Mehul Shantilal Patel vs Samatbhai Nanubhai Varu
2021 Latest Caselaw 15035 Guj

     C/SCA/13525/2021                             ORDER DATED: 24/09/2021



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
             R/SPECIAL CIVIL APPLICATION NO. 13525 of 2021
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                         MEHUL SHANTILAL PATEL
                                Versus
                        SAMATBHAI NANUBHAI VARU
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Appearance:
MR HASIT DAVE(1321) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
                  Date : 24/09/2021
                   ORAL ORDER

1. By preferring this petition, the petitioner has requested

to quash and set aside the impugned order dated 06.08.2021

passed below Exh.31 in Special Civil Suit No.8 of 2021

dismissing their application under Order 7 Rule 11 of the

Code of Civil Procedure, 1908 (hereinafter referred to as "the

CPC" for short) preferred by the petitioner/defendant in the

suit.

2. Heard learned advocate for the petitioner.

3. It is submitted by learned advocate for the petitioner that

the learned Trial Court has wrongly held in an application

submitted by the present petitioner under Order 7 Rule 11 of

the CPC that the suit is maintainable and also simultaneously

directed appointment of the Court Commissioner for local

inspection even without the presence of all necessary parties.

C/SCA/13525/2021 ORDER DATED: 24/09/2021

It is further submitted that the suit filed by the respondent-

plaintiff was on face of it not maintainable because it was filed

without any existing right in law or any alleged cause in

respect of either subject property or qua the defendant. It is

further submitted that the suit was filed for specific

performance of alleged agreement dated 02.11.2018 and the

existence, enforceability and validity were specifically denied

by the defendant. It is further submitted that under Section

54 of the Transfer of Property Act, contracts for sale i.e.

agreement to sell would not itself create any interest in or

charge on such property, wherein the agreement is not

registered under Section 17 of the Registration Act. In support

of his arguments, learned advocate for the petitioner has relied

upon the judgments of the Hon'ble Apex in the case of (i)

Dahiben Vs. Arvindbhai Kalyanji Bhanusali (in Civil Appeal

No.9519 of 2019, decided on 09.07.2020) and (ii) Suraj

Lamp and Industries Pvt. Limited Vs. State of Haryana

reported in 2012(1) SCC 656.

4. Notice, returnable on 22.10.2021.

(B.N. KARIA, J) rakesh/