SCA/1039920/2008 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10399 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 ? ========================================= = MOHMED KARIMAN SAKHALA DECEASED THROUGH HEIRS & 5 - Petitioner(s) Versus ALTAF HUSHEN A RAHIM NAGORI & 4 - Respondent(s) ========================================= = Appearance : MR ASHISH M DAGLI for Petitioner(s) : 1 - 6. MR ANSHIN H DESAI for Respondent(s) : 1-5, NOTICE SERVED BY DS for Respondent(s):2.2.1, 2.2.2, 4.2.1, 4.2.2, 4.2.3, 4.2.4,4.2.5 5.2.1, 5.2.2, 5.2.3, 5.2.4, 5.2.5, 5.2.6,5.2.7 ========================================= = CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 18/12/2008 ORAL JUDGMENT SCA/1039920/2008 2/4 JUDGMENT 1. RULE. Shri Anshin Desai, learned advocate waives service of notice of rule on behalf of respondents. 2. With the consent of the learned advocates appearing on behalf of the respective parties, the present Special Civil Application is taken up for final hearing today. 3. By way of this petition under Article 227 of the Constitution of India the petitioners have prayed for an appropriate writ, order or direction quashing and setting aside the order dated 30/04/2008 passed by the learned Principal District Judge, Junagadh in Miscellaneous Civil Appeal No. 63/2007 in dismissing the appeal as well as the order dated 12/08/2005 passed by the learned 6th Additional Senior Civil Judge, Junagadh below Exh. 5 in Regular Civil Suit No. 126/1999. 4. Shri Ashish Dagli, learned advocate appearing on behalf of the petitioners has vehemently submitted that the learned appellate Court has not decided the appeal on merits and has disposed of the appeal in a most casual and perfunctory manner. It is submitted by Shri Ashish Dagli, under instructions from his client, that the petitioners are ready and willing to make a statement at the bar that during the pendency of the suit they will not transfer and/or alienate the property in question. However, this may not be by way injunction as ultimately, if the suit is dismissed on merits and the matter is carried in appeal, injunction will be continued automatically. 5. Shri Anshin Desai, learned advocate appearing on behalf SCA/1039920/2008 3/4 JUDGMENT of the respondents has submitted that if the aforesaid statement is recorded that the petitioners shall not transfer and/or alienate the property in question during the pendency of the suit, the respondents do not insist for any injunction. It is further requested that the impugned order be substituted by the aforesaid statement. 6. Heard the learned advocates appearing on behalf of the respective parties. This Court has gone through the impugned judgement and order passed by the learned Principal District Judge, Junagadh dated 30/04/2008 in Miscellaneous Civil Appeal No. 63/2007, which was against the order passed by the learned 6th Additional Senior Civil Judge, Junagadh dated 12/08/2005 below Exh. 5 in Regular Civil Suit No. 126/1999 granting injunction against the petitioners. It appears from the impugned judgement and order that the learned Principal District Judge, Junagadh has not at all discussed the matter on merits and has dismissed the appeal in a most casual and perfunctory manner. When the learned advocate appearing on behalf of the petitioners did not agree for disposal of the appeal by directing the learned trial Court to decide and dispose of the suit expeditiously, it was incumbent on the part of the learned Judge to decide and dispose of the appeal on merits, but could not have dismissed the appeal without even considering the case on merits, which is highly deprecated. The learned Principal District Judge, Junagadh may take care in future and whenever any appeal is placed before him, the same shall be decided by him in accordance with law and on its own merits and should not dispose of the appeal in the manner in which the Miscellaneous Civil Appeal No. 63/2007 has been decided and disposed of. SCA/1039920/2008 4/4 JUDGMENT 7. Now so far as the present case is concerned, Shri Ashish Dagli, learned advocate appearing on behalf of the petitioners has made a statement at the bar, under instructions from his client, that during the pendency of the suit, the petitioners shall not transfer and/or alienate the suit property in question in any manner whatsoever. The petitioners are directed to act accordingly. The petitioners shall submit necessary purshis before the learned trial Court accordingly. The impugned orders passed by both the Courts below are substituted by the aforesaid statement. 8. Considering the fact that the suit is of the year 1999, the same is to be expedited. All the parties concerned are directed to co operate for early disposal of the suit. The learned trial Court to decide and dispose of the suit in accordance with law and on its own merits. 9. With this, the present Special Civil Application is disposed of. Rule is made absolute accordingly. There shall be no order as to costs. (M.R. SHAH, J.) siji