Gujarat High Court

Parmar Chimanbhai ... vs Parmar Keshavbhai Bhupatbhai on 11 October, 2021

Bench: B.N. Karia

     C/SCA/12212/2017                           ORDER DATED: 11/10/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 12212 of 2017

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                PARMAR CHIMANBHAI PARSHOTTAMBHAI
                             Versus
              PARMAR KESHAVBHAI BHUPATBHAI & 2 other(s)
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Appearance:
MR. BK. RAJ(3794) for the Petitioner(s) No. 1
DELETED(20) for the Respondent(s) No. 3
MR PARTHIV B SHAH(2678) for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                            Date : 11/10/2021

                             ORAL ORDER

1. By preferring this petition, the petitioner, who is the

original plaintiff in Special Civil Suit No. 93 of 2009 and

appellant in Misc. Civil Appeal No. 147 of 2011, has

challenged the impugned order dated 23rd March, 2017 passed

by the Principal District Judge below Exhibit:15 in Misc. Civil

Appeal No. 147 of 2011 and impugned order dated 7th May,

2011 passed by the learned Additional Senior Civil Judge,

Vadodara below Exhibit:5 in Special Civil Suit No.93 of 2009.

2. Short facts of the present case may be summarized as

under:

       C/SCA/12212/2017                      ORDER DATED: 11/10/2021



2.1     As per the averments made by the petitioner in Special

Civil Suit No. 93 of 2009 filed against the respondent no. 1, an

agreement of mortgage was executed between them and Rs.

50,000/- was paid by the petitioner to respondent no. 1 in

respect of land i.e Survey No. 235/3 admeasuring 0.29 - 34

situated in Village 'Serkhi' of District Vadodara as per the

terms of the agreement dated 24th April, 2001.

2.2 It was further averred that possession of land was

handed over to the petitioner by the respondent. no. 1 for the

next five years. It was further contended that Rs. 3,02,000/-

was paid by the petitioner to the respondent no. 1 and another

written agreement - conditional sale deed was exhibited on 7 th

October, 2005. As per the condition in the second agreement,

if the defendant would not repay the amount, then he will

execute sale deed in favour of the petitioner and respondent

no. 3. After the span of 2 years, respondent no.1 failed to

repay the amount and to execute the sale deed, and therefore,

the petitioner filed Regular Civil Suit No. 1203 of 2008 before

the Civil Court, Vadodara on 23rd October 2008 with a prayer

to restrain the respondent no. 1 from executing sale deed and

other instruments in favour of the third party. Interim

C/SCA/12212/2017 ORDER DATED: 11/10/2021

Application for injunction Exhibit: 5 was preferred by the

petitioner which was rejected by learned Additional Senior

Civil Judge in Regular Civil Suit No. 1203 of 2008 vide order

dated 30th August, 2010. Meanwhile, respondent no. 1 sold

disputed property to respondent no. 2 by way of registered

sale deed dated 23rd October, 2008. The petitioner was

threatened by the respondent no. 3 on 04.02.2009 and

therefore, another suit was filed by the plaintiff being Special

Civil Suit No. 93 of 2009 because of new cause of action for

protection of his possession and quashing the sale deed dated

23rd October 2008, executed by the respondent. no 1 in favour

of respondent no. 2. Application for interim injunction was

preferred by the petitioner vide Exhibit:5 which was also

rejected by the learned Additional Senior Civil Judge by order

dated 7th May 2011. The petitioner preferred Misc. Civil Appeal

No. 197 of 2011 before the learned Principle District Judge

which came to be rejected vide order dated 21 st March, 2017.

Being dissatisfied with the impugned order passed by the

Principal District Judge, Vadodara, in Misc. Civil Appeal No.

147 of 2011, the petitioner has approached this Court.

3. Heard learned advocates for the respective parties.

C/SCA/12212/2017 ORDER DATED: 11/10/2021

4. It is submitted by learned advocate appearing for the

petitioner that the impugned order passed by the Trial Court

is contrary to the facts and law. It is further submitted that

the petitioner has paid Rs. 3,52,001/- towards conditional

sale deed - mortgage dated 7th October, 2005 and however, on

technical ground of unregistered documents at very early

stage of the suit before recording evidence, prayer was rejected

by the Court below. It is further submitted that facts of the

possession of this suit premises lying with the petitioner were

not properly appreciated by the Court below. It is further

submitted that at the time of executing first mortgage deed

i.e. on 24h of April, 2001, plaintiff/petitioner is in possession

inof the suit property. It is further submitted that Panchnama

prepared by the Court Commissioner in Regular Civil Suit No.

1203 of 2008 clearly established the possession of the plaintiff

which was erroneously not considered by the Court below.

That the Court-below has committed an error by not

appreciating the statements and affidavits of the witnesses,

who have supported the possession and execution of

conditional sale deed in favour of the petitioner. It is further

submitted that the possession of the petitioner is required to

C/SCA/12212/2017 ORDER DATED: 11/10/2021

be protected as since 2001, he is in the possession of the suit

property on the basis of the agreement executed by the

original defendant No. 1 in respect of the suit property. Hence,

it is requested by learned advocate appearing for the petitioner

to quash and set aside the impugned order dated 21 st of

March, 2017 passed by the Principal District Judge below

Exhibit: 15 in Misc. Civil Appeal No. 147 of 2011 and

impugned order dated 7th May, 2011 passed by the learned

Additional Senior Civil Judge, Vadodara below Exhibit:5 in

Special Civil Suit No. 93 of 2009. In support of his arguments,

learned advocate for the petitioner has relied upon the

following judgments:

(i) Padhiyar Prahladji Chenaji Vs. Maniben Jagmalbhai

reported in 2019 (1) GLR 782;

(ii) Ashwinkumar K. Patel Vs. Upendra J. Patel and

others reported in (1999) 3 SCC 161;

(iii) Alka Gupta Vs. Narender Kumar Gupta reported in

(2010) 10 SCC 141;

5. Per contra, learned advocate appearing for the

respondents no. 1 & 2 strongly argued that present petition is

not maintainable. In support of his arguments, learned

C/SCA/12212/2017 ORDER DATED: 11/10/2021

advocate for the respondents has relied upon the judgment in

the case of Bharatbhai Hasmukhbhai Oza Vs. Gandabhai

Khodabhai Desai and 1 reported in 2014 SCC OnLine Guj.

9238.

6. Referring an application Exhibit:59 in Special Civil Suit

93 of 2009, preferred by the petitioner annexed at Page

No.127, it is submitted that during the pendency of the suit,

application Exhibit:59 was submitted by the petitioner before

the Trial Court under Order 1 Rule 10 of the Civil Procedure

Court disclosing that during the pendency of the suit,

defendants have transferred the suit property by registered

sale deed dated 7th of March, 2011 to No.(1) Mr. Milind

Vijaybhai Thakkar and No. (2) Vijaybhai Manubhai Thakkar. It

was requested to join them as the defendants as they were

necessary parties. Referring the order passed below Exhibit:59

at page no. 132, it is submitted that by order dated 18 th of

January, 2017, application preferred by the plaintiff, was

allowed and proposed parties were permitted to be joined as

defendants. Accordingly the Plaint was amended by the

petitioner, however, they are not joined in preent proceedings

by the present petitioner and only on this ground, present

petition is required to be dismissed. It is further submitted

C/SCA/12212/2017 ORDER DATED: 11/10/2021

that in Regular Civil Suit No. 1203 of 2008 preferred by the

petitioner against the defendant No. 1, an application under

Order 39 Rule 1 and 2 of the Civil Procedure Court was

rejected wherein, no appeal was preferred by the present

petitioner. The second suit i.e. Special Civil Suit No. 93 of

2009 was filed by the present petitioner on 7 th of May 2011

wherein, also application for interim injunction was preferred

by the petitioner which was rejected with sufficient reasons. It

is further submitted that second suit is clearly hit by Order 2

Rule 2 of the Civil Procedure Code. The learned District Judge

has committed no error in rejecting the appeal preferred by

the present petitioner. The second agreement dated 7th

October 2005 preferred by the petitioner was forged and bogus

as there was no signature of the respondents as per the hand

writing expert. The panchnama prepared by the Court

Commissioner in a Regular Civil Suit No. 1203 of 2008 was

considered by the Court below in that suit and application for

interim injunction was rejected. It is submitted that the

plaintiffs are free to produce sufficient evidence to establish

his possession in respect of the suit property during the trial,

and therefore, order passed by the District Court confirming

the order passed by the Trial Court is just legal and proper.

C/SCA/12212/2017 ORDER DATED: 11/10/2021

Hence it was requested by learned advocate from the

respondent to dismiss the petition.

7. Having heard learned advocates for the respective parties

and perused the material on record, it appears that the

petitioner and the respondent no.3 - original plaintiff filed two

suits before the Civil Court and first Civil Suit was registered

as Regular Civil Suit No.1203 of 2008, filed by the plaintiff for

declaration and injunction and for protection of possession of

the suit land. It also appears that they also filed second suit

being Special Civil Suit No.93 of 2009 for specific performance

of contract and for cancellation of sale deed. It also appears

that mortgaged deed was executed in favour of the plaintiff on

26.04.2001 for a period of 5 years, and thereafter, one another

agreement was executed of which plaintiff is treating it as

agreement to sell, and therefore, after a span of 3 years from

the date of execution of the said agreement, on 23.10.2008, as

the defendants of the suit were trying to disturb the

possession, they filed Regular Civil Suit No.1203 of 2008, and

thereafter, the plaintiff filed another suit being Special Civil

Suit No.93 of 2009. It appears that in Regular Civil Suit

No.1203 of 2008, an application for interim injunction was

rejected by the Civil Court on 30.08.2010. The said order was

C/SCA/12212/2017 ORDER DATED: 11/10/2021

not challenged by the original plaintiff and findings as well as

order passed below Exh.5 in Regular Civil Suit No.1203 of

2008 has attained finality. If we consider the order passed in

the application for injunction preferred by the plaintiff in the

second suit being Special Civil Suit No.93 of 2009, dated

07.05.2011, learned Civil Judge has clearly referred the earlier

proceedings filed by the plaintiff and again, rejected the

application for injunction preferred by the plaintiff. It was

observed that second suit filed by the plaintiff was hit by

Order 2 Rule 2 of CPC and dismissed the injunction

application vide order dated 07.05.2011 in Special Civil Suit

No.93 of 2009. As discussed above, the plaintiff has nowhere

challenged the order passed below Exh.5 in Regular Civil Suit

No.1203 of 2008. The plaintiff has tried to establish the

possession over the suit land relying upon the panchnama

carried out in Regular Civil Suit No.1203 of 2008 which was

carried out pursuant to the order dated 25.10.2008 passed by

the learned Civil Judge. After considering the above said

panchnama carried out in Regular Civil Suit No.1203 of 2008,

learned Civil Judge has rejected the application for injunction

preferred by the plaintiff. It appears from the order passed by

the learned Appellate Judge that the document examined

C/SCA/12212/2017 ORDER DATED: 11/10/2021

dated 24.04.2001 is said to have been contract of mortgage

executed on a non-judicial stamp paper of Rs.20/- and

mortgage money of Rs.50,001/- only. As per the observations,

the said document was unregistered and referring Section 17

read with Section 49 of the Registration Act, it was observed

that if any contract having value is more than Rs.100/-, it

should compulsory be registered contract and except certain

modalities, any unregistered document cannot be taken into

consideration as evidence even for collateral purpose. Second

contract dated 07.10.2005 was also considered by the learned

Appellate Court paying more amount of Rs.3,02,000/- only

and total Rs.3,92,001/-. It also appears that the second

document was seriously disputed by defendant no.1 saying

that there was no signature made by him in this document.

The defendant had also produced an opinion of handwriting

expert at Mark-36/2 opined that defendant no.1's signature

was not endorsed on second document produced at Mark-4/2,

and therefore, it was rightly observed by the First Appellate

Court that the defendant has successfully raised suspicious

circumstances rebutting the plaintiff's claim that he is in

settled and legal possession and has got right to execute the

sale deed qua suit land from Mark-4/2. While filing the

C/SCA/12212/2017 ORDER DATED: 11/10/2021

second suit i.e. Special Civil Suit No.93 of 2009, there was no

record available with the plaintiff on filing of the suit that they

are in possession of the suit property. They only relied upon

the documents i.e. Court Commissioner Report at Mark-4/8

which was prepared in earlier suit i.e. Regular Civil Suit

No.1203 of 2008. The Court Commissioner is not permitted to

establish the possession of the suit property of either side

while preparing the panchnama. The Court Commissioner

cannot favour either side to establish the possession of the

said property by recording the statement of any neighbour or

any other third party Further, it appears that the respondent

no.2 is the purchaser of the suit land with whom the plaintiff

has no contract, and therefore, he would not be entitled to

seek remedy available under Section 53(a) of the T.P. Act

against non-party to the contract. The plaintiff has failed to

prove the legal possession over the suit property.

8. In the case of Ashwinkumar K. Patel Vs. Upendra J.

Patel (supra), the Hon'ble Apex Court considered the peculiar

facts of the case and opined that where agreement for sale of

land found to be invalid but plaintiff proved possessory right

and permissive possession which accepted by owners, plaintiff

C/SCA/12212/2017 ORDER DATED: 11/10/2021

entitled to temporary injunction in his favour. Hence, it was

further held on facts that the High Court in appeal committed

an error in remitting the temporary injunction application to

the Trial Court for disposal afresh merely because it disagreed

with reasoning of the Trial Court. In the instant case, the

defendants have never accepted the possession of the suit

property of the plaintiff.

9. In the case of Padhiyar Prahladji Chenaji Vs. Maniben

Jagmalbhai (supra), which has been relied upon by learned

advocate for the petitioner, it was a case of the plaintiff in the

suit for cancellation of sale deed, declaration and injunction

and the Trial Court as well as the First Appellate Court

declined to grant relief of declaration. The question was

whether relief of permanent injunction could be granted.

Considering the concurrent finding by the Courts-below that

the plaintiff was in possession of land in question, it was held

that the relief of injunction if can be independently claimed

then, it is not a consequential relief. If a person is in settled

possession, he cannot be evicted except in accordance with

law. Here facts are quite different from the facts of cited

judgments. Here there is no question of eviction except in

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accordance with law by the defendants as no plea was raised

by the defendant in the suit.

10. In the case of Alka Gupta Vs. Narender Kumar Gupta

(supra), which has been relied upon by learned advocate for

the petitioner/plaintiff, it was held that bar of second suit

under Order 2 Rule 2 of the Code of Civil Procedure, 1908

would not be applicable where the second suit is based on a

different and distinct cause of action.

11. In the instant case, second suit was preferred by the

plaintiff on the same cause of action except adding ground

that some additional amount was paid by the plaintiff to the

defendant no.1 and second document i.e. Mark-4/1 was

executed in their favour which was prima facie falsified by the

handwriting expert in his opinion that the signature of the

defendant no.1 was not found, and therefore, the judgment

relied upon by learned advocate for the petitioner would not

help to the case.

12. In the case of Bharatbhai Hasmukhbhai Oza Vs.

Gandabhai Khodabhai Desai (supra) referring the case

reported in 2011(3) GLR 1951 Hon'ble the Supreme Court

has observed in Paragraph-8 as under:

C/SCA/12212/2017 ORDER DATED: 11/10/2021

"8. It is required to be kept in mind that the present Appeal from Order is filed under the provisions of Order 43 Rule 1(r) of the Code and challenge in this appeal is a discretionary order passed by the learned trial Judge under the provisions of Order 39 Rules 1 and 2 of the Code. In case of Matrix Telecom Pvt.Ltd. V/s. Matrix Cellular Services Pvt. Ltd. reported in 2011(3) GLR 1951, this Court, in paras 6 and 6.1, observed as under:-

"6. Before proceeding further it is required to be noted that the present appeal is against the rejection of interim relief and the main suit is still pending. If this court elaborately deals with the matter on merits it is likely that the same would prejudice the case of either side. Therefore, it is well settled law that this Court is not required to go into the merits of the entire matter at this stage and what is required to be seen is whether the appellant-plaintiff has made out a prima facie case or not for grant of interim injunction.

6.1. It is required to be noted that it is well settled law that the Appellate Court may not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. The Appellate Court will not reassess the material and seek to reach a conclusion

C/SCA/12212/2017 ORDER DATED: 11/10/2021

different from the one reached by the court below if the one reached by the court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion."

13. Against the order passed under Order 39 Rule 1 and 2 of

the CPC, scope of interference is very limited. This Court

would not interfere with the discretion exercised by the Court

of first instance and substitute its own discretion except when

exercise of discretion was arbitrary or perverse. View taken by

the Court of first instance was not perverse and after

considering the relevant facts, prayers made by the petitioner

to interfere in the impugned order passed by the learned First

Appellate Court in Misc. Civil Appeal No.147 of 2011 below

Exh.5 dated 07.05.2011 or order passed by the learned

Additional Senior Civil Judge, Vadodara below Exh.5 in

Special Civil Suit No.93 of 2009 are not warranted to be