KANUBHAI REVABHAI BHARVAD Vs. BARIYA CHIMANBHAI JESANGBHAI

JUDGEMENT

(1.) BY way of this Appeal from Order under Order 43 Rule 1, the appellant original defendant challenged the order passed below Exh.5 in Special Civil Suit No.703 of 2010 dated 24.6.2011. Heard Mr. Sunil L. Mehta, learned advocate for the appellant and Mr. Gajendra P. Baghel, learned advocate for respondent Nos.1/1 to 1/3 original plaintiffs.

(2.) MR. Mehta has taken this Court through the order impugned in this petition. MR. Mehta submitted that without going into the merits of the matter, an ex-parte order was passed by the Trial Court. It is, therefore, prayed that this Court may quash and set aside the said order and remand the matter for rehearing of the application for temporary injunction below Exh.5 in the said suit. It appears from the record that the summons was served upon mother of the appellant original defendant and MR. Baghel, learned advocate for the respondents original plaintiffs submitted that such a service is sufficient and therefore, the order cannot be termed as ex-parte.

(3.) IN the result, the appeal is allowed in the aforesaid terms. The order dated 24.6.2011 passed below Exh.5 in Special Civil Suit No.703 of 2010 by the learned 9th Additional Senior Civil Judge, Vadodara is quashed and set aside and the Trial Court is directed to rehear both the parties and decide the application Exh.5 for temporary injunction in the aforesaid suit, as directed above, as expeditiously as possible and not later than 31.1.2012. The appellant shall, however, not deal with the suit property and shall not assign, mortgage, gift or transfer the same pending hearing of Exh.5. IN the facts and circumstances of the case, the appellant is directed to pay costs of Rs.4,000/- within a period of one week from today on or before 31.12.2011 before the Trial Court. Direct service is permitted. Order in Civil Application:- Since the main Appeal from Order is allowed, the Civil Application for stay does not survive and is disposed of accordingly.