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Gujarat High Court · body

2016 DIGILAW 352 (GUJ)

Brijwasi Developers Pvt. Ltd. & 1 v. Rohit Sunderlal Kabutarwala & 17

2016-02-15

C.L.SONI

body2016
ORDER C.L SONI, J.:— Additional Affidavit filed by the applicants is taken on record. 2. Present application is to recall the judgment dated 7.1.2016 passed in the main petition, whereby the Court has allowed the petition and quashed and set aside the order passed by the Mamlatdar under the Mamlatdar Courts Act, 1906 (‘the Act’) and the order passed by the Deputy Collector. 3. The case of the applicants is that the applicants are second purchaser of the land held by the original plaintiff who preferred suit before the Mamlatdar under the Act. 4. Learned advocate Mr. Gohil for the applicants submitted that the Mamlatdar passed order on 22.7.2010 which was confirmed by the Deputy Collector vide order dated 15.12.2011 and at the time of these two proceedings, the applicants were naturally not the parties in such proceedings since the applicants purchased the land from the first purchaser later on in the year 2012. The applicants were joined as party respondent Nos. 17 and 18 in the main petition as per the order dated 23.7.2015 Mr. Gohil submitted that by Additional Affidavit, the applicants have stated that the applicants were not served with notice issued by this Court in the main petition as the person named Bhikhabhai, who had some problem with the management, never informed about the receipt of the notice of the petition by him. Mr. Gohil submitted that affidavit of Bhikhabhai is annexed with the Additional Affidavit tendered today to the Court, wherein he has confirmed that he received the notice issued by this Court and did not inform about the notice to the management on account of his dispute as regards non-payment of salary with the management. 5. Learned advocate Mr. Dave for the original petitioners however submitted that this Court has allowed the petition only on the ground of limitation and not on merits. Mr. Dave submitted that if the applicants have any other remedy available to claim any right concerning or in relation to the property purchased by them, it is always open to the applicants to avail of such remedy. 6. Learned Assistant Government Pleader Mr. Mr. Dave submitted that if the applicants have any other remedy available to claim any right concerning or in relation to the property purchased by them, it is always open to the applicants to avail of such remedy. 6. Learned Assistant Government Pleader Mr. Raval would submit that this Court has quashed the impugned orders in the main petition on the ground that the suit was not filed within a period of six months from the date of cause of action and therefore, it is always open to the applicants to avail of any other remedy if there is cause for the applicants for any remedy to claim any right concerning their property. 7. The Court having heard learned advocates for the parties finds that the suit before the Mamlatdar was filed by the original owner of the land purchased by the applicants in the year 2012. The proceedings before the Mamlatdar and Deputy Collector ended before the applicants purchased the land from the first purchaser of the land. However, the applicants were joined as party respondents in the main petition with permission of the Court as they purchased the land which was held originally by the plaintiff. 8. As stated in the additional Affidavit, if the applicants were not served with notice of the High Court and since the suit of the original plaintiff was held to be time barred by this Court by order dated 7.1.2016, sought to be recalled by the present application, the applicants' right to take out any separate proceeding or to avail of any remedy in law concerning the property purchased by them is not taken away. Therefore, if the applicants have any other remedy available to claim any right concerning the property purchased by them from the original plaintiff, the applicants can very well avail of such remedy. This Court having found that the suit filed by the original plaintiff was beyond the period of six months from the date of cause of action, quashed the orders of the Mamlatdar and the Deputy Collector and nothing is observed as regards the merits of the rights of the respective parties. 9. This Court having found that the suit filed by the original plaintiff was beyond the period of six months from the date of cause of action, quashed the orders of the Mamlatdar and the Deputy Collector and nothing is observed as regards the merits of the rights of the respective parties. 9. In above such view of the matter, the Court finds that the judgment dated 7.1.2016 is not required to be recalled, leaving it open to the applicants to avail of any remedy available to them in law to claim any right concerning their property. The application stands disposed of accordingly.