Enercon (India) Limited vs Nana Panch Devda Gram Panchayat

Abhilasha Kumari, J.—Rule. Mr. R.C. Kakkad, learned Counsel, waives service of notice of Rule on behalf of the Respondent. In the facts and circumstances of the case and with the consent of the learned Counsel for the respective parties, the petition is being heard and disposed of, today.

This petition has been preferred under Article 227 of the Constitution of India with a prayer to quash and set aside order dated 14.10.2009 passed by the Trial Court below application at Exhibit 29 in Regular Civil Suit No. 47 of 2009, whereby, the said application, praying for a direction to hear and decide applications at Ex.30 and 38, filed by the petitioner under the provisions of Order 7, Rule 11 of the Code of Civil Procedure, 1908 ("the Code"), has been rejected.

The brief facts of the case are that the respondent-Gram Panchayat filed the above-mentioned suit for declaration and permanent injunction against the petitioner-Company. The petitioner-Company is engaged in the activity of installing Wind-Mills in order to generate electricity. It is stated in the petition that the said activity is being promoted by the State of Gujarat and in furtherance thereof, the petitioner has purchased the property with a view to installing the Wind-Mills. The respondent-plaintiff has filed an application for grant of injunction at Exhibit 5, which is pending. The petitioner-defendant has also filed various applications. Two amongst the said applications, i.e. Ex.30 and Ex.38, have been filed under the provisions of Order 7, Rule 11 of the Code. The petitioner filed an application at Ex.29, with a prayer to hear and decide the applications filed under Order 7, Rule 11 of the Code first, below which the impugned order has passed, rejecting the said application, giving rise to the filing of the petition.

Mr. Tushar Mehta, learned Senior Advocate, has submitted that the contents of the impugned order go to show that the reasoning advanced by the Court below is in favour of the petitioner. However, the first operative part of the order states that the application has been rejected. At the same time, the second operative part of the order directs that applications at Ex.30 and 38, among others, be heard before other applications. The said applications are applications under the provisions of Order 7, Rule 11 of the Code, therefore, there is an inconsistency in the first and second operative parts of the impugned order. The learned Senior Advocate has brought to the notice of this Court, a judgment rendered by a learned Single Judge of this Court in Special Civil Application No. 15792 of 2004 Enercon (India) Ltd. v. Manjuben Nathabhai Chavda, through PA Karsanbhai Vajsibhai, dated 16.02.2005, wherein the Court, in essence, has held that the application filed under the provisions of Order 7, Rule 11 of the Code should be heard first.

Mr. R.C. Kakkad, learned Counsel for the respondent, has supported the impugned order.

I have heard the learned Counsel for the respective parties, perused the averments made in the petition, contents of the impugned order and other documents on record.

Without going into the merits of the case, I would like to confine myself to the contents of the impugned order, which reveals that the reasoning advanced by the Court below is that it would be in accordance with law to hear the applications filed under the provisions of Order 7, Rule 11 of the Code first. However, having stated so, the conclusion arrived at is rejection of the application, which conclusion is at variance with the reasoning of the Court, as reflected in the impugned order. Moreover, the operative part of the order, at Sr. No. 2, also reinforces the impression that the Court intends that the applications filed under Order 7, Rule 11, be heard first, but the first part of the order is in contradiction thereto.

In short, it is not at all clear whether the conclusion arrived at is faulty, or the reasoning is faulty, or if any inadvertent error has been committed while passing the impugned order. The reasoning and operative part of the impugned order are at divergence. Only the Trial Court can clarify what order it intended to pass. In view of the above, it would be just and proper if the matter is remanded to the same Court for fresh hearing and decision, in accordance with law.

Accordingly, the petition is partly-allowed. The order dated 14.10.2009 passed by the Trial Court below application at Exhibit 29 in Regular Civil Suit No. 47 of 2009, is quashed and set aside. The matter is remanded to the Trial Court for fresh hearing of application at Ex.29. The Trial Court shall give the parties an opportunity of hearing and pass an order, in accordance with law, as expeditiously as possible and without any avoidable delay, keeping in view the submissions made hereinabove and the judgments cited at the Bar. Rule is made absolute, to the above extent. There shall be no orders as to costs.