M/S. SHREE NARAYAN CORPORATION VERSUS HANSABEN, D/O. MANGIBAI JOGIBHAI
------------------------------------------------------- Mr. Yatin N. Oza, Sr. Advocate with Mr. H.S. Tolia for appellants Mr. B.A. Surti, advocate for respondent Nos.3 & 4 on Caveat.
------------------------------------------------------- Coram: A.M. Kapadia, J.
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April 2, 2002.
Oral order:
1.In this Appeal from Order which is filed under Order 43 Rule 1 (r) of the Code of Civil Procedure ('the Code' for short), appellants/ original plaintiffs seek to challenge the order dated March 11, 2002 recorded below application Ex.5 in Special Civil Suit No. 368 of 2001 by the learned 6th Joint Civil Judge (S.D.)., Surat by which the application Ex.5 filed under the provisions of Order 39 Rule 1 and 2 of the Code by the appellants against the respondents for restraining them from transferring or alienating the property described in paragraph 3 of the application ('the suit property' for short) till the disposal of the suit, came to be rejected and thereby the earlier ex-parte order granting status quo has been vacated.
2.When the matter is called out today, Mr. Yatin N. Oza, learned Sr. Advocate with Mr. H.S. Tolia, learned advocate, is present for the appellants and Mr. B.A. Surti, learned advocate who appears on caveat for respondent Nos.3 and 4 is also present.
3.After the matter is argued by the learned advocates appearing for the parties, Mr. Oza, learned Sr. Advocate sought leave to withdraw the AO with a request that appropriate direction for expeditious hearing of the suit may be issued to the trial court. He however requested that it may also be observed by this Court that the order recorded by the trial court for not granting injunction in favour of the appellants is tentative in nature and it has no bearing on the result of the suit.
4.Mr. Surti, learned advocate for respondent Nos.3 and 4 has no objection if leave to withdraw the AO is granted and direction for expeditious hearing of the suit is issued to the learned trial Judge.
5.In view of the aforesaid state of affairs, leave to withdraw the AO is granted. The AO stands disposed of as it is withdrawn with no order as to costs.
6.In view of the disposal of the AO, civil application filed for stay of the impugned order does not assume any survival value and hence the same is also disposed of with no order as to costs.
7.In the facts and no the circumstances emerging from the record of the case and more particularly triable issues are involved in the suit, it would be in the interest of justice to issue direction to the learned trial Judge for expeditious hearing of the suit. Therefore, the learned trial Judge is directed to give priority to the hearing of the suit and dispose of the same on or before December 31, 2002. However, in doing so regard shall also be had to the exigency of the pending files on his Board. It is also clarified that no observation made by the trial court while deciding application Ex.5 in favour of the respondents and withdrawal of the AO preferred by the appellants before this Court shall be construed as an expression of opinion on the merit of the case. The learned trial Judge shall decide the suit on the basis of the oral as well as documentary evidence that may be adduced and produced before him uninfluenced by the fact that application Ex.5 has been decided in favour of the respondents and the AO filed against that order before this Court has been withdrawn by the appellants.
(A.M. Kapadia, J.)
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(karan)