Gujarat High Court
Dipak Natvarlal Trivedi vs Savitaben Sindhubhai Halvadiya on 25 February, 2025
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C/AO/162/2022 ORDER DATED: 25/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 162 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/APPEAL FROM ORDER NO. 162 of 2022
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DIPAK NATVARLAL TRIVEDI
Versus
SAVITABEN SINDHUBHAI HALVADIYA & ANR.
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Appearance:
MR HARSHADRAY A DAVE(3461) for the Appellant(s) No. 1
MR YOGESH G KANADE(3114) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 25/02/2025
ORAL ORDER
1. Admit. Learned advocate Mr.Yogesh G. Kanade waives
service of notice of admission on behalf of respondents.
2. Heard learned advocate Mr.Harshadray A. Dave appearing
for the appellant and Learned advocate Mr.Yogesh G. Kanade
appearing for the respondents for the respective parties. With
the consent of learned advocates appearing for the respective
parties, appeal is taken up for final hearing today itself.
3. The present appeal is filed under Order 43 of Civil
Procedure Code, 1908 against the judgment and order on
14.09.2022 passed by City Civil and Sessions Court,
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C/AO/162/2022 ORDER DATED: 25/02/2025
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Ahmedabad City in below Exh.6 and 7 in Civil Suit No.390 of
2022.
4. The appellant is the original plaintiff of Civil Suit No.390
of 2022, who has entered into registered agreement to sell
with respondent-defendants in relation to suit property. As far
as possible herein after, parties will be referred as per their
original position in the suit.
5. It is a case of the plaintiff that there were encroachments
upon the suit property, which were removed by the plaintiff at
their costs, thereby, he was put in possession and then after,
develop the suit property and at present, the plaintiff is
occupying the suit property, wherein his office is situated
wherefrom he is operating day to day.
6. It is further case of the plaintiff that defendants is trying
to interfere with the possession of the plaintiff and now, it has
came to light that defendants are not having clear right, title
and interest, thereby, they are not in a position to execute the
sale deed in favour of the plaintiff. The plaintiff has also
averred that due to threat given by the defendants, thereby to
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dispossess them from suit property, the said suit seeking
declaration and permanent injunction has been filed.
7. The defendants has appeared in the suit and filed
written statement contending, inter alia, that plaintiff is not
fulfilling obligation as per terms of agreement to sell rather
shying away from its obligation to pay balance consideration
thereby avoiding execution of sale deed. The defendants further
contended that as per arbitration award, the execution has
been filed by the defendants against third parties, which is
pending and if any stay will be granted in favour of plaintiff,
it will seriously prejudice the rights and interests of the
defendants in the pending execution.
8. After hearing the parties, the learned Trial court vide its
impugned order rejected the impugned injunction application
filed by the plaintiff.
9. Being aggrieved and dissatisfied with the judgment and
order dated14.09.2022 passed by City Civil and Sessions Court,
Ahmedabad City in below Exh.6 and 7 in Civil Suit No.390 of
2022, the original plaintiff has preferred the present appeal.
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10. Learned advocate Mr. Dave would submit that
indisputably, the plaintiff is in possession of the suit property
and occupying it since long.
10.1 Learned advocate Mr. Dave would further submit that
there is a registered agreement to sell executed between the
parties, which is registered on 26th September, 2020.
10.2 Learned advocate Mr. Dave would further submit that
as per the agreement to sell, the possession was not transferred
to the plaintiff by the defendants. Nonetheless, as per the
averment so made in the plaint, after removing encroachment
over the suit property by the plaintiff at his cost, the plaintiff
has occupied the suit property and constructed his office,
which is as on date stands over the suit property.
10.3 Learned advocate Mr. Dave would further submit that
title of defendants is under cloud as there are subsequent
events, which have taken place, after execution of said
agreement to sale, thereby, arbitration award in favour of
defendants is put under cloud and so, as on date, defendants
are not having clear and marketable title over the suit
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property.
10.4 Learned advocate Mr. Dave would further submit that
when the defendants have tried to dispossess the plaintiff from
suit property, a cause arises to the plaintiff to file suit, which
is permissible in law, irrespective of not praying for specific
performance of agreement to sell due to aforesaid reasons.
10.5 Lastly, learned advocate Mr. Dave would submit that it
is a settled legal position of law that a person should not be
dispossessed without due process of law and on such principle
also, the Trial court requires to protect the interests of
plaintiff, thereby, to grant injunction as prayed for.
10.6 Making the above submissions, he would request this
Court to allow the present appeal.
11. Per contra, learned advocate Mr. Kanade appearing for
the defendants would submit that there is no error committed
by Trial court while rejecting impugned injunction application
filed by the plaintiff.
11.1 Learned advocate Mr. Kanade would further submit
that this Court may not exercise its appellate power under
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Order 43 of the Civil Procedure Code, thereby, may not
disturb the finding so recorded by the Trial Court, while
rejecting the injunction application.
11.2 Learned advocate Mr. Kanade would submit that when
plaintiff has entered into registered agreement to sell with the
defendants and not asking for its performance, the plaintiff
would not be entitled to receive any injunction as prayed for
and thereby, trial Court has correctly not granted injunction in
favour of the plaintiff.
11.3 Learned advocate Mr. Kanade would further submit
that an execution filed by the defendants as per the arbitration
award in their favour is pending for its adjudication and any
order of granting injunction or status quo in relation to suit
property would seriously prejudice the interests of the
defendants.
11.4 Making the above submissions, he would request this
court to dismiss the present appeal from order.
12. No other and further submissions are made by any of
learned advocates.
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13. The short controversy arises in the present appeal is
about not granting injunction by trial Court in favour of the
plaintiff in the peculiar facts and circumstances of the case is
just and proper or not?
14. The undisputed facts remain between the parties that the
plaintiff has entered into an agreement to sell with the
defendants for the suit property. It is alleged by the plaintiff
that he has removed encroachment over the suit property,
thereby, put himself in possession and as on today, occupying
the suit property, wherein office has been constructed by the
plaintiff, which is occupied by the plaintiff.
15. The defendants are not in position to substantiate their
title over the suit property by submitting any documentary
evidence as learned advocate Mr. Kanade., during the course
of his submission is unable to show any such documents
available with the defendants, thereby, to substantiate that
defendants are owners of the suit property as on date.
16. In view of the aforesaid facts and circumstances of the
case, when the title of the defendants are in cloud and
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plaintiff is occupying the suit property, to that extent, right of
the plaintiff is required to be protected, thereby, the plaintiff
cannot be dispossessed by the defendants without due process
of law.
17. It is settled legal position of law that no person shall be
dispossessed without due process of law.
18. Following the aforesaid principle and applying to the
peculiar facts and circumstances of the present case, the order
of status quo, which has been granted by this Court vide its
order dated 30th September, 2022, requires to be extended till
final disposal of the suit, thereby, it is directed to defendants
not to interfere with the possession and occupation of plaintiff
in relation to the suit property till disposal of the suit.
19. It is made clear that Trial court is required to decide the
suit in accordance with law without being influenced by any of
the observations made by this Court and as per the evidence
coming forth on record.
20. It is further made clear that execution so filed by
defendants in relation to any arbitration award alleged passed
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in their favour, the observation and direction made by this
Court would not influence the mind of executing court and the
same may be decided by the executing court in accordance
with law.
21. With the aforesaid observation, discussion and reasons,
the present appeal from order is partly allowed to the
aforesaid extent. No order as to costs. The civil Application, if
any, stands disposed of accordingly.
(MAULIK J.SHELAT,J)
MOHD MONIS
