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Gujarat High Court
Judgename :J.R.Vora
GANESH COOPERATIVE HOUSING SOCIETY LIMITED - Appellant
Versus
ISHWARBHAI KESHAVBHAI PATEL - Respondent
C.A. 9911 of 2000
Decided On : 08/14/2001
The scope of this appeal, as said above, is limited only to the order impugned below an application for the temporary injunction, and to that extent only Sec. 146 of the Civil Procedure Code is applicable, but beyond that the appellate Court in Appeal From Order cannot exercise the powers, which the appellate Court could exercise in pursuance of Sec. 146 of the Civil Procedure Code in a regular appeal from the decree because that appeal would be continuation of the suit. While in case of Appeal From Order, the appellate Court will have to examine only one miscellaneous order passed by the trial Court and that Appeal From Order could not be said by any stretch of reasoning that the same in contunuation of the suit so as to exercise all powers of the trial Court by the appellate Court similar to the powers to be exercised in regular appeal because in Appeal From Order the decision of a suit as a whole is not placed and the suit is undoubtedly pending with the Trial Court and only a miscellaneous order is examined by the appellate Court.
(b) Civil Procedure Code, 1908 (Central Act 5 of 1908) - Order 22 Rule 10 and Order 39 Rules 1 & 2 - Application to implead parties in appeal from order made on application filed under Order 39 Rules 1 & 2 - Scope of - Such application can be allowed because parties who were not joined in suit would be prejudiced and multiplicity of proceeding would start - This is so because there is no order which can be examined by the appellate Court against such proposed party and secondly unless and until final relief is claimed against any party in the suit no interim relief can be asked for.
Unless and until a party is not a party in a suit, cannot be joined as party in Appeal From Order even the appellate Court cannot exercise the power of the trial Court under Sec. 146 of the Civil Procedure Code while dealing with the Appeals From Order beyond the scope of order which is under challenge. This is so because there is no order which can be examined by the appellate Court against such proposed party and Secondly unless and until final relief is claimed against any party in the suit, no interim relief can be asked for. In fact, there is no order at all of the trial Court as between the original plaintiffs appellants and this proposed parties, which can be examined by the appellate Court in these Appeals From Orders
( 1 ) APPEAL From Order No. 291 of 2000 has been filed by the present appellants being aggrieved by the judgment and order dated 27th of July, 2000 rejecting the appellants application Exh. 5 for temporary injunction in Spl. Civil Suit No. 184 of 1999 by the Court of Civil Judge (SD), Surat. Present appellants were the plaintiffs and suit was filed for specific performance of the contract and for declaration and for the permanent injunction. While Appeal From Order No. 292 of 2000 is filed by the appellants being aggrieved by the judgment and order dated 21st of July, 2000 rejecting the Appellants application Exh. 5 for temporary injunction in Spl. Civil Suit No. 183 of 1999 by the Court of Civil Judge (SD) at Surat. The said suit also was filed for declaration and injunction and for the specific performance of the contract. In both the Appeals From Orders, present appellants were the plaintiffs and present respondents were the defendants in the above said suit. In Spl. Civil Suit No. 184 of 1999 the subject matter of the suit is a property situated at Village Umra in Taluka - Choryasi, Sub-district and District Surat, bearing Survey No. out of 155 and out of 156 and T. P. Scheme No. 4 (Umra south) Final plot No. 136 which is admeasuring 5261 sq. meters. While in Spl. Civil Suit No. 183 of 1999, the subject matter of the suit i. e. suit property is a land situated at Village Umra, Taluka - Choryasi, Sub-district and District Surat, out of Survey No. 159, T. P. Scheme No. 4 (Umra South), Final Plot No. 141, admeasuring about 13282 sq. meters. In Spl. Civil Suit No. 184 of 1999, it is alleged that the defendants No. 1 and 2 had entered into an agreement dated 27. 6. 1996 for sale of the suit property with the plaintiffs and said agreement was registered on 7th November, 1996. While in Spl. Civil Suit No. 183 of 1999, defendant No. 1 had entered into an agreement with the plaintiffs on 27th July, 1996 to sell the above land and the agreement was registered on 7th of November, 1996.
( 2 ) IN the above said both the Appeals, Applications i. e. Civil Application No. 9914 of 2000 and Civil Application No. 10481 of 2000 in C. A. No. 9914 of 2000 and Civil Application No. 9911 of 2000 and Civil Application No. 10482 of 2000 in C. A. No. 9911 of 2000 are filed for joining parties in the main Appeals From Orders and Civil Applications filed for the interim injunction.
( 3 ) IN Civil Application No. 9914 of 2000 and Civil Application No. 10481 of 2000 which are filed in Appeal From Order No. 292 of 2000, it is urged that the Opponent No. 1 i. e. original respondent No. 1 in collusion with opponents No. 3 to 19 set up a case that Opponents No. 3 to 19 had entered into an agreement dated 27th May, 1992 with respondent No. 1 and he agreed to sell the suit land to the Opponents No. 3 to 19 at the rate of Rs. 251. 00 per sq. yard. On 24th April, 1997, opponents No. 3 to 18 of this Application filed a suit being Spl. Civil Suit No. 159 of 1997 in the Court of Civil Judge (SD), Surat against opponent No. 1 i. e. original respondent No. 1 and against the father of the opponent No. 1 Ishwarbhai Keshavbhai Patel and one Swethal Ratilal, son of opponent No. 1 for specific performance of the agreement dated 27th May, 1992. In the above said Civil Suit No. 159 of 1997, parties obtained collusive decree on 26th May, 1997. Under the said decree, it was provided that opponents No. 1 and 20 i. e. Ishwarbhai Keshavbhai Patel, father of opponent No. 1 and the said Swetal Ratilal had to sell the suit land to the opponents No. 3 to 18 at a price of Rs. 301. 00 per. sq. yd. i. e. for a total consideration Rs. 66,75,277. 00. The decree also provided that on the date of the decree, opponents No. 3 to 18 herein had already paid Rs. 32,01,000. 00 in cash and that the possession of the land was given to opponents No. 3 to 18 by the plaintiffs of that suit. In the said suit, opponents No. 1 herein falsely alleged that by an agreement Mark 23/13 dated 2
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