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SCA/9134/2009 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9134 of 2009
=========================================================
VARUN
ENTERPRISES & 1 - Petitioner(s)
Versus
GEV
RUSTOMJI VAID & 15 - Respondent(s)
=========================================================
Appearance
:
MR
MB GANDHI for
Petitioner(s) : 1 - 2.MR CHINMAY M GANDHI for Petitioner(s) : 1 -
2.
None for Respondent(s) : 1, 4,
MR PS CHARI for Respondent(s)
: 1.2.1
MR AR MAJMUDAR for Respondent(s) : 1.2.1
NOTICE
SERVED BY DS for Respondent(s) : 2 - 4, 4.2.2, 4.2.3,4.2.4 -
16.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 19/01/2011
ORAL
ORDER
1. The
petitioners, herein have challenged the order dated 11.08.2009 passed
below Ex. 43 by Additional Senior Civil Judge, Valsad in Special
Civil Suit No. 69 of 2005 whereby the application was allowed.
2. It
is the case of the petitioners that Special Civil Suit No. 69/2005
was filed and for a period of about one year no application for
injunction was moved. In the midst of the suit proceedings,
application for injunction was moved and ex-parte injunction was
obtained which was challenged by way of Appeal from Order No. 23/2007
before this court and the same was allowed by this court. The trial
court was directed by this court to re-hear the said injunction
application.
2.1 It
is further the case of the petitioners that after re-hearing the
injunction was granted against which the petitioners filed Appeal
from Order No. 65/2007 before this court. The said Appeal from
Order was allowed by this court and it was ordered therein that the
original defendants nos. 16 & 17 shall carry out the further
construction and complete the same, but the final construction shall
be subject to the final outcome of the suit. Thereafter, vide Ex. 43
the original plaintiff made an application for amendment and sought
for mandatory reliefs therein which came to be granted by the trial
court vide impugned order dated 11.08.2009. Being aggrieved by the
said order, the present petition is filed.
3. Mr.
M.B. Gandhi, learned advocate appearing for the petitioners has
submitted that in view of the observations made by this court in
earlier proceedings being Appeal from Order No. 65/2007, the grant of
amendment application shall amount to going contrary to the order of
this court. He has submitted that by the orders of this court, the
construction is permitted to be carried out and completed and
therefore the plaintiff has no right to amend the prayer and say that
the construction is illegal and therefore the amendment application
ought not to have been granted by the trial court.
4. This
court has heard learned advocates for the parties and perused the
papers on record. From the records, more particularly the order
dated 29.08.2009 passed in Appeal from Order No. 65 of 2007 it
transpires that the construction is permitted to be put up with a
rider that whatever construction made by the present
petitioners-original defendants nos. 16 & 17 the same shall be
subject to final outcome of the suit. In my view, the trial court
has only allowed the amendment to be carried out. No prayers
prejudicing the petitioners are granted by the trial court. In that
view of the matter, this court is not inclined to cause interference
at this stage. However, in the interest of justice it is directed
that it shall be open to the petitioners to file additional reply to
the amended plaint and lead all defences at the time of trial so as
to enable the trial court to arrive at a prudent conclusion.
5. In
the premises aforesaid, petition is dismissed. The trial court shall
consider the additional reply, if any, filed by the petitioners to
the amended suit and additional evidence adduced and decide the suit
in accordance with law without being influenced by the order of this
court. Notice is discharged. Interim relief, if any stands
vacated.
(K.S.
JHAVERI, J.)
Divya//
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