Gujarat High Court
Kanubhai Vanabhai Bharwad vs Heirs Of Decd. Shirajuddin Badarali ... on 11 May, 2018
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
C/AO/6/2018 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 6 of 2018
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KANUBHAI VANABHAI BHARWAD AND OTHERS ....Appellants Versus HEIRS OF DECD. SHIRAJUDDIN BADARALI TIRMIJI AND OTHERS ....Respondents ========================================================== Appearance:
MR SHALIN MEHTA, SR. ADVOCATE with MR MAULIK R SHAH, ADVOCATE for the Appellants MR D.C. DAVE, SR. ADVOCATE with MR MEETKUMAR J PANDIT, ADVOCATE for the Contesting Respondents No. 1.1 to 1.4 (Original Plaintiffs) MR P.R. NANAVATI, ADVOCATE for MS.DILBUR CONTRACTOR, ADVOCATE for the Respondents Nos. 3 to 17 ========================================================== CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY Date : 11/05/2018 CAV ORDER
1. This Appeal arises from the Order passed by the 5th Additional Senior Civil Judge, Ahmedabad (Rural) dated 13.04.2017 below Exh. 5 in Special Civil Suit No. 157 of 2017.
By the impugned order, the Trail Court has directed both the parties to maintain status quo qua the suit property. Challenge to this Order is made by the original defendants.
2. Heard learned advocates for the respective parties.
3.1 Mr. Shalin Mehta, learned senior advocate with Mr. Maulik R Shah, learned advocate for the appellants has submitted that Page 1 of 6 C/AO/6/2018 CAV ORDER the impugned order of the Trial Court is in clear violation of the provisions of Order 39 rule 3 of the Code of Civil Procedure, 1908. The impugned order was passed on 13.04.2017 and the notice was issued on 21.04.2017, which was served upon the present appellants on 02.05.2017 along with un-amended injunction application and plaint of the suit. The un-amended plaint and injunction application does not talk about construction over the suit property, whereas in the amended plaint and injunction application, it was prayed that the defendants - present appellants be restrained from dealing with the property and carrying out construction work over it. This is a clear case of suppression of facts.
3.2 Mr. Shalin Mehta, learned senior advocate for the appellants, has further submitted that the cause of action for the appellants to file this Appeal from Order is a public notice dated 04.12.2017, issued by the original plaintiff through his advocate, alleging that defendant No. 31 is acting in defiance of the restrain order of the trial court dated 13.04.2017 in Special Civil Suit No. 157 of 2017.
3.3 Mr. Shalin Mehta, learned senior advocate for the appellants has addressed this Court at length, on the merits of the matter and has taken this Court through the change of hands and title qua the suit land from time to time, including the proceedings under The Bombay Prevention of the Fragmentation and Consolidation of Holdings Act, 1947 and renumbering of the suit land. It is submitted that the appellants are the bona-fide purchasers for value and the status quo as ordered by the Trial Court should be set aside. He has further submitted that it was incumbent upon the Trial Page 2 of 6 C/AO/6/2018 CAV ORDER Court to examine all the three aspects viz. (i) prima-facie case,
(ii) balance of convenience and (iii) irreparable loss, however the impugned order does not do so.
3.4 In support of his submissions, Mr. Shalin Mehta, learned senior advocate for the appellants has relied upon the following authorities.
The Church of Christ Charitable Trust & Educational Charitable Society V. M/s. Ponniamman Educational Trust, reported in 2012 (2) GLH 713.
Maria Margarida Sequeria Fernandes V. Erasmo Jack De Sequeria, reported in 2012 (5) SCC 370.
Wim Plast Limited V. Symphony Limited, reported in 2016 (0) AIJEL-HC 235607.
A. Venkatasubbhiah Naidu V. S. Chellappan and others, reported in 2000 (7) SCC 695.
4.1 Mr. D.C. Dave, learned senior advocate with Mr. Meetkumar Pandit, learned advocate for the contesting respondents - original plaintiffs has submitted that the present Appeal from Order is not maintainable. It is submitted that the impugned order is ex-parte order and the appellants should have first approached the Trial Court for vacation / modification of the impugned order.
4.2 Mr. D.C. Dave, learned senior advocate, has further submitted that the Trial Court has not committed any error and the impugned order be not interfered with by this Court. It is submitted that in the instant case, it can not be said that there is any breach of rule 3 of order 39 of the Code. For this Page 3 of 6 C/AO/6/2018 CAV ORDER purpose, he has taken this Court through various dates of hearing before the Trial Court.
4.3 Mr. D.C. Dave, learned senior advocate for the contesting respondents has addressed this Court at length on the merits of the matter and has relied upon the following authorities to support his case.
A. Venkatasubbhiah Naidu V. S. Chellappan and others, reported in 2000 (7) SCC 695.
Order of this Court dated 28.11.2017, recored in AO 379 of 2017.
5. Having heard learned advocates for the respective parties and having considered the material on record, this Court finds that before the legality / sustainability of the impugned order is examined, the question of maintainability of this Appeal, as raised by Mr. D.C. Dave, needs to be gone into.
6. So far maintainability aspect is concerned, it needs to be noted that true it is the impugned order is ex-parte and the appellants could have been asked to move the trial Court for vacation / modification of ex-parte order, however it needs to be noted that, by the order of the Co-ordinate Bench of this Court recorded on Civil Revision Application No. 479 of 2017, the proceedings before the Trial Court are stayed and therefore it would not be open to the Trial Court to entertain any modification application. The matter therefore needs to be considered by this Court on merits.
7. On merits, having heard learned advocates for the respective parties and having considered the material on Page 4 of 6 C/AO/6/2018 CAV ORDER record, this Court finds that the Trial Court has not recorded any satisfaction on any of the parameters for grant of injunction. The Trial Court has also not recorded any reason, much less legally sustainable reason, as to why ex-parte order was required to be passed in the matter. If the controversy between the parties is seen vis-a-vis the pleadings on record, this Court find that this was not the case, where the plaintiffs can be said to have even prima facie case much less any case for injunction. The Trial Court thus fell in error by granting status quo qua the suit property against the present appellants. The impugned order therefore needs to be interfered with.
8. There are other factors also which further tilt balance against the original plaintiffs. There is correction / manipulation in the prayer clause in the plaint / injunction application. It is made in such a way that status quo would include putting up construction or not, on that point mischief is attempted. The public notice given by the plaintiffs also further fortifies this attempt. The abuse of process of law therefore needs to be curbed.
9. On overall consideration of the material on record, this Court finds that, the option of asking the Trial Court to re- examine the issue is not open in view of the order of the Co- ordinate Bench of this Court, nor any useful purpose would be served, on the face of the glaring pleadings on record, by doing so.
10. It is noted that though both the sides have addressed the Court at length on the merits of the matter, dealing with those Page 5 of 6 C/AO/6/2018 CAV ORDER aspects would prejudice the original plaintiffs and therefore the same is not done. Suffice it to hold that, in the facts of the case on hand, no restrain order could be passed against the defendants, much less ex-parte. The impugned order therefore needs to be set aside.
11. For the reasons recorded above, the following order is passed.
11.1 This Appeal from Order is allowed.
11.2 The impugned order passed by the Trial Court (5th Additional Senior Civil Judge, Ahmedabad (Rural) below Exh. 5 in Special Civil Suit No. 157 of 2017 dated 13.04.2017 is quashed and set aside.
(PARESH UPADHYAY, J.) Salim/
12. After this order is pronounced, request is made on behalf of the original plaintiffs that this order be stayed. Considering the totality, this request is rejected.
(PARESH UPADHYAY, J.) Salim/1 Page 6 of 6