Gujarat High Court
Vitrag Corporation vs Gurmitkaur Premjit Bhatia on 7 July, 2025
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Reserved On : 24/06/2025
Pronounced On : 07/07/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 136 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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VITRAG CORPORATION & ORS.
Versus
GURMITKAUR PREMJIT BHATIA & ORS.
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Appearance:
MR.D K.PUJ(3836) for the Appellant(s) No. 1,2,3,4,5,6
DELETED for the Respondent(s) No. 10,3,4,5,9
NOTICE SERVED for the Respondent(s) No. 6
NOTICE UNSERVED for the Respondent(s) No. 8
SERVED BY AFFIX(N) for the Respondent(s) No. 7
SUMIT K PRAJAPATI(8867) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
CAV JUDGMENT
1. ADMIT. Learned advocate Mr.Sumit K. Prajapati waives
service of notice on behalf of respondent No.1 and 2. The
presence of other respondents are not required for adjudication
of the present matter.
2. The present Appeal from order is filed under order XLIII
Rule 1 of the Civil Procedure Code, 1908 (hereinafter referred
to as "CPC") challenging the judgment and order dated 12 th
November, 2020 passed by Additional City Civil Judge, City
Civil Court Ahmedabad essentially passed below Exh.112 -113
in Civil Suit 132 of 2013.
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3. The parties will be referred to as per their original
position. The respondent no.3 to 5, 9 and 10 of present appeal
are deleted as per various orders passed by this Court.
4. THE SHORT FACT OF THE CASE
4.1. The Appellants herein are defendant Nos. 9 to 14,
whereas respondent no.1 and 2 are original plaintiffs and
respondent no.3 to 10 are original defendant nos. 1 to 8.
4.2. The plaintiffs by way of filing suit in question seeking
various prayers in relation to Title, Declaration, Probate
Certificate, Possession, Damages, Mesne profits and permanent
injunction in relation to suit property as described in Schedule
- A to E in the suit.
4.3. So far as the controversy involved in the present appeal,
suit property, which is shown in Schedule-A of Suit is the
subject matter, which is in relation to an immovable property
situated at survey No.612, Plot No.57 ad-measuring 195
Sq.Mts. and also at Survey No. 612, Sub-plot No.58, ad-
measuring 186 Sq.Mts., in all 381 Sq.Mts.
4.4. The relationship between the plaintiffs and respective
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defendants appears to be that plaintiff Nos.1 and 2 happen to
be daughter-in-law and grand-son of late Trilochansing
Dayalsing Bhatiya (hereinafter referred as 'deceased'), whereas
defendant Nos.1 and 4 happen to be son of deceased,
defendant no.2 happens to be wife of defendant no.1,
defendant no.3 happens to son of defendant no.1 and
defendant no.5 to 8 are sister of defendant no.1 and 4.
Whereas, Appellants - defendant nos.9 to 14 are subsequent
purchasers of suit property in question shown as Schedule- A
in the suit.
4.5. It is the case of plaintiffs that deceased was owner of suit
properties bequeathed it in favour of plaintiffs by way of
registered Will on 30.01.2009 and on death of deceased, which
took place on 18.09.2011, on the strength of his Will executed
in favour of plaintiffs, they become owner of suit properties
mentioned in the suit. Thus, necessary declaration and
injunction sought for in the suit.
4.6. It has been further stated in the suit and remained
undisputed that deceased had executed an agreement for sale
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(hereinafter referred as "ATS") on 27.08.2003 in favour of one
- Ranjitsing Mohansing Dhillon (hereinafter referred to as 'Mr.
Dhillon'), who had filed Civil Suit No. 2250 of 2009 against
deceased seeking specific performance of ATS, which came to
be decreed in his favour on 28.04.2010 as there was consent
given by deceased for execution of sale deed in relation to suit
property at Schedule - A. The execution of sale deed by
deceased in favor of Mr. Dhillon took place on 28.05.2010. So,
during his life time, by virtue of said sale deed, deceased had
transferred his title over suit properties in favour of Mr.
Dhillon.
4.7. It further appears that defendant no.1 had challenged the
aforesaid sale deed executed by deceased in favour of Mr.
Dillon on 28.05.2010 by way of filing Civil Suit no. 2971 of
2011.
4.8. As per the case of defendant no.1, prior to execution of
sale deed, deceased had already released his right, title and
interest from Schedule - A property of suit in favour of
defendant no.1 by way of written declaration dated
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05.12.2005, which was duly notarized and accordingly
requested Revenue Authority to mutate the name of defendant
no.1 as a sole owner instead of joint owner of Schedule-A
property of suit. It further appears that on the basis of such
declaration, the name of deceased from record of right i.e.
Form No.6 maintained by Revenue Authority, has been deleted
on 06.12.2005 vide Entry No.19874.
4.9. It appears from the record that aforesaid Civil Suit
No.2971 of 2011 came to be decreed with consent of parties,
whereby, Mr. Dhillon has accepted the sole ownership of
defendant no.1 in relation to Schedule-A property of suit. It
has been further declared by Mr. Dhillon in favour of
defendant no.1 that the sale deed executed by deceased on
28.05.2010 in favour of Mr. Dhillon would not derive any title
in favour of Mr. Dhillon as he was convinced that at the time
of execution of aforesaid sale deed by deceased in his favour,
deceased was not holding any ownership. Thus, in view of the
consent terms, arrived between the Defendant No.1 and Mr.
Dhillon, aforesaid suit came to be decreed with consent in
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favour of the Defendant No.1.
4.10. It is further case of plaintiff that during life time of
deceased, he had objected aforesaid revenue entry mutated in
the name of Defendant no.1, thereby declared him as sole
owner and so also filed Criminal Complaint against him.
Nonetheless, in none of such attempt, the deceased and / or
plaintiff could get succeed thereby, such entry was never
disturbed and remained as it , which confirmed sole ownership
of Defendant no.1.
4.11. It further appears that on the strength of such ownership,
the Defendant no.1 first executed gift deed in favour of his
wife, i.e., Defendant no.2, which was executed on 01.01.2013,
in relation to Schedule - A property. The name of Defendant
no.2 has been duly mutated in record of right i.e., Form no.6.
4.12. At that stage, the suit in question came to be filed,
wherein aforesaid gift deed is also challenged but surprisingly,
no declaration has been sought that declaration dated
05.12.2005 alleged to have been executed by deceased waiving
his right from Schedule-A property in favour of defendant no.1
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is null and void and consequently, entry made on 06.12.2005
vide Entry No.19874 in the record of rights (Form No.6) in
favour of defendant no.1, whereby, declared him as a sole
owner, be declared as null and void.
4.13. It appears that during the pendency of the suit, till
passing of impugned order, there was no injunction granted in
favour of plaintiffs but they have registered a lis pendence
with the concerned Registrar in relation to Schedule-A
property.
4.14. It so appears that during the pendency of the suit,
defendant no.2 has executed registered sale deed of Schedule-A
property in favour of Appellants - defendant nos. 9 to 14 on
01.10.2019. Accordingly, they are joined in the suit and the
suit is amended.
4.15. Thus, Appellants - defendant nos. 9 to 14 having
purchased the Schedule-A property of suit, plaintiffs have
preferred an injunction application filed below Exh. 113 on
08.11.2019, wherein, they have prayed that Appellants -
defendant nos. 9 to 14 shall be directed not to transfer,
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mortgage, gift, no charge and any type of encumbrances be
created and also no change/ construction, and so also not use
suit property in any manner, and they should not act in any
manner, whereby, the right of plaintiffs would get damaged.
Such prayer is worded in para 13-A of impugned injunction
application, which came to be granted in toto by Trial Court.
5. Thus, feeling aggrieved and dissatisfied with the
impugned order, Appellants - original defendant nos. 9 to 14
have preferred the present appeal.
6. SUBMISSION OF APPELLANTS - DEFENDANT NOS. 9 TO
6.1. Learned advocate Mr. D.K.Puj would submit that
impugned order is ex facie erroneous, perverse and contrary to
record required to be interfered with by this Court by
exercising its appellate power under Order XLIII Rule 1 of
CPC.
6.2. Learned advocate Mr.Puj would further submit that the
Trial Court had misconstrued the fact that in a consent decree
secured by defendant No.1 in his regular Civil Suit No.2971 of
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2011, whereby Mr. Dhillon has declared that his sale deed
executed by the deceased is not valid and effective and Mr.
Dhillon had not derived any ownership on the existence of
such sale deed, the Schedule-A property would automatically
vest with the deceased.
6.3. It is submitted that as per the consent terms, which are
recorded in the consent decree dated 28.09.2012, more
particularly, consent term No.2, which would clearly indicate
that Mr. Dhillon, for having valid sale deed executed by the
deceased during his lifetime in his favor, accepted defendant
No.1 as the sole owner of the Schedule-A property, thereby
giving up his right in favor of defendant No.1 in the Civil Suit
No.2971 of 2011.
6.4. Learned advocate Mr. Puj would further submit that the
Trial Court has completely misconstrued and misunderstood the
consent terms agreed between defendant No.1 and Mr. Dhillon,
whereby it has committed a gross error of law by granting an
injunction in the month of November, 2020 in favor of the
plaintiffs in their suit filed in the month of January 2013.
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6.5. Learned advocate Mr. Puj would further submit that
defendant No.1 having been so declared and accepted as the
sole owner by Mr. Dhillon, who had purchased the Schedule-A
property from the deceased by way of sale deed, then on the
strength of the Will of the deceased, no right, title, and
interest accrued in favor of the plaintiffs.
6.6. It is submitted that the execution of the sale deed by the
deceased in favour of Mr. Dhillon was undisputedly prior to
his death; then, as on his death, when the property was
already conveyed in favor of Mr. Dhillon, no right accrued in
favor of the plaintiffs, being the alleged successors in interest
as per the Will.
6.7. Learned advocate Mr. Puj would further submit that the
revenue entry, which is questioned by the plaintiffs in the suit
has not been disturbed by any of the revenue authorities in
their challenge at the instance of the deceased and/or the
plaintiffs and as on today, it stands. It is submitted that
plaintiffs cannot questioned such entries by instituting suit.
6.8. Learned advocate Mr. Puj would further submit that such
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revenue entry, as understood by the Trial Court as being for a
fiscal purpose, is not a correct reading of such entry because it
is mutated in the record of rights, i.e. Form No.6, as per the
Gujarat Land Revenue Code, maintained by the Revenue
Authority, which prima facie shows the right, title, and
interest of a person holding land.
6.9. Learned advocate Mr. Puj would further submit that the
declaration of the deceased dated 05.12.2005, though referred
to by the plaintiffs in the suit, was not challenged in the suit
proceedings; thereby, the plaintiffs are precluded from
challenging the gift deed in favor of defendant No.2 by
defendant No.1 and the subsequent sale in favor of the present
appellants (Defendant Nos.9 to 14) by defendant No.2.
6.10. Learned advocate Mr. Puj would further submit that the
reliefs which are prayed for in the suit are multi-fold,
including a prayer for probate, which would disentitle the
plaintiffs from securing all the reliefs by way of one suit, and
as such, in the absence of any probate given in favour of the
plaintiffs, no right to sue accrued in their favor, thereby they
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cannot question the transactions which were executed between
the defendants.
6.11. Learned advocate Mr. Puj would further submit that
merely because the lis pendens has been registered by the
plaintiffs after filing the suit, that would not give any right in
favor of the plaintiffs to prohibit Appellants - defendant Nos.9
to 14 from using the Schedule-A property of the suit and an
absolute stay as prayed for in para 13(a) of the impugned
injunction application, so granted by the Trial Court, is
unwarranted.
6.12. Learned advocate Mr. Puj, under the instructions of his
client, makes a statement that Appellants - defendant Nos.9 to
14 will not transfer, sell, or alienate the Schedule-A property
of the suit purchased by them from defendant No.2 in favour
of any third party, but Appellants - defendant Nos.9 to 14 may
not be injuncted from using it for their own purpose and/or
from allowing it to be used by third parties on a lease/license
basis till the pendency of the suit, and also may not be
injuncted from reconstructing/repairing it.
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6.13. Making the above submissions, learned advocate Mr. Puj
would request this Court to allow the present application.
(PLAINTIFFS)
7.1. Learned advocate Mr. Adil Mirza with learned advocate
Mr. Sumit K. Prajapati would submit that as such, there is no
error, much less any gross error of law, committed by the
Trial Court while allowing the impugned injunction application,
and thereby no interference is required by this Court.
7.2. Learned advocate Mr. Mirza would submit that the Trial
Court has not only taken into account the entire set of facts
but also passed a very detailed and reasoned order, whereby it
cannot be contended by the appellants that it was erroneous
and perverse.
7.3. Learned advocate Mr. Mirza would further submit that
when the consent decree was passed in favor of defendant
No.1 in his suit, whereby Mr. Dhillon gave up his right
flowing from the sale deed executed by the deceased in favor
of Mr. Dhillon, the Schedule-A property, which was part of
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such sale deed, would revert back to the deceased, and on the
strength of his Will, the plaintiffs would be entitled to receive
such Schedule-A properties on the demise of the deceased.
7.4. Learned advocate Mr. Mirza would further submit that
with regard to the alleged declaration by the deceased dated
05.12.2005, whereby he gave up his right in favor of
defendant No.1 in relation to the Schedule-A property, it
remains undisputed that during the life of the deceased, he
questioned such declaration and also the entry executed on the
strength of such alleged declaration in favor of defendant No.1.
So, no right could have accrued in favour of defendant No.1,
as such an alleged declaration requires compulsory registration
as per Section 17 of the Registration Act, without which it is
not otherwise admissible in evidence.
7.5. Learned advocate Mr. Mirza would further submit that
Appellants - defendant Nos.9 to 14, with open eyes and having
full knowledge about the pendency of the present suit,
purchased suit property, as the plaintiffs has already registered
a lis pendens of purchased the suit property. Now, they later
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on, cannot raise any grievance when they are injuncted by the
Trial Court as per the impugned order.
7.6. Learned Advocate Mr. Mirza would further submit that
considering the entirety of the facts and circumstances of the
case, this Court may not interfere with the well-reasoned
order, as the present appeal is to be considered as an appeal
on principle and not on facts.
7.7. Making the above submissions, learned advocate Mr.
Mirza would request this Court to dismiss the present
application.
8. Heard learned advocate Mr. D.K.Puj appearing for the
appellants - Defendant Nos.9 to 14 and learned advocate Mr.
Adil Mirza for Mr.Sumit K. Prajapati appearing for the
respondent Nos.1 and 2 - Plaintiffs at length.
9. No other and further submissions are made.
10. THE POINT FOR DETERMINATION
10.1. The short question that falls for my consideration as to
whether the impugned order passed by the Trial Court,
whereby the prayer made in the impugned injunction
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application filed below Exhibit 113 in Civil Suit No. 132 of
2013 was granted, is erroneous, perverse, arbitrary, and
contrary to the provisions of law, or not?
11. ANALYSIS
12. The facts which are narrated hereinabove are not in
dispute. It is true that this Court is required to examine the
matter in a limited compass when it exercises its power under
Order XLIII Rule 1 of the CPC. It is also true that this Court
may not disturb a discretionary order passed by the Trial Court
whereby an injunction was granted merely because another
view is equally possible, unless it has been shown by the
appellants that the order impugned in the appeal is so
erroneous, perverse, arbitrary and/or contrary to the settled
principles of law. The Appellate Court while exercising its
power under Order XLIII Rule 1 of the CPC, such an order of
injunction should not be disturbed routinely unless aforesaid
criteria germane from impugned order.
13. After analyzing the aforesaid facts, going through the
documentary evidence available on the record of the suit and
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also submissions made by the learned advocates of the
respective parties, I find following infirmities in the impugned
order passed by the Trial Court, whereby Appellants -
defendant Nos.9 to 14 were injuncted as prayed for in para-
13(A) of the impugned injunction application.
14. The Trial Court has committed a serious error of law by
observing that once a consent decree was passed in the suit of
Defendant No.1, i.e., Regular Civil Suit No.2971 of 2011, on
28.09.2012, whereby Mr. Dhillon gave up his right flowing
from the execution of sale deed by the deceased in his favor,
the deceased would automatically be entitled to be declared
the owner of the Schedule-A property.
14.1. This would be a complete misreading of the consent
terms arrived at between defendant No.1 and Mr. Dhillon,
which are reproduced in the consent decree itself. The plain
reading of consent term No.2 incorporated in the aforesaid
consent decree would clearly show that Mr. Dhillon has
accepted and declared that defendant No.1 become the
absolute owner of the Schedule-A property and, having
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accepted such fact, gave up his right flowing from the
execution of the sale deed by the deceased in his favor
(defendant No.1) on 28.05.2010. There is no whisper in any
such consent terms that by giving up the right by Mr. Dhillon
flowing from the sale deed executed by the deceased in his
favor, thereby it would be any reversal of his title in favour of
the deceased, as assumed by the Trial Court. Once, deceased
in his life time sold suit property in favour of Mr. Dhillon, he
lost title over it then how it would have been revert back to
him on strength of consents terms drawn between Mr. Dhillon
& Defendant No.1 in said suit filed by defendant No.1 question
such sale deed. This was a clearly erroneous approach on the
part of the Trial Court, which was one of the factors that
weighed with it while granting the injunction in favour of the
plaintiffs.
14.2. As far as the declaration of the deceased dated
05.12.2005 is concern, whereby he gave up his right in favor
of defendant No.1, thereby declared him as the sole owner of
the Schedule-A property, and accordingly a revenue entry in
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the record of rights was mutated on 06.12.2005 vide Entry No.
19874 is concerned, neither the plaintiffs nor the deceased in
his lifetime have questioned such written declaration duly
notarized before any civil court, including in present suit. This
fact requires to be proved by the plaintiffs by seeking the
necessary declaration, which was not sought for in the suit.
14.3. It is true that such entry was challenged before a higher
revenue authority, but it is reported to this Court that all such
attempts made at the instance of the deceased and / or the
plaintiffs have remained unsuccessful, and as on date, such
entry stands as it is.
15. Again, the Trial Court has fallaciously observed in its
impugned order that such a revenue entry is only for a fiscal
purpose, which does not confer any title in favor of defendant
No.1.
15.1. I say so because such entry was not mutated in the 7/12
abstract of revenue record, which would be maintained for a
fiscal purpose, but it was mutated in the record of rights i.e.
Form No.6 maintained by the Revenue Authority as per
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provisions of Gujarat Land Revenue Code, which would prima
facie shows the right, title and interest of a person in the land.
When such entry was mutated in favor of defendant No.1 in
the year 2005 itself, which was never disturbed by any
revenue authorities so far, and on the basis of that he
executed a gift deed in favor of his wife, i.e., defendant No.2,
in the year 2013, whose name was also mutated in the record
of rights, i.e., Form No.6, wherein also the plaintiffs were
unsuccessful in disturbing such entry though challenged it
before higher revenue authorities, the plaintiffs could not have
objected and challenged such entry in the present suit
proceedings.
16. The Appellants - defendants Nos.9 to 14, having
purchased the suit property from defendant No.2, who appears
to have title over the Schedule-A property, could not have
been injuncted by the Trial Court as prayed for in para 13(A)
of the impugned injunction application.
17. The plaintiffs are yet to establish their right flowing from
the Will executed by the deceased; until then, they cannot
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prohibit the defendants from using the property as they like.
18. The arguments so canvassed by the plaintiffs, that despite
the registration of lis pendens under Section 52 of the Transfer
of Property Act, they cannot be allowed to make a grievance
when an injunction is granted by the Trial Court. As such,
when the plaintiffs have already registered lis pendens in light
of the aforesaid facts and circumstances, all transactions that
would be undertaken by original owners with the Appellants -
defendant Nos.9 to 14, would always be governed by Section
52 of the Transfer of Property Act, and the same would not be
counterproductive for the Appellants - defendant Nos.9 to 14,
and no objections could have been taken by the plaintiffs on
that count.
19. Merely because a lis pendens has been registered by the
plaintiffs, it would not entitled them to secure an injunction,
and the observation of the Trial Court to the effect that
because Appellants - defendant Nos.9 to 14 purchased the
Schedule-A property during the pendency of the suit, an
injunction as prayed for can be granted in favor of the
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plaintiffs, is incorrect, erroneous and perverse approach while
granting injunction.
20. Furthermore, the plaintiffs, having prayed for the relief of
probate on the strength of the Will, have yet to be granted
this in their favor till then, no relief could have been granted
by Trial Court in their favour. True, it is that probate is not
required so far as the State of Gujarat is concerned; however,
once the plaintiffs have sought for such a relief in the suit
itself, unless and until they secure such relief in their favor, no
right would flow in their favor till such relief is granted to
them.
21. It is also required to be noted that the deceased during
his lifetime had already executed a registered sale deed in
favor of Mr. Dhillon, and there was a consent decree in favor
of Mr. Dhillon in his suit, which is referred to hereinabove
while narrating the facts. Once, the deceased executed the sale
deed in relation to the Schedule-A property in favour of Mr.
Dhillon, and Mr. Dhillon later on gave up his right flowing
from such execution of the sale deed in favor of defendant
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No.1 in the form of consent decree passed by a competent
Civil Court in favor of defendant No.1, prima facie, I am of
the view that the plaintiffs cannot be allowed to get any
benefit of the Schedule-A property on strength of Will, which
was alleged to have been bequeathed by the deceased in their
favor, as it had already been sold by the deceased during his
lifetime.
22. The Trial Court has erroneously observed that the consent
decree passed in a suit filed by defendant no. 2 against Mr.
Dhillon, the title to the suit properties shown in Schedule-A of
the suit would be received back by the deceased, which is a
complete error in the reading of the consent terms.
23. At the cost of repetition, when the deceased, in his
lifetime, executed a sale deed in favour of Mr. Dhillon, he lost
the title to the suit property and by virtue of the consent
terms arrived at between Mr. Dhillon and defendant no. 1,
whereby Mr. Dhillon admitted the sole ownership of defendant
no. 1 as regards the suit property in question, by no stretch of
the imagination, the deceased would receive back the title to
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the suit property.
24. Lastly, the Trial Court has also not taken into account
the fact that the suit was filed in the year 2013 and at that
point of time, the plaintiffs had already preferred an injunction
application (Exh.5) against the original defendants who were
shown in the suit when filed but, for a variety of reasons, the
plaintiffs have not secured any injunction i.e., ad-interim or
otherwise, till 2019. The impugned application, which came to
be allowed against the new defendants, was filed in the year
2019, which was heard and decided in year 2020.
25. The Trial Court was required to take note of the
provisions of Order 39 Rule 1/2 of the CPC while granting an
injunction after lapse of around six years from the date of
institution of the suit, which appears to have not been taken
note of by the Trial Court while passing the injunction order.
26. Furthermore, the so-called imminent danger and/or likely
loss to the plaintiffs at the time of institution of the suit were
not addressed immediately by not adjudicating their injunction
application at the relevant point in time in the year 2013 or
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nearby. By the passage of time, such so-called imminent
danger and or loss to the plaintiffs would get watered down.
27. The purpose of granting an injunction in favour of the
plaintiffs would be to secure their interest when three
conditions are satisfied by them, i.e., prima facie case, the
balance of convenience, and irreparable loss. When, in the
absence of any injunction granted in their favour by the Trial
Court between the period of 2013 to 2019, and in such
scenario, the defendants, who were the original owners of the
suit property sold it to the third party, who are the Appellants
- defendant Nos.9 to 14, there was no reason for the Trial
Court to grant an injunction against them, thereby, not
permitting them to use the property that was purchased during
the pendency of the suit.
28. According to my view, when the initial injunction
application filed below Exhibit 5 by the plaintiffs against the
original defendants was not proceeded with by them for any
reason whatsoever, and then later, after about six years from
its filing, even assuming for the time being that the plaintiffs
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might have made out a prima facie case which is none as
aforesaid, surely the balance of convenience and irreparable
loss would not remain in their favour, as the suit property
shown in the Schedule-A was already sold to third party and
in that circumstances, the Trial Court could not have granted
an injunction, as all three conditions for granting an injunction
in favour of the plaintiffs were not satisfied in the case on
hand.
29. All these aforesaid factors were completely lost sight of
by the Trial Court, which ultimately resulted in erroneous,
perverse, arbitrary reasoning which are contrary to law passed
by the part of the Trial Court, resulted into passing of an
absolute injunction in favour of the plaintiffs prohibiting the
use of the Schedule-A property by Appellants - defendants
Nos.9 to 14.
30. Before parting with this order, I would like to make it
clear that the observations made hereinabove while deciding
this appeal will not come in the way of any of the parties to
the suit. The Trial Court is required to decide the lis between
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the parties as per the evidence coming forth on the record of
the suit, and all issues framed in the suit shall have to be
decided on their own merits as per the evidence on record,
without being influenced by any of the observations made by
the Trial Court in its impugned order or by this Court in this
order.
31. CONCLUSION
32. In light of the aforesaid, the impugned order requires to
be interfered with by this Court, exercising its limited
jurisdiction under Order XLIII Rule 1 of the CPC, which in fact
interfered herewith.
33. As there is a statement made by learned advocate Mr.
Puj to the effect that during pendency of the suit, Appellants -
defendant Nos.9 to 14 will not sell, transfer, or alienate the
Schedule-A suit property in favor of a third party, the
impugned order requires to be modified to the following
extent:-
33.1. The impugned order is hereby modified to the extent that
Appellants - defendant Nos.9 to 14 are directed not to sell,
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transfer, or alienate the Schedule-A suit properties purchased
by them from defendant No.2 till the disposal of the suit.
33.2. Nonetheless, during pendency of the suit, it is open for
Appellants - defendant Nos.9 to 14 to use/construct/repair/let
out/lease out etc., the Schedule-A suit properties as per their
wish.
34. The suit is of the year 2013, and considering the
controversy at hand, the Trial Court is requested to expedite
the suit, and it may be adjudicated at the earliest, subject to
cooperation receive from the parties to the Trial Court.
35. In view of the aforesaid observations, reasons and
directions, the present Appeal from Order is hereby partly
allowed to the aforesaid extent. No order as to costs.
(MAULIK J.SHELAT,J)
MOHD MONIS
