Advocate, in such circumstances.
108
[185] 2013 (3) GLR 2759 [Matrimonial Matters – Transfer]
SONAL SHREYANSH VASA D/O. GAURISHANKAR L. V. SHREYANSH

HITENBHAI VASA
PARA-15 & 19: The respondent-husband has filed an application for restitution
of conjugal rights in the Court of learned Principal Senior Civil Judge, Bhuj-
Kachchh. The marriage of the applicant and the respondent was solemnised at
Vadodara. After differences arose between them, the applicant is residing at
Vadodara whereas the respondent lives in Mundra-Bhuj is at a distance of about
400 kms. from Vadodara. The applicant would have to travel the distance of 400
kms., to attend every hearing of the Court at Bhuj. Being a lady, she would have to
be accompanied by her father, or any other male member of the family. Not only
would this involve considerable inconvenience and hardships, it would also prove
to be expensive in the long run. It is, therefore, reasonable to conclude that the
applicant-wife would face greater inconvenience in travelling from Vadodara to
Kachchh on every date of hearing, with her father. It has been stated that she has
travelled from Vadodara to Bhuj 16 times already.
Moreover, in view of the dicta of the Supreme Court in Sumita Singh v. Kumar
Sanjay, AIR 2002 SC 396 to the effect that the convenience of the wife must also
be looked at, the prayer made by the applicant for transfer of the petition to
Vadodara deserves to be granted.
[186] 2013 (4) GLR 2669 [LAR – Burden of Proof]
GENERAL MANAGER, O.N.G.C. LTD. V. CHAMANJI KUBERJI
PARA- 6 to 12: It is well-settled law that unless the evidence adduced by the
witness for the party upon whom the onus lies is found to be incorrect from his
own deposition or otherwise inherently impossible, a Court should not generally
disbelieve such version in the absence of any contrary evidence given by the
opponent. In the present case, the version of the claimant is also supported by the
certificates given by the Talati-cum-Mantri, which are exhibited and no suggestion
was given that those were not genuine and were fabricated ones or that the contents
thereof was not true. The claimants having discharged the initial burden, it was for
the State or the Appellant, to produce some evidence showing that the assertion of
109
the P.W. 1 was wrong or that the land in question was in any respect inferior to the
one in respect of the adjoining village for which value has been assessed at Rs.
353/- per sq.mtr. Moreover, in respect of the lands of the adjoining village of the
same District, which is situated at a distance of 4 to 5 kms., the valuation of Rs.
22/- per sq.mtr. having been found to be grossly inadequate and the same having
been enhanced to Rs. 353/- by the Reference Court which has been confirmed by
this Court in appeal. From the evidence given on behalf of the claimants, that the
lands in question yield three crops a year and there is facility of irrigation and
availability of modern facilities such as tractors etc. The Court did not find any
reason to disbelieve the assertion of the claimants regarding the quantum of yield
from the lands in question. Similarly, there is no dispute that the land is also by the
side of a State Highway and the area is fast developing. The abstract doctrine of
burden of proof does not help the appellant when the initial burden has been
discharged by the claimants. It is apposite that the rate of compensation awarded
by the Reference Court at the same rate of the adjoining village is quite justified in
the facts of the present case.
[187] 2013 (4) GLR (SC) 2962 [Marriage between Tribal & Non-tribal]
RAMESHBHAI DABHAI NAIKA V. STATE OF GUJARAT AND ORS
PARA-54 & 55: In an inter-caste marriage or a marriage between a tribal and a

non-tribal the determination of the caste of the offspring is essentially a question of
fact to be decided on the basis of the facts adduced in each case. The determination
of caste of a person born of an inter-caste marriage or a marriage between a tribal
and a non-tribal cannot be determined in complete disregard of attending facts of
the case. In an inter-caste marriage or a marriage between a tribal and a non-tribal
there may be a presumption that the child has the caste of the father. This
presumption may be stronger in the case where in the inter-caste marriage or a
marriage between a tribal and a non-tribal the husband belongs to a forward caste.
But by no means the presumption is conclusive or irrebuttable and it is open to the
child of such marriage to lead evidence to show that he/she was brought up by the
mother who belonged to the Scheduled Caste/Scheduled Tribe. By virtue of being
the son of a forward caste father he did not have any advantageous start in life but
110
on the contrary suffered the deprivations, indignities, humilities and handicaps like
any other member of the community to which his/her mother belonged.
Additionally, that he was always treated a member of the community to which her
mother belonged not only by that community but by people outside the community
as well.
[188] 2013 (4) GLR 2984 [Trespasser – Due Process of Law]
MANAV KENDRA EDUCATION TRUST THROUGH CHAIRMAN

JAYENDRA V. SHARMA V. STATE OF GUJARAT & ORS.
PARA-43: Even if 'the trespasser' is in settled possession of the property

belonging to the rightful owner, the rightful owner shall have to take recourse to
law; he cannot take the law in his own hands and evict the trespasser or interfere
with the possession. The reason behind this well settled proposition of law is that
the Society has to be governed by 'rule of law'. If the true owner is allowed to take
law in his hand and dispossesses the trespasser then it will not be a 'rule of law' but
it will be 'Jungle Raj'. The Court cannot allow the 'Jungle Raj' to enter or prevail.
[189] 2013 (4) GLR 3099 [Tenancy – Member of Family – Meaning]
KARIM MOHAMMED FAKIR MOHAMMED V. LATE ABDUL MAJID

FATEH MOHAMMED THROUGH LEGAL HEIRS AND ORS.
PARA-5 & 6: This Court in Trustees of Gopinathji Public Trust v. Legal Heir
of Decd. Jadiben Jivabhai Koli, 2013 (1) GLR 726 with reference to the expression
"family" occurring in Sec. 5(11)(c)(ii) observed that whether person is family
member of tenant or not would depend upon facts and circumstances of each case.
It was further stated that in sociological conditions of our country, the "family" has
to be given a wide and elastic meaning. The Court was considering the question
whether a son from first wife of tenant's husband can be treated as her family
member. It was held that considering the fact that the tenant was residing together
with said sons under one roof etc. They could be treated as family members. Since,
the meaning to a concept of statutory tenant is to be assigned in its special context,
the construction of the word "family" would have to be in that light. Blood
111
relationship cannot be treated as sine qua non. The essence of family relation was
cohabitation with bond of love amongst the members staying together. Therefore,
in understanding the concept of "tenant's family", one of the yardsticks to be
applied is of nearness felt by the tenant with the relations residing with him at the
time of his death. Evidence clearly suggested that respondents were staying in the
tenanted house with the tenant right from childhood as family members. They were
borne and brought up there. The deceased tenant had no children and it comes into
evidence that he kept respondents with him out of close affection and care and the
marriage ceremony also took place in the house of the tenant. The factum of
staying together as "members of family" was established. Respondent No. 1 was
tenant's wife's sister's son. As far as respondent No. 2 was concerned, he was a son
of previous wife of the tenant. The family link with the deceased tenant in the
status of both the respondents, therefore, was available. Their long and continued
residence and cohabitation right from their childhood, made them members of
tenant's family.
[190] 2013 (4) GLR 3293 [Tenancy Rights – Leaving Premises – Effect]
NATWARLAL MOHANLAL CHAUHAN V. BABULAL MOHANLAL

HASOTI AND ANR.
PARA-9: It is not necessary that the tenancy right can be surrendered only by
giving writing to the landlord. If a tenant leaves premises absolutely with no
intention to come back to the original premises and does not take any action for
protecting his tenancy rights for long time, for all purposes, such action of leaving
the premises and not taking action for long time, though there was no writing
executed by the appellant for surrender of the tenancy right, could be taken as
surrender of the tenancy rights. Therefore, there cannot be any absolute proposition
that the tenancy rights in the property could not be relinquished orally, it always
depends upon the facts and circumstances of each case. Since, both the Courts have
found from appreciation of the evidence that the appellant had already surrendered
the tenancy rights by leaving the premises and by not taking action for long time,
this Court has not found any error in such findings recorded by both the Courts
below.
112
[191] 2013 (4) GLR 3334 [Sec. 16 (C) Specific Relief Act – Ready & willing]
JEBUNISHA MAHMMAD MULLA V. RASHIDA IBRAHIM SHAIKH
PARA-25, 26 & 27: In the case of Rajat Tulsi Patel, 1988 GLH 42, Hon'ble
Division Bench of this Court has held that if the provisions of Sec. 16(C) of
Specific Relief Act is found to be substantially complied with, it could be said that
the plaintiff has fulfilled the requirement of showing readiness and willingness to
perform his part of the contract and no particular set of words or exact words need
to be used in the plaint. If the totality of the circumstances and allegations in the
plaint disclose that the requirement of statutes are specified, the omission on the
part of the plaintiff to adhere about the language or phraseology of the forms or the
statute will be of no consequence. From the averments in the plaint, the contents of
the notice and evidence of the husband and of witness of the respondent, there was
sufficient compliance of the requirement of Sec. 16(C) of the Specific Relief Act.
The suit was immediately filed within two (2) months from the last date of making
payment of balance consideration. In view of this, the decision in the case of
Manjunath Anandappa, 2003 (10) SCC 390, will have no application to the present
case. It is also required to be noted that aspect of non-compliance of requirement of
Sec. 16(C) of the Specific Relief Act, 1963 was never seriously raised by the
appellant either before the trial Court or before the First Appellate Court. Such
issue being the question of fact cannot be permitted to be raised first time before
this Court.
[192] 2013 (4) GLR 3521 [MACP – Third Party Risk – Owner’s Claim]
ORIENTAL INSURANCE CO. LTD. V. GANESHBHAI GAUTAMBHAI @

DIASINGAJI PATEL AND ORS.
PARA-7, 8 & 9: According to the Supreme Court, where the policy covered any
risk or injury of the owner himself by payment of premium for that purpose, in that
case, the owner is entitled to get compensation for injury caused to him; otherwise,
in respect of third-party-insurance, an owner cannot claim insurance against
himself unless personal-accident-insurance has been taken out. In view of the
above decisions of the Supreme Court, the decision of the Division Bench of this
113
Court in the case of National Insurance Company v. Vijayagauri Kalidas, 1999 (2)
GLR 1047 has lost its significance in this case. In the case before the Court, there
is no dispute that no such personal coverage has been included in the policy
covering the owner of the jeep. Such being the position, even though, the owner of
the jeep sustained injury while driving the scooter, his claim of compensation is
really against himself as the owner of the jeep and under Sec. 147 of the M.V. Act,
the Insurance Company is not liable to reimburse that amount.
[193] 2013 (4) GLR 3642 [Securitisation Act – Notice by DM or CMM]
CONSUMER PROTECTION AND ANALYTIC COMMITTEE V. STATE

OF GUJARAT AND ORS.
PARA-6 & 7: Once, an application under Sec. 14 of the Securitisation Act is

filed before a District Magistrate or Chief Metropolitan Magistrate, as the case may
be, he has no right of adjudicating the validity or propriety of any action taken by
the secured creditor under Sec. 13(4) of the Securitisation Act. (Para 5)In this case,
a debtor may, by practising fraud, create illegal mortgage in favour of a secured
creditor or may even fraudulently mortgage a property over which he had no right
or over which he has only a partial right, by suppressing such facts. The Court is,
therefore, of the view that whenever an application under Sec. 14 of the
Securitisation Act is filed, the District Magistrate or the Chief Metropolitan
Magistrate, as the case may be, should first affix a notice of taking possession on a
conspicuous part of the property in question and should also give a notice to the
person who is in actual possession thereof indicating its intention of taking
possession after a period of a fortnight so that in case of any fraud or collusion at
the instance of either the debtor or the secured creditor, an innocent person in
lawful possession may not be thrown out of the property with the help of the police
and he can get an opportunity to move appropriate forum for securing interim order
for protection of his possession.
114
[194] 2013 (4) GLR 3661 [Encroachment – DILR – Measurement]
RAMABEN ARJANBHAI DANGAR V. STATE OF GUJARAT AND ORS.
PARA-14: When the issue in the civil proceedings is concerning the rights of the
parties to hold their respective lands and when there is opposition against the claim
of the right to the property on the ground that one of the parties has encroached
upon the land of the other, it is always in the interest of the parties to get the
measurement of their lands done and have them on record to come to the correct
conclusion as regards the entitlement of the parties to their lands.(Para 10)14.
Reading the provisions of Order 26, Rule 9 of the Civil Procedure Code, it clearly
appears that in any suit when the Court deems a local investigation to be requisite
or proper for the purpose of elucidating any matter in dispute, or of ascertaining the
market value of any property, or the amount of any mesne profits or damages or
annual net profits, the Court may issue a Commission directing such person as it
thinks fit to make such investigation and to report thereon to the Court. The Court
is, thus, not dependent upon the application of the parties. If the Court finds and
deems it proper to have a local investigation of the suit property for the purpose of
deciding the dispute between the parties, the Court can exercise its discretion.
Therefore, even if the plaintiff had not made any application under Order 26, Rule
9 of the Civil Procedure Code, the Courts below could have exercised its discretion
under Order 26, Rule 9 of the Civil Procedure Code to appoint Commissioner for
the purpose of getting lands of the plaintiff and the defendants measured
simultaneously by the office of the D.I.L.R in presence of the officer of Forest
Department. In my view, looking to the dispute involved in the present
proceedings, it was a case for exercise of the discretion by the Court below for
appointment of Court Commissioner for the purpose of getting the lands of the
parties measured. The Courts below have failed to exercise such discretion though
called for in the facts of the case. Considering the facts of the case and issues
involved in the suit proceedings and in light of the principles of law laid down in
the context of Order 26, Rule 9, I am of the view that interest of justice would be
served if the matter is remanded to the trial Court for the limited purpose of
appointment of the Court Commissioner from the office of D.I.L.R to get the lands
of the parties measured in presence of the parties and to prepare a map thereon and
to submit report to the trial Court so that the trial Court can on this issue take
115
decision afresh after giving opportunity to the parties on such report to find out
whether the plaintiff holds any excess land over-and-above her own land.
[195] 2012 (1) GLR 38 [LAR – Family Settlement – Land Holder]
JAGDISHBHAI CHATURBHAI PATEL V. SPECIAL LAND

ACQUISITION OFFICER, VADODARA
PARA-9: Section 28A of the Act was enacted for social welfare of poor. If the
land-holder was poor and the land has gone in family settlement to one of his
family members, then the family member could not be treated to be a rich person,
who is ousted from the family. He will remain a poor person and he would be a
person interested and since the amount of award under Sec. 11 of the Act has been
paid to him, he would be entitled to maintain an application under Sec. 28A of the
Act. In the instant case, the person whose name was recorded when proceedings
under Sec. 4(1) of the Act was taken, in family settlement agreed that amount of
compensation be paid to the present petitioner. Therefore, for all the practical
purposes, the petitioner would be deemed to be the original land-holder
[196] 2012 (1) GLR 43 [Registration of Deed – Scope of Objections]
SNA INFRAPROJECTS PVT. LTD. THROUGH MANAGING DIRECTOR

V. SUB-REGISTRAR, AHMEDABAD AND ORS.
PARA- 9: The registering officer shall, before accepting any document for
registration, not concern himself with its validity but see that the other
requirements prescribed therein were fulfilled. It will be clear from bare reading of
the provisions of the Registration Act that the registering officer has a limited
scope for inquiry and in case of refusal to register a document, the Sub-Registrar is
duty-bound to make an order of refusal and record reasons for such order.
Disturbed Areas Act, 1991 also does not make any provision for enforcement of
the Act through Sub-Registrar under the Registration Act. Therefore, the impugned
communication and indirect refusal to register or withholding of the sale-deeds in
favour of the petitioner appeared to be lacking in authority of law.
116
[197] 2012 (1) GLR 63 [LAR – Municipal & Panchayat Area – 30%]
STATE OF GUJARAT THROUGH SPL. LAND ACQ. OFFICER V. PATEL

AMRATBHAI SHANKARBHAI
PARA-7: In a case where the valuation is made of the land which is falling in
the Municipal area, it cannot be compared at par with the land situated at village
area even if the boundary of Municipal area and the boundary of the said village
area may be touching to one another. The reason is that there would be basic
difference in the infrastructural facilities and the amenities in the Municipal area in
comparison to the gram panchayat area. For Municipal area, there will be facilities
of water, light, transportation, road, school, etc., which may not be available in the
gram panchayat area. Further, even if it is considered that since the area is adjacent
to each other, there was more development in gram panchayat area, which is
adjacent to the Municipal area, it appears to us that if it is to be examined for the
purpose of tracing the appropriate valuation, such valuation will be minimum 30%
less in comparison to the value of the land in the Municipal area.
[198] 2012 (1) GLR 350 [Order 23 Rule 3 – Consent Decree – Objection]
RUDRAKSH PROPERTIES PVT. LTD. THROUGH CHAIRMAN-CUM-

MANAGING DIRECTOR V. TRADE WINGS LTD.
PARA-24: An objection of nullity in the context of a consent decree under Order

23, Rule 3 of C.P.C. could be urged even before the Executing Court, if the trial
Court lacked inherent jurisdiction over the subject-matter itself to entertain such a
compromise, as the matter was one on which the Civil Court's jurisdiction was
wholly excluded or because it was the Court of limited jurisdiction and it had no
jurisdiction over the subject-matter on which it sought to pass a consent decree or
because the suit as instituted was inherently incompetent. It is only when the Court
lacked such inherent competence over the subject-matter or the parties that the
decree would be nullity and the question could be urged even before the Executing
Court. If, however, the Court did not lack such inherent competence or jurisdiction
to record a compromise and the error which it had committed was one in
incorporating the entire compromise in the operative decree or such an error which
was merely an illegality, the error would be one in the exercise of jurisdiction.
Such an objection would be one which could be waived and so if no appeal or
revision or writ proceeding was filed, it would not be open to the Executing Court
in any event to go into any such objection.
117
[199] 2012 (1) GLR 415 [LAR – Section 28 – Second Application]
KANTIBHAI NANUBHAI PATEL AND ORS. V. DEPUTY COLLECTOR,

G.I.D.C., SURAT AND ANR.
PARA-5: Section 28A of the L.A. Act makes it clear that the aggrieved person
can make an application for a reference under Sec. 28A if he has not made a
reference earlier under Sec. 18 of the Act. The Act provides for making one
application which was moved by the father of the petitioners. After the death of the
father, the petitioners stepped into the shoes of their father. The Section does not
provide for moving a second application either on the ground that the first
application has been rejected as time-barred or on the ground that subsequent
award had been made which entitles the person aggrieved to file another
application. The enforceable right to re-open a proceeding which has attained
finality must exist in this statute itself. The right to move a second application
under Sec. 28A must expressly be provided by the statute. Such a right being a
substantive one, cannot be sought to be found out by implication nor the same can
be read in the statute. The considered opinion is that the petitioners cannot invoke
the right of moving a second application under Sec. 28A though no such right is
provided by Sec. 28A. The provisions of Sec. 28A are plain and unambiguous. The
legislative intent is clear that only one application can be filed. Therefore, the
second application filed by the petitioners on the same cause of action under Sec.
28A was not maintainable and has rightly been dismissed by the respondents.
[200] 2012 (1) GLR 586 [Post Office Act – Delay or Lost – Liability]
AKHTAR HUSSAIN ALI HASAN KHAN - PROPRIETOR OF M/S.

AKHTAR ENTERPRISES, MUMBAI V. SURAT MUNICIPAL
CORPORATION AND ANR.
PARA-4 & 5: The relationship between the sender of the registered post and
the post office is governed by the Post Office Act, 1898 and not by the law of
Contract or Tort. If the tender was sent by the petitioner by registered post on 27-6-
2011 and it was delivered to the addressee, the Corporation, on 2-7-2011, after the
last date 30-6-2011, whether for the delay in delivering the registered tender,
which was sent by registered post, is on the part of post office, or the petitioner
should have sent the tender document by registered post within the reasonable
period so as to reach the addressee within time.
118
There is no contract between the respondent-Corporation and the post office
neither there is any contract between the petitioner and the post office. The post
office is not the agent of the petitioner or the respondent-Corporation. Any delay
on the part of the postal authority in delivering the tender document sent by
registered post to the Corporation has to be considered as delay caused on the part
of the petitioner himself.
In the instant case, the registered post was delivered in the office of the respondent-
Corporation after the last date expired and due to the delay, the tender of the
petitioner was rejected as time-barred. It is not the case of the petitioner that the
delay was caused in delivering the registered post to the Corporation by the post
office fraudulently or by willful act or default. There is no liability on the part of
the post office or the Government which runs the post office. The liability of the
post office is not contractual, but it is purely statutory. The post office is the
department of Central Government and it is not a common carrier. Legislature
never intended that there should be contractual relationship between the petitioner
who tenders registered post to be sent to the addressee and the postal department or
between the addressee and the postal department. Merely because, the respondent-
Corporation invited hard copy of the tender along with the document by registered
post would not make the post office as agent of the Corporation as there was no
contract entered between the Corporation and the post office. The post office is
also not the agent of the petitioner.
[201] 2012 (1) GLR 715 [LAR – Deposit in Bank – Benefit of Interest]
GUJARAT HOUSING BOARD, VADODARA V. SPECIAL LAND

ACQUISITION OFFICER, VADODARA AND ANR.
PARA-9: After the award was made, it was the amount which was required to
be paid along with 9% interest to the claimants. When the appellant deposited the
amount, it was not paid to the claimants and it was directed to be deposited in the
Bank. The intention of the Court in such cases is that whosoever wins in the case
the amount has to be paid to him on which interest has accrued in the Bank also.
There is no bar in the Act that interest on interest cannot be paid. Further Sec. 28
does not provide that if an amount along with interest is deposited in a Bank and
on that amount interest accrued, it would not be paid to the claimant nor does it
provide that it may be paid to the acquiring body.
119
[202] 2012 (1) GLR 751 [ONGC – Pipeline – Damages to other Property]
MAHENDRASINH DILAVARSINH RAJ AND ANR. V. UNION OF INDIA

THROUGH SECRETARY AND ORS.
PARA-31 & 32: In the considered view of this Court, clause (iii) of sub-sec. (3)
of Sec. 10 read with sub-sec. (3) makes it amply clear that the Competent
Authority has the jurisdiction to determine the amount of loss or damage sustained
by any person interested in the land by reason of any injury to any other property,
whether movable or immovable. The words "any other property", in view of this
Court, include the other property that may not strictly fall within the Right of User
area. The procedure for laying pipelines entails entering upon the land, digging,
bringing in machinery and doing several other acts that may cause damage to land
other than the strip of land underneath which the pipeline is being laid (RoU). To
enter the RoU land, access has to be taken from other land. In the case of the
petitioners, their water supply pipeline has been blocked and damaged and even the
Narmada canal water supply line for irrigation has been damaged, causing huge
losses to thousands of fruit bearing trees. This aspect is not denied by the
respondents and a panchnama under Rule 4A(2) has been drawn up that highlights
the extent of the damage.
This action of the Competent Authority amounts to dereliction, if not abdication, of

the statutory duties that he is bound to perform under the Act. It is nowhere
mentioned in the Act that the Competent Authority is empowered to relegate the
claimants to the Contractors of the acquiring body. The action of the Competent
Authority in rejecting the claim application of the petitioners on this ground is
clearly illegal, arbitrary, and unsustainable in law.
[203] 2012 (1) GLR 820 [MACP – Date of Accident or Retirement]
DIVISIONAL CONTROLLER, GUJARAT STATE ROAD TRANSPORT

CORPORATION V. SANDHYA SAHEGAL WD/O. SATISH SAHEGAL
AND ORS.
PARA-17 &23: The Court deemed fit at this stage to quote and rely on a very
important decision of the Supreme Court in the case of Oriental Insurance
Company Ltd. v. Jasuben, 2008 (2) GLR 1705 (SC). In Jasuben's case, the Bench
took the view that the salary would be revised or not was not known at the time
when the deceased died. Only because such salary was revised at a later point of
120
time, the same by itself would not have been the factor which could have been
taken into consideration for determining the amount of compensation. What would
have been the income of the deceased on the date of retirement would not be a
relevant factor and the loss of dependency should be calculated on the basis of the
basic pay drawn by the deceased at the time of death.
[204] 2012 (1) GLR 866 [Immovable Property – Time Essence of Contract]
UNION BEARINGS (INDIA) LTD. V. ARVINDBHAI CHHAGANBHAI

PATEL AND ANR.
PARA-12 & 13: Even if it is written in a contract that the time would be the
essence of the contract, a party to such a contract can by giving evidence prove that
in the facts of the said case time was not the essence of the contract. Similarly,
even if nothing is written in mandatory form in the contract, a party to the same by
giving evidence prove that time was the essence of the contract. In this case, the
defendant failed to prove by giving any evidence that there was any such
circumstance which would go to show that time was the essence of the contract. As
provided in the Specific Relief Act, in case of sale of immovable property, the
Court will presume that time was not the essence of the contract unless contrary is
proved. Thus, the learned trial Judge erred in law in holding that the time was the
essence of the contract.
[205] 2012 (1) GLR 892 [Every Delay’s Delay – Approach]
LIMBAD PRAVINSINH RATANSINH V. TAKHATSANG BANESANG

NAKUM AND ORS.
PARA- 13 to 21: "Every day's delay must be explained" does not mean that a
pedantic approach should be made. Why not every hour's delay, every second's
delay? The doctrine must be applied in a rational common sense pragmatic
manner. The Apex Court has ruled that poverty, ignorance and illiteracy prevalent
in this country of ours cannot be ignored when the question regarding the belated
action is on the anvil. A copy of the said application has been annexed as
Annexure-I to the petition. A perusal thereof reveals that in Paragraph 2, the
petitioner has explained the delay, stating, that due to adverse circumstances and
the continuous illness of his minor daughter, he could not file the Revision
Application within the prescribed period of time.
121
In the view of this Court, the approach adopted by the Revisional Authority is at
total variance with the sound legal principles enunciated by the Supreme Court,
and this Court, in the above quoted judgments. The Revisional Authority is bound
to consider the grounds advanced in application for condonation of delay, and to
decide on the facts and circumstances of the case, whether sufficient cause has
been shown by the petitioner, or not. Instead of this, the Revisional Authority has
straightaway rejected the Revision Application on the ground that it is delayed by 9
years and is not accompanied by an affidavit. This course of action, being highly
technical and pedantic, cannot be approved by this Court as it defeats the ends of
justice. If the Authority was of the view that an affidavit ought to have been filed
by the petitioner, it could have permitted the petitioner to file one, or to refile the
application along with an affidavit.
[206] 2012 (2) GLR 987 [Entry in Births & Deaths Register – Correction]
BALDEVBHAI ATMARAM LIMBACHIYA V. STATE OF GUJARAT

THROUGH THE LEARNED GOVERNMENT PLEADER AND ANR.
PARA-9 & 11: Section 15 of the Act and Rule 11 of the Rules makes it clear
that the Competent Authority is vested with power to cancel or correct an entry of
birth or death, in any Register maintained by him, subject to it being proved to his
satisfaction that such cancellation/correction is necessary. The procedure to be
followed is laid down in detail in Rule 11 of the Rules.
If the impugned order passed by respondent No. 2 is examined in the light of the
provisions of law reproduced hereinabove and the principles of law laid down in
Nitaben N. Patel v. State of Gujarat, 2008 (1) GLR 884, it is clear that respondent
No. 2 has not exercised jurisdiction that is vested in him. This action is clearly
contrary to the settled legal position. The refusal of respondent No. 2 to exercise
power vested in him under the Act and Rules certainly calls for the interference of
this Court, in exercise of jurisdiction under Art. 226 of the Constitution of India.
[207] 2012 (2) GLR 1019 [LAR – Reference – Delay – Jurisdiction]
OIL AND NATURAL GAS CORPORATION LTD. V. JIVUBA CHAUHAN

WD/O. NENAJI MAHOTJI CHAUHAN AND ANR.
PARA-11: The Court finds that in the instant case, the Reference Court has
decided identical issues which are beyond the scope and ambit of Sec. 35(3) of the
Act. The Court finds that as laid down by this Court in the case of Oil & Natural
122
Gas Corporation, (2008 (2) GLR 1226) the References were barred by limitation
and the Reference Court could not have entertained the same. The manner in which
the Land Acquisition Officer has referred the Reference Applications which were
filed after 17 years from the date of passing of the award and the Reference Court
having decided the issue which does not arise in the Reference Application as
contemplated under Sec. 35(3) requires to be deprecated. It is not fit to propound
any further on the said aspect. In addition to this, the lands in question were
situated at village Telavi falling under Detroj Taluka are within the jurisdiction of
Ahmedabad District, and therefore, the Reference Court at Mehsana had no
jurisdiction to entertain the Reference Application.
[208] 2012 (2) GLR 1210 [Passport Act – Minor – Affidavit – JMFC]
MOKSH S/O. VISHAL RABDU AND RUCHI PATEL V. STATE OF

GUJARAT AND ORS.
PARA-10 &11: In the present case, Annexure "G" is the Declaration of the
applicant parent or guardian, if the passport is for a minor (one parent not given
consent) and is to be sworn in the form of an affidavit before a Judicial Magistrate
on non-judicial stamp paper. The form at Annexure "G" has been prescribed under
Rule 5 of the Passport Rules, 1980. Section 24(2)(c) of the Passport Act, 1967,
empowers the framing of Rules and it is under this provision of law that the Rules
have been framed. Rule 5, in turn, prescribes the Form containing Annexure "G".
It, therefore, emerges that the form containing Annexure "G', as per which the
petitioner has to swear the affidavit before the learned Judicial Magistrate, is
prescribed by law, therefore, the grounds of rejection of the application made by
the petitioner, by the learned Additional Judicial Magistrate, namely, that the
petitioner has not mentioned under which provision of law the application is filed,
and that under the Criminal Manual the Courts have no power to administer oaths,
except with respect to Court proceedings, are not in consonance with law.
[209] 2012 (2) GLR 1300 [Panjrapole –Treatment to Cattles]
MAHISAGAR MATAJI SAMAJ SEVA TRUST THROUGH PRESIDENT V.

STATE OF GUJARAT THROUGH SECRETARY AND ORS.
PARA-19 & 20: It is always open for the authorities concerned to curb the
menace of cattle straying on public roads and causing nuisance, but when it
decides to take steps under the law, then at that stage the authorities are expected
123
and are duty-bound to treat such cattle with compassion even while keeping them
at cattle-pound or at 'Panjrapole'. The Court is constrained to observe this because
over a period of time many cases have come to its notice that once cattle goes to a
cattle-pound or a 'Panjrapole', it is made to suffer and ultimately dies. Many cases
have been reported where out of hundreds of seized cattle, hardly one cattle
remains alive. The only reply to this so far has been that the cattle died due to some
disease.
[210] 2012 (2) GLR (SC) 1332 [Matrimonial Matters – Transfer]
DEEPTI BHANDARI V. NITIN BHANDARI AND ANR.
PARA-16: It is true that transfer of the several cases to Delhi is likely to cause
some inconvenience to respondent No. 1 and his family members, but it cannot be
denied that it would be easier for the respondent No. 1 to attend to the proceedings
in Delhi than for the petitioner to attend to the same in Jaipur, while staying in
Delhi with her minor child. We, therefore, see no substance in the persistent
demand of respondent No. 1 that he should be allowed to meet the etitioner and
their minor child at Jaipur to enable him and his family members to meet the child
on a regular basis. In our view, it is the respondent No. 1 who should make an
effort to meet his minor child in Delhi as and when he wishes to do so. The
petitioner can have no objection whatsoever to such an arrangement and must also
ensure that the child is able to meet her father in terms of the order of this Court on
all weekends in New Delhi instead of the second and fourth Saturday of each
month.
[211] 2012 (2) GLR (SC) 1398 [Acquisition – Suitability of Land]
RAMJI VEERJI PATEL AND ORS. V. REVENUE DIVISIONAL OFFICER

AND ORS.
PARA-11& 21: Sec. 5A of the Act confers a valuable right on the person
interested in any land which has been notified under Sec. 4(1) as being needed for
a public purpose or likely to be needed for public purpose is beyond doubt. By this
right, the owner/person interested may put forth his objections not only in respect
of public purpose but also the suitability of the acquisition in respect of his land.
The objector gets an opportunity under Sec. 5A to persuade the Collector that his
124
land is not suitable for the purpose for which the acquisition is being made or the
availability of other land suitable for that purpose.
If the land proposed to be acquired and the alternative land suggested by the
owners/persons interested are equally suitable for the purpose for which land is
being acquired, the satisfaction of the Government, if not actuated with ulterior
motive, must get primacy. In the judicial review, it is not open to the Court to
examine the aspect of suitability as a Court of appeal and substitute its opinion.
[212] 2012 (2) GLR 1441 [Delay – Government – Administrative Follow up]
RAJKOT DISTRICT PANCHAYAT AND ANR. V. M/S. VASOYA

CONSTRUCTION AND ORS.
PARA-11& 12: The Hon'ble Apex Court in catena of judicial pronouncements

has laid down guidelines for adopting a pragmatic approach in matters of
condonation of delay. The Hon'ble Apex Court in a judgment in the case of State of
Nagaland v. Lipok A.O., reported in 2005 (3) SCC 752 has observed :
"The factors which are peculiar to and characteristic of the functioning of the
Governmental conditions would be cognizant to and requires adoption of
pragmatic approach in justice-oriented process. The Court should decide the
matters on merits unless the case is hopelessly without merit....."
Therefore, the submission of learned Advocate Mr. Shah that the Government
department or a statutory body cannot claim for condonation of delay on
administrative follow up relying upon the Full Bench judgment of this Court in the
case of Ahmedabad Municipal Corporation has to be considered in light of the
aforesaid observations of the Hon'ble Apex Court, which is also binding on this
Court. Further, there is no quarrel on the proposition that Sec. 5 of the Limitation
Act read with Order 22, Rule 9 of C.P.C. provides for exercise of discretion on
sufficient cause being shown for condonation of delay. Therefore, sufficient cause
is a matter of appreciation of facts and circumstances in each individual case and it
cannot be defined in a strait-jacket formula. The words 'sufficient cause' have to be
considered in background of the facts of each case though it may not be a matter of
right or a magic word for condonation of delay in a routine manner.
125
[213] 2012 (2) GLR 1482 [Tenancy – Family – Meaning]
TARABEN D/O. SHIVSHANKER NATHJI PANDYA THROUGH P.O.A.

KAUSHIKBHAI M. BHATT V. MANUBHAI HARINARAYAN PANDYA
AND ORS.
PARA-11 & 12: As per the definition of Family in Black's Law Dictionary, 9th
Edition, it appears that the family can be defined to the extent that the persons who
are connected by blood, by affinity or by law especially within two or three
generations only. Even a group consisting of parents and their children can be
defined as a family. As per the said definition, a group of persons who live together
and have a shared commitment to a domestic relationship can be treated as a
family.In case of Kailashbhai Shukaram Tiwari v. Jotsna Laxmidas Pujara, 2006
(1) SCC 524, the Hon'ble Apex Court, while dealing with the case under the
provisions of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947
has held that, in absence of definition of a family, the question whether a person is
a member of family or not must be decided on the facts and circumstances of each
case.
In the present case, the relationship is at 4th/5th generation which would not fall
within the definition of family as per Black's Law Dictionary. The Court is also in
agreement with the observations made by the learned Single Judge in case of M. K.
Valand (1993 GLT 315) that the word "family" has to be construed in consonance
with the object of the Tenancy Act. The object of Tenancy Act is to avoid the
neglect of the land-holder or dispute between the land-holder and his tenants and to
see that the cultivation of the land is not seriously suffered or for the purpose of
meeting the economic and social conditions of peasants and for ensuring the full
efficient use of the land for agricultural purpose. In the present case, appellant in
her deposition on oath before the Agricultural Lands Tribunal had stated that the
fathers of the respondents were cultivating the land since 25 years and she has
accepted the respondent as tenant of the land.
[214] 2012 (2) GLR 1572 [Rent Act – Suspension – 11 Months Licence]
DIPAK RASBIHARILAL GOYEL V. NALINIBEN H. RAVAL
PARA-9 & 10: Government Notification dated 30-10-2001 by which the

Bombay Rents, Hotel and Lodging House Rates Control Act has been suspended
clearly provides that "it shall be suspended for a period of ten years from the date
126
of the commencement of the amending Act" and the provisions of the Rent Act
would not be applicable. Therefore, naturally, when the statutory provisions of the
Rent Act are not applicable and the entire transaction is pursuant to the leave and
licence agreement between the parties, the parties would be governed by terms and
conditions of such leave and licence agreement. As stated above, clause in the
recital, the leave and licence agreement at Exh. 26 which has been quoted here
clearly provides that the premises has been permitted to be used purely on leave
and licence basis as licensee only for a limited period of 11 months and not as a
lessee or a tenant. Further, clause 7 again provides that "the licensee confirms that
he will not claim exclusive possession or claim any tenancy right over the licensed
premises." Thus, it is more than clear that the parties have accepted and agreed to
be governed by leave and licence agreement as expressed stipulation that the
possession is given only for the purpose of residence on the basis of leave and
licence agreement for a period of 11 months and not as lessee or a tenant. Further,
it has been clarified and confirmed by the licensee/applicant that he will not claim
exclusive possession or claim any tenancy right over the premises. This would
make it more than clear about the intention of the parties that they have willingly
and readily accepted to be governed by the leave and licence agreement. Therefore,
the submissions with regard to gathering of the intention of the parties does not
survive. Therefore, when there is no statutory provisions in force or applicable and
when the parties have entered into leave and licence agreement willingly with open
eyes with the terms and conditions which has been reduced in writing, they would
naturally be governed by such expressed conditions agreed upon between the
parties. Thus, they are governed by the terms and conditions of the leave and
licence agreement.
Further, the provisions of Sec. 106 of the Transfer of Property Act provides with
regard to the termination of a lease and the notice in absence of any agreement or
written contract. However, in the facts of the case, there is specific leave and
licence agreement between the parties which provides for the aspects like, the
possession is handed over on leave and licence agreement for a period of 11
months making it clear that it is not a lease and that the appellant cannot claim any
right or possession as a lessee or a tenant. Therefore, when there is expressed
stipulation in the contract/leave and licence agreement providing for such aspects
that Sec. 106 of the Transfer of Property Act will not have any application as it
refers to the lease.
127
[215] 2012 (2) GLR 1600 [Agricultural Land – Court Fees – Valuation]
SHRENIKBHAI KASTURBHAI TRUSTEE OF THE AHMEDABAD

EDUCATION SOCIETY AND ORS. V. STATE OF GUJARAT AND ANR.
PARA-15 to 20: Section 6(4) and third proviso of Gujarat Court-Fees Act, 2004,
which is relevant for the present purpose provides that in any of the cases falling
under the said clause, except its first proviso, when in addition to any
consequential relief other than possession is sought, the amount of fee shall be one-
half of the ad-valorem fee and when the consequential relief sought also includes a
relief for possession, the amount of fee shall be the full ad-valorem fee.
In case of a suit for possession of land, the Court-fee shall be the value of land
computed in terms of sub-clause (a), (b) or (c) of clause (13) of Sec. 6 of the Act.
As noticed earlier, the present suits are essentially suits for possession of land and
would, therefore, fall under clause (13) of Sec. 6 of the Act. Insofar as the category
under which the disputed lands would fall, the learned Advocate for the
revisionists has fairly stated that the present cases would fall under sub-clause (b)
of Sec. 6(13) of the Act, viz., where the land is held on a permanent settlement and
full assessment is paid to the Government.
Under the circumstances, the Court-fees would be required to be computed on the

value of the land wherein the value of the land shall be deemed to be a sum equal
to forty times the survey assessment.
It may be noted that the trial Court has held that the present case falls under clause
(4) of Sec. 6 and has computed the Court-fee on the basis of the market value of
the suit land. As noticed earlier, even if the case is one falling under clause (4) of
Sec. 6, even then the Court-fee payable would be either one-fourth or one-half or
the full amount of ad-valorem fee leviable for a suit for possession. Here again, the
ad-valorem fee would be required to be computed on the basis of fee leviable for a
suit for possession as laid down under clause (13) of Sec. 6 of the Act. The
provision does not envisage levy of Court-fees on the basis of actual market value
of the land as contended by the Inspecting Officer (Court-fee).
128
[216] 2012 (2) GLR (FB) 1608 [Agriculturist – Out of Gujarat State]
PREETHISINGH MUKANDSINGH SHIKH AND ORS. V. STATE OF

GUJARAT AND ORS.
PARA-5, 13 to 19, 27 & 39: The only question that arises for determination in
these matters is whether a person who does not own agricultural land within the
State of Gujarat can be treated to be a non-agriculturist within the meaning of the
Act simply because he does not cultivate any agricultural land within the State of
Gujarat and on that ground, the purchase of any agricultural land by such a person
will be hit by the provisions contained in Sec. 89 of the Act.
The definition of 'agriculturist' is seen it simply means a person who cultivates land
personally and there is no restriction that he must be a person who cultivates land
personally at least some land in the State of Gujarat.
According to Gujarat Land Ceiling Act, 1960 which governs all agricultural lands
in the State of Gujarat, there is a similar definition of 'agriculturist' without any
restriction of personal cultivation of land only in the State of Gujarat, and
according to Sec. 6 of the said Ceiling Act, which has an overriding effect overall
law for the time being in force, no person should be entitled to hold whether as
owner or tenant or partly as owner and partly as tenant land in excess of the ceiling
area and while determining such ceiling area, any land held by an agriculturist in
any other part of the India outside the State, not exceeding the maximum area of
land, which such person is entitled to hold in such other part of India under any
law, if any, relating to ceiling on land, used or capable of being used for
agricultural purposes, shall be excluded from the ceiling area in excess of which a
person is not entitled to hold land under this Section.
In the entire Act, there is no indication that a person can acquire any agricultural
land in Gujarat only if he is already cultivating some of the lands in Gujarat. The
aforesaid idea is absurd as would appear from the fact that even under the
provisions of the Act, a person can become an 'agriculturist' even by way of
succession as heir of an agriculturist. Therefore, if a cultivator in Gujarat marries a
person who is not an agriculturist in a different State, on the death of the former,
the latter will definitely acquire interest in the land in Gujarat.
A person who does not own agricultural land within the State of Gujarat at the time
of purchase cannot be treated to be a non-agriculturist within the meaning of the
Act simply because he does not cultivate any agricultural land within the State of
129
Gujarat and on that ground alone, the purchase of any agricultural land by such a
person will not be hit by the provisions contained in Sec. 89 of the Act.
[217] 2012 (2) GLR 1681 [MACP – Third Party Risk – Pillion Rider]
UNITED INDIA INSURANCE CO. LTD. V. JYOTIBALA GHANSHYAM

JOSHI AND ORS.
PARA-3, &4: There is no dispute that in the case before this Court, no other
vehicle was involved and according to the claimant, the accident occurred due to
negligent driving on the part of the driver of the Moped on which the victim was
travelling as a pillion rider. It appears that the aforesaid point has now been settled
by the Supreme Court in the case of Oriental Insurance Co. Ltd. v. Sudhakaran
K.V., 2008 ACJ 2045 and also in the case of General Manager, United Insurance
Co. Ltd. v. M. Laxmi, AIR 2009 SC 626 wherein it has been held that a pillion
rider on a two-wheeler cannot be treated as a third party in respect of insurer of the
self-same vehicle and the legal obligation of the insurer under Sec. 147 of the Act
cannot be extended to the injury or death of a pillion rider.
[218] 2012 (2) GLR 1741 [Revenue Record - Occupant – N. A. Permission]
BHAYABHAI VAJSHIBHAI HATHALIA AND ORS. V. STATE OF

GUJARAT AND ORS.
PARA-20: Section 65 of the Code would persuade the Court to hold that Sec. 65
of the Code does not envisage scope of raising any objection in any party who is
not acknowledged right or interest in the land in question. In other words
proceedings under Sec. 65 of the Code is not an adversely proceeding at all. If any
interested party is apprehending any smart practice on anyone in respect of land it
can always take recourse to the Civil Court for obtaining appropriate injunction or
prohibitory orders. When the party fails obtaining any appropriate order of
injunction or prohibitory order from the competent Civil Court, then that party, at
least would not be entitled to seek any prohibitory orders against the person whose
name is shown in the revenue record as an occupant. Or else it will lead to a
situation where on account of showing semblance of some interest in the land in
question or for that matter even substantive interest the party who has not been
successful in establishing its right and obtain any prohibitory orders would succeed
in thwarting and throttling the occupant of the land in question who is legitimately
acknowledged to be occupant by revenue authorities. The N.A. permission under
130
Sec. 65 cannot be said to be in any manner conferring and or abridging title of
anyone if it exists in the land in question. It is merely an act of granting permission
by the authority qua the piece of land in question. In other words it can well be said
that the land which was an agricultural land and it was supposed to put up to
agricultural purpose, is decided to be freed from restrictions and permitted to be
developed. Thus, the permission is attached to the land in question and not to the
person.
[219] 2012 (3) GLR 1944 [Execution of Deed by POA – Affidavit]
RAJIV MAHESHKUMAR MEHTA AND ORS. V. STATE OF GUJARAT

AND ORS.
PARA-14 & 16: The Power of Attorney Act, 1882, read with the provisions
thereof, and interpretation of the Apex Court in case of Rajni Tandon, [2009 (3)
GLH 533 (SC)] would eminently go to show that once power of attorney holder
himself is executing document on behalf of the person or donor whose power is
enjoying, or the power of attorney holder, the requirement as envisaged under
Registration Act as well as Power of Attorney Act would complete, and therefore,
any further insistence with regard to filing of affidavit etc., on the spacious ground
of likelihood of any fraud being committed cannot be permitted to or imposed or
else, it will amount to indirectly amending the statutory provision by executive
instructions which is highly impermissible in the system which is adopted in the
constitutional provision.
When provisions of Power of Attorney Act, 1882 and Registration Act, 1908 do
not provide for any other requirement, then, additional requirement by way of
executive instructions cannot be permitted to be an impediment in the way of
registration.
[220] 2012 (3) GLR (SC) 1976 [MACP - Premium – Dishonour of Cheque ]
UNITED INDIA INSURANCE COMPANY LTD. V. LAXMAMMA AND

ORS.
PARA-26 & 27: Where the policy of insurance is issued by an authorised insurer
on receipt of cheque towards the payment of premium and such a cheque is
returned dishonored, the liability of the authorised insurer to indemnify the third
parties in respect of the liability which that policy covered subsists and it has to
satisfy the award of compensation by reason of the provisions of Secs. 147(5) and
131
149(1) of the M. V. Act unless the policy of insurance is cancelled by the
authorised insurer and intimation of such cancellation has reached the insured
before the accident. In other words, where the policy of insurance is issued by an
authorised insurer to cover a vehicle on receipt of the cheque paid towards
premium and the cheque gets dishonoured and before the accident of the vehicle
occurs, such Insurance Company cancels the policy of insurance and sends
intimation thereof to the owner, the Insurance Company's liability to indemnify the
third parties which that policy covered ceases and the Insurance Company is not
liable to satisfy awards of compensation in respect thereof.
Having regard to the above legal position, insofar as the facts of the present case
are concerned, the owner of the bus obtained the policy of insurance from the
insurer for the period 16-4-2004 to 15-4-2005 for which premium was paid
through cheque on 14-4-2004. The accident occurred on 11-5-2004. It was only
thereafter that the insurer cancelled the insurance policy by communication dated
13-5-2004 on the ground of dishonour of cheque which was received by the owner
of the vehicle on 21-5-2004. The cancellation of policy having been done by the
insurer after the accident, the insurer become liable to satisfy the award of
compensation passed in favour of the claimants.
[221] 2012 (3) GLR (FB) 1985 [MACP – Third Party Risk – Unlimited]
SHANTABEN WD/O. (DECD.) KANTIBHAI PUNJABHAI VANKAR AND

ORS. V. YAKUBBHAI IBRAHIMBHAI PATEL AND ORS.
PARA-28 & 39: The policy clearly provided the limit of liability. It further
provided that the limit of the amount of the Insurance Company's liability in
respect of one accident would be such amount as is necessary under the Motor
Vehicles Act, 1939. It is not in dispute that the present case falls under Sec.
95(2)(b) of the Act of 1939. In absence of any other terms of the agreement and in
absence of any additional premium being paid for covering unlimited liability of
the Insurance Company, the Court is unable to agree with the contention of the
learned Counsel for the appellants that in the present case, the insurance policy was
covering unlimited liability of the Insurance Company.
In view of the above pronouncement of the Apex Court, the Court has no hesitation
in holding that in face of avoidance clause contained in the insurance policy, the
Insurance Company despite its limited liability must insofar as third party is
concerned, satisfy the entire award of the Claims Tribunal. The Insurance
Company, of course, would be entitled to recover the amount in excess of Rs.
132
50,000/- which is the statutory limit of liability, from the owner of the vehicle
insured which was involved in the accident.
[222] 2012 (3) GLR 2003 [Regulation of Traffic – Powers]
JAGEGA GUJARAT SANGHARSH SAMITI THROUGH PRAKASH

KAPADIA V. STATE OF GUJARAT THROUGH SECRETARY AND ORS.
PARA-7: Section 33(1)(b) definitely states 'regulating traffic of all kinds in

streets and public places'. That will include regulating such type of traffic and it
can be easily construed that a particular area on a particular day can be declared as
a 'Vehicle-Free Zone' for the convenience of the pedestrians taking into
consideration the acute and the burning problem of traffic. 'Regulating traffic of all
kinds in streets and public places' is the power conferred upon the Commissioner
and the very same sub-section also gives power to the Commissioner to regulate as
regards the use of streets and public places, etc. Hence, restricting vehicular
movements on a particular street at a particular time on a given day will come
under the regulation of all traffic in streets and public places as envisaged by Sec.
33(1)(b).
[223] 2012 (3) GLR 2020 [Section 34 CPC – Interest – Prior to Suit]
COMMISSIONER, JAMNAGAR MUNICIPAL CORPORATION V.

PARTNERS OF PRAKASH ELECTRIC STORES AND ORS.
PARA-14: The Court has discretion to award interest for the period from the date
of institution of the suit till passing of the decree and from the date of decree till
payment is made, but the Court has no discretion to award interest for the period
prior to filing of the suit. Unless there is agreement between the parties, or a
special statute recognising right to interest or any usage for grant of interest, Court
under Sec. 34 of the Civil Procedure Code is devoid of any power or jurisdiction to
grant interest for the period prior to filing of the suit. In the present case, there is a
covenant in negative form, not to claim any interest by the plaintiff on the principal
amount, found to be due and payable, from the date it became due and payable till
filing of the suit. Therefore, in absence of any agreement for grant of interest, for
the period prior to filing of the suit and in view of the specific negative covenant
for non-payment of interest, from the date principal amount became due and
payable till filing of the suit on the ground of delay in making payment of the
principal amount, the respondent-plaintiff was not at all entitled to interest for the
period prior to filing of the suit.
133
[224] 2012 (3) GLR (SC) 2065 [LAR – Copy of Award along with Notice]
PREMJI NATHU V. STATE OF GUJARAT AND ANR.
PARA-15: On behalf of the State Government, no evidence was produced before

the Reference Court to show that copy of the award was sent to the appellant along
with the notice. Unfortunately, while deciding issue No. 3, this aspect has been
totally ignored by the Reference Court which mechanically concluded that the
application filed on 8-4-1985 was beyond the time specified in Sec. 18(2)(b).
[225] 2012 (3) GLR 2081 [Sale deed – Breach of Provisions – Advantage]
SUNDERLAL BHANABHAI BHAGAT AND ORS. V. STATE OF

GUJARAT AND ORS.
PARA-8: A person who has misrepresented the other person and has persuaded
him to purchase the land for consideration and sold the land to him can challenge
the said void order, but it is not open for him to challenge the sale deed executed
by him to be void as it would amount to taking the benefit of his own fraudulent
act in executing the sale deed knowing fully well that the said sale deed could not
be executed by him. It is well settled principle of law that a party cannot be
allowed to take any benefit of his own wrong. The reliance placed by the learned
Counsel for the appellants in the case of Saburbhai Hemabhai Chauhan, (2000 (1)
GLR 835 : 2000 (1) GLH 580) would not apply in the facts of the present case.
[226] 2012 (3) GLR 2088 [Apartments – Terrace/Compound – Common]
VRAJMOTI CORPORATION V. AMBAWADI APARTMENTS OWNERS

ASSOCIATION AND ORS.
PARA-16 & 17: Each flat holder or unit holder has a right of enjoyment in
common facilities like terrace or the compound and in fact, he has undivided share
in the land and has also right in common use such terrace in common. Therefore,
when the submission is made that the respective unit holder is given a separate unit
or flat only and he cannot have any right beyond that itself is inconsistent with the
statutory provisions under the Gujarat Ownership Flats Act, 1973 or under the Co-
operative Societies Act.
The unit holders or the allottees of the flats are entitled to use and possess the
common amenities and facilities meant for all such members like the staircase,
134
terrace, garden, parking, compound etc. Therefore, when the members themselves
have a right under the statute, it cannot be restricted or claimed by the clause or the
wordings in agreement that the members will not have any right to claim and enjoy
the terrace in common and the appellant association or the builder or the organiser
can have exclusive right in respect of such super-structure or the buildings to make
use of the terrace of such building or the super-structure which itself belonged to
the unit holders or the flat holders collectively. As stated above, the portion or the
roof is ceiling to the building and it would be forming a ceiling of the flat at the
last floor, which cannot be claimed as an exclusive property or exclusive right for
use by anybody either members or the even organiser. If that is permitted, it would
also amount to negating the right of flat or unit holder to enjoy the amenities and
facilities.
There may not be any specific recitals or the declaration that by itself would not
deny the right to independent flat holder or unit holder to occupy and enjoy the
common amenities and facilities in common. It is in this background, the Court
below has found that any such provisions or the clause relating to the terrace is
required to be struck down as an unenforceable and it is inconsistent with the
provisions of the Act.
[227] 2012 (3) GLR 2099 [Crushing Unit/Quarry – Residence – Distance]
YAKUBBHAI SHARIFBHAI AAGLODIYA AND ORS. V. COLLECTOR

AND DISTRICT MAGISTRATE, SABARKANTHA AND ORS.
PARA-11: It is an undisputed fact that the distance between the crushing unit and
the residential locality of the petitioners is about 645 metres i.e. for sure, less than
1 km. The Court is not able to understand as to why the Gujarat Pollution Control
Board has ignored this aspect while granting consent, more particularly, when
there is a decision of the Supreme Court in the case of Mohammed Haroon, (AIR
2004 SC 823), that a safe distance between a crushing unit and residential locality
should be 1 km. The judgment of the Supreme Court would be the law of the land
within Art. 141 of the Constitution of India and the Gujarat Pollution Control
Board could not have overlooked the judgment and granted necessary consent or
permission to start the unit.
135
[228] 2012 (3) GLR 2119 [Necessary Party – Electricity Supply Matter]
JAYDEEP AND CO. V. MAHARAJA SALT WORKS CO. LTD. AND ANR.
PARA-6: As the suit is for the relief for declaration that defendant's action of
laying the electricity lines is without any law and as those lines are laid to supply
the electricity to the petitioner, where in that suit it would be far-fetched to treat the
petitioner to be a stranger. Any order or decree which may be passed in the suit,
would touch upon the interest of the petitioner and affect its rights. Having regard
to the admitted fact that the electricity supply to the petitioner has also been
commissioned, it can also be said that the petitioner has got 'present interest' in the
subject-matter of the suit. In other words, the petitioner having become a
beneficiary of the electricity lines laid upon his application for the same, he has a
direct interest in the outcome of the suit. In the circumstances, it cannot be gainsaid
that the petitioner has got legal interest in the subject-matter of the suit.
[229] 2012 (3) GLR 2139 [Dispossession after Suit – Mandatory Relief]
NILESHKUMAR HIRALAL MODI V. HITESH KAUSHIKKUMAR MODI

AND ANR.
PARA-13: As far as the contention of non-filing of suit or counter-claim by the

defendants is concerned, it is to be noted that the defendants were in possession of
the suit premises before filing of the suit by the plaintiff. However, after filing of
suit, the plaintiff took possession of the suit premises by dispossessing the
defendants and hence, under Order 8, Rule 6A of C.P.C., the defendants have right
to seek restoration of the possession of the suit premises and mandatory relief and
consequently the Court has all powers to grant mandatory injunction on finding it
to be a case fit to exercise discretion. In such circumstances, no suit or counter-
claim needs to be filed by the defendants. In view of the above, there is no
substance in the submission of learned Advocate, Mr. Mehul Shah that defendants
have not filed any suit in light of Sec. 39 of Specific Relief Act.
136
[230] 2012 (3) GLR 2164 [Open Land – Ownership of Govt. Not Panchayat]
KHETSHI HIRJI SHAH V. STATE OF GUJARAT AND ORS.
PARA-51, 54 & 58: The provisions of the Act makes it abundantly clear that
Panchayat can never be said to be the owner of any land. Section 37 of the Bombay
Land Revenue Code makes it absolutely clear that all lands wherever situated,
which are not the property of individuals, or of aggregate of persons legally
capable of holding property, shall be the property of the Government and it is only
the Collector, subject to the orders of the State Government, who is empowered to
lawfully dispose of them in such a manner as he may deem fit, or as may be
authorised by general rules sanctioned by the Government concerned. Just because
300 acres of land acquired under the acquisition proceedings initiated by the State
Government was ordered to be merged with the 'gamtal' of village Adhoi will not
make the Panchayat the owner of the land.
Since the Panchayat had no power or any authority under the law to dispose of the
land in the manner as it has been done in favour of individuals and institutions, the
construction which has been put up can be termed as per se illegal and
unauthorized and no right, title or interest can be said to have been created in
favour of any of such individuals or institutions.
No consideration should be shown to any person where construction is

unauthorised. This dicta is now almost bordering the rule of law. During the course
of hearing, stress was laid by the respondents to exercise judicial discretion in
moulding the relief inasmuch as asking the Government to regularise such
allotments and constructions. Such a discretion cannot be exercised which
encourages illegality or perpetuates an illegality. Unauthorised construction, if it is
illegal and cannot be compounded, has to be demolished. Judicial discretion
wherever it is required to be exercised has to be in accordance with law and set
legal principles. As a matter of fact, the State Government ought to have acted very
promptly and should not have allowed to perpetuate such illegality to this level. In
any case, now at least having realised, it is expected of the authorities of the State
Government to promptly get into action and see to it that immediately action is
taken for demolition of such illegal constructions.
137
[231] 2012 (3) GLR 2206 [MACP – Compassionate Appointment – Effect]
HEIRS OF DECD. GIRDHARBHAI @ GIRISHBHAI DEVJIBHAI,

REKHABEN GIRDHARBHAI PANSURIYA AND ORS. V. RAKESHBHAI
GOPALBHAI KHANPARA AND ORS.
PARA-11: Unanimously all the High Courts of the country had held in different
decisions that if upon the death of a person, his widow or other dependant is
granted appointment on compassionate basis by the employer of the deceased, any
salary received through such employment cannot be deducted from the
compensation payable to the claimants.
The deceased was aged about 34 years. He, therefore, had a long service left. He
was employed as a permanent employee in a State owned Corporation. The
Corporation was following pay pattern and periodic pay revisions as per the
Government pay structure. Considering these aspects of the matter, granting 50%
increase for the assessment of dependency benefits on the current salary cannot be
stated to be unreasonable. The monthly income of the deceased worked out for
such benefits would therefore, be Rs. 11,250/-. Out of such sum, what should be
diverted to the claimants is a question required to be answered in peculiar facts of
the case. We may recall that the widow of the deceased was granted compassionate
appointment after his death. It was because of this that the Tribunal slashed down
the dependency benefits of the claimants by entire take home salary of the wife
from such employment. We are, however, of the opinion that such a reduction was
not justified.
[232] 2012 (3) GLR (SC) 2299 [Delay – Administrative Grounds]
MANIBEN DEVRAJ SHAH V. MUNICIPAL CORPORATION OF BRIHAN

MUMBAI
PARA-18 & 22: What needs to be emphasised is that even though a liberal and
justice-oriented approach is required to be adopted in the exercise of power under
Sec. 5 of the Limitation Act and other similar statutes, the Courts can neither
become oblivious of the fact that the successful litigant has acquired certain rights
on the basis of the judgment under challenge and a lot of time is consumed at
various stages of litigation apart from the cost. What colour the expression
'sufficient cause' would get in the factual matrix of a given case would largely
depend on bona fide nature of the explanation. If the Court finds that there has
been no negligence on the part of the applicant and the cause shown for the delay
138
does not lack bona fides, then it may condone the delay. If, on the other hand, the
explanation given by the applicant is found to be concocted or he is thoroughly
negligent in prosecuting his cause, then it would be a legitimate exercise of
discretion not to condone the delay. In cases involving the State and its
agencies/instrumentalities, the Court can take note of the fact that sufficient time is
taken in the decision making process but no premium can be given for total
lethargy or utter negligence on the part of the officers of the State and/or its
agencies/instrumentalities and the applications filed by them for condonation of
delay cannot be allowed as a matter of course by accepting the plea that dismissal
of the matter on the ground of bar of limitation will cause injury to the public
interest.
The cause shown by the Corporation for delayed filing of the appeals was, to say
the least, wholly unsatisfactory and the reasons assigned by the learned Single
Judge for condoning more than 7 years delay cannot but be treated as poor apology
for the exercise of discretion by the Court under Sec. 5 of the Limitation Act.
[233] 2012 (3) GLR 2354 [Abatement Automatic – Setting Aside]
MAKVANA UDAJI JEHAJI AND ORS. V. MAKVANA PARTHIJI

PUNJAJI AND ORS.
PARA-6: As held by the Hon'ble Supreme Court in the case of Madan Naik
(AIR 1983 SC 676) no specific order for abatement of proceedings under one or
other provisions of Order 22 is envisaged and the abatement takes place on its own
force by passage of time. It is further observed by the Hon'ble Supreme Court in
the said decision that in fact, a specific order is necessary under Order 22, Rule 9
of the Code of Civil Procedure for setting aside the abatement. Under the
circumstances as no steps were taken within a period of limitation to bring the
heirs and legal representatives of original plaintiffs on record the suit stood
automatically dismissed as having been abated, and therefore, unless and until any
application is submitted by the heirs of sole plaintiff requesting to set aside the
abatement with a further prayer to condone the delay in submitting the application
and the Court is satisfied that a "sufficient cause" has been shown to condone the
delay, the Court may condone the delay in submitting the application for bringing
the heirs on record as well as the Court set aside the abatement by permitting the
heirs of the plaintiff to be brought on record. In the present case, as stated above,
neither any application for setting aside the abatement was submitted by the heirs
139
of the sole plaintiff nor any application to condone the delay has been submitted,
and therefore, the impugned order passed by the learned trial Court passed below
Exh. 165 straightway permitting the heirs of the original plaintiff to be brought on
record is without jurisdiction and/or such application itself which was submitted in
a suit which stood dismissed as having been abated automatically was not
maintainable.
[234] 2012 (3) GLR 2490 [Arbitration Award – Execution etc – CPC]
INDIAN OIL CORPORATION LTD. V. DURGA ROADLINES, HARISH

CHANDULAL THACKER
PARA-17: It is clear from Sec. 36 of the Arbitration Act, 1996 that the award
itself is treated as a decree, and therefore, there is no need to file the award for
pronouncement of the judgment or drawing of a decree as per the award. The
intention of the parties in the agreement in the year 1992 was only to file the award
in the concerned Court in the city of Bombay so that the judgment can be
pronounced and decree can be drawn accordingly. In case of non-applicability of
Arbitration Act, 1996, post-procedure of declaring award, filing of award,
pronouncement of judgment, drawing of a decree would arise under the Arbitration
Act, 1940. The question of transferring decree, for its execution, etc. would take
place under the provisions of Code of Civil Procedure if a Court pronounces the
decree as per the award under Sec. 17 of the Arbitration Act, 1940. In the facts of
present case, the entire procedure might have taken place if the Arbitration Act,
1996 would not have been made applicable. The parties to the agreement have
voluntarily agreed to give go-by to the Arbitration Act, 1940 if some new Acts or
Rules are enacted. The intention of the parties under Clause 36(h) to restrict
jurisdiction of the Court was only upto filing the award. Subsequent events like
execution, enforcement of decree, transferring the decree, etc. would have been
taken place under the provisions of the C.P.C.
[235] 2012 (3) GLR 2535 [Trade Mark – Registration – No objection]
DHARAMSI MORARJI CHEMICAL CO. LTD. V. TULSIDAS JESANG

AND SONS AND ANR.
PARA-13: Section 28 of the Act also provides proprietor of the registered mark,
exclusive right to use the mark with relation to the goods, for which, the trade mark
is registered and it will have to be considered with the provisions of Sec. 30(1)(d)
of the Act. Section 30(1)(d) of the Act refers to such trade marks, which are
140
identical or similar. A conjoin reading of Sec. 28(3) and Sec. 30(1)(d) would
suggest that the proprietor of the registered trade mark cannot file any infringement
action against the proprietor of identical or similar trade mark. This is the complete
answer to the submissions made by the learned Counsel, for appellant over and
above the contentions raised with regard to the non-renewal.
Therefore, on one hand, having failed to remain vigilant after such filing of
application for objection, it is not open for him to contend that the application for
opposition was alive and till it is decided, the registration in favour of the
respondent ought not to have been granted. Assuming that it was not required to be
granted, the fact remains that the Law provide in such a situation that when there
are two registered owners of identical or similar marks, it may not be objected by
other proprietor on similar mark though both can claim the proprietary right
against infringement qua others.
[236] 2012 (3) GLR 2565 [Inordinate Delay – Advocate’s Negligence]
SAMSUNISHA BEGAUM W/O. DR. NASARULLAHKHAN DHANIANI

AND ORS. V. VISHNUKUMAR AMBELAL PATEL
PARA-25: The trial Court committed a serious error in condoning delay on the
ground that the Advocate for the original plaintiff did not inform the original
plaintiff as well the respondents about the dismissal of the suit for non-prosecution.
Even if assume it is for a moment that the same is true by itself would be no
ground to condone such a long and inordinate delay as the litigant owes a duty to
be vigilant of his own rights and is expected to be equally vigilant about the
judicial proceedings pending in the Court initiated at his instance. The litigant,
therefore, should not be permitted to throw the entire blame on the head of the
Advocate and thereby disown him at any time and seek relief.
Over a period of time there is a growing tendency on the part of an Advocate to file
affidavit trying to explain the circumstances, under which, delay has occurred, be it
in preferring an appeal or filing an application for restoration of suit like in the
present case etc. This practice of an Advocate filing his affidavit in an application
filed under Order 9, Rule 9 of Civil Procedure Code is totally wrong and deserves
to be deprecated.
There is one more reason in commenting on the practice of Advocates filing

affidavit. There is a general impression in the mind of the litigants that if a lawyer
would file an affidavit saying that he was unable to attend the Court or because of
141
his negligence, the suit or appeal came to be dismissed, then the Court would very
willingly accept such explanation and condone the delay. This impression needs to
be eradicated. Advocates at time forget that in the zeal to help the client by filing
such affidavit they would land up in difficulty if a litigant would file proceedings
for compensation on the ground of deficiency in service.
[237] 2012 (3) GLR 2724 [Succession Certificate – Best Title – Joint Name]
RITINBHAI DILSUKHBHAI BAXI V. BIDHIN MANHARBHAI BAXI
PARA-18 & 21: It is very clear that the person who is granted succession
certificate does not derive any right, but it just enables such person to collect the
dues of the deceased on behalf of other interested persons in the property of the
deceased.
Section 373(3) of the Succession Act provides that when Judge finds the questions
of law and fact to be intricate and difficult for determination in a summary
proceeding, he may nevertheless grant a certificate to the applicant if he appears to
be the person having prima facie the best title thereto. There is much importance of
last phraseology provided in sub-sec. (3). It would mean that wherever there is
intricacy and difficulty for determining grant of succession certificate by way of
summary procedure, it becomes incumbent upon learned Judge to find out the
person having prima facie the best title for grant of succession certificate. The
Judge would thus be required to decide who is going to be the person having prima
facie the best title to get the succession certificate in his name. Therefore, it is not
possible to accept the contention of the learned Advocate for the appellant that the
succession certificate can be granted only to the applicant and not to the objector.
While deciding who could be the person having prima facie of the best title, the
Judge might find and come to the conclusion that there are more than one persons
having prima facie of the best title to receive grant of succession certificate,
therefore, the contention of the learned Advocate for the appellant that the
succession certificate cannot be granted in the joint names of more than one person
cannot be accepted. Sub-section (4) deals with the situation where there are more
than one applicants. In such situation, having regard to the extent of the interest of
the parties and the fitness in other respects of such persons, learned Judge is to find
out best, suitable persons amongst the applicants on the basis of the extent of
interest of such persons in the properties of the deceased and their fitness in other
respects.
The purpose and intent of Legislature for incorporating the phraseology "having
regard to the extent of interest and the fitness in other respects of the applicants"
142
would mean that in a given case if the Judge finds that having regard to the extent
of interest of the objector and other criteria of fitness such objector could be the
best person to have a succession certificate, he could also be made entitled to
receive succession certificate in absence of separate application because in the very
proceedings pending before the Judge, at the instance of the objector, the details,
particulars, facts as regards the extent of interest and fitness in other respects of the
parties would be scanned and the Judge would be deciding ultimately on the basis
of claims of the parties and evidence led by them. Therefore, even if no application
was made by the objector, his claim could be considered like applicant for the
purpose of grant of succession certificate in his favour. Such view would be, in
fact, in furtherance of the object to curtail multiplicity of proceedings.
[238] 2012 (3) GLR 2735 [Grazing/Gauchar Land – Powers]
CHAUDHARY LAXMANBHAI PARTHIBHAI AND ORS. V. STATE OF

GUJARAT AND ORS.
PARA-15, 16 & 17: In terms of sub-sec. (4) of Sec. 108 of the Gujarat
Panchayats Act, 1993, it is lawful for the State Government to resume any land
including the grazing land vested by the Government in Panchayat, if it is required
for any public purpose.
In Panchayat Varga Shramjivi Samudaik Sahakari Khedut Co-op. Society Ltd. v.

Haribhai Mevabhai, reported in AIR 1996 SC 2578, Supreme Court had an
occasion to deal with the issue, as to whether before resumption of a land by the
State Government under Sec. 108(4) of the Act was it obligatory to hear the
Panchayat or seek its consent. [In the case before the Supreme Court, Supreme
Court was dealing with Sec. 96(4) of the Gujarat Panchayats Act, 1961, which is
now Sec. 108(4) of the Gujarat Panchayats Act, 1993].
The Supreme Court answered the issue in negative observing as under :
"Economic empowerment of the poor, in particular the Scheduled Castes and

Scheduled Tribes, as is enjoined under Art. 46, is a constitutional objective as basic
human and fundamental right to enable the labourer, Scheduled Castes and Tribes
to raise their economic empowerment. When the appellant-Society had requested
for assignment of the waste land vested in the Gram Panchayat, the Gram
Panchayat undoubtedly passed a unanimous resolution requesting the Collector to
resume the land for assignment to the appellant-Society. Since, the Gram
Panchayat as a representative body passed the resolution, it would be obvious that
143
the elected members represent the interest of the Gram Panchayat for effecting the
constitutional goal. When the Gram Panchayat in turn passed the resolution for the
said purpose, there was no obligation to issue notice to the villagers. That apart, the
scheme of Sec. 96 is clear. The Legislature is cognizant of the fact that when
public road or street is sought to be discontinued or closed, public is likely to be
effected, Sarpanch or Chairman acting on behalf of Gram Panchayat etc. is
enjoined by the proviso to sub-sec. (2) of Sec. 96 to issue notice to them. It
specifically enjoins the Sarpanch or the Chairman, as the case may be, to cause a
notice to be issued in the prescribed manner, before passing a resolution so that the
affected users would have an opportunity to put in their objections for
consideration by the Gram Panchayat. But when the waste land or open site or
vacant land or grazing land vested in the State was sought to be resumed from the
Gram Panchayat by the Collector for another laudable public purpose, then the
silence of issuance of notice is eloquent. Requirement of hearing the villagers is
not insisted. The Legislature did not intend issuance of notice to villagers."
[239] 2012 (4) GLR (SC) 2761 [Custody of Minor – Welfare – Father]
SHALEEN KABRA V. SHIWANI KABRA
PARA- 14 to 18: Upon speaking to the children personally, it is found that they
are indeed very much attached to each other. This fact was also noted by the
learned Single Judge of the High Court in the impugned judgment, and is also
admitted by both the parties in their respective written submissions. Looking to the
overall peculiar circumstances of the case, it is considered view that the welfare of
both the children would be best served, if they remain together. It would not be just
and proper to separate both of them, who are admittedly very close to each other.
In considered view of the Court, children should be with the appellant-father. The
respondent-mother is not in a position to look after the educational need of the
elder son and the Court do not want to separate both the brothers. Looking to the
peculiar facts of the case, it would be in the interest of the children that they stay
with the appellant-father.
The appellant-father who is a member of Indian Administrative Service and is a

well-groomed person, with the help of his father, who was also a professor, will be
able to take very good care of the children.
The respondent-mother is also not kept away from the children, she shall have a
right to visit the children at least once in a month. The appellant-father shall make
144
arrangements for A.C. First Class railway ticket for the respondent-mother or shall
pay the railway fare to her so as to visit the children once a month at a week-end
and the appellant-father shall also make arrangements for stay of the respondent-
mother.
[240] 2012 (4) GLR 2765 [Driving Licence-Transport Vehicle-Qualification]
GUJARAT AUTO-RICKSHAW FEDERATION AND ANR. V. STATE OF

GUJARAT AND ORS.*
PARA-7, 8 & 9: Section 27(g) of the Act empowers the Central Government to
make rules prescribing the minimum educational qualifications for granting of
licences for transport vehicle, and in exercise of such powers, the Central
Government has framed rules known as Central Motor Vehicles Rules, 1989
(hereinafter referred to as 'the Rules'). Rule 8 of the said Rules provides for
minimum educational qualification, which should be acquired by the persons who
want to have a licence to drive transport vehicles. Minimum educational
qualification for obtaining a licence to drive transport vehicle before October 28,
1989 was 4thStandard pass. From October 28, 1989 till April 10, 2007, this Rule
was deleted from the Rules, and therefore, during the aforesaid period, this Rule
was not in existence. Subsequently, the Central Government has re-inserted Rule 8
in the Rules with effect from April 10, 2007 imposing a condition that for persons
who want to have driving licence for transport vehicles should have minimum
educational qualification of 8thStandard pass. However, the proviso to the said
Rule prescribes that the minimum educational qualification specified in the said
Rule will not be applicable in the case of renewal of a driving licence to drive
transport vehicle or addition of another class of transport vehicle to driving licence
already held before the commencement of the Motor Vehicles (Amendment)
Rules, 2007.
Having considered the aforesaid provisions, we are of the opinion that the
Legislature was quite conscious that the persons who are already in the profession
of driving transport vehicles having no such minimum educational qualification
should not be deprived of their right to earn their bread through the said profession.
We find substance in the contention of the respondents that the Auto-rickshaw

being a transport vehicle, the minimum educational qualification of 8thStandard
pass will help the driver to serve all kinds of people travelling in the auto-rickshaw
in a better way because by the time a person studies up to 8thStandard, he acquires
145
some knowledge of English language which will enable the driver of a transport
vehicle to understand English, communicate with the passengers of various States
and appreciate the traffic signs and symbols.
[241] 2012 (4) GLR 3004 [Dangerous Building – Liability]
AHMEDABAD MUNICIPAL CORPORATION V. DRAUPATI HARIBHAI

KOSHTI AND ORS.
PARA-10 & 13: These clearly refer to the fact that the wall was undisputedly in
dilapidated condition within the knowledge of the appellant-Corporation; the
premises in question belonging to the appellant-Corporation, which was leased out
to the respondent No. 7-original defendant No. 2. The respondent No. 7 had time
and again brought it to the notice of the appellant-Corporation for repairing it. In
fact, acknowledging and accepting the responsibility and liability for such reports,
tenders were invited by the appellant-Corporation also. Again as provided under
Sec. 264 of the B.P.M.C. Act, it is the obligation, which is cast upon the Municipal
Corporation as a civic body to pull down any structure or wall which is danger in
public interest. Therefore, if the obligation is cast upon him to pull down any
structure, which is in dilapidated condition and for which repeated requests have
been made by the lessee - the respondent No. 7 herein, there is a failure in
discharge of statutory duty.
Another facet of arguments, which has been much emphasised by learned Counsel,
for the appellant that the deceased was carrying on business as unauthorised
occupant on the road side with cabin besides the wall in question without any
permission at his own risk and cost is required to be considered. It was, therefore,
submitted that the Corporation cannot be saddled with liability.
It is well accepted that right of hawkers to carry on business to earn livelihood has
been accepted subject to any reasonable restriction, and therefore, when the
deceased was carrying on such work sitting on footpath besides the dilapidated
wall, it cannot be said to be a negligence or his conduct cannot be said to be a
conduct, which would not expected of a reasonable man. In any view of the matter,
if the business was carried on and statutory duty as discussed above is cast upon
the Corporation, over and above, the Common Law duty, which it has failed, it
cannot be argued that there was no negligence or duty owned to the deceased.
146
[242] 2012 (4) GLR 3012 [Review of Judgment u/s 151 CPC – Powers]
AHMEDABAD MAHILA NAGRIK SAHAKARI BANK LTD. (IN

LIQUIDATION) V. GUJARAT STATE CO-OPERATIVE TRIBUNAL AND
ORS.
PARA-20: The judgment cannot be corrected merely because it is erroneous in

law or on the ground that the different view could have been taken by the Tribunal
on the point of fact or law and the Tribunal while exercising powers of review
under Sec. 151 cannot sit in appeal over its own judgment and the same cannot be
corrected by exercising powers of review under Sec. 151 of the Act.
[243] 2012 (4) GLR 3062 [Order 7 Rule 10 CPC – Jurisdiction –Return]
GUJARAT AMBUJA CEMENTS LTD. (NOW) AMBUJA CEMENTS LTD.

V. SARDAR SAROVAR NARMADA NIGAM LTD.
PARA-42 & 48: It is not necessary for the Court which returns the plaint under
Order 7, Rule 10 of C.P.C. to specify or determine the Court which has the
jurisdiction. It is sufficient for it to hold that it does not have jurisdiction. However,
while deciding that it has no jurisdiction in the discussion as to which Court has
jurisdiction to try the disputes by default, learned Judge, City Civil Court fixed the
jurisdiction of Vadodara Court.
In Mathura Prasad Sarjoo Jaiswal, [AIR 1971 SC 2355] the Apex Court held that if
by an erroneous interpretation of the statute, the Court holds that it has no
jurisdiction, the question would not operate as res judicata.
[244] 2012 (4) GLR 3076 [Acquisition of Land – Right of Way]
GUJARAT INDUSTRIAL DEVELOPMENT CORPORATION V.

DAHYABHAI LAKHABHAI PATEL AND ANR.
PARA- 19 & 20: There cannot be any dispute about the fact that on acquisition of
particular land, it would vest in the State Government free from encumbrances.
However, if the fact of recognising existing right and continuation thereof after
acquisition was not there, the things would have been different. Agreement
between the parties could not be bypassed to find out what would be legal
consequences of vesting of land on acquisition of such land under the Land
Acquisition Act. Here in this case, defendant No. 1 for whose benefit the land was
147
acquired and who was to establish estate on such land was a party to the agreement
and had consciously agreed to recognise and continue right of way of the plaintiff
on permanent basis, therefore, such right would not end just on vesting of the land
with the State Government.
Therefore, even if the land had vested in the State Government by virtue of Sec.
16, and even if provisions of Sec. 16 of the Land Acquisition Act were not
properly construed by the learned appellate Judge, the plaintiff's right was not lost
by vesting of the land in the State Government under the provisions of the Land
Acquisition Act.
[245] 2012 (4) GLR 3097 [Alternative Accommodation – Date of Suit]
RAMESHCHANDRA JAMNADAS MESWANIYA V. JERAMDAS

JAMNADAS MESWANIYA
PARA-5: At the outset, it is required to be noted and it is not in dispute that at

the time when the suit was instituted for recovery of possession under Sec. 13(1)(l)
of the Bombay Rent Act, the tenant was in occupation and possession of other
premises, which was suitable alternative accommodation. However, during
pendency of the suit the tenant transferred and sold it to another person, and
therefore, it was contended on behalf of the tenant that as at the relevant time when
the judgment and decree was passed, he was not in possession of the alternative
accommodation, and therefore, he cannot be evicted and no decree for possession
can be passed under Sec. 13(1)(l) of the Bombay Rent Act. Unfortunately, the
learned trial Court accepted the same and dismissed the suit and the aforesaid is set
aside by the learned appellate Court by holding that once it is proved that at the
time of institution of the suit, the tenant had acquired alternative suitable
accommodation the cause for eviction under Sec. 13(1)(l) of the Bombay Rent Act
has existed. No illegality has been committed by the learned appellate Court in
allowing the appeal and passing the eviction decree.
[246] 2012 (4) GLR 3149 [Divorce - Desertion – Insistence to Leave Job]
PRERANA W/O. SANYAL SHAH D/O. KALYANBHAI SHAH V. DR.

SANYAL KANTILAL SHAH
PARA-13 & 14: The rise in the level of the education amongst the female
members of the society and also their involvement in the functioning of the society
and also the other activity cannot be ignored. If the husband and wife both are
148
working or in service prior to the marriage, the insistence by either side to leave
the service and to work as only housewife cannot be said as a reasonable
expectation by the husband just on a mere ground to take care of the family.
If the wife is already in service prior to the marriage and after marriage, she is
continuing in service, the husband cannot compel to leave the service and if such a
insistence made by the husband, it cannot be said as reasonable expectation of a
wife from a husband, but can rather be termed as unreasonable expectation by
husband from wife.
The evidence on record goes to show that the dispute between the husband and
wife arise on account of the delay in coming back after discharging duty in service
by the respondent-wife and the insistence by the husband to leave the job.
Even if it is considered, for the sake of examination, that the wife, under these
circumstances, was compelled to leave the house of the husband, it cannot be said
as abandonment of matrimonial home without reasonable cause. Once, it is not an
abandonment of the house without reasonable cause, it cannot be termed as
desertion by the wife of the husband.
[247] 2012 (4) GLR 3220 [Order 23 CPC – Withdrawal of Suit – Objection]
NARENDRABHAI THAKERSHIBHAI THAKKAR V. VISHALBHAI

YOGESHBHAI PARMAR AND ANR.
PARA-27: Although, as mentioned hereinabove, present petitioner could not

have precluded respondent No. 1 to withdraw the suit, as it is prerogative of the
plaintiff to decide whether it wants to continue the suit or not. The Court could not
have denied such withdrawal particularly when no permission was sought for filing
the suit afresh on the very same ground. The petitioner would have all the rights to
independently file the suit against respondent if such cause survives and others.
And therefore, merely because it had desired to transpose itself as plaintiff under
Order XXIII, Rule 2A without there being any application of such a nature on
record and without pointing out any such grounds in this petition, such version
cannot find acceptability and thus, his objection of withdrawal also cannot be
sustained. At the most he could be entitled to the cost as per the discretion of the
Court.
149
[248] 2012 (4) GLR 3229 [Divorce – Cruelty – Single act of Violence]
SUBHAS PARSHURAM SETH V. MADHU MANCHERSINGH

BHANDARI
PARA-43: Even assuming for the moment that at times the respondent in the heat
of exasperation may also have retaliated or raised her hands by itself is no ground
to grant relief of divorce. If a lady finds herself in a helpless situation and is
absolutely exhausted on account of everyday trouble in the house, then at times
being a woman, may retaliate, but that by itself will not constitute an act of cruelty
so as to entitle the husband for a relief of divorce. The expression "cruelty" as
envisaged under Sec. 13 of the Act clearly admits in its ambit and scope such acts
which may even cause mental agony to aggrieved party. Cruelty may result where
the complaining spouse establishes being treated with cruelty, whether physical,
mental, social or otherwise but the acts complained of must be more serious than
ordinary wear and tear of marriage falling in the category of conscious acts cruel in
nature as that is the underlying requirement of the provision. It is the cumulative
effect of all the acts and conduct which has to be taken into consideration for
finding out, whether the behaviour of the erring spouse falls within the ambit of
cruelty as envisaged under Sec. 13(1)(ia) of the Act. What may amount to cruelty
in one case may not amount to cruelty in another case. The Court has to consider
the social status, the environment, the education, the mental and physical
conditions and the susceptibilities of the innocent spouse as also the custom and
the manners of the parties. Cruelty may consist of a single act or conduct of the
respondent or it may consist of a series of acts, none of which by itself can be said
to constitute cruelty but in their totality they may amount to cruelty. The mere fact
that the erring spouse is moody, whimsical, irritable, inconsiderate, etc., will not be
sufficient to amount to cruelty. Similarly, merely neglect or want of affection,
expression of hatred will not be a conduct constituting cruelty. The idiosyncrasies
of the wife sometime may not amount to cruelty, even though, they make the
husband unhappy. There may be occasions where the conduct of wife may lead to
unpleasantness but such unpleasantness alone will not amount to cruelty and this
may reasonably fall within the ambit of ordinary wear and tear of matrimonial life
which is not sufficient for establishing cruelty as envisaged under the Act.
However, in matrimonial life, acts and conducts amounting to mental cruelty
abound and have sometimes more devastating effect than the acts of physical
violence.
150
[249] 2012 (4) GLR 3372 [Acquisition of Land – Public Purpose]
AMARSINH SHANKERBHAI PATEL AND ORS. V. STATE OF GUJARAT

AND ORS.
PARA-5: If the procedure in law is followed and the notifications acquiring the
lands are issued by the State Government have been satisfied on the need as well as
on the public purpose of acquisition, the action could not be challenged on the
specious grounds as urged on behalf of the petitioners. Sub-section (3) of Sec. 6
attaches finality to the acquisition proceedings by providing that the Notification
under Sec. 6 is a conclusive evidence regarding the existence of public purpose. It
is conclusive evidence for the need, the subjective satisfaction of the Government
as well as in respect of public purpose for which the acquisition is made.
[250] 2012 (4) GLR 3444 [O. 23 R. 1(3) CPC – Withdrawal – Formal Defect]
M/S. PRANJIVANDAS VIRJIBHAI AND ORS. V. PRAVINKUMAR

MOHANLAL MODI
PARA-10: Under Order 23, Rule 1(3), whether the Court is satisfied (a) that a
suit must fail by reason of some formal defect, or (b) that there are sufficient
grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a
suit or part of a claim. Since, non-joinder of co-owners as parties in the suit is not a
formal defect, the Court should not grant the permission to withdraw the suit with a
liberty to file a fresh suit on the same cause of action. It has come on record that
the present petitioners have raised the specific objection in their written statement.
Despite this fact, no action was taken by the respondent. The suit was proceeded
and evidence was led, arguments were also over and when judgment was about to
be declared the respondent has moved present application which is grossly delayed
and at belated stage the Court should not have entertained such application. The
impugned order is, therefore, contrary to the provisions contained in Order 23,
Rule 1(3)(a) of the Civil Procedure Code and also contrary to the binding decision
of this Court. The impugned judgment and order is, therefore, quashed and set
aside. The present Civil Revision Application is accordingly allowed without any
order as to costs.
151
[251] 2012 (4) GLR 3462 [Auction – Highest Bidder – Rights]
SUSHEN MEDICAMENTOS PVT. LTD. V. ASHOK ENTERPRISE,

PROPRIETORSHIP FIRM OF ASHOK P. DESAI AND ORS.
PARA-7 & 8: No legal right can be said to have been accrued in favour of
respondent No. 1 to claim the secured asset only on the ground that they are the
highest bidder and that their bid should have been accepted by the Bank. It is
evident from the record that respondent No. 1, after participating in the auction
dated 14-6-2010, was specifically informed that though he has been declared as the
highest bidder, still it would be subject to confirmation of the sale by the higher
authorities of the respondent-Bank.
Further, held that at the most respondent No. 1 being the highest bidder, may be
entitled to refund of the amount offered and deposited by him, but he cannot claim
the right to get the property, if there has been a compromise between the borrower
and the secured creditor even after the auction sale. This position of law seems to
be very clear.
[252] 2012 (4) GLR 3546 [Acquisition – Notification – Scope to Challenge]
PARMAR DULESINH AMARSINH AND ORS. V. STATE OF GUJARAT

AND ORS.
PARA-8, 14 & 16: Any person aggrieved by the Notification could

challenge it. The petitioners are persons aggrieved as their land is being taken
away in the acquisition proceedings. The petitioners are persons interested as their
land have been notified under Sec. 4 of the Act, therefore, they have locus standi to
challenge the Notification issued under Sec. 4 by the State Government.
In the facts of the instant case, any foundation has not been laid in the writ petition
for challenging the Notification under Sec. 4(1) of the Act on the ground that it is
ambiguous or indefinite or vague nor it has been pointed out that the acquisition is
contrary to public purpose and suffers from incurable irregularity or defect.
The newly constructed road is for the betterment of the area. The change of site of
Toll Plaza and the site on which Toll Plaza has to be designed and constructed is
decided by the experts in building the road. Its direction or alignment cannot be
changed by the Court.
152
[253] 2011 (1) GLR (SC) 2 [Sec 34 CPC – Interest – Suit in Abeyance]
SECRETARY/GENERAL MANAGER, CHENNAI CENTRAL CO-

OPERATIVE BANK LTD. AND ANR. V. S. KAMALAVENI SUNDARAM
PARA-: Suit remained in abeyance for a period of 5 years on account of

default of plaintiff. Therefore the plaintiff not entitled to earn interest during that
period of five years.
[254] 2011 (1) GLR 18 [Secured Debt – Recovery - Priority]
KOTAK MAHINDRA BANK LTD., MUMBAI V. DISTRICT MAGISTRATE,

BHARUCH AND ANR.
PARA-23 & 30: If crown debt is unsecured debt, it can compete with other
unsecured debt and has priority and precedence of the same, but no such priority
can be claimed on secured debt.
In the present case, there is nothing on record to suggest that under the Central
Excise Act or the Rules framed thereunder priority of charge over the secured debt
has been created. No such law has been brought on record to suggest that the
Central Government has any first charge or priority over the secured or unsecured
debt. The Excise & Customs Department of the Central Government cannot claim
any priority over the secured debt of a secured creditor-Kotak Mahindra Bank as
created under the Securitization Act.
[255] 2011 (1) GLR 159 [Agriculturist – Definition – Corporate Body]
STATE OF GUJARAT AND ORS. V. PRATHMESH FARMS PVT. LTD. AND ANR.
PARA-10 & 11: The clear restrictions contained in Sec. 63 of the Tenancy Act
prohibits, subject to the exceptions, transfer of agricultural land to non-
agriculturists (for agricultural purpose), which has to exclude legal persons or
bodies incorporate, who, in the nature of things, cannot "personally cultivate" land
as per definition of that phrase in the Act. The phrase "if actual income of such
person from other sources exceeds 5,000 rupees" attaching to the transferee entity
cannot be applied to make a "person" agriculturist who cannot be an agriculturist.
The definition of "person" in the Bombay General Clauses Act, 1904 will
obviously be repugnant in the context of provisions of Sec. 63 of the Act, and
therefore, it could not be read as incorporated in the definition of "person" in the
Act.
153
The restriction on transfer of agricultural land to non-agriculturist, under the pain
of invalidation of such transfer, as envisaged in the provisions of Sec. 63 of the
Act, is different from and totally unrelated to the legal capacity of a body corporate
to hold agricultural land. Even if it were held in a particular context that a juristic
person could legally "hold" or "own" agricultural land, it cannot be construed as a
licence to transfer the land to such artificial person in spite of its incapacity to
personally cultivate the land as required under the Act.
[256] 2011 (1) GLR 270 [Order 7 Rule 11 CPC – Cause of Action]
CHANDRAKANT KANTILAL JHAVERI V. MADHURIBEN GAUTAMBHAI AND

ANR.
PARA-6, 7 &8: If it is found that the plaint does not disclose the cause of
action, the Court has no option but to reject the plaint. But for deciding such
aspects of cause of action, the Court should take into consideration the averments
made in the plaint for the purpose of deciding the question as to whether the
averment made in the plaint discloses the cause of action or not and while doing
so, it cannot be said that the Court is precluded from applying the statutory
provisions or case-law to the averments made in the plaint. If the assertion made in
the plaint is contrary to the statutory law or case-law, it cannot be considered as the
valid cause of action.
The execution of the Power of Attorney by the plaintiff in favour of defendant No.
1 has been admitted. The execution of the sale-deed by defendant No. 1 in the
capacity as Power of Attorney of plaintiff is also admitted. The basis of the suit is
that there is misuse of the Power of Attorney and the transactions are entered into
between the defendant No. 1 in favour of defendant No. 2 in collusion and are
fraudulent. No material statement of facts are stated in the plaint as to how such
transactions are entered into in collusion and are fraudulent transactions. The
pertinent aspect is that the Power of Attorney which is referred to by the plaintiff
does expressly provide for power to sell the property. Under these circumstances,
unless the Power of Attorney is cancelled, the authority under the Power of
Attorney would continue.
If there is no details whatsoever for any alleged fraud or collusion by the

defendants, it can be said that the provisions of Order 7, Rule 11 of the Civil
Procedure Code would apply.
154
[257] 2011 (1) GLR (SC) 601 [Bonafide Purchaser for Value without Notice]
HAR NARAIN (DEAD) BY L.RS. V. MAM CHAND (DEAD) BY L.RS. AND ORS.
PARA-14: So far as the issue of notice of first sale to respondent Nos. 2 to 6 is

concerned, it has to be examined bearing in mind that the sale-deed in favour of the
respondent Nos. 2 to 6 clearly disclosed that the suit land had been mortgaged to
the appellant and it was in his possession since 1970. In R. K. Mohammed
Ubaidullah v. Hajee C. Abdul Wahab (Dead) by L.Rs., AIR 2001 SC 1658, this
Court considered a similar case wherein the question had arisen as to whether the
vendees of subsequent sale were bona fide purchasers of the suit property in good
faith for value without notice of original contract and whether they were not
required to make any inquiry as to the equitable or further interest of the other
party at the time of execution of sale in their favour. In view of the fact that they
had been aware that the land was in possession of first purchaser, the Court took
note of the definition of "notice" as provided in Sec. 3 of the Act, 1882, and
particularly Explanation II thereof for deciding the case. The said Explanation
reads :
"Any person acquiring any immovable property or any share or interest in any
such property shall be deemed to have notice of title, if any, of any person who is
for the time being in actual possession thereof."
This Court came to the conclusion that in view of Sec. 19(b) of the Act, 1963 and
definition of "notice" contained under Sec. 3 of the Act, 1882, it could not be held
that the subsequent purchasers were bona fide purchasers in good faith for value
without notice of the original contract and they were required to make inquiry as to
the nature of the possession or title or further interest, if any, of the other party
over the suit property at the time when they entered into sale transaction,
notwithstanding, that they were already aware that the other party was in
possession of the suit property as the tenant. Thus, what is material is the inquiry at
the time when subsequent sale transaction was entered into.
[258] 2011 (1) GLR 610 [Revisional Powers – Limitation]
VITTHALBHAI M. PATEL AND ORS. V. DEPUTY COLLECTOR, KAIRA AND ANR.
PARA-6: After a period of 12 years from the entry mutated in the revenue
record based on the alleged transaction, the action is initiated. Under these
circumstances, as such the action could be said as after an unreasonable period and
155
the delay would operate against as a bar to the authority in initiating action for
annulment or setting aside the alleged sale on the alleged ground of breach of
provisions of the Act.
[259] 2011 (1) GLR 637 [Order 7 & Rule 11 CPC – Scope]
BHUPENDRABHAI HASMUKHBHAI DALWADI AND ORS. V. SAVITRIBEN

GANUMAL KRISHNANI (DECD.) AND ORS.
PARA-9 & 10: Provision of Order 7, Rule 11(a) of the Code confers power on
the lower Court to reject the plaint, if it does not disclose cause of action. At pre-
trial stage the Court has to look into the averments made in the plaint only and at
pre-trial stage if the lower Court tried to appreciate the evidence without recording
evidence, then it would cause great prejudice to the plaintiffs. The lower Court has
rejected the plaint on the basis that the evidence is not produced. Therefore, it can
be said that the lower Court has travelled beyond the scope of inquiry in the matter
of application under Order 7, Rule 11(a) of the Code.
It is settled principle of law that, while deciding application under Order 7, Rule
11(a) of the Code, the averments made in the plaint in its entirety are to be
considered by taking those averments to be correct and the plaint cannot be
rejected on the basis of allegations made by the defendant in his written statement
or in an application for rejection of plaint. The Court has to read the entire plaint as
a whole to find out whether it discloses cause of action and if it does, then the
plaint cannot be rejected by the Court exercising the powers under Order 7, Rule
11 of the Code.
[260] 2011 (1) GLR 658 [LAR – Valuation – Adjacent Land]
NISARG HOTRICULTURE PVT. LTD. THROUGH DIRECTOR V. DEPUTY

COLLECTOR, STAMP DUTY (VALUATION), GANDHINAGAR AND ANR.
PARA-5: Rule 8, clause (a), sub-rule (v) of the Bombay Stamp (Determination
of Market Value of Property) Rules, 1984, provides for taking into consideration
the 'value of adjacent area or land in vicinity'. It may sound philosophical to say
that, 'all these boundaries and demarcations are made by men', but the fact of land
being adjacent to another land, cannot be changed, and therefore, valuation of the
adjacent land, even if it is falling in different revenue areas or different Talukas or
Districts, it has to be taken into consideration by the authority while assessing the
value of the land in question.
156
[261] 2011 (1) GLR 687 [Contempt of Court – Powers of High Court]
DESAI NAYANKUMAR LALBHAI VS. U. P. S. C. THROUGH

SECRETARY & ORS.]
PARA-3: If an order passed by the High Court under Art. 226 of the
Constitution of India is not complied with, and thereby, not executed, apart from
Sec. 11 of the Contempt of Courts Act, 1971, the High Courts, as the Court of
record, have all the powers of such a Court including the power to punish for
contempt of itself under Art. 215 of the Constitution of India.
In view of the fact that Rules 189 and 190 are in addition to Art. 215 of the
Constitution of India and they do not curtail the right of the Court to pass order
under Art. 215 of the Constitution of India, Rules 189 and 190 of the High Court
Rules cannot be held to be ultra vires of Art. 215 of the Constitution of India.
[262] 2011 (1) GLR 742 [Earthquake – Quality of Construction]
SHRIRAM EDUCATION TRUST, TRUSTEES OF TRUST AND ORS. V. MITABEN

ANILBHAI PATEL AND ORS.
PARA-20, 22 & 23: There is no doubt about the fact that an earthquake is a
natural calamity or an act of God which is beyond the control of any human being.
At the same time, it cannot be lost sight of that the appellants were duty-bound to
construct the school building in a proper manner, taking care that the foundations
were structurally strong, the nature of soil was conducive to the construction and
the construction was carried out in the manner it ought to be, using good quality
materials. In short, the duty of taking reasonable care in construction of the school
building is vested upon the appellants and is distinct and separate from the natural
calamity, in the form of an earthquake, that took place. If proper and reasonable
care that ought to have been taken, was not taken by the appellants, they cannot
escape liability behind the cloak of Vis major. The Court need not be restricted by
the exceptions to the Rule in Rylands v. Fletcher, 1868 (3) HL 330 and must
examine the case in light of the principles laid down in M. C. Mehta v. Union of
India, AIR 1987 SC 1086, evolving new principles of liability to deal an
unprecedented situation caused by the earthquake.
It was, therefore, the bounden duty of the appellants to ensure that proper and
reasonable care is taken in construction of the building, and it is strong, safe and
157
secure. The strength, safety and security of the building would obviously depend
on the manner and quality of its construction.
Even as per the relevant provisions of law under the Bombay Provincial Municipal
Corporations Act read with the bye-laws, a duty is cast upon the person
constructing a building to have the said construction supervised and submit
progress reports, from time to time, and further to intimate the Corporation
regarding the completion of the said building. The Officers of the concerned Local
Authority are bound to verify such progress reports and completion report, as may
be submitted. It has to be ascertained by the said Authority whether requisite steps
have been taken by the builders to ensure that the construction is of the desired
strength, and whether it has been put up in consonance with the approved plan of
the Structural Engineer. These aspects have to be examined and verified, and only
thereafter, the Building Use permission be granted by the concerned authority. The
requirement of law is that the building cannot be occupied without such Building
Use permission. Hence, the requirement of taking reasonable care would also
include strict compliance with the provisions of law applicable, such as the
B.P.M.C. Act, Rules or Building bye-laws framed for making construction.
[263] 2011 (1) GLR 782 [Foundation Laying Ceremony – Legality]
RAJESH HIMMATLAL SOLANKI V. UNION OF INDIA THROUGH SECRETARY,

DEPTT. OF HOME, DELHI AND ORS.
PARA-14 to 19: The word 'dharma' is not in contradistinction to the secularism

if it is understood in its real sense, that is, "Sarve Sukhino Bhavantu". Merely
because in certain religious practices, there is no identification of certain offering
to the supreme power or Almighty would not result into adharma or anti-dharma.
The foundation, if considered in its materialistic sense, it does hold the importance
since the building is to stand on such foundation. If such important event is
celebrated by the State or the High Court, by no stretch of imagination it can be
said that such action of celebration is non-secular in any manner.
At the time of excavation of such earth or at the time when a building is to be

constructed by adding physical burden, offering of the prayer to the earth to pardon
or to graciously bear the burden or the damage, if any, to make the construction
successful, which is to be used for betterment of the institution of the High Court,
such an action can be termed as for the betterment of all persons connected thereby
directly or indirectly, irrespective of their caste or religion or community.
158
Therefore, such offering of the prayer to the earth at the time of foundation laying
ceremony cannot be termed as non-secular action if "manav dharma" is to be
understood in its real sense in furtherance to the principles of secularism to be
observed by our nation.
If the ultimate aim for successful construction of the building is holy and with the
larger interest of those persons who are to be directly or indirectly benefited by
successful construction of the building, irrespective of their caste or community or
religion, it would fall within the principles of "Vasudhaiva Kutumbakam", welfare
to all and hurt to none. Such in no manner can be termed as non-secular activity.
[264] 2011 (1) GLR (SC) 819 [Acceptance Under Protest – Further Claim]
RAJESH HIMMATLAL SOLANKI V. UNION OF INDIA THROUGH SECRETARY,

DEPTT. OF HOME, DELHI AND ORS.
PARA-5: When the final bill was submitted, the plaintiff had accepted the
amount as mentioned in the final bill, but "under protest". It is also the specific
claim of the plaintiff that on the direction of the department, it had performed
additional work, and hence, entitled for additional amount/damages as per the
terms of agreement. Merely because the plaintiff had accepted the final bill, it
cannot be deprived of its right to claim damages if it had incurred additional
amount and able to prove the same by acceptable material.
[265] 2011(1) GLR 870 [Joints tenant – Partition – Tenants-in-common]
CHAUHAN DAJIJI BALDEVJI V. PITHUJI GALABJI CHAUHAN
PARA-8: Partition once made brings about severance of 'joint' status and brings
about division of rights and division of shares - Co-sharers, thereafter, cease to be
joint tenants and they hold property as tenants-in-common. Partition can be
challenged/reopened only on ground of inequality, unfairness, fraud etc., by a suit
brought within limitation period.
[266] 2011 (2) GLR 966 [Trust – Permission Necessary for Transfer]
KIRANKUMAR PREMJIBHAI MAIVAIYA V. RAJESH KESHAVLAL

VISAPARMAR AND ORS.
PARA-8: The petitioner has got an agreement to sell executed in his favour
from the Board of Trustees without any permission having been obtained. It is
159
settled law that trustees hold the property of the trust not as their own and they
cannot deal with the property without obtaining necessary permission for the same.
In the present case, it is an admitted fact that earlier 'Board of Trustees' did not
obtain any permission before executing agreement to sell, and therefore, that
agreement to sell was non-est in eye of law, and therefore, there is no question of
any fraud having been committed on the petitioner by anybody. If at all anybody is
to be blamed, it is the petitioner who wanted to grab the property of the trust by
taking the trustees in confidence.
[267] 2011 (2) GLR 1003 [MACP – Claim by Borrower of Vehicle]
NATIONAL INSURANCE CO. LTD. V. HEIRS AND L.RS. OF

HITESHBHAI SURESHBHAI PATEL AND ORS.
PARA-10: On interpretation of the provisions of Sec. 163A of the Motor

Vehicles Act, the Hon'ble Supreme Court has specifically observed and held that
when in a case of death of a borrower of the motorcycle, who had borrowed the
motorcycle from its owner and in case the said motorcycle dashed against the
bullock-cart proceeding ahead resulting into the death of the motorcyclist, the legal
representatives of the person driving the vehicle, after borrowing it from the owner
meets with an accident without involving any other vehicle, would not be entitled
to claim compensation under Sec. 163A of the Motor Vehicles Act. In the said
decision, the Hon'ble Supreme Court has specifically observed and held that in
such a case the borrower steps into the shoes of the owner and owner cannot
himself be a recipient of compensation as liability to pay the same is on him.
[268] 2011 (2) GLR (SC) 1065 [WAKF Property - Jurisdiction - Civil Court]
RAMESH GOBINDRAM (DEAD) THROUGH L.RS. V. SUGRA

HUMAYUN MIRZA WAKF
PARA-25 & 35: Whenever a question arises whether "any dispute, question or
other matter" relating to "any wakf or wakf property or other matter" falls within
the jurisdiction of a Civil Court the answer would depend upon whether any such
dispute, question or other matter is required under the Act to be determined by the
Tribunal constituted under the Act. If the answer be in the affirmative, the
jurisdiction of Civil Court would be excluded qua such a question, for in that case
the Tribunal alone can entertain and determine any such question. The bar of
jurisdiction contained in Sec. 85 is in that sense much wider than that contained in
Sec. 6(5) read with Sec. 7 of the Wakf Act. While the latter bars the jurisdiction of
160
the Civil Court only in relation of questions specified in Secs. 6(1) and 7(1), the
bar of jurisdiction contained in Sec. 85 would exclude the jurisdiction of the Civil
Courts not only in relation to matters that specifically fall in Secs. 6 and 7, but also
other matters required to be determined by a Tribunal under the Act.
The Act does not provide for any proceedings before the Tribunal for
determination of a dispute concerning the eviction of a tenant in occupation of a
wakf property or the rights and obligations of the lessor and the lessees of such
property. A suit seeking eviction of the tenants from what is admittedly wakf
property, could therefore, be filed only before the Civil Court and not before the
Tribunal.
[269] 2011 (2) GLR 1133 [Auction – Highest Bid – Rights]
ELECTROTHERM INDIA LTD. V. ASSET RECONSTRUCTION

COMPANY (INDIA) LTD.
PARA-14 & 15: Writ jurisdiction is discretionary in nature and must be

exercised in furtherance of justice. In the present case, we find that respondent-
A.R.C.I.L. is not satisfied with the amount of Rs. 100.10 crores as offered by the
respondent-Company. The respondent requested the petitioner to increase the bid
amount, but the petitioner has not thought it fit to increase the amount of bid. In
such a situation, the respondent cannot be directed to accept the amount as offered
by the petitioner and confirm the sale in favour of the petitioner. If the respondent
is able to fetch more price having regard to the dues recoverable, then it is always
open to call for the fresh bids and make all possible endeavours to see that the
maximum price is fetched. We have noticed that the petitioner-Company has gone
to the extent of levelling allegations of mala fides. We do not understand how the
action of the respondent can be termed as mala fide. By merely pleading mala
fides, it cannot be said that the action of the respondent is tainted with malice. No
cogent evidence worth the name has been led by the petitioner except mere
averments in the petition to even prima facie suggest that the action of the
respondent is mala fide in not accepting the bid amount and confirming the sale in
favour of the petitioner.
In view of what we have stated above, we answer the first question holding that the
petitioner being the highest bidder in an auction does not acquire any right to get
the property. At the most, he can claim refund of the deposit made by it.
161
[270] 2011 (2) GLR (FB) 1197 [GNFC is not a ‘State’]
RAMBHAI ISHWARBHAI PATEL AND ANR. V. GUJARAT STATE

FERTILIZERS AND CHEMICALS LTD. AND ORS.
PARA-22: G.N.F.C. has been constituted under the Companies Act and not by
any State Act. The State Government has no role in the matter of functioning of the
Company. It does not exercise any financial, functional or administrative control
over the Company. Acquisition of shares and other matters pertaining to
management and affairs of the Company are governed under the Companies Act.
The business and other activities of the Company are purely commercial in nature.
It does not perform any public function nor any public duty. The Company do not
carry on any business for the benefit of public. Thus, as the cumulative effect
together shows that Gujarat Narmada Valley Fertilizers Company Ltd. is not an
instrumentality of the 'State'.
[271] 2011 (2) GLR (SC) 1248 [Family Courts/Tribunals – Not Judges]
S. D. JOSHI AND ORS. V. HIGH COURT OF JUDICATURE AT BOMBAY

AND ORS.
PARA-43 & 44: With the development of law, numerous Tribunals and quasi-
judicial bodies have been created to determine the disputes between the parties.
Functions of such Tribunals, are primarily, quasi-judicial and in the realm of civil
jurisprudence alone. In other words, such Tribunals or bodies exercise a very
limited jurisdiction. It will not be appropriate to treat them as an inextricable part
of State Judicial Services or call them Courts as understood in our Constitution,
merely because they give final decision, because they hear witnesses, because two
or more contesting parties appear before them, because they give decisions which
affect the right of the parties and an appeal might be provided against their
decision. Even the Government, in its hierarchy, is now vested with the powers of
limited adjudication, but that does not mean that all such persons shall be deemed
to be the members of the Judicial Services and would hold judicial office under the
Constitution.
There cannot be any hesitation in holding that the Principal and other Judges of the
Family Court may be 'Judges' presiding over such Courts in its 'generic sense', but
stricto sensu are neither Members/integral part of the 'Judicial Services' of the State
of Maharashtra as defined under Art. 236 nor do they hold a 'judicial office' as
contemplated under Art. 217 of the Constitution of India. Thus, they do not have
any jus legitimum to be considered for elevation to the High Court.
162
[272] 2011 (2) GLR 1294 [Transfer after Construction – Stamp Duty]
KALYANNAGAR CO-OPERATIVE HOUSING SOCIETY LTD. V. SUB-

REGISTRAR AND ORS.
PARA-8: One of the conditions stipulated for exemption of land from the
U.L.C. Act for construction of dwelling units for weaker sections of society, was
that construction was to be carried out by original landlord and land could not be
transferred till the construction was completed. Original landlord got the
construction carried out through the petitioner-society and thereafter, the landlord
executed sale-deed in favour of petitioner-society and paid the stamp duty only on
the cost of the land as if the land was transferred without the superstructure. Since,
the land was sold with the dwelling units thereon, the Stamp Authorities were
justified to impose additional duty and penalty.
[273] 2011 (2) GLR (SC) 1304 [Panchayat Land – Encroachment]
JAGPAL SINGH AND ORS. V. STATE OF PUNJAB AND ORS.
PARA-13 & 22: The appellants were trespassers who illegally encroached on to
the Gram Panchayat land by using muscle power/money power and in collusion
with the officials and even with the Gram Panchayat. The Court is of firm opinion
that such kind of blatant illegalities must not be condoned. Even if the appellants
have built houses on the land in question they must be ordered to remove their
constructions, and possession of the land in question must be handed back to the
Gram Panchayat. Regularizing such illegalities must not be permitted because it is
Gram Sabha land which must be kept for the common use of villagers of the
village.
Directions given to all the State Governments in the country that they should
prepare schemes for eviction of illegal/unauthorized occupants of Gram
Sabha/Gram Panchayat/Poramboke/Shamlat land and these must be restored to the
Gram Sabha/Gram Panchayat for the common use of villagers of the village. For
this purpose, the Chief Secretaries of all State Governments/Union Territories in
India are directed to do the needful, taking the help of other Senior Officers of the
Governments. The said scheme should provide for the speedy eviction of such
illegal occupant, after giving him a show-cause notice and a brief hearing. Long
duration of such illegal occupation or huge expenditure in making constructions
thereon or political connections must not be treated as a justification for condoning
this illegal act or for regularizing the illegal possession.
163
[274] 2011 (2) GLR 1324 [MACP – CPC Provisions – Dismissal]
BHARATBHAI NARSINGHBHAI CHAUDHARY AND ORS. V. MALEK

RAFIK MALEK HIMANTBHAI MALEK AND ORS.
PARA-5 & 6: A District Judge, who functions as a Claims Tribunal, is not

only within the administrative control of the High Court, but also subordinate to it
under Sec. 115 of the Code. A Claims Tribunal is a 'Court' although with limited
jurisdiction and not a mere 'Tribunal'. The powers of appeal given to the High
Court under the Act against the decision of the Tribunal constituted under the Act,
will definitely lead to conclusion that the said Tribunal is subordinate to the High
Court and the nomenclature given to the Motor Vehicles Tribunal that, it is a
Tribunal, will not take it out of the purview of the Civil Court.
Under Rule 3, therefore, even if, neither party appears when the suit is called for
hearing, it is not compulsory for the Court to dismiss the suit. The Court may
adjourn the suit. In the event of dismissal of suit, it is open to the plaintiff to apply
for restoration of the suit and the Court may set aside the order of dismissal and
restore the suit. An order dismissing a suit for default of appearance of parties is
not a "decree" under Sec. 2(2), and hence, is not appealable. An order of dismissal
of a suit based on erroneous application of Rule 3 can be said to be a "case
decided" within the meaning of Sec. 115 of the Code. Hence, where the Court has
acted with illegality or with material irregularity in the exercise of jurisdiction, a
revision would lie against such an order.
The provisions of the Code are applicable to govern the procedure in a Motor
Accident Claim case as provided under Rule 229 of the Gujarat Motor Vehicles
Rules, 1989. There is no separate procedural law, made applicable to conduct the
Motor Accident Claim petitions. Therefore, application for restoration, made under
Order 9, Rule 4, in the instant case, is absolute, legal and sustainable, and
therefore, the revision, arisen out of such order, passed below such application, is
also undoubtedly maintainable.
On perusal of the application and other relevant papers, it appears that the
restoration application was filed by the applicants on 22nd November, 2001 and
another restoration application is filed on 28th January, 2004, under Order 9, Rule
4 of the Code, wherein, the applicants have described the reasons and tried to
justify their case for restoration of the application. On perusal of the papers, it
appears that the applicants are poor persons and coming from the lower strata of
the society as they belong to Tribal community. Therefore, instead of entering into
164
the technicalities and with a view to do the substantial justice, the Court below was
required to adopt lenient view.
The Act and the Rules framed thereunder also do not empower the Claims Tribunal
to dispose an application merely for default of the applicant without arriving at
findings on merits of the case, after the stage of framing issues. In the instant case,
issues were framed, and thereafter, the learned Tribunal was required to decide the
case on merits with a view to provide substantial justice instead of entering into the
technicalities.
[275] 2011 (2) GLR 1350 [Probate – Different States – Procedure]
NAGRAJ CHHAJER S/O. BUDHMALJI CHHAJER, IN RE. V. IN RE.
PARA-6: It appears that the trial Court read the provisions contained in Sec. 273
of the Act in isolation and failed to consider said provisions along with the
provisions contained in sub-sec. (3) of Sec. 283 of the Act. This provision
prescribes the procedure as to how a probate application to be proceeded further in
case of property, for which the probate is claimed, is situated within the territorial
jurisdiction of another District Judge. It provides that where any portion of the
assets has been stated by the petitioner to be situated within the jurisdiction of a
District Judge in another State, the District Judge issuing the same shall cause a
copy of the citation (a public notice) to be sent to such other District Judge, who
shall publish the same in the same manner as if it were a citation issued by himself,
and shall certify such publication to the District Judge who issued the citation.
The Hon'ble Apex Court, relying upon the provisions contained in Sec. 283(3) of
the Act, held that the application for grant of probate is a proceeding in rem. In this
view of the matter, instead of dismissing the applications by the concerned City
Civil Court by holding that the provisions contained in Sec. 283(3) of the Act has
not been complied with, the concerned Court should have followed those
provisions. Under such circumstances, both these applications deserve re-
consideration by the concerned Court after the concerned Court follows the
procedure laid down under sub-sec. (3) of Sec. 283 of the Act.
Further the right to apply for probate is a continuous right which can be exercised
any time after death of deceased as long as right survives. Right to apply would
accrue when it becomes necessary to apply. Application made after 26-27 years
from death of deceased cannot be said to be time-barred.
165
[276] 2011 (2) GLR 1357 [Revision u/s 115 CPC – Article 227]
GUSTADJI DHANJISHA BUHARIWALA AND ANR. V. NEVIL

BAMANSHA BUHARIWALA AND ORS.
PARA-20, 21 & 40: Having regard to the nature of the order, which was
passed by the appellate Court, it is very clear that the said order is not a revisable
order under Sec. 115 of the Civil Procedure Code and the appellants herein could
not have invoked jurisdiction under Sec. 115 of the C.P.C. Therefore, in this
background a writ petition is preferred invoking Arts. 226 and 227 of the
Constitution of India.
When remedy for filing a revision under Sec. 115 of the Civil Procedure Code has
been expressly barred, then, in such a case the petition under Art. 227 of the
Constitution would lie and not a writ petition under Art. 226 of the Constitution of
India. If a petition under Art. 227 of the Constitution would lie and if the same has
been dismissed, then no appeal under Clause 15 of the Letters Patent would be
maintainable. A petition under Art. 227 is not a writ petition. No writ can be issued
under Art. 227.
There cannot be any distinction with regard to a proceeding under Art. 226/227
and Sec. 115 of the C.P.C. when it relates to a proceeding arising out of an order of
the Civil Court. Whatever might be the nature of the petition, it remains a
revisional jurisdiction. Once again, the Court goes to the crux of the matter on this
issue. The crux of the matter would be where the proceedings originally started.
Undisputedly, in the present case, the original proceedings did not start in the High
Court. It started with the approach to the Civil Court under Order 39, Rules 1 and 2
of the C.P.C. Thereafter, the matter reaching to the District Court in an appeal
under Order 43, Rule 1, and thereafter, the matter has reached to the High Court.
Thus, what comes out is that the appellant - original petitioners herein invoked the
supervisory jurisdiction of the High Court i.e. under Art. 227 and not the original
jurisdiction as provided under Art. 226 of the Constitution. It is pertinent to note
where an order of authority and executive authority with or without the provisions
of appeal or revision but without any judicial scrutiny or scrutiny by a judicial
body at any stage is challenged, the same would be normally for exercise of
jurisdiction under Art. 226 of the Constitution. But, where law provides the
provision of appeal and the same is decided by the judicial authority or where there
is a scope for judicial scrutiny by a subordinate Court at the top, the petition
challenging such order would be covered under Art. 227 of the Constitution.
166
[277] 2011 (2) GLR (SC) 1429 [Secondary Evidence – Production –Proof]
H. SIDDIQUI (DEAD) BY L.RS. V. A. RAMALINGAM
PARA-12& 14: Mere admission of a document in evidence does not amount to

its proof. The trial Court had admitted a document as secondary evidence merely
because the respondent had admitted his signature thereon. The trial Court could
not proceed in such an unwarranted manner for the reason that the respondent had
merely admitted his signature on the photocopy of the Power of Attorney and did
not admit the contents thereof. More so, the Court should have borne in mind that
admissibility of a document or contents thereof may not necessarily lead to
drawing any inference unless the contents thereof have some probative value.
In a case where original documents are not produced at any time, nor any factual
foundation has been laid for giving secondary evidence, it is not permissible for the
Court to allow a party to adduce secondary evidence. Thus, secondary evidence
relating to the contents of a document is inadmissible, until the non-production of
the original is accounted for, so as to bring it within one or other of the cases
provided for in the Section. The secondary evidence must be authenticated by
foundational evidence that the alleged copy is in fact a true copy of the original.
Mere admission of a document in evidence does not amount to its proof. Therefore,
the documentary evidence is required to be proved in accordance with law. The
Court has an obligation to decide the question of admissibility of a document in
secondary evidence before making endorsement thereon.
[278] 2011 (2) GLR 1438 [Securitization Act – Powers of DM/CMM]
IDBI BANK LTD. V. HYTAISUN MAGNETICS LTD. AND ORS.
PARA-14 & 22: Section 14 of the Securitization Act only directs the Chief
Metropolitan Magistrate or District Magistrate to assist the secured creditor in
taking possession of the secured assets, if a request is made and on such request, is
not only liable to take possession of such assets, but also the documents relating
thereto and is duty-bound to forward such assets and documents to the secured
creditor. Therefore, it will be evident that Sec. 14 does not empower the Chief
Metropolitan Magistrate or the District Magistrate to adjudicate a dispute nor
empower it to decide the question whether the claim of the secured creditor is
genuine or not.
167
The District Magistrate, Mehsana having no jurisdiction to call for the record or to
adjudicate the matter, the order passed by the District Magistrate, Mehsana dated
21-9-2010 in M.C.C. Case No. 1 of 2010 is illegal and the same is set aside. The
case is remitted to the District Magistrate, Mehsana to assist the petitioner-Bank in
taking possession of the secured assets and documents thereto.
[279] 2011 (2) GLR 1449 [RTS Proceedings – Civil Rights]
PAGI AATAJI KACHARAJI V. STATE OF GUJARAT AND ANR.
PARA-28 & 38: Time and again, this Court has reminded the revenue authorities
that in R.T.S. proceedings disputed questions of title are not to be adjudicated. If
any issue with regard to right, title and interest is raised, it is for the Civil Courts to
decide such rights and give a declaration. In spite of this settled position of law,
time and again, revenue authorities are committing the same mistake knowingly or
unknowingly. It deems fit and proper once again to explain the entire process of
law so that the authorities would bear in mind and would not commit the same
mistake.
The scope of Rule 108 of the Rules of 1972 is to deal with the entries made in the
record of rights and dispute regarding legality of such entries. Mutation entries do
not create any title to the property since such entries only enable the State for
collection of tax. The right, title and interest as to the property should be
established independently of the entries. It is settled law that one cannot be
divested of his legal title merely by virtue of mutation entries and one cannot be
conferred a legal title merely by virtue of posting of mutation entries.
[280] 2011 (2) GLR 1467 [LAR – Previous Award – Finality – Meaning]
PATEL JAYANTIBHAI LAKHUBHAI V. STATE OF GUJARAT AND

ANR.
PARA-8, 9 & 10: The entire controversy centres round the evidence in the form
of previous award at Exh. 18. Considering the copy of the previous award at Exh.
18 from the record of the Reference Court, it transpires that certain agricultural
lands situated in the same village i.e. Village : Hadiyol came to be acquired vide
Notification under Sec. 4 of the Act dated 21-1-1988 for the identical public
purpose of public road between Himmatnagar to Dhansura. It further transpires
that in the said case, the Special Land Acquisition Officer offered compensation to
the claimants at the rate of Rs. 70 per R.A. (70 paise per sq.mtr.) for irrigated land
168
and Rs. 50 per R.A. (50 paise per sq.mtr.) for non-irrigated land. The Reference
Court in the impugned judgment and award dated 11-11-1998 fixed the market
value of the acquired lands at the rate of Rs. 3,000 per R.A. (Rs. 30 per sq.mtr.).
While discarding the previous award at Exh. 18, the Reference Court appears to
have adopted a very hyper-technical approach. It is true that the previous award at
Exh. 18 came to be challenged by the State before this Court. There is no dispute
that there was delay in filing the said appeal and the State filed delay condonation
application which came to be dismissed by order dated 17-1-2001, and resultantly,
the appeal was not admitted and stood dismissed. When such is the situation, the
fact remains that the previous award at Exh. 18 attained finality.
[281] 2011 (2) GLR 1479 [Evidence through Court Commissioner]
KUMARPAL MANKELAL SHAH V. KHEEMRAJ GANESHMAL BALAR

AND ORS.
PARA-2: The question is not, as to whether the provisions of sub-rule (2) of

Rule 4 of Order 18 should be resorted to or not. The question is, as to whether a
person, who is otherwise moving around and is able to discharge his daily routine,
can be allowed to have 'luxury' of cross-examination by a Court Commissioner.
The Court is conscious of the word 'luxury'. The provisions are meant for the
convenience of the members of the public, at the same time, no member of the
public can be allowed to take recourse to any provision, so as to claim a privilege,
like in the present case the petitioner wants him to be cross-examined by the Court
Commissioner.
It is settled position of law that normally, the depositions are to be recorded in

presence of the Presiding Officer, so as to enable the Presiding Officer to notice the
'demeanour' of the witness. If the petitioner is allowed to be cross-examined by the
Court Commissioner, the Presiding Officer will be deprived of an opportunity of
noticing demeanour.
[282] 2011 (2) GLR (SC) 1534 [MACP – Claim u/s 163A]
ORIENTAL INSURANCE CO. LTD. V. DHANBAI KANJI GADHVI AND

ORS.
PARA-11: On consideration of the object of Sec. 163A of the Act which was
inserted by Sec. 51 of the Act 54 of 1994 w.e.f. 14-11-1994, and the Non-obstante
169
clause with which sub-sec. (1) of Sec. 163A commences, it is manifest that the
Legislature did not intend to prevent the claimant from getting compensation as per
the structured formula merely because in his original claim petition, he had prayed
for compensation on the basis of "fault liability" principle. There is no prohibition
in any provision of the Motor Vehicles Act, 1988 against the claimant praying for
compensation as per the structured formula after having filed a claim petition
under Sec. 166 of the Act. Therefore, this Court finds that the respondents were
perfectly justified in making an application at Exh. 6 in M.A.C.P. No. 759 of 1997
which was filed under Sec. 166 of the Act and praying the Tribunal to award
compensation to them on the basis of the structured formula mentioned in Sec.
163A of the Act.
[283] 2011 (2) GLR 1734 [Adoption – Change in Births & Deaths Register]
MANOJ OMPRAKASH GOEL V. STATE OF GUJARAT THROUGH

SECRETARY AND ANR.
PARA-10 & 14: Fact remains that child has been adopted by the petitioner and
his wife after completing legal formalities and they had also decided to
substitute/change his name, and in fact, School Leaving Certificate also refers to
the name "Harsh" instead of "Puru" as originally recorded. However, they decided
to substitute the name of a child in the Birth and Death Register and the application
was made, which has been rejected on the ground that there is no such power and
case does not fall in any of the situations enumerated in Rule 11 or Sec. 15 of the
Act.
It is for the Registrar to arrive at the satisfaction based on some documentary
evidence, and thereafter, he can make correction. Therefore, the obligation is cast
upon the Registrar to make such changes depending upon the facts as stated
hereinabove like in the present case when there is an adoption of a child.
Therefore, though it may not have specifically mentioned in the Rules, Sec. 15
read with Rules 11(4) and 11(5) give this power to the Registrar and in fact, it cast
obligation upon the Registrar to make such correction after having been satisfied
on the basis of the documentary evidence to make correction. Therefore, it cannot
be said that there is no such provision.
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[284] 2011 (2) GLR 1753 [Rent Court - Jurisdiction - Tenancy Disputes]
SANJEEV C. BORDIA AND ANR. V. SUNILKUMAR MOHANSINGH

BORDIA
PARA-11 & 14: Considering the relevant provisions of Sec. 28 of the Bombay
Rent Act, the first and the foremost aspect which is required to be considered is
that such suit or proceedings shall be between a landlord and a tenant. Such suit or
proceedings shall be regarding recovery of rent or possession of the demised
premises to which any of the provisions of the Act applies.
In this case, there was no dispute between landlord on the one hand and partnership
firm or its partners on the other hand. It is further pertinent to note that there was
no dispute regarding fixation of rent or recovery of possession of the demised
premises by the landlord. Here what the learned Arbitrator was called upon to
decide, was whether the tenancy rights in the subject premises is the asset of the
partnership firm or an individual right of the respondent.
The dispute involved in this matter was not between landlord and tenant, but
between the parties inter se. City Court erred in holding that the learned Arbitrator
was not competent to hear and resolve such dispute and he had no such
jurisdiction.
[285] 2011 (3) GLR 1867 [Delay – Appeal without Application/Affidavit]
PASCHIM GUJARAT VIJ COMPANY LTD. THROUGH DEPUTY

ENGINEER, JAMKHAMBHALIA V. KHEMCHAND NATHABHAI
GADHAVI
PARA-8: From the bare reading of the aforesaid provision, it is clear that if the
appeal is filed beyond the period of limitation, then it has to be accompanied by an
application supported by affidavit for condoning delay in filing the appeal. In
absence of any application supported by an affidavit for condoning of delay, the
appeal is rendered time-barred and is liable to be dismissed even in absence of plea
of limitation having been set up as a defence. The appeal was time-barred when it
was filed. The defect could not be cured by filing a delay condonation application
subsequently.
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[286] 2011 (3) GLR (SC) 1871 [MACP – Settlement – Requirement]
URVIBEN CHIRAGBHAI SHETH V. VIJAYBHAI SHAMBHUBHAI

JORANPUTRA AND ORS.
PARA-17, 18, 20, 32 & 33: The Tribunal must follow principles of
justice, equity and good conscience and must be aware that its summary enquiry is
in connection with a legislation which is meant for social welfare. Therefore, when
a representation is made before the Tribunal that a claim of Rs. 15 lacs by way of
consent is reduced to Rs. 6 lacs and odd, the Tribunal must insist on production of
some material, either an affidavit of the claimant or the statement of the claimant
before the M.A.C.T. in support of such lowering down of claim. The M.A.C.T.
cannot accept the said representation on the mere oral statement of Counsel since
such settlement is purely a question of fact. In fact, no leave was obtained from the
Tribunal to enter into a compromise between the parties in respect of the
settlement.
In the absence of all these materials, when an affidavit was filed by the learned
Advocate who appeared before the Tribunal, contending that no such settlement
was ever entered into by the consent of parties, the High Court fell into an error by
discarding the same only on the ground that this was filed belatedly before the
High Court and is an afterthought.
The stand taken in the affidavit of the Advocate referred to above appears probable
specially when there is nothing on record to show that the appellant ever filed any
petition or affidavit for settlement or compromise before the M.A.C.T.
Compensation of Rs. 15 lacs is awarded.
It is an accepted principle that compensation may be so assessed that the interest

accruing therefrom will be sufficient for the maintenance of the family of the
victim and the concept of compensation is wider than mere damages.
[287] 2011 (3) GLR 1951 [Discretionary Powers – Appeal – Principles]
MATRIX TELECOM PVT. LTD. V. MATRIX CELLULAR SERVICES

PVT. LTD.
PARA-6: It is well settled law that the appellate Court may not interfere with
the exercise of discretion of the Court of first instance and substitute its own
discretion except where the discretion has been shown to have been exercised
172
arbitrarily, or capriciously or perversely or where the Court had ignored the settled
principles of law regulating grant or refusal of interlocutory injunctions. An appeal
against exercise of discretion is said to be an appeal on principle. The appellate
Court will not re-assess the material and seek to reach a conclusion different from
the one reached by the Court below if the one reached by the Court was reasonably
possible on the material.
[288] 2011 (3) GLR (FB) 1972 [LPA - Maintainability in Criminal Matters]
NITIN SHANTILAL BHAGAT AND ANR. V. STATE OF GUJARAT
PARA-43 & 44: The present controversy relates to an important question

"whether an intra-Court appeal (Letters Patent Appeal) under Clause 15 of the
Letters Patent is maintainable against an order passed by a learned Single Judge of
the same High Court under Art. 226 of the Constitution of India while exercising
such power in its criminal jurisdiction".
If the relief asked for is against exercise of power under criminal law or the
proceeding would be a criminal proceeding, or the proceeding if carried to its
conclusion ultimately may result in sentence of death or by way of imprisonment
or fine or forfeiture of property and those which have been specifically provided as
a writ petition under criminal jurisdiction under clause (2) of Part II of Gujarat
High Court Rules, 1993, such writ petitions should be treated a proceeding under
criminal jurisdiction. In such case, the appeal under Clause 15 of Letters Patent
against an order passed by learned Single Judge in a writ petition under Art. 226 is
not maintainable.
In the present cases in hand, it has been seen that in one case the appellants have
been convicted by learned Chief Metropolitan Magistrate, Ahmedabad, by
judgment dated 12th May, 2008 passed in Criminal Case No. 368 of 1996
pertaining to offence punishable under the provisions of Drugs and Cosmetics Act,
1940. In the other case, the appellants have been punished by the learned Chief
Metropolitan Magistrate, Ahmedabad, in Criminal Case No. 126 of 1997. The
offences punishable under the provisions of the Drugs and Cosmetics Act, 1940,
having been proved against the appellants, learned Single Judge has affirmed the
guilt as proved, and merely remitted the matter for determination of quantum of
punishment after giving an opportunity of hearing of the case. Those being
criminal proceedings, as per High Court Rules, the appellants rightly preferred the
writ petitions under Art. 226 of the Constitution of India under Criminal
jurisdiction and both the cases were registered as Special Criminal Applications.
173
Thus, in both the cases, the proceedings having been finally culminated into
punishment in criminal proceedings, it is held that the appeals under Clause 15
against both the orders passed by the learned Single Judge are not maintainable.
If the nature of relief as sought for under Art. 226 is that of a Civil proceeding, and
a person seeks to enforce by appropriate relief which alleged to have infringed his
Civil rights against any person or State and which if proved would result in
declaration, express or implied, of right, claim and relief, such as payment of debt,
damage, compensation, delivery of specific property, enforcement of personal
right, determination of status, etc., such proceedings and those which have been
shown in Part I of Rule 2 of the Gujarat High Court Rules, 1993, are to be treated
as Civil proceedings under Civil jurisdiction and an appeal under Clause 15 of the
Letters Patent preferred against an order of learned Single Judge is maintainable.
[289] 2011 (3) GLR (SC) 2331 [Divorce by Consent – Withdrawal]
HITESH BHATNAGAR V. DEEPA BHATNAGAR
PARA-6, 15 & 16: Admittedly, the parties had filed a petition for divorce by
mutual consent expressing their desire to dissolve their marriage due to
temperamental incompatibility on 17-8-2001. However, before the stage of second
motion, the respondent withdrew her consent by filing an application dated 22-3-
2003. The withdrawal of consent was after a period of eighteen months of filing
the petition.
If the second motion is not made within the period of 18 months, then the Court is
not bound to pass a decree of divorce by mutual consent. Besides, from the
language of the Section, as well as the settled law, it is clear that one of the parties
may withdraw their consent at any time before the passing of the decree. The most
important requirement for a grant of a divorce by mutual consent is free consent of
both the parties. In other words, unless there is a complete agreement between
husband and wife for the dissolution of the marriage and unless the Court is
completely satisfied, it cannot grant a decree for divorce by mutual consent.
Otherwise, the expression 'divorce by mutual consent' would be otiose.
In the present fact scenario, the second motion was never made by both the parties
as is a mandatory requirement of the law, and as has been already stated, no Court
can pass a decree of divorce in the absence of that. The non-withdrawal of consent
before the expiry of the said eighteen months has no bearing. The Court is of the
view that the eighteen months period was specified only to ensure quick disposal
174
of cases of divorce by mutual consent, and not to specify the time period for
withdrawal of consent, as canvassed by the appellant.
[290] 2011 (3) GLR 2447 [Electricity – Unauthorised Use – Billing]
RAJENDRA R. SHETH, DEPUTY ENGINEER (O. AND M.) V. M/S.

MATARIYA TEXTILES AND ANR.
PARA-8 & 10: Once it is accepted that there was unauthorized use of
electricity then where is the question of considering as to whether the same was
with necessary mens rea or guilty mind or was bona fide. Section 126 speaks only
about unauthorized use of electricity and Clause 6 of Sec. 126 makes it very clear
that unauthorized use of electricity means "for the purpose other than for which the
usage of electricity was authorized". It is unable to persuade to accept the
reasoning given by the learned Single Judge that it was a bona fide mistake of the
consumer and if it is a bona fide mistake of the consumer then the penalty can be
applied at 0.5 times instead of 1.5 times after giving 'set-off' to the tariff rate
already paid.
In cases of unauthorized use of electricity as explained under Sec. 126 of the Act,
2003, no benefit of 'set-off' can be given. The Electricity Supply Code framed by
Gujarat Electricity Regulatory Commission in exercise of powers conferred under
Sec. 50 of the Act, 2003 provides vide Clause 7.2.6 that the units are required to be
calculated at 1.5 times. Further, the tariff for lighting connection is Rs. 4-70 ps. per
unit, whereas, the tariff for industrial connection is Rs. 3-75 ps. per unit. Nothing
to find in the Electricity Supply Code which provides to calculate the difference
between two tariffs when it comes to issue a supplementary bill for unauthorized
use of electricity.
[291] 2011 (3) GLR 2518 [Patent – Breach – Injunction]
ARIF ABDUL KADER FAZLANI V. HITESH RAOJIBHAI PATEL AND

CO. AND ANR.
PARA-61: That leaves another facet that if the same machine is used by all,
broadly making the process more or less common, what is the distinct feature in
the process or integral or special in the process which makes the process of the
appellant-plaintiff patented" There again, admittedly, no research or other details
have been shown with regard to any kind of evolvement of the process after long
research, and what has been referred to is the reports of Mogambo and Brain
175
League, which have been relied upon by both the sides, is required to be
considered. In fact, as rightly emphasised by learned Sr. Counsel and Advocate
General Mr. Trivedi, for the same process patents are registered in U .S. which
makes it a point on his submission that then the whole of the claim is not required
to be considered and if the emphasis is on the fact that the steps or integers in the
entire process that makes a difference for the purpose of considering the inventive
step, then, again on little further scrutiny the two so-called experts have said on
different steps differently and there is only one common step which cannot be said
prima facie at this stage to be so novel or inventive step which makes whole lot of
difference in the process of making bales using the same machine that would
justify the claim for injunction on the ground of infringement of the patent which
has been registered.
[292] 2011 (3) GLR 2548 [Article 226 – Writ – Alternative Remedy]
KESHUBHAI MOHANBHAI PATEL V. STATE OF GUJARAT AND ORS.
PARA-15: Under Art. 226 of the Constitution, the High Court, having regard to
the facts of the case, has a discretion to entertain or not to entertain a writ petition.
But the High Court has imposed upon itself certain restrictions one of which is that
if an effective and efficacious remedy is available, the High Court would not
normally exercise its jurisdiction. But the alternative remedy has been consistently
held by this Court not to operate as a bar in at least three contingencies, namely,
where the writ petition has been filed for the enforcement of any of the
Fundamental Rights or where there has been a violation of the principle of natural
justice or where the order or proceedings are wholly without jurisdiction or the
vires of an Act is challenged. There is a plethora of case-law on this point but to
cutdown this circle of forensic whirlpool, we would rely on some old decisions of
the evolutionary era of the constitutional law as they still hold the field.
[293] 2011 (3) GLR 2564 [Hoardings – Permission – Licence Fees]
EVEREST PUBLICITY V. MUNICIPAL COMMISSIONER, RAJKOT AND

ORS.
PARA-23 & 24: None of the appellants have obtained any written permission or
licence from the Corporation to install hoardings of the size as noticed above.
Though, receipts have been shown and it is accepted by the Corporation that
licence-fee has been deposited, but mere deposition of such licence-fee will not
create any right in favour of one or other to install a hoarding or sign-board without
176
a written permission or licence. Such hoardings of larger size also cannot be
installed beyond the size prescribed under the Development Control Regulations,
2001, which have come into effect from 20th February, 2004, even if the
appellants have deposited the licence-fee.
In any case, since the year 2009-2010, as none of the appellants have deposited the
licence-fee or have been granted any licence or written permission to install
hoardings or sign-boards at one or the other place, including roof-tops of buildings
or on the roadside of a town circle or on the National Highways, they cannot claim
any right to install such hoarding.
[294] 2011 (3) GLR 2587 [Suo Motu Revision – Limitation]
RAMESHBHAI AMBALAL SHAH V. STATE OF GUJARAT AND ANR.
PARA-17: Where a statute provides any suo motu power of revision without
prescribing any period of limitation, the power must be exercised within a
reasonable time and what is 'reasonable time' has to be determined on the facts of
each case. While exercising such power, several factors need to be kept in mind
such as effect on rights of the third parties over the immovable property due to
passage of considerable time, change of hands by subsequent bona fide transfers,
the orders attaining finality under the provisions of other Acts (such as Land
Ceiling Act) etc. Even the two judgments of the Supreme Court which have been
relied upon by the learned Counsel for the appellants explain the same principles of
law that a reasonable period would be taken upon the factual circumstances of the
concerned case. There cannot be any empirical formula to determine the question.
The Court/authority considered the question whether the period is reasonable or
not as to take into account surrounding circumstances and the relevant factors to
decide that question. In the present case, we find that the original owner i.e. the
appellants very consciously entered into a transaction way back in the year 1970
and sold land to respondent No. 1. It is not their case that at the relevant point of
time they were misled by respondent No. 1 herein in any manner or that any fraud
was played upon them by respondent No. 1 in entering into the transaction and on
their own free-will and volition they executed the sale-deed in favour of the
respondent No. 1 and accepted the sale consideration. No steps were taken by them
for a period of almost 15 years and it is only when the Mamlatdar and A.L.T.,
Gandhinagar thought fit to take transaction in suo motu review that all of a sudden
a thought came in the mind of the appellants to say that the transaction was illegal
or invalid and now the land should be restored to them as it is.
177
[295] 2011 (3) GLR (FB) 2706 [Article 226 – Labour Court – Party]
BHAGYODAYA CO-OPERATIVE BANK LTD. V. NATVARLAL K.

PATEL & ORS.
PARA-15: From the aforesaid decisions rendered by this Court and the Supreme
Court, as referred to above, we hold as follows :
(i) In a petition for relief under Art. 226 of Constitution of India against any
judgment or award passed by the Industrial Tribunal or Labour Court, such
Industrial Tribunal or Labour Court is a necessary party. In absence of such
necessary party, no rule and writ can be issued under Art. 226 against such
Industrial Tribunal or the Labour Court, and
(ii) But if a petition for relief is filed under Art. 227 of the Constitution of India,
the Court or the Tribunal whose order is impugned in the petition, is not a
necessary party to such petition under Art. 227 of the Constitution of India. The
High Court can exercise the power under Art. 227 even in absence of such Court or
the Tribunal.
*********
178

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-:: IMPORTANTANT DECISIONS ::-

PANKAJBHAI RAMESHBHAI ZALAVADIYA V. JETHABHAI

KANTILAL MANIBHAI PATEL V. RANCHHODBHAI MORARBHAI

AMARDEEP SINGH V. HARVEEN KAUR

[4] 2018 (1) GLR 505 [Electricity Connection – Occupancy]

KANUBHAI JETHABHAI ROHIT AND ORS. V. STATE OF GUJARAT

[5] 2017 (1) GLR (FB) 1 [Power of Attorney – Stamp Duty]

ASSET RECONSTRUCTION CO. (INDIA) LTD. V. CHIEF

[6] 2017 (1) GLR (SC) 51 [Decree for Eviction – Arrears/Requirement]

KALIDAS CHUNILAL PATEL (DEAD) BY L.RS. V. SAVITABEN AND

NATIONAL INSURANCE CO. LTD. V. CHANDRAKANTBHAI

PARA-7 & 8: When in case of non-renewal of licence in time when fine is

EMRALD CO-OPERATIVE HOUSING SOCIETY LTD. V. MANGUBEN

PARA-24.8: The respondent No. 1 was in knowledge about the sale-deeds in

[9] 2017 (1) GLR 360 [Commercial Dispute – Use of Property]

UJWALA RAJE GAEKWAR D/O. UDAYSINGHRAO SHIVAJIRAO

ICICI LOMBARD GENERAL INSURANCE CO. LTD. V. KANCHANBEN

PARA-7: When the appellant-Insurance Company has taken up the contention

NEW INDIA ASSURANCE CO. LTD. V. GIRABEN DILIPBHAI PATEL

PARA-6: In the F.I.R. which was given by an independent person, it is

NATIONAL INSURANCE CO. LTD., VADODARA V. RAKESHBHAI

PARA-5.7: As observed by the Hon'ble Supreme Court in catena of decisions,

[13] 2017 (1) GLR 812 [Parents – Maintenance – Possession of House]

RAJESHKUMAR BANSRAJ GANDHI AND ANR. V. STATE OF

NALANDA CO-OPERATIVE HOUSING SOCIETY LTD. V. RAJKOT

[15] 2017 (1) GLR 887 [MACP -Non-production of Medical Bills]

DAMOR RAMJIBHAI BECHARBHAI V. SWAMI ISHWARGIRI

IFFCO TOKIO GENERAL INSURANCE COMPANY LTD. V.

LT. COL. IQBALBAHADUR TEGHBAHADUR DUTT (RETD.) AND ANR.

[18] 2017 (3) GLR 2032 [Family Court – Striking of Defence]

PRAVINSINH HIMMATSINH SOLANKI V. INDUBEN SOLANKI W/O.

PARA- 5: In an application given by the respondent-Wife for appropriate order

VADLIBEN WD/O. BHURABHAI NARSANHJI PUROHIT V. STATE OF

JAMNAGAR PROPERTIES PVT. LTD. V. STATE OF GUJARAT AND

[21] 2017 (3) GLR 2088 [MACP - Future Promotion – Negligence]

AYASHABEN AMANJIBHAI SHERASIYA L.R. OF AMANJIBHAI H.

[22] 2017 (3) GLR 2183 [Defective Meter – Supplementary Bill]

UTTAR GUJARAT VIJ COMPANY LTD. V. PATEL OIL MILL JINNING

[23] 2017 (3) GLR (SC) 2318 [Condonation of Delay]

OIL AND NATURAL GAS CORPORATION LTD. V. GUJARAT ENERGY

PARA-15: The Constitution Bench in Supreme Court Bar Assn. v. Union of

[24] 2017 (3) GLR 2399 [Surrendering of Tenancy Rights by Tenant]

SHANABHAI GHANABHAI BARAIYA (SINCE DECD.) THROUGH

POONAMBHAI SHANABHAI VALAND (DECD.) AND ORS. V.

UNION OF INDIA V. LAXMIBEN BHAVRAV SENDHANE (W/O. DECD.)

GHANSHYAMBHAI INDRAVADANBHAI PANDYA - REGD. PARTNER

MADHYA GUJARAT VIJ COMPANY LTD. V. AMBALAL

GHANSHYAMBHAI TRIKAMLAL PROMOTER OF

RAJESHBHAI LAXMANBHAI KOYANI V. VINODRAI SHAMJIBHAI

PARA-6: Now in all policies after 14-11-1994, the liability of Insurance

HARDIK BHARATBHAI TRIVEDI AND ORS. V. STATE OF GUJARAT

[32] 2017 (4) GLR 2977 [Electricity Line – Maintenance – Liability]

TORRENT POWER LTD V. BISMILLAHBIBI WD/O.

BHIKHUBHAI NARANJI DESAI DECEASED BY HEIRS V.

[34] 2017 (4) GLR 3097 [Renewal of connection – Payment of Dues]

M/S NEMCHAND JAIN V. STATE OF GUJARAT AND ORS.

ABDUL SAMAD ABDUL HAMID SHAIKH V. STATE OF GUJARAT -

PARA-5: It is required to be noted that considering sub-sec. (1) of Sec. 3 of the

MADHURAM PROPERTIES V. TATA CONSULTANCY SERVICES LTD.