Gujarat High Court
Lhrs Of Karshanbhai Lakhmanbhai Sinhar vs Dilipbhai Rajabhai Odedara on 12 April, 2023
C/SCA/4770/2023 ORDER DATED: 12/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4770 of 2023
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LHRS OF KARSHANBHAI LAKHMANBHAI SINHAR
Versus
DILIPBHAI RAJABHAI ODEDARA
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Appearance:
MR AMAR D MITHANI(484) for the Petitioners
MR DIPAL RAVAIYA for the Respondent
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 12/04/2023
ORAL ORDER
1. The present petition is filed by the petitioners - original plaintiffs challenging the order impugned dated 20.02.2023 passed by the appellate Court below - the Additional District Judge, Keshod in Civil Misc. appeal No.8 of 2022, whereby the appellate Court below has set aside the order dated 18.11.2022 passed below Exh.5 in Regular Civil Suit No.37 of 2022 filed by the present petitioners. 2.1 Learned advocate Mr.Amar Mithani for the petitioners has submitted that pursuant to the order passed by the appellate Court below, the petitioners have deposited the amount of Rs.5,58,200/- and the respondent has deposited the amount of Rs.9 lakhs before the trial Court concerned. He has also pointed out that the appellate Court below has Page 1 of 7 Downloaded on : Thu Apr 13 20:53:00 IST 2023 C/SCA/4770/2023 ORDER DATED: 12/04/2023 wrongly interfered with the order passed by the trial Court below Exh.5 as the appellate Court below has not given any cogent and convincing reasons and has prejudged the issue involved in the suit by observing that the transaction which is in nature of agreement to sell is for the purpose of security of the money and if the defendant is directed to pay Rs.9 lakhs instead of Rs.8 lakhs, the interest of the plaintiffs will be protected. He has submitted that the said observation itself is prima facie improper and erroneous. 2.2 He has further submitted that the appellate Court below has not properly dealt with the chain of registered documents where the agreement to sell is executed and thereafter the documents regarding confirmation of agreement to sell is executed twice which are registered before the Sub Registrar which was not properly considered. He has further submitted that even the suit proceedings is also proceeded further where the issues are framed and now, the evidence is also recorded. That aspect is also not considered by the appellate Court below. Moreover, he has further submitted that considering the entire tenor of the agreement to sell, which is executed by the defendant in favour of the plaintiffs, it cannot be even presumed that those agreement to sell are executed towards security of the money advance by the plaintiffs to the defendant and therefore, he has Page 2 of 7 Downloaded on : Thu Apr 13 20:53:00 IST 2023 C/SCA/4770/2023 ORDER DATED: 12/04/2023 submitted that the appellate Court below has committed gross error while considering the appeal under the provisions of Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908 and exceeded its jurisdiction. He has relied upon the following judgments in support of his submissions :
(i) (2004) 8 SCC 488 - Maharwal Khewaji Trust versus Baldev Dass
(ii) (2010) 1 SCC 379 -Julien Educational Trust versus Sourendra Kumar Roy
(iii) (2012) 6 SCC 792 - Best Sellers Retail (India) Pvt. Ltd., versus Aditya Birla Nuvo Limited 2.3 In view of above, he has submitted that this petition deserves to be allowed by quashing and setting aside the impugned order passed by the appellate Court below and by restoring the order passed below Exh.5 by the trial Court in the suit proceedings.
3.1 Per contra, Mr. Dipal Ravaiya, learned advocate for the respondent - original defendant submits that he has instructions to appear on behalf of the respondent and he will file his appearance during the course of the day.
Registry to accept the same. He has raised strong objection against this petition. He has submitted that the appellate Court below has rightly dealt with the contentions raised by Page 3 of 7 Downloaded on : Thu Apr 13 20:53:00 IST 2023 C/SCA/4770/2023 ORDER DATED: 12/04/2023 the parties and rightly observed that the transaction of agreement to sell is executed towards the security of the non-transaction. He has heavily relied upon the cross- examination of one of the plaintiffs by pointing out that in the cross-examination, the plaintiff has admitted that his father is having licence as money lender. He has further submitted that the trial Court has not properly considered the three main aspects of granting interim injunction application Exh.5 - prima facie case, balance of convenience and irreparable loss and therefore, the appellate Court has rightly interfered with the order passed by the trial Court by exercising the powers under Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908. He has submitted that no case is made out to interfere in the impugned order by exercising the powers under Article 227 of the Constitution of India. He has submitted that this petition may be dismissed.
4. Rule. Learned advocate Mr.Dipal Ravaiya waives service of notice of rule on behalf of the respondent. 5.1 I have heard learned advocates for the respective parties. I have considered the rival submissions made by them. I have perused the relevant material on record. I have also perused the order passed by the trial Court below Exh.5, from where the following facts are emerged.
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C/SCA/4770/2023 ORDER DATED: 12/04/2023 5.2 There was a registered agreement to sell between
the parties for an agriculture land, without possession, for total sale consideration of Rs.13,58,200/-. The plaintiffs have paid Rs.8 lakhs to the defendant at that time and remaining amount of Rs.5,58,200/- is to be paid by the time limit. Due to COVID pandemic, with consent of the parties, the said time limit is extended from time to time till 07.03.2022. During the interregnum period, the plaintiffs have sent a notice to the defendant for the remaining payment of Rs.5,58,200/- and shown his willingness and the defendant has not responded to the same. Therefore, the plaintiffs have filed a suit before the trial Court concerned for specific performance, along with injunction application Exh.5. It is this order by which the trial Court has granted injunction application Exh.5 and the appellate Court below has rejected and is thus travelled to this Court.
5.3 I have gone through the impugned order passed by the appellate Court below. From the impugned order, it transpires that the appellate Court below has exhaustively considered the suit proceedings as well as the transactions between the parties. Further, the appellate Court below has taken into consideration the factual aspects of the matter which need not be considered at this stage. The trial Court Page 5 of 7 Downloaded on : Thu Apr 13 20:53:00 IST 2023 C/SCA/4770/2023 ORDER DATED: 12/04/2023 has rightly considered the aspects of granting injunction application Exh.5 i.e. prima facie case, balance of convenience and irreparable loss. In view of decision of Hon'ble Apex Court in the case of (2012) 6 SCC 792 - Best Sellers Retail (India) Pvt. Ltd., versus Aditya Birla Nuvo Limited, these three ingredients are required to be seen at the stage of injunction application Exh.5, which the trial Court has rightly considered. Whereas, the appellate Court below has exceeded its jurisdiction by observing the factual aspects of the case, which is not permissible at this stage. It is not the appeal filed against the final judgment and decree of the trial Court. It is the appeal filed against the interim injunction order below Exh.5. Therefore, the appellate Court below is to be very conservative in observing the factual aspects of the matter, since the suit proceeding is still to be adjudicated. If such observations are made by the appellate Court below at this stage, there may be the chances that the trial Court may prejudice by such observations. The impugned order is therefore required to be quashed and set aside.
6. For the reasons recorded above, the following order is passed.
6.1 The present petition is allowed.
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C/SCA/4770/2023 ORDER DATED: 12/04/2023 6.2 The impugned order dated 20.02.2023 passed by
the appellate Court below - the Additional District Judge, Keshod in Civil Misc. appeal No.8 of 2022 is hereby quashed and set aside.
6.3 Consequently, the order dated 18.11.2022 passed below Exh.5 in Regular Civil Suit No.37 of 2022 by the trial Court is confirmed.
7. It is expected that the trial Court concerned to hear and dispose of the suit on its own merits and in accordance with law, without influence by any order, after giving proper opportunity to the parties.
8. The parties to cooperate the suit proceedings.
(SANDEEP N. BHATT,J) M.H. DAVE Page 7 of 7 Downloaded on : Thu Apr 13 20:53:00 IST 2023