Court : Gujarat
Reported in : AIR1964Guj101
v.b. raju, j.1. a suit filed by the present petitioner against the two defendants was held to be not maintain-able by the court of civil judge, s. d. at broach. defendant no. 1 is a firm and defendant no. 2 was at ons time a partner of the firm. defendant no. 2 was adjudged insolvent on 18-5-1956. on this ground an objection was taken in the written statement that the suit was not maintainable. in the written statement, an objection was also taken that the firm was itself dissolved upon the adjudication as insolvent of one of the partners and that therefore a suit against the firm did net lie. the learned judge framed one preliminary issue, namely, whether the suit is not maintainable, and he held in the affirmative on that issue. he thereupon dismissed the suit. hence this revision.2. the framing of preliminary issues is referred to in order 14, rule 1 and rule 2, civil procedure code. rule 1 of order 14, c. p. code classifies issues into two kinds (1) issues of fact, and (2) issues of law. it also mentions that at the first hearing of the suit the court shall, after reading the plaint and the written statements, if any, and after such examination of the parties as may appear necessary, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend, in other words, if the parties are at variance on a material proposition of law then .....
Tag this Judgment!Court : Gujarat
Reported in : (1968)9GLR194
v.r. shah, j.1. in this revision application, the petitioner is the original plaintiff and the opponents are the original defendants nos. 1 and 2 in civil suit no. 91 of 1961 in the court of the civil judge, senior division, surendranagar. the petitioner is a tenant in respect of two shops. he entered into a partnership for business with the opponents nos. 1 and 2 and permitted that partnership to do its business in the shops taken on rent by him. the partnership has been dissolved by a deed of dissolution dated september 23, 1958 and according to the terms of this deed of dissolution the opponents agreed to pay rs. 10800/- being the amount due to the petitioner on accounts and to hand over possession of the suit shop which is one of the two shops. this amount of rs. 10800/- was made payable by instalments and the first instalment of rs. 2000/-was agreed to be paid on ashad sud 1 of samvat year 2015 and the remaining amount was to be paid on maha vad 30 of samvat year 2016. the document also provided that if the payment of rs. 2000/- was not made on the due date the petitioner would be entitled to take possession of the suit shop from the opponents. admittedly default has been committed in making the payment as agreed in the deed of dissolution and therefore the petitioner filed a suit for possession of the shop from the opponents. he valued the relief for possession at rs. 240/- being the annual rent of the suit premises and paid court fees thereon. the opponents raised a .....
Tag this Judgment!Court : Gujarat
Reported in : [2002]253ITR454(Guj)
..... referring to the ratio of the aforesaid decisions it was contended that the test to be applied would be in case a contract was given for setting up the plant on turn-key project basis, what would be the expenditure such a contractor would incur, and if the entire expenditure as billed by the contractor was available for the purpose of capitalisation, the assessee who ..... 3,45,563 holding that all the expenses cannot be said to have been incurred for the acquisition of plant and machinery and for bringing the fixed assets into working condition.the assessee being aggrieved carried the matter in appeal before the commissioner of income-tax ..... 38,349 which according to the assessee are not relevant to the setting up of the plant, that this part of the affidavit had been accepted by the commissioner of income-tax (appeals), and the balance portion of the affidavit had ..... all other items of expenditure are relatable to setting up the plant and bringing fixed assets into existence and putting them into working ..... the affidavit which reads as under :'(5) that all the remaining expenditure is incurred or made for establishment set up and maintained for setting up of the plant at umreth. ..... submitted that all expenditure which was incurred for construction and erection of a plant, viz. ..... therefore, hold that in the circumstances of the case the tribunal was not justified in law in holding that the expenditure, except as regards the item of depreciation, was not part of the actual cost of the plant. .....
Tag this Judgment!Court : Gujarat
Reported in : (2002)4GLR3290
b.j. shethna, j. 1. the appellants-plaintiffs have challenged in this appeal the impugned order dated 15.9.1999 passed by the learned civil judge (s.d.), valsad in special civil suit no.159 of 1999 whereby the learned judge returned plaint to the plaintiffs for presenting the same before the court which has jurisdiction, as according to him, he had no jurisdiction to try the suit for damages and maintenance. it is a brief order, therefore, i would like to reproduce the same which is as under :-2. thus, the learned judge held that provisions of section 20(c) civil procedure code (hereinafter referred to as 'cpc') would be applicable and provisions of section 19 cpc would not be applicable as the plaintiffs filed suit against the defendants for damages and maintenance. the suit can be filed in a case where marriage took place. looking to the averments made in the plaint, nowhere it appears that the marriage took place between the parties in the jurisdiction of the court and deliberately the plaintiff has suppressed the fact regarding her marriage with the defendant no.1. reading the plaint it is clear that father of the plaintiff is staying at rajkot and she has stayed at rajkot. not only that her first daughter was born at rajkot. thus, it can be easily inferred that her marriage took place at rajkot. when the marriage has not taken place in the jurisdiction of his court, then he will have no jurisdiction to try and, therefore, the suit was not maintainable and under the .....
Tag this Judgment!Court : Gujarat
Reported in : (2009)2GLR1376; 2010(41)PTC675(Guj)
m.r. shah, j.1. present appeal from order under order xliii, rule 1(r) of the code of civil procedure is arising out of the impugned order dated 2-3-2007 passed by the learned judge of the city civil court, ahmedabad below exhs. 6 and 7 in civil suit no. 1735 of 2006 by which the learned chamber judge has allowed the said notice of motion granting injunction in favour of the respondent herein-original plaintiff (hereinafter referred to as 'the plaintiff) and against the appellant herein - original defendant (hereinafter referred to as 'the defendant') restraining the defendants, its proprietor, partners and directors, as the case may be, their servants, agents, dealers, stockists and distributors from manufacturing, marketing, advertising, selling and exporting it stablets used in plain, inflammation and fever under the impugned trade-mark bolaren along with its copyrights subsist in its artwork of the label packages etc. and any other trade-mark along with its copyrights which may be identical and/or deceptively similar as that of the plaintiff's registered trade-mark dolaren along with its copyrights subsist in its art work of the label, packages etc. and they are also further restrained from committing an act of passing off goods, from selling and exporting tablets used in pain, inflammation and fever as the goods of the plaintiff under the alleged trade-mark bolaren along with its copyrights subsist in its artwork of the label, packages etc. and they are also restrained .....
Tag this Judgment!Court : Gujarat
Reported in : AIR1981Guj190; (1982)1GLR204
order1. the facts giving rise to this revision application, briefly stated. are that respondent no. 1 filed an administration suit in the city civil court at ahmedabad being suit no. 262 of 1978 for the administration of the estate of deceased sugarabu kikabhai. in the said suit be joined his stepbrother asgarali and step-sisters amina and zenab as defendants nos. 1, 2 and 3.these three defendants filed written statements at exs. 25 and 26 contesting the suit he also joined his true sisters husena and nafisa an defendants nos 4 and 5 and they filed a supporting written statement ex. 37. by that written statement, they accepted the averments made in the plaint as correct and prayed that the estate of the deceased may be administered. defendant no. 6 abbasbhai also filed a contesting written statement to the suit. it appears that on the basis of the averments made in the pleadings of the parties the issues were settled at ex 42. the plaintiff thereafter entered the witness box and he was examined in-chief by his learned advocate and thereafter at the request of defendant no. 1 the learned advocate for defendants nos. 2 and 3 was called upon to cross-examine the plaintiff. it is necessary to point out that before the learned advocate for the defendants nos. 2 and 3 started to cross-examine the plaintiff, no request was made by defendants nos. 4 and 5 who were supporting the case of the plaintiff to permit them to put the questions to the plaintiff. the learned advocate for .....
Tag this Judgment!Court : Gujarat
Reported in : 2005(188)ELT257(Guj); (2005)3GLR1957
..... on application of the aforesaid tests also, in light of the findings recorded by the tribunal, it is not possible to state that coal handling plant is an item or an equipment which is either marketable or can be sold as it is or can be shifted without first dismantling or can be shifted frequently. ..... circular no.53/2/98-cx dated 2nd april 1998 issued by the central board was pressed into service to contend that excisability of plant and machinery assembled at site had to be determined in accordance with criteria laid down in the said circular. ..... '11.1 thus, the tribunal has not only distinguished the case of sirpur paper mills (supra), but found on facts that the activity of erection, fabrication and commissioning of coal handling plant is (1) an immovable property, (2) not goods, and not liable to excise duty, and (3) incapable of marketing i.e. ..... on facts, the tribunal has found, as already recorded hereinbefore, that coal handling plant cannot be marketed; it is immovable property and considering the large assembly of machinery, buildings and structures spread over vast area comprising mainly of wagon tripplers etc. ..... during course of its business activity, the petitioner company undertakes manufacture and supply of plant and machinery on the basis of what is known in common parlance as turn key projects. .....
Tag this Judgment!Court : Gujarat
Reported in : AIR1970Guj284
shah, j.1-6 x x x x x7. thus, although the plaintiff's theory that the oral agreement as set up in plaint para 2 was arrived at the very commencement of the transactions, namely, in year 1941, is not proved as such, in our opinion, the plaintiff has successfully shown a course of dealings and transactions between the parties that had taken place even since 1938 upto year 1952 when the parties fell out, presumably because of the differences in relation to the partnership business which was carried on between the plaintiff and the defendant in the name of wadia kiritsinh transport for which the plaintiff has filed regular civil suit no. 874 of 1963 for dissolution of partnership and accounts, that there was a sort of a peculiar over-all understanding between the parties in the matter arising out of a peculiar relation resulting in trust and confidence in each other, as we shall presently see, while delaing with the question of limitation.8. mr. mehta's contention on the point of limitation is that the transactions between the plaintiff and the defendant were distinct transactions falling under four distinct heads: (i) for the price of goods sold and delivered where no fixed period of credit was agreed upon: (ii) for the price of work done by the plaintiff for the defendant at his request, where no time had been fixed for payment; (iii) for money payable for money lent; and (iv) for money payable to the plaintiff for money paid for the defendant, respectively covered by article .....
Tag this Judgment!Court : Gujarat
Reported in : AIR1971Guj178; (1971)0GLR570
1. this appeal is directed against the appellate judgment and decree in regular civil appeal no. 41 of 1961 decided by mr. d. a. desai, district judge, baroda.2. the facts of the case briefly stated are as under.3. the defendant no. 1 owned a piece of land in the wadi locality of the city of baroda. he farmed out plots in that piece of land and started selling them as building sites. there were several rows of plots known as a, b, c and so on. row c contained 10 plots which were numbered as c10. on 26th august 1958 the plaintiff entered into an agreement of sale with the defendant no. 1 for purchasing plot c-5. the defendant no. 1 agreed to sell it to her for a sum of rs. 326.25 p. the agreement of sale is evidenced by receipt of payment ex. 43 under which on 27th august 1958 the plaintiff paid to the defendant no. 1 a sum of rs. 51/- as earnest money. on 3rd march 1959 the balance of rs. 275.25 p. was paid by the plaintiff to the defendant no. 1. it is the plaintiff's case that thereafter the defendant no. 1 did not execute the sale-deed in spite of the plaintiff's attempts to get it executed by him. the plaintiff, therefore, filed regular civil suit no. 1252 of 1959 in the court of the civil judge (senior division) at baroda for obtaining decree for specific performance of the said agreement.4. the defendant no. 1 filed his written statement. he contended that though he had farmed out the plots and numbered them it was only a provisional lay-out because it was subject to .....
Tag this Judgment!Court : Gujarat
Reported in : (1971)12GLR421
j.m. sheth, j.1. this is a revision petition filed by the original defendants under section 29(2) of the bombay rents, hotel and lodging house rates control act, 1947 (which will be hereinafter referred to as 'the act').2. the facts leading rise to this revision petition, briefly stated are as under:the opponents-landlords filed civil suit no. 488 of 1962 against the petitioners in the court of the civil judge, junior division, petlad, for recovery of arrears of rent and possession of the suit premises. the suit premises consist of an open land bearing city tika no. 10/1 and survey no. 116 and a part of survey no. 123, situate near kasyabhai,s utara in petlad, district kaira. the opponents' case was that they want the suit premises for their personal use and occupation. they required the suit premises reasonably and bona fide for their personal use and occupation. they are doing business in petlad under the name and style of harilal bhikhabhai & co. they have got business also at ahmedabad, ranoli, navli, etc. they are purchasing goods at petiad for those businesses and consequently, they are required to be stored at petiad they have also got cars ard consequently, a garage is necessary for keeping those cars, some of which are kept at petlad. they, therefore, require the suit premises which consist of an open land for constructing a godown and a garage for the aforesaid purposes and thereby they want to occupy them for themselves.3. the petitioners challenged the aforesaid .....
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