BABUBHAI NAGINDAS SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(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 22/07/1980 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 sec. 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 22/07/1980 he 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 4/01/1983.

(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 4/01/1983 (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 sec. 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 sec. 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 he 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 cave- ator 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. Whereby any genuine reason the caveator is not present at the time of hearing of the appli- cation 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.