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GUJARAT HIGH COURT
Maulik J. Shelat, J.
Dilipbhai Laxmanbhai Kanani
and Anr. – Appellants
versus
Kshitijbhai Manubhai Patel
and Ors. – Respondents
R/Appeal From Order No. 361 of 2006 with
Civil Application (For Injunction) No. 1 of 2006 in R/Appeal From Order No. 361 of 2006
Decided on 3.9.2025
Counsel for the Parties:
For the Appellant Nos.1, 2: Mr Premal R Joshi (1327)
For the Respondent No.2: Deceased Litigant Through Legal Heirs/Represtentatives
For the Respondent Nos.2. 3, 4:Hl Patel, Advocate (2034)
For the Respondent No.4: Mr Mitul K Shelat (2419)
For the Respondent No.1: Shashvata U Shukla (8069)
For the Respondent No.3: Singhi and CO (2725)
IMPORTANT POINTS
(1) Appeal from order – Appellate Court can interfere with discretionary order passed by Trial Court only in exceptional circumstances.
(2) Injunction – When plaintiffs have, prima facie, failed to show that they were ready and willing to perform their part of contract, question of granting injunction, which is otherwise an equitable relief, is out of place.
Headnote:
(A) Civil Procedure Code, 1908 – Section 104 read with Order XLIII R.1(r) – Appeal from order – Scope and ambit – Appellate Court can interfere with discretionary order passed by Trial Court only in exceptional circumstances and Appellate Court cannot interfere with exercise of discretion of Court of first instance and substitute its own discretion except, where discretion has been shown to have been exercised arbitrarily, capriciously or perversely or where Court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions – Appellate Court cannot reassess entire evidence so as to come to its own conclusion substituting conclusion arrived at by trial Court, if two views are possible. (Paras 18.3 and 18.4)
(B) Injunction – Refusal – Oral Agreement to Sell – Appeal by original plaintiffs – Prima facie, plaintiffs need to establish vital and fundamental terms of sale of immovable property which orally concluded between parties – Defendants have unequivocally denied that there was any concluded oral contract between parties – When plaintiffs have, prima facie, failed to show that they were ready and willing to perform their part of contract, question of granting injunction, which is otherwise an equitable relief, is out of place – When plaintiffs have failed to make out any prima facie case in their favour, question of examination of other two ingredients i.e. balance of inconvenience and irreparable loss, pales into insignificance – If plaintiffs can be compensated in terms of money, inasmuch as there is no irreparable loss to plaintiffs, question of granting any injunction in their favour would not arise – Grant of decree of specific performance is a discretionary relief and such discretion lies with Court – As such, plaintiffs cannot be allowed to claim it as a matter of right – Request of plaintiffs to continue status quo rejected. (Paras 23, 27, 28, 32, 36, 39, 41, 43 and 52)
Result: Appeal from order dismissed. Civil Application also dismissed.
JUDGMENT (ORAL )
This appeal is directed against the order dated 11th December 2006, passed by the Principal Senior Civil Judge, Ahmedabad (Rural), Mirzapur, below injunction application Exhibit 5 in Special Civil Suit No. 187 of 2006. The appeal is filed under Order XLIII Rule 1 (r) of the Code of Civil Procedure, 1980 (hereinafter referred to as “C.P.C.”) by the original plaintiffs of the aforesaid suit. The respondents herein are original defendants.
2. As far as possible, hereinafter, the parties will be referred as per their original position in the suit.
History of Appeal
3. Before addressing to the issues germane in the appeal, the events, which have taken place and the few orders passed by my predecessors, need to be first observed in this judgementorder.
3.1. This appeal was admitted on 26th December 2006 and it has been so recorded in the order passed in the injunction application (Civil Application No. 15068 of 2006) that as per statements made by respective learned Advocates appearing for defendants, till the hearing of the appeal, their clients (defendants) shall not transfer, alienate or deal with the property in question and maintain status quo of the same. The order dated 26th December 2006, passed in the appeal as well as the stay application therein, reads as under:
“Coram : Honourable Mr. Justice
P. B. Majmudar
Date : 26/12/2006
Common Oral Order
Appeal From Order No.361 of 2006
Admit.
Fixed for final hearing on 7th February 2007.
Civil Application No. 15068 of 2006
Rule returnable on 7th February 2007. Mr. Mitul Shelat waives service of Rule for respondent Nos.1 and 4 and Mr. Unmesh Shukla waives service of Rule for respondent Nos.2 and 3. If any reply is to be filed on Civil Application, the same be filed before the returnable date. It is submitted by learned Advocate Mr. Shukla and Mr. Shelat that till the aforesaid date their clients shall not transfer, alienate or deal with the property in question and will maintain status quo of the same. In view of the same, it is not necessary to pass any specific order on the question of interim relief at this stage.
(P.B. Majmudar, J.)”
3.2. Thereafter, the appeal was heard as admitted. It appears that vide order dated 21st February, 2011, the Co-Ordinate Bench of this Court (Coram: Honourable Mr. Justice Mr. K. S. Jhaveri) disposed of this appeal as well as the civil application for stay, whereby observed thus:
“Coram : Honourable Mr. Justice
K.S. Jhaveri
Date : 21/02/2011
Oral Order
By way of present appeal, the appellant original plaintiff has challenged the order dated 11/12/2006 passed by the Principal Senior Civil Judge, Ahmedabad (Rural), Mirzapur below Application Exh.-5 in Special Civil Suit No.187 of 2006 whereby Exh.-5 application was rejected.
This Court on 26/12/2006 passed following order in the Civil Application.
“Rule returnable on 7th February 2007. Mr Mitul Shelat waives service of Rule for respondent Nos.1 and 4 and Mr Unmesh Shukla waives service of Rule for respondent Nos.2 and 3. If any reply is to be filed on Civil Application, the same be filed before the returnable date. It is submitted by learned Advocate Mr Shukla and Mr Shelat that till the aforesaid date their clients shall not transfer, alienate or deal with the property in question and will maintain status quo of the same. In view of the same, it is not necessary to pass any specific order on the question of interim relief at this stage.”
The parties were directed to maintain status quo.
In view of the above order, I am of the view that interests of justice would be meet by passing the following order:
The parties will be governed by the order passed by this Court on 26/12/2006. The Trial Court is directed to expedite the suit.
The Appeal From Order as well as the Civil Application stands disposed of accordingly. No costs.
(K.S.Jhaveri, J.)”
3.3. It further appears that despite there was a direction issued by this Court to expedite the suit as d
