Gujarat High Court
Parulben Jayraj Agrawal vs Bhagabhai Punabhai Mali on 2 April, 2025
NEUTRAL CITATION
C/AO/33/2023 ORDER DATED: 02/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 33 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/APPEAL FROM ORDER NO. 33 of 2023
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PARULBEN JAYRAJ AGRAWAL & ORS.
Versus
BHAGABHAI PUNABHAI MALI & ORS.
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Appearance:
MR N P PANDYA(11241) for the Appellant(s) No. 1,2.1,2.2
MR YM THAKKAR(902) for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 02/04/2025
ORAL ORDER
1. Admit. learned advocate Mr.YM Thakkar waives service
of notice of admission on behalf of the respondents.
2. Heard learned advocate Mr. NP Pandya for the appellants
and learned advocate Mr. YM Thakkar for the respondents.
3. The present appeal from order is filed under Order 43,
Rule 1 of the Code of Civil Procedure, 1908, thereby
appellants happen to be the plaintiffs, challenging the order
dated 21st December 2021, passed below Exhibit 5 in Special
Civil Suit No. 15 of 2021.
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4. Learned advocate Mr. Pandya would submit that the
plaintiff, along with her husband, entered into an agreement
for sale with the defendants. He would further submit that the
total sale consideration is ₹9,67,50,000/-, out of which,9,67,50,000/-, out of which,
according to the plaintiff, a sum of ₹9,67,50,000/-, out of which,6,38,000/- was paid and
received by the defendants. Considering the documentary
evidence on record, the injunction application has been
rejected by the trial court.
4.1 Learned advocate Mr. Pandya would further submit that
considering the nature of controversy, dispute, and evidence on
record submitted by the plaintiff not being appreciated, the
matter is required to be remanded back to the trial court for
fresh consideration.
5. Per contra, learned advocate Mr. Thakkar has vehemently
objected to the appeal by contending that there was a dispute
between the plaintiffs and her husband, and a public
advertisement was also published by the plaintiffs.
5.1 Learned advocate Mr. Thakkar would further submit that
the husband of the plaintiff had entered into an agreement to
sell with a third party, thereby assuring the third party that
the title of the suit land was clear. The defendants, having
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C/AO/33/2023 ORDER DATED: 02/04/2025
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been instructed by the husband of the plaintiff to execute a
sale deed in favor of the third party, have bona fide executed
the sale deed in favor of the third party, who are not joined
in the present suit.
5.2 Learned advocate Mr. Thakkar would further submit that
as such, there is no error committed by the trial court while
rejecting the impugned application. At the same time, learned
advocate Mr. Thakkar would candidly state in his submission
that observations made in para 26 of the impugned order by
the trial court may not be stricto sensu germane from the
record, but in any case, when there is a serious dispute raised
by the defendants about the receipt of money said to have
been paid by the plaintiff and executed sale in favor of the
third party, no interference may be made by this court.
5.3 After making above submissions, he requested this court
to dismiss the appeal.
6. Having heard learned advocates appearing for the
respective parties, prima facie, it appears that there is an
agreement to sell executed between the plaintiffs and third
party on 21st January, wherein the husband of the plaintiff was
also a party and signatory of the agreement to sell. The
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husband of the plaintiff died on 7 th August 2021. The payments
made by the plaintiffs to the defendants, either through cash
or cheque, vouchers have been submitted before the trial
court, although the same was strongly objected to by the
defendants.
6.1 After considering the submissions made by learned
advocates for the respective parties, the trial court, in its
impugned order, observed as under:
"26) Now, after perusing the documentary evidence on
record and after hearing the above mentioned arguments
advanced by the Ld. Advocate for the parties, that as far
as the dispute between the parties and the relief sought in
the injunction application vide Exh.5 and documentary
evidence produced in support of the suit by the plaintiff
vide Mark-3/1 to 3/5 and the document produced by the
defendants vide Mark-9/1 to 9/23 in support of the suit,
the said application cannot be ecided without taking
evidence of the parties on record. Now. this juncture, if
the present application may be granted as prayed for by
the plaintiff, then certainly, it would be considered as final
decree without taking evidence. The plaintiff has relied
upon the judgment of Hon'ble Gujarat High Court, this
Court humbly agrees with the principles laid down therein.
but the facts of the present case is different from the
reason stated above which does not help the plaintiff's
case. Hence, it transpires from the above facts that it is
not the prima facie case of the applicant/plaintiff. The
balance of convenience does not fall in favour of the
plaintiff then naturally, the answer of every question that
means irreparable loss and plaints of convenience would
also come in negative."
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6.2 Prima facie, after going through the reasons assigned by
the trial court, more particularly what has been observed by
the trial court, that granting the prayer made by the plaintiff
in the impugned application would amount to granting the
final decree, which would be not only perverse and erroneous
but arbitrary.
6.3 Therefore, in such a situation, this court, having limited
power under Order 43 of the CPC, as there is no appreciation
of evidence by the trial court while adjudicating an injunction
application, which is the right of the party, the trial court was
expected to decide the nature of the dispute vis-à-vis the
evidence coming on record either in the form of documents or
affidavits. There appear to be no such observations made at
the stage of adjudication of the injunction application.
6.4 At this stage, learned advocate Mr. Thakkar would
request this court not to elaborate further reasons and simply
requested the court to remand the matter back for re-
adjudication of the injunction application on its own merits.
6.5 Considering the aforesaid facts and circumstances and the
observations so made hereinabove, and the request made by
learned advocates for the respective parties, the impugned
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order is required to be quashed and set aside, which is hereby
quashed and set aside.
7. In view of the aforesaid, the appeal is partly allowed to
the aforesaid extent. The matter is remanded back to the trial
court for re-adjudicating the injunction application, so filed by
the plaintiffs below Exhibit 5 after giving an opportunity of
hearing to all parties concerned. The trial court shall decide
the same without being influenced by any of the observations
made by the trial court or by this court and in accordance
with law within 4 months from the date of receipt of copy of
this order.
7.1 It is also open for the parties to request the trial court to
send the matter to the mediation center.
8. In view of the disposal of the main appeal from order,
the civil application does not survive and is disposed of
accordingly.
(MAULIK J.SHELAT,J)
DRASHTI K. SHUKLA
