SCA/10570/2008 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10570 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? ========================================================= PATEL KANUBHAI AMBALAL - Petitioner(s) Versus PATEL MANUGBEN MANILAL - Respondent(s) ========================================================= Appearance : MR MAHENDRA K PATEL for Petitioner(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5,1.2.6 MR MP PRAJAPATI for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 25/08/2008 ORAL JUDGMENT 1. Rule. Mr.M.P.Prajapati, learned Advocate waives service of rule on behalf of the respondent – original defendant who is on caveat. SCA/10570/2008 2/4 JUDGMENT 2. Present petition under Article 227 of the Constitution of India is filed by the petitioner – original plaintiffs for an appropriate Writ, direction and order quashing and setting aside order dated 14.02.2008 passed by the learned Additional District Judge & Presiding Officer, 5th Fast Track Court, Mehsana passed in Regular Civil Appeal No.49 of 2007 as well as the order dated 07.03.2007 passed by the learned Additional Civil Judge, Visnagar below Exh.5 in Regular Civil Suit No.4 of 2005. Mr.M.K.Patel, learned Advocate appearing on behalf of the petitioners - original plaintiffs has submitted that assuming without admitting that defendant can be said to be co-owner and in that case also the defendant is required to be restrained from transferring, alienating the property in question. 3. Mr.Prajapati, learned Advocate appearing on behalf of the respondent – original defendant has stated at the Bar that during pendency and final disposal of the aforesaid suit, the respondent – original defendant does not propose to transfer and/or alienate the property in question and he makes SCA/10570/2008 3/4 JUDGMENT the statement that during the pendency of the aforesaid suit, respondent- original defendant shall not also transfer, alienate her share in the property in question. However, he has submitted that the respondent – defendant has filed another suit being Special Suit No.39 of 2006 pending in the Court of learned Principal Senior Civil Judge, Mehsana for partition and as the respondent is senior citizen, appropriate direction be issued to the learned Trial Court to decide and dispose of the said suit along with present suit being Regular Civil Suit No.4 of 2005 to avoid any conflicting orders. 4. Having heard the learned Advocates appearing on behalf of the respective parties and statement of Mr.Prajapati, learned Advocate appearing on behalf of the respondent, impugned orders passed by the both the Courts below are modified to the extent that respondent – defendant is restrained from transferring, alienating in any manner whatsoever her share in the property in question till Regular Civil Suit No.4 of 2005 is decided and disposed of. SCA/10570/2008 4/4 JUDGMENT 5. In the facts and circumstances of the case, it will be open for the parties to move an appropriate application before learned District Judge, Meshana for hearing both the suits i.e. Regular Civil Suit No.4 of 2005 pending in the Court of learned Additional Civil Judge, Visnagar as well as Special Suit No.39 of 2006 pending in the Court of learned Principal Senior Civil Judge, Meshana together and as and when such application is made, same shall be considered by the learned District Judge, Mehsana in accordance with law and on merits, with a view to see that no conflicting orders are passed with respect to very property. 6. With above, Rule is made absolute to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs. [M.R.Shah,J.] satish