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Babubhai Nagindas Shah Vs. State and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1983)1GLR784
AppellantBabubhai Nagindas Shah
RespondentState and ors.
Excerpt:
- - the court should see that the caveator as well as the applicant have complied with the provision of this section. the lower appellate court clearly failed to exercise jurisdiction vested in it......judge, kheda at nadiad. in that appeal, he also submitted an application ex-5 and prayed for an interim relief to the effect that the order passed by the collector dated july 22,1980 be not implemented during the pendency of the appeal and the respondent nos. 1 and 3 i.e. collector and the city survey superintendent, kheda, be restrained from implementing the order.2. the learned district judge did not grant this prayer only on the ground that the other side had filed caveat. the learned district judge ordered to issue show cause notice returnable on january 4, 1983.3. it is stated at the bar that the said appeal is admitted by the learned district judge. still however, the learned district judge did not think it proper to grant interim relief as prayed for in application ex-5 filed.....
Judgment:

A.P. Ravani, J.

1. The petitioner is the original plaintiff who filed a suit No. 530/ 80 in the court of the Civil Judge (S.D.) Nadiad, challenging the legality and validity of an order dated July 22, 1980, passed by the Collector, Kheda at Nadiad, by which it was directed that staircase placed on the western wall of the shop in question be removed. The order appears to have been passed under Section 258 of the Gujarat Municipalities Act. The trial court dismissed the suit and vacated the order of interim injunction restraining the other side from removing the staircase. Thereupon, the plaintiff filed an appeal being Civil Appeal No. 218 of 1982 in the Court of the District Judge, Kheda at Nadiad. In that appeal, he also submitted an application Ex-5 and prayed for an interim relief to the effect that the order passed by the Collector dated July 22,1980 be not implemented during the pendency of the appeal and the respondent Nos. 1 and 3 i.e. Collector and the City Survey Superintendent, Kheda, be restrained from implementing the order.

2. The learned District Judge did not grant this prayer only on the ground that the other side had filed caveat. The learned District Judge ordered to issue show cause notice returnable on January 4, 1983.

3. It is stated at the Bar that the said appeal is admitted by the learned District Judge. Still however, the learned District Judge did not think it proper to grant interim relief as prayed for in application Ex-5 filed together with the appeal. The learned District Judge should have realised that the very purpose of admitting the appeal would have been frustrated inasmuch as even before January 4, 1983 (the date on which notice was made returnable), the respondents could have implemented their order and removed the staircase. When a caveat is filed, caveator is entitled to be heard before any interim relief is granted. But in that case, the caveator should remain present when the hearing of the application for interim relief takes place. In this connection, reference may be made to Section 148-A of the Code of Civil Procedure. The caveator is required to serve a notice of the caveat by a Regd. post, acknowledgment due, on the applicant who is expected to move or who has moved the court for interim stay order. When such a notice is served upon the applicant, he is required to furnish a copy to the caveator of the application made by him and also the copies of any other paper or document, which may be filed by him in support of the application. For such copies, he would be entitled to receive the amount of expenses from the caveator. When a cursery glance at Section 148-A of the Code of Civil Procedure would make it clear that the caveator is not only required to file a caveat in the court but be is also required to serve a notice by Regd. A.D. post upon the applicant. The applicant in turn, is required to furnish a copy of the application and other documents to the caveator. The applicant should also inform the caveator as to when he wants to move the court for obtaining interim relief. The office of the court should also notify the name of the caveator when the application for interim relief is posted for hearing. The court should see that the caveator as well as the applicant have complied with the provision of this section. Where by any genuine reason, the caveator is not present at the time of hearing of the application, and where the court finds that there is a prima facie case in favour of the applicant, ad-interim relief should ordinarily be granted by the court so that an irreversible situation may not be created. The caveator can be heard immediately thereafter within a short time.

4. In the facts and circumstances of this case, it appears that the lower appellate court found prima facie case in favour of the appellant and therefore, admitted the appeal. Moreover, this is a case, in which the interim relief was granted by the trial court during the pendency of the suit. The subject-matter of the suit pertains to immoveable property. There would have been no prejudice whatsoever to the other side had the ad-interim relief been granted by the lower appellate court and a notice of very short duration been given to the other side. Simply because a caveat is filed, and the caveator is absent, the court docs not become powerless to grant ad-interim relief in favour of the applicant In above view of the matter, at this stage, the ad interim relief as prayed for in paragraph 11 of the application Ex. 5 in appeal requires to be granted. The lower appellate court clearly failed to exercise jurisdiction vested in it.

5. Hence, it is ordered that the respondent Nos. 1 and 3, their servants and agents and officers be restrained from removing the cement ladder in question and they be further restrained from executing the order of Collector, Kheda at Nadiad, dated July 22, 1980 till the hearing and final disposal of Ex. 5 in Civil Appeal No. 218 of 1982 of the Court of the District Judge, Nadiad. In case the order below Ex. 5 in appeal is against the petitioner, the implementation of the order shall further be stayed by the lower court for a further period of 15 days so as to enable the petitioner-plaintiff to approach he superior legal forum, as may be available to him.

6. Rule made absolute to the aforesaid extent with no order as to costs.


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