We have heard Mr. MTM Hakim, learned counsel holding brief of learned counsel Mr. M. I. Mansuri appearing for the appellant, Ms. Jirga Jhaveri, learned Assistant Government Pleader appearing for respondent No.1 and Mr. S. N. Shelat, learned Senior counsel assisted by Mr. Ashish H. Shah appearing for respondent No.6.
2. This Letters Patent Appeal has been filed challenging the order dated 3.1.2012 passed by the Learned Single Judge in Civil Application No.2 of 2012 in Special Civil Application No.4007 of 2007 whereby the Learned Single Judge rejected the said Civil Application of the appellant for interim protection.
3. The facts of the case are that the appellant herein – original plaintiff initially filed Regular Civil Suit No.240 of 1995 for a declaration that they are the owners and in possession of land bearing old Survey No.248 of village Damnagar, Taluka Lathi, District Amreli which is Kabrastan. The said suit was partly decreed by the learned Civil Judge, Senior Division, Amreli ('Trial Court' for short) by judgment and decree dated 29.11.2003. Against the said judgment and decree, Regular Civil Appeal No.67 of 2003 was preferred by the appellant herein before the District Court – Appellate Court, Amreli. During the pendency of the appeal before the Appellate Court, some of the villagers entered into compromise and in view of the said compromise, the appellant withdrew Regular Civil Appeal No.67 of 2003. According to learned counsel Mr. M.T.M. Hakim appearing for the appellant, the appellant was not a party to the said compromise. Therefore, it means that the appellant on its own withdrew the Appeal.
3.1 Thereafter, nothing was done by the appellant – original plaintiff with regard to execution of the judgment and decree. Meanwhile, some villagers – third party filed Second Appeal before this Court being Second Appeal Stamp No.70 of 2005 wherein Civil Application No.3427 of 2006 was also filed seeking permission of this Court for leave to appeal as they were neither party to the suit nor appeal. The said Civil Application No.3427 of 2006 came to be rejected by this Court on 13.10.2006.
3.2 The said order of this Court dated 13.10.2006 passed in Civil Application No.3427 of 2006 was challenged by the third parties before the Apex Court in SLP (Civil) No.9733 of 2007 which was later on numbered as Civil Appeal No.7208 of 2010. The Apex Court initially vide order dated 16.5.2007 passed in Special Leave to Appeal (Civil) No.9733 of 2010 while issuing notice, directed the parties to maintain status quo. A copy of the said order dated 16.5.2007 of the Apex Court has been produced before us by the learned counsel appearing for the appellant during the course of argument.
3.3 At this stage, it will be relevant to point out here that in the year 2002, vide order dated 16/17.5.2002, 30,000 Sq. Ft. of land was allotted by the Collector, Amreli in favour of respondent No.6 herein. The said order of the Collector, Amreli was confirmed by the Principal Secretary, Revenue Department (Appeals) in Revision Application vide order dated 2.2.2007. Being aggrieved by the said orders, the appellant herein preferred writ petition being Special Civil Application No.4007 of 2007 before this Court challenging the order of allotment made by the Collector, Amreli in favour of respondent No.6. In the said writ petition, by order dated 15.2.2007, the writ petition was admitted by the Learned Single Judge and the interim relief was refused. Relevant observations made by the Learned Single Judge in paragraphs 5 to 7 are extracted below :-
“5. Hence, Rule.
6. The interim relief is refused with the observation that the pendency of this petition shall not operate as a bar to petitioners in pursuing execution or implementation of the consent decree of the appellate Court, as may be permissible in law. However, in such proceedings of execution the rights and contentions of both sides should remain open. It is also clarified that in the event in the proceedings of SLP, any order is passed by the Apex Court, the rights of the parties stand governed accordingly qua the consent decree.
7. Either side may move this Court for final hearing after the decision of the Apex Court in the proceedings of the Special Leave Petition. D.S. Permitted.”
3.4 The said order dated 15.2.2007 passed by the Learned Single Judge in Special Civil Application No.4007 of 2007 refusing interim relief was challenged by the appellant by means of Letters Patent Appeal No.1116 of 2007. However, the said Letters Patent Appeal was withdrawn on 27.11.2008. The order dated 27.11.2008 passed in Letters Patent Appeal No.1116 of 2007 is extracted below :-
“Learned counsel for the appellant submits that he is not pressing the Letters Patent Appeal with liberty to raise the contentions before the learned Single Judge.
The Letters Patent Appeal, having been not pressed, stands dismissed accordingly with liberty as prayed for.
Consequently, Civil Application for stay also stands rejected.“
3.5 Thereafter, the Apex Court decided Civil Appeal No.7208 of 2010 on 31.08.2010 which was preferred by the third party and the Apex Court dismissed the said Appeal observing that the Appeal was not maintainable. Relevant paragraph 17 of the said decision is extracted below :-
“17. We are therefore of the view that the appeal by the appellants was not maintainable and the refusal to grant leave to appeal was justified, though for reasons different from what has been mentioned by the High Court. We however make it clear that the refusal to grant leave would not come in the way of the appellants pursuing any claim or remedies, if any, available in accordance with law.”
3.6 Hence, after dismissal of the Civil Appeal of the third parties, the interim order dated 16.5.2007 passed by the Apex Court regarding status-quo came to an end. While rejecting the prayer for interim relief by the Learned Single Judge in Special Civil Application No.4007 of 2007, the Learned Single Judge of this Court observed that either side can move this Court for final hearing after the decision of the Apex Court in the proceedings of the Special Leave Petition. However, instead of filing an application for early hearing of the writ petition before the Learned Single Judge, the appellant filed Civil Application No.2 of 2012 in Special Civil Application No.4007 of 2007 on 2.1.2012 seeking direction to the respondents to maintain status-quo with regard to the land in question. The Learned Single Judge by the impugned order dated 3.1.2012 rejected the said Civil Application preferred by the appellant which has been challenged in this Letters Patent Appeal.
4. It is not the case of the appellant that it was not known to them that Civil Appeal filed by the third party has been dismissed by the Apex Court on 31.08.2010. Thereafter, the appellant took no steps whatsoever for early hearing of Special Civil Application No.4007 of 2010 before this Court nor they have taken any action for executing the decree passed by the Trial Court in their favour. The only step taken by the appellant was that they filed an application being Civil Application No.2 of 2012 on 2.1.2012 for grant of interim relief that the respondents be directed to maintain status-quo with regard to the land in question. The said Civil Application has been dismissed by the Learned Single Judge by observing that when the appellant was refused any interim protection in the year 2007 while admitting the writ petition, it is not a fit case to grant any protection to the appellant. The Learned Single Judge further observed that it is always open to the appellant to move for early hearing of the petition.
5. Even we offered the appellant that we may issue a direction requesting the Learned Single Judge to decide the writ petition expeditiously. But it has not been accepted by the appellant or his counsel. The Learned Single Judge has given cogent reasons for rejecting the Civil Application filed by the appellant. In this view of the matter, we do not find any illegality in the impugned order passed by the Learned Single Judge dated 3.1.2012. This Letters Patent Appeal is devoid of any merits and is accordingly dismissed.
6. In view of dismissal of Letters Patent Appeal, no order is required to be passed in Civil Application and the same stands dismissed.
Sd/-
[V. M. SAHAI, J.] Sd/-
[A. J. DESAI, J.] Savariya