Ashok Lalchand Jain And Ors vs Smt. Sitabai Dharmraj Dhivare And ...
2021 Latest Caselaw 5877 Bom

                                                                  20-2-IAST-5157-21.doc

Sharayu Khot.
              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CIVIL APPELLATE JURISDICTION

                   INTERIM APPLICATION (ST) NO. 5157 OF 2021
                                             IN
                        FIRST APPEAL (ST) NO. 5150 OF 2021


     Shri. Ashok Lalchand Jain & Ors.                            ...Applicants/
                                                                 Appellants

             Versus

     Smt. Sitabai Dharmraj Dhivare & Anr.                        ...Respondents

                                          ----------
     Mr. Jayendra Dadaji Khairnar for the Applicants/Appellants.
                                          ----------

                                          CORAM :            K.K. TATED &
                                                             R.I. CHAGLA, JJ.

                                         DATE          :     1 April 2021
     ORDER :

1. Heard the learned Counsel Mr. Khairnar for the

Applicants.

2. By this Application, the Applicants/original

Plaintiffs are seeking an order of injunction restraining the

Respondents/original Defendants from creating any third party

right, title and interest in respect of the suit property i.e. piece

and parcel of land bearing Gat No. 112, admeasuring 07 Hector

20-2-IAST-5157-21.doc

01 Aare + Pot Kharaba 00 Hector 10 Aare, situated at Village

Nilgavhan, Taluka Malegaon, District Nashik.

3. The learned Counsel Mr. Khairnar appearing on

behalf of the Applicants submits that in the present

proceedings, the Respondents-original Defendants executed

agreement for sale dated 3rd May 2011 in respect of the suit

property. As the Defendants failed and neglected to comply

with the same, the Applicants fled Special Civil Suit No. 31 of

2014 in the Court of learned Civil Judge Senior Division,

Malegaon for specifc performance of contract and perpetual

injunction.

4. Learned Counsel Mr. Khairnar for the Applicants

submits that the Trial Court dismissed the Applicants-original

Plaintiffs' prayer for specifc performance of contract only on

the ground of readiness and willingness on the part of

Plaintiffs. Issue No. 7, which reads thus:-

7. Do plaintiffs prove that, they were and are No. ready and willing to preform their remaining part?

20-2-IAST-5157-21.doc

5. Learned Counsel Mr. Khairnar for the Applicants

submits that during pendency of the Special Civil Suit No. 31 of

2014, the Applicants preferred Application below Exh.5 for

injunction and that was granted by the Trial Court. He submits

that thereafter, when the matter was fnally decided by the

Trial Court, the Applicants fled the Application below Exh.161

in which the order was passed on 6th March 2020 for

continuing the injunction restraining the Respondents from

creating any third party interest in respect of the suit property.

Learned Counsel Mr. Khairnar for the Applicants submits that

the Trial Court by its order dated 6th March 2020 passed the

following order:-

"Defendants shall not create third party interest in the suit land till the appeal period or till the appeal is fled, which ever is earlier."

6. Learned Counsel Mr. Khairnar for the Applicants

submits that in the interest of justice, pending the hearing and

fnal disposal of the First Appeal, this Hon'ble Court restrain

the Respondents from creating any third party right, title and

20-2-IAST-5157-21.doc

interest in respect of the suit property. He submits that if third

party rights are created by the Respondents/Defendants in

respect of the suit property, then nothing will survive in the

present First Appeal. Hence, in the interest of justice, this

Hon'ble Court to be pleased to allow the present Application.

7. We heard learned Advocate Mr. Khairnar for the

Applicants at length.

8. The Applicants are aggrieved by the judgment and

decree dated 6th March 2020 passed by the Trial Court which,

dismissed the prayer for specifc performance on the ground

that the Applicants failed to prove the readiness and

willingness to perform their remaining part of the agreement

for sale dated 3rd May 2011. In any case, during pendency of

the Suit before the Trial Court, the Applicants preferred an

Application below Exh.5 and that was allowed. Not only that

after passing the impugned judgment and decree, the Trial

Court continued the said protection by order dated 6th March

2020 below Exh.161 in Special Civil Suit No. 31 of 2014.

20-2-IAST-5157-21.doc

9. In view of these facts, we are satisfed that the

Applicants have made out the case to continue the said interim

protection till next date. Hence, the following order:-

(i) Rule.

(ii) Rule made returnable on 6th May 2021.

(iii) In addition to usual mode of service, the Applicants

are permitted to serve the Respondents by private

notice along with entire proceedings, either by

registered post AD and/ or by hand delivery and fle

an Affdavit of Service to that effect on or before 17th

April 2021.

(iv) Interim protection granted by the Civil Judge Senior

Division, Malegaon under Exh.161 in Special Civil Suit

No. 31 of 2014 to continue till next date.

(v) Stand over to 6th May 2021.

 [R.I. CHAGLA J.]                                      [K.K. TATED, J.]