Gujarat High Court
Dineshkumar Mohanlal Thakkar vs Hemant Rajnikant Shah on 15 September, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 222 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/APPEAL FROM ORDER NO. 222 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT Sd/-
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Approved for Reporting Yes No
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DINESHKUMAR MOHANLAL THAKKAR & ORS.
Versus
HEMANT RAJNIKANT SHAH & ORS.
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Appearance:
MR KIRTIDEV R DAVE(3267) for the Appellant(s) No. 1,2,3
MR RAHUL K DAVE(3978) for the Appellant(s) No. 1,2,3
MR.D K.PUJ(3836) for the Respondent(s) No. 1,2.1,2.2
NOTICE UNSERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 15/09/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr.D.K.Puj
waives service of notice of rule on behalf of the respondents.
2. Heard learned advocate Mr. Kirtidev R. Dave for the
appellants and learned advocate Mr.D.K.Puj appearing for the
respondents.
3. With the consent of learned advocates appearing for the
respective parties, the matter is taken up for final hearing.
4. The present application is filed under Article 227 of the
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Constitution of India seeking the following relief:-
"a. Your Lordships be pleased to admit this appeal.
b. Your Lordships be pleased to allow the appeal from order
holding that common order below exh. 5 and 19 by the Ld. Adnl.
Senior Civil Judge, Anjar-Kachchh Dt. 06-09-2024 in Special Civil
Suit No. 8 of 2022 Annexure B is bad in law and it be quashed and
set aside. Your Lordships be further pleased to allow the
application for interim injunction by the appellants exh. 5.
c. Your Lordships be pleased to grant any other relief/s, as may be
deemed fit and necessary for the disposal of the matter."
THE BRIEF FACTS OF THE CASE
4.1. The appellants are the original plaintiffs, whereas the
respondents herein are the original defendants. The plaintiffs
claim to be the original owner of the suit land situated at
village Meghpar Borichi, Taluka Anjar, District Kachcha, at
Revenue Survey No. 51/2, admeasuring 1-43-66 hectare.
4.2. One agreement to Sell (hereinafter referred to as ATS)
was executed between the plaintiffs and defendant No.1 on
31.07.2021 for the suit land for a sum of Rs.2,96,46,050/-,
thereby, it appears that the plaintiffs sold the suit land in
favor of defendant No. 2 by way of a registered sale deed on
09.02.2022 for a sum of Rs.85,26,000/-, which was duly
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received by the plaintiffs.
4.3. Nonetheless, the plaintiffs filed the suit claiming
various reliefs, inasmuch as it was prayed that he has not been
fully paid and received the entire sale consideration from the
defendants, and as on the date of filing of the suit, around
Rs.1,00,00,000 is still due and payable.
4.4. Thus, in view of the aforesaid facts, the suit for
declaration and cancellation of the sale deed/ ATS is filed.
4.5. The defendants have appeared in the suit, and more
particularly, defendant No.1 has submitted proof of payment of
Rs.50,00,000/- and 25,00,000/- on 08.04.2022 and 06.06.2022
respectively to the plaintiffs.
4.6. Such payment is accepted to have been received by
the plaintiffs, and to that effect, the plaintiffs gave a
declaration before the Trial Court on the 23.01.2023 below
Exhibit 26. It appears that such fact was not disclosed in the
plaint. So, only Rs.25,00,000/- is alleged to have remained
unpaid and could have been received by the plaintiffs.
4.7. Be that as it may, after hearing the parties, the Trial
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Court, vide its impugned order dated 06.09.2024, rejected the
injunction application filed by the plaintiffs. Hence, the present
appeal.
SUBMISSION OF THE PETITIONERS - ORIGINAL PLAINTIFFS
5. Learned advocate Mr. Dave would submit that the
plaintiffs, being the original owners of the suit land, having
not been compensated fully by the defendants at the time of
execution of the sale of the suit land, the interest of the
plaintiffs ought to have been protected by the Trial Court by
granting an injunction as prayed for.
5.1. Learned advocate Mr. Dave would further submit that
if the defendants are not prohibited to deal with the suit land,
a third-party right will be created, which will ultimately create
multiplicity of proceedings.
5.2. Learned advocate Mr. Dave would further submit that
when the saller remains unpaid, as per the provisions of the
Transfer of Property Act, 1881, a statutory charge is created
on the suit land, which is the subject matter of the agreement
between the parties, thereby, until such payment made by the
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buyer, the right of the plaintiffs requires to be protected by
the court.
5.3. Making the above submission, learned advocate Mr.
Dave would request this court to entertain the appeal.
SUBMISSION OF THE RESPONDENTS - ORIGINAL
DEFENDANTS
6. Per contra, learned advocate Mr. Puj would submit that
there is no merit in the present appeal, inasmuch as the
plaintiffs have not disclosed true and correct facts, which were
filed before the Trial Court.
6.1. It is submitted that defendant No.1 has already made
payment of Rs.75,00,000/- on 08.04.2022 and 06.06.2022
respectively to the plaintiffs against his claim of
Rs.1,00,00,000/-. It is submitted that when the plaintiffs claim
equitable relief, have to come with clean hands and is not
required to suppress any material facts from the Trial Court.
6.2. Learned advocate Mr. Puj would submit that as per
the sale deed, the entire sale consideration has been paid to
the plaintiffs, and once, there is a registered sale deed
executed by the plaintiffs, as per Section 55 of the Transfer of
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Property Act, 1881 (hereinafter referred to as "the Act, 1881"),
the title stands transferred in favor of the buyer, i.e.,
defendant No.2 herein.
6.3. It is submitted that once the plaintiffs, being the
erstwhile owner, no injunction can be granted in favor of the
plaintiffs as the so-called unpaid seller as alleged.
6.4. Learned advocate Mr. Puj would further submit that
an agreement to sell would not create any interest per se in
favor of the party, as can be confirmed from bare reading of
Section 55 of the Act, 1881.
6.5. It is respectfully submitted that as per the sale deed,
when a seller agrees to sell the suit land for a particular price,
and the buyer agrees to pay such price, upon making such
payment and registration of a sale deed, there would be a
concluded contract between the parties, and accordingly, they
are bound by such terms of the concluded contract and not
otherwise.
6.6. Making the above submission, learned advocate Mr.
Puj would request this court to dismiss the appeal.
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7. Having heard the learned advocates appearing for the
respective parties at length and perused the documents which
are made available to this Court by the respective learned
advocates, which are part of the record of the suit. No other
and further submissions are made.
POINT FOR DETERMINATION
8. The short question for my consideration is as to
whether, in the facts and circumstances of the case, the order
impugned in the appeal is either erroneous, perverse, or
contrary to the settled legal position of law?
ANALYSIS
9. At the outset, it is required to observe that the present
appeal is filed under Order 43 Rule 1 of the Civil Procedure
Code, 1908 (hereinafter referred to as "CPC"), which is based
on principle and not on facts. The scope and ambit of
interference by this court when it exercises its appellate power
under Order 43 Rule 1 of CPC is well-defined, which can be
drawn from the decisions i.e., first, I would like to refer the
decision of the Hon'ble Apex Court in the case of (I) Wonder
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Ltd. And another vs. Antox India Pvt. Ltd., reported in 1990
Supp1 SCC 727, the Hon'ble Supreme Court in para-9 of the
said decision, after considering the scope of Order 43 Rule 1
(r) of the Code 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 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)
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10. Recently, also in the case of Ramakant Ambalal Choksi
V/s Harish Ambalal Choksi, 2024 SCCOnline SC 3538, Hon'ble
Apex Court again reiterated aforesaid principle, albeit with
explaining what amounts to perversity in order having so
observed as under which reads 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 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
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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 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."
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.
(emphasis supplied)
11. The facts, which are narrated hereinabove, are not in
dispute. Now, keeping in mind the ratio of the decision of the
Hon'ble Supreme Court, if I analyze the submissions canvassed
by learned advocate Mr. Dave, prima facie, it appears that the
plaintiffs were the original owners of the suit land and agreed
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to sell the suit land for Rs.2,96,46,050/- by execution of an
Agreement to Sell (ATS) with defendant No.1.
12. For any reason, ultimately, the plaintiffs, being the
sellers, agreed to sell the suit land for Rs.85,26,000/- by way
of a registered sale deed as executed with defendant No.2.
13. It remains undisputed that such sale consideration was
duly received by the plaintiffs from defendant No.2 when the
registered sale deed was executed between the parties on
09.02.2022.
14. It has also come on record that defendant No.1 has also
paid a sum of Rs.50,00,000/- + 25,00,000/- on 08.04.2022 and
06.06.2022 respectively to the plaintiffs. Those payments are
subsequent to the execution of the sale deed. Even such fact,
though not disclosed by the plaintiffs, which ought to have
been disclosed, was accepted by the plaintiffs when confronted
by defendant No.1, having disclosed it before the Trial Court.
15. When any party seeks any equitable relief and
discretionary relief from the Court, it is expected that the
party to come with clean hands and is not required to
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suppress any material fact.
16. As such, the suit is filed by the alleged unpaid seller to
recover the balance sale consideration, that is,
Rs.1,00,00,000/-. As such, in view of the aforesaid, having
received Rs.75,00,000/-, which is now admitted by the
plaintiffs, the only amount remaining to be paid would be
Rs.25,00,000/-, if the plaintiffs, ultimately, establishes such
amount as being part of the total sale consideration.
17. At this stage, it will also be required to take note of the
fact that as per Section 55 (4) (B) of the Act, 1881, any
amount shown in the agreement to sell would not be
considered as a purchase money. Section 54 of the Act, 1881,
itself suggests that mere execution of an agreement to sell
would not create any interest and charge on such property.
18. This Court had an occasion to decide such aspect vis-a-
vis purchase money so referred in Section 55 (4)(B) of the Act,
1881, and held that any amount which is mentioned in an
agreement to sell would not be considered as purchase money.
(See SPECIAL CIVIL APPLICATION NO. 4595 of 2024 decided
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on 12.08.2025).
19. Lastly, it remains undisputed that there is a valid
execution of registered sale deed by the plaintiffs in favor of
defendant No.2, having received the sale consideration as
disclosed in such sale deed. So, as per Section 55 of the Act,
1881, the moment there is a registration of a sale deed, the
title would automatically transfer in favor of the buyer, i.e.,
defendant No.2 herein.
20. In view of the above, this Court is not impressed by any
of the submissions made by learned advocate Mr.Dave
appearing for the appellants.
21. In light of the aforesaid facts and circumstances of the
case, and keeping in mind the scope of interference by this
court while exercising its appellate power under Order 43 of
CPC as defined in the aforementioned decision of the Hon'ble
Supreme Court, having not found any perversity in the order,
it would not be appropriate to interfere with the order
impugned in the appeal.
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22. Before parting with the judgment, it is made clear that
the Trial Court out not to be influenced by this order and has
to decide the suit on its own merits as per the evidence
coming forth on record.
CONCLUSION
23. In light of the aforesaid facts and the position of law,
having not found any merits in the appeal, it requires to be
dismissed and is hereby DISMISSED. No order as to costs. The
civil application would not survive and is accordingly disposed
of. Rule is discharged.
Sd/-
(MAULIK J.SHELAT,J)
MOHD MONIS
