BADRUNNISHA MOHMMAD SIKADAR Vs. KESHIBEN JETHALAL PARMAR

JUDGEMENT

(1.) The appellant- original plaintiff,by way of this Appeal From Order, challenges the order dated 25th June 1999 below Ex. 42 in Civil Suit No. 5025 of 1998 passed by the learned City Civil Judge, Ahmedabad, allowing the application for reviewing order Ex. 6.

(2.) The appellant filed the suit praying for permanent injunction restraining the respondents defendants from putting up any construction on the alleged margin land situated on the western side of the property of the appellant bearing city survey no. 31, Raikhad, Ahmedabad. In the said suit, the appellant took out Notice of Motion Ex. 5 and 6 praying for temporary injunction against the respondents. The learned Chamber Judge, by an ex-parte order dated 16th October 1998, directed the respondents to maintain status quo. As per the Commissioner's report, the respondents, on the returnable date, i.e. on 13th November 1998, submitted written statement Ex. 23 together with documentary evidence along with list Ex. 25 and prayed to vacate the interim order. On November 13,1998 itself, the appellant, vide application Ex. 21, applied for extension of interim order. It was objected by the respondents. The learned Chamber Judge, after hearing the parties, modified the previous ex-parte order and directed the respondents not to put up structure in between the passage shown in the report of the Court Commissioner. It is the case of the respondents that the respondent no.2 started construction strictly following the order of the Court and completed the construction upto the third floor. Thereafter, the aforesaid Notice of Motion was listed for hearing on 11/12th January 1999. On 11th January 1999, it appears that the matter did not reach for hearing. On 12th January 1999, at about 10.30 a.m., the advocate for the respondents was required to go to doctor for check up and treatment. He had informed his colleague to mention the matter before the Court and to request the Court for keeping back the matter for some time as he was likely to reach the Court a little late. When the matter was called out at about 11.20 a.m., he mentioned the matter before the Court. However, the Court started hearing the arguments of the appellant's advocate and passed an order without hearing the advocate for the respondents, directing the respondents to maintain status quo and to refrain from carrying on construction in between the space of 10" between the properties of survey nos. 31 and 32 making Rule absolute till the final disposal of the suit.

(3.) Against the said decision, the respondent no.2 preferred appeal being Appeal From Order No. 44 of 1999 before this Court. On 4th February 1999, the said Appeal From Order came up for hearing before my learned brother Y.B.Bhatt,J. and the following order was passed:-