SCA/10573/2008 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10573 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 ========================================================= PATAN DISTRICT PANCHAYAT - Petitioner(s) Versus SHREE SIDHPURWALI DHARMASHALA & 2 - Respondent(s) ========================================================= Appearance : MR HS MUNSHAW for Petitioner(s) : 1, NOTICE UNSERVED for Respondent(s) : 1 - 2. MR KB PANERI for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 02/09/2008 ORAL JUDGMENT 1. Heard Shri K.B.Paneri, learned advocate appearing on behalf of the respondent No.3 – main contesting party. SCA/10573/2008 2/7 JUDGMENT 2. By way of this petition under Article 227 of the Constitution of India, petitioner – Patan District Panchayat has prayed for an appropriate writ, order or direction, quashing and setting aside the impugned order dated 30.6.2008 passed by the learned Additional District Judge, Patan passed in Civil Misc. Application No.4 of 2008 as well as the order dated 10.8.2007 passed in Civil Misc. Appeal No.18 of 2007 passed by the learned Additional District Judge, Patan. 3. Respondent herein instituted Civil Suit No.21 of 2007 before the learned trial court and submitted application Exh.5 for interim injunction which came to be dismissed against which respondents herein preferred Civil Misc.Appeal No.18 of 2007 which came to be allowed by the learned Additional District Judge, Patan vide judgment and order dated 10.8.2007 and the order passed by the learned trial court passed below Exh.5 dated 20.6.2007 came to be quashed and set aside and application Exh.5 came to be allowed and the learned appellate court granted SCA/10573/2008 3/7 JUDGMENT interim injunction during the pendency of the suit. 4. It is to be noted that in the suit the original plaintiffs joined only State of Gujarat and neither the District Panchayat nor the Collector were joined. As the said order passed by the learned appellate court was directly affecting the petitioner District Panchayat, the petitioner – District Panchayat filed Special Civil Application No.24260 of 2007 before this Court challenging the order passed by the learned Additional District Judge, Patan dated 10.8.2007 passed in Civil Misc.Appeal No.18 of 2007 as the said order was passed without giving any opportunity to the petitioner Panchayat. The said Special Civil Application came up for hearing before learned Single Judge of this Court, who by his order dated 16.1.2008 disposed of the said petition relegating the petitioner to prefer review application before the learned appellate court. The learned Single Judge has observed as under: “Learned advocate Shri Munshaw for the petitioner pointed out that since the petitioner was not joined as party in the SCA/10573/2008 4/7 JUDGMENT original suit, the petitioner has moved an application for being joined as a defendant. The said application is pending for adjudication. Apparently, the appellate order came to be passed without hearing the petitioner. It cannot be disputed that the petitioner would be affected by the order passed by the appellate court. However, I find it appropriate that the petitioner should approach the District Court seeking review of the impugned order. If such application is filed within four weeks from today, the same shall be decided on merits without going into the question of limitation. In view of the above directions, the petition is disposed of at this stage. Notice is discharged.” 5. Accordingly the petitioner-Panchayat submitted review application No.4 of 2008 requesting the learned appellate court to review the judgment and order dated 10.8.2007 passed in Civil Misc.Appeal No.18 of 2007 and to pass an appropriate order after hearing the petitioner – Panchayat. Unfortunately, the learned Additional District Judge, Patan by by the impugned order dated 30.6.2008 dismissed the said application/appeal No.4 of 2008 with costs by SCA/10573/2008 5/7 JUDGMENT observing that the petitioner-District Panchayat is not a party to the suit. 6. Being aggrieved and dissatisfied with the impugned order dated 30.6.2008 passed by the learned Additional District Judge, Patan passed in Civil Misc.Appeal No.4 o 2008, the petitioner-Panchayat has preferred present Special Civil Application under Article 227 of the Constitution of India. 7. It is required to be noted that when the learned Single Judge passed the order dated 16.1.2008 in Special Civil Application No.24260 of 2007, the learned Single Judge was very well aware of the fact that the petitioner-Panchayat is not a party to the suit and however as the order passed by the learned appellate court without hearing the petitioner, the learned Single Judge has passed the order disposing of the said petition relegating the petitioner to prefer review application before the learned appellate court pointing out that the said order is affecting the petitioner and the impugned order is passed without giving any opportunity to him. Under SCA/10573/2008 6/7 JUDGMENT the circumstances, it was incumbent on the part of the appellate court to decide and dispose of the application/appeal on merits rather than dismissing the same on the ground that the petitioner is not a party to the suit. It appears that the learned appellate court has acted contrary/directions issued by this Court. 8. Under the circumstances, the impugned order passed by the learned appellate court is quashed and set aside and the learned appellate court is directed to decide and dispose of review application on merits and to review the judgment and order dated 10.8.2007 passed in Civil Misc.Appeal No.18 of 2007 as the said order is passed by the learned appellate court without hearing the petitioner who pleads that they are directly affected. Such an exercise to be completed within a period of four weeks from the date of receipt of this order or on production of certified copy of this order. The learned appellate court is directed to decide and dispose of the same on merits, and if in future, if it is found that he has acted contrary to the order passed by this Court, SCA/10573/2008 7/7 JUDGMENT the same would be viewed seriously. Rule is made absolute accordingly to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs. Registry is directed to send the writ of this Court to the learned appellate court immediately. ( M.R. SHAH, J. ) syed/