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AO/101/2011 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL
FROM ORDER No. 101 of 2011
With
CIVIL
APPLICATION No. 3402 of 2011
In
APPEAL FROM ORDER No. 101 of 2011
=========================================================
MEET
ANILKUMAR PATEL - Appellant(s)
Versus
CHETAN
KRASHNAKANT SHAH KARTA OF CHETAN K SHAH & 12 - Respondent(s)
=========================================================
Appearance
:
MR MIHIR JOSHI SR. COUNSEL with MR
PARESH M DARJI for
Appellant(s) : 1,
MR ASPI KAPADIA MR DEVANG J JOSHI for
Respondent(s) : 1,
None for Respondent(s) : 2, 2.2.1,2.2.2 - 9,
9.2.1, 9.2.2,9.2.3 -
13.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 22/03/2011
ORDER
IN APPEAL FROM ORDER
Admit.
(K.S.JHAVERI,
J.)
ORDER
IN CIVIL APPLICATION
Heard
Mr. Mihir Joshi, Senior Counsel for the applicant and Mr. Aspi
Kapadia, learned advocate for the respondent no.1.
When
this Court was inclined to grant interim relief, Mr. Kapadia
requested for adjournment which is declined.
By
the impugned order dated 22.02.2011, this Court ordered status quo
and restrained the applicant from selling or transferring the
property in question and it was further ordered that the
plaintiff-respondent may, at his own costs, after giving notice
prepare a panchnama and thereafter the parties shall maintain
status quo as per the Panchana.
From
the record, prima facie it appears that the agreement which was
sought to be executed was dated 06.03.1995 which is 15 years prior to
the filing of the suit. It also appears that the name of the
appellant/applicant was mutated in the revenue record which is
produced on record. The trial court has ordered for a Panchnama of
the property which was prepared on 08.03.2011. I
In
the Panchnama, it is stated that there are two boards found on the
premises. One Board states that Mr. Chetan Krishnakant Shah is the
owner of the said Survey No.128/6 and the trespassers will be
prosecuted. The second board states that the property bearing
Survey No.128/6 situated at village Sanand, District Ahmedabad is of
their ownership since 18.10.1995 and that the Civil Court has passed
an order in Special Civil Suit No.183/2010 to maintain status quo
of the said land. A copy of the panchnama is produced on record of
this case. It is pointed out that no notice was issued to the
applicant regarding the panchnama of the suit premises and there is
no application for preparing the Panchnama of the land in question
by any party. Learned Advocate for the respondent submitted that
the Court has power to issue directions for preparing panchnama by
relying upon provisions of Order XXVI of CPC. However, in the
present case, the fact remains that no notice has been issued to
the present petitioner for such purposes.
But
the fact remains that the respondent has taken undue advantage of the
interim injunction by placing a Board stating that there is
injunction order in his favour and that he is the holder of the
property. After granting the injunction order panchnama was ordered
to be prepared. The resultant effect is that the respondent-plaintiff
on his own, without issuing notice to the petitioner, got the
panchnama prepared and the order of the court is that such status
quo is required to be maintained. Therefore prima facie the order of
the trial court becomes perverse.
In
view of the above the following order is passed:
Rule
returnable on 4th April 2011. The impugned order
dated 22.02.2011 passed below Exh.5 in Civil Suit No.183 of 2010 by
the learned 3rd Additional Senior Civil Judge, Ahmedabad
(Rural) is stayed till next date. The appellant/applicant shall not
transfer the property in question pending the appeal.
At
this stage Mr. Kapadia, learned Advocate for the respondent has
requested for stay of the present order. However, looking to the
nature of the order passed by the trial court, this request is
declined.
(K.S.JHAVERI,
J.)
niru*
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