Lhrs Of Karshanbhai Lakhmanbhai ... vs Dilipbhai Rajabhai Odedara
2023 Latest Caselaw 2891 Guj

      C/SCA/4770/2023                                 ORDER DATED: 12/04/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 4770 of 2023

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               LHRS OF KARSHANBHAI LAKHMANBHAI SINHAR
                                Versus
                     DILIPBHAI RAJABHAI ODEDARA
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Appearance:
MR AMAR D MITHANI(484) for the Petitioners
MR DIPAL RAVAIYA for the Respondent
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                Date : 12/04/2023

                                 ORAL ORDER

1. The present petition is filed by the petitioners -

original plaintiffs challenging the order impugned dated

20.02.2023 passed by the appellate Court below - the

Additional District Judge, Keshod in Civil Misc. appeal No.8

of 2022, whereby the appellate Court below has set aside the

order dated 18.11.2022 passed below Exh.5 in Regular Civil

Suit No.37 of 2022 filed by the present petitioners.

2.1 Learned advocate Mr.Amar Mithani for the

petitioners has submitted that pursuant to the order passed

by the appellate Court below, the petitioners have deposited

the amount of Rs.5,58,200/- and the respondent has deposited

the amount of Rs.9 lakhs before the trial Court concerned.

He has also pointed out that the appellate Court below has

C/SCA/4770/2023 ORDER DATED: 12/04/2023

wrongly interfered with the order passed by the trial Court

below Exh.5 as the appellate Court below has not given any

cogent and convincing reasons and has prejudged the issue

involved in the suit by observing that the transaction which

is in nature of agreement to sell is for the purpose of

security of the money and if the defendant is directed to pay

Rs.9 lakhs instead of Rs.8 lakhs, the interest of the plaintiffs

will be protected. He has submitted that the said observation

itself is prima facie improper and erroneous.

2.2 He has further submitted that the appellate Court

below has not properly dealt with the chain of registered

documents where the agreement to sell is executed and

thereafter the documents regarding confirmation of agreement

to sell is executed twice which are registered before the Sub

Registrar which was not properly considered. He has further

submitted that even the suit proceedings is also proceeded

further where the issues are framed and now, the evidence is

also recorded. That aspect is also not considered by the

appellate Court below. Moreover, he has further submitted

that considering the entire tenor of the agreement to sell,

which is executed by the defendant in favour of the

plaintiffs, it cannot be even presumed that those agreement

to sell are executed towards security of the money advance

by the plaintiffs to the defendant and therefore, he has

C/SCA/4770/2023 ORDER DATED: 12/04/2023

submitted that the appellate Court below has committed gross

error while considering the appeal under the provisions of

Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908

and exceeded its jurisdiction. He has relied upon the

following judgments in support of his submissions :

(i) (2004) 8 SCC 488 - Maharwal Khewaji Trust versus Baldev Dass

(ii) (2010) 1 SCC 379 -Julien Educational Trust versus Sourendra Kumar Roy

(iii) (2012) 6 SCC 792 - Best Sellers Retail (India) Pvt. Ltd., versus Aditya Birla Nuvo Limited

2.3 In view of above, he has submitted that this

petition deserves to be allowed by quashing and setting aside

the impugned order passed by the appellate Court below and

by restoring the order passed below Exh.5 by the trial Court

in the suit proceedings.

3.1 Per contra, Mr. Dipal Ravaiya, learned advocate for the respondent - original defendant submits that he has

instructions to appear on behalf of the respondent and he

will file his appearance during the course of the day.

Registry to accept the same. He has raised strong objection

against this petition. He has submitted that the appellate

Court below has rightly dealt with the contentions raised by

C/SCA/4770/2023 ORDER DATED: 12/04/2023

the parties and rightly observed that the transaction of

agreement to sell is executed towards the security of the

non-transaction. He has heavily relied upon the cross-

examination of one of the plaintiffs by pointing out that in

the cross-examination, the plaintiff has admitted that his

father is having licence as money lender. He has further

submitted that the trial Court has not properly considered

the three main aspects of granting interim injunction

application Exh.5 - prima facie case, balance of convenience

and irreparable loss and therefore, the appellate Court has

rightly interfered with the order passed by the trial Court by

exercising the powers under Order XLIII Rule 1(r) of the

Code of Civil Procedure, 1908. He has submitted that no case

is made out to interfere in the impugned order by exercising

the powers under Article 227 of the Constitution of India. He

has submitted that this petition may be dismissed.

4. Rule. Learned advocate Mr.Dipal Ravaiya waives

service of notice of rule on behalf of the respondent.

5.1 I have heard learned advocates for the respective

parties. I have considered the rival submissions made by

them. I have perused the relevant material on record. I have

also perused the order passed by the trial Court below Exh.5,

from where the following facts are emerged.

       C/SCA/4770/2023                                ORDER DATED: 12/04/2023




5.2             There was a registered agreement to sell between

the parties for an agriculture land, without possession, for

total sale consideration of Rs.13,58,200/-. The plaintiffs have

paid Rs.8 lakhs to the defendant at that time and remaining

amount of Rs.5,58,200/- is to be paid by the time limit. Due

to COVID pandemic, with consent of the parties, the said

time limit is extended from time to time till 07.03.2022.

During the interregnum period, the plaintiffs have sent a

notice to the defendant for the remaining payment of

Rs.5,58,200/- and shown his willingness and the defendant

has not responded to the same. Therefore, the plaintiffs have

filed a suit before the trial Court concerned for specific

performance, along with injunction application Exh.5. It is

this order by which the trial Court has granted injunction

application Exh.5 and the appellate Court below has rejected

and is thus travelled to this Court.

5.3 I have gone through the impugned order passed

by the appellate Court below. From the impugned order, it

transpires that the appellate Court below has exhaustively

considered the suit proceedings as well as the transactions

between the parties. Further, the appellate Court below has

taken into consideration the factual aspects of the matter

which need not be considered at this stage. The trial Court

C/SCA/4770/2023 ORDER DATED: 12/04/2023

has rightly considered the aspects of granting injunction

application Exh.5 i.e. prima facie case, balance of convenience

and irreparable loss. In view of decision of Hon'ble Apex

Court in the case of (2012) 6 SCC 792 - Best Sellers Retail

(India) Pvt. Ltd., versus Aditya Birla Nuvo Limited, these three ingredients are required to be seen at the stage of

injunction application Exh.5, which the trial Court has rightly

considered. Whereas, the appellate Court below has exceeded

its jurisdiction by observing the factual aspects of the case,

which is not permissible at this stage. It is not the appeal

filed against the final judgment and decree of the trial Court.

It is the appeal filed against the interim injunction order

below Exh.5. Therefore, the appellate Court below is to be

very conservative in observing the factual aspects of the

matter, since the suit proceeding is still to be adjudicated. If

such observations are made by the appellate Court below at

this stage, there may be the chances that the trial Court

may prejudice by such observations. The impugned order is

therefore required to be quashed and set aside.

6. For the reasons recorded above, the following order

is passed.

6.1             The present petition is allowed.







       C/SCA/4770/2023                           ORDER DATED: 12/04/2023




6.2             The impugned order dated 20.02.2023 passed by

the appellate Court below - the Additional District Judge,

Keshod in Civil Misc. appeal No.8 of 2022 is hereby quashed

and set aside.

6.3 Consequently, the order dated 18.11.2022 passed

below Exh.5 in Regular Civil Suit No.37 of 2022 by the trial

Court is confirmed.

7. It is expected that the trial Court concerned to

hear and dispose of the suit on its own merits and in

accordance with law, without influence by any order, after

giving proper opportunity to the parties.

8. The parties to cooperate the suit proceedings.

(SANDEEP N. BHATT,J) M.H. DAVE