D H GAJJAR AND CO Vs. STATE OF GUJARAT
LAWS(GJH)-1979-7-3
HIGH COURT OF GUJARAT
Decided on July 26,1979

D.H.GAJJAR AND COMPANY Appellant
VERSUS
STATE Respondents

JUDGEMENT

N.H.BHATT - (1.) This appeal from Order has been preferred by the original plaintiff of the Special Civil Suit No. 28 of 1978 pending in the court of the Civil Judge (S.D.) Ahmedabad (Rural) at Narol. The appellant herein is the original plaintiff in that suit and the respondent herein the State of Gujarat is the defendant there The plaintiff has filed the said suit for two reliefs. The first relief is for claiming a sum of Rs. 3 37 148 0 from the defendant State as the amount for which the State is alleged to be liable under the building contract between the parties. The plaintiff had undertaken the work of improvement and asphalting and bringing to the State Highway Standard the Dhudhrej vana Malvan Road in Surendranagar District The plaintiff firm has alleged in the suit that it was able to execute the work upto the extent of Rs. 3 25 0 and because of the breach on the part of the State Officers the contract had become annulled on and from 17-4-74 and the plaintiff had become entitled to receive the price of the work done and damages available under the law. The plaintiffs second prayer in the suit however is material for the purpose of this application. The case of the defendant State appears to be that the plaintiff was not entitled to claim anything under this contract and as a matter of fact it was the defendant State that stood to claim from the plaintiff firm the sum of rupees more than a lakh. After the plaintiff served the defendant State with a statutory notice under sec. 50 of the Civil Procedure Code but before the suit came to be filed the State ex parte adjudicated its claim against the plaintiff firm and issued a sort of a confidential circular through its Executive Engineer Surendranagar Division on 12-3-76 calling upon the Executive Engineers in the State and the Executive Engineers of the various District Panchayats to effect the recovery of the States alleged claim under this contract amounting to Rs. 1 89 603.88 out of the plaintiffs outstanding bills with them. The plaintiff in this suit therefore challenged the said circular letter as mala fide wrongful unwarranted and as a counter blast to the statutory notice and threatended civil action by the plaintiff firm against the defendant. The second prayer in the suit therefore is for a declaration that the confidential circular mentioned above issued by the Executive Engineer Surendranagar Division be declared mala fide and wrongful and a further consequential prayer also is sought that the defendant State be restrained from executing and implementing the said circular. 3 Along with the suit the plaintiff had also filed an application for injunction of the type mentioned in the suit by recourse to provisions of Order 39 Rules 1 and 2 and sec. 151 of the Civil Procedure Code. The exparte injunction was granted by the learned trial Judge namely the Civil Judge (S.D.) Narol but after bipartite hearing the learned Judge was pleased to vacate the said order. It has given rise to the present proceedings filed initially as an Appeal from Order under Order 43 on the Code.
(2.) At the outset Mr. Kadri the learned Assistant Government Pleader appearing for the State raised a contention that the Appeal from Order was not competent because the order that was passed by the learned trial Judge could not be legitimately sought under the provisions of Rules 1 and 2 of Order 39 of the Code and therefore the order that was sought for could be legitimately said to be one only under sec. 151 of the Code. Mr. Kadri therefore urged that once the court passed an order refusing to exercise its inherent powers under sec. 151 of the Code neither party to that application would have a right of appeal under the provisions of Order 43 of the Code. Mr. Kadris submission appears to be very well founded. Accepting this challenge flung by Mr. Kadri for the State Mr. Sukhwani for the original plaintiff prayed for the courts permission for converting the Appeal from Order into a revision application under sec. 115 of the Code. That prayer of Mr. Sukhwani has been granted by me and) therefore the present proceedings are dealt with and disposed of by me as if they are the proceedings of a civil revision application under sec. 115 of the Code. I had also ordered that filing of the affidavit in support of the revision application is dispensed with.
(3.) Arguing on the basis of the present proceedings being revisional proceedings under sec. 115 of the Code Mr. Sukhwani submitted that the learned trial Judge had proceeded on gross misconception of law and had on that account declined to exercise the jurisdiction vested in him by law. To me it appears that Mr. Sukhwanis submission is well founded though hasten to add that in the first instance too felt that this was not a case for granting any injunction.;


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