Gujarat High Court
Shri Dilipbhai Laxmanbhai Kanani vs Shri Kshitijbhai Manubhai Patel on 3 September, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 361 of 2006
With
CIVIL APPLICATION (FOR INJUNCTION) NO. 1 of 2006
In R/APPEAL FROM ORDER NO. 361 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
✓
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SHRI DILIPBHAI LAXMANBHAI KANANI & ANR.
Versus
SHRI KSHITIJBHAI MANUBHAI PATEL & ORS.
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Appearance:
MR PREMAL R JOSHI(1327) for the Appellant(s) No. 1,2
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Respondent(s) No. 2
HL PATEL Advocate(2034) for the Respondent(s) No. 2.3,4
MR MITUL K SHELAT(2419) for the Respondent(s) No. 4
SHASHVATA U SHUKLA(8069) for the Respondent(s) No. 1
SINGHI & CO(2725) for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE MAULIK J. SHELAT
Date : 03/09/2025
ORAL JUDGMENT
TABLE OF CONTENTS
HISTORY OF APPEAL............................................................................................................. 2
THE BRIEF FACTS OF THE CASE.......................................................................................19
SUBMISSIONS OF APPELLANTS-PLAINTIFFS:.................................................................25
SUBMISSIONS OF RESPONDENTS-DEFENDANTS:..........................................................28
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POINTS FOR DETERMINATION........................................................................................... 33
ANALYSIS.............................................................................................................................. 33
POINT NO. (I)......................................................................................................................... 41
POINT NO. (II)........................................................................................................................ 68
CONCLUSION........................................................................................................................ 70
1. This appeal is directed against the order dated 11th
December 2006, passed by the Principal Senior Civil Judge,
Ahmedabad (Rural), Mirzapur, below injunction application
Exhibit 5 in Special Civil Suit No. 187 of 2006. The appeal is
filed under Order XLIII Rule 1 (r) of the Code of Civil
Procedure, 1980 (hereinafter referred to as "C.P.C.") by the
original plaintiffs of the aforesaid suit. The respondents
herein are original defendants.
2. As far as possible, hereinafter, the parties will be referred as
per their original position in the suit.
HISTORY OF APPEAL
3. Before addressing to the issues germane in the appeal, the
events, which have taken place and the few orders passed by
my predecessors, need to be first observed in this judgement-
order.
3.1. This appeal was admitted on 26th December 2006 and it has
been so recorded in the order passed in the injunction
application (Civil Application No. 15068 of 2006) that as per
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statements made by respective learned Advocates appearing
for defendants, till the hearing of the appeal, their clients
(defendants) shall not transfer, alienate or deal with the
property in question and maintain status quo of the same.
The order dated 26th December 2006, passed in the appeal
as well as the stay application therein, reads as under:
"CORAM : HONOURABLE MR.JUSTICE P. B. MAJMUDAR
Date : 26/12/2006
COMMON ORAL ORDER
APPEAL FROM ORDER No. 361 of 2006
ADMIT.
Fixed for final hearing on 7th February 2007.
CIVIL APPLICATION NO.15068 OF 2006
Rule returnable on 7th February 2007. Mr Mitul Shelat waives
service of Rule for respondent Nos.1 and 4 and Mr Unmesh Shukla
waives service of Rule for respondent Nos.2 and 3. If any reply is to be
filed on Civil Application, the same be filed before the returnable date.
It is submitted by learned Advocate Mr Shukla and Mr Shelat that till
the aforesaid date their clients shall not transfer, alienate or deal with
the property in question and will maintain status quo of the same. In
view of the same, it is not necessary to pass any specific order on the
question of interim relief at this stage.
(P.B.MAJMUDAR, J.)"
3.2. Thereafter, the appeal was heard as admitted. It appears that
vide order dated 21st February, 2011, the Co-Ordinate Bench
of this Court (Coram: Honourable Mr. Justice Mr. K. S.
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Jhaveri) disposed of this appeal as well as the civil application
for stay, whereby observed thus:
"CORAM : HONOURABLE MR.JUSTICE KS JHAVERI
Date : 21/02/2011
ORAL ORDER
By way of present appeal, the appellant original plaintiff has
challenged the order dated 11/12/2006 passed by the Principal Senior
Civil Judge, Ahmedabad (Rural), Mirzapur below Application Exh.-5
in Special Civil Suit No.187 of 2006 whereby Exh.-5 application was
rejected.
This Court on 26/12/2006 passed following order in the Civil
Application.
"Rule returnable on 7th February 2007. Mr Mitul Shelat
waives service of Rule for respondent Nos.1 and 4 and Mr
Unmesh Shukla waives service of Rule for respondent Nos.2
and 3. If any reply is to be filed on Civil Application, the same
be filed before the returnable date. It is submitted by learned
Advocate Mr Shukla and Mr Shelat that till the aforesaid date
their clients shall not transfer, alienate or deal with the
property in question and will maintain status quo of the same.
In view of the same, it is not necessary to pass any specific
order on the question of interim relief at this stage."
The parties were directed to maintain status quo.
In view of the above order, I am of the view that interests of
justice would be meet by passing the following order:
The parties will be governed by the order passed by this Court
on 26/12/2006. The Trial Court is directed to expedite the suit.
The Appeal From Order as well as the Civil Application stands
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disposed of accordingly. No costs.
(K.S.JHAVERI, J.)"
3.3. It further appears that despite there was a direction issued
by this Court to expedite the suit as directed in its order
dated 21st February, 2011 as referred hereinabove, the suit
appears to have not been expedited. So, the defendants
appear to have filed one Miscellaneous Civil Application (for
direction) No. 3038 of 2015 in Civil Application No. 15068 of
2006 (stay application) in Appeal from Order No. 361 of
2006. this Court (Coram: Honourable Mr. Justice K. S.
Jhaveri) vide its order dated 11th December, 2015, passed
the following order thereon:-
"CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
Date: 11/12/2015
ORAL ORDER
The Trial Court is directed to take up the matter on day to day
basis. The application given by the applicant will not be entertained, if
the trial is not over before 31.03.2016. In the event of non-cooperation
by the original plaintiff it will be open for the applicant to move this
Court for appropriate order for vacating interim relief. Rozkam is
taken on record. The application is disposed of in the aforesaid terms.
Direct service is permitted.
(K.S.JHAVERI, J.)"
3.4. It appears from bare reading of the said order, though
claimed to have been passed ex parte against the plaintiffs,
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having neither received any notice of application nor in fact
received any advanced copy of such application, that the
Trial Court was directed to take up the matter on a day-to-
day basis.
3.5. It further observed that in the event of non-cooperation by
the original plaintiffs, it will be open for the applicants
(defendants) to move this Court for an appropriate order for
vacating interim relief. It needs to be observed that on being
made aware about the said order, plaintiffs had not taken any
steps to either request this Court to recall or review its said
order.
3.6. It further appears that the trial of the suit was not
progressed as expected from the Trial Court; defendants had
preferred Miscellaneous Civil Application No. 2 of 2022 in
this Appeal from Order, wherein prayed thus:
"5. The Applicants, therefore, pray as under:
(A) That this Hon'ble Court be pleased to recall the order dated
21.02.2011 passed in Appeal from Order No. 361 of 2006 with
Civil Application No. 15068 of 2006 and this Hon'ble Court be
further pleased to restore Appeal from Order No. 361 of 2006
to file and this Hon'ble Court be further pleased to vacate the
interim relief granted therein.
(B) Such other and further relief as may be deemed fit, be granted
in the circumstances of the present case."
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3.7. After hearing the parties, the Co-Ordinate Bench of this
Court (Coram: Honourable Mr. Justice Niral R. Mehta) vide
its order dated 23rd December 2022, allowed the said
application, whereby, restored this Appeal and Stay
application filed therein on its original file. The order dated
23rd December, 2022, passed by the Co-Ordinate Bench of
this Court in Miscellaneous Civil Application (For
Restoration) No. 2 of 2022 in R/Appeal From Order No. 361
of 2006, reads as under:
"CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 23/12/2022
IA ORDER
Heard learned counsel appearing for the respective parties.
In view of the averments made in the Misc. Civil Application
and more particularly in view of the fact that the order below Exh.119
is not passed since more than 2 and 1/2 years by the trial court despite
there being a clear directions by this Court for expeditious conclusion
of the suit proceedings, the present application is allowed. The Appeal
from Order No.361 of 2006 along with Civil Application No.15068 of
2006 are restored to its original file.
The Registry is directed to notify The Appeal from Order
No.361 of 2006 along with Civil Application No.15068 of 2006 for
hearing on 5.1.2023.
(NIRAL R. MEHTA,J)"
3.8. Thus, this appeal though disposed of on 21st February, 2011,
again restored back on its file due to the order dated 23rd
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December, 2022, passed in the aforesaid Miscellaneous Civil
Application. Accordingly, this Appeal and Stay Application
are listed for final hearing.
4. At the outset, learned Advocate Mr. Premal R. Joshi,
appearing for the appellants-plaintiffs, would submit that
once the appeal came to be disposed of by this Court vide its
order dated 21st February, 2011, it could not have been
restored back in a way it was. According to learned Advocate
Mr. Joshi, there was no default on the part of the plaintiffs
inasmuch as it was not even a case of the defendants that
due to non-cooperation of the plaintiffs, the trial not
progressed further so far.
4.1. Learned Advocate Mr. Joshi would further submit that after
this much period of time, which has been passed and in fact,
the trial of the suit has progressed, it would not be desirable
to again hear the appeal on its merits rather the defendants
as directed by this Court requires to maintain status quo till
the disposal of the suit. He would request that such
arrangement be continued. According to him, this Court
should not go into the merits of the matter and thereby, not
to decide appeal on its merits.
5. Per contra, learned Senior Counsel Mr. Mihir Joshi appearing
with learned Advocate Mr.Shashvata Shukla and learned
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Advocate Mr.Maharshi Patel for the respective
respondents/defendants, strenuously objected such request
rather would submit that such submissions are misconceived
at facts as well as law.
5.1. Learned Senior Counsel Mr. Joshi would submit that once
this Court passed an order on 23rd December, 2022, in the
aforesaid Miscellaneous Civil Application, whereby, restored
the appeal and stay application on its file, the plaintiffs
cannot allow to object the restoration of the appeal/stay
application anymore.
5.2. Learned Senior Counsel Mr. Joshi would assiduously submit
that even if there is any erroneous order passed by this Court
while restoring the appeal/stay application on its file, having
not challenged such order by the plaintiffs before higher
forum, at this stage, the plaintiffs cannot allow to agitate and
made grievance about the restoration of the appeal/stay
application.
5.3. To buttress his arguments, learned Senior Counsel Mr. Joshi
would rely upon the following decisions:
(i). Malthesh Gudda Pooja V/s. State of Karnataka and
others reported in 2011 (15) SCC 330;
(ii). Vikramjit Singh V/s. State of Madhya Pradesh reported
in 1992 Supp. (3) SCC 62;
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(iii). Sanjay Kumar Agarwal V/s. State Tax Officer reported
in (2024) 2 SCC 362.
5.4. Making the above submissions, learned Senior Counsel Mr.
Joshi would request this Court to hear and decide the
appeal/stay application on its merits.
6. Having heard learned Advocates appearing for the respective
parties, the first question, which arose as to whether this
Court can hear and decide the appeal - stay application on its
merits, as once the appeal-stay application were disposed of
and later on restored back on its file by co-ordinate bench of
this Court?
7. The aforesaid facts and the orders passed by the Co-Ordinate
Bench of this Court are not in dispute. It may be true that
once appeal got disposed of after bi-parte hearing, ordinarily,
such appeal could not have been restored back on its file
unless reviewed the order by the Court. It is also not in
dispute that there was no review applications under section
114 read with Order 47 of CPC were filed by defendants.
8. Be that as it may, once the Co-ordinate Bench of this Court
thought it fit to restore the appeal/stay application back on
its original file, then after, this Court cannot and would not
have jurisdiction to question such order as not sitting in the
appeal over such orders.
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9. The decisions so relied upon by learned Senior Counsel Mr.
Joshi in support his arguments would throw more light on
such issue and according to this Court, would squarely apply
to the first issue germane in the appeal.
10. In the case of Malthesh (supra), wherein the Honourable
Apex Court observed and held thus:
"Question for consideration
7. The question for consideration is whether a
Division Bench of the High Court, while
considering a memo for listing an appeal
restored for fresh hearing, on grant of
application for review by a coordinate Bench
could refuse to act upon the order of review on
the ground that the said order made by a Bench
different from the Bench which passed the
original order, granting review is a nullity
and that the original order stands.
Finality of decisions
23. But the crucial question is this : the
review application having been placed before
the Bench holding the roster, as per the
standing instructions of the Chief Justice, and
the said Bench having heard and granted the
review application, whether before another
Bench if a request is made for early hearing
can it say it will ignore the order granting
review as it is a nullity?
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24. In this case, the review petition was
placed before different Bench (Bench holding the
roster for hearing writ appeals) as per the
Notification dated 29-12-2008 issued by the High
Court under the directions of the learned Chief
Justice requiring the review petition to be
placed before a Bench assigned to hear writ
appeals as per the then existing roster. As on
17-12-2009, when another Bench heard and
decided the matter, the listing of the case
before that Bench and hearing by that Bench was
valid as per Rules. The Judges constituting the
original Bench were not sitting at Dharwad. The
review petition was filed on 2-3-2009 and for
more than six months, the original Bench either
did not sit or dispose of the review petition.
When the review petition was placed for hearing
before the roster Bench, it was possible that
for six more months there was no likelihood of
the Judges constituting original Bench being
together at Dharwad. The Bench before which the
review application was placed held the writ
appeal roster. The said Bench considered and
rejected the contention that the same Bench
which passed the order should hear the review
application, in view of the Notification dated
29-12-2008 and that Bench also held that the
Chief Justice had the power and authority to
issue the Notification dated 29-12-2008. The
order dated 17-12-2009 was therefore neither a
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nullity nor one lacking inherent jurisdiction,
nor obtained by fraud. Even assuming it to be
erroneous, it was final as it was not
challenged.
25. Once the application for review was granted
on 17-12-2009, the order reviewed stands
recalled. Consequently the review appeal stood
revived and restored. Therefore when the
appellant filed a memo for listing the writ
appeal for hearing, he was not really seeking a
judicial order for restoration but only a
direction for fixing a date for hearing the
writ appeal. When an application or memo is
filed in a matter where review has been granted,
the Bench dealing with such memo or application
is bound to proceed on the basis of the said
order granting review, in view of the
principles of finality and res judicata. Even a
wrong decision between parties which has
attained finality is binding and cannot be
reagitated or reopened at a later stage. As
noticed above, the review order dated 17-12-
2009 considered the statutory provisions
relating to review and consciously arrived at a
decision that the provisions thereof did not
prevent it from hearing the application for
review. It should be noted that neither party
was aggrieved by it and the order dated 17-12-
2009 was not under challenge. Therefore when
the memo for posting was filed by one of the
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parties, the Court, being bound by its final
decision rendered on 17-12-2009 ought to have
listed the writ appeal for hearing and could
not have examined the correctness or validity
of the review order dated 17-12-2009."
(emphasis supplied)
10.1. Second in a row, in the case of Vikramjit Singh (supra),
wherein the Honourable Apex Court held thus:
"3. The application was listed before Mr
Justice Gupta who by the impugned judgment
cancelled the earlier order of Mr Justice B.C.
Varma and while so doing made strong remarks
against grant of bail in cases like the present
one. The appellant has now challenged the
judgment before this court. It appears that the
learned Judge while passing the impugned order,
failed to appreciate that no bench can comment
on the functioning of a co-ordinate bench of
the same court, much less sit in judgment as an
appellate court over its decision. If the State
was aggrieved by the order of bail by Mr
Justice B.C. Varma it could have approached
this Court but, that was not done. The judgment
of Mr Justice B.C. Varma, therefore, became
final so far the High Court was concerned. If
the appellant had misused the bail or new
materials came to light, it would have been
open to the prosecution to move for
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cancellation, but that is not the position in
the present case. On the basis of the same
materials and in the same circumstances in
which the order was earlier passed in favour of
the appellant by the High Court, the
application for cancellation was made entirely
as a sequel of the observations made by Mr
Justice Gupta while dealing with the
application of another accused. It must be,
therefore, held that Mr Justice Gupta had no
authority to upset the earlier order of the
High Court. That which could not be done
directly could also not be done indirectly.
Otherwise a party aggrieved by an order passed
by one bench of the High Court would be tempted
to attempt to get the matter reopened before
another bench, and there would not be any end
to such attempts. Besides, it was not
consistent with the judicial discipline which
must be maintained by courts both in the
interest of administration of justice by
assuring the binding nature of an order which
becomes final, and the faith of the people in
the judiciary the impugned order dated July 16,
1991 is, therefore, set aside and the order
dated July 6, 1990 granting bail to the
appellant is restored."
(emphasis supplied)
10.2. Last in row, in the case of Sanjay Kumar Agarwal (supra),
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wherein also the Honourable Apex Court, after taking into
account its previous decision, observed as under:
"20. Taking recourse to the said observations
made by the coordinate Bench, the learned
counsel for the review petitioners have urged
to review the impugned judgment [State Tax
Officer v. Rainbow Papers Ltd., (2023) 9 SCC 545]
. The said submission of the learned counsel
for the review petitioners deserves to be
outrightly rejected for the simple reason that
any passing reference of the impugned judgment
made by the Bench of equal strength could not
be a ground for review. It is well-settled
proposition of law that a coordinate Bench
cannot comment upon the discretion exercised or
judgment rendered by another coordinate Bench
of the same strength. If a Bench does not
accept as correct the decision on a question of
law of another Bench of equal strength, the
only proper course to adopt would be to refer
the matter to the larger Bench, for
authoritative decision, otherwise the law would
be thrown into the state of uncertainty by
reason of conflicting decisions.
23. A precise observation made by a three-Judge
Bench in Sant Lal Gupta v. Modern Coop. Group
Housing Society Ltd. [Sant Lal Gupta v. Modern
Coop. Group Housing Society Ltd., (2010) 13 SCC
336 : (2010) 4 SCC (Civ) 904] , is worth noting
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: (SCC p. 343, para 17)
"17. A coordinate Bench cannot comment
upon the discretion exercised or judgment
rendered by another coordinate Bench of
the same court. The rule of precedent is
binding for the reason that there is a
desire to secure uniformity and certainty
in law. Thus, in judicial administration,
precedents which enunciate the rules of
law form the foundation of the
administration of justice under our
system. Therefore, it has always been
insisted that the decision of a coordinate
Bench must be followed. (Vide Tribhovandas
Purshottamdas Thakkar v. Ratilal Motilal
Patel [Tribhovandas Purshottamdas Thakkar
v. Ratilal Motilal Patel, 1967 SCC OnLine
SC 123 : AIR 1968 SC 372] , Sub-Committee
of Judicial Accountability v. Union of
India [Sub-Committee of Judicial
Accountability v. Union of India, (1992) 4
SCC 97] , and State of Tripura v. Tripura
Bar Assn. [State of Tripura v. Tripura Bar
Assn., (1998) 5 SCC 637 : 1998 SCC (L&S)
1426] )"
24. Apart from the well-settled legal position
that a coordinate Bench cannot comment upon the
judgment rendered by another coordinate Bench
of equal strength and that subsequent decision
or a judgment of a coordinate Bench or larger
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Bench by itself cannot be regarded as a ground
for review, the submissions made by the learned
counsel for the review petitioners that the
Court in the impugned decision had failed to
consider the waterfall mechanism as contained
in Section 53 and failed to consider other
provisions of IBC, are factually incorrect. As
evident from the bare reading of the impugned
judgment [State Tax Officer v. Rainbow Papers
Ltd., (2023) 9 SCC 545] , the Court had
considered not only the waterfall mechanism
under Section 53 IBC but also the other
provisions of IBC for deciding the priority for
the purpose of distributing the proceeds from
the sale as liquidation assets."
(emphasis supplied)
11. The upshot of the aforesaid orders passed by the Co-Ordinate
Bench of this Court and so also the ratio laid down in the
aforementioned decisions of the Honourable Supreme Court
of India, applied to the case on hand, the arguments so
canvassed by learned Advocate Mr. Premal Joshi appearing
for the plaintiffs, are not sustainable at law and requires to
be turned down inasmuch as once co-ordinate bench of this
Court exercised its power assuming erroneously and restored
back the appeal/stay application on its file then also, this
Court has no jurisdiction to correct such alleged erroneous
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error, albeit not questioned by plaintiffs having not
challenged it before higher forum. Consequently, this Court
requires to hear and decide the appeal on its merits.
12. In light of aforesaid, this Court thus, heard learned Counsel
appearing for the respective parties at length on merit, who
accordingly addressed their arguments in support of their
respective case.
THE BRIEF FACTS OF THE CASE
13. The suit is filed seeking specific performance of an oral
agreement to sale alleged to have been executed between the
plaintiffs and some of the defendants, who are co-owners of
the suit property. In the alternative, sought and prayed for
compensation of Rs. 3,91,10,400/-.
13.1. As per the case of the plaintiffs, defendant Nos. 1, 3 and 4
are co-owners of the suit property and the sister of defendant
No. 2, namely, Madhukantaben Gokalbhai, who died prior to
filing of the suit, was also co-owner of the suit property.
13.2. The suit property is situated at Muni Hemchandracharya Co-
operative Housing Society at Town Planning Scheme No. 6,
Final Plot No.206-208, admeasuring 951 square yards,
Vejalpur, Ahmedabad, wherein one big bungalow is in
existence, known as "Bhikubhai Bungalows".
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13.3. It is averred in the plaint that at the time of giving the final
plot by Ahmedabad Urban Development Authority (AUDA) to
the defendants, land admeasuring 169 square yards was also
given to them, but in relation to such area of land, there was
dispute going on between the defendants and their neighbor
society.
13.4. As per the case of the plaintiffs, they were interested to
purchase the suit property as described in paragraph-4 of the
plaint, through common friend/mediator, namely, Shri
Chandrakantbhai Patel, who met defendant Nos. 1 and 2 at
their office. After two or three meetings with them, on 8th
February, 2005, in the presence of Shri Chandrakantbhai
Patel as per his mediation, it was decided and agreed
between the parties that the defendants agreed to sell the
suit property for sum of Rs.72,00,000/- to plaintiffs. It is
undisputed that there is no written agreement to sell
(hereinafter referred to as "A.T.S.") was executed between
the parties, but it was an oral A.T.S.
13.5. Further, towards earnest money, the plaintiffs paid
Rs.5,00,000/- each to defendant Nos. 1, 3 and 4 vide cheque
dated 10th February 2005, 22nd February 2005 and 23rd
February 2005, respectively, which were encased by them.
Thereafter also, about 5 months later, further sum of
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Rs.10,00,000/- in cash paid to the defendants. So, according
to the plaintiffs, they have paid total earnest money
Rs.25,00,000/- against total sale consideration of
Rs.72,00,000/- to the defendants.
13.6. As per the case of the plaintiffs, it was agreed between the
parties that either the dispute resolved between the
defendants with their neighbor or even if not resolved, then
also, on "as is where is" basis, defendants will execute sale
deed in favor of the plaintiffs in a year i.e. February/March,
2006.
13.7. As the plaintiffs requires to take loan for paying the
remaining sale consideration, he applied to get loan with the
help of the sister of defendant No. 1, thereby, the concerned
Home Finance Company i.e., ICICI Home Finance, sanctioned
the loan of Rs.16,75,000/- vide its letter dated 20th July,
2005, in favor of the plaintiffs, wherein also the address of
the Relationship Officer of ICICI Bank mentioned, which is
the office address of the sister of defendant No. 1.
13.8. The plaintiffs having arranged for the balance sale
consideration, requested the defendants in end of January
2006, for the execution of the sale deed in relation to the suit
property. According to plaintiffs, though, there was an oral
A.T.S. executed between the parties and having received
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earnest money, the defendants have refused to perform their
part of the contract. So, a meeting took place between the
parties in the presence of the mediator - Chandrakantbhai
Patel, which was recorded in the form of Audio Tape,
submitted along with the suit.
13.9. The talks of settlement and the request were turned down,
which was duly recorded in Audio Tape and such Tape was
approved in Laboratory and submitted on the record of the
suit. As a last option, the plaintiffs sent letters dated 21st
April, 2006 and 17th May, 2006 through registered post to
defendant, thereby called upon the defendants to perform
their part of the contract, but the same were not replied.
13.10. As per the case of the plaintiffs, within a year from
execution of oral A.T.S., due to fast development in outskirts
of the city of Ahmedabad and as such, the price of suit
property multi-fold increased, the defendants have turned
back from their promise and refused to execute the sale
deed, thereby, breached the oral A.T.S.
13.11. Thus, in light of the aforesaid facts and circumstances of
the case, the plaintiffs preferred Special Civil Suit No. 187 of
2006, seeking specific performance of the oral A.T.S.
allegedly executed on 8th February, 2005. It is alternatively
prayed in the suit that in a case where the court will not
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grant specific performance in favor of the plaintiffs, for
breach of contract, damages of Rs.3,91,10,400/- be awarded
in favor of the plaintiffs to be paid by the defendants.
13.12. The defendants have appeared in the suit and filed their
respective written statements, inasmuch as defendant Nos. 1
and 4 on one hand and defendant Nos. 2 and 3 on the other,
filed their written statements and thereby, strongly objected
the facts and prayers of the suit.
13.13. It is a specific case of the defendants that there was no
oral A.T.S. executed between the plaintiffs and the
defendants inasmuch as neither sale consideration was
finalized like the area of suit property nor was agreed to be
sold, nor got the terms of payments fixed.
13.14. It is further contended that there was no concluded
contract between the parties as alleged by the plaintiffs,
inasmuch as all co-owners of the suit property not
participated in the meeting with the plaintiffs. So, consent of
all co-owners to sell the suit property would not arise.
13.15. It is a specific case of the defendants that one of the co-
owners of the property i.e. late Madhukantaben, was never
consented and not even participate in any alleged meeting
held with the plaintiffs. Even, there was no privity of contract
between the plaintiffs and the defendants. Further,
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defendants have disputed the Audio Tape submitted by the
plaintiffs.
13.16. It is further submitted by them that considering the rate
prevailing in the area where the suit property was situated,
there was no reason for the defendants to agree to sell for
much less amount than prevailing as on the date of the oral
A.T.S.
13.17. As per the case of the defendants, its true that negotiation
took place between the plaintiffs and defendants in regards
to the sale of the suit property, but terms of negotiations
were not finalized between the parties, thereby, there was no
concluded contract.
13.18. It is averred in their respective written statements that
when such negotiations were in progress, in order to show
bonafide, the plaintiffs agreed to pay Rs.15,00,000/- as
gesture indicating their keenness to arrive at consensus with
the defendants for the sale of the suit property. Accordingly,
the plaintiffs paid Rs.5,00,000/- each to defendant Nos. 1, 3,
and 4. But the negotiations between the parties did not result
into concluded contract since several terms and conditions
relating to the sale of suit property were not discussed and
finalized between them, which includes the time limit for the
execution of the sale deed, time frame for making payment,
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handing over possession of the suit property, obligations
related to the title clearance certificate, stamp duties and
earnest money, etc., were not finalized between the parties.
13.19. The defendants have also refuted the claim of plaintiffs
that title clearance certificate was obtained through one Mr.
Pranav G. Takkar or Mr.Anant Soyantar as alleged. It is the
specific case of the defendants that the dispute about 169
square yards of land, which forms a part of their bungalow, is
in dispute with neighbor society, and unless and until, such
dispute gets over, nothing could have been finalized between
the parties.
13.20. Thus, the defendants have completely denied the case of
the plaintiffs in all respects, including the execution of an
oral A.T.S.
13.21. The Trial Court, having heard the respective parties,
refused to grant injunction as prayed for by the plaintiffs,
rather vacated the status quo granted earlier in favor of the
plaintiffs. Accordingly, the injunction application filed below
Exhibit 5 by the plaintiffs came to be rejected. Hence, the
present appeal.
SUBMISSIONS OF APPELLANTS-PLAINTIFFS:
14. Learned Advocate Mr. Premal Joshi appearing for the
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plaintiffs would submit that the Trial Court has committed
serious error of law in not granting the injunction as prayed
in the stay application, which resulted into miscarriage of
justice. It is submitted that the plaintiffs have made out prima
facie case, balance of convenience and irreparable loss,
inasmuch as the payment of Rs.15,00,000/- was duly received
by the defendants as paid through different cheques. So far
as, the cash payment of Rs.10,00,000/- is concerned, the
necessary entry in the account of the plaintiffs, is submitted
on the record of the suit.
14.1. Learned Advocate Mr. Joshi would further submit that once
such part payments have been received by the defendants,
who agreed to sell the suit property, later on refused to
execute the sale deed, the plaintiffs would entitled to get the
injunction as prayed for. It is submitted that when the
plaintiffs were and are ready and willing to perform their
part of the contract, the Trial Court is required to grant order
of status quo in favor of the plaintiffs.
14.2. Learned Advocate Mr. Joshi would further submit that merely
because it is oral A.T.S. executed between the parties, it
would not be a ground to deny the injunction, inasmuch as,
as per the settled legal position of law, specific performance
can be granted on the basis of oral A.T.S.
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14.3. Learned Advocate Mr. Joshi would further submit that the
Trial Court has completely overlooked the evidence available
on record and having ignored such documentary and oral
evidence on record, refused the injunction as sought for by
the plaintiffs, thereby, committed a jurisdictional error which
requires to be corrected by this Court in this appeal. It is
submitted that the terms of negotiations are already agreed
between the parties, inasmuch as the total sale consideration
was fixed @ Rs.72,00,000/-, the execution of the sale deed
was also fixed i.e. one year after oral A.T.S. The defendants
have facilitated the plaintiffs to avail bank loan to pay the
balance sale consideration. The area of the suit property was
also clearly mentioned in the plaint i.e. 951 square yards,
thus, it was concluded contract between the parties and its
performance can be sought for by the plaintiffs.
14.4. Learned Advocate Mr. Joshi would respectfully submit that in
all applications, defendants were directed to maintain status
quo and if this Court would not continue such status quo, it
would cause great hardship and inconvenience to the
plaintiffs, inasmuch as if the defendants sell the suit property
to third party, it may create multiplicity of proceedings.
14.5. So, learned Advocate Mr. Joshi would request this Court that
until the final outcome of the suit, the status quo which is so
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far operating in favour of the plaintiffs be continued in the
interest of justice. Accordingly, learned Advocate Mr. Joshi
would request this Court to allow the present appeal.
14.6. To buttress his arguments, learned Advocate Mr. Joshi would
rely upon the following decisions:
(i). Brij Mohan and others V/s. Sugra Begum and others
reported in (1990) 4 SCC 147;
(ii). K Nanjappa V/s. R A Hameed Alias Ameersab (Dead)
And Another reported in (2016) 1 SCC 762;
(iii). Desh Raj and Others V/s. Rohtash Singh reported in
(2023) 3 SCC 714.
14.7. Making the above submissions, learned Advocate Mr. Premal
Joshi would request this Court to allow the present appeal
and grant injunction in favour of the plaintiffs as prayed.
SUBMISSIONS OF RESPONDENTS-DEFENDANTS:
15. Learned Senior Counsel Mr. Mihir Joshi appearing for the
defendants, has strenuously objected to the submissions so
made by learned Advocate Mr. Joshi for the plaintiffs and
would submit that there is no merit in the appeal, which
requires to be dismissed.
15.1. Learned Senior Counsel Mr. Joshi would submit that there
was no oral A.T.S. between the parties inasmuch as no
consents of all co-owners were obtained by the plaintiffs and
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the consideration was also not fixed. Further, the area of the
suit property is also not clear from bare reading of the plaint
and terms of payment were not fixed.
15.2. Learned Senior Counsel Mr. Joshi would assiduously submit
that, undisputedly, one of the co-owners of the suit property
i.e. late Madhukantaben, who happens to be the sister of
defendant No. 2, was not party to any of the negotiation with
the plaintiffs. It is submitted that there is no whisper in the
entire plaint that in any negotiations/meeting, held with late
Madhukantaben and or gave her consent. It is further
submitted and denied that as late Madhukantaben resided
jointly with other defendants, her deemed consent received
as alleged by plaintiffs in rejoinder.
15.3. Learned Senior Counsel Mr. Joshi would respectfully submit
that when the consent of all co-owners of the suit property
was not obtained by the plaintiffs, who alleges to have
executed an oral A.T.S. with the owners of the suit property,
no specific performance of such oral A.T.S. can be granted in
favor of the plaintiffs.
15.4. Learned Senior Counsel Mr. Joshi would further submit that
as per the case of the defendants, as set out in their
respective written statements that the negotiations between
the parties were at an initial stage and as such, the plaintiffs,
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to show their bona fides, paid Rs.5,00,000/- each to
defendant Nos. 1, 3, and 4, but it was never agreed between
the parties to have received such amount as earnest money.
It is respectfully submitted that when negotiations between
the parties were remained unconcluded in aforesaid respects,
the alleged oral A.T.S. relied upon by the plaintiffs would not
be treated as concluded contract. Thus, its performance
cannot be sought for.
15.5. Learned Senior Counsel Mr. Joshi would further submit that,
undisputedly, there was a dispute going on between the
defendants with their neighbor society in regards to an area
admeasuring 169 square yards out of total area of 1120
square yards. In that view of the matter, there was no
question arose to sell the entire 1120 square yards to the
plaintiffs as alleged. It is submitted that the plaintiffs have, at
different places of the plaint, described the area of the suit
property differently, inasmuch as in paragraph-4, while
describing the suit property, the area disclosed @ 951 square
yards, whereas in paragraph-18 of the plaint, it described the
area of the suit property @ 1120 square yards, which alleged
to have been agreed for sale at Rs.72,00,000/-. He would
thus, respectfully submit that when the area of the suit
property alleged to be sold is not confirmed between the
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parties as aforesaid, specific performance of such alleged
oral A.T.S. cannot be granted.
15.6. Learned Senior Counsel Mr. Joshi would further submit that
there is a heavy burden upon the plaintiffs to discharge to
prove an oral A.T.S. executed between the parties. It is
submitted that the decisions, which are relied upon by
learned Advocate Mr. Joshi for the plaintiffs, rather support
the case of the defendants than the plaintiffs.
15.7. Learned Senior Counsel Mr. Joshi would submit that so far as
the Audio Tape is concerned, the defendants have clearly
denied such electronic evidence inasmuch as not admitted its
contents in any manner whatsoever. It is submitted that
during the course of the trial, whether to send such tape for
forensic examination was an issue germane and to resolve it,
the matter is now pending before this Court. Thus, the
plaintiffs cannot be allowed to take any advantage on the
basis of such Audio Tape, which is not admitted by the
defendants.
15.8. Learned Senior Counsel Mr. Joshi would further submit that
the plaintiffs have already paid for compensation as one of
the prayers thereby, there would not be any irreparable loss
caused to the plaintiffs. So, according to him, if plaintiffs
ultimately succeed in the suit, they can be compensated in
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terms of money. It is submitted that when there is no case
made out by the plaintiffs in regards to irreparable loss, no
injunction can be granted in favor of the plaintiffs.
15.9. Lastly, learned Senior Counsel Mr. Joshi would submit that
when there is no gross error of law and view taken by the
Trial Court is neither erroneous, perverse nor arbitrary and
nor contrary to any settled principle of law, this Court while
exercising its appellate jurisdiction while adjudicating an
appeal filed under Order 43 Rule 1 of CPC, should not
interfere with the impugned order.
15.10. To buttress his arguments, learned Senior Counsel Mr.
Joshi would rely upon the following decisions:
(i). Wonder Ltd. and another V/s. Antox India Pvt. Ltd.,
(1990) Supp 1 SCC 727;
(ii). Ramakant Ambalal Choksi V/s Harish Ambalal Choksi
reported in 2024 SCC Online SC 3538;
(iii). Janardhan Das and others reported in (2024) 0 SCC
Online SC 2937;
(iv). Peemmada Prabhakar V/s. Yough Men's Vysya
Association reported in (2015) 5 SCC 355;
(v). Mahammadali Mohammadhusen Gandhi V/s. Hurbanu
Wd/o. Decd. Gulammohiyuddin Mohammadhusen
Afinwala, in Appeal from Order No.61 of 2024, dated
15th April 2025, passed by this Court.
15.11. Making the above submissions, learned senior Advocate
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Mr. Mihir Joshi would request this Court to dismiss the
present appeal/stay application.
16. No other and further submissions are made by any of the
learned advocates of the parties.
17. Heard learned Advocate Mr.Premal R. Joshi appearing for the
appellants-plaintiffs and learned Senior Counsel Mr.Mihir
Joshi appearing with learned Advocate Mr. Shashvata Shukla
and learned Advocate Mr. Maharshi Patel for the respective
respondents/defendants at length.
POINTS FOR DETERMINATION
(i) Whether, in the facts and circumstances of the case,
can the impugned order be said to be erroneous,
perverse, arbitrary and/or suffers from any gross
irregularity, illegality or passed contrary to settled
principle of law, requires any interference by this Court
while exercising its appellate jurisdiction under Section
104 read with Order XLIII R.1(r)of CPC?
(ii) Whether, in the facts and circumstances of the case,
the order of status quo can be continued in favour of
the plaintiffs as prayed for or not?
ANALYSIS
18. Before adverting to the issues so germane in the appeal, it is
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required to be kept in mind that the present Appeal from
Order is filed under the provisions of Order XLIII Rule 1 (r) of
CPC and challenge in this appeal is a discretionary order
passed by the learned trial Judge under the provisions of
Order XXXIX Rules 1 and 2 of CPC.
18.1. In the case of Wonder Ltd. and another V/s. Antox India Pvt.
Ltd., (1990) Supp 1 SCC 727, the Hon'ble Apex Court in para
9 of the said decision, after considering the scope of Order
XLIII Rule 1(r) of the CPC in an appeal wherein, the
discretionary order passed by the learned trial Court is under
challenge, observed as under:-
"9. Usually, the prayer for grant of an
interlocutory injunction is at a stage when the
existence of the legal right asserted by the
plaintiff and its alleged violation are both
contested and uncertain and remain uncertain
till they are established at the trial on
evidence. The court, at this stage, acts on
certain well settled principles of
administration of this form of interlocutory
remedy which is both temporary and
discretionary. The object of the interlocutory
injunction, it is stated
"...is to protect the plaintiff against
injury by violation of his rights for
which he could not adequately be
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compensated in damages recoverable in the
action if the uncertainty were resolved in
his favour at the trial. The need for such
protection must be weighed against the
corresponding need of the defendant to be
protected against injury resulting from
his having been prevented from exercising
his own legal rights for which he could
not be adequately compensated. The court
must weigh one need against another and
determine where the "balance of
convenience lies".
The interlocutory remedy is intended to
preserve in status quo, the rights of parties
which may appear on a prima facie. The court
also, in restraining a defendant from
exercising what he considers his legal right
but what the plaintiff would like to be
prevented, puts into the scales, as a relevant
consideration whether the defendant has yet to
commence his enterprise or whether he has
already been doing so in which latter case
considerations somewhat different from those
that apply to a case where the defendant is yet
to commence his enterprise, are attracted."
(emphasis supplied)
18.2. In recent past also, in a case of Ramakant Ambalal Choksi
V/s Harish Ambalal Choksi reported in 2024 SCC Online SC
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3538, also reiterated aforesaid principle, albeit with
explaining what amounts to perversity in order having so
observed as under:-
"27. The principles of law explained by this
Court in Wander's (supra) have been reiterated
in a number of subsequent decisions of this
Court. However, over a period of time the test
laid down by this Court as regards the scope of
interference has been made more stringent. The
emphasis is now more on perversity rather than
a mere error of fact or law in the order
granting injunction pending the final
adjudication of the suit.
28. In Neon Laboratories Ltd. v. Medical
Technologies Ltd., (2016) 2 SCC 672 this Court
held that the Appellate Court should not
flimsily, whimsically or lightly interfere in
the exercise of discretion by a subordinate
court unless such exercise is palpably
perverse. Perversity can pertain to the
understanding of law or the appreciation of
pleadings or evidence. In other words, the
Court took the view that to interfere against
an order granting or declining to grant a
temporary injunction, perversity has to be
demonstrated in the finding of the trial court.
29. In Mohd. Mehtab Khan v. Khushnuma Ibrahim
Khan, (2013) 9 SCC 221 this Court emphasised on
the principles laid down in Wander (supra) and
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observed that while the view taken by the
appellate court may be an equally possible
view, the mere possibility of taking such a
view must not form the basis for setting aside
the decision arrived at by the trial court in
exercise of its discretion under Order 39 of
the CPC. The basis for substituting the view of
the trial court should be malafides,
capriciousness, arbitrariness or perversity in
the order of the trial court. The relevant
observations are extracted below:
20. In a situation where the learned trial
court on a consideration of the respective
cases of the parties and the documents
laid before it was of the view that the
entitlement of the plaintiffs to an order
of interim mandatory injunction was in
serious doubt, the Appellate Court could
not have interfered with the exercise of
discretion by the learned Trial Judge
unless such exercise was found to be
palpably incorrect or untenable. The
reasons that weighed with the learned
Trial Judge, as already noticed, according
to us, do not indicate that the view taken
is not a possible view. The Appellate
Court, therefore, should not have
substituted its views in the matter merely
on the ground that in its opinion the
facts of the case call for a different
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conclusion. Such an exercise is not the
correct parameter for exercise of
jurisdiction while hearing an appeal
against a discretionary order. While we
must not be understood to have said that
the Appellate Court was wrong in its
conclusions what is sought to be
emphasized is that as long as the view of
the trial court was a possible view the
Appellate Court should not have interfered
with the same following the virtually
settled principles of law in this regard
as laid down by this Court in Wander Ltd.
v. Antox India (P) Ltd."
(emphasis supplied)
32. The appellate court in an appeal from an
interlocutory order granting or declining to
grant interim injunction is only required to
adjudicate the validity of such order applying
the well settled principles governing the scope
of jurisdiction of appellate court under Order
43 of the CPC which have been reiterated in
various other decisions of this Court. The
appellate court should not assume unlimited
jurisdiction and should guide its powers within
the contours laid down in the Wander (supra)
case.
34. The burden is on the plaintiff, by evidence
aliunde by affidavit or otherwise, to prove
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that there is "a prima facie case" in his
favour which needs adjudication at the trial.
The existence of the prima facie right and
infraction of the enjoyment of his property or
the right is a condition precedent for the
grant of temporary injunction. Prima facie case
is not to be confused with prima facie title
which has to be established on evidence at the
trial. Only prima facie case is a substantial
question raised, bona fide, which needs
investigation and a decision on merits.
Satisfaction that there is a prima facie case
by itself is not sufficient to grant injunction.
The Court further has to satisfy that non-
interference by the court would result in
"irreparable injury" to the party seeking
relief and that there is no other remedy
available to the party except one to grant
injunction and he needs protection from the
consequences of apprehended injury or
dispossession. Irreparable injury, however,
does not mean that there must be no physical
possibility of repairing the injury, but means
only that the injury must be a material one,
namely one that cannot be adequately
compensated by way of damages. The third
condition also is that "the balance of
convenience" must be in favour of granting
injunction. The Court while granting or
refusing to grant injunction should exercise
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sound judicial discretion to find the amount of
substantial mischief or injury which is likely
to be caused to the parties, if the injunction
is refused and compare it with that which is
likely to be caused to the other side if the
injunction is granted. If on weighing competing
possibilities or probabilities of likelihood of
injury and if the Court considers that pending
the suit, the subject matter should be
maintained in status quo, an injunction would
be issued. Thus, the Court has to exercise its
sound judicial discretion in granting or
refusing the relief of ad interim injunction
pending the suit. (See : Dalpat Kumar v.
Prahlad Singh, (1992) 1 SCC 719.)
35. Any order made in conscious violation of
pleading and law is a perverse order. In Moffett
v. Gough, (1878) 1 LR 1r 331, the Court
observed that a perverse verdict may probably
be defined as one that is not only against the
weight of evidence but is altogether against
the evidence. In Godfrey v. Godfrey, 106 NW
814, the Court defined "perverse" as "turned the
wrong way"; not right; distorted from the
right; turned away or deviating from what is
right, proper, correct, etc.
37. The wrong finding should stem out on a
complete misreading of evidence or it should be
based only on conjectures and surmises. Safest
approach on perversity is the classic approach
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on the reasonable man's inference on the facts.
To him, if the conclusion on the facts in
evidence made by the court below is possible,
there is no perversity. If not, the finding is
perverse. Inadequacy of evidence or a different
reading of evidence is not perversity. (See :
Damodar Lal v. Sohan Devi, (2016) 3 SCC 78)."
(emphasis supplied)
18.3. So, in light of the limited power of this Court, the Appellate
Court can interfere with the discretionary order passed by
the Trial Court only in exceptional circumstances and the
Appellate Court cannot interfere with the exercise of
discretion of the Court of first instance and substitute its own
discretion except, where the discretion has been shown to
have been exercised arbitrarily, capriciously or perversely or
where the Court had ignored the settled principles of law
regulating grant or refusal of interlocutory injunctions.
18.4. In nutshell, an appeal against exercise of discretion is
consider to be an appeal on principle. To put it differently,
the Appellate Court cannot reassess the entire evidence so as
to come to its own conclusion substituting the conclusion
arrived at by the trial Court, if two views are possible.
Point No. (i)
19. Now, adverting to the facts, which are narrated hereinabove,
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are not much in dispute. The entire case of the plaintiffs set
out on the basis of an oral A.T.S. alleged to have been
executed by the defendants with the plaintiffs. The plaintiffs
claim to have paid Rs.25,00,000/- as earnest money to the
defendants pursuant to such oral A.T.S. The plaintiffs have
also processed to avail bank loan to pay the sale
consideration.
20. As per the case of the plaintiffs, the negotiations talked
between the parties were duly Audio-taped, which is
submitted before the Trial Court in support of their claim
along with the suit. Nonetheless, such Audio Tape is
subjected to proving its contents and authenticity during the
course of the trial of the suit.
21. As there was dispute raised by the defendants in regards to
its authenticity, the question arose to send it for its forensic
examination and such decision is yet to be taken in the
matter, as it is informed to this Court that the writ
application filed by the defendants challenging the order
passed by the Trial Court in this regard is pending for its
adjudication before this Court.
22. Be that as it may, when the plaintiffs came out with a case of
oral A.T.S., as per the settled legal position of law, heavy
burden lies on the plaintiffs to prove that there was a
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consensus ad idem between the parties for concluded oral
A.T.S. in regards to the suit property. Whether there was
concluded oral A.T.S. between the parties or not will have to
be determined by the Trial Court as per the evidence coming
forth on the record of the suit during the trial.
23. Prima facie, the plaintiffs need to establish the vital and
fundamental terms of the sale of the immovable property
which orally concluded between the parties in the absence of
any written A.T.S. In the case on hand, the defendants denied
the existence of such oral A.T.S., thereby, refuted the claim
of plaintiffs in all respects. The defendants have
unequivocally denied that there was any concluded oral
contract between the parties.
24. It is not clear from bare reading of the plaint that what were
the terms of the payments to be paid by the plaintiffs; the
area of the suit properties is not much clear inasmuch as in
paragraph-4 of the plaint, the plaintiffs referred area of suit
property @ 951 square yards, whereas in paragraph-18, they
referred area of @ 1120 square yards of the bungalow
alleged to have been agreed to sell as per oral A.T.S. i.e. the
suit property.
25. It further appears from bare reading of the plaint that at the
time of the alleged oral A.T.S., the plaintiffs were not having
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sufficient funds to make the balance payment to the
defendants, inasmuch as, according to them, they have to
avail the loan facility which they did it with the help of the
sister of defendant No. 1. Even the loan sanctioned by the
bank was for only Rs.16,75,000/-, whereas the alleged
balance consideration to be paid of Rs.47,00,000/-
(Rs.72,00,000/- − Rs.25,00,000/- = Rs.47,00,000/-). If that be
so, whether the plaintiffs can be said to be ready and willing
to perform their part of the contract is in cloud.
26. At this stage, it is apt to refer and to rely upon the decision of
the Honourable Apex Court in the case of R. Shama Naik
Versus G. Srinivasiah reported in 2024 SCC Online SC 3586 ,
wherein it is held as under,
"10. The law is well settled. The plaintiff is
obliged not only to make specific statement and
averments in the plaint but is also obliged to
adduce necessary oral and documentary evidence
to show the availability of funds to make
payment in terms of the contract in time.
11. There is a fine distinction between
readiness and willingness to perform the
contract. Both the ingredients are necessary
for the relief of specific performance.
12. While readiness means the capacity of the
plaintiff to perform the contract which would
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include his financial position, willingness
relates to the conduct of the plaintiff."
(emphasis supplied)
27. Having considered the facts of the present case and the ratio
laid down in the case of R. Shama Naik (supra), it can be
observed that the plaintiffs were not ready and willing to
perform their part of the agreement i.e. no sufficient means
to pay the sale consideration.
28. In view of the above, when the plaintiffs have, prima facie,
failed to show that they were ready and willing to perform
their part of the contract, the question of granting an
injunction, which is otherwise an equitable relief, is out of
place.
29. Furthermore, in the decisions so relied upon by the learned
Advocates appearing for the respective parties, especially in
the case of Brij Mohan (supra), the Honourable Apex Court
has observed and held thus:
"20. We have given our careful consideration to
the arguments advanced by learned counsel for
the parties and have thoroughly perused the
record. We agree with the contention of the
learned counsel for the appellants to the
extent that there is no requirement of law that
an agreement or contract of sale of immovable
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property should only be in writing. However, in
a case where the plaintiffs come forward to
seek a decree for specific performance of
contract of sale of immovable property on the
basis of an oral agreement alone, heavy burden
lies on the plaintiffs to prove that there was
consensus ad idem between the parties for a
concluded oral agreement for sale of immovable
property. Whether there was such a concluded
oral contract or not would be a question of
fact to be determined in the facts and
circumstances of each individual case. It has
to be established by the plaintiffs that vital
and fundamental terms for sale of immovable
property were concluded between the parties
orally and a written agreement if any to be
executed subsequently would only be a formal
agreement incorporating such terms which had
already been settled and concluded in the oral
agreement.
21. Now we shall examine the facts and
circumstances of the present case in order to
find whether the plaintiffs have been able to
prove that there was a concluded oral agreement
between the parties on May 3, 1979 in order to
seek decree for specific performance of
contract in their favour. Admitted facts of the
case are that the transaction in question
related to a sale of an immovable property for
no less than a sum of Rs 10,00,000 in May 1979.
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May 3, 1979 is the crucial date on which the
oral agreement is alleged to have been
concluded. Admittedly on that date even
earnest/advance money had not been settled. It
was also not settled as to when the
earnest/advance amount and the balance amount
of sale consideration would be paid. It was
also not settled as to when the final sale deed
would be executed and registered. No talk with
regard to any terms of the oral agreement took
place in the presence of the vendor defendant 1
on May 3, 1979. It was also not decided whether
actual possession or only symbolical possession
of the premises in question would be given by
the vendor. No consideration actually passed
even on May 6, 1979 and negotiations failed.
Apart from the above admitted facts of the case
we would consider as to what happened on May 3,
1979. The plaintiffs have alleged in the plaint
that in the third week of April 1979 plaintiffs
1 and 2 along with Shri Ibrahim Moosa and Shri
Arif Ali went to the residence of the defendant
who was insisting on the payment of Rs
10,00,000 as the sale price. At the said
meeting the husband of the defendant was also
present. Plaintiffs 1 and 2 increased their
price from Rs 7,00,000 to Rs 8,00,000.
Defendant 1 said that she would think over and
inform the plaintiffs 1 and 2 through Shri Arif
Ali. On May 3, 1979 plaintiffs 1 and 2 along
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with Shri Ibrahim Moosa met Shri Arif Ali. He
stated that the defendant was agreeable to sell
the plan schedule property to plaintiffs only
for Rs 10,00,000 and not a pie less. Thereupon
the plaintiffs agreed to pay Rs 10,00,000 as the
sale price. Shri Arif Ali after getting the
confirmation of acceptance of the said offer of
plaintiffs 1 and 2 from defendant 1 said that
plaintiffs 1 and 2 should meet the defendants on
May 6, 1979 and that she would in the meanwhile
purchase the stamp papers for making the formal
agreement for sale incorporating the oral
agreement arrived at. Then there is an averment
with regard to the meeting of May 6, 1979
between plaintiffs 1 and 2 along with Shri
Ibrahim Moosa and defendant 1 and her husband
in the presence of Shri Arif Ali. It has been
alleged that in the said meeting of May 6, 1979
the amount of earnest money to be paid, time
for registration of the sale deed etc. were
decided. Now it is an admitted case of the
plaintiffs themselves that negotiations failed
on May 6, 1979 and defendant 1 resiled to sign
any of the receipts nor accepted any
earnest/advance money nor any agreement was
even typed on the stamp papers nor signed by
defendant 1."
(emphasis supplied)
30. In light of the aforesaid decision also, the heavy burden to be
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discharged by the plaintiffs, when come forward with the
case of oral A.T.S.. Unless, all necessary terms of agreement
i.e. Total sale consideration to be paid, Terms of its payment,
Consent of all co-owners obtained by plaintiffs who agreed to
sell the suit property, Time of execution of sale deed, To
deliver possession to plaintiffs etc., prove on record, no
decree for specific performance can be granted in favor of
the plaintiffs.
31. There are so many disputed questions of facts germane in the
matter, which requires to be appreciated and answered by
the Trial Court as per the evidence coming forth on the
record of the suit. The foremost question is as to whether
there was a concluded contract between the parties or not?.
32. Prima facie, considering the pleadings of the parties and after
going through the voluminous documents, which are made
available in the form of paper book submitted for the perusal
of this Court by learned Advocate for the plaintiffs, this Court
is of the view that the plaintiffs failed to prima facie show
that there was any concluded contract in the form of oral
A.T.S. executed between the parties inasmuch as except
payment of Rs. 5,00,000/- each in favour of defendant No. 1,
3 & 4 through cheque, there is no evidence on record to show
that it was paid towards earnest money as per oral A.T.S.
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Even, no cash receipt of Rs. 10,00,000/- obtained by plaintiffs
while making such alleged payment to defendants. Further,
undisputedly, consent of late Madhukantaben i.e. one of co-
owner not obtained by plaintiffs for oral A.T.S.. The title
clearance certificate was not obtained by defendants and as
such so many flaw in such certificate as highlighted by
defendants in their written statement. Even loan was
sanctioned in July, 2005 albeit for Rs. 16,75,000/- but not
actually availed by plaintiffs and offered to pay such amount
to defendants at that time. This would also another reason to
hold that there is no prima facie case in favor of the plaintiffs.
33. Apart from aforesaid, another vital aspect, which was argued
by learned Senior Counsel Mr. Joshi, during the course of his
submissions, that, undisputedly, one of the co-owners of the
suit property, i.e. late Madhukantaben, was neither part of
any negotiations between the plaintiffs and as such in
absence of her agreed to sell her share to the plaintiffs,
thereby, a decree for specific performance cannot be granted
in favor of the plaintiffs as prayed for. It remains undisputed,
having not been pleaded by the plaintiffs in their plaint that
late Madhukantaben, one of the co-owners of the suit
property, also agreed to sell the suit property to the
plaintiffs.
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34. Of course, learned Advocate Mr. Joshi, appearing for the
plaintiffs, would contend that as late Madhukantaben was
residing in a joint family with the defendants, it was made
understood between the parties that she had consented and
agreed to sell her share to the plaintiffs.
35. This would be a lame excused on the part of plaintiffs having
alleged that late Madhukantaben jointly resided with
defendants, her consent obtained by them as informed to
plaintiff. Nonetheless, such allegation completely denied by
defendants, thus, requires to be proved by plaintiffs.
36. This Court would not like to accept such submissions in the
absence of any material particulars available on record in
this regard. As observed hereinabove, a heavy burden lies on
the shoulder of the plaintiffs to discharge about existence of
oral A.T.S., thus, to prove that late Madhukantaben was also
in agreement to sell her share, it needs to be proved by the
plaintiffs.
37. Nevertheless, at this stage, in the absence of anything to
show that one of the co-owners i.e. late Madhukantaben,
agreed to sell her share to the plaintiffs, decree for specific
performance in favour of the plaintiffs cannot be granted as
held by the Honourable Apex Court in the case of Peemmada
Prabhakar (supra). This issue was raised before this Court in
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the case of Mahammadali Mohammadhusen (supra) wherein,
after relying upon the aforesaid decision of the Honourable
Apex Court and so also Janardhan Das (supra), held thus:-
"Effect of Non-Execution of Agreement for sale
by all owners.
16. Learned Advocates appearing for the
defendants have vehemently submitted that the
agreement for sale in question has been entered
into by three co-owners of the suit property
and not by all, whereby no performance of such
an agreement can be sought by the plaintiffs.
Learned senior counsel Mr. Mehul Shah has
placed heavy reliance upon a decision in case
of Peemmada Prabhakar (supra), and thereby
learned senior counsel Mr. Shah would submit
that undisputedly, Gulammohiyuddin M. Afinwala -
deceased and defendant Nos. 1 (wife of
Gulammohiyuddin M. Afinwala) and defendant nos.
4 to 7 are joint owners of the property, and
all of them were not signatories to the
agreement. As per the provisions of Section 17
of the Specific Relief Act, such an agreement is
not enforceable in law.
16.1 To support of his submission, he has
heavily relied upon the decision of Honourable
Apex Court in the case of Peemmada Prabhakar
(supra), which reads as under:
"[29] It is an undisputed fact that the
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suit schedule property is self acquired
property by late Pemmada Venkateswara Rao
as he had purchased the said property vide
Sale-Deed Document No.5174 of 1970 dated
24.11.1970 from his vendors. It is also an
undisputed fact that the said property is
intestate property. He is survived by his
wife, 3 sons and 3 daughters. The said
property devolved upon them in view of
Section 8 of Chapter 2 of the Hindu
Succession Act as the defendants are class
I legal heirs in the suit schedule
property. Undisputedly, the Agreement of
Sale- Ex.-A1 is executed only by defendant
Nos. 1 and 2. The 3rd son, mother and 3
sisters who have got equal shares in the
property have not executed the Agreement
of Sale. In view of the matter, the
Agreement of Sale executed by defendant
Nos. 1 and 2 who have no absolute right to
property in question cannot confer any
right whatsoever upon the plaintiffs for
grant of decree of specific performance of
Agreement of Sale in their favour. The
said agreement is not enforceable in law
in view of Section 17 of the Specific
Relief Act in view of right accrued in
favour of defendant Nos. 3 to 6 under
Section 8 of the Hindu Succession Act. The
provisions of Section 17 of the Specific
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Relief Act in categorical term expressly
state that a Contract to sell or let any
immovable property cannot be specifically
enforced in favour of a vendor or lessor
who does not have absolute title and right
upon the party. It is worthwhile to
extract Section 17 of the Specific Relief
Act,1963 here :-
"17.-Contract to sell or let property by
one who has no title, not specifically
enforceable.- A contract to sell or let
any immovable property cannot be
specifically enforced in favour of a vendor
or lessor;
(a) who, knowing not to have any title to
the property, has contracted to sell or
let the property
(b) who, though he entered into the
contract believing that he had a good
title to the property, cannot at the time
fixed by the parties or by the court for
the completion of the sale or letting,
give the purchaser or lessee a title free
from reasonable doubt."
In view of the aforesaid provisions of the
Specific Relief Act, the Agreement of Sale
entered between the plaintiffs and some of
the co-sharers who do not have the
absolute title to the suit schedule
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property is not enforceable in law. This
aspect of the matter has not been properly
appreciated and considered by both the
First Appellate Court and the Second
Appellate Court. Therefore, the impugned
judgment is vitiated in law.
[30] Even assuming for the sake of
argument that the agreement is valid, the
names of three sons are mentioned in
Agreement of Sale, out of whom the
and 2 and they assured that they would get
the signatures of the 3rd brother namely,
Srinivasa Rao and also the remaining 3
sisters. At the time of execution of this
agreement signatures were not obtained.
Therefore, the agreement is not executed
by all the co-sharers of the property
which fact is evident from the recitals of
the document itself. Hence, the plaintiffs
are not entitled for specific performance
decree. This vital factual and legal
aspect has been ignored by both the First
Appellate Court and the Second Appellate
Court. Therefore, the impugned judgment is
vitiated both on facts and law.
Accordingly, the point No. 1 is answered
in favour of the defendants."
(emphasis supplied)
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16.2 Even in a case of Janardhan Das (supra),
also it has been held as under,
"[17] The plaintiffs were cognizant of the
fact that Defendant Nos. 6 to 8 were not
parties to the agreement and that their
willingness and participation were
necessary for a valid sale. This is
further corroborated by the plaintiffs' own
admissions that they were assured by
Defendant No. 1 and late Soumendra that
the sisters would be brought to execute
the sale deed. Thus, the plaintiffs cannot
had the authority to bind the sisters
without their explicit consent. The
appellants have rightly pointed out that
an agent's authority must be explicit, and
any limitations or revocations thereof
must be given due consideration. In the
absence of a valid and subsisting power of
attorney authorizing Defendant No. 1 to
sell the property on behalf of Defendant
Nos. 6 to 8, the agreement cannot be
enforced against them.
[18] In view of the above, we hold that
Defendant No. 1 lacked the authority to
bind Defendant Nos. 6 to 8 in the
agreement to sell dated 06.06.1993. The
General Power of Attorney did not confer
upon him the power to sell the property on
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behalf of his sisters at the time of the
agreement, having been impliedly revoked
by the partition deed. The agreement was,
therefore, incomplete and unenforceable
against Defendant Nos. 6 to 8, who
collectively held a majority share in the
property. The plaintiffs' knowledge of the
necessity of obtaining the sisters'
consent, coupled with their failure to
secure such consent, renders the agreement
ineffective against Defendant Nos. 6 to 8.
Consequently, the agreement cannot be
specifically enforced against them, and the
plaintiffs cannot claim any right over
their shares in the property based on the
said agreement.
[19] The relief of specific performance
under the Specific Relief Act, 1963, is
discretionary in nature. Section 20 of the
Act (applicable to this case as it
predates the 2018 amendment) explicitly
stated that the court is not bound to
grant such relief merely because it is
lawful to do so. The discretion must be
exercised judiciously and based on sound
principles, ensuring that granting specific
performance is just and equitable in the
circumstances of the case.
[20] In the present case, several factors
weigh against granting specific
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performance. The agreement to sell was
incomplete and unenforceable against
Defendant Nos. 6 to 8, who held a majority
share in the property; enforcing such an
agreement would be inequitable. The
plaintiffs failed to demonstrate readiness
and willingness to perform their
obligations and did not take necessary
steps to secure the consent of all co-
owners. Granting specific performance would
unfairly prejudice the defendants,
especially Defendant Nos. 6 to 8, who
never consented to the sale to the
plaintiffs. Furthermore, the plaintiffs can
be adequately compensated by a refund of
the earnest money with interest; there is
no evidence to suggest that monetary
compensation would not suffice.
[21] Section 20 of the Specific Relief Act,
1963 prior to amendment by Act No. 18 of
2018 which was brought into effect w.e.f.
1.10.2018 categorically provided that the
relief of specific performance is
discretionary in nature and the court is
not bound to grant such relief merely
because it is lawful to do so. But the
discretion Page 24 of 26 of the court has
to be on sound and reasonable principles."
(emphasis supplied)
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16.3 Opposing the aforesaid arguments, learned
senior counsel Mr. Kavina, in his eloquent
style, responded that Section 17 of the Specific
Relief Act is not applicable to the facts of
the present case as the plaintiff is neither a
vendor nor a lessor. Learned Senior Counsel Mr.
Kavina respectfully submitted that the
observations made by the Honourable Apex Court
and answers given to point no. 1 in the case of
Peemmada Prabhakar (supra) by considering
Section 17 of the Specific Relief Act is
complete misreading of such provision and could
not have been applied against plaintiff who was
vendee/lessee. Thus, learned Senior Counsel Mr.
Kavina would submit that the decision of the
Honourable Apex Court in the case of Peemmada
Prabhakar (supra) should not be considered by
this Court as it would not be correct position
of law.
16.4 Learned senior counsel Mr. Kavina, tried
to distinguished the decision of Janardhan Das
(supra), would contend that it is not absolute
proposition that in a case where all co-owners
are not signatory to agreement for sale, such
agreement is non-executable against those are
signatory. He would emphasis upon S. 44 of
Transfer of Property Act read with S. 13 of
Specific Relief Act. According to him, at least
Court can grant partial relief of performance
qua signatory to agreement.
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17. At first glance, the arguments, canvassed by
learned Senior Counsel Mr. Kavina, appear
attractive, but they require rejection due to
the following reasons.
17.1 In Peemmada Prabhakar (supra), after
referring to Section 17 of the Specific Relief
Act, it is clearly held by Honourable Apex
Court that as per Section 17 of the Specific
Relief Act, the agreement of sale entered into
between the plaintiffs and some of the co-
sharers, who do not have absolute title over
the property, is not enforceable in law. At the
time of execution of the agreement, the
signatures of all co-sharers were not obtained;
therefore, the agreement was not executed by
all co-sharers of the property. Hence, it was
held in that case that the plaintiffs are not
entitled to a decree of specific performance.
17.2 When there is a clear pronouncement of law
by the Honourable Apex Court, this Court cannot
take a contrary view. As an obedient soldier,
it is required to follow the decision of the
Apex Court in its true letter and spirit which
is mandate of Article 141 of Constitution of
India.
17.3 The relief claimed in present suit is for
seeking performance of agreement for sale of
entire land which was subject matter of the
agreement and no alternative relief has been
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prayed by plaintiff seeking specific performance
of agreement qua share of executors in suit
land then, in absence of such prayer and having
not relinquishing right to claim performance
qua non-signatory to agreement, it would not be
appropriate for the Court to grant reliefs as
stand today.
17.4 Thus, in view of aforesaid, in the
present case also, where, undisputedly, there
are six co-owners of the suit property and the
agreement for sale was executed and signed by
only three co-sharers, applying the ratio in
the case of Peemmada Prabhakar (supra) and
Janardhan Das (supra) to facts of present case,
the plaintiff is not entitled to a decree of
specific performance as the agreement to sell
was incomplete and unenforceable against
Defendant Nos. 1, 5 & 7 who held a equal share
in the property, enforcing such an agreement
would be inequitable.
17.5 This would be another ground whereby it
can be held that the plaintiff has no prima
facie case."
(emphasis supplied)
38. In light of the aforesaid facts and circumstances of the case
and having applied the ratio of the above-referred decisions
to the case on hand, it can be safely said, at this stage, that in
the absence of any evidence to the contrary on record, no
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decree for specific performance can be granted in favor of
the plaintiffs. This would also be a reason and factor weighed
with this Court, thereby, to hold that no prima facie case has
been made out by the plaintiffs.
39. When the plaintiffs have failed to make out any prima facie
case in their favour, the question of examination of the other
two ingredients i.e. balance of inconvenience and irreparable
loss, pales into insignificance.
40. At this stage, it would be apt to refer to and rely upon the
decision of Hon'ble Apex Court in the case of Kashi Math
Samsthan v. Shrimad Sudhindra Thirtha Swamy reported in
(2010) 1 SCC 689, wherein held, thus:-
"16. It is well settled that in order to obtain
an order of injunction, the party who seeks for
grant of such injunction has to prove that he
has made out a prima facie case to go for
trial, the balance of convenience is also in
his favour and he will suffer irreparable loss
and injury if injunction is not granted. But it
is equally well settled that when a party fails
to prove prima facie case to go for trial,
question of considering the balance of
convenience or irreparable loss and injury to
the party concerned would not be material at
all, that is to say, if that party fails to
prove prima facie case to go for trial, it is
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not open to the court to grant injunction in
his favour even if, he has made out a case of
balance of convenience being in his favour and
would suffer irreparable loss and injury if no
injunction order is granted. Therefore, keeping
this principle in mind, let us now see whether
the appellant has been able to prove prima
facie case to get an order of injunction during
the pendency of the two appeals in the High
Court."
(emphasis supplied)
41. Nonetheless, it is to be noted here that plaintiffs have also
sought for compensation of Rs.3,91,10,400/-, albeit as an
alternative prayer made in the suit. It is also well-settled
legal position of law that if the plaintiffs can be compensated
in terms of money, inasmuch as there is no irreparable loss to
the plaintiffs, the question of granting any injunction in their
favour would not arise.
42. It would be apposite to refer pertinent observations of the
Hon'ble Apex Court in the case of to the observations in the
case of Best Sellers Retail (India) Pvt. Ltd. Vs. Aditya Birla
Nuvo Limited reported in 2012(6) SCC 792 , wherein held
thus:
"14. Yet, the settled principle of law is
that even where prima facie case is in favour
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of the plaintiff, the Court will refuse
temporary injunction if the injury suffered by
the plaintiff on account of refusal of temporary
injunction was not irreparable. In Dalpat Kumar
& Anr. v. Prahlad Singh & Ors. [(1992) 1 SCC
719] this Court held:
"Satisfaction that there is a prima
facie case by itself is not sufficient to
grant injunction. The Court further has to
satisfy that non-interference by the Court
would result in "irreparable injury" to
the party seeking relief and that there is
no other remedy available to the party
except one to grant injunction and he
needs protection from the consequences of
apprehended injury or dispossession.
Irreparable injury, however, does not mean
that there must be no physical possibility
of repairing the injury, but means only
that the injury must be a material one,
namely, one that cannot be adequately
compensated by way of damages."
15. In the present case, the respondent no.1
itself had claimed in the plaint the
alternative relief of damages to the tune of
Rs.20,12,44,398/- if the relief for specific
performance was to be refused by the Court and
break-up of the damages of Rs.20,12,44,398/-
claimed in the plaint was as follows:
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"I. Net Book stock amount on 28.02.2010
is Rs.1,15,97,638/-.
II. Loan amount due as on 27.01.2010 is
Rs.44,81,584/-.
III. Amount due as per Statement of
Accounts as on 28.02.2010 is
Rs.20,65,176/-.
IV. Projected Loss of profit on sales, for
the balance 7 year term of the Agency
Agreement amounts to a sum of
Rs.10,31,00,000/-.
V. Loss of Goodwill, Reputation including
amount spent on advertisement
Rs.2,00,00,000/-.
VI. Loss of amount which Plaintiff would
incur for relocating the store to other
place in the Brigade Road, Bangalore and
to continue its business for rest of the
term 7 years would amount to
Rs.6,00,00,000/- along with simple
interest at the rate of 24% p.a. from the
date of payment till realization as the
same being a commercial transaction."
17. Despite this claim towards damages made by
the respondent no.1 in the plaint, the trial
court has held that if the temporary injunction
as sought for is not granted, Liberty Agencies
may lease or sub-lease the suit schedule
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property or create third party interest over
the same and in such an event, there will be
multiplicity of proceedings and thereby the
respondent no.1 will be put to hardship and
mental agony, which cannot be compensated in
terms of money. Respondent no.1 is a limited
company carrying on the business of readymade
garments and we fail to appreciate what mental
agony and hardship it will suffer except
financial losses. The High Court has similarly
held in the impugned judgment that if the
premises is let out, the respondent no.1 will
be put to hardship and the relief claimed would
be frustrated and, therefore, it is proper to
grant injunction and the trial court has
rightly granted injunction restraining the
partners of Liberty Agencies from alienating,
leasing, sub-leasing or encumbering the
property till the disposal of the suit. The
High Court lost sight of the fact that if the
temporary injunction restraining Liberty
Agencies and its partners from allowing,
leasing, sub-leasing or encumbering the suit
schedule property was not granted, and the
respondent no.1 ultimately succeeded in the
suit, it would be entitled to damages claimed
and proved before the court. In other words,
the respondent no.1 will not suffer irreparable
injury. To quote the words of Alderson, B. in
The Attorney-General vs. Hallett [153 ER 1316:
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(1857) 16 M. & W.569]:
"I take the meaning of irreparable injury
to be that which, if not prevented by
injunction, cannot be afterwards
compensated by any decree which the Court
can pronounce in the result of the cause."
(emphasis supplied)
43. Thus, even if the plaintiffs would be in a position to prove
their case at the end of the trial of the suit, the Court may
compensate them in terms of money instead of granting any
specific performance of the alleged oral A.T.S., as it is settled
that grant of decree of specific performance is a
discretionary relief and such discretion lies with the Court.
As such, plaintiffs cannot be allowed to claim it as a matter of
right, more particularly when, the present case would be
governed by the provisions of the pre-amended Specific
Relief Act, 1963. [See: Katta Sujatha Reddy & Anr. vs.
Siddamsetty Infra Projects Pvt. Ltd. & Ors. reported in
(2023) 1 SCC 355 (48 to 57)]
44. It is also required to be considered by this Court that the
present appeal is filed only on the principle, unlike a regular
appeal filed under both facts and law. There are certain
limitations of this Court while entertaining the present
appeal in favor of the appellant in this case - plaintiffs
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inasmuch as unless the appellants/plaintiffs would show that
the observations/reasons/view taken by the Trial Court while
rejecting their injunction application are either erroneous,
perverse or arbitrary and/or contrary to settled principle of
law, this Court cannot disturb and interfere in the impugned
order passed by the Trial Court merely because another view
is possible to be taken, which non-exist in the present case.
[See - Wonder Ltd. (supra) & Ramakant Ambalal Choksi
(supra)]. Point No. (i) answered accordingly.
Point No. (ii)
45. So far the request was made by learned Advocate Mr. Joshi
for the plaintiffs that the order of status quo operated all
throughout may be continued till disposal of the suit. Such
argument appears to have been accepted at earlier point in
time, when this appeal was disposed of by the Co-ordinate
Bench of this Court as referred herein above. But, having so
observed herein above that despite directions issued by this
Court, the trial was not progressed for any reason and as
such appeal/stay application were restored back on its
original file to be heard and ordered to be decided on its
merits. In that view of the matter, when the plaintiffs failed to
prove any prima facie case, and can be compensated in terms
of money as aforesaid, it would not be appropriate for this
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Court to continue such order of status quo anymore.
46. At the same time, when the defendants have been restrained
to deal with the suit property for these much years, even if
this Court lifts the order of status quo when going to dismiss
this appeal, the defendants are require to put to certain
terms, whereby, future multiplicity of proceedings can be
minimized to some extent, if any, so arises.
47. Thus, the defendants are hereby directed to disclose the
name/address of the transferee pendente lite on the record of
the aforesaid suit, in a case where they would sell the suit
property to any third party. In such situation, it will open for
the plaintiffs to join the transferee pendente lite, if so
advised.
48. Likewise, it is always open for the plaintiffs to register "lis
pendens" with concern registrar if so far not registered as its
necessary to be registered so far as State of Gujarat is
concern. [See- S. 52 of Transfer of Property Act (State
Amendment Act No. IV of 1882 for Gujarat State and
Maharashtra)]. Point No. (ii) answered accordingly.
49. Before parting with, it is made clear that the Trial Court is
required to decide the lis between the parties as per the
evidence coming on record of the suit and requires to
adjudicate all issues germane in the suit in accordance with
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law, without being influenced by any of the observations so
made by this Court hereinabove which are tentative and
made as per materials placed on record.
50. Having so observed herein above, thus, the upshot of the
aforesaid discussions and reasons would lead to only one
conclusion that the plaintiffs have egregiously failed to prove
any prima facie case, thereby, no error can be found in the
impugned order in any respect whatsoever.
CONCLUSION
51. Having not found any substance in the appeal filed by the
original plaintiffs against refusal of grant of injunction, for
the foregoing reasons, the appeal is found lacking in the
merit and requires to be dismissed, which is hereby
dismissed. Consequently, the impugned order dated 11th
December 2006, passed by the Principal Senior Civil Judge,
Ahmedabad (Rural), Mirzapur, below Exhibit 5 in Specific
Civil Suit No. 187 of 2006, is hereby confirmed.
52. In view of the aforesaid, the request of the plaintiffs to
continue the status quo so far continue cannot be accepted
and requires to be rejected, which is hereby rejected.
Accordingly, status-quo granted earlier in the matter stands
vacated.
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53. The appeal from order is dismissed. As a sequel, the Civil
Application for Stay is also dismissed. No orders as to costs.
54. At this stage, learned Advocate Mr. Premal Joshi for the
appellants-plaintiffs would request this Court to suspend this
order for some time as the appellants-plaintiffs desire to
challenge it before the Honourable Apex Court. Such request
is strongly opposed by learned Senior Counsel Mr. Mihir
Joshi appearing for the respondents.
55. Having considered the fact that the order of status quo was
operating all throughout since 2006 till date, in light of the
aforesaid peculiar facts and circumstances of the case, this
Court can at least accept such prayer made by the
appellants/plaintiffs. Thus, the effect of this order is hereby
suspended till 15th October 2025. Till such time, the
defendants are hereby directed to maintain status quo in all
respects in relation to the suit property.
(MAULIK J.SHELAT,J)
Nilesh
