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SCA/5700/2008 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5700 of 2008
=========================================================
M/S
RADHESHYAM BUILDERS THRO POA JAYDEV RAMDEVBHAI - Petitioner(s)
Versus
ANTUBHAI
PURSHOTTAMDAS PANDYA - Respondent(s)
=========================================================
Appearance
:
MR
JD AJMERA for
Petitioner(s) : 1,
None for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 28/07/2008
ORAL
ORDER
By
way of this petition under Article 227 of the Constitution of India,
the petitioner ? original plaintiff/respondent has prayed for
appropriate writ, order and/or direction, for quashing and setting
aside the order dtd.31/12/2007 passed by the learned Additional
District Judge, Bhavnagar in Misc.Civil Appeal No.112 of 2006, in
allowing the said appeal preferred by the original defendant and
quashing and setting aside the order dtd.5/7/2006 passed by the
learned Additional Senior Civil Judge, Bhavnagar below application
Ex.5 in Special Civil Suit No.73 of 2004.
The
petitioner ? original plaintiff filed Special Civil Suit No.73 of
2004 in the court of learned Civil Judge (SD), Bhavnagar for
mandatory injunction/relief directing the defendant to restore the
possession. In the said suit, the petitioner ? original plaintiff
submitted an application at Ex.5 and prayed for interim injunction
directing the respondent ? original defendant to restore the
possession and in the alternate to pay mesne profit. It is to be
noted that in the said suit, the defendant also submitted counter
claim at Ex.13.
The
trial court vide order dt.5/7/2006 allowed the application Ex.5 and
by way of interim injunction directed the defendant to restore the
possession to the plaintiff and further directed that till the
possession is handed over as per the order passed below application
Ex.5, the defendant to pay Rs.4000=00 towards mesne profit. Being
aggrieved by and dissatisfied with the said order passed below
application Ex.5, the respondent ? original defendant preferred
Misc. Civil Appeal No.112 of 2006 before the appellate court, which
came to be heard, decided and disposed of by the learned Additional
Sessions Judge, Bhavnagar vide judgement and order dtd.31/12/2007,
in allowing the appeal and quashing and setting aside the order
passed below application Ex.5, by observing that such a mandatory
relief could not have been granted by the learned trial court while
deciding the application Ex.5, more particularly when the main
relief itself is for restoring the possession. The learned appellate
court also observed that at the state of deciding application Ex.5,
there is no question of paying any mesne profit. Being aggrieved by
the impugned judgement and order passed by the learned appellate
court in allowing he appeal by quashing and setting aside the order
passed below application Ex.5, the petitioner ? original plaintiff
has preferred the present Special Civil Application under Article
227 of the Constitution of India.
Mr.J.D.
Ajmera, learned advocate appearing on behalf of the petitioner ?
original plaintiff has submitted that considering the fact that the
original plaintiff has been duped and the possession has been taken
over by the respondent ? defendant without paying any
consideration, the trial court was justified in allowing the
application Ex.5 and the same could not have been interfered with by
the learned appellate court.
Considering
the fact that the learned trial court while deciding the application
Ex.5 has granted the relief which was final relief prayed by the
plaintiff in the suit and even granted mesne profit while deciding
the application Ex.5 and the appellate court has reversed the said
order, it cannot be said that the learned appellate court has
committed any error. Mesne profit can be awarded only at the time of
passing final judgement and decree and if it is found that the
defendant was in illegal possession of the suit property. Under the
circumstances, no illegality has been committed by the learned
appellate court while allowing the appeal and quashing and setting
aside the order passed by the trial court below application Ex.5.
No interference of this court, in exercise of the powers under
Article 227 of the Constitution of India, is called for and hence
the petition is required to be dismissed and is accordingly
dismissed.
It
will be open for the petitioner ? original plaintiff to move
appropriate application for expeditious hearing of the suit and in
case of filing such application, the same may be considered by the
trial court keeping in mind the fact that the suit is of the year
2004.
[M.R.
SHAH, J.]
rafik
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