SCA/22412/2005 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 22412 of 2005 WITH SPECIAL CIVIL APPLICATION No. 22413 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE K.A.PUJ Sd/- ====================================== 1. Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2. To be referred to the Reporter or not ? NO 3. Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ? NO 5. Whether it is to be circulated to the civil judge ? NO ====================================== JAYENDRA HIRALAL PAREKH - Petitioner Versus HIS HIGHNESS PRINCE AAGAKHAN HOSTEL & 1 - Respondents ====================================== Appearance : MR KUNJAL D PANDYA for Petitioner. MR SURESH M SHAH for Respondents. ====================================== CORAM : HONOURABLE MR.JUSTICE K.A.PUJ SCA/22412/2005 2/5 JUDGMENT Date : 10/07/2008 COMMON ORAL JUDGMENT 1. Special Civil Application No.22412 of 2005 is filed by the petitioner – original plaintiff – appellant under Article 227 of the Constitution of India praying for quashing and setting aside the order dated 18.10.2005 passed by the Presiding Officer, Fast Track Court No. 5, Rajkot and further praying for an interim injunction as prayed for in Regular Civil Suit No.67 of 2003 till the final disposal of the said suit. 2. Similarly, Special Civil Application No.22413 of 2005 is filed by the petitioner – original plaintiff – appellant under Article 227 of the Constitution of India praying for quashing and setting aside the order dated 18.10.2005 passed by the Presiding Officer, Fast Track Court No. 5, Rajkot and further praying for an interim injunction as prayed for in Regular Civil Suit No.63 of 2003 till the final disposal of the said suit. 3. Both the petitions were admitted by this Court and rule was issued on 18.11.2005 and the interim relief in terms of paragraph 6 (b) of each of these petitions was granted. 4. In both these petitions, the petitioners were the tenants and they were using the rented premises. The petitioner of Special Civil Application No. 22412 of 2005 is using the rented premises for the purpose of Medical store in the name and style of Pappu Medical Stores. The entire SCA/22412/2005 3/5 JUDGMENT property consists of several shops on the ground floor and a hospital on the first floor. There is a staircase on the ground floor and which leads to the hospital on the first floor. There is a space adjacent to the staircase and the same is used by the petitioner as well as other tenants for the purpose of parking their vehicles and for other incidental purposes for more beneficial enjoyment of the rented premises. Such open space adjacent to the staircase is appurtenant to the rented premises and as such, it is the case of the petitioner that the petitioner is legally entitled to use the same and the respondents are not entitled to prevent or obstruct the petitioner from having access to such open space. 5. Similarly, the petitioner of Special Civil Application No.22413 of 2005 is using the rented premises for his hospital. In order to ensure water supply to the hospital, the petitioner has provided underground water tank and installed a motor with the help of which such water is carried to the overhead tank and from which the water is supplied to the rented premises situated on the first floor. The petitioner has an independent water connection directly from Rajkot Municipal Corporation. 6. The petitioners of both the petitions have filed Regular Civil Suit Nos.67 & 63 of 2003. In Regular Civil Suit No.67 of 2003, an application Exh.5 was moved seeking interim relief restraining the respondent from preventing or obstructing the petitioner from using space near the staircase and also from installing a door so as to exclude the petitioner from such space ear the staircase in the SCA/22412/2005 4/5 JUDGMENT building in question. Similarly, in Regular Civil Suit No.63 of 2003, an application Exh.5 was moved seeking interim relief restraining the respondents from preventing or obstructing the petitioner from using the space near the staircase and also from installing a door so as to prevent the petitioner from having access to the underground water tank and the electric motor installed by the petitioner. The Trial Court rejected the applications below Exh. 5 in both the suits. Being aggrieved, both the petitioners filed Civil Misc. Appeal Nos. 17 & 18 of 2005 and in the said appeals, the petitioners moved applications Exh. 5 for interim injunction. However, the said applications were also rejected. The petitioners have, therefore, challenged the said orders before this Court in the present two writ petitions filed under Article 227 of the Constitution of India. 7. Heard Mr. U.D. Shukla, learned advocate appearing for the petitioners and Mr. S. M. Shah, learned advocate appearing for the respondents. 8. Perused the orders passed by the Courts below. Since both the Courts below have taken a concurrent view, normally this Court should not exercise its discretion under Article 227 of the Constitution of India. However, looking to the facts and circumstances of the case, the Court is of the view that interest of justice would better be served if the status-quo as is prevailing today with regard to the suits shall be maintained by the parties till the final disposal of the suits. It is also made clear that SCA/22412/2005 5/5 JUDGMENT whatever applications pending before the Trial Court which are filed by the parties during the pendency of the present petitions before this Court shall not be affected and the parties shall be abide by the orders passed in such applications subject to their right to challenge the said orders before the appropriate forum. Since the suits are pending before the Court for more than five years, the Trial Court is directed to dispose of the said suits as expeditiously as possible, preferably on or before 31.12.2008. 9. It is made clear that the directions and observations made in the present petitions shall not affect the finding of the Trial Court and the Trial Court may not be influenced by this order. 10.In view of this order, Civil Misc. Appeal Nos. 17 & 18 of 2005, which are pending before the District Court, no longer survive and they shall stand disposed of accordingly. 11.Subject to the aforesaid directions and observations, both these petitions are disposed of accordingly without any order as to costs. 12.Registry is directed to send the writ of this order to the Trial Court forthwith. Sd/- [K. A. PUJ, J.] Savariya