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SCA/12284/2009 5/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 12284 of 2009
For
Approval and Signature:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
=========================================================
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 ?
=========================================================
KALYANBHAI
GORDHANBHAI DALWADI & 7 - Petitioner(s)
Versus
BHUDARBHAI
TRIKAMBHAI PARMAR & 1 - Respondent(s)
=========================================================
Appearance
:
MS.
KRUTI M SHAH for Petitioner(s) : 1 8.
MR
BALVANTSINH for BHAVIN J SATWARA for Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 15/01/2010
ORAL
JUDGMENT
1. Rule.
Mr.Balvantsinh, learned advocate for Mr.Bhavin J. Satwara, learned
counsel, waives service of notice of Rule on behalf of the
respondents. On the facts and in the circumstances of the case and
with the consent of the learned counsel for the respective parties,
the petition is being heard and finally decided, today.
2. This
petition has been preferred under the provisions of Articles 226 and
227 of the Constitution of India, challenging order dated 16.10.2009,
passed by the learned Addl. District Judge, F.T.C-1, Surendranagar,
below application at Exh.5 in Miscellaneous Civil Appeal No.45/2009,
whereby the order dated 14.09.2009, passed by the learned Principal
Civil Judge, Limbdi, below application at Exh.5 in Regular Civil Suit
No.44/2009, has been stayed till the final disposal of the appeal.
3. The
brief facts of the case, relevant for the decision of the petition
are that, the petitioners herein are the original plaintiffs of
Regular Civil Suit No.44/2009 and the respondents are the original
defendants. The suit has been filed inter-alia with a prayer
for grant of declaration to the effect that the defendants have got
no right, title or interest to enter into the land of the plaintiffs
and obstruct the plaintiffs from harvesting agricultural crops and
performing agricultural activities on land bearing Revenue Survey
No.85/P/2, admeasuring 86-Acres 0-Guntha, situated at Village
Gokharwala, Taluka Chuda, District Surendranagar. A prayer for grant
of a permanent injunction has also been sought to restrain the
defendants from interfering with and causing obstructions to the
possession of the plaintiffs, on the suit property. Along with the
plaint, the petitioners filed an application at Exh.5 for grant of
temporary injunction, on 10.07.2009. The Trial Court allowed the said
application by order dated 14.09.2009. The respondents, therefore,
presented an application at Exh.28 for staying the said order, with a
view to approaching the lower Appellate Court, which application was
rejected by the Trial Court. Being aggrieved by the order dated
14.09.2009, below application at Exh.5, the respondents filed Misc.
Civil Appeal No.45/2009 before the District Court, Surendranagar, on
21.10.2009. Along with the said appeal, an application at Exh.5 was
filed, to stay the implementation and operation of the order granting
temporary injunction, dated 14.09.2009, rendered by the Trial Court,
till the final disposal of the appeal. On 12.10.2009, the District
Court passed an order calling for the record and proceedings from the
Trial Court and directed the application be listed on 16.10.2009. On
that date, the said application came to be allowed ex-parte, without
hearing the petitioners. Being aggrieved by the impugned order dated
16.10.2009 passed by the District Court, the petitioners have
approached this Court by way of the petition.
4. Ms.Kruti
M. Shah, learned counsel for the petitioners has submitted that the
impugned order dated 16.10.2009, passed by the lower Appellate Court
is patently illegal, as it has been passed in flagrant violation of
the principles of natural justice, as no opportunity of being heard
has been given to the petitioners before passing the said order,
hence, the same may be quashed and set aside. It is further submitted
that upon the application at Exh.5 filed by the respondents before
the lower Appellate Court, the said Court passed an order dated
12.10.2009, calling for the record and proceedings, to reach that
Court on 16.10.2009, which is evident from the Rojkam dated
16.10.2009. It is also mentioned in the impugned order that the
respondents of the appeal i.e. the present petitioners, were not
present, but as no notice has been issued to the petitioners, they
were not aware that the matter was to be heard on 16.10.2009, and the
impugned order has been passed in their absence. It is emphasized by
the learned counsel for the petitioners that it is only on
28.10.2009, that notice was issued to the petitioners to remain
present on 16.11.2009, after the passing of the impugned order. This
is a matter of record which can be verified from the Rojkam of the
lower Appellate Court. The petitioners have been seriously
prejudiced, as they have been deprived of the opportunity of being
heard, and the impugned order has been passed behind their backs,
which is operative till the final disposal of the appeal, the same
may be quashed and set aside, and the petition allowed.
5. Mr.Balvantsinh
learned advocate for Mr.Bhavik J. Sathwara, appearing for the
respondents has fairly stated that the court may pass appropriate
orders and if the court is inclined to set aside the impugned order,
an opportunity of hearing may be given to the parties, before a fresh
order is passed by the lower Appellate Court.
6. The
record and proceedings of the lower Appellate Court were summoned by
this Court on 24.11.2009 and the same have been perused. It is
evident from the said record and proceedings that the lower Appellate
Court has called for the record and proceedings from the Trial Court
for 16.10.2009. No notice has been issued to the petitioners for
16.10.2009. The order dated 16.10.2009 also records that the learned
advocate for the appellants (present respondents) is present and none
is present on behalf of the respondents (present petitioners). This
is also clear from the Rojkam of the lower Appellate Court. It is
further mentioned in the Rojkam dated 16.10.2009 that an order has
been passed below Exh.5 in the appeal after hearing the learned
counsel for the appellants (present respondents). The order dated
28.10.2009 reveals that notice has been ordered to be issued on that
date, to the petitioners. A perusal of the impugned order dated
16.10.2009 makes it amply clear that the said order has been passed
after hearing the learned advocate for the respondents only. In fact
it has been recorded in the said order that none is present for the
respondents of the appeal (present petitioners). When the court has
not issued notice to the petitioners to remain present on 16.10.2009,
it is not understood how they could have remained present before the
lower Appellate Court, on that date. It cannot be lost sight of that
the petitioners were granted a temporary injunction by order dated
14.09.2009 by the Trial Court, and the application of the respondents
for staying the operation of that order (Exh.28) was also rejected.
The lower Appellate Court ought to have issued notice to the
petitioners before passing the impugned order, which has the effect
of staying the order granting a temporary injunction, till the final
decision of the appeal without giving an opportunity of hearing. The
submissions advanced by the learned counsel for the petitioners that
the impugned order has been passed in violation of the principles of
natural justice are worthy of consideration and are borne out from
the record and proceedings of the lower Appellate Court. The
petitioners would be seriously prejudiced by the impugned order,
which has been passed behind their backs. In such a situation where
miscarriage of justice has taken place, the interference of this
Court, under its supervisory jurisdiction, is certainly warranted.
7. Accordingly,
the impugned order dated 16.10.2009, passed below application at
Exh.5 in Miscellaneous Civil Appeal No.45/2009, by the lower
Appellate Court is quashed and set aside. The lower Appellate Court
is directed to hear the parties and pass a fresh order, in accordance
with law, without being influenced by the factum of the filing of the
petition. It is made clear that while passing this order, the Court
has not gone into the merits of the case.
8. The
petition is allowed in the above terms. The Rule is made absolute to
the above extent.
9. The
record and proceedings of the lower Appellate Court be sent back to
the Court.
10. Direct
Service of this order is permitted.
(Smt.
Abhilasha Kumari, J.)
~gaurav~
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