Gujarat HC Restores Plaintiffs’ Decree After Defendant Said He Did Not Intend To Build On Disputed Navoli

The plaintiffs obtained a decree in Regular Civil Suit No. 256 of 1999.

The First Appellate Court reversed that decree on 8 May 2008. In its judgment, it recorded that the defendant’s advocate had filed a purshis stating that the defendant did not wish to construct in the disputed navoli.

The plaintiffs appealed under Section 100 of the Code of Civil Procedure (CPC), contending that this statement supported the relief sought in the suit.

The respondent did not appear in the Second Appeal despite notice.

Section 100 CPC permits the High Court, in a Second Appeal, to consider substantial questions of law and to frame an additional substantial question where necessary; the Court stated that it may do so at any stage of the proceedings.

Under Order XII Rule 6 CPC, a decree may be made on an admission where the admission supports the relief claimed.

The judgment also framed its additional question by reference to dismissal of a First Appeal under Section 96 CPC.

The High Court treated the First Appellate Court’s record of the purshis as a clear admission that the defendant did not intend to construct in the navoli.

It considered that statement to correspond to the relief sought by the plaintiffs and therefore held that the suit could be decreed on the admission under Order XII Rule 6 CPC.

On that basis, it concluded that the First Appellate Court should not have proceeded further with the appeal and should have confirmed the Trial Court’s decree.

It allowed the Second Appeal, set aside the First Appellate Court’s judgment and order dated 8 May 2008, and directed that the decree be drawn up in accordance with its decision.