PATEL JASMAT SANGHAJI Vs. GUJARAT ELECTRICITY BOARD

JUDGEMENT

(1.) This is a revision application brought to this court by the original plaintiff of the regular Civil suit no. 224 of 1980 pending in the court of the Civil Judge (J. D.) Dhoraji and who was the respondent before the appellate authority at Gondal in the Civil Misc. Appeal no. 53 of 1980 on his file. This applicant-plaintiff had filed the said suit in the court of said Civil Judge (J. D.) Dhoraji for the purpose of getting an injunction against the Electricity Board its Executive Engineer and its Deputy Engineer restraining them from installing any pillars or electric line in his land S. No. 528 situated in the sim of village Moti Marad. During the pendency of suit he had filed an application Ex. 20 for a temporary injunction by invoking provisions of Order 39 Rule 1 & 2 of the Civil Procedure Code. The learned trial Judge had passed the ex-parte order below that application in the following terms:

(2.) The defendants soon on being served chose not to approach the learned trial Judge for vacating the injunction but preferred the appeal before the appellate authority at Gondal. The appeal came to be registered as the Civil Misc. Appeal no. 53/80 and the learned appellate Judge at Gondal admitted the appeal and it appears he suspended the operation of the ex-parte interim injunction. The original plaintiff appeared before the learned appellate Judge and gave the application Ex. 13 putting forth certain objections to the maintainability of the appeal under Order 43 Rule 1 (r) of the Civil Procedure Code. Two grounds were advanced in the application Ex. 13. Firstly it was alleged that what was issued by the learned trial Judge was only an ex-parte order and that when the learned trial Judge was willing to hear the order side rushing to the appellate court was uncalled for. It was secondly urged that the appeal under Order 43 Rule 1(r) lay only against the order passed by the trial court bi parte and not against an ex-parte order. The learned appellate Judge by his order dated 7-3-81 rejected that application Ex. 13 and held that an appeal did lie under Order 43 Rule 1(r) of the Code even against an ex-parte order of injunction granted by the trial Court.

(3.) Being aggrieved by the aforesaid order passed by the learned appellate Judge this revision application was brought to this court. It was admitted by me sitting as a Single Judge but I thought that it was advisable to have the decision of the Division Bench of this court in view of the conflict between the Madras High Courts on one side and the Allahabad and the Bombay High Courts on the other. Incidentally the matter has come up to-day before me sitting with my brother I. C. Bhatt J.