Gujarat High Court
Babubhai Madhabhai Savani vs Revaben Wd/O Maganbhai Dahyabhai Patel on 6 October, 2025
NEUTRAL CITATION
C/AO/161/2023 JUDGMENT DATED: 06/10/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 161 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/APPEAL FROM ORDER NO. 161 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
==========================================================
Approved for Reporting Yes No
✓
==========================================================
BABUBHAI MADHABHAI SAVANI & ORS.
Versus
REVABEN WD/O MAGANBHAI DAHYABHAI PATEL & ORS.
==========================================================
Appearance:
MR AMIT V THAKKAR(3073) for the Appellant(s) No. 1,2,3
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Respondent(s) No. 2
MR MANAN A SHAH(5412) for the Respondent(s) No. 1,2.1,2.2,3
NIDHI MANAN SHAH(9033) for the Respondent(s) No. 2.1,2.2
==========================================================
CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 06/10/2025
ORAL JUDGMENT
1. Admit. Learned Advocate Mr. Shah for respondent Nos. 1 to 3
waive service of notice of admission of appeal. With consent of
learned advocates of respective parties, appeal itself is taken up
NEUTRAL CITATION
C/AO/161/2023 JUDGMENT DATED: 06/10/2025
undefined
for final hearing.
2. Heard learned Advocate Mr. Amit V. Thakkar for the
appellants and learned Advocate Mr. Shah for respondent Nos.
1 and 3. Though served, none appears for the rest of the
respondents.
3. The present appeal is filed under Order 43, Rule 1 of the Code
of Civil Procedure, 1908 (hereinafter referred to as "C.P.C.")
by the original plaintiffs of Special Civil Suit No. 73 of 2022,
pending before the Principal Civil Judge, Surat, whereby,
challenged the impugned order dated 18th April 2023, passed
by the 8th Additional Chief Judicial Magistrate, Surat, below
Exhibit 5 in Special Civil Suit No. 73 of 2022. The trial Court
vide its impugned order rejected injunction application of
appellants-plaintiffs.
4. As far as possible, the parties will be referred to as per their
original positions before the Trial Court.
5. THE SHORT FACTS OF THE CASE APPEAR TO BE
THAT:
5.1. The appellants herein are original plaintiffs, whereas, the
NEUTRAL CITATION
C/AO/161/2023 JUDGMENT DATED: 06/10/2025
undefined
respondents herein are original defendants. The plaintiffs
appear to have entered into an agreement to sell with defendant
Nos. 1 to 3 initially on 15th August 2011, which was later on
duly notarized in the form of sale agreement on 2nd July 2012.
As per the condition stipulated in the 2012 agreement,
defendant Nos. 1 to 3 supposed to get the name of defendant
No. 4 cleared from heirship so far as the suit land in question.
Such act requires to be done by defendant Nos. 1 to 3 on or
before 15th November 2012, being last payment date as agreed
between parties. Further, it was agreed between them that until
such name of defendant No. 4 was cleared, no further payment
requires to be made by the plaintiffs to defendant Nos. 1 to 3.
5.2. For any reasons, despite such terms agreed between the parties,
the plaintiffs appear to have made further payments to
defendant Nos. 1 to 3 at regular intervals between 2015 to
2017.
5.3. The name of defendant No. 4 got separated from the suit
property inasmuch as, the names of defendant Nos. 1 to 3
mutated in Survey No. 518/1/B of Village Kosad, Taluka
Adajan, Dist. Surat. Whereas, the name of defendant No. 4
NEUTRAL CITATION
C/AO/161/2023 JUDGMENT DATED: 06/10/2025
undefined
mutated in Revenue Survey No. 518/1/A of the said village. All
these mutations entries given effect in the month of May/June
2019.
5.4. The plaintiffs appear to have called upon defendant Nos. 1 to 3
to perform their part of the agreement as per the agreement to
sell vide their legal notice dated 21st October 2021. As the
defendants have not acted as per the aforesaid legal notice, the
suit in question came to be filed on 25th April 2022.
5.5. After hearing the parties, the Trial Court vide its order dated
18th April 2023, rejected the injunction application filed below
Exhibit 5 in the aforesaid suit. Hence, present appeal.
5.6. At this juncture, it is required to be noted that by passage of
time, the suit ripe for trial, inasmuch as the affidavit in lieu of
examination-in-chief of the original plaintiffs is already
submitted on record of the suit.
6. SUBMISSIONS OF THE APPELLANTS:
6.1. At the outset, learned Advocate Mr. Thakkar, appearing for
the appellants, would submit that the Trial Court has
erroneously observed that there was a delay and laches on the
NEUTRAL CITATION
C/AO/161/2023 JUDGMENT DATED: 06/10/2025
undefined
part of the plaintiffs in filing the suit. It is submitted that as per
the agreement to sell executed between the plaintiffs and
defendant Nos. 1 to 3 in the year 2012, unless and until
defendant Nos. 1 to 3 got the name of defendant No. 4 cleared
from the subject matter of the suit, no further payment was
required to be made by the plaintiffs to them. So, as such no
delay on part of plaintiffs in filing suit.
6.2. Learned Advocate Mr. Thakkar would further submit that the
Trial Court has also erroneously observed that payments which
have so far made by the plaintiffs to the defendants, in some of
the receipts, only one signature out of three defendants is made
and the same was a factor weighed with the Trial Court to
disentitle the plaintiffs to get injunction. It is submitted that the
plaintiffs have made payment as per the agreed terms between
the parties and as and when payments were made, either in
cash or by cheque, receipts have been duly issued by the
respective defendant Nos. 1 to 3.
6.3. Learned Advocate Mr. Thakkar would submit that out of total
sale consideration, when 65% payment has been made, the
Trial Court requires to protect the interest of the plaintiffs,
NEUTRAL CITATION
C/AO/161/2023 JUDGMENT DATED: 06/10/2025
undefined
thereby, requires to have granted the injunction.
6.4. Lastly, learned Advocate Mr. Thakkar would submit that
when the plaintiffs have acted as per the terms of the agreement
between the parties, they are entitled to get injunction as
prayed in the matter.
6.5. Making the above submissions, learned Advocate Mr. Thakkar
requests this Court to allow the present appeal.
7. SUBMISSIONS OF THE RESPONDENTS:
7.1. Per contra, learned Advocate Mr. Shah would submit that the
Trial Court has not committed any serious error of law, much
less any jurisdictional error while refusing the injunction in the
matter. It is submitted that by passage of time, now trial of the
suit commenced, then also, this Court may not interfere with
the impugned order.
7.2. Learned Advocate Mr. Shah would submit that as per the
specific case of the defendant Nos. 1 to 3 in their written
statement, they were not aware about any execution of the
agreement to sell, but while getting a hand loan from the
plaintiffs, few signatures of defendant Nos. 1 to 3 were
NEUTRAL CITATION
C/AO/161/2023 JUDGMENT DATED: 06/10/2025
undefined
obtained on a piece of papers, which used in the form of
agreement to sell by the plaintiffs. It is submitted that such
defense of the defendants appealed to the Trial Court, thereby
rejected injunction application. It is further submitted that even
if a second view is possible, this Court should not substitute the
plausible view of the trial Court while exercising its appellate
power under Order 43, Rule 1 of the C.P.C.
7.3. Learned Advocate Mr. Shah would further submit that when
there is a delay and laches on the part of the plaintiffs in the
institution of the suit, the Trial Court has correctly refused the
injunction. It is submitted that as per the settled legal position
of law, when there is a delay and laches on the part of the
plaintiffs, who are unable to explain such delay in satisfactory
manner, no injunction can be granted in favor of the plaintiffs.
7.4. Learned Advocate Mr. Shah would further submit that it is
incorrect to say that defendant Nos. 1 to 3 have received 65%
of the total sale consideration, inasmuch as except
Rs.8,00,000/- which was paid through cheque, the rest of the
payment, which alleged to have been paid by the plaintiffs in
cash, and such payment in fact already disputed by defendant
NEUTRAL CITATION
C/AO/161/2023 JUDGMENT DATED: 06/10/2025
undefined
Nos. 1 to 3 having denied its receipt.
7.5. Making the above submissions, learned Advocate Mr. Shah
requests this Court not to entertain the present appeal.
8. No other and further submissions are made.
ANALYSIS
9. The facts which are narrated herein above are not much in
dispute. This Court would not like to go much deep into the
matter, as observed herein above, the suit is already ripe for
trial, as the affidavit in lieu of examination-in-chief of the
plaintiffs has already been submitted on record. Furthermore,
all through ought, no injunction ever granted in favour of
plaintiffs.
10. Apart from the aforesaid, the reasons which are so assigned by
the Trial Court are neither erroneous nor perverse, inasmuch as
undisputedly, the agreement to sell or any agreement alleged to
have been executed between the parties was of the year
2011/2012. The fact remains that as per the terms of the
agreement alleged to have been notarized in the year 2012, it
would indicate that the name of defendant No. 4 requires to be
NEUTRAL CITATION
C/AO/161/2023 JUDGMENT DATED: 06/10/2025
undefined
cleared/separated from the subject matter of the suit property
by defendant Nos. 1 to 3, latest by 15th November 2012. It is
also undisputed between parties that name of defendant No.4
gets mutated from suit property only in year 2019. Although,
plaintiffs on regular interval used to make payment to
defendant No.1 to 3. Nonetheless, such payment disputed by
defendant No.1 to 3.
11. Be that as it may, the fact remains that the execution of the
agreement to sell was of the year 2012 and calling upon
defendant Nos. 1 to 3 for first time to perform their part of the
agreement in the year 2021 and the suit came to be filed in the
year 2022. If all these factors are considered in the manner in
which they were in fact considered by the Trial Court, the view
taken by the Trial Court that there was a delay and laches on
part of plaintiffs in filing suit, which disentitled the plaintiffs to
secure the injunction as prayed in the injunction application,
cannot be found fault with. It is by now well settled law that
delay/laches on the part of plaintiff would disentitled him to
secure injunction. [See - Mandali Ranganna vs. T.
Ramachandra, reported in (2008) 11 SCC 1 (para-21/22),
Ambalal Sarabhai Enterprise Limited vs. K.S.Infraspace LLP
NEUTRAL CITATION
C/AO/161/2023 JUDGMENT DATED: 06/10/2025
undefined
Ltd. and another, (2020) 5 SCC 410 (para-19/22/23), Veetrag
Holding Co. Ltd. Vs. Gujarat State Textile Corporation Ltd.,
1996 (3) GLR 536 (para-8)]
12. Thus, in view of what is observed herein above, the finding so
recorded by Trial Court while refusing to grant injunction in
favour of plaintiff, cannot be said to be either erroneous or
perverse. In view of above, no interference requires of this
Court while exercising its appellate power under Order 43, Rule
1 (R) of the C.P.C, as it is a well-settled legal position of law
that present appeal is on a principle, not on facts. [See: Wander
Ltd. And Anr. V/S. Antox India Pvt. Ltd. Reported In 1990
LawSuit (SC) 810 And Ramakant Ambalal Choksi V/S. Harish
Ambalal Choksi & Others Reported In 2024 SCCOnline SC
3538 : 2024 LawSuit (SC) 1082]
13. Before parting, it goes without saying that any of the
observations either made by the Trial Court while passing the
impugned order or by this Court in the present order, it would
not come in the way of any parties to the suit, inasmuch as the
Trial Court requires to decide the lis between the parties as per
the evidence coming forth on the record of the suit and
adjudicate the suit on its merit in accordance with law.
NEUTRAL CITATION
C/AO/161/2023 JUDGMENT DATED: 06/10/2025
undefined
14. With the aforesaid observations, discussions and reasons, I do
not find any merit in the present appeal from order, which
requires to be dismissed, which is hereby dismissed. No order
as to costs.
15. As a sequel the civil application for stay is also disposed of
accordingly.
(MAULIK J.SHELAT,J)
NILESH
