2020 Supreme(Guj) 542

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Ashutosh J. Shastri, J.
Shanti Life Space Pvt. Ltd through Authorised Person Nitin Chunibhai Gajera - Petitioner
Versus
Umang Satishbhai Chokhawala - Respondent
R/Special Civil Application No.9935 of 2019 With Civil Application (For Vacating Interim Relief) No.1 of 2019
Decided On : 19-06-2020

Point of Law:
It cannot be reiterated in the same proceedings at the subsequent stage by reason of the fact that the judgment of the higher court which has over-ruled that judgment, not only binds the parties to the proceedings but also the Judge who had earlier rendered that decision. That Judge may have his occasion to reiterate his dogmatic views on a particular question of common law or constitutional law in some other case but not in the same case. If it is done, it would be exhibitive of his bias in his own favour to satisfy his egoistic judicial obstinacy.

Headnote:

Civil Law – Civil Suit – Constitution of India, 1950 – Articles 226 and 227 – Code of Civil Procedure, 1908 – Order 26 – Rule 9 – Scheme -‘Bhavi Darshan Shankul’ – Grievance of petitioner is that though original plaintiffs having only three flats they have filed the aforesaid Special Civil Suit in respect of entire scheme spread over 26572 sq.mtrs., and have sought relief of cancellation of partnership deed executed between the defendants over and above the restoration of the scheme ‘Bhavi Darshan Shankul’ – Trial Judge and application is allowed, granting more indulgence to the plaintiffs as has been contended by the petitioner – Challenging the legality and validity of the order passed by the learned 15th Additional Senior Civil Judge, below application Exhibit-15 in Special Civil Suit – Held, A perusal of record is indicating that trial Judge has not in right spirit allowed the plaintiffs personally to act or discharge the role of Court Commissioner and then produce the same material on record. Even that has not been prayed for by the plaintiffs, but surprisingly, the same is granted. So conjoint reading of the overall circumstances reflecting on record and if the same is to be considered in light of the submissions made by both the learned senior counsels – The reference which has been made of Order 26 Rule 9 of the Code of Civil Procedure, the same cannot be at this stage of the proceedings used since the Court Commissioner may not be appointed to facilitate the litigant to collect or to gather the evidence before the stage of injunction issue to be decided, hence the order is unsustainable – Additionally, it appears to this Court that the major portion of order reflects copy and paste and the same has not been approved or encouraged by the Apex Court in a decision reported in 2009 (10) SCC 564. So considering the said decision cited by learned Senior Advocate Mr. Syed, it appears to be an additional ground on which the order is assailable. Resultantly, order impugned in the petition is not sustainable in the eye of law – Since injunction application is very much at large before the learned trial Judge, the Court would not like to express anything beyond this on merit, but is of the considered opinion that exercise of discretion undertaken by Court below is not just and proper. It is needless to say that said injunction application will have to be decided on its own merits without being influenced by the present order – Impugned order quashed and set aside – Civil application dismissed. (Paras 17 to 21)

Facts of the case:

Case of the petitioner that on that day, the other defendants appeared and requested to file reply to the plaint and injunction application, but simultaneously, the original plaintiffs have filed application at Exhibit-15 for seeking appointment of Court Commissioner. The learned advocate for the defendants sought time to submit reply to this Exhibit-15, but then, according to the petitioner, the said application Exhibit-15 was taken up for hearing on 26.03.2019 on which date, Special Civil Suit was brought on board and on that very day , an order came to be passed. As a result of this, the petitioner was originally constrained to file petition before this Court being Special Civil Application. After hearing at length both the sides, this petition was disposed of vide order dated 09.05.2019 whereby a direction was issued to reconsider and re-decide Exhibit-15 by passing a reasoned order afresh – Trial Judge application is allowed, granting more indulgence to the plaintiffs as has been contended by the petitioner.

Findings of the court:

A perusal of record is indicating that trial Judge has not in right spirit allowed the plaintiffs personally to act or discharge the role of Court Commissioner and then produce the same material on record. Even that has not been prayed for by the plaintiffs, but surprisingly, the same is granted. So conjoint reading of the overall circumstances reflecting on record and if the same is to be considered in light of the submissions made by both the learned senior counsels, this Court is of the considered opinion, that the order passed by the learned trial Judge deserves to be quashed and set aside. The reference which has been made of Order 26 Rule 9 of the Code of Civil Procedure, the same cannot be at this stage of the proceedings used since the Court Commissioner may not be appointed to facilitate the litigant to collect or to gather the evidence before the stage of injunction issue to be decided, hence the order is unsustainable – Additionally, it appears to this Court that the major portion of order reflects copy and paste and the same has not been approved or encouraged by the Apex Court in a decision reported in 2009 (10) SCC 564. So considering the said decision cited by learned Senior Advocate Mr. Syed, it appears to be an additional ground on which the order is assailable. Resultantly, order impugned in the petition is not sustainable in the eye of law – Since injunction application is very much at large before the learned trial Judge, the Court would not like to express anything beyond this on merit, but is of the considered opinion that exercise of discretion undertaken by Court below is not just and proper. It is needless to say that said injunction application will have to be decided on its own merits without being influenced by the present order – Impugned order quashed and set aside.

Result: Petition allowed