SCA/9464/2008 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9464 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 ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= NAZIRKHAN AMINKHAN PATHAN - Petitioner Versus ARTIBEN VYAS OR HER SUCCESSOR IN OFFICE & 1 - Respondents ========================================================= Appearance : MR ASHISH M DAGLI for Petitioner. MR AR THACKER for Respondent No. 1. DS AFF.NOT FILED (R) for Respondent No. 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 02/09/2008 ORAL JUDGMENT 1. By way of this petition under Article 227 of the Constitution of India, petitioner–original plaintiff has prayed for an appropriate writ, order or direction, SCA/9464/2008 2/8 JUDGMENT quashing and setting aside the judgment and order passed by the learned Additional District Judge, Junagadh passed in Civil Misc.Appeal No.37 of 2008 dated 1.7.2008 and to confirm and/or restore the order passed by the learned trial court passed below Exh.5 dated 2.6.2008 in Regular Civil Suit No.26 of 2008. 2. Petitioner-plaintiff had instituted Regular Civil Suit No.26 of 2008 in the Court of learned Senior Civil Judge, Mangrol for declaration and permanent injunction submitting that he is the tenant of the respondent No.2- trust since many years and the respondent No.2 trust in connivance with the Mamlatdar of Mangrol made an attempt to forcibly evict him by taking law in his hand and as the compound wall was demolished and as earlier he had filed Regular Civil Suit No.18 of 2008 before the Mangrol Court which was withdrawn with a liberty to file a fresh and accordingly another Regular Civil Suit No.104 of 2008 was filed before the Junagadh Court. However, it was prima facie found by the learned court that suit under Section 28 of the Rent Act would lie and therefore the petitioner instituted the aforesaid Regular SCA/9464/2008 3/8 JUDGMENT Civil Suit No.26 of 2008. It was submitted that, at the time when the suit was filed, the respondent No.1 started demolition the wall and thereafter Rojkam was made, and though an oral undertaking was given to the Court not to disturb the possession of the petitioner and to maintain the status-quo of the property, under the police protection on 26.4.2008 high handedly the possession was disturbed and therefore the petitioner submitted an application for interim mandatory injunction below Exh.5 on 9.5.2008. Initially prohibitory injunction was sought. However, as the possession of the petitioner was disturbed, and forcibly possession was taken, petitioner prayed for mandatory injunction. The learned trial court partly allowed the application Exh.5 granting mandatory injunction directing the defendants to hand over the possession of the disputed property to the plaintiff within 15 days and further restrained the defendants from obstructing and/or interfering with the possession of the plaintiff. However, reserving the liberty to the defendants to take possession in accordance with law. 2.1 Being aggrieved and dissatisfied with the order SCA/9464/2008 4/8 JUDGMENT passed by the learned Senior Civil Judge, Mangrol dated 2.6.2008 passed below Exh.5 in Regular Civil Suit No.26 of 2008, the respondents herein-original defendants preferred Civil Misc. Appeal No.37 of 2008 and the learned Additional District Judge & Presiding Officer, 4th Fast Track Court, Junagadh by the impugned judgment and order dated 1.7.2008 allowed the said appeal quashing and setting aside the order passed below Exh.5 directing the parties to maintain status-quo and reserving the liberty in favour of the petitioner to enter the suit premises for maintenance of the plants, trees etc. 2.2 Being aggrieved and dissatisfied with the order passed by the learned Additional District Judge & Presiding Officer, 4th Fast Track Court, Junagadh dated 1.7.2008 passed in Civil Misc. Appeal No.37 of 2008, petitioner-plaintiff has preferred present petition under Article 227 of the Constitution of India. 3. Respondent No.1 is on caveat. After hearing the learned advocates appearing on behalf of the respective parties for admission as well as for interim relief, this SCA/9464/2008 5/8 JUDGMENT Court passed the following order on 30th July, 2008. “Heard the learned advocate appearing on behalf of the respective parties for admission as well as for interim relief. RULE, returnable on 13/8/2008. To be placed in First Board. Mr.A.R. Thacker, learned advocate waives the service of notice of admission on behalf of the respondent No.1. Considering the finding of the trial court that the petitioner was tenant of the property in question and seems to be dispossessed during intervening period of filing two suits, by way of interim order, further execution, operation and implementation of the impugned judgment and order dtd.1/7/2008 passed by the learned Additional District Judge and Presiding Officer, FTC No.4, Junagadh in Civil Misc.Appeal No.37 of 2008 is hereby stayed and the order dtd.2/6/2008 passed by the learned Principal Senior Judge, Mangrol below application Ex.5 in Regular Civil Suit No. 26 of 2008 is restored on condition that the petitioner shall not transfer, alienate the property in question and/or induct anybody in SCA/9464/2008 6/8 JUDGMENT the property in question and shall not change the property in question, in any manner whatsoever till final disposal of the present Special Civil Application. D.S. Permitted.” 4. It is reported that pursuant to the interim order passed by this Court dated 30.7.2008, the possession of the suit property is restored to the petitioner-plaintiff. 5. Heard the learned advocates appearing for the respective parties and gone through the order passed by the learned trial court passed below Exh.5 as well as the judgment and order passed by the learned appellate court. It appears that the petitioner-plaintiff was in occupation and possession of the suit property and he instituted the aforesaid suit and forcibly the possession was taken from the petitioner plaintiff. It appears that the possession of the plaintiff was disturbed and taken without following due procedure of law and high handedly. Considering the above, the learned trial court was justified in granting the mandatory injunction SCA/9464/2008 7/8 JUDGMENT directing the respondents to hand over the possession back to the petitioner plaintiff. The learned appellate court has committed an error in holding that no case for mandatory injunction was made out. It is required to be noted that even the learned appellate court has also passed an order that petitioner-plaintiff will be entitled to enter the suit premises to protect his tenancy right and for the protection of the flowers, plants etc. Thus, the learned appellate court was not justified in upsetting the order passed by the learned trial court passed below Exh.5 granting mandatory injunction. 6. For the reasons stated above, the petition succeeds and the impugned judgment and order passed by the learned Additional District Judge, Junagadh passed in Civil Misc.Appeal No.37 of 2008 dated 1.7.2008 is hereby quashed and set aside and the order passed by the learned trial court passed below Exh.5 is restored on condition that the petitioner-plaintiff shall not transfer and/or alienate the property in question and/or induct anybody in the property in question and shall not change the property in question in any manner whatsoever till the SCA/9464/2008 8/8 JUDGMENT final disposal of the suit. 7. Rule is made absolute accordingly to the aforesaid extent. There shall be no order as to costs. ( M.R. SHAH, J. ) syed/