Lhs Of Parbhubhai Laljibhai ... vs Balvantbhai Laljibhai Chokidar
2022 Latest Caselaw 7664 Guj

      C/SCA/17245/2022                             ORDER DATED: 07/09/2022




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CIVIL APPLICATION NO. 17245 of 2022

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                  LHS OF PARBHUBHAI LALJIBHAI CHOKIDAR
                                 Versus
                     BALVANTBHAI LALJIBHAI CHOKIDAR
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Appearance:
MR SHIVANG M SHAH(5916) for the Petitioner(s) No. 1,1.1,1.2,1.3,1.4
MS DHARA M SHAH(5546) for the Petitioner(s) No. 1,1.1,1.2,1.3,1.4
for the Respondent(s) No. 1,2,2.1,2.2,2.3,2.4
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     CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

                             Date : 07/09/2022

                               ORAL ORDER

1. This petition is filed under Articles 226 & 227 of the

Constitution of India challenging the order passed below Exhibit - 5

in Regular Civil Appeal No.20 of 2020, whereby vide order dated

25.01.2022, an application filed by appellant therein praying for stay

during the pendency of the appeal, came to be allowed directing stay

of the judgment and decree as also both the parties were directed to

maintain status quo till the final disposal of the appeal.

2. The petitioners - original defendants have preferred this

petition challenging the aforesaid order on the ground that since the

suit is already dismissed, there is no need to grant any injunction,

pointing out certain observations in the judgment and decree,

dismissing the suit.

C/SCA/17245/2022 ORDER DATED: 07/09/2022

3. Ms. Dhara M. Shah, learned advocate for the petitioners

submitted that if reasons assigned by the learned Trial Court while

dismissing the suit are seen, there is no scope for appeal being

allowed and therefore, she has requested that the order impugned is

required to be quashed and set aside.

4. Having heard the learned advocate for the petitioners as

also going through the record and the order impugned annexed with

the petition, it appears that during the pendency of suit there was an

agreement arrived at between the parties by written endorsement

that without prejudice the rights and contentions in the suit, till the

disposal of the suit parties were restrained from transferring the suit

land. In view of the fact that though the said endorsement was

voluntary till the disposal of the suit, however, on dismissal of the

suit, the plaintiff has right of appeal and the appellate Court is

supposed to examine the case both on facts as also on law. If that

arrangement now, maybe by an order of the Court is continued, the

interest of both the parties would be protected. Any argument based

on merit of the case right now, which is open, as challenged by way

of an appeal, is required to be avoided for the present and therefore,

when the appellate Court has stayed that judgment and decree

during the pendency of appeal, directing both the parties to maintain

C/SCA/17245/2022 ORDER DATED: 07/09/2022

status quo in respect of the suit property till the disposal of the same,

I see no reason to interfere with the said order, more particularly

when appeal itself is pending.

5. In view thereof, the present petition is rejected.

(UMESH A. TRIVEDI, J) Lalji Desai