SCA/11575/2004 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 11575 of 2004 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 ? ========================================================= MANGLABEN W/O. DOLATSINH TAKHATSINH VANSIYA & 2 - Petitioner(s) Versus SHANTABEN WD/O. KHALPABHAI BATABHAI & 7 - Respondent(s) ========================================================= Appearance : MR MANAN SHAH FOR MR AMIT V THAKKAR for Petitioner(s) : 1 - 3. RULE SERVED for Respondent(s) : 1 - 8. MR PRAVIN GONDALIYA FOR MR RAXIT J DHOLAKIA for Respondent(s) : 1- 6. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 30/04/2008 ORAL JUDGMENT 1. By way of this petition under Article 227 of the Constitution of India, the petitioners – original plaintiffs SCA/11575/2004 2/7 JUDGMENT have prayed for an appropriate writ, order and/or direction setting aside the order dtd.11/8/2004 passed by the learned Joint District Judge and Additional Sessions Judge, 8th Fast Track Court, Surat in Misc.Civil Appeal No.168 of 2002 and to restore the order passed by the learned Civil Judge (SD), Surat below application Ex.5 in Regular Civil Suit No.343 of 1999. 2. The petitioners – original plaintiffs (“the plaintiffs” for short) had preferred Regular Civil Suit No.343 of 1999 in the court of learned Civil Judge (SD), Surat against the respondents – original defendants (“the defendants” for short) praying for permanent injunction restraining the defendants from disturbing the plaintiffs' possession of the land bearing Revenue Survey No.53/1 being Block No.54 admeasuring 00 Hectare 76 Ares 89 sq.mtrs. situated at Sachin, Taluka Choryasi, District ; Surat. That in the said suit, the petitioners preferred application Ex.5 seeking interim relief. It also appears that the defendants also preferred application Ex.36 in the said suit on 29/6/2000 praying for interim relief against the plaintiffs claiming rights on the basis of registered conditional deed dtd.3/1/1962. By order dtd.31/7/2002, the learned Civil Judge (SD), Surat allowed the application Ex.5 restraining SCA/11575/2004 3/7 JUDGMENT the defendants from interfering with the plaintiffs' possession of the land in question and further restraining the respondents from taking forcible possession of the land in question till the decision of the suit. It appears and it is not in dispute that the application Ex.36 was not decided by the trial court. Being aggrieved by and dissatisfied with the order passed below application Ex.5 dtd.31/7/2002 in Regular Civil Suit No.343 of 1999, the defendants preferred Misc.Civil Appeal No.168 of 2002 and the learned appellate judge, not only set aside the order passed below application Ex.5 but also set aside the order passed below Ex.36, though application Ex.36 was not decided by the trial court and not challenged before the appellate court. Being aggrieved by and dissatisfied with the order passed by the appellate court dtd.11/8/2004 in Misc.Civil Appeal No.168 of 2002, the petitioners – original plaintiffs have preferred the present Special Civil Application under Article 227 of the Constitution of India. 3. Mr.Manan Shah, learned advocate appearing on behalf of the petitioners – original plaintiffs has vehemently submitted that the learned appellate judge has proceeded with Misc.Civil Appeal No.168 of 2002 as if the SCA/11575/2004 4/7 JUDGMENT order passed below application Ex.Nos.5 and 36 were under challenged. However, in fact, application Ex.36 is still not decided by the learned trial court and not challenged before the learned appellate court. It is submitted that still the learned appellate court has passed the impugned order setting aside the order below application Ex.36 and granted application Ex.36 of the respondents – defendants. It is submitted that, thus, the learned appellate court has exceeded the jurisdiction and passed the order allowing the application which was not the subject matter or under challenge in the appeal. It is submitted that even the petitioners – plaintiffs never had an opportunity to defend and/or meet with the application Ex.36. 4. It is submitted that even otherwise on merits also, the order passed by the learned appellate court dismissing the application Ex.5 and allowing the appeal, is bad in law. Mr.Shah, learned advocate appearing on behalf of the petitioners wanted to make further submissions on merits assailing the order passed by the appellate court, even quashing and setting aside the order passed below application Ex.5, but as for the reasons stated hereinafter, this Court proposes to remand the matter to SCA/11575/2004 5/7 JUDGMENT the trial court for deciding both the applications, Ex.5 as well as Ex.36 afresh together, this Court is not further considering the submissions on merits. 5. Mr.Gondaliya, learned advocate appearing on behalf of the respondents – defendants has fairly conceded that as such the application Ex.36 is still not decided and no order was passed by the trial court below application Ex.36 and therefore, there was no occasion for the learned appellate court to quash and set aside the order passed below application Ex.36 which is never passed. It is also conceded by Mr.Gondaliya, learned advocate that as such the application Ex.36 can be said to be counter interim application by the defendants and the same was required to be heard along with the application Ex.5 in the fitness of things. 6. Considering the above, it appears that the petitioners – original plaintiffs submitted application Ex.5 in Regular Civil Suit No.343 of 1999 for interim relief restraining the respondents – original defendants from interfering with their possession and so far as application Ex.36 is concerned, the same is preferred by the respondents – original defendants in the aforesaid suit for restraining the plaintiffs from disturbing their possession. Therefore, SCA/11575/2004 6/7 JUDGMENT it can be said that the application Ex.36 is the counter interim application by the respondents – original defendants. As stated above, vide order dtd.31/7/2002, the learned trial court decided the application Ex.5 only and no order has been passed by the trial court below application Ex.36. Looking to the above, as such both the applications, Ex.5 and Ex.36 were required to be heard together by the learned trial court and were required to be decided and disposed of together and that would be the proper course to avoid multiplicity of proceedings and/or contradictory orders. Under the circumstances, this Court is of the opinion that let all the orders be quashed and set aside and the matter be remanded to the learned trial court for deciding both the applications, Ex.5 and Ex.36 together afresh by common order and if such course is adopted, the same would be in the fitness of things to avoid contradictory orders, as both the applications can be said to be counter to each other. 7. For the reasons stated hereinabove, the petition succeeds in part. The impugned order passed by the learned Joint District Judge and Additional Sessions, 8th Fast Track Court, Surat Ex.33 in Misc.Civil Appeal No.168 of 2002 dtd.11/8/2004 as well as order passed by the learned Civil SCA/11575/2004 7/7 JUDGMENT Judge (SD), Surat below application Ex.5 in Regular Civil Suit No.343 of 1999 dtd.31/7/2002 are hereby quashed and set aside and the matter is remanded to the learned Civil Judge (SD), Surat for deciding the applications Ex.5 as well as Ex.36 in Regular Civil Suit No.343 of 1999 afresh without in any way being influenced by the earlier orders passed below application Ex.5 and/or in Misc.Civil Appeal No.168 of 2002 and/or order passed by this Court in the present petition, in accordance with law and on merits. The trial court to decide and dispose of the application Ex.Nos.5 and 36 together by a common order to avoid multiplicity of proceedings and contradictory orders, within a period of six months from the date of receipt of this order. The registry is directed to send the copy of writ of this order to the trial immediately. Rule is made absolute accordingly with no order as to costs. [M.R. SHAH, J.] rafik