SCA/5190/2008 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5190 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 ? ========================================= = RAJENDRAKUMAR KANTILAL SOMANY & 1 - Petitioner(s) Versus PRAFULCHANDRA GIRDHARLAL KOTAK - Respondent(s) ========================================= = Appearance : MR ASHISH M DAGLI for Petitioner(s) : 1 - 2. None for Respondent(s) : 1, 1.2.9,1.2.10 NOTICE SERVED BY DS for Respondent(s) : 1.2.1, 1.2.2, 1.2.3,1.2.4 MR BD KARIA for Respondent(s) : 1.2.1, 1.2.5, 1.2.6, 1.2.7,1.2.8 ========================================= = CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 27/08/2008 ORAL JUDGMENT SCA/5190/2008 2/4 JUDGMENT 1. RULE. Shri B.D. Karia, learned advocate waives service of rule on behalf of the respondents. 2. With the consent of the learned advocates for the respective parties, the present Special Civil Application is taken up for hearing today. 3. By way of this petition under Article 227 of the Constitution of India, the petitioners-original defendants have prayed for an appropriate writ, order or direction quashing and setting aside the order passed by the learned Presiding Officer, Fast Track Court No. 9, Morbi dated 21st July, 2007 in Civil Miscellaneous Appeal No. 20/2004 allowing the same quashing and setting aside the order passed by the learned Civil Judge, (Junior Division), Vakaner below Exh. 5 dated 23rd August, 2004 in Regular Civil Suit No. 148/2004 restraining the petitioners-original defendants from putting up further construction and/or demolishing the property in question and further restraining the petitioners-original defendants from entering into the disputed property. 4. Having heard the learned advocates appearing for the respective parties and considering the impugned orders and the photographs, which are directed to be taken on record, it appears that the entire property has been at present demolished and there is nothing further, which is to be demolished. 5. Shri Ashish Dagli, learned advocate appearing on behalf of the petitioners-original defendants has submitted that, at the best, it can be said that the respondents-original plaintiffs SCA/5190/2008 3/4 JUDGMENT were in occupation of some of the portion of the property and considering the position of the property in question, at present the petitioners-original defendants may be permitted to put up construction on the disputed property without prejudice to the rights and contention of the respective parties at their risk and cost and they shall not claim any equity subsequently on the ground that they have put up the construction. The property occupied by the respondents-original plaintiffs (first floor) shall be kept vacant and the petitioners-original defendants shall not transfer, alienate and/or induct anybody in the said newly constructed first floor. 6. The aforesaid suggestion and the request seems to be reasonable as neither the petitioners-original defendants nor the respondents-original plaintiffs would be benefited if the property is directed to be kept as it is. 7. Under the circumstances, the orders passed by both the Courts below are modified to the extent that the petitioners- original defendants are permitted to put up construction on the disputed property (new construction inclusive of the first floor) and the same will be without prejudice to the rights and contention of the respective parties and subject to the ultimate outcome of the suit at their own risk and cost and the petitioners-original defendants shall not claim any equity subsequently on the ground that they have put up the construction. It is also further directed, as agreed by the learned advocate appearing for the petitioners, that after putting up construction inclusive of first floor, the first floor that is the portion, which was occupied by the respondents- original plaintiffs, shall be kept vacant by the petitioners- SCA/5190/2008 4/4 JUDGMENT original defendants and they shall not induct anybody into the said portion, transfer or alienate the property in any manner whatsoever the said portion of the first floor. The aforesaid arrangement would be subject to the order passed by the learned trial Court in the suit without prejudice to the rights and contention of the respective parties. 8. With this, the present Special Civil Application is disposed of. Rule is made absolute with no order as to costs. (M.R. SHAH, J.) siji