Vijaybhai Shambhubhai Patel vs Sushilaben Dayalbhai
2021 Latest Caselaw 5918 Guj

     C/FA/1556/2021                             ORDER DATED: 14/06/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                    R/FIRST APPEAL NO. 1556 of 2021
                                 With
              CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
                   In R/FIRST APPEAL NO. 1556 of 2021
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                      VIJAYBHAI SHAMBHUBHAI PATEL
                                  Versus
                          SUSHILABEN DAYALBHAI
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Appearance:
MR AB MUNSHI(1238) for the Appellant(s) No. 1
for the Defendant(s) No. 1,2,3,4,5,6,6.1,6.2,6.3
MR RUTUL P DESAI(6498) for the Defendant(s) No. 7
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 CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
       and
       HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                            Date : 14/06/2021

                             ORAL ORDER

(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)

1. We have heard Mr. A.B. Munshi, the learned counsel appearing for the appellant-original plaintiff and Mr. Amit Thakkar, the learned counsel assisted by Mr. Rutul Desai, the learned counsel appearing for the respondent No.7 (defendant No.7).

2. It appears from the materials on record that the appellant herein filed the Special Civil Suit No.274 of 2019 in the Court of the 3 rd Addl. Senior Civil Judge, Surat praying for specific performance of contract based on an agreement to sell and also for cancellation of the sale- deed executed by the original owners of the property in favour of the respondent No.7 herein. The respondent

C/FA/1556/2021 ORDER DATED: 14/06/2021

No.7 preferred an application under Order 7 Rule 11(D) of the CPC and prayed for rejection of the plaint on the ground that the suit for specific performance is not maintainable as the agreement to sell is hit by Section 43 of the Bombay Tenancy Act. It appears that the Court below rejected the plaint at the instance of the respondent No.7 (the purchaser of the property) on the premise that a suit for specific performance of contract based on an invalid agreement to sell hit by Section 43 of the Tenancy Act, 1948 is not maintainable in law. The Court below has relied upon two decisions of this High Court (i) in the case of Ganpatlal Manjibhai Khatri vs. Manguben Babaji Thakor, 2019 JX (Guj.) 1122 and (ii) in the case of Hasvantbhai Chhanubhai Dalal vs. Adesinh Mansinh Raval, 2019 (2) GLH 357.

3. We want Mr. Munshi to go through both these judgments and assist this Court for final disposal of this first appeal.

4. Post this first appeal for final disposal on 21.06.2021.

(J. B. PARDIWALA, J)

(VAIBHAVI D. NANAVATI,J) Vahid