2003 Supreme(Guj) 105

Gujarat High Court
Judgename :P.B.MAJMUDAR
NAUTAMSWAMI GURU VASUDEV - Appellant
Versus
HARJIBHAI NANJIBHAI BHIMANI - Respondent
C.A. 1411 of 2003
Decided On : 02/27/2003

Headnote:

Constitution of India - Learned Advocate service of rule on behalf of the respondents learned Advocate waives service of rule on behalf of the respondent - Appeal From Order is admitted by this Court today and the same is now fixed for final hearing - Civil Application is filed by the appellant with a prayer that during the pendency of the Civil Application ex-parte ad-interim order passed by the learned Civil Judge in Civil Suit be stayed - Since the original Appeal From Order is filed against the ex-parte order of the trial Court which is admitted by this Court, the question which requires to be considered in this Civil Application is whether the petitioner has made out any strong prima facie case for getting interim relief and whether in the facts and circumstances of the case interim relief prayed for can be granted during the pendency of the Appeal From Order - In order to consider the controversy between the parties it is necessary to refer to the facts of the case - Court of Civil Judge in which there is a prayer that one and his son have got no right to continue as an of the aforesaid institution - Since this Court is not directly concerned with the aforesaid suit in the present proceedings it is not necessary to refer the details of the said suit - Reference to the said suit is made for a limited purpose with regard to some interim relief granted by the trial Court in the said suit - In the aforesaid suit, the trial Court granted injunction in favour of the plaintiffs by which the aforesaid was prevented from acting as an said order is carried further by way of Appeal From Order being Appeal From Order - This Court has admitted said Appeal From order of the learned Single Judge of this Court is made available for my perusal by the learned Advocates of both the sides and I have gone through the contents of the said order - Held, Impugned order of the trial Court - As a matter of fact, this aspect comparative strength was required to be considered by the trial Court at the time of granting injunction but even otherwise on merits also after considering the comparative case of both the sides the order of the trial Court is required to be suspended for the reasons which I have already narrated in the earlier part of this order - As a matter of fact the trial Court even before granting the injunction was required to consider the said aspect about the comparative strength of the case of both the sides and that can be decided only after hearing both the sides do not find any substance in the said contention of also further submitted that has no locus to appoint new however this argument is not required to be dealt with in the present proceedings especially when, this very question about the powers of the and the matter of removal is pending before this Court - I am more concerned with the question whether the trial Court was right in granting ex parte injunction without following the provisions - Interim stage as it may prejudice the case of either side however has requested that all his arguments may be taken into consideration and detailed reasons be assigned such reasons are given - Order of the trial Court is accordingly suspended during the pendency of the present Appeal From Order - It is also required to be noted that the learned trial Judge has also referred the same material which is already considered by this Court in Appeal From Order judgment of Court Civil Court the order of the High Court in First Appeal as well as some religious books and yet, the trial Court has granted injunction which is not granted by the High Court - Trial Court at the time of deciding has considered in great details the point involved in the matter at an ex parte stage - It would be desirable that this application be decided by another Judge - Under the circumstances the learned District Judge is directed to assign this matter Special Civil Suit to another Civil Judge and if there is no other Senior Division Court the matter may be assigned to another Senior Division Judge - Writ be sent to the District Judge, forthwith - Rule in this Civil Application is accordingly made absolute with no order as to costs. At this stage, request is made by the learned Senior Advocate for staying this order for a week with a view to challenge the said order. However, in the facts and circumstances of the case the said request is rejected - Ordered Accodingly.