Gujarat High Court
Maniben Wd/O Amrabhai Naranbhai And ... vs Dharmesh Manilal Patel on 30 September, 2010
Author: Ravi R.Tripathi
Bench: Ravi R.Tripathi
AO/306/2010 1/7 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL FROM ORDER No. 306 of 2010
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MANIBEN WD/O AMRABHAI NARANBHAI AND OTHERS
Versus
DHARMESH MANILAL PATEL
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Appearance :
MR PERCY KAVINA, SR. ADVOCATE with MR H A SHAH for the Appellants
MR VM PANCHOLI for the Opponent
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CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI
Date : 30/09/2010
ORAL ORDER
1. Original defendants in Special Civil Suit No.647 of 2010, are before this Court. The suit was filed on 15.9.2010 before the Court of Principal Civil Judge (S.D.), Ahmedabad (Rural). The learned Judge, on the date of filing of the suit, did not deem it necessary to pass any interim order and thought that it will be in the interest of justice to issue notice and, therefore, issued notice returnable on 17.9.2010. On 17.9.2010, an application was given by learned advocate for the defendants for granting time to file written statement. It is stated at the bar that, that application was granted.
2. Soon after, learned advocate for the plaintiff filed an application Exh.12, stating therein that, 'as the defendants have not filed any reply (written statement), we, the plaintiff, be granted the injunction as prayed for'. On this Exh.12, learned advocate for the defendants made an endorsement that, 'injunction which was prayed for, that application is rejected by the Court and while rejecting that application, the AO/306/2010 2/7 ORDER Court has granted 10 days' time to file appeal, therefore, on the same subject matter, in the second suit, injunction cannot be asked for and if such injunction is granted, that will cause serious damage to the original owners of the land and our ownership rights are going to be adversely affected, therefore, no order be passed on this application.' On this application, the learned Judge passed the following order:
"Read the plaint. Read Exh.5 application. Read the endorsement. Looking to the facts and circumstances and in the interest of justice, parties are directed to maintain status quo of the suit property till filing of the written statement."
3. Learned senior advocate Mr. Kavina with Mr. H.A. Shah submitted that filing of Exh.12 and obtaining a direction of maintaining the status-quo, may be 'till filing of the written statement', is nothing but a clear 'abuse of the process of Court' inasmuch as the very plaintiff earlier filed a suit, being Regular Civil Suit No.15/2010. In that suit, when the plaintiff failed to obtained an order of injunction, the plaintiff deemed it proper to file second suit and in that, though initially, the Court deemed it proper to issue notice, and thereafter without recording any reasons for any prejudice being caused to the rights of the plaintiff, the learned Judge has passed the order directing the present appellants-original defendants to maintain the status-quo till filing of the written statement. The learned senior advocate submitted that this is nothing but AO/306/2010 3/7 ORDER passing an order by circumventing the provisions of law, which requires a learned Judge to pass an interim order at the initial stage of filing of the suit after recording reasons for the same. The learned Judge did not grant any interim injunction at the initial stage, i.e. on 15.9.2010. The learned Judge deemed it proper to issue short notice and therefore, the notice was issued returnable on 17.9.2010. On 17.9.2010, an adjournment was sought and granted. The learned Judge after having granted adjournment passed an order, which is under challenge, on Exh.12, whereby he circumvented the provisions of law under which reasons are required to be assigned while granting interim order. The only reason for which the present order is passed, is that, 'defendants sought time'. Otherwise, the learned Judge was required to record reasons or the circumstances, in which at initial stage, an ex-parte injunction was required to be granted.
4. The learned senior advocate for the appellants also invited attention of the Court to an order passed below Exh.6 in Regular Civil Suit No.15 of 2010, a copy of which is produced at page 24 to 34, it is dated 7.9.2010. Against this order, the learned Judge while passing this order granted 10 days' time to file an appeal and before those 10 days could expire, second suit is filed on 15.9.2010. By filing this second suit, the plaintiff has played double innings in the same subject matter. Having failed in first suit in obtaining desired order of injunction, he filed second suit and in that, though at the initial stage, the learned Judge did not grant an injunction, on the ground that time is prayed by the defendants to file written statement, injunction is granted..
AO/306/2010 4/7 ORDER 5. Learned advocate Mr. Pancholi appearing for the
opponent herein filed an affidavit-in-reply and argued that the plaintiff is within his rights to file second suit and submitted that the appellants ought to have filed written statement and ought to have proceeded with the hearing of the suit rather than approaching this Court against the order passed below Exh.12. This submission cannot be accepted for the simple reason that this Court is of the considered opinion that the learned Judge has tried to avoid assigning reasons for granting the injunction and has erred in granting injunction knowing well that in a suit filed only for the purpose of injunction, the plaintiff of the present suit has failed to obtain any order of injunction.
6. The learned advocate for the opponent relied upon a decision of the Hon'ble the Apex Court in the matter of M/S. BENGAL WATERPROOF LTD. vs. M/S. BOMBAY WATERPROOF MANUFACTURING COMPANY AND ANOTHER reported in AIR 1997 SC 1398. The learned advocate referred to the observation made by the Hon'ble the Apex Court in para 6.
The aforesaid decision of the Hon'ble the Supreme Court will not have any application to the present case for the reason that it is not a question as to whether the plaintiff can file a second suit or not?. The question which is required to be attended by this Court is as to whether the learned Judge was justified in passing an order in the manner in which he has passed. This Court is not pronouncing as to whether second suit can be filed or not?
AO/306/2010 5/7 ORDER
7. The learned advocate for the opponent next relied upon a decision of Punjab and Haryana High Court in the matter of HARBANS SINGH AND OTHERS vs. MOHINDER SINGH AND OTHERS reported in AIR 2003 Punjab and Haryana 294, wherein, Punjab and Haryana High Court was considering as to whether bar under Order 2 Rule 2 will be applicable to a suit which is filed subsequent to the filing of first suit. First suit was filed praying for permanent injunction restraining the defendants from alienating the suit property, whereas the subsequent suit was filed for specific performance of the agreement to sell. Punjab and Haryana High Court while dealing with this question, took note of the fact that the date of execution of the sale deed agreed between the plaintiff- respondent No.1 and defendants- respondent Nos.2 to 4 in the agreement to sell Exh.P1, was 12.2.1986 as has been pointed out by the Trial Court in the opening para of its judgment and, therefore, on 30.1.1986, the cause of action of filing the suit for specific performance of the contract was not available because the sale deed still could have been executed on 12.2.1986.
In the present case, the period prescribed in the agreement to sell has already expired and, therefore, on that short ground, it can be held that the said decision is of no help to the opponent herein- original plaintiff. Besides, in the present case, the case of the opponent is that until he filed first suit, there was no denial from the present appellants- original defendants in the second suit and also in the first suit and, therefore, initially, the present opponent- original plaintiff deemed it proper to file a suit for injunction and not for specific performance.
AO/306/2010 6/7 ORDER This Court has no reason to restrain itself from inferring that this exercise was only with a view to play two innings in the same subject matter and therefore also, the present Appeal from Order is required to be entertained.
8. The learned advocate for the opponent-original plaintiff next relied upon the decision of the Hon'ble the Apex Court in the matter of MAHARWAL KHEWAJI TRUST (REGD.) FARIDKOT vs. BALDEV DASS, reported in AIR 2005 SC 104 and submitted that the Hon'ble the Apex Court has held that it is obligatory for the Appellate Court to see that status-quo is maintained of the property during pendency of litigation and Court should not allow the changes of status-quo.
It is settled legal position that so far as the property is concerned, if it is in litigation, status-quo qua that property be maintained. Again, what is required to be considered by this Court is as to whether it is proper on the part of the learned Judge to pass an order and grant a relief to a party to whom that relief is not granted at the initial stage and the relief, which was granted in the first suit, is already vacated by order dated 7.9.2010 and it is only after that order is passed, that second suit is filed.
In view of that, the aforesaid decision does not render any help to the opponent.
9. In view of the aforesaid discussion, the matter requires consideration.
AO/306/2010 7/7 ORDER
ADMIT.
Learned advocate Mr. V.M. Pancholi waives service of process of admission.
(RAVI R.TRIPATHI, J.) nomkar