BIPINBHAI KESHAVLAL MEHTA Vs. HAMIDABANU KHADIMHUSSAIN MOMIN

JUDGEMENT

(1.) IN both Appeal from Orders as common question of law and facts arise and between the same parties, they are being disposed of by this common judgment and order.

(2.) BOTH Appeal from Order No. 358 of 2008 and Appeal from Order No. 367 of 2008 are preferred by the appellant herein - original defendant to quash and set aside the order dated 28. 05. 2008 passed by the learned City Civil Court Judge at Ahmedabad below Exh. 35 and 36 and order dated 08. 02. 2008 passed in Notice of Motion in Civil Suit No. 41 of 2008.

(3.) RESPONDENT herein - original plaintiff has instituted Civil Suit No. 41 of 2008 against the appellant herein - original defendant in the City Civil Court, Ahmedabad for permanent injunction restraining original defendant from carrying out construction in his premises bearing city survey No. 2834 situated adjacent to the property of the plaintiff in the City of Ahmedabad at Ward Raikhad - 1 so as not to cause hindrance by the defendant in his easementary right. In the said suit original plaintiff took out Notice of Motion and prayed for injunction restraining the defendant from putting up construction adjacent to common wall having door and window so as to not to obstruct easementary right of the plaintiff. That initially the learned Chamber Judge granted ad-interim injunction below Notice of Motion and subsequently said Notice of Motion came to be allowed by the learned Judge vide order dated 08. 02. 2008 and the learned Judge granted interim injunction in terms of para - 10 (A) of Notice of Motion till final disposal of the suit. It appears that thereafter the appellant - original defendant submitted application Exh. 35 and 36 for modification and/or setting aside the order below Notice of Motion and to appoint Court Commissioner by submitting that defendant had obtained map from the City Survey Office on 11. 03. 2008 from which it becomes clear that the wall between Survey No. 3077 and 3080 is common and there was no window or door in it. That the learned Chamber Judge vide impugned order dated 28. 05. 2008 dismissed both the Applications Exh. 35 and 36. Hence, the appellant - original defendant has preferred present Appeal from Orders.