SALIM AHMED MATHADA Vs. AMINABAI HUSSEIN BELA

JUDGEMENT

(1.) Rule. Mr. Bavishi, learned counsel appearing for the respondents waives service of rule. With the consent of the learned counsel for the respective parties, the matter is taken up for final hearing today.

(2.) The respondent-original plaintiff filed civil suit being Regular Civil Suit No. 84/95 in the Court of the Civil Judge, (SD), Mandavi and prayed for certain injunction by application Exh 5. It appears that after hearing the parties, and taking into consideration the pleadings and the documents produced at this stage, the trial Court granted injunction as prayed for by the respondent-palintiffs and restrained the petitioner-original defendant from in any manner interfering with the plaintiff in removing the ship in question from Mandavi Port to any other port. Such order of injunction granted by the trial Court was challenged before the Extra Assistant Judge, Kutch-Bhuj by the defendant by filing Civil Miscellaneous Appeal No. 153/95. In such appeal, application at Exh 5 was given for stay of the order passed by the trial Court. It appears that the Extra Assistant Judge admitted the appeal and fixed the same for hearing but proceeded to decide application Exh 5 on merits and by the order under challenge, he has rejected the said application calling upon the respondent-plaintiff to furnish security for the amount of Rs. 5,00,000/-.

(3.) As is pointed out by this Court in large number of decisions passed by this Extra Assistant Judge, Kutch-Bhuj, he has adopted unusual practice of admitting the Miscellaneous Civil Appeals against the order of injunction and has also adopted the practice of rejecting the application for stay at Exh 5 and thereby rendering Miscellaneous Civil Appeal meaningless. / have also adversely commented upon this practice and in an order dictated in Civil Revision Application No. 1919 of 1995, on 10th October, 1995, I have stated the reason as to why the Miscellaneous Civil Appeal which is an appeal from order under the provisions of Order 43(1)(r) of the Civil Procedure Code should not be rendered meaningless by adopting this procedure. If the learned Judge feels that the case is one where the interim relief is not required to be granted, it is always open to set down entire appeal for hearing and to decide the same on merits. It may be that he may advance vary reasons which he has advanced now for the purpose of rejecting the application Exh 5. But, by passing such an order which is challenged before this Court, he has rendered the Miscellaneous Civil Appeal meaningless and, therefore, on this count alone, this Civil Revision Application is required to be allowed and the judgment and order of the learned Extra Assistant Judge Exh. 5 in Civil Misc. Appeal No. 153/95 is required to be quashed and set aside and the matter is remanded back to him for deciding the Civil Miscellaneous Appeal after hearing the parties in accordance with law latest by 30th November, 1995. Till then, the ship in question shall not be taken out of the territorial water limits of Mandavi Port. Rule is made absolute to the aforesaid extent with no order as to costs. Writ of this order be sent to the Extra Assistant Judge, Kutch-Bhuj forthwith.