Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Guj) 601

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
B.N. KARIA, J.
LHRS OF DECD. GAUTAMBHAI KUBERBHAI PATEL (KALAL) - Appellant
Versus
LHRS OF DECD. NATHIBEN D/O SUKAJI MOTIJI KALAL AND WD/O MOTILAL MADHAVJI KALAL - Respondent
SPECIAL CIVIL APPLICATION NO. 11604 of 2021
With
SPECIAL CIVIL APPLICATION NO. 11606 of 2021
Decided On : 06-10-2021

Advocates Appeared:
For The Appellant : MR MRUGEN K PUROHIT
For The Respondent: MR YH VYAS

Point of Law: A judicial decision containing the principle, which forms an authoritative element termed as ratio decidendli. An interim order which does not finally and conclusively decide an issue which cannot be a precedent.

Headnote:
Constitution of India,1950 – Article 227 – Civil Procedure Code,1908 – order 39 and Rule 1 and 2 - Registered sale deed- Agreement to sale - Regular Civil Suit was filed by respondent against petitioners and respondent for declaration and permanent injunction wherein plaintiff has challenged registered sale deed executed in favor of present petitioner by the power of attorney holder - Respondent original plaintiff also filed Regular Civil Suit before learned Civil Court for declaration and permanent injunction and challenged power of attorney alleged to have been executed by plaintiff in favor of defendant in suit - Said suit was contested by defendant by filing written statement - Whether subordinate court or Tribunal has proceeded within its parameters and not to correct an error apparent on face of record, much less, an error of law.
Finding of the Court :
Considering issue involved in Regular Civil Appeal preferred by the present petitioners as well as issue of power of attorney executed by defendant in favor of defendant and agreement to sale executed in favor of present petitioners, status quo granted by learned Additional District judge, in Civil Appeal From Order which was continued till final disposal of Regular Civil Suit vide judgment and decree passed this Court is of considered view that there would be no prejudice or any injustice likely to be caused to respondent, if status quo granted as prayed for by petitioners would cause any injustice to respondents.
Result: Petitions are hereby allowed

JUDGMENT :

1. Rule returnable forthwith. Learned advocate Mr. Y.H. Vyas waives service of notice of rule for and on behalf of respective respondent.

2. As the common question and facts are involved in both petitions, joint request was made by learned advocates appearing from the respective parties to decide both the petitions by passing common order.

3. The petitioners in Special Civil Application No.11604 of 2021 have challenged the order dated 17.07.2021 passed below Exh.6 and 14 in Regular Civil Appeal No.4 of 2021 and petitioners in Special Civil Application No.11606 of 2021 have challenged the order dated 17.07.2021 passed below Exh.7 and Exh.15 in Regular Civil Appeal No.5 of 2021 by learned Additional District Judge, Sabarkantha (Idar).

4. Short facts of the present case may be referred as under:

Regular Civil Suit No.11 of 2009 was filed by the respondent No.1 against the petitioners and respondent No.2 for declaration and permanent injunction wherein the plaintiff has challenged registered sale deed dated 10.07.2006 executed in favour of the present petitioner and Shri Mushbhai Kala by the power of attorney holder on 24.01.2007. Respondent No.1, original plaintiff also filed Regular Civil Suit No.59 of 2009 before the learned Civil Court at Idar for declaration and permanent injunction and challenged the power of attorney dated 10.07.2006 alleged to have been executed by the plaintiff in favour of the defendant in the suit. The said suit was contested by the defendant by filing the written statement. Both the suits were consolidated by the trial court and issues were framed vide Exh.29. Interim injunction application, Exh.5 filed in Regular Civil Suit No.59 of 2009 was rejected by the trial court. In Regular Civil Suit No.11 of 2009, application below Exh.5 as well as application Exh.12 were filed for injunction, which were also rejected by the trial court vide its judgment and order dated 20.10.2009. Against the said order, Appeal From Order No.67 of 2009 was preferred before the learned Principal District Judge, Sabarkantha by the original plaintiff, in which vide judgment and order dated 14.12.2010, order of status quo was passed. As both the suits being No.59 of 2009 and No.11 of 2009 were consolidated, common evidence was led by the parties and after hearing the parties, learned Principal Civil Judge, Vijaynagar, vide judgment and order dated 24.03.2021, was pleased to allow both these suits. Present petitioners, being aggrieved with the judgment and order dated 24.03.2021 in both the suits, preferred Regular Civil Appeal Nos.4/ 2021 and 5/ 2021 before the District Court, Sabarkantha. They also filed one application below Exh. 6 and 14 for injunction in Regular Civil Appeal No.4 of 2021. They also filed two applications and Exh.7 and 15 in Regular Civil Appeal No.5 of 2021. Learned Additional District Judge, after hearing the parties, was pleased to reject the injunction application filed by the petitioners below Exh.7 and 15 in Regular Civil Appeal No.5 of 2021. The applications Exh. 6 and 14 preferred by the petitioner in Regular Civil Appeal No.4 of 2021 was also rejected vide order dated 17.07.2021. Hence, present petition preferred by the petitioners.

5. Heard learned advocate for the petitioners and learned advocate for the respondents.

6. It was submitted by learned advocate for the petitioners that refusal of granting injunction as prayed by the petitioners by the court below is contrary to facts and law. That impugned orders passed by the learned Additional District Judge at Idar below Exh.6 and Exh.14 in Regular Civil Application No.4 of 2021 as well as below Exh.7 and 15 in Regular Civil Appeal No.5 of 2021 are erroneous and illegal. It was further submitted that in Regular Civil Suit No.59 of 2009 preferred by the respondent against present petitioners before the District Court at Himmatnagar, DistSabarkantha, the First Appellate Court has observed that present petitioners are the bona fide purchaser of the

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