Harish Ambalal Choksi vs Narendra Ambalal Choksi

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Guj) 1534

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
HEMANT M. PRACHCHHAK, J.
Harish Ambalal Choksi – Appellant
Versus
Narendra Ambalal Choksi – Respondent
R/Appeal From Order No. 86 of 2022 with Civil Application (For Stay) No. 1 of 2022
Decided On : 08-12-2022

Advocates Appeared:
For the Appellant : Mr. M.G. Nagarkar.
For the Respondent: Deceased Litigant, Mr. Hasit Dave.

Headnote:
Civil Procedure Code, 1908 – Order XLIII Rule 1 – Section 104, 151 – Evidence Act, 1872 – Power of Attorney – Being aggrieved and dissatisfied by order passed by learned 2nd Additional Senior Civil Judge, below Exhibit 5 in Special Civil Suit appellants have preferred present appeal under Order XLIII Rule 1 read with Section 104 of Civil Procedure Code, 1908 – Held, It also appears that in earlier round of litigation, original plaintiffs reached upto Hon’ble Supreme Court as they are running business and earning income from business – That though appellants are now out of business and having crunch of money, original plaintiffs are trying to see that appellants surrender to original plaintiffs and even surrender their source of income to original plaintiffs – Plethora of evidence which is produced before this Court, is never produced before Trial Court and while granting interim relief in favour of original plaintiffs, Trial Court has no occasioned to deal with such documentary evidence which is produced before this Court – In 2012, business in name and style of “Narayan Jewellery” was closed, however, plaintiffs have produced certificate of chartered accountant wherein amount disputed in question is shown as goods in transit – So all these facts are required to be decided by leading cogent, convincing and sufficient evidence before Trial Court and, therefore, at this stage, impugned order passed by Trial Court is absolutely erroneous and against principles of law – Considering aforesaid facts, Court of opinion that present appeal deserves to be allowed and impugned order deserves to be quashed and set aside – Order allowed.

JUDGMENT :

1. Being aggrieved and dissatisfied by the order dated 10.01.2022 passed by the learned 2nd Additional Senior Civil Judge, Vadodara (hereinafter be referred to as “the Trial Court”) below Exhibit 5 in Special Civil Suit No. 54 of 2019, the appellants have preferred the present appeal under Order XLIII Rule 1 read with Section 104 of the Civil Procedure Code, 1908.

2. Brief facts of the present case are in nutshell as under:-

2.1 The original plaintiffs filed present suit being Special Civil Suit No.54 of 2019 for declaration, cancellation of registered sale deed bearing No. 2863 dated 23.03.2018 and permanent injunction against original defendants before Civil Court (Senior Division) at Vadodara and prayed for various reliefs in suit along with injunction application below Exhibit 5 under order 39 Rule-1 and 2 read with Section 151 of Civil Procedure Code.

2.2 It is the case of original plaintiffs that plaintiffs No.1 to 3 are real brothers and plaintiffs No.4 to 6 are the respective wives of original plaintiffs No.1 to 3, original defendant No.1 is the real brother of original plaintiffs No.1 to 3, original defendant No.2 is the wife of original defendant No.1, original defendants No.3 and 4 are the sons of original defendants No.1 and 2 and original defendant No.5 is the wife of original defendant No.3.

2.3 It is the case of the original plaintiffs that they purchased suit property on 19.09.1991 by way of registered sale deed bearing No.13813 in the joint names of original plaintiffs No.1 to 3 and original defendant No.1 and similarly in the same subject property of sub-plot No.1, 1% floor of the said suit property was purchased by original plaintiffs No.4 to 6 and original defendant No.2 by way of registered sale deed bearing No.13805 dated 19.09.1991. Thus, by virtue of above two registered sale deeds, original plaintiffs along with original defendant No.1 and 2 became joint owners of the sub-plot No.1 being suit property and the said fact came to be recorded in the city survey record accordingly.

2.4 That original plaintiffs decided to construct commercial four storied Jeweller’s Showroom and office on the suit property to be known as “Narayan Jewellers” for the expansion of their jewellery business. That for the said purpose and for the development of the suit property for showroom and office purpose, they constructed new showroom and offices. That the plaintiffs along with defendant No.2 have executed Power of Attorney on 06.04.1995 in favour of defendant No.1 and the same was executed before Executive Magistrate. That till date the said power of attorney dated 06.04.1995 has not been revoked and/or cancelled by the plaintiffs and defendant No.2, the same is still in force and the sale deed dated 23.03.2018 registered bearing No. 2863 and the said suit cannot be proceeded with against original defendant No.1 and 3 and therefore, the impugned order below Exhibit 5 passed by learned Additional Senior Civil Judge, Vadodara requires to be quashed and set aside. That by virtue of said power of attorney, defendant No.1 cannot execute registered sale deed in favour of defendant No.3 and, therefore, the cause of action arose for the plaintiffs to challenge the same.

2.5 It is contended that in or around November 2013, the said showroom known as “Narayan Jewellers” constructed on the land of sub-plot No.1 for the jewellery business came to be closed down and since 2014 till date, the said showroom is in closed condition.

2.6 It is the case of original plaintiffs that plaintiff No.5 received a notice dated 02.01.2019 issued by City Survey Office under Section 135(D) of the Bombay Land Revenue Code inviting objection for the suit property in respect of recording of change of ownership of the suit property in the City Survey Record. That upon receipt of such notice from the City Survey Office, original plaintiffs inquired and found that original defendant No.1 had executed registered sale deed in favour of defendant No.3