Gujarat High Court
Purity D/O Kantibhai Fatehsingh Thakor ... vs Heirs Of Decd. Parlinaben D/O Somachand ... on 27 February, 2025
NEUTRAL CITATION
C/CA/1212/2025 ORDER DATED: 27/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 1212 of
2025
In R/APPEAL FROM ORDER NO. 26 of 2025
With
R/APPEAL FROM ORDER NO. 26 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/APPEAL FROM ORDER NO. 26 of 2025
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PURITY D/O KANTIBHAI FATEHSINGH THAKOR AND W/O SHIRISH
ORBAN
Versus
HEIRS OF DECD. PARLINABEN D/O SOMACHAND SAVABHAI AND W/O
RAMESHBHAI CHHOTALAL CHRISTIAN & ORS.
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Appearance:
MR DHRUVIN N DOSSANI(10528) for the Applicant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 27/02/2025
ORAL ORDER
ORDER IN CIVIL APPLICATION (FOR CONDONATION OF DELAY)
NO.1212 OF 2025
1. Considering the length of the delay of 10 days and the
averments made in the application, sufficient cause is made
out, and the delay in filing the appeal from the order is
hereby condoned.
ORDER IN APPEAL FROM ORDER NO.26 OF 2025
1. The present appeal from the order is filed under Order
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C/CA/1212/2025 ORDER DATED: 27/02/2025
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43 Rule 1(r) of Civil Procedure Code, 1908 (hereinafter referred
to "CPC") by original Defendant No. 2 of Regular Civil Suit
No. 1272 of 2017, thereby challenging the impugned judgment
and order dated 02.12.2024, passed by the City Civil Court,
Court No. 19, Ahmedabad City, below Exhibit 135 in the
aforesaid suit.
2. Learned advocate Mr.Dossani would submit that
Defendant No. 2 has preferred an application below Exhibit
135 under Order 39 Rule 4 of CPC, thereby, requesting the
trial court to modify its order of granting status quo.
2.1 Learned advocate Mr.Dossani would submit that
considering the condition of the suit property, it was felt by
Defendant No. 2 to submit the impugned application, he
thereby prayed for modification of the impugned order.
2.2 Learned advocate Mr.Dossani would further submit
that, without considering the aspect that the suit property is
more than 100 years old, which requires renovation, denying
such permission to the applicant is not in the interest of justice
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C/CA/1212/2025 ORDER DATED: 27/02/2025
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and considering the fact that Defendant No. 2 is residing in
such suit premises, which may be put her to precarious
condition, if suit property may get collapse.
2.3 Learned advocate Mr.Dossani would request this court
to consider the impugned application and thereby modify the
order passed by the trial court.
3. Heard learned advocate Mr.Dossani at length.
4. After going through the impugned order as well as the
other documents annexed with the appeal, prima facie, it
appears that there is no error committed by the trial court in
rejecting the impugned application filed by Defendant No. 2.
5. The order of status quo was passed on 30th September,
2022, which appears to have been challenged by Defendant
No. 3 by way of Appeal from Order No. 175 of 2022, wherein,
after recording the submissions made by the respective learned
advocates appearing for the respective parties, this court, vide
its order dated 28th March, 2023 in the said appeal passed the
following order:-
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C/CA/1212/2025 ORDER DATED: 27/02/2025
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"4. Hearing the submissions of both the sides and
perusing the avernments in the plaint and perusing the
impugned order, appellant - defendant No.3 who has
purchased the property from defendant Nos. 1 and 2 is a
bona fide purchaser and has nothing to do with the parties
or their share in the property. However, at this juncture,
without touching the merits of the matter, learned
advocate for the appellant - defendant No.3 has submitted
before the Court that the applications which are pending
before the Court if decided and also the suit isexpedited,
it will serve the purpose of the parties to decide their
rights. Moreover, regarding the maintainibility of the suit
is also the application has been filed, which is yet not
taken up by the trial Court. It is also submitted by the
learned advocate for the appellant - defendant No.3 that
during the pendency of the suit the property will not
change the hands and he will not transfer or dispose of or
alienate the property. The statement of the learned
advocate for the appellant - defendant No.3 is recorded
and considering the dispute between the parties
regarding the partition, whether the parties are entitled
for the partition as per the avernments of the plaint,
whether the suit is maintainable, whether during the
order of the status quo, the act of the defendant can be
said to be breach of the order, are all points which are to
be decided by the concerned trial Court. Whereas the
statement which is recorded during the pendency of the
suit the property will not be transferred, alienated or
disposed of the property and status quo be maintained so
that there cannot be multiplicity of litigation.
5. Under the circumstances, upon the consensus of the
parties, the present Appeal from Order is disposed of.
Defendant No.3 upon his statement, shall maintain the
status quo with respect of possession and ownership of
the property and shall not transfer, alienate or dispose the
property. As the matter is of the year 2017 and rights of
the parties are to be decided the trial Court is hereby
directed to here the interim applications, which are
pending, in accordance with law without being influenced
by any of the observations of this Court within a period of
6 months. An application under Order 7 Rule 11 of the
Code for breach of injunction shall be decided within a
period of 4 months. The appeal from order with connected
Civil Application stands disposed of."
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6. Thus, the order of status quo passed by the trial court is
confirmed by this court by disposing of the aforesaid appeal,
thereby, directing the parties to maintain the status quo. As
such, the order passed by the trial court has merged with the
order passed by this court in the aforesaid appeal.
7. Be that as it may, the direction has already been issued
by this court to expedite the hearing of the suit as the age of
the plaintiff is about 88 years. Defendant No. 3 has filed its
detailed reply to the impugned application, wherein it has
been clearly stated that Defendant No. 2, i.e., the appellant
herein, has already executed a sale deed in favor of Defendant
No. 3 in relation to the suit property itself and Defendant No.
2 is unauthorizedly occupying two rooms of the suit premises.
8. The prayer made in the impugned application suggests
that under the garb of repairing the suit premises, Defendant
No. 2 wants to extend the area of the suit premises by
constructing more, which would ultimately change the suit
premises.
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9. Apart from that, there is nothing placed before the trial
court or before this court, thereby, it can confirm that the suit
property requires such renovation as the case maybe. Neither
any report of a structural engineer nor any municipal
corporation notices issued to Defendant No. 2 to vacate the
premises due to its alleged dilapidated condition have been
placed before this court. The Trial Court has correctly observed
that there is nothing on record to suggest any change in
condition of suit property after passing of the order of status
quo.
10. Thus, considering the aforesaid peculiar facts and
circumstances of the case and in the absence of any perversity
in the impugned order, this court would not like to exercise its
power under Order 43 Rule 1 of CPC. (See i. Wander Ltd V/s
Antox India P. Ltd. reported in 1990 (1) Supp. SCC 727; ii.
Ramakant Ambalal Choksi V/s Harish Ambalal Choksi reported
in 2024 SCC Online SC 3538.)
11. In view of the aforesaid, I do not find any merit in the
appeal, which requires to be dismissed, and the same is hereby
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DISMISSED. No order as to costs. The civil application, if any,
stands disposed of accordingly. The Trial Court is requested to
complete the Trial of the Suit at the earliest.
(MAULIK J.SHELAT,J)
MOHD MONIS
