Mansukhlal Pujalal Vs. Assistant Collector, Jamnagar - Court Judgment

Excerpt:
- - notwithstanding anything contained in the code of civil procedure, 1908, the judge shall not permit -(a) any application to be compromised or withdrawn, or (b) any person to alter or amend any pleading, unless he is satisfied that such application for compromise or withdrawal or the application for such alteration or amendment is bona fide and not collusive. he further contended that the impugned order is bad inasmuch as the same suffers with material irregularity in exercise of the jurisdiction. he also contended that the learned judge has erred inasmuch as he has failed to exercise jurisdiction vested in him. in sub-section (4) of section 24 of the panchayats act referred to above, all these fetters are that the judge should be first satisfied that it is bonafide and not collusive and then only he shall (not) permit to either compromise or withdraw the application and also may allow to alter or amend the pleadings.s.m. soni, j.1. rule. mr. champaneri waives service on behalf of respondent nos. 1, 2 and 3. the petitioner has filed an election petition no. 1 of 1993 in the court of the learned civil judge (s.d.), jamnagar challenging the election of sarpanch of gagva gram panchayat held on 27-12-1992. an application for interim relief praying for maintenance of status quo was also filed and it was ordered to maintain status quo on that application. however, said application is pending for final hearing.2. pending final hearing of that application for interim relief, the petitioner applied for an order of discovery under order 11 rules 12, 13 and 14 of civil procedure code, 1908 (code for short). said application was filed to procure certain additional evidence to substantiate his application for interim relief. the learned judge after hearing the parties, was pleased to dismiss the said application on the ground that procedure under the code is not applicable to such cases.3. the petitioner being aggrieved by the said order has preferred this c.r.a. challenging the said order. mr. nanavati, learned advocate for the petitioner challenged the said order on the ground that in view of the provisions of sub-section (2) of section 24 of the gujarat panchayats act (panchayats act for short); the judge, in the course of inquiry of such application, may exercise all the powers of civil court and therefore, the provisions of order 11 rules 12, 13 and 14 are also applicable and refusal of the application on the ground that the procedure under the code is not required to be followed is erroneous. he further contended that on a proper reading of section 24 of the panchayats act, it becomes clear that not only some but practically all the provisions of the code are applicable except those which are specifically barred. the learned advocate has referred to sub-section (4) of section 24 of the panchayats act, which reads as under:notwithstanding anything contained in the code of civil procedure, 1908, the judge shall not permit --(a) any application to be compromised or withdrawn, or(b) any person to alter or amend any pleading, unless he is satisfied that such application for compromise or withdrawal or the application for such alteration or amendment is bona fide and not collusive.4. mr. nanavati, therefore, contended that the whole of the procedure under the code was applicable to such application, however, subject to qualification, if any, under the panchayats act in general and section 24 in particular. he, therefore, contended that the learned judge erred in rejecting the application on the ground that the procedure under the code is not applicable. he further contended that the impugned order is bad inasmuch as the same suffers with material irregularity in exercise of the jurisdiction. he also contended that the learned judge has erred inasmuch as he has failed to exercise jurisdiction vested in him.5. mr. oza learned advocate for the respondent no. 4 submitted that he supports the impugned order. mr. oza further submitted that simply because the powers of civil court are to be exercised while holding the inquiry does not necessarily mean the application of the code. he also contended that sub-section (4) of section 24 of the panchayats act cannot be read to mean applicability of the whole of the code. he, therefore, contended that the application be dismissed.6. mr. champaneri, learned advocate for the panchayat supported the argument of mr. nanavati. he further contended that deciding of a matter by a judge under civil jurisdiction in exercise of all the powers of the civil court do mean applicability of the code for the purpose of inquiry, unless specifically barred or limited by some provision. he, therefore, does not support the order.7. the short question that arises in this application is whether in an inquiry of an application under section 24 of the panchayats act, civil procedure code applies for the purpose of procedure of inquiry or not. in the whole of the panchayats act, there is no specific bar of application of the code. in sub-section (4) of section 24 some qualifications are imposed before permitting withdrawal or compromise of such applications and or alteration or amendment of the pleadings of such applications.8. order 23 of the civil procedure code provides for withdrawal and adjustment of suits. some fetters are placed in exercise of the powers to grant withdrawal or record adjustment under the panchayats act. in sub-section (4) of section 24 of the panchayats act referred to above, all these fetters are that the judge should be first satisfied that it is bonafide and not collusive and then only he shall (not) permit to either compromise or withdraw the application and also may allow to alter or amend the pleadings.9. except these fetters in regard to compromise or withdrawal or amendment of the pleading, the panchayats act does not contemplate for any other limitation to apply the code. one can assume that whole of the code may not be applicable, provided some procedures for proceeding of applications under section 24 of the panchayats act are provided under the panchayats act or rules itself. when all the powers are given to a judge and is entitled to exercise all powers of a civil court, the court is entitled to follow procedure under the code. it can be inferred from the provisions of sub-section (4) of section 24 of the panchayats act that so far as other provisions of the code are concerned, they are required to be followed without any qualifications or limitation. therefore, rest of the provisions of the code apply as they stand. thus, the learned judge has erred in refusing the application.10. from what is stated hereinabove, it is clear that a novel practice is adopted by the litigants in the lower courts. they initially file their suit or application and apply for interim relief. after procuring interim orders in their favour, they go on making applications for production, discovery, inspection or interrogatory. such applications discloses their object to delay the hearing of interim relief. the question, therefore, is whether, the facts which may be revealed by grant of discovery, inspection or interrogatory are relevant for the purpose of deciding the application for interim relief? in my opinion, the answer is no; because when the plaintiff/ applicant files application and seeks interim relief, the learned judge has to satisfy himself from the materials placed before him whether there is a prima-facie case or not. the learned judge has also to see as to in whose favour the balance of convenience is and whether irreparable injury would be caused or not. while deciding whether to grant or not interim relief the learned judge has to take into consideration all these factors and for this purpose the learned judge has to look into all the materials placed on record along with the application for interim relief. the applicant/plaintiff will have no right to substantiate the material with the plaint after obtaining interim relief ex parte by making application for discovery, inspection or interrogatory. the application for interim relief is required to be decided on the materials which were available at the time of granting interim relief. no material which was not available at the time when interim relief came to be granted, can be looked into for deciding the application for interim relief. at the most, the plaintiff may be entitled to deny and substantiate such denials of the allegations made in the reply by the opposite party. the plaintiff/applicant cannot by himself place new material which was not there at the time of grant of ex-parte interim relief. therefore, this practice of the parties and their advocates and of the court in indulging into the hearing of such applications and avoiding hearing of interim relief granted ex parte is required to be depreciated. therefore, it is clear that any application for interim relief is required to be decided and disposed of on the materials which were placed on record at the time when said application came to be made and ex parte order came to be passed. at the most the material to controvert and support the same, if placed on record, can be looked into.11. in view of the above facts, the application is allowed. however, the learned judge shall decide the application on the material available at the time when ex parte order came to be passed.rule made absolute. no order as to costs.