IN THE
COURT OF HON’BLE PRINCIPAL DISTRICT AND SESSIONS JUDGE AT PORBANDAR.
CIVIL MISCELLENEOUS APPEAL
NO. /2016
1.
Age: 52,
Occupation: Agriculturist,
Residing at: Village: Advana, Wadi Vistar,
Talula: District:
Porbandar.
…Appellant
(Original
Plaintiff)
Versus
1. Section Officer,
Sorthi
Sinchai Yojna,
Office
of Irrigation department,
Porbandar.
2. Karyapalak Engineer,
Sorthi
Sinchai Yojna,
Office
of Irrigation department,
Porbandar.
3. Collector, Porbandar,
Seva
Sadan 1, Opp. Airport, Porbandar.
4. Nathu Bokhiriya,
Age:
Adult, Occupation: Contractor,
Opp.
Trija Mile, Porbandar. …Respondents
(Original Defendants)
Appeal
Under order 43 ( r ) of the Code of Civil Procedure, 1908 against
the order passed under application at exhibit 5 in R. C. S. No. /2016.
The Appellant above
named most respectfully states that the brief facts leading to the present appeal
are as under:
1. The appellant resides at the
address mentioned in the cause title of the present appeal. The appellant has
filed a regular civil suit no. /2016 against the respondents. It is the say of
the appellant that the appellant is the absolute and sole owner and possessor
of the agricultural land bearing revenue survey no. at village Advana of Taluka:District of
Porbandar. Out of the respondents, respondents no. 1 and 2 are the office
bearers of Irrigation department and are at the helm of Sorthi Canal, while
respondent no. 3 was joined being the head of the Revenue department and
respondent no. 4 is the contractor who undertakes the work of canal on the
instruction issued by respondents no. 1 and 2. The respondents wanted to erect
the canal and it was initially decided that the canal would pass from southern
boundary the land of the appellant and will move towards the land of ………….and accordingly the boundary indicating
the said fact was drawn at the local place. In order to make the said land
fertile the appellant has gone through great hardship and has incurred huge
expenses. The respondent no. 1 issued notice dated …………. to the appellant
stating that the appellant should refrain from undertaking any kind of
agricultural work on the said land. The appellant has challenged the impugned
notice on the ground that the respondents have never acquired any land nor paid
any amount of compensation to the appellant.
2. The notice of the suit was served
on the respondents and respondents no. 1-2 filed their written statement vide
exhibit while respondent no. 3 choose
to adopt written statement of respondents no. 1-2 and respondent no. 4 though
served with summons choose not to appear before court and hence ex-parte order
was passed against him. It was contended by respondents no. 1-2 that the
appellant executed an agreement dated……….. in their favour wherein the
appellant has voluntarily agreed to hand over his land to the respondents for
the purpose of canal. Hence by virtue of that right conferred by the appellant
himself they can erect the canal as per their choice. They further contended
that construction of canal is for public good and hence they should not be
restrained in any manner
3. An application for interim
injunction was filed by the appellant vide exhibit 5 praying that the resspondents
be restrained from undertaking any construction work on the land of the
appellants without going through the due process of law. During the pendency of
the suit. The said application was rejected by Hon’ble Trial court vide its
order dated …………. Being aggrieved and dis-satisfied by the order passed by
Hon’ble Trial court the appellant prefers this appeal on following amongst
other grounds.
Grounds:
A) That the learned
trial court has erred in rejecting the application for granting interim relief
with respect to the suit premises. Hence the impugned order passed by learned
trial court should be set aside.
B) That the learned
trial court has failed to appreciate in right perspective the prima facie
evidence submitted by the parties to the suit. Hence the impugned order passed
by learned trial court deserves to be set aside.
C) That the learned
trial court has grossly failed to rely on the so called agreement dated ……………
while arriving at the finding that once such agreement has been signed by the
appellant he cannot challenged the illegal and unconstitutional acts of
respondents. Hon’ble trial court has taken the words respondents as gospel
truth and has totally brushed aside the fact that the appellant has challenged
the so called agreement.( It is duty of the respondent to submit the original
document before court but the respondent totally fail to produce the so called
original document) Therefore the order passed by the learned
Trial court is liable to be set aside.
D) That though the
appellant had cited many authorities of Hon’ble apex court to substantiate his
claim that he should not be deprived of his land without following due process
of law, Hon’ble trial court while imparting the impugned order has not
mentioned a word about the applicability or non-applicability of the said
authorities cited at bar by the advocate for appellant. Thus the order passed
by Hon’ble trial court is mechanical and without application of mind. Therefore
the impugned order passed the learned trial court should be quashed and set
aside.
E) That the learned trial court has observed
that the prima-facie evidence produced by the appellant is not sufficient and
strong enough to bring home the point raised by the appellant as no application
for court commissioner is filed or a report from D.I.L.R. is not produced by
the appellant. The appellant states that there was no need to file such
application as the situation prevailing at the sight was never seriously
disputed by the respondents. In fact it is the statutory duty of the
respondents who are well-equipped and has machinery to prepare such site plan. Hence
also the order passed by learned trial court should be set aside.
F) That the trial court has failed to appreciate
that the approved sight map for the erection of canal is in the possession of
respondents they did not produce the same before Hon’ble court to assist
hon’ble court to come to a correct conclusion. The said conduct on the part of
respondents speaks volumes about their conduct. Therefore also the impugned
order should be set aside.
G) That the order
passed by the learned trial court is otherwise also contrary to law, against
the weight of evidence, unconstitutional and against the principles of justice,
equity and good conscience. Hence the impugned order passed by learned trial
court should be set aside.
5. That the impugned
judgment was passed on ………….. The application for obtaining the true copy of
impugned order was made on ………. and the true copy of the impugned order was
obtained on ……………. Hence the present appeal is within the prescribed period of
limitation.
6. That looking to
the facts and circumstances of the present case, the grounds enumerated in the
present appeal memo and other grounds which may be allowed to be urged at the
time of hearing of the present appeal the appellant prays that:
a) The ordere
passed by the learned trial court under application at exhibit 5 in regular
civil suit no. …………… be quashed and set aside.
b) Any other and
further relief which may be granted looking the facts and law involved in the
present case.
7. That requisite
court fees of Rs. 10 is affixed herewith.
8. That the true
copy of the order is annexed herewith.
9. A copy of the
memo of appeal to be given to the respondent is annexed herewith. Requisite
process fee is also affixed herewith.
Date: /08/2016
Place: Porbandar _______________
( Appellant)
Drafted
under instruction by
Dharmesh
M.Rupareliya
Advocates, Porbandar.
IN THE
COURT OF HON’BLE PRINCIPAL DISTRICT AND SESSIONS JUDGE AT PORBANDAR.
CIVIL MISCELLENEOUS APPEAL
NO. /2012
Age: 75,
Occupation:
Religion: Hindu,
Residing at:
District:
Porbandar.
…Applicant
(Original
Plaintiff)
Versus
…Opponents
(Original
Defendants.)
Application
under oder 43 ( r ) 2 read with order 41 ( r) 5 read with oder 39 rule 1-2 and
section 151 of the Code of Civil Procedure, 1908 to stay the operation of order
passed under exhibit 5 in R. C. S. no. /2016 till the final disposal of the
appeal
The applicant above
named most respectfully submits as under.
1. That the
appellant abovenamed has preferred an appeal against the order passed by the
Hon’ble Trial Court in Regular civil
suit no. which is likely to be admitted by this Hon’ble court.
2. That if on the
basis of the impugned order passed by the learned trial court the respondents
will dispossess the applicant the whole
appeal preferred by the present appellant will be infructuous and the
appellant will suffer from loss which can not be compensated in terms of money.
3. That in light of
what has been said above it is prayed that
a) That the Hon’ble
court may please to grant interim injuction against respondent and he may be
restrained from dispossessing the appellant from its lawful possession with
respect to the rented premises till the final disposal of the appeal.
b) Any other and
further relief which may be granted looking to the facts and circumstances of
the present case.
4. That the
affidavit of the respondent in support of the present application is presented
herewith.
Affidavit
I , Aged: ,
Occupation: Residing at: Porbandar,
Hindu by religion, do hereby solemnly and affirm on oath and state that what
has been said in the above application has been explained to me and are true to
the best of my knowledge and belief.
Date:
Place: _______________
Identified
by
Dharmesh M. Rupareliya
Advocate,
Porbandar.
