Rule.
Learned counsel, Shri M.M. Saiyed waives service of notice of rule for respondent.
The present application has been filed by the applicant - original appellant - plaintiff for clarification in the order passed by this Court in Civil Application (for stay) No.328/2012 in Appeal from Order No.188/2012 dated 24.12.2012 on the grounds stated in the application.
Heard learned counsel, Ms.Niyati Shah for the applicant and learned counsel, Shri M.M. Saiyed for the respondent.
Learned counsel, Ms.Shah has stated that though direct service affidavit is not filed, respondent has been served. She further submitted that in the order dated 24.12.2012 passed in Civil Application No.328/2012, inadvertently order of status quo could not be passed and, hence, some clarification is required and suitable order may be passed.
Learned counsel, Shri Saiyed has stated that granting of present application amounts to review of the order and there is no need for modification or clarification.
As could be seen from the order passed in Civil Application (for stay) No.328/2012 in Appeal from Order No.188/2012, Appeal from Order has been admitted and operation of the impugned order passed below application, Exh.5 in Special Civil Suit No.588/2008 by 2nd Additional Sr. Civil Judge, Vadodara dated 04.09.2010 has been stayed, which means that application, Exh.5 for injunction has been rejected, against which, above Appeal from Order has been preferred. Therefore as stated by learned counsel, Ms.Shah, by inadvertence while admitting Appeal from Order and granting stay of the impugned order declining to grant injunction, status quo could have been directed to be maintained to avoid any multiplicity of proceedings. As could be seen from the papers, learned counsel, Ms.Shah is justified in her submission that while admitting main Appeal from Order and granting stay of the impugned order in stay application, status quo ought to have been stated, meaning thereby, injunction which has been prayed for maintaining the property intact ought to have been granted, which has not been recorded. Therefore there is no doubt with regard to the submission about such situation in which by inadvertence word status quo has not been stated. At the same time, learned counsel, Mr.Saiyed is not right when he has stated that it amounts to rehearing and reconsideration of material and order and material. It would clearly suggests that by inadvertence word status quo is not mentioned, otherwise, the order passed in Civil Application (for stay) No.328/2012 in Appeal from Order No.188/2012 would not have any effect though Appeal from Order has been admitted. Therefore, the present application deserves to be allowed.
In the circumstances, the present application stands allowed in terms of Para No.5(b) and the order passed in Civil Application (for stay) No.328/2012 in Appeal from Order No.188/2012 dated 24.12.2012 also requires clarification that status quo with regard to the property in question shall be maintained . Rule is made absolute to the aforesaid extent.
(RAJESH H.SHUKLA, J.) Gautam Page 3 of 3