Gujarat High Court
Babubhai Madhabhai Savani vs Revaben Wd/O Maganbhai Dahyabhai Patel on 6 October, 2025
NEUTRAL CITATION
C/AO/161/2023 JUDGMENT DATED: 06/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 161 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/APPEAL FROM ORDER NO. 161 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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BABUBHAI MADHABHAI SAVANI & ORS.
Versus
REVABEN WD/O MAGANBHAI DAHYABHAI PATEL & ORS.
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Appearance:
MR AMIT V THAKKAR(3073) for the Appellant(s) No. 1,2,3
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Respondent(s) No. 2
MR MANAN A SHAH(5412) for the Respondent(s) No. 1,2.1,2.2,3
NIDHI MANAN SHAH(9033) for the Respondent(s) No. 2.1,2.2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 06/10/2025
ORAL JUDGMENT
1. Admit. Learned Advocate Mr. Shah for respondent Nos. 1 to 3 waive service of notice of admission of appeal. With consent of learned advocates of respective parties, appeal itself is taken up Page 1 of 11 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Oct 07 2025 Downloaded on : Wed Oct 08 00:40:16 IST 2025 NEUTRAL CITATION C/AO/161/2023 JUDGMENT DATED: 06/10/2025 undefined for final hearing.
2. Heard learned Advocate Mr. Amit V. Thakkar for the appellants and learned Advocate Mr. Shah for respondent Nos. 1 and 3. Though served, none appears for the rest of the respondents.
3. The present appeal is filed under Order 43, Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as "C.P.C.") by the original plaintiffs of Special Civil Suit No. 73 of 2022, pending before the Principal Civil Judge, Surat, whereby, challenged the impugned order dated 18th April 2023, passed by the 8th Additional Chief Judicial Magistrate, Surat, below Exhibit 5 in Special Civil Suit No. 73 of 2022. The trial Court vide its impugned order rejected injunction application of appellants-plaintiffs.
4. As far as possible, the parties will be referred to as per their original positions before the Trial Court.
5. THE SHORT FACTS OF THE CASE APPEAR TO BE THAT:
5.1. The appellants herein are original plaintiffs, whereas, the Page 2 of 11 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Oct 07 2025 Downloaded on : Wed Oct 08 00:40:16 IST 2025 NEUTRAL CITATION C/AO/161/2023 JUDGMENT DATED: 06/10/2025 undefined respondents herein are original defendants. The plaintiffs appear to have entered into an agreement to sell with defendant Nos. 1 to 3 initially on 15th August 2011, which was later on duly notarized in the form of sale agreement on 2nd July 2012.
As per the condition stipulated in the 2012 agreement, defendant Nos. 1 to 3 supposed to get the name of defendant No. 4 cleared from heirship so far as the suit land in question. Such act requires to be done by defendant Nos. 1 to 3 on or before 15th November 2012, being last payment date as agreed between parties. Further, it was agreed between them that until such name of defendant No. 4 was cleared, no further payment requires to be made by the plaintiffs to defendant Nos. 1 to 3. 5.2. For any reasons, despite such terms agreed between the parties, the plaintiffs appear to have made further payments to defendant Nos. 1 to 3 at regular intervals between 2015 to 2017.
5.3. The name of defendant No. 4 got separated from the suit property inasmuch as, the names of defendant Nos. 1 to 3 mutated in Survey No. 518/1/B of Village Kosad, Taluka Adajan, Dist. Surat. Whereas, the name of defendant No. 4 Page 3 of 11 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Oct 07 2025 Downloaded on : Wed Oct 08 00:40:16 IST 2025 NEUTRAL CITATION C/AO/161/2023 JUDGMENT DATED: 06/10/2025 undefined mutated in Revenue Survey No. 518/1/A of the said village. All these mutations entries given effect in the month of May/June 2019.
5.4. The plaintiffs appear to have called upon defendant Nos. 1 to 3 to perform their part of the agreement as per the agreement to sell vide their legal notice dated 21st October 2021. As the defendants have not acted as per the aforesaid legal notice, the suit in question came to be filed on 25th April 2022. 5.5. After hearing the parties, the Trial Court vide its order dated 18th April 2023, rejected the injunction application filed below Exhibit 5 in the aforesaid suit. Hence, present appeal. 5.6. At this juncture, it is required to be noted that by passage of time, the suit ripe for trial, inasmuch as the affidavit in lieu of examination-in-chief of the original plaintiffs is already submitted on record of the suit.
6. SUBMISSIONS OF THE APPELLANTS:
6.1. At the outset, learned Advocate Mr. Thakkar, appearing for the appellants, would submit that the Trial Court has erroneously observed that there was a delay and laches on the Page 4 of 11 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Oct 07 2025 Downloaded on : Wed Oct 08 00:40:16 IST 2025 NEUTRAL CITATION C/AO/161/2023 JUDGMENT DATED: 06/10/2025 undefined part of the plaintiffs in filing the suit. It is submitted that as per the agreement to sell executed between the plaintiffs and defendant Nos. 1 to 3 in the year 2012, unless and until defendant Nos. 1 to 3 got the name of defendant No. 4 cleared from the subject matter of the suit, no further payment was required to be made by the plaintiffs to them. So, as such no delay on part of plaintiffs in filing suit. 6.2. Learned Advocate Mr. Thakkar would further submit that the Trial Court has also erroneously observed that payments which have so far made by the plaintiffs to the defendants, in some of the receipts, only one signature out of three defendants is made and the same was a factor weighed with the Trial Court to disentitle the plaintiffs to get injunction. It is submitted that the plaintiffs have made payment as per the agreed terms between the parties and as and when payments were made, either in cash or by cheque, receipts have been duly issued by the respective defendant Nos. 1 to 3.
6.3. Learned Advocate Mr. Thakkar would submit that out of total sale consideration, when 65% payment has been made, the Trial Court requires to protect the interest of the plaintiffs, Page 5 of 11 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Oct 07 2025 Downloaded on : Wed Oct 08 00:40:16 IST 2025 NEUTRAL CITATION C/AO/161/2023 JUDGMENT DATED: 06/10/2025 undefined thereby, requires to have granted the injunction. 6.4. Lastly, learned Advocate Mr. Thakkar would submit that when the plaintiffs have acted as per the terms of the agreement between the parties, they are entitled to get injunction as prayed in the matter.
6.5. Making the above submissions, learned Advocate Mr. Thakkar requests this Court to allow the present appeal.
7. SUBMISSIONS OF THE RESPONDENTS:
7.1. Per contra, learned Advocate Mr. Shah would submit that the Trial Court has not committed any serious error of law, much less any jurisdictional error while refusing the injunction in the matter. It is submitted that by passage of time, now trial of the suit commenced, then also, this Court may not interfere with the impugned order.
7.2. Learned Advocate Mr. Shah would submit that as per the specific case of the defendant Nos. 1 to 3 in their written statement, they were not aware about any execution of the agreement to sell, but while getting a hand loan from the plaintiffs, few signatures of defendant Nos. 1 to 3 were Page 6 of 11 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Oct 07 2025 Downloaded on : Wed Oct 08 00:40:16 IST 2025 NEUTRAL CITATION C/AO/161/2023 JUDGMENT DATED: 06/10/2025 undefined obtained on a piece of papers, which used in the form of agreement to sell by the plaintiffs. It is submitted that such defense of the defendants appealed to the Trial Court, thereby rejected injunction application. It is further submitted that even if a second view is possible, this Court should not substitute the plausible view of the trial Court while exercising its appellate power under Order 43, Rule 1 of the C.P.C.
7.3. Learned Advocate Mr. Shah would further submit that when there is a delay and laches on the part of the plaintiffs in the institution of the suit, the Trial Court has correctly refused the injunction. It is submitted that as per the settled legal position of law, when there is a delay and laches on the part of the plaintiffs, who are unable to explain such delay in satisfactory manner, no injunction can be granted in favor of the plaintiffs. 7.4. Learned Advocate Mr. Shah would further submit that it is incorrect to say that defendant Nos. 1 to 3 have received 65% of the total sale consideration, inasmuch as except Rs.8,00,000/- which was paid through cheque, the rest of the payment, which alleged to have been paid by the plaintiffs in cash, and such payment in fact already disputed by defendant Page 7 of 11 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Oct 07 2025 Downloaded on : Wed Oct 08 00:40:16 IST 2025 NEUTRAL CITATION C/AO/161/2023 JUDGMENT DATED: 06/10/2025 undefined Nos. 1 to 3 having denied its receipt.
7.5. Making the above submissions, learned Advocate Mr. Shah requests this Court not to entertain the present appeal.
8. No other and further submissions are made.
ANALYSIS
9. The facts which are narrated herein above are not much in dispute. This Court would not like to go much deep into the matter, as observed herein above, the suit is already ripe for trial, as the affidavit in lieu of examination-in-chief of the plaintiffs has already been submitted on record. Furthermore, all through ought, no injunction ever granted in favour of plaintiffs.
10. Apart from the aforesaid, the reasons which are so assigned by the Trial Court are neither erroneous nor perverse, inasmuch as undisputedly, the agreement to sell or any agreement alleged to have been executed between the parties was of the year 2011/2012. The fact remains that as per the terms of the agreement alleged to have been notarized in the year 2012, it would indicate that the name of defendant No. 4 requires to be Page 8 of 11 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Oct 07 2025 Downloaded on : Wed Oct 08 00:40:16 IST 2025 NEUTRAL CITATION C/AO/161/2023 JUDGMENT DATED: 06/10/2025 undefined cleared/separated from the subject matter of the suit property by defendant Nos. 1 to 3, latest by 15th November 2012. It is also undisputed between parties that name of defendant No.4 gets mutated from suit property only in year 2019. Although, plaintiffs on regular interval used to make payment to defendant No.1 to 3. Nonetheless, such payment disputed by defendant No.1 to 3.
11. Be that as it may, the fact remains that the execution of the agreement to sell was of the year 2012 and calling upon defendant Nos. 1 to 3 for first time to perform their part of the agreement in the year 2021 and the suit came to be filed in the year 2022. If all these factors are considered in the manner in which they were in fact considered by the Trial Court, the view taken by the Trial Court that there was a delay and laches on part of plaintiffs in filing suit, which disentitled the plaintiffs to secure the injunction as prayed in the injunction application, cannot be found fault with. It is by now well settled law that delay/laches on the part of plaintiff would disentitled him to secure injunction. [See - Mandali Ranganna vs. T. Ramachandra, reported in (2008) 11 SCC 1 (para-21/22), Ambalal Sarabhai Enterprise Limited vs. K.S.Infraspace LLP Page 9 of 11 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Oct 07 2025 Downloaded on : Wed Oct 08 00:40:16 IST 2025 NEUTRAL CITATION C/AO/161/2023 JUDGMENT DATED: 06/10/2025 undefined Ltd. and another, (2020) 5 SCC 410 (para-19/22/23), Veetrag Holding Co. Ltd. Vs. Gujarat State Textile Corporation Ltd., 1996 (3) GLR 536 (para-8)]
12. Thus, in view of what is observed herein above, the finding so recorded by Trial Court while refusing to grant injunction in favour of plaintiff, cannot be said to be either erroneous or perverse. In view of above, no interference requires of this Court while exercising its appellate power under Order 43, Rule 1 (R) of the C.P.C, as it is a well-settled legal position of law that present appeal is on a principle, not on facts. [See: Wander Ltd. And Anr. V/S. Antox India Pvt. Ltd. Reported In 1990 LawSuit (SC) 810 And Ramakant Ambalal Choksi V/S. Harish Ambalal Choksi & Others Reported In 2024 SCCOnline SC 3538 : 2024 LawSuit (SC) 1082]
13. Before parting, it goes without saying that any of the observations either made by the Trial Court while passing the impugned order or by this Court in the present order, it would not come in the way of any parties to the suit, inasmuch as the Trial Court requires to decide the lis between the parties as per the evidence coming forth on the record of the suit and adjudicate the suit on its merit in accordance with law. Page 10 of 11 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Oct 07 2025 Downloaded on : Wed Oct 08 00:40:16 IST 2025
NEUTRAL CITATION C/AO/161/2023 JUDGMENT DATED: 06/10/2025 undefined
14. With the aforesaid observations, discussions and reasons, I do not find any merit in the present appeal from order, which requires to be dismissed, which is hereby dismissed. No order as to costs.
15. As a sequel the civil application for stay is also disposed of accordingly.
(MAULIK J.SHELAT,J) NILESH Page 11 of 11 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Tue Oct 07 2025 Downloaded on : Wed Oct 08 00:40:16 IST 2025