AO/44820/2007 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 448 of 2007 With CIVIL APPLICATION No. 15466 of 2007 In APPEAL FROM ORDER No. 448 of 2007 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 ? ========================================= = ANSUYABEN HIMMATSINH PARMAR & 5 - Appellant(s) Versus HEMANT RAMVILAS JAIN & 1 - Respondent(s) ========================================= = Appearance : MRS KETTY A MEHTA for Appellant(s) : 1 - 6. MR AMIT V THAKKAR for Respondent(s) : 1, None for Respondent(s) : 2, ========================================= = CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 14/10/2008 ORAL JUDGMENT AO/44820/2007 2/5 JUDGMENT 1. ADMIT. Shri Amit Thakkar, learned advocate waives service of notice of admission on behalf of respondent no.1- original plaintiff. 2. Ms Mehta, learned advocate appearing on behalf of the appellants seeks permission to delete respondent no. 2-original defendant no. 1 so far as the present Appeal from Order is concerned. 3. With the consent of the learned advocates appearing on behalf of the respective parties, the Appeal from Order is taken up for final hearing today. 4. In the present Appeal from Order, the appellants herein- original defendants no. 2 to 7 have prayed for an appropriate order to quash and set aside the order passed by the learned 3rd Additional Senior Civil Judge and Judicial Magistrate First Class, Surat dated 06/11/2006 below Exh. 5, 47 and 82 in Special Civil Suit No. 75/2004 by which the learned trial Court has granted interim injunction against respondent no. 1- original plaintiff and appellants nos. 1 to 3-original defendants nos. 1 to 3 with respect to the suit property and they are directed to maintain status quo till final disposal of the suit. 5. Ms Mehta, learned advocate appearing on behalf of the appellants has vehemently submitted that the respondent- original plaintiff no. 1 is claiming the right on the basis of satakhat executed on behalf of original defendant no. 1, Shri Kedar Sumerchand Sharma and the said Shri Kedar Sumerchand Sharma-original defendant no. 1 was claiming the right on the basis of satakhat executed by original defendant AO/44820/2007 3/5 JUDGMENT no. 3. However, originals of satakhat were not coming forthwith and, therefore, applications, Exhs. 5, 47 and 82 were submitted before the learned trial Court. It is also further submitted by her that even in the criminal proceedings, original defendant no. 1, Kedar Sumerchand Sharma was arrested and his statement was recorded and an application, Exh. 12 was submitted by the appellants-original defendants nos 2 to 7 to bring on record the statement of Shri Kedar Sumerchand Sharma, which according them would fortify their case to the effect that such a satakhat was not in existence at all. It is submitted by her that without deciding those applications, the learned trial Court has decided the application, Exhs. 5, 47 and 82. It is further submitted by Ms. Mehta, learned advocate appearing on behalf of the appellants that subsequently, the learned trial Court has passed an order below Exhs. 12, 45 and 81 and all those applications are allowed and the statement of Shri Kedar Sumerchand Sharma, recorded by the police, has been brought on record. It is also further submitted that while allowing Exhs. 45 and 81, the learned trial Court has passed an order directing the respondent-original plaintiff no. 1 and appellant no. 1-original defendant no. 1 to produce on record the originals of the respective satakhat. It is therefore requested that in view of the subsequent development, the matter may be remanded to the learned trial Court for deciding the application, Exhs. 5, 47 and 82 afresh considering the subsequent development. 6. Shri Amit Thakkar, learned advocate appearing on behalf of the respondent has submitted that so far as the statement of Shri Kedar Sumerchand Sharma recorded by the appellants during the investigation is concerned, has no evidentiary value, AO/44820/2007 4/5 JUDGMENT and, therefore, the same cannot be considered by the learned trial Court. 7. Having heard the learned advocates appearing for the respective parties and considering the subsequent development and the order passed by the learned trial Court below Exhs. 12, 45 and 81 and even considering the operative portion of the impugned order passed by the learned trial Court, this Court is of the firm opinion that the matter be remanded for deciding the application, Exhs. 5, 47 and 82 afresh on its own merits considering the subsequent development, more particularly, orders passed below Exhs. 12, 45 and 81. It will always be open for the respondent to contend that the statement of Shri Kedar Sumerchand Sharma, recorded by the Investigating Officer, is not admissible and/or the same cannot be relied upon and it will always be open for the appellants-original defendants nos. 1 to 7, so far as present dispute is concerned, to contend that the same can be relied upon. As and when such contentions are raised, the same shall be decided in accordance with law and on its own merits for which this Court has not expressed any opinion. 8. For the reasons stated hereinabove, the present Appeal from Order succeeds and the impugned order passed by the learned 3rd Additional Senior Civil Judge and Judicial Magistrate First Class dated 06/11/2006 below Exhs. 5, 47 and 82 are hereby quashed and set aside and the matter is remanded to the learned trial Court for deciding the application, Exhs, 5, 47 and 82 afresh in accordance with law considering the subsequent developments and orders below Exhs. 12, 45 and AO/44820/2007 5/5 JUDGMENT 81 and without in any way being influenced by the impugned order as well as the order passed by this Court. It is observed that this Court has not expressed any opinion on merits in favour of either parties and it is ultimately for the learned trial Court to decide and dispose of the aforesaid application, Exhs. 5, 47 and 82 afresh in accordance with law and on its own merits in light of the observations made hereinabove. The learned trial Court is directed to decide and dispose of the aforesaid application, Exhs. 5, 47 and 82 at the earliest but not later than 31st January, 2009. Ms Mehta, learned advocate appearing on behalf of appellants has submitted that till the application, Exhs. 5, 47 and 82 are decided and disposed of, the appellants shall not sell, transfer or alienate the property in question. CIVIL APPLICATION No. 15466/2007 In view of disposal of the Appeal from Order, no order in the Civil Application and the same is disposed of accordingly. (M.R. SHAH, J.) siji