Gujarat High Court
Pradhyumansinh Bhavubha Jadeja vs L/H Of Deceased Sitaba Girvansinh Gohil on 27 September, 2019
Author: A. P. Thaker
Bench: A. P. Thaker
C/CRA/400/2019 IA ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2019
In
R/CIVIL REVISION APPLICATION NO. 400 of 2019
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PRADHYUMANSINH BHAVUBHA JADEJA Versus L/H OF DECEASED SITABA GIRVANSINH GOHIL ================================================================ Appearance:
MR. HARDIK J JANI for the PETITIONER(s) No. for the RESPONDENT(s) No. VISHAL S AWTANI for the RESPONDENT(s) No. ================================================================ CORAM: HONOURABLE DR.JUSTICE A. P. THAKER Date : 27/09/2019 IA ORDER
1. This application has been preferred by the applicants with the following prayers.
(A) YOUR LORDSHIPs may be pleased to take serious note of the breach of interim order and direction of this Hon'ble Court including to initiate contempt of court proceedings and further be pleased to quash and set aside the impugned order dated 19.09.2019 below Exhibit - 77, passed in Regular Civil Suit No.46 of 2016 by the Ld. Principal Senior Civil Judge, Dhandhuka and further be pleased to direct the respondents herein (Orig. Plaintiffs) to refund the amount of cost of Rs.2500/- to the applicants (Orig. Defendants) forthwith.
(B) YOUR LORDSHIPs may be pleased to direct the Learned Trial Court to obey and respect the interim order dated 18.09.2019 passed by this Hon'ble Court in Civil Revision Application No.400 of 2019, in true spirit and sense without fail.
(C) Pending admission, hearing and final disposal of this application, YOUR LORDSHIPs may be pleased to stay the impugned order dated 19.09.2019 below Exhibit-77, passed in Regular Civil Suit No.46 of 2016 by the Ld. Principal Senior Page 1 of 5 Downloaded on : Sat Sep 28 23:15:35 IST 2019 C/CRA/400/2019 IA ORDER Civil Judge, Dhandhuka and further be pleased to direct the respondents herein (Orig. Plaintiffs) to refund the amount of cost of Rs.2500/- to the applicants (Orig. Defendants) forthwith.
(D) Be pleased to pass such other and further appropriate orders deemed fit and proper by this Hon'ble Court in the interest of justice.
2. Heard Mr.Hardik Jani, learned advocate for the applicants and Mr.Vishal Awtani, learned advocate for the respondents. Perused the materials placed on record.
3. Learned advocate for the applicants has submitted that they have preferred captioned civil revision application challenging the order dated 24.04.2019 below Exhibit 46 passed by the learned Principal Senior Civil Judge, Dhandhuka in Regular Civil Suit No.467 of 2016 whereby the application of the present applicants for rejection of plaint under Order 7 Rule XI of the Code of Civil Procedure, 1908 (hereinafter be referred to as "the Code") came to be dismissed. He has submitted that against the said order, this Court has passed the order on 18.09.2019 permitting the applicants to file adjournment application in the suit and further directed the Trial Court to consider the same in right spirit and observed that the respondents have no resistance to that. He has submitted that the applicants herein have moved an application for adjournment vide Exhibit 77 in the aforesaid suit along with the copy of interim order dated 18.09.2019 passed by this Court. He has further submitted that the learned Principal Senior Civil Judge has not only rejected the adjournment application but also imposed the cost of Rs.2500/- in favour of the plaintiffs i.e. respondents herein. He has submitted that the applicants have also moved application below Exhibit 78, praying for accommodation to deposit the cost awarded by the Court which was also not considered and the applicants were forced to deposit the cost on the same day.
4. While referring to the order passed by this Court in civil Page 2 of 5 Downloaded on : Sat Sep 28 23:15:35 IST 2019 C/CRA/400/2019 IA ORDER revision application, learned advocate for the applicants has urged that the Trial Court has not followed the order of this Court and committed serious error of facts and law and it amounts to over reaching the order of this Court. He has prayed to stay the impugned order dated 19.09.2019 passed below Exhibit 77 in Regular Civil Suit No.46 of 2016.
5. Per contra, learned advocate for the respondents has submitted that the applicants may be permitted to cross-examine the original plaintiffs and the matter may be heard and there is no interim order staying both the orders thereof.
6. In response, learned advocate for the applicants has submitted that in view of the decision of the Bombay High Court in the case of Kishor Bhikansingh Rajput Vs. Preeti Kishor Rajput, 2007 (3) Bom.C.R. 279, the order of subordinate Court is totally perverse as it is totally ignored the order of this Court as when the High Court is ceased of the matter, it is expected of the subordinate court to stay till further order to be passed by the High Court. He has prayed to allow the present application.
7. In the case of Kishor Bhikansingh Rajput (supra), it has been held and observed in para-8 as under:-
"8. Normally, when this Court is ceased of the matter, it is expected of the subordinate courts to stay their hands away. It is difficult to understand as to what was an alarming urgency to proceed further and dismiss the petition when the learned Judge of the Family Court was very well aware that the order dated 15th September 2006 was challenged before this Court by the present petitioner. No doubt, that the learned Family Court is right in observing that there was no stay by this Court. But as a matter of propriety and when the learned Judge was very much aware about pendency of the petition before this Court, the learned Judge ought to have stayed his hands away and waited till further orders to be passed by this Page 3 of 5 Downloaded on : Sat Sep 28 23:15:35 IST 2019 C/CRA/400/2019 IA ORDER Court. In that view of the matter, I am inclined to allow the petition."
8. Having considered the factual aspects of the case, it is an admitted fact that the applicants herein have filed the aforesaid captioned civil revision application against the order of rejection of application of the present applicants under Order 7 Rule XI of the Code by the Trial Court. In captioned civil revision application, this Court has, initially, not granted any stay and notice came to be issued and thereafter, it was adjourned time and again. On 18.09.2019, the Coordinate Bench of this Court has passed the following order.
"When the matter is taken up for hearing, learned advocate for the respondents has submitted that despite the fact that the matter is pending before this Court, the trial court is not accommodating. As a result of this, the applicants be permitted to apply for adjournment before the court concerned.
In view of the above, as and when such application is made, the trial court to consider the same in right spirit, particularly when the learned advocate for the applicants has no resistance.
Stand over to 22.10.2019.
Direct service is permitted."
9. It appears that no stay has been granted in favour of the applicants. Therefore, the prayer made in the present application to stay the impugned order dated 19.09.2019 below Exhibit-77, passed in Regular Civil Suit No.46 of 2016 by the Learned Principal Senior Civil Judge, Dhandhuka is devoid of merits, as if that prayer is granted then it amounts to allowing the civil revision application without affording any opportunity to the otherside.
10. So far as the order below Exhibit-77 is concerned, it appears that the otherside has raised objection for granting that order and the Trial Court has imposed the cost of Rs.2500/- to the applicants Page 4 of 5 Downloaded on : Sat Sep 28 23:15:35 IST 2019 C/CRA/400/2019 IA ORDER (Orig. Defendants) considering the fact that the plaintiffs have incurred travel expenses with condition of depositing the amount the application is granted and directed the defendants to cross- examine the plaintiffs on 25.10.2019. It is well settled law that mere pendency of the matter before the Higher Forum wherein no stay is granted, the Trial Court cannot stay the proceedings. However, at the same time, it is excepted of the Trial Court that it should keep away and wait for some time to enable the party to get necessary order from the Higher Forum.
11. Considering the facts and circumstances of the case, the impugned order below Exhibit 77, so far as directing the applicants to cross-examine the plaintiffs on 25.10.2019 is concerned, the same is required to be stayed. However, the order regarding depositing of Rs.2500/- is concerned, it will be subject to the final outcome of the civil revision application.
12. With the aforesaid observations, the present application is partly allowed to the effect that the order of payment of cost will be subject to the final outcome of Civil Revision Application No.400 of 2019, whereas, the order directing the applicants to cross-examine the plaintiffs on 25.10.2019 is hereby stayed.
13. The application stands disposed of. The Civil Revision Application No.400 of 2019 be listed for hearing as per seriatim. Direct service is permitted.
(A. P. THAKER, J) V.R. PANCHAL Page 5 of 5 Downloaded on : Sat Sep 28 23:15:35 IST 2019