2002 Supreme(Guj) 638

Gujarat High Court
Judgename :RAVI R.TRIPATHI
DOSHI NANALAL MOTICHAND - Appellant
Versus
GANDHI RASIKLAL GIRDHARLAL - Respondent
SECOND APPEAL 68 of 1982
Decided On : 08/29/2002

Headnote:

Second Appeal arises out of the judgement and decree passed in Regular Civil Suit No. 86 of 1975 decided by the learned Civil Judge (Junior Division), , which was confirmed by the learned Extra Assistant Judge, in Regular Civil Appeal No. 88 of 1978 by his judgement and order whereby he dismissed the appeal and confirmed the judgement and decree passed by the learned trial Judge. learned trial Judge was pleased to partly decree the suit and order that the plaintiff is entitled to right of passage leading to Station Road situated at north of Block a and the defendants were ordered to remove the construction in the passage and the defendants were further, permanently restrained from causing any obstruction in the passage at north, to the plaintiff in using the said passage. Second Appeal was filed in February 1982. The matter was listed for final hearing in the year. It was adjourned from time to time. the Court passed the following order. "learned advocate appearing for respondent no. 1 has filed a note tat he has instructions from his client not to appear in the matter. Under the circumstances, office to issue notice to respondent no. 1 returnable. "said notice is served to respondent no. 1 and the Bailiffs report to that effect is on record of the case. Despite that service, respondent no. 1 has not caused any appearance in the Second Appeal, possibly because he must have lost interest in the matter which can be inferred from the facts of the case. other respondents are the predecessors in title of the present appellant-- original defendants from whom he had purchased the property. Respondent no. 2 was deleted by an order passed in Civil Application No. 11869 of 2000. The respondents except no. 1, have no subsisting interest in the present proceedings. It is only respondent no. 1 who is the main contesting party. Shorts facts giving rise to the present proceedings are that, the plaintiff filed a suit against the defendants for getting the obstacle caused by defendant no. 1 removed and also to get permanent injunction against them from obstructing the right of way for going to his block. As the facts go, the suit was between the landlord and the tenant. Defendant no. 1 is the owner and the plaintiff occupied eastern block for rent at the rate of Rs. 45. 00, per month in the year 1962. The plaintiff enjoyed the block by residing in it with family. The plaintiff had a shop on a road and for going to his shop-- a coal depot, he used the disputed way and as averred by the plaintiff, the closure of the said way by defendant no. 1, is absolutely an illegal act as on account of that the plaintiff cannot pass through the passage. The plaintiff prayed for reliefs as set out hereinabove -Held mandate of law is very succinct which must be followed by this Court in letter and spirit. In the present case, the appellant has filed Civil Application No. 8760 of 2001. But the same could not be placed for orders in absence of the papers of the Second Appeal. By the said Civil Application, the applicant-appellant herein has placed on record that the road on eastern side of the block about which it was observed by both the courts as under:". . in the east there is Municipal road. There are gutters and ditches and therefore, it is not useful as a road. "it is now a well surfaced tar road, it can be seen from the photographs, totaling to six, taken from different angles, the details of these photographs are set out in para 5 of the application. The road is in good condition and observations of the learned first appellate Judge will not survive any more. 14. 1 mr. Desai, the learned advocate pointed out that the respondents are not served with this Civil Application and therefore, Court may not refer to this Civil Application or the subsequent events so that it may not be argued against the appellant that he produced something before the Court at the back of the respondents in Second Appeal. 14. 2 the Court is conscious of the fact that in Civil Application no notice is issued, still the Court has looked into the facts narrated in the Civil Application because the facts are of the nature of which a judicial notice can be taken and besides, this is not the only decisive factor on which Second Appeal is decided. This is only in addition to the facts discussed hereinabove, just to satisfy the conscience of the Court that when the Court is driving the plaintiff to that alternative way, it is a useful road. Second Appeal is allowed. The judgement and decree of the courts below are quashed and set aside. The suit is hereby dismissed Appeal is Allowed.