ORAL JUDGMENT

(PER : HONOURABLE MR.JUSTICE JAYANT PATEL)

1. The present Appeal is directed against the judgment and order dated 14.9.2007 passed by the learned Small Cause Judge in M.V.A. No.1206 of 1999 whereby G.R.V. of the premises in question is fixed at Rs.7,929/-

for the assessment year 1995-96.

2. The short facts are that the officer of the Corporation assessed the G.R.V. of the premises bearing Survey No.1362/3 situated in ward Kalupur-2/A at Rs.72,622/- for the assessment year 1995-96. The respondent being aggrieved by the said assessment preferred appeal before the Small Cause Court in M.V.A. No.1206 of 1999. The learned Small Cause Judge ultimately at the conclusion of the Appeal passed the impugned judgment and order whereby G.R.V. of the premises is fixed at Rs.7,929/- and the G.R.V. fixed by the officer of the Corporation is set aside. It is under these circumstances the present Appeal before this Court.

3. We have heard Ms.Jirga Jhaveri, learned counsel for the appellant.

4. It appears from the reasons recorded by the learned Judge that the learned Judge was guided by earlier decision of Small Cause Court in M.V.A. No.867 of 2001 dated 31.8.2005 whereby for the assessment year 2000-2001 G.R.V. of the premises was fixed at Rs.7,929/- and the said order of the Court was not carried by the Corporation before higher forum or in any case it was not brought to the notice of the Court that said order was carried before the higher forum. As such if the learned Judge has relied upon his earlier decision for the assessment of G.R.V. of the very premises, more particularly in view of the fact situation of no change in the premises, such a view cannot be said to be erroneous on the part of the lower Court.

5. Apart from the above, the additional aspect in the present matter is that for the subsequent year of 2000-2001 G.R.V. was fixed at Rs.7,929/- and the same had attained finality. Normally G.R.V. for the earlier period i.e. 1995-96 in the present case would be lesser in comparison to subsequent year. Further no evidence had come on record showing that there was any change in the premises in question. We, therefore, find that such a approach on the part of the lower Court could not be said to be erroneous.

6. Ms.Jhaveri, learned advocate for the appellant attempted to contend that the Appeal was preferred after the expiry of prescribed time limit and that the requisite condition to deposit 75% of the amount at the time of preferring the appeal was not complied. She therefore submitted that the appeal could not be maintained before the Appellate Court for the assessment year 1995-

96.

7. As such as it appears from the recital of the judgment that such a contentions were ever raised before the lower Court at the time of hearing of appeal. On the contrary, on merit it has been submitted that looking to the area measurement and the use of the premises G.R.V. is rightly fixed. If any contention is raised but not pressed at the time of hearing of the appeal, the party cannot be permitted to raise the contention at the latter stage before the higher forum. It is to be considered as not pressed and if the matter is allowed to be examined on merit, such a contention cannot be countenance by this Court at the appellate stage. No statement is made in the memo of appeal that such a contention was ever raised at the time of hearing of the appeal, but not dealt with by the learned Small Cause Judge. Under these circumstances also we cannot countenance the submission.

8. In view of the aforesaid the appeal is merit less, hence dismissed. Rule is discharged. Considering the facts and circumstances no order as to costs.

9. In view of the order passed in First Appeal the Civil Application would not survive and shall stand disposed of accordingly.

(JAYANT PATEL, J.)

(Z.K.SAIYED, J.)

KKS