Haji Daud Moosa Patel through P.O.A. Holder vs Mohammed Hanif Alli Patel through P.O.A. Holder and Others

A. Puj, J.—Since subject matter of both these petitions is common and parties to the petitions are also common, the same are disposed of by this common judgment and order.

The Special Civil Application No. 6293 of 2003 is filed by the petitioner/ori. Appellant/plaintiff in Regular Civil Suit No. 210 of 2002 praying for quashing and setting aside the order dated 18.1.2003 passed by the learned Jt. District Judge, Bharuch in Misc. Civil Appeal No. 78 of 2002 whereby while dismissing the Appeal, he has also quashed and set aside the judgment and order dated 12.11.2002 passed by the learned Second Jt. Civil Judge, Bharuch below application Ex.5 in Regular Civil Suit No. 210 of 2002.

The Special Civil Application No. 11793 of 2003 is filed by the petitioners/ori. Appellants/ori. defendants in Regular Civil Suit No. 209 of 2002 praying for quashing and setting aside the order dated 18.1.2003 passed by the learned Jt. District Judge, Bharuch in Misc. Civil Appeal No. 76 of 2002, whereby while dismissing the Appeal, he has also quashed and set aside the judgment and order dated 30.10.2002 passed by the learned Second Jt. Civil Judge, Bharuch below application Ex.5 in Regular Civil Suit No. 209 of 2002.

In Special Civil Application No. 6293 of 2003 notice was issued on 6.5.2003 and interim relief was granted staying the impugned judgment and order dated 18.1.2003 passed by the learned Jt. District Judge in Misc. Civil Appeal No. 78 of 2002.

In Special Civil Application No. 11793 of 2003 notice was issued on 11.8.2003 and it was ordered to be heard alongwith Special Civil Application No. 6293 of 2003.

Despite service of notice in both the petitions, nobody appears on behalf of the respondents and hence rule was issued by this Court in both the petitions on 13.10.2003 and the petitions were ordered to be expedited.

It is the case of the petitioner of Special Civil Application No. 6293 of 2003 that the petitioner has filed Regular Civil Suit No. 210 of 2002 praying for decree of permanent injunction restraining the respondents-defendants or their servants or agents from putting up window, door or constructing latrine, toilet, bathroom on western wall of the House No. 106 of the respondents Nos. 1 and 2 in Village : Kamboli, Taluka and District : Bharuch. In the said suit, the plaintiff also submitted an application Ex.5 praying for temporary injunction. Initially the learned Judge of the trial Court issued notice on application Ex.5. After service of summons, the respondents appeared and submitted their written statement.

The respondent No. 1 has also filed Regular Civil Suit No. 209 of 2002 in the Court of learned Civil Judge (S.D.) Bharuch against the petitioner and his son praying for decree of permanent injunction restraining them from interfering with the construction work of House No. 106. In the said suit an application Ex.5 was filed praying for temporary injunction.

In the suit filed by the petitioner, learned trial Judge after hearing the parties vide his judgment and order dated 12.11.2002 directed the respondents not to put up such type of construction and not to put up latrine, bathroom etc. in front of the house of the petitioner. Against this order the petitioner filed Misc. Civil Appeal No. 78 of 2002 in the Court of learned District Judge, Bharuch. The said Appeal came up for hearing before the learned Jt. District Judge, Bharuch who after hearing the parties vide his judgment and order dated 18.1.2003 dismissed the Appeal. However, while dismissing the Appeal the learned trial Judge also quashed and set aside the order dated 12.11.2002 passed by the learned trial Judge.

Being aggrieved by the said order the present petition being Special Civil Application No. 6293 of 2003 was filed by the petitioner.

It is the case of the petitioners in Special Civil Application No. 11793 of 2003 that the respondent No. 1 has filed Regular Civil Suit No. 209 of 2002 praying for decree of permanent injunction restraining the petitioners/defendants or their servants or agents for obstructing or interfering with the construction of respondent on the House No. 106 situated in Village : Kamboli, Taluka & District : Bharuch.

In the said suit the respondent/plaintiff also submitted an application Ex.5 praying for temporary injunction. Initially the learned Judge has issued notice and after service of summons the petitioners appeared and submitted their written statement at Ex.10 denying the claim put forward by the respondent/plaintiff. The learned trial Judge after hearing the parties vide his judgment and order dated 30.10.2002 directed the respondent not to put up construction and/or latrine, bathroom etc. in front of the petitioners house.

Being aggrieved by the said order the petitioners filed Misc. Civil Appeal No. 76 of 2002 in the Court of learned District Judge, Bharuch. The said Appeal came to be dismissed by order dated 18.1.2003. However, while dismissing the said Appeal the learned District Judge also quashed and set aside the order dated 30.10.2002 passed by the learned trial Judge and hence the present petition being Special Civil Application No. 11793 of 2003 was filed by the petitioners.

The petitioners in both the petitions challenged the order of the learned District Judge on the ground that in both the suits the present respondents were not aggrieved by the order passed by the learned trial Judge below an application No. 5. They were restrained from putting up any latrine or bathroom infront of the petitioners'' house. Despite the fact that the said order was not challenged by the respondent, the learned District Judge while dismissing the Appeals filed by the petitioners has also quashed and set aside the order passed by the learned trial Judge. This is absolutely contrary to the provisions of law. Unless and until such order is challenged the learned District Judge should not have quashed that part of the order which has become final. He has, therefore, submitted that the order passed by the learned District Judge is required to be quashed and set aside.

Having considered the grounds of challenge and having gone through the impugned orders passed by the learned trial Judge in both the Suits below application Ex.5 as well as the order passed by the learned District Judge, the Court is of the view that the Appeals preferred by the petitioners are only against the order passed by the learned trial Judge granting partial relief to the respondents. The Appeals are, therefore, confined to that part only. As far as stay restraining the respondents from putting up construction of latrine and bathroom in front of the petitioners'' house is concerned, that is not the subject matter of Appeals. Despite this fact, the said finding of the trial Court was disturbed by the learned District Judge which is not permissible under the law.

In the above view of the matter, the Court is of the view that the order of learned District Judge passed in Misc. Civil Appeal No. 78 of 2002 as well as Misc. Civil Appeal No. 76 of 2002 respectively is required to be quashed and set aside. When he has dismissed the Appeals, he has no authority to hold that the orders passed below application Ex.5 in Regular Civil Suits Nos. 209 and 210 of 2002 by the learned Second Jt. Civil Judge (J.D.) Bharuch on 30.10.2002 and 12.11.2002 are quashed and set aside. The Court, therefore, allows these petitions reversing the finding of learned District Judge qua quashing and setting aside of the orders of the learned trial Judge below application Ex.5 in Regular Civil Suit No. 209 and 210 of 2002.

Both these petitions are, therefore, allowed to the above extent. Rule is made absolute in each of these petitions without any order as to costs.