Gujarat High Court

Vinodbhai Jethabhai Rajvansh vs Dhaval Kamleshbhai Babubhai on 30 January, 2024

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     C/AO/14/2024                                        ORDER DATED: 30/01/2024

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          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                    R/APPEAL FROM ORDER NO. 14 of 2024

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                      VINODBHAI JETHABHAI RAJVANSH
                                  Versus
                      DHAVAL KAMLESHBHAI BABUBHAI
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Appearance:
MS BHAKTI M JOSHI (3820) for the Appellant(s) No. 1
for the Respondent(s) No. 5
MR MANGAL V GADHAVI (11922) for the Respondent(s) No. 1,2,3,4
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                              Date : 30/01/2024
                               ORAL ORDER

1. The present appeal is filed challenging the

impugned judgment and order dated 29.12.2023 passed in

Special Civil Suit No.1097 of 2023 below Exh.6 & 7 by

the learned City Civil & Sessions Judge, Ahmedabad.

2. Brief facts of the case as per the case of the

appellant in this appeal are as such that the appellant

is the original applicant in Civil Suit No. 1097 of 2023

filed in the court of Ld. City Civil & Sessions Judge,

Ahmedabad, who has filed the civil suit against the

opponent nos.1 to 5 for specific performance against the

appellant. The original applicant i.e. the appellant herein

has filed an application for stay below Exh - 5 however

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the application below Exh. 6 & 7 was dismissed by way

of an order dated 29/12/2023 by the Ld. Judge. It is this

order, which is under challenge in this appeal from

order. It is further the case of the appellant in this

appeal that the appellant has filed Civil Suit No. 1097

of 2023 in the Court of learned City Civil & Sessions

Judge, Ahmedabad for specific performance with a prayer

that unless the defendant complies with the statutory

provision and procedure in pursuit of the "disputed

property" against the defendants not to destroy or

damage the disputed property in any manner or form by

taking the law into their hands. The property situated at

Moje: Juna Vadaj. Under the authority of District Sub

District Ahmedabad, Behind Sourabji Compound, Tulsinagar Co Op. Housing Society, House No. 48 is

located in, and the South side of the house was allotted

to the present appellant by the society. Over the margin

land many years ago a room-like structure has been

constructed, hereinafter referred as "disputed property".

That the property with a house No. 48 is located in

Tulsi Nagar Co Op. Housing Society, and the South side

of the house hereinafter referred to as the "disputed

property". It is further the case of the appellant in this

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appeal that by way of a Will, the father of the appellant

has stated in the Will, the lower floor i.e., ground floor

of the property was allotted to the appellant and the

upper floor i.e., the first floor to the elder brother of the

appellant. The south side of the subject property was

constructed in form of room many years ago, the room

was first used by the father of the appellant and after

his death, and the appellant have been occupying,

enjoying and using it for approximately 42 years and are

still using the room. The appellant has obtained the No-

Objection Certificate from the society on dated 11/01/2016

and the appellant is regularly paying tax of said

property under Ahmedabad Municipal Tax "Property Tax

policy since many years. Pursuant to its usage, no notice of any kind has been issued by any Government or

Semi-Government office or otherwise from the Society till

date, which was disclosed before the Ld. Trial Court, and

accordingly continuously and actively from 42 years

onwards any kind of hindrance and used without

restrictions.

It is further the case of the appellant in this

appeal that the defendant no. 1 to 4 entered into

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collusion with the defendant no. 05 and the defendants

conspired to take the law into their hands with the

intention of causing financial loss, ruin their reputation

in the society and to give them mental torture including

to make repeated efforts to break the room apart from

following the process of law and concurrent intimidation

has been initiated. The appellant has tried to stop the

defendants and told them to act as per legal provisions

and procedure, the defendants became very agitated,

without any supporting evidence and the society rules

and regulations. The appellant has approached the Police

Inspector, Naranpura Police Station, Ahmedabad by way

of making an application against the constant pressure,

torture and threatening from the defendant no. 01 to 05 on 08/09/2023 which is still pending and procedure has

been done by the office in-charge. Therefore, the

appellant has no other choice but to approach the Id.

City Civil & Sessions Court, Ahmedabad to protect his

right by way of making proper application wide Civil

Suit No.: 1097 of 2023 dated: 20/09/2023. It is further

the case of the appellant in this appeal that the present

appellant had also filed an application for stay below

Exh 5 in Civil Suit No. 1097 of 2023 with a prayer that

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unless the defendant complies with the statutory

provision and procedure in pursuit of the "disputed

property" against the defendants not to destroy or

damage the disputed property in any manner or form by

taking the law into their hands till final disposal of the

suit. That the Ld. City Civil & Sessions Judge,

Ahmedabad has rejected the Civil Suit below Exh. 06 &

07.

Hence, the present appeal is preferred.

3. Heard Ms. Bhakti M. Joshi, the learned counsel for

the appellant and Mr. Mangal V. Gadhavi, the learned

counsel for the respondent Nos.1 to 4 - Caveator.

4. The matter is taken up for final disposal,

considering the nature of the order passed by the

learned trial court. Although respondent No. 5 is not

before this Court, the parties have raised their concerns.

The Court has taken into consideration that at the

relevant point in time, a new committee is already in

charge of the society. T, the matter is taken up for

further consideration.

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5. Ms. Bhakti M. Joshi, the learned counsel for the

appellant has submitted that the appellant herein is in

continuous possession of the property in question since

1955. She has further submitted that the trial court has

decided the application for injunction below at Exh.7 and

notice of motion is also decided below Exh.6. She has

also submitted that considering the tenor of the

impugned order, no reasons as required in view of the

settled position of law, are assigned by the trial court

and, therefore, she prays to allow this appeal.

Furthermore, she has submitted that the society cannot

take law in its hand without following the due procedure

of law. Therefore, he prays to allow the present appeal by considering the various judgments of the Hon'ble Apex

Court and this Court.

6. Mr. Mangal V. Gadhavi, the learned counsel for

the respondent Nos.1 to 4 - Caveator has strongly relied

on the findings of the trial court and has submitted that

even the appellant has not approached the learned trail

court with clean hands and has suppressed the material

fact that he has defrauded the society with the amount

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of Rs.15 lakhs. Therefore, he has submitted that the

society has also written letter at the relevant point of

time to the Municipal Corporation not to regularize the

construction, more particularly, encroachment in the

society and, therefore, he has submitted that no error is

committed by the trial court and the trial court has

rightly rejected the application for injunction and,

therefore, he prays to dismiss this appeal.

7.1 Considering the submissions made at the bar by the

respective parties. Now it is first principle that in view

of the various judgments of the Hon'ble Apex Court and

this Court that while deciding the application for

injunction, more specifically interim injunction of such nature sought in the present proceeding, the Court has

to consider such application by keeping in mind the

provisions of Order XXXIX Rule 1 to 3 read with Section

151 of the Civil Procedure Code, 1908, as follows:

"39. Transfer of decree.--(1) The Court which passed a decree may, on the application of the decreeholder, send it for execution to another Court of competent jurisdiction],--

(a) if the person against whom the decree is passed actually and voluntarily resides or carries on business, or

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personally works for gain, within the local limits of the jurisdiction of such other Court, or

(b) if such person has not property within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or

(c) if the decree directs the sale or delivery of immovable property situate outside the local limitsof the jurisdiction of the Court which passed it, or

(d) if the Court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other Court.

(2) The Court which passed a decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction.

(3) For the purposes of this section, a Court shall be deemed to be a Court of competent jurisdiction if, at the time of making the application for the transfer of decree to it, such Court would have jurisdiction to try the suit in which such decree was passed.

Section 151. Saving of inherent powers of Court.

Nothing in this Code shall be deemed to limit or otherwise

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affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."

7.2 While deciding such application, the Court has to

consider these sthree aspects; (i) prima facie case, (ii)

balance of convenience, and (iii) irreparable loss over

hardship.

7.3 Additionally, while going through the impugned

order, it transpires that the learned trial court has

missed this aspect while considering the application

below Exh.6 & 7, and the same is without farming such

points for determination in the judgment and thereafter,

has given specific finding on this aspect merely by referring two lines in one paragraph that these aspects

are required to be considered, but actual finding is not

given by the trial court while deciding such application.