SCA/9100/2008 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9100 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================= = 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 ? ========================================= = SHANABHAI LAVJIBHAI PATEL & 1 - Petitioner(s) Versus HARIBHAI MAFTLAL PANDYA & 4 - Respondent(s) ========================================= = Appearance : MR SP MAJMUDAR for Petitioner(s) : 1 – 2. MR VIMAL A PUROHIT for Petitioner(s) : 1 - 2. NOTICE SERVED BY DS for Respondent(s) : 1 - 5. MR SUNIL L MEHTA for Respondent(s) : 1 - 5. ========================================= = CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 27/08/2008 ORAL JUDGMENT 1. RULE. Mr Sunil L. Mehta waives service of rule on behalf SCA/9100/2008 2/3 JUDGMENT of the respondents. 2. With the consent of the learned advocates appearing on behalf of the respective parties, the present Special Civil Application is taken for final hearing today. 3. By way of this petition under Article 227 of the Constitution of India, the petitioners-original defendants nos. 2 and 3 have prayed for an appropriate writ, order or direction quashing and setting aside the order passed by the learned Additional Sessions Judge & Fast Track Court No. 1, Gandhinagar below Exh. 14 dated 3rd July, 2008 in Civil Miscellaneous Appeal No. 31/2008. 4. In an appeal preferred by the petitioners-original defendants nos. 2 and 3 against the order passed by the learned trial Court below Exh. 5, the respondents-original plaintiffs submitted an application before the learned appellate Court, before whom the appeal is pending for execution of the order passed below Exh. 5, to grant police protection and the learned appellate Court directed the petitioners-original defendants nos. 2 and 3 to comply with the order passed below Exh. 5 in exercise of powers under Section 151 of the Civil Procedure Code granting police protection without deciding the appeal, which was against the very order passed below Exh. 5. Apart from the fact that such an application at the instance of the respondents-original plaintiffs in the said appeal whether can be maintainable or not, when the appeal itself was against the order passed below Exh.5, The learned appellate Court was not justified in passing the impugned order without deciding the appeal on merits. The SCA/9100/2008 3/3 JUDGMENT learned appellate Court could not have exercised powers under Section 151 of the Civil Procedure Code while passing the order below Exh. 5. The impugned order passed by the learned appellate Court cannot be sustained and it is required to be quashed and set aside. 5. However, as the appeal, against the order below Exh. 5, is still pending, appropriate direction is required to be issued directing the learned appellate Court to decide and dispose of the appeal as expeditiously as possible. 6. For the reasons stated hereinabove, the petition succeeds. The impugned order passed by the learned appellate Court below Exh. 14 dated 3rd July, 2008 in Civil Miscellaneous Appeal No. 31/2008 is hereby quashed and set aside without expressing any opinion on merits in favour of either parties. As the appeal against Exh. 5 is still pending, the learned appellate Court is directed to decide and dispose of the same within a period of six months from today, without fail. 7. With this, the present Special Civil Application is disposed of. Rule is made absolute to the aforesaid extent. There shall be no order as to costs. (M.R. SHAH, J.) siji