Gujarat High Court
Navinchandra vs Kamlesh on 8 August, 2008
Author: M.R. Shah
Bench: M.R. Shah
Gujarat High Court Case Information System
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AO/340/2007 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL
FROM ORDER No. 340 of 2007
WITH
CIVIL
APPLICATION No. 12273 of 2007
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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NAVINCHANDRA
NANALAL KIKLAWALA - Appellant(s)
Versus
KAMLESH
BABULAL KARNAVAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
VIMAL M PATEL for
Appellant(s) : 1,
MR JR SHAH for Respondent(s) : 1,
MR SAURABH
G AMIN for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 08/08/2008
ORAL
JUDGMENT
Present Appeal From Order under Order 43 Rule 1 of the Code of Civil Procedure is by the appellant ? original defendant No.2 challenging the order dtd.29/5/2007 passed by the learned Principal Senior Civil Judge, Dahod below application Ex.5 in Special Civil Suit No. 6 of 2007 in allowing the same.
The respondent No.1 ? original plaintiff has instituted Special Civil Suit No. 6 of 2007 for specific performance of the Agreement-to-sell and also for permanent injunction against the appellant ? original defendant No.2 and respondent No.2 ? original defendant No.1. The dispute is in respect to land bearing Final Plot No. 9/3 area ad-measuring 6175.62 sq.mtrs. to the extent of 40% of the undivided share of the original defendants. In the application Ex.5 it was prayed to restrain the defendants from transferring the property in question. An ex-parte injunction was granted by the learned trial court vide order dtd.14/2/2007.
The appellant appeared before the trial court and sought time to file reply. On the other hand, the original plaintiff filed application for extension of the injunction order as well as application for extension of time for payment of court fees and the time was granted and the ex-parte injunction was extended from time to time. It appears that the original plaintiff paid court fees of Rs.15,000=00 on 9/5/2007. It appears that the appellant ? defendant No.2 submitted application Ex.26 dtd.11/5/2007 seeking time and the learned trial court rejected the said application on the ground that sufficient time was granted and urgent hearing was necessary. It appears that the trial court proceeded with the hearing of application Ex.5 on 25/5/2007 and the appellant submitted another application Ex.27 on the very day seeking time to give reply to the injunction application. However, the learned trial court heard the application Ex.5 ex-parte and passed an order that the plaintiff is heard and the matter is kept for hearing on 28/5/2007. That on 28/5/2007 the appellant submitted application Ex.29 inter-alia praying to reject the suit on the grounds stated in the application and on the said application the trial court issued notice and fixed it for hearing. The appellant submitted application Ex.30 to adjourn the hearing of application Ex.5 and to first hear the application seeking rejection of the suit and the said application Ex.30 came to be rejected by the trial court vide order dtd.28/5/2007. It is the case on behalf of the appellant that though the ex-parte injunction was continued in favour of the plaintiff, the trial court was keen to go on with the application Ex.5 by not giving sufficient time to the appellant, the appellant submitted application at Ex.31 dtd.28/5/2007 requesting to postpone the hearing of application Ex.5 as he wants to make an application before the District Judge for transfer of the suit and the trial court kept the said application for orders on the next day and the said application Ex.31 came to be rejected. Thereafter, the appellant submitted an application before the learned District Judge to transfer the suit to another court on 29/5/2007 and in fact the learned District Jude on the said application passed an order to call for record and proceedings and directed the registrar to produce record and proceedings in the Court with immediate effect. The said transfer application was numbered as Transfer Application No.16 of 2007. Inspite of the above, the learned trial court passed the impugned order below application Ex.5 on 29/5/2007, allowing the said application ex-parte. Being aggrieved by and dissatisfied with the order dtd.29/5/2007 passed below application Ex.5 in Special Civil Suit No. 6 of 2007, the appellant ? original defendant No.2 has preferred present Appeal From Order.
Mr.Vimal Patel, learned advocate appearing on behalf of the appellant has vehemently submitted that the impugned order passed by the trial court below application Ex.5 is an ex-parte order and the same is in breach of the principles of natural justice. It is also further submitted by him that as such the learned trial court was on transfer and inspite of the fact that the transfer application was already submitted by the appellant and even the learned District Judge passed order dtd.29/5/2007 directing to call for the record and proceedings of the case immediately, the learned trial court ought not to have proceeded further with the application Ex.5 and ought not to have passed the impugned order. It is submitted that as such the ex-parte injunction was already in operation in favour of the original plaintiff and therefore, there was no need to make hurry or there was no reason for the trial court to proceed further with the hearing of application Ex.5 ex-parte. Therefore, it is requested to allow present Appeal From Order and remand the matter to the trial court for deciding the application Ex.5 afresh.
Learned advocate appearing on behalf of the original plaintiff has submitted that sufficient time was granted to the appellant to file reply and considering Order 39 of the Code of Civil Procedure and the application Ex.5 is required to be decided and disposed of within a period of 30 days when ex-parte injunction has been granted and therefore, the learned trial court has not committed any error and/or illegality in proceedings further with the hearing of application Ex.5 and therefore, it is requested to dismiss the present Appeal From Order.
Having heard the learned advocate appearing on behalf of the respective parties it appears that the ex-parte ad-interim injunction was granted by the trial court on 14/2/2007 and the same was extended from time to time. It appears that the learned trial court was on transfer in the month of May, 2007 and prima facie it appears that the learned trial court did not grant sufficient time to the appellant to submit reply to the application for injunction. Even on the application submitted by the appellant before the learned District Court under sec.24 of the Code of Civil Procedure to transfer the proceedings from the court of learned Principal Senior Civil Judge to another Court and even the learned District Judge passed the order dtd.29/5/2007 directing to call for record and proceedings of the case immediately, still the learned trial court passed the impugned order below application Ex.5 ex-parte and allowed the said application without hearing the appellant. When the learned District Judge was seized with the matter by way of transfer application and when ex-parte injunction was already in operation in favour of the original plaintiff, the learned trial court ought to have waited at least till the outcome of the transfer application. By not granting time and/or not waiting till outcome of the transfer application, it appears that the trial court has disposed of the application Ex.5 hurriedly, more particularly when he was on transfer to Surat. Justice not only done, but it should be seen to have been done. Under the circumstances, the impugned order passed by the trial court below application Ex.5 requires to be quashed and set aside and the matter is to be remanded to the trial court for deciding the application Ex.5 afresh in accordance with law and on merits and after hearing all the concerned and until then the ex-parte ad-interim injunction granted by the trial court vide order dtd.14/2/2007 is to be continued.
For the reasons stated above, Appeal From Order succeeds. The impugned order dtd.29/5/2007passed by the trial court below application Ex.5 in Special Civil Suit No. 6 of 2007 is hereby set aside and the matter is remanded to the trial court for deciding the application Ex.5 afresh in accordance with law and on merits, after hearing all the concerned without in any way being influenced by the present order, within a period of three months from today. Until the application Ex.5 is heard, decided and disposed of, ex-parte injunction dtd.14/2/2007 granted by the trial court, be continued. It is observed that this court has not expressed any opinion on merits in favour of either parties and the impugned order is quashed and set aside and the matter is remanded as the impugned order is an ex-parte order. In the facts and circumstances of the case, there shall be no order as to costs. In view of disposal of the Appeal From Order, no order in Civil Application.
[M.R. SHAH, J.] rafik Top