Gujarat High Court
Dineshkumar Mohanlal Thakkar vs Hemant Rajnikant Shah on 15 September, 2025
NEUTRAL CITATION
C/AO/222/2024 JUDGMENT DATED: 15/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 222 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/APPEAL FROM ORDER NO. 222 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT Sd/-
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Approved for Reporting Yes No
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DINESHKUMAR MOHANLAL THAKKAR & ORS.
Versus
HEMANT RAJNIKANT SHAH & ORS.
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Appearance:
MR KIRTIDEV R DAVE(3267) for the Appellant(s) No. 1,2,3
MR RAHUL K DAVE(3978) for the Appellant(s) No. 1,2,3
MR.D K.PUJ(3836) for the Respondent(s) No. 1,2.1,2.2
NOTICE UNSERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 15/09/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr.D.K.Puj waives service of notice of rule on behalf of the respondents.
2. Heard learned advocate Mr. Kirtidev R. Dave for the appellants and learned advocate Mr.D.K.Puj appearing for the respondents.
3. With the consent of learned advocates appearing for the respective parties, the matter is taken up for final hearing.
4. The present application is filed under Article 227 of the Page 1 of 14 Uploaded by MOHD MONIS(HC01900) on Mon Sep 15 2025 Downloaded on : Tue Sep 16 00:52:55 IST 2025 NEUTRAL CITATION C/AO/222/2024 JUDGMENT DATED: 15/09/2025 undefined Constitution of India seeking the following relief:-
"a. Your Lordships be pleased to admit this appeal.
b. Your Lordships be pleased to allow the appeal from order holding that common order below exh. 5 and 19 by the Ld. Adnl. Senior Civil Judge, Anjar-Kachchh Dt. 06-09-2024 in Special Civil Suit No. 8 of 2022 Annexure B is bad in law and it be quashed and set aside. Your Lordships be further pleased to allow the application for interim injunction by the appellants exh. 5.
c. Your Lordships be pleased to grant any other relief/s, as may be deemed fit and necessary for the disposal of the matter."
THE BRIEF FACTS OF THE CASE 4.1. The appellants are the original plaintiffs, whereas the respondents herein are the original defendants. The plaintiffs claim to be the original owner of the suit land situated at village Meghpar Borichi, Taluka Anjar, District Kachcha, at Revenue Survey No. 51/2, admeasuring 1-43-66 hectare. 4.2. One agreement to Sell (hereinafter referred to as ATS) was executed between the plaintiffs and defendant No.1 on 31.07.2021 for the suit land for a sum of Rs.2,96,46,050/-, thereby, it appears that the plaintiffs sold the suit land in favor of defendant No. 2 by way of a registered sale deed on 09.02.2022 for a sum of Rs.85,26,000/-, which was duly Page 2 of 14 Uploaded by MOHD MONIS(HC01900) on Mon Sep 15 2025 Downloaded on : Tue Sep 16 00:52:55 IST 2025 NEUTRAL CITATION C/AO/222/2024 JUDGMENT DATED: 15/09/2025 undefined received by the plaintiffs.
4.3. Nonetheless, the plaintiffs filed the suit claiming various reliefs, inasmuch as it was prayed that he has not been fully paid and received the entire sale consideration from the defendants, and as on the date of filing of the suit, around Rs.1,00,00,000 is still due and payable. 4.4. Thus, in view of the aforesaid facts, the suit for declaration and cancellation of the sale deed/ ATS is filed. 4.5. The defendants have appeared in the suit, and more particularly, defendant No.1 has submitted proof of payment of Rs.50,00,000/- and 25,00,000/- on 08.04.2022 and 06.06.2022 respectively to the plaintiffs.
4.6. Such payment is accepted to have been received by the plaintiffs, and to that effect, the plaintiffs gave a declaration before the Trial Court on the 23.01.2023 below Exhibit 26. It appears that such fact was not disclosed in the plaint. So, only Rs.25,00,000/- is alleged to have remained unpaid and could have been received by the plaintiffs. 4.7. Be that as it may, after hearing the parties, the Trial Page 3 of 14 Uploaded by MOHD MONIS(HC01900) on Mon Sep 15 2025 Downloaded on : Tue Sep 16 00:52:55 IST 2025 NEUTRAL CITATION C/AO/222/2024 JUDGMENT DATED: 15/09/2025 undefined Court, vide its impugned order dated 06.09.2024, rejected the injunction application filed by the plaintiffs. Hence, the present appeal.
SUBMISSION OF THE PETITIONERS - ORIGINAL PLAINTIFFS
5. Learned advocate Mr. Dave would submit that the plaintiffs, being the original owners of the suit land, having not been compensated fully by the defendants at the time of execution of the sale of the suit land, the interest of the plaintiffs ought to have been protected by the Trial Court by granting an injunction as prayed for.
5.1. Learned advocate Mr. Dave would further submit that if the defendants are not prohibited to deal with the suit land, a third-party right will be created, which will ultimately create multiplicity of proceedings.
5.2. Learned advocate Mr. Dave would further submit that when the saller remains unpaid, as per the provisions of the Transfer of Property Act, 1881, a statutory charge is created on the suit land, which is the subject matter of the agreement between the parties, thereby, until such payment made by the Page 4 of 14 Uploaded by MOHD MONIS(HC01900) on Mon Sep 15 2025 Downloaded on : Tue Sep 16 00:52:55 IST 2025 NEUTRAL CITATION C/AO/222/2024 JUDGMENT DATED: 15/09/2025 undefined buyer, the right of the plaintiffs requires to be protected by the court.
5.3. Making the above submission, learned advocate Mr. Dave would request this court to entertain the appeal. SUBMISSION OF THE RESPONDENTS - ORIGINAL DEFENDANTS
6. Per contra, learned advocate Mr. Puj would submit that there is no merit in the present appeal, inasmuch as the plaintiffs have not disclosed true and correct facts, which were filed before the Trial Court.
6.1. It is submitted that defendant No.1 has already made payment of Rs.75,00,000/- on 08.04.2022 and 06.06.2022 respectively to the plaintiffs against his claim of Rs.1,00,00,000/-. It is submitted that when the plaintiffs claim equitable relief, have to come with clean hands and is not required to suppress any material facts from the Trial Court. 6.2. Learned advocate Mr. Puj would submit that as per the sale deed, the entire sale consideration has been paid to the plaintiffs, and once, there is a registered sale deed executed by the plaintiffs, as per Section 55 of the Transfer of Page 5 of 14 Uploaded by MOHD MONIS(HC01900) on Mon Sep 15 2025 Downloaded on : Tue Sep 16 00:52:55 IST 2025 NEUTRAL CITATION C/AO/222/2024 JUDGMENT DATED: 15/09/2025 undefined Property Act, 1881 (hereinafter referred to as "the Act, 1881"), the title stands transferred in favor of the buyer, i.e., defendant No.2 herein.
6.3. It is submitted that once the plaintiffs, being the erstwhile owner, no injunction can be granted in favor of the plaintiffs as the so-called unpaid seller as alleged. 6.4. Learned advocate Mr. Puj would further submit that an agreement to sell would not create any interest per se in favor of the party, as can be confirmed from bare reading of Section 55 of the Act, 1881.
6.5. It is respectfully submitted that as per the sale deed, when a seller agrees to sell the suit land for a particular price, and the buyer agrees to pay such price, upon making such payment and registration of a sale deed, there would be a concluded contract between the parties, and accordingly, they are bound by such terms of the concluded contract and not otherwise.
6.6. Making the above submission, learned advocate Mr. Puj would request this court to dismiss the appeal. Page 6 of 14 Uploaded by MOHD MONIS(HC01900) on Mon Sep 15 2025 Downloaded on : Tue Sep 16 00:52:55 IST 2025
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7. Having heard the learned advocates appearing for the respective parties at length and perused the documents which are made available to this Court by the respective learned advocates, which are part of the record of the suit. No other and further submissions are made.
POINT FOR DETERMINATION
8. The short question for my consideration is as to whether, in the facts and circumstances of the case, the order impugned in the appeal is either erroneous, perverse, or contrary to the settled legal position of law? ANALYSIS
9. At the outset, it is required to observe that the present appeal is filed under Order 43 Rule 1 of the Civil Procedure Code, 1908 (hereinafter referred to as "CPC"), which is based on principle and not on facts. The scope and ambit of interference by this court when it exercises its appellate power under Order 43 Rule 1 of CPC is well-defined, which can be drawn from the decisions i.e., first, I would like to refer the decision of the Hon'ble Apex Court in the case of (I) Wonder Page 7 of 14 Uploaded by MOHD MONIS(HC01900) on Mon Sep 15 2025 Downloaded on : Tue Sep 16 00:52:55 IST 2025 NEUTRAL CITATION C/AO/222/2024 JUDGMENT DATED: 15/09/2025 undefined Ltd. And another vs. Antox India Pvt. Ltd., reported in 1990 Supp1 SCC 727, the Hon'ble Supreme Court in para-9 of the said decision, after considering the scope of Order 43 Rule 1
(r) of the Code in an appeal wherein, the discretionary order passed by the learned trial Court is under challenge, observed as under:-
"9. Usually, the prayer for grant of an interlocutory injunction is at a stage when the existence of the legal right asserted by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. The court, at this stage, acts on certain well settled principles of administration of this form of interlocutory remedy which is both temporary and discretionary. The object of the interlocutory injunction, it is stated "...is to protect the plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the "balance of convenience lies".
The interlocutory remedy is intended to preserve in status quo, the rights of parties which may appear on a prima facie. The court also, in restraining a defendant from exercising what he considers his legal right but what the plaintiff would like to be prevented, puts into the scales, as a relevant consideration whether the defendant has yet to commence his enterprise or whether he has already been doing so in which latter case considerations somewhat different from those that apply to a case where the defendant is yet to commence his enterprise, are attracted." (emphasis supplied) Page 8 of 14 Uploaded by MOHD MONIS(HC01900) on Mon Sep 15 2025 Downloaded on : Tue Sep 16 00:52:55 IST 2025 NEUTRAL CITATION C/AO/222/2024 JUDGMENT DATED: 15/09/2025 undefined
10. Recently, also in the case of Ramakant Ambalal Choksi V/s Harish Ambalal Choksi, 2024 SCCOnline SC 3538, Hon'ble Apex Court again reiterated aforesaid principle, albeit with explaining what amounts to perversity in order having so observed as under which reads as under :-
"27. The principles of law explained by this Court in Wander's (supra) have been reiterated in a number of subsequent decisions of this Court. However, over a period of time the test laid down by this Court as regards the scope of interference has been made more stringent. The emphasis is now more on perversity rather than a mere error of fact or law in the order granting injunction pending the final adjudication of the suit.
28. In Neon Laboratories Ltd. v. Medical Technologies Ltd., 2016 2 SCC 672 this Court held that the Appellate Court should not flimsily, whimsically or lightly interfere in the exercise of discretion by a subordinate court unless such exercise is palpably perverse. Perversity can pertain to the understanding of law or the appreciation of pleadings or evidence. In other words, the Court took the view that to interfere against an order granting or declining to grant a temporary injunction, perversity has to be demonstrated in the finding of the trial court.
29. In Mohd. Mehtab Khan v. Khushnuma Ibrahim Khan, 2013 9 SCC 221 this Court emphasised on the principles laid down in Wander (supra) and observed that while the view taken by the appellate court may be an equally possible view, the mere possibility of taking such a view must not form the basis for setting aside the decision arrived at by the trial court in exercise of its discretion under Order 39 of the CPC. The basis for substituting the view of the trial court should be malafides, capriciousness, arbitrariness or perversity in the order of the trial court. The relevant observations are extracted below:
"20. In a situation where the learned trial court on a consideration of the respective cases of the parties and the documents laid before it was of the view Page 9 of 14 Uploaded by MOHD MONIS(HC01900) on Mon Sep 15 2025 Downloaded on : Tue Sep 16 00:52:55 IST 2025 NEUTRAL CITATION C/AO/222/2024 JUDGMENT DATED: 15/09/2025 undefined that the entitlement of the plaintiffs to an order of interim mandatory injunction was in serious doubt, the Appellate Court could not have interfered with the exercise of discretion by the learned Trial Judge unless such exercise was found to be palpably incorrect or untenable. The reasons that weighed with the learned Trial Judge, as already noticed, according to us, do not indicate that the view taken is not a possible view. The Appellate Court, therefore, should not have substituted its views in the matter merely on the ground that in its opinion the facts of the case call for a different conclusion. Such an exercise is not the correct parameter for exercise of jurisdiction while hearing an appeal against a discretionary order. While we must not be understood to have said that the Appellate Court was wrong in its conclusions what is sought to be emphasized is that as long as the view of the trial court was a possible view the Appellate Court should not have interfered with the same following the virtually settled principles of law in this regard as laid down by this Court in Wander Ltd. v.Antox India (P) Ltd."
32. The appellate court in an appeal from an interlocutory order granting or declining to grant interim injunction is only required to adjudicate the validity of such order applying the well settled principles governing the scope of jurisdiction of appellate court under Order 43 of the CPC which have been reiterated in various other decisions of this Court. The appellate court should not assume unlimited jurisdiction and should guide its powers within the contours laid down in the Wander (supra) case.
(emphasis supplied)
11. The facts, which are narrated hereinabove, are not in dispute. Now, keeping in mind the ratio of the decision of the Hon'ble Supreme Court, if I analyze the submissions canvassed by learned advocate Mr. Dave, prima facie, it appears that the plaintiffs were the original owners of the suit land and agreed Page 10 of 14 Uploaded by MOHD MONIS(HC01900) on Mon Sep 15 2025 Downloaded on : Tue Sep 16 00:52:55 IST 2025 NEUTRAL CITATION C/AO/222/2024 JUDGMENT DATED: 15/09/2025 undefined to sell the suit land for Rs.2,96,46,050/- by execution of an Agreement to Sell (ATS) with defendant No.1.
12. For any reason, ultimately, the plaintiffs, being the sellers, agreed to sell the suit land for Rs.85,26,000/- by way of a registered sale deed as executed with defendant No.2.
13. It remains undisputed that such sale consideration was duly received by the plaintiffs from defendant No.2 when the registered sale deed was executed between the parties on 09.02.2022.
14. It has also come on record that defendant No.1 has also paid a sum of Rs.50,00,000/- + 25,00,000/- on 08.04.2022 and 06.06.2022 respectively to the plaintiffs. Those payments are subsequent to the execution of the sale deed. Even such fact, though not disclosed by the plaintiffs, which ought to have been disclosed, was accepted by the plaintiffs when confronted by defendant No.1, having disclosed it before the Trial Court.
15. When any party seeks any equitable relief and discretionary relief from the Court, it is expected that the party to come with clean hands and is not required to Page 11 of 14 Uploaded by MOHD MONIS(HC01900) on Mon Sep 15 2025 Downloaded on : Tue Sep 16 00:52:55 IST 2025 NEUTRAL CITATION C/AO/222/2024 JUDGMENT DATED: 15/09/2025 undefined suppress any material fact.
16. As such, the suit is filed by the alleged unpaid seller to recover the balance sale consideration, that is, Rs.1,00,00,000/-. As such, in view of the aforesaid, having received Rs.75,00,000/-, which is now admitted by the plaintiffs, the only amount remaining to be paid would be Rs.25,00,000/-, if the plaintiffs, ultimately, establishes such amount as being part of the total sale consideration.
17. At this stage, it will also be required to take note of the fact that as per Section 55 (4) (B) of the Act, 1881, any amount shown in the agreement to sell would not be considered as a purchase money. Section 54 of the Act, 1881, itself suggests that mere execution of an agreement to sell would not create any interest and charge on such property.
18. This Court had an occasion to decide such aspect vis-a- vis purchase money so referred in Section 55 (4)(B) of the Act, 1881, and held that any amount which is mentioned in an agreement to sell would not be considered as purchase money. (See SPECIAL CIVIL APPLICATION NO. 4595 of 2024 decided Page 12 of 14 Uploaded by MOHD MONIS(HC01900) on Mon Sep 15 2025 Downloaded on : Tue Sep 16 00:52:55 IST 2025 NEUTRAL CITATION C/AO/222/2024 JUDGMENT DATED: 15/09/2025 undefined on 12.08.2025).
19. Lastly, it remains undisputed that there is a valid execution of registered sale deed by the plaintiffs in favor of defendant No.2, having received the sale consideration as disclosed in such sale deed. So, as per Section 55 of the Act, 1881, the moment there is a registration of a sale deed, the title would automatically transfer in favor of the buyer, i.e., defendant No.2 herein.
20. In view of the above, this Court is not impressed by any of the submissions made by learned advocate Mr.Dave appearing for the appellants.
21. In light of the aforesaid facts and circumstances of the case, and keeping in mind the scope of interference by this court while exercising its appellate power under Order 43 of CPC as defined in the aforementioned decision of the Hon'ble Supreme Court, having not found any perversity in the order, it would not be appropriate to interfere with the order impugned in the appeal.
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22. Before parting with the judgment, it is made clear that the Trial Court out not to be influenced by this order and has to decide the suit on its own merits as per the evidence coming forth on record.
CONCLUSION
23. In light of the aforesaid facts and the position of law, having not found any merits in the appeal, it requires to be dismissed and is hereby DISMISSED. No order as to costs. The civil application would not survive and is accordingly disposed of. Rule is discharged.
Sd/-
(MAULIK J.SHELAT,J) MOHD MONIS Page 14 of 14 Uploaded by MOHD MONIS(HC01900) on Mon Sep 15 2025 Downloaded on : Tue Sep 16 00:52:55 IST 2025