Jigneshbhai Chinubhai Patel and anr. Vs. Hareshbhai Pujabhai Prajapati and ors. - Court Judgment

Excerpt:
[p. sathasivam ; h.l. gokhale, j.j.] - the indian penal code, 1860 section 302 - punishment for murder -- sunil yadav s/o musafir yadav was instituted. sunil yadav was instituted. on 29.04.1997, about 5:30 a.m., at nawada sadar hospital, si anil kumar gupta recorded the statement of sunil yadav s/o musafir yadav and on the basis of his statement fir no 12/97 was registered with govindpur p.s under sections 147, 148, 149, 323, 324, 307, 447 ipc against upendra yadav, rambalak yadav, basudev yadav, anil yadav, manager yadav, ganuari yadav, damodar yadav, suresh yadav, umesh yadav, muni yadav and naresh yadav. the charge-sheet bearing no. 12/97 was submitted in fir no. 11/97 p.s. govindpur, on 30.06.1997 against brahamdeo yadav, sunil yadav, darogi mahto, maho yadav, paro mahto, kuldeep yadav, sudhir yadav, bale yadav, shivan yadav and suraj yadav and sunil yadav who was later instituted. the charge sheet bearing no. 36/97 was also submitted in fir no. 12/97 p.s. govindpur, on 17.12.1997 against upendra yadav, rambalak yadav, basudev yadav, anil yadav, manager yadav, ganuari yadav, damodar yadav, umesh yadav, muni yadav and naresh yadav except suresh yadav s/o kesho yadav as he had died. informant-naresh yadav (pw-9) informant-sunil yadav (a9 in fir 11/97) brahmdeo yadav, darogi mahto, sunil s/o bale yadav, maho yadav, kuldeep yadav, bale yadav, suraj yadav, shiv nandan yadav, sunil yadav s/o musafir yadav, sudhir yadav and paro mahto, total 11 persons forming a group came there and surrounded them. brahmdeo yadav, sunil yadav, darogi mahto and maho yadav were armed with rifle. bale yadav, kuldeep yadav, shiv nandan yadav and suraj yadav were armed with gandassa. kuldeep yadav gave gandassa blow to munshi yadav.1. mr. raval, learned counsel for the appellants seek permission to delete respondents nos. 3 to 7. permission is granted. respondents nos. 3 to 7 stand deleted from the proceedings.2. admit. mr. prajapati, learned counsel waives service of admission on behalf of respondents nos. 1 and 2. with the consent of the parties, the matter is taken up for hearing today.3. this petition has been filed against the judgment and order passed by the learned 5^th additional senior civil judge, ahmedabad (rural) below exh. 5 in special civil suit no. 289/2008 dated 30.12.2009, whereby, status-quo was directed to be maintained by both the parties till final disposal of the suit.4. the facts in brief are that the original plaintiffs-respondents nos. 1 and 2 have preferred special civil suit no. 289/2008 before the court of learned principal civil judge, for the specific performance. however, during the pendency of the said suit, respondents nos. 1 and 2 have also preferred application below exh. 5 for interim injunction. 5. in the said suit the appellants herein were the respondents nos. 6 & 7 and the original land owners were respondents nos. 1 to 5. however, the trial court vide order dated 30.12.2009 partly allowed the application exh. 5 filed by the original plaintiffs and directed both the parties to maintain status-quo till the final disposal of the suit. being aggrieved by the said order, the appellants have approached this court by way of this appeal.6. heard learned counsel for the respective parties and perused the documents on record. it is the case of the appellants that before passing the impugned order dated 30.12.2009, the appellants were not heard. on perusal of the record, i find substance in the said contention raised by the appellants inasmuch as there is nothing on record to show that the appellants were heard before passing the impugned order. 7. the learned advocate for the respondents was not in a position to controvert the above position. in the fitness of things, it would be appropriate that the trial court decides the matter afresh, after giving due opportunity to the appellants to present its case.8. in view of the above discussion, the petition is allowed. the impugned order dated 30.12.2009 passed by the trial court is quashed and set aside. the matter is remanded to the trial court for fresh consideration. the appellants will approach the trial court on 07.02.2011. 9. thereafter, the trial court shall proceed with the hearing of the application below exh. 5 and after giving due opportunity to both the sides to present its case, shall render its decision. it is, however, observed that while deciding the application afresh, the trial court shall not be influenced by the fact that this court has quashed its earlier order and shall decide the same on merits, in accordance with law. this court has not entered into the merits of the case and has remanded the matter only on account of the fact that the appellants were not heard before passing the impugned order.10. with the above observations, the appeal stands disposed of. notice is discharged. no order as to costs.

Judgment:
1. Mr. Raval, learned counsel for the appellants seek permission to delete respondents nos. 3 to 7. Permission is granted. Respondents nos. 3 to 7 stand deleted from the proceedings.

2. ADMIT. Mr. Prajapati, learned counsel waives service of admission on behalf of respondents nos. 1 and 2. With the consent of the parties, the matter is taken up for hearing today.

3. This petition has been filed against the judgment and order passed by the learned 5^th Additional Senior Civil Judge, Ahmedabad (Rural) below Exh. 5 in Special Civil Suit No. 289/2008 dated 30.12.2009, whereby, status-quo was directed to be maintained by both the parties till final disposal of the suit.

4. The facts in brief are that the original plaintiffs-respondents nos. 1 and 2 have preferred Special Civil Suit No. 289/2008 before the Court of learned Principal Civil Judge, for the specific performance. However, during the pendency of the said suit, respondents nos. 1 and 2 have also preferred application below Exh. 5 for interim injunction.

5. In the said suit the appellants herein were the respondents nos. 6 & 7 and the original land owners were respondents nos. 1 to 5. However, the trial Court vide order dated 30.12.2009 partly allowed the application Exh. 5 filed by the original plaintiffs and directed both the parties to maintain status-quo till the final disposal of the suit. Being aggrieved by the said order, the appellants have approached this Court by way of this appeal.

6. Heard learned counsel for the respective parties and perused the documents on record. It is the case of the appellants that before passing the impugned order dated 30.12.2009, the appellants were not heard. On perusal of the record, I find substance in the said contention raised by the appellants inasmuch as there is nothing on record to show that the appellants were heard before passing the impugned order.

7. The learned advocate for the respondents was not in a position to controvert the above position. In the fitness of things, it would be appropriate that the trial Court decides the matter afresh, after giving due opportunity to the appellants to present its case.

8. In view of the above discussion, the petition is allowed. The impugned order dated 30.12.2009 passed by the trial Court is quashed and set aside. The matter is remanded to the trial Court for fresh consideration. The appellants will approach the trial Court on 07.02.2011.

9. Thereafter, the trial Court shall proceed with the hearing of the application below Exh. 5 and after giving due opportunity to both the sides to present its case, shall render its decision. It is, however, observed that while deciding the application afresh, the trial Court shall not be influenced by the fact that this Court has quashed its earlier order and shall decide the same on merits, in accordance with law. This Court has not entered into the merits of the case and has remanded the matter only on account of the fact that the appellants were not heard before passing the impugned order.

10. With the above observations, the appeal stands disposed of. Notice is discharged. No order as to costs.