AO/361/2008 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 361 of 2008 With CIVIL APPLICATION No. 13374 of 2008 In APPEAL FROM ORDER No. 361 of 2008 WITH APPEAL FROM ORDER No. 377 of 2008 With CIVIL APPLICATION No. 13986 of 2008 In APPEAL FROM ORDER No. 377 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? ========================================================= BRITISH MARINE PLC - Appellant(s) Versus ASHAPURA MINECHEM LIMITED & 2 - Respondent(s) ========================================================= Appearance : MR KS NANAVATI, SR.ADVOCATE WITH MR PM THAKKAR, SR.ADVOCATE WITH MR RJ OZA for Appellant(s) : 1, MR MIHIR JOSHI, SR.ADVOCATE WITH MR SN THAKKAR for Respondent(s) : 1, None for Respondent(s) : 2 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 12/12/2008 AO/361/2008 2/5 JUDGMENT ORAL JUDGMENT 1. Present Appeal from Orders are arising out of the Ex-parte ad-interim injunction dated 11.11.2008 granted by the learned Principal Senior Civil Judge, Khambhalia below Exh.5 in Special Civil Suit No.57 of 2008. Mr.K.S.Nanavati, learned Senior Advocate with Mr.P.M.Thakkar, learned Senior Advocate appearing with Mr.R.J.Oza, learned Advocate appearing for the appellant are heard at length. Mr.Mihir Joshi, learned Senior Advocate with Mr.S.N.Thakkar, learned Advocate appearing for the respondent – original plaintiff are also heard at length. 2. Considering the fact that application Exh.5 is now fixed for hearing by the learned trial Court on 17.12.2008 and that the pleadings are completed and any observations made by this Court in the present Appeal from Orders may prejudice the case of the respective parties at the time of trial – Exh.5, the learned Advocates appearing for the parties have stated at the Bar that the impugned ex-parte ad- interim injunction granted by the learned trial Court which is impugned in the present Appeal from Orders be set aside without prejudice to the rights and contentions in the suit as well as in Exh.5 and subject to the ultimate outcome of exh.5 application. However, it is requested that appropriate suitable direction be issued directing the learned trial Court before whom proceedings are pending and/or any other AO/361/2008 3/5 JUDGMENT Court to decide and dispose of application Exh.5 at the earliest and within stipulated time. 3. Mr.K.S.Nanavati, learned Senior Advocate with Mr.P.M.Thakkar, learned Senior Advocate appearing for the appellant – original defendant have submitted that they will fully cooperate the learned trial Court in early disposal of application Exh.5 within stipulated time that may be fixed by this Court and make submission before the learned trial Court without prejudice to their rights and contentions that the Civil Court has no jurisdiction. The learned Advocates appearing on behalf of the respective parties have agreed that their counter part shall not ask for any unnecessary adjournment and they will go on for hearing of application Exh.5 on the day that may be fixed by this Court. 4. Under the circumstances, Appeal from Order No.361 of 2008 is disposed of and the impugned order dated 11.11.2008 passed by the learned Principal Senior Civil Judge, Khambhalia below Exh.5 in Special Civil Suit No.57 of 2008 impugned in Appeal from Order No.361 of 2008 is hereby quashed and set aside. The learned trial Court is directed to decide and dispose of the application Exh.5 in accordance with law and on merits and after giving opportunity to all concerned on or before 24.12.2008. Respective parties to appear before the learned Judge before whom application Exh.5 is placed for hearing on 17.12.2008 and 18.12.2008 and make their submissions on AO/361/2008 4/5 JUDGMENT application Exh.5. The learned Advocates appearing on behalf of the respective parties have assured the Court that they will conclude submissions and hearing of application Exh.5 on 17.12.2008 and 18.12.2008. It goes without saying that the learned trial Court will decide and dispose of application Exh.5 in accordance with law and on merits without in any way being influenced by the present order and all the contentions which are available to the respective parties are kept open inclusive of question of jurisdiction of Civil Court, for which this Court has not expressed any opinion in favour of either parties. As agreed by the learned Advocates appearing on behalf of the respective parties, hearing of application Exh.5 be decided and disposed of by any other learned Judge other than who has passed the impugned order. 6. Under the circumstances, learned Principal District Judge, Jamnagar is directed to see that aforesaid suit and application Exh.5 in the aforesaid suit is placed before any other learned Judge other than who has passed the impugned order. Said exercise be completed by the learned Principal District Judge, Jamnagar by 15.12.2008, so that the learned Advocates appearing for the respective parties can know before whom they have to appear. In view of order passed in Appeal from Order No.361 of 2008, no order in Civil Application No.13374 of 2008. 7. In view of the impugned order dated AO/361/2008 5/5 JUDGMENT 11.11.2008 passed by the learned Principal Senior Civil Judge, Khambhalia below Exh.5 in Special Civil Suit No.57 of 2008 is quashed and set aside as stated herein above, no order is required to be passed in Appeal from Order No.377 of 2008 which is for challenging the order passed by the learned trial Court extending ad-interim injunction, which is already now quashed and set aside. Under the circumstances, no order in Appeal from Order No.377 of 2008 and Civil Application No.13986 of 2008. Direct service is permitted, today. [M.R.Shah,J.] satish