NEUTRAL CITATION
C/AO/432/2013 ORDER DATED: 04/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 432 of 2013
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AFZALKHAN HABIBKHAN PATHAN & 1 other(s)
Versus
ABDUL KARIM ABDUL RAHMAN MALEK
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Appearance:
MR CHETAN K PANDYA(1973) for the Appellant(s) No. 1,2
MR MM SAIYED(1806) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 04/09/2023
ORAL ORDER
1. Heard learned counsel Mr.Chetan Pandya and learned counsel Mr.M.M.Saiyed for the respective parties.
2. Challenge in this Appeal from Order is to the order dated 13.09.2023 passed below Exh.5 in Special Civil Suit No.399 of 2011 by which the 3rd Additional Senior Civil Judge, Surat, in favour of respondent original plaintiff, whereby defendant restrained from interfering with the right of assess as claimed in the suit. The appellant being the original defendant has preferred this Appeal from Order. This court, while admitting Appeal from Order passed the following order:
"Appeal is ADMITTED. Learned advocate Mr. Saiyed waives service of the notice of admission on behalf of the respondents.
CIVIL APPLICATION NO.11726 of 2013 :
1. Rule. Learned advocate Mr. Saiyed waives service of Rule on behalf of the opponents.
2. Perused the impugned judgment and order. Prima facie, it appears that the learned trial Judge has entirely relied Page 1 of 2 Downloaded on : Sat Sep 16 15:55:41 IST 2023 NEUTRAL CITATION C/AO/432/2013 ORDER DATED: 04/09/2023 undefined upon the observations recorded by the Court Commissioner and found that the plaintiff has right of way through the land bearing Survey No.60 and 91/1 belonging to the defendants. It appears that the Court Commissioner has made certain observations at the instance of the parties to the suit, which in turn, learned trial Judge relied upon as if the plaintiff has such right in his favour. In the eye of law, such report prepared by the Court Commissioner has no value, therefore, pending hearing of the Appeal, relief in terms of para 5(b) is granted.
3. It is clarified that learned trial Judge may proceed further with the trial uninfluenced by the observations made while passing the order in Civil Application and pendency of the Appeal.
4. Accordingly, Civil Application stands disposed of. Rule is made absolute to the aforesaid extent."
3. Mr.M.M. Saiyed states that respondent original plaintiff has passed away. Application for bringing legal heirs of the deceased is pending before the Civil Court. Considering the issue raised in this petition, without entering into the merits of the case, Civil Court shall dispose of Civil Suit expeditiously, preferably within the period of one year from the receipt of this order.
4. Interim relief referred above dated 19.06.2014 is confirmed till final disposal of the suit. This Court has not gone into the merits of the case. Learned trial Court shall allow the application for bringing the heirs of the deceased. Parties are at liberty to place on record report of the Collector as called for by this Court.
Direct service is permitted.
(ILESH J. VORA,J) SUDHIR Page 2 of 2 Downloaded on : Sat Sep 16 15:55:41 IST 2023