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SCA/10313/2011 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10313 of 2011
=======================================================
SAVITABEN
BALWANTRAI TERAIYA & 4 - Petitioner(s)
Versus
TARAIYA
DHANLAXMIBEN BALWANTRAI & 3 - Respondent(s)
=======================================================
Appearance :
MR
AV PRAJAPATI for Petitioner(s) : 1 - 5.
None for Respondent(s) : 1
- 4.
=======================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 24/08/2011
ORAL
ORDER
The
present petition has been filed under Article 227 of the Constitution
of India for the prayer that appropriate writ,
order or direction may be issued for quashing and setting aside the
Judgment & Order passed by the 3rd Additional District
Judge, Bhavnagar, Camp at Botad in Civil Misc. Application No.20 of
2011 dated 11.07.2011 on the grounds set out in the memo of petition.
The
petitioners are the original plaintiff, who has filed Civil Suit
No.39 of 2009 along with application, Exh.5, which came to be allowed
vide order dated 27.08.2009 by the Principal Civil Judge, Gadhada.
Misc. Civil Appeal No.20 of 2011 was preferred before 3rd
Additional District Judge, Bhavnagar, Camp at Botad, who vide order
dated 11.07.2011 has set aside the order passed below application,
Exh.5 and remanded the matter/application, Exh.5 before the trial
court for hearing afresh, against which, the present petition has
been filed.
Learned
counsel, Mr.Prajapati has stated that while remanding the matter for
fresh hearing, status quo ought to have been maintained, otherwise,
it would create complication in asmuchas pending the hearing of the
application, Exh.15, some banakhat was sought to be executed and the
stay/injunction was granted.
Having
heard learned counsel, Mr.Prajapati for the petitioner, the present
petition can be entertained for a limited extent. The impugned order
passed in Civil Misc. Application No.20 of 2011 by the 3rd
Additional District Judge, Bhavnagar, Camp at Botad does not require
any interference so far as it directs for remanding the
matter/application, Exh.5 for hearing afresh in accordance with law.
However, as stated by learned counsel, Mr.Prajapati that since the
interim relief has been vacated, it may be misread though it can be
hardly doubted that the matter is remanded back. Therefore, the Court
below is hereby directed to hear and decide the application, Exh.5 in
Civil Suit No.39 of 2009 afresh after hearing both sides preferably
within a period of six weeks. In the meanwhile, the status quo with
regard to property in question shall be maintained by both sides. The
Court below shall decide the application, Exh.5 on merits without
being influenced by this order and this order may not be construed in
any manner as having considered the merits of the case as the Court
has not considered the merits of the matter.
With
the above observations and directions, the present petition stands
disposed of accordingly.
Direct
service is permitted today.
(RAJESH
H.SHUKLA, J.)
/patil
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