Gujarat High Court
Naynaben Dalpatbhai Patel vs Hansaben Eavjibhai Ahir W/O ... on 25 September, 2023
Bench: S.V. Pinto
NEUTRAL CITATION
C/AO/37/2021 JUDGMENT DATED: 25/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 37 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In
R/APPEAL FROM ORDER NO. 37 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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1 Whether Reporters of Local Papers may be allowed to see the Yes
judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the judgment ? No
4 Whether this case involves a substantial question of law as to the No
interpretation of the Constitution of India or any order made
thereunder ?
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NAYNABEN DALPATBHAI PATEL
Versus
HANSABEN EAVJIBHAI AHIR W/O HASMUKHBHAI AHIR
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Appearance:
MR DHAVAL D VYAS(3225) for the Appellant(s) No. 1,2
NOTICE SERVED BY DS for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 25/09/2023
ORAL JUDGMENT
1. This appeal has been filed by the appellants - original
plaintiffs against the respondent - original defendant against
the order dated 12.02.2021 passed by the learned Principal
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Senior Civil Judge, Navsari below application for interim
injunction Exh.5 in Special Civil Suit No. 41 of 2019,
whereby, the learned Principal Senior Civil Judge, Navsari
was pleased to partly allow the interim injunction application
Exh.5 on the condition that the plaintiffs shall deposit in the
Court the remaining sale consideration an amount of
Rs.2,08,08,765/- within a period of two weeks from the
date of the order and if the plaintiffs deposit the said amount,
the defendant shall not alienate, dispose of or create any third
party rights in the disputed suit property and if the plaintiffs
fail to deposit the remaining amount of sale consideration
Rs.2,08,08,765/-within a period of two weeks, there shall
not be any interim relief in favour of the plaintiffs. The
parties are hereinafter referred to as the plaintiffs and the
defendant as they stood in the original petition for the sake of
convenience, clarity and brevity.
2. The brief facts that emerge from the record of the case are as
under:
2.1. That the plaintiffs filed Special Civil Suit No. 41 of 2019 for
specific performance of the contract mainly contending that
property situated in village Posra, Taluka Jalalpore, District
Navsari bearing Block / Survey No. 9 belonged to original
owner namely Ahir Ravjlibhai Morarbhai and during his life
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time, the name of Ahir Mangabhai Morarbhai and Ahir
Sukhabhai Morarbhai have been entered into the revenue
record vide Mutation Entry No.1373 dated 17.12.1997. Ahir
Ravjibhai Morarbhai, Ahir Mangabhai Morarbhai and Ahir
Sukhabhai Morarbhai each have 1/3 joint ownership in the
disputed suit property. Ahir Ravjibhai Morarbhai died on
07.02.1999 and the name of Ahir Kanubhai Ravjibhai, Ahir
Valiben Ravjibhai, Ahir Hansaben Ravjibhai, Ahir
Narsinhbhai Ravjibhai, Ahir Dahyabhai Ravjibhai and Ahir
Kashiben Wd/o Ahir Ravjibhai Mangabhai were mutated
into the revenue record vide Mutation Entry No. 1625 dated
30.07.1999. Ahir Dahyabhai died on 30.11.2017, his legal
heir namely Ahir Dakshaben Wd/o of Ahir Dahyabhai
Ravjibhai was entered into the revenue record vide Mutation
Entry No.4273 dated 11.05.2018. That some other owners
also died and their legal heirs have also been entered into and
deleted from the revenue record and the defendant is the
independent owner of the disputed suit property. That on
01.01.2017, the defendant had executed an agreement to sell
with regard to the disputed suit property at the rate of
Rs.75,00,000/- per vigha and the total amount of sale
consideration is Rs.2,60,19,765/- and the plaintiffs have
paid an amount of Rs.45,11,000/- in cash and again paid an
amount of Rs.5,00,000/- by a cheque bearing No.180242
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dated 04.01.2017 by the State Bank of India, Ghoddod Road
Branch, Surat, which was cleared on 06.01.2017. That
thereafter also, the plaintiffs have paid an amount of
Rs.2,00,000/- in cash on 03.01.2017. Thus, the defendant
had received an amount of Rs.52,11,000/- from the
plaintiffs. The plaintiffs are ready and willing to pay the
remaining amount of sale consideration and get the
registered sale deed executed by the defendant but, the
defendant is not executing the registered sale deed in their
favour. That some difference arose between the family
members and therefore, one Ahir Bhikhiben Harishbhai
through her advocate gave a public notice in daily
newspaper 'Gujarat Mitra' on 14.03.2018 canceling the
agreement to sell and when the defendant was contacted, she
had refused to execute the sale deed. Hence, the plaintiffs
filed a suit for specific performance of contract and also filed
the application for interim injunction restraining the
defendant from selling, transferring, creating any third party
rights or executing any agreement to sell the disputed suit
property, in any manner, till final disposal of the suit.
2.2. That the defendant has been duly served with the notice and
the defendant appeared and filed the arguments at Exh. 13.
After hearing the learned advocates of both the parties and
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considering the documents produced on record, the learned
Principal Senior Civil Judge, Navsari partly allowed the
interim injunction application preferred by the plaintiffs on
condition that the plaintiffs deposit the remaining sale
consideration amount of Rs.2,08,08,765/- within a period of
two weeks from the date of the order and restrained the
defendant from selling, alienating or creating any third party
rights in the disputed suit property and also ordered that
there shall be no interim relief, if the plaintiffs fail to deposit
the remaining sale consideration amount.
3. Being aggrieved and dissatisfied with the order, the plaintiffs
have filed the present appeal mainly contending that the
execution of the agreement to sell dated 01.01.2017 and also
payment of substantial consideration of Rs.52,11,000/- was
neither disputed nor contested by the defendant and the
learned trial Court has erred in holding that the plaintiffs
have failed to deposit the balance sale consideration and it
was not obligatory for the plaintiffs to actually tender or
deposit the balance amount of sale consideration in the Court
as readiness and willingness to enter into the sale
consideration. That the plaintiffs are entitled to pay the
remaining amount of sale consideration only against the
physical possession of the land and the learned trial Court
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has directed to pay the balance sale consideration as a pre-
condition to grant injunctions which is beyond the scope of
the powers of the Court. That the plaintiffs would be placed
in unequitable position without title or possession of the
disputed suit property and hence, the order dated
12.02.2021 passed by the learned Principal Senior Civil
Judge, Navsari in Special Civil Suit No. 41 of 2019 be set
aside.
4. Heard learned advocate Mr. Dhaval D. Vyas for the
appellants - plaintiffs. Though served, the respondent -
defendant has not appeared but the defendant has filed an
affidavit-in-reply, which has been taken on record.
5. Learned advocate Mr. Dhaval Vyas for the plaintiffs has
reiterated the contents of the appeal memo and has urged
this Court to set aside the order passed by the learned Trial
Court of depositing the remaining amount of sale
consideration and granted injunction without depositing any
amount before the learned Trial Court.
6. The defendant has stated on oath in the affidavit-in-reply
that she is the owner of the disputed suit property and she
has admitted the agreement to sell. The suit property was sold
for consideration of an amount of Rs.2,60,90,765/-, out of
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which, an amount of Rs.50,11,000/-was paid. It is further
stated that she is ready and willing to execute the sale deed as
and when the remaining amount of sale consideration is paid
but the plaintiffs did not pay the remaining amount of sale
consideration and therefore, the sale deed was not executed.
Moreover, she is ready and willing to execute the sale deed as
and when the plaintiffs pay the remaining amount of sale i.e.
Rs.2,08,08,765/- as observed by the learned trial Court in
the order dated 12.02.2017.
7. This Court in Jivraj Tea Limited Vs Dayalji Vanravan Kotecha,
reported in 2022(0)AIJEL-HC 244893 in paragraph 10
observed thus :
"10. It is well settled principles of law that in an Appeal against
exercise of 'discretion' by the Court of first instance, the power
of appellate Court to interfere with the exercise of discretion is
restrictive. Merely because on facts, the appellate Court would
have concluded differently from that of the Court below, that
would not, by itself, provide justification for appellate Court to
interfere. To justify interference, the appellant would have to
demonstrate that 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 injunction. An appeal against the
exercise of discretion is an appeal on principle.........."
8. In Wander Limited and another Vs Antox India P.Ltd,
reported in 1990 (Supp) Supreme Court Cases 727, the
Honourable Apex Court in paragraph 14 observed thus :
"14. The appeals before the Division Bench were against the
exercise of discretion by the Single Judge. In such appeals, the
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appellate court will 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.
Appellate Court will not reassess the material and seek to reach
a conclusion 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. If the discretion
has been exercised by the Trial Court reasonably and in a
judicial manner the fact that the appellate court would have
taken a different view may not justify interference with the trial
court's exercise of discretion. After referring to these principles
Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan
Joseph: (SCR 721)
"...These principles are well established, but as has been
observed by Viscount Simon in Charles Osention & Co. v.
Johnston ....the law as to the reversal by a court of appeal of an
order made by a judge below in the exercise of his discretion is
well established, and any difficulty that arises is due only to the
application of well settled principles in an individual case."
The appellate judgment does not seem to defer to this principle."
9. In view of the above settled principles of law, this Court has
very limited power to interfere with the order passed by the
learned trial Court and only in exceptional circumstances,
the Appellate Court can interfere with the discretionary order
passed by the learned trial Court. The Appellate Court
cannot reevaluate the entire evidence and arrive at a
conclusion contrary to the conclusion arrived at by the
learned trial Court unless the said order is found to be
invalid, illegal, arbitrary, perverse or contrary to the settled
principles of law. Keeping in mind the above principles, this
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Court has only to see as to whether the learned trial Court
has committed any error in passing the impugned order. At
the same time, this Court is also required to see whether the
cardinal principles of law governing the injunction i.e. prima
facie case, balance of convenience and irreparable loss are
satisfied or not in passing the order or not ?
10. In the facts and circumstances of the case, the learned trial
Court has discussed all the issues and prima-facie, it appears
that the plaintiffs have filed the suit for specific performance
of the contract of the agreement to sell dated 01.01.2017,
according to which, the defendant had agreed to sell the
disputed property at the rate of 75,00,000/- per vigha and
the plaintiffs had paid an amount of Rs.52,11,000/- as part
payment. The plaintiffs have stated that the defendant is not
ready and willing to execute the registered sale deed in their
favour, even though, they are ready to pay the remaining
amount of sale consideration but, from the affidavit-in-reply
field by the defendant before this Court, it appears that the
defendant is ready and willing to execute the sale deed in
favour of the plaintiffs as and when the plaintiffs deposit the
remaining amount of sale consideration i.e.Rs.2,08,00,765/-.
11. In the facts and circumstances of the case, the learned trial
Court has prima-facie appreciated all the evidence in its
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proper perspective and all the ingredients of prima-facie
case, balance of convenience and irreparable loss have been
considered in detail. Therefore, in the considered opinion of
this Court, the impugned order passed by the learned trial
Court is found to be just and proper and no illegality or
perversity is committed by the learned trial Court while
passing the impugned order.
12. Under the circumstances, the present Appeal from Order fails
and the same is hereby dismissed. The order passed by the
learned Principal Senior Civil Judge, Navsari below
application for interim injunction Exh. 5 in Special Civil Suit
No. 41 of 2019 on 12.12.2021 is hereby confirmed. There
shall be no order as to costs.
13. In view of the order passed in Appeal from Order, connected
civil application is disposed of accordingly.
Sd/-
(S. V. PINTO, J)
F.S.KAZI.....
