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2018 Supreme(Guj) 58
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SONIA GOKANI, J.
BHARATKUMAR SHANKARLAL SOMANI - Appellant
Versus
HARMANBHAI RAISANGBHAI & Ors. - Respondent
APPEAL FROM ORDER NO. 297 of 2010
Decided On : 11-01-2018
For the Appellant :MR SHITAL R PATEL, ADVOCATE.
For the Respondent:MR P P MAJMUDAR, MR PRATIK Y JASANI, MR SP MAJMUDAR, ADVOCATES.
Headnote:
Civil Law – Civil Suit – Suit for specific performance of contract – Cancellation of sale deed – Seeking interim relief – Challenges the order passed by learned 2nd Additional Senior Civil Judge in Special Civil Suit below Exh.5, where the Court allowed the application preferred by respondent No.1plaintiff – Case of respondent No.1 plaintiff that an agreement to sell came to be executed in his favour in respect of the land – In pursuance of the said agreement to sell, the present respondent No.1 has paid an amount of Rs.2,30,000/-in cash to respondent No.2 and respondent No.3 – The said agreement to sale is a notarized document and executed in favour of respondent No.1 The said agreement to sell is also registered in the office of the Registrar of Notaries – Held, Court below ought to have regarded the question of preferring the suit belatedly. Indisputably, the suit has been preferred after 7 years. No reason is putforth for such a delay, if there are other two suits preferred against both respondents No.2 and 3 and if the High Court also had found some substance in the say of these persons, that ipso facto would not validate the case of the plaintiff-respondent No.1. The appellant had purchased the property assuming that he was in knowledge of the agreement to sell, which was effected in favour of respondent No.1, although there are no such details available to fall back upon, he has the right, title or interest in respect of the suit property under the law, which would have far more weight age and the trial Court ought to have recorded the fact that for long 7 years the persons, who has not been vigilant towards their own right, approached the Court of equity and had chosen to put forward the right of interim relief. Even if there was a prima facie case, the balance of convenience tilted in favour of the present petitioner original defendant No.3, who had got the registered sale deed in his favour. The possession also was handed over by the original owner pursuant to the said registered sale deed. It is to be noticed that so far as earlier litigation i.e. Special Civil suit No.858 of 2001 is concerned, it was by the legal heir of deceased Ashok Patel where respondent No.3 was a party and the Court terminated the order of maintenance of status quo. Respondent No.3 preferred Appeal from Order, which was transferred to the Court having jurisdiction i.e. the District Court and the appellant purchased the said land and the legal heirs of the deceased Ashok Patel waived their rights in favour of the present appellant – Order of interim relief granted by the trial Court is quashed and set aside – Appeal allowed. (Paras 12 and 13)
1. Appellant is original defendant No.3, whereas respondent No.1 is original plaintiff and respondents No.2 and 3 are original defendants No.1 and 2.
2. The appellant challenges the order dated 21.8.2010 passed by learned 2nd Additional Senior Civil Judge, Vadodara in Special Civil Suit No.202 of 2008 below Exh.5, where the Court allowed the application preferred by respondent No.1plaintiff.
3. Facts in a capsulized form leading to filing of the present Appeal From Order are as follows:
3.1 It is the case of respondent No.1 plaintiff that an agreement to sell came to be executed in his favour in respect of the land bearing Revenue Survey No.205 at village: Tandalja, Taluka Vadodara at Rs.15 per sq.feet. In pursuance of the said agreement to sell, the present respondent No.1 has paid an amount of Rs.2,30,000/-in cash to respondent No.2 Mahidaben Mustakbhai Patel and respondent No.3 Page Mustak Alibhai Patel. The said agreement to sale is a notarized document and executed in favour of respondent No.1 The said agreement to sell is also registered in the office of the Registrar of Notaries vide Serial No.9514.
3.2 Based on this document, respondent No.1 preferred a suit for specific performance of contract and for cancellation of sale deed executed in favour of the appellant (original defendant No.3) on 27.12.2006. It is the case of the appellant that another Special Civil Suit No.858 of 2001 was preferred by the legal heirs of deceased Ashokbhai Manubhai Patel, wherein also respondent No.3 was one of the party defendants and in the said matter, the Court directed maintenance of status quo.
3.3 Respondent NO.3 preferred Appeal from Order No.422 of 2003 along with Civil Application No.8196 of 2003. The said Appeal from Order came to be transferred to the appropriate Court having jurisdiction vide an order passed on dated 19.7.2005. After the said appeal was transferred to the District Court, the appellant purchased the said land by registered sale deed dated 27.12.2006. The right was also waived by legal heirs of the deceased Ashokbhai Manubhai Patel by executing document on 23.2.2007 in favour of the appellant.
3.4 After the appellant enjoyed the property for one year, another Special Civil Suit No.20 of 2007 was filed by one Mr.Jayesh K. Patel and against respondent No.3 and the present appellant. Interim injunction application Exh.5 was rejected on 21.4.2007.
3.5 Being aggrieved by the said order, Mr. Jayesh Patel filed Appeal From Order No.174 of 2007 before this Court and this Court vide order dated 7.5.2007 rejected the Appeal from Order and confirmed the order of dismissal of injunction passed below interim injunction application at Exh.5. It is lamented by the appellant that all aspects were brought to the knowledge of the learned Presiding Officer. The aspect of delay in preferring the suit also was harped upon as agreement to sell was executed in the year 2001. The suit came to be preferred only in the year 2008, almost after a delay of 7 years. The impugned order dated 21.8.2010 allowed the interim injunction application below Exh.5 which is being challenged by this Appeal from Order. The request is made to quash and set aside the order passed below Exh.5.
4. This Court has heard learned advocate Mr. Shital Patel for the appellant, who has fervently argued before this Court that the learned Presiding Officer has not given any reason, much less any cogent reason for considering the basic ingredients being a prima facie, case to balance of convenience and irreparable loss for grant of interim injunction. He sought to rely upon the decision of the Apex Court in the case of Kishoresing Ratansing Jadeja vs. Maruti Corporation and others in Civil Appeal Nos.2186-2187 OF 2009.
4.1 He further argued that there is delay of 7 years in preferring the suit. This aspect is disregarded by the Court and that itself has brought illegality to the order. Equitable relief again, cannot be granted when person has been indolent, for which h
