BHANUBHAI MOHANLAL BHATT Vs. VINAYAK DEVELOPERS, BHUJ

JUDGEMENT

(1.) xxx xxx xxx

(2.) The Extra Assistant Judge, Kutch-Bhuj has vide judgment and order, dated 23-9-95 dismissed the application at Exh. 5 tendered in Civil Misc. Appeal No: 152/95 while admitting the said appeal. The appeal was preferred by the petitioner-plaintiff against the order of the 3rd Civil Judge (K.D.) vacating the ad interim relief. Against such order Appeal from Order under Order 43 Rule 1 lie to the District Court and in the present case it is assigned to the Extra Assistant Judge.

(3.) The grievance made before this Court in number of order passed below Exh. 5 in M.C.A. by this Extra Assistant Judge, Mr. Kirtidev R. Dave, is that while he admits CMA while passing order on Exh. 5 in appeal by dismissing such application he virtually decides the appeal. The hearing of appeal thereafter become a more formality and it must meet one fate only and i.e., of dismissal. It becomes fait accomplice. In my sitting throughout this session I have come across 5th such order of this very learned Judge which has been rendered the CMA absolute meaningless by separately deciding Exh. 5 and refusing interim relief. This is one of such orders. This Court has time and again pointed out that if the appellate court while deciding AO under Order 43 and while hearing Exh. 5 application finds that there is no case made out for grant of interim relief and or maintenance of status quo, then it must immediately set down the appeal for hearing and must decide the appeal alongwith application. The very ground which convinced him for rejecting application would be the ground for rejecting and/or dismissing the appeal. This Court has failed to understand this nature of exercise of power by the Extra Assistant Judge who rejects Exh. 5 application in CMA while admitting the appeal to be decide in future virtually he thereby renders the appeal meaningless. It is under these circumstances only, without expressing any opinion on merits, the order of the Ld. Extra Assistant Judge, dated 22-9-95 is required to be quashed and is hereby quashed with direction to the parties to maintain status quo till 30th November, 1995 and further directing the Extra Assistant Judge to decide the CMA No. 162/95 on merits after hearing both the patties. Rule is made absolute to the aforesaid extent. No costs. The Registrar is directed to send down copy of this Judgment to the Extra Assistant Judge, Kutch-Bhuj namely Mr. Kirtidev R. Dave with farther direction to him to scrupulously comply with the orders of the court and to fallow the same in future while deciding CMA.s.