Huseinsahab Sarfulla Saiyad and Others vs Mohammed Hanif Ahmed Badat Through Poa Abdu Samad Mohmmed and Others

Honourable Mr. Justice Anant S. Dave

This petition under Articles 226 and 227 of the Constitution of India is filed with a restricted challenge to the order dated 11.05.2012 passed by the learned Principal District Judge, Surat below Exh:22 in Misc. Civil Appeal No. 86 of 2011, whereby the plaintiffs are directed to deposit Rs. 5,00,000/- in the Court within 60 days from the date of the order in lieu of building material of first, second and third floor removed by them. On 24.07.2012, this Court passed the following order:

Draft amendment granted and to be carried out accordingly.

Heard learned advocate for the petitioners/original plaintiffs and it is submitted that by the impugned order dated 11.5.2012 passed by learned Principal District Judge, Surat in Misc. Civil Application No. 86 of 2011 preferred by the respondents/defendants order dated 6.8.2011 passed by learned Additional Judge, Small Cause Court, Surat below Exh. 5 in RCS No. 109 of 2010 is quashed and set aside on erroneous grounds and irrelevant consideration particularly, in para 13 specific findings and observations were made about necessity of the premise which was in dilapidated condition was to be demolished. Inspite of the above, the petitioners/plaintiffs are directed to deposit Rs. 5 lakhs in the Court within 60 days.

The above order is contrary to powers to be exercised by the appellate Court while reversing the findings and reasoning of the Lower Court arrived on the basis of appreciation of material on record which cannot be said to be perverse or per se illegal.

In view of the above, Rule.

Ad-interim relief in terms of para 4 (b).

Notice as to interim relief returnable on 21.8.2012.

In answer to the notice issued by this Court, learned counsel for respondent Nos. 1 to 3 has appeared and is unable to justify the relevancy of direction contained in Part-III of the operative order by which the plaintiffs are directed to deposit Rs. 5,00,000/- etc. keeping other contentions open to be raised before the concerned Court.

In view of the above and as the challenge to the impugned order is restricted as recorded in the order dated 24.07.2012, the petition is allowed to the extent of quashing and setting aside the direction contained in Part-III of the operative order qua directing the plaintiff to deposit Rs. 5 lakhs. The petition is allowed to the aforesaid extent and the rest of the part of the operative order of the impugned order is not disturbed. Order accordingly. No costs.