AO/100/2008 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 100 of 2008 With CIVIL APPLICATION No. 3639 of 2008 In APPEAL FROM ORDER No. 100 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 ========================================================= RANJITLAL CHHABILDAS MITHAIWALA & 2 - Appellant(s) Versus GORDHANBHAI PUNJIRAMBHAI PATEL - Respondent(s) ========================================================= Appearance : MR AJ SHASTRI for Appellant(s) : 1 - 3. MR VIRENDRA BAHETI for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 01/12/2008 ORAL JUDGMENT 1. ADMIT. Shri Virendra Baheti, learned advocate waives service of notice of admission on behalf AO/100/2008 2/8 JUDGMENT of respondent. With the consent of learned advocates appearing on behalf of the respective parties, the appeal from order is taken up for final hearing today. 2. Present appeal from order is filed by the appellants herein-original plaintiffs challenging the impugned order passed by the learned 11th Additional Senior Civil Judge & J.M.F.C., Surat dated 13.3.2008 passed below Exh.5 in Special Civil Suit No.229 of 2007 by which the learned trial court has dismissed the said application for interim injunction submitted by the appellants herein-original plaintiffs restraining the respondent herein-original defendant from using the disputed land as road and/or for any other purpose. 3. It appears from the pleadings and the submissions, the dispute is with respect to the alleged road of way of the defendant from land bearing Survey No.41 belonging to the appellants AO/100/2008 3/8 JUDGMENT herein-original plaintiffs. The appellants are the owners of land bearing Survey No.41 and the respondent herein-original defendant is the owner of land bearing Survey No.44. The original defendant is claiming right of way through land bearing Survey No.41 belonging to the appellants herein-original plaintiffs. 3.1 The appellants herein-original plaintiffs had instituted Special Civil Suit No.229 of 2007 in the court of learned Senior Civil Judge, Surat for declaration and permanent injunction against the respondent-defendant restraining the defendant from using the disputed land as road and/or for any other purpose by the defendant. In the said suit, the appellants herein-original plaintiffs submitted application Exh.5 for interim injunction which came to be dismissed by the learned trial court by the impugned order against which present appeal from order is preferred. AO/100/2008 4/8 JUDGMENT 3.2 On considering the impugned order passed by the learned trial court, it appears that while refusing to grant interim injunction as prayed for, the learned trial court has mainly relied upon the order passed by the Taluka Development Officer/Taluka Panchayat, Olpad granting non- agriculture use permission in favour of the defendant in which one agreement was relied upon by the defendant which respect to the way from the land bearing Survey No.41. 4. Shri A.J.Shastri, learned advocate appearing on behalf of the appellants has submitted that the learned trial court has materially erred in relying upon the order passed by the Taluka Development Officer, Olpad granting non-agriculture permission in favour of the defendant as the said order has been subsequently cancelled by the Taluka Panchayat, Olpad vide communication dated 30.6.2007 specifically observing that such alleged agreement relied upon by the defendant is not in AO/100/2008 5/8 JUDGMENT existence at all. It is submitted by Shri A.J.Shastri, learned advocate appearing on behalf of the appellants herein-original plaintiffs that the order passed by the Taluka Development Officer, Olpad dated 28th/30th June, 2007, cancelling the earlier order granting non- agriculture permission in favour of the original defendant was placed on record before the learned trial court, however, the learned trial court has not considered and/or dealt with the same at all. 5. Shri Baheti, learned advocate appearing on behalf of the respondent-original defendant is not in a position to dispute the order dated 28th/30th June, 2007 passed by the Taluka Development Officer, Olpad. Accordingly the earlier order of the Taluka Development Officer, Olpad granting non-agriculture permission in favour of original defendant, he is also not in a position to point out that the said order dated 28th/30th June, 2007, was not on record of the trial court. No other contrary order is brought AO/100/2008 6/8 JUDGMENT to the notice of this Court by Shri Baheti, learned advocate appearing on behalf of respondent-defendant. 6. Considering the above, it appears that the learned trial court has committed an error in passing the impugned order mainly based upon the order passed by the Taluka Development Officer, Olpad granting non-agriculture permission in favour of original defendant and the so-called agreement relied upon Taluka Development Officer, Olpad, as the order granting non- agriculture permission has been cancelled subsequently by the Taluka Development Officer, Taluka Panchayat, Olpad by order dated 28th/30th June, 2007. Under the circumstances, the impugned order passed by the learned trial court passed below Exh.5 deserves to be quashed and set aside and the matter is to be remanded to the learned trial court for deciding the application Exh.5 afresh in accordance with law and on merits and on considering the material available on AO/100/2008 7/8 JUDGMENT record, and until then the parties are to be directed to maintain status-quo as on today. 7. The present appeal from order is allowed. The impugned order passed by the learned 11th Additional Senior Civil Judge & J.M.F.C., Surat dated 13.3.2008 passed below Exh.5 in Special Civil Suit No.229 of 2007 is hereby quashed and set aside and the matter is remanded to the trial court for deciding the application Exh.5 afresh in accordance with law and on merits and on considering the material available on record, without in any way being influenced by the present order. The learned trial court to decide and dispose of application Exh.5 within a period of three months from today. All concerned are directed to co-operate the trial court in disposing of application Exh.5 within the stipulated time as stated hereinabove. The learned trial court is directed to strictly comply with the present order and decide and dispose of application Exh.5 within the AO/100/2008 8/8 JUDGMENT stipulated time as stated above, and until then the parties are directed to maintain status-quo as on today. The learned trial court to decide and dispose of application Exh.5 in accordance with law and on merits without in any being influenced by the fact that this Court has granted the order of status-quo. With these, present appeal from order is allowed. As the appeal from order is allowed, and in view of the above order, no order is required to be passed in civil application. Direct service is permitted. ( M.R. SHAH, J. ) syed/