Habibbeg Chhotubeg Moghul vs V H Developers Through Partner
2023 Latest Caselaw 598 Guj

      C/AO/145/2022                               ORDER DATED: 19/01/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                  R/APPEAL FROM ORDER NO. 145 of 2022

                                  With
          CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2022
                 In R/APPEAL FROM ORDER NO. 145 of 2022
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                         HABIBBEG CHHOTUBEG MOGHUL
                                    Versus
                      V H DEVELOPERS THROUGH PARTNER
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Appearance:
MR CHINMAY M GANDHI(3979) for the Appellant(s) No. 1
MS RUMI M GANDHI(3472) for the Appellant(s) No. 1
for the Respondent(s) No. 2,3
MR AMAR D MITHANI(484) for the Respondent(s) No. 1,1.1,1.2
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  CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN

                              Date : 19/01/2023
                               ORAL ORDER

1. The issue, revolves around the suit properties admeasuring 19526 sq. mtrs. and 02732 sq. mtrs. of survey no.721 and 722, T. P. Scheme no.85, Final Plot nos.69/1 and 69/2 of village Vatva.

2. The captioned Appeal from Order, has been filed against the order dated 1.4.2022, passed by the learned Judge, City Civil Court whereby, the applications Exhibits 23 and 24, filed by the appellant, have been rejected. The said applications, were filed seeking direction to the defendants to deposit Rs.3 lakhs towards the mesne profit.

3. Mr M. B. Gandhi, learned senior counsel appearing with Mr Chinmay M. Gandhi, learned advocate for the appellant has made submissions along the lines of the appeal memo.

4. On the other hand, Mr Amar D. Mithani, learned advocate,

C/AO/145/2022 ORDER DATED: 19/01/2023

submitted that Civil Suit no.963 of 2017 was filed which, has been ordered to be dismissed for default, with no further steps by the appellant. The challenge in the said suit, was prayer seeking cancellation of the registered sale deeds one in favour of the respondent and another in favour of one another developer. It is submitted that Exhibit 5 application, was filed which, came to be rejected vide order dated 22.2.2021 and no further steps have been taken challenging the said order before the higher fourm. It is further submitted that the subsequent suit, has been filed seeking direction that the defendants be declared as trespasser of the immovable property, with a further declaration seeking demolition and pulling down of the construction. It is submitted that with these prayers, the applicant, cannot pray for mesne profit.

4.1 Reliance is placed on the judgment of the Calcutta High Court in the case of Poonam Kejriwal v. Bhagwandas Auto Finance Ltd. reported in 2009 SCC OnLine Cal 1203 wherein, the issue, was as regards maintainability of the application for interim orders so as to obtain occupation charges from an alleged trespasser as a condition of staying in the property during pendency of the suit. It has been held and observed that the injury caused to the plaintiff due to such occupation by the defendant, not being irreparable and being capable of being compensated in terms of money, there is no scope for grant of interim orders before the decision on merit. It has been further held and observed that mere fact that the suit of plaintiff for declaration of title, permanent injunction and mesne profits, might succeed in the long run, whereby the defendant would be dispossessed and be required to pay huge amount of mesne profit, would be no ground to pass an order of injunction so as to require payment of money for temporary measure even before the decree

C/AO/145/2022 ORDER DATED: 19/01/2023

for mesne profit. It is therefore urged that the order, is in the right earnest.

5. The learned advocates; however, jointly submitted that the application Exhibit 5, is pending hearing and the Court below, be requested to expedite the hearing, with a liberty to the parties to place it on record, the documents which are placed on the record of the captioned Appeal from Order.

6. In view of the agreement between the parties, the Appeal from Order, is disposed of with a direction to the Court below, to decide the application Exhibit 5, within a period of six months from the date of the receipt of the copy of this order.

7. The parties, shall be at liberty to place it on record the documents and the Court below, shall take a decision as regards production of the documents in accordance with law.

8. It is clarified that this Court, has not expressed any opinion on the merits of the matter. Also, the present order, has been passed, without prejudice to the rights and contentions of the respective parties.

9. In view of the disposal of the Appeal from Order, the civil application (for interim relief) no.1 of 2022, also stands disposed of.

(SANGEETA K. VISHEN,J) RAVI P. PATEL