Gujarat High Court
Shantinagar Shela Cooperative Housing ... vs Bileshwar Corporation on 20 June, 2023
Author: Rajendra M. Sareen
Bench: Rajendra M. Sareen
C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 203 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/APPEAL FROM ORDER NO. 203 of 2022
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2023
In R/APPEAL FROM ORDER NO. 203 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN Sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SHANTINAGAR SHELA COOPERATIVE HOUSING SOCIETY LTD
Versus
BILESHWAR CORPORATION
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Appearance:
MR SN SOPARKAR SENIOR ADVOCATE WITH
DHANESH R PATEL(8226) for the Appellant(s) No. 1
MR MIHIR JOSHI, SENIOR ADVOCATE WITH
MR JIGAR P RAVAL(2008) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 20/06/2023
CAV JUDGMENT
1. Present Appeal From Order under Order XLIII Rule 1(r) read with Section 104 of the Code of Civil Procedure, Page 1 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 1908 ("CPC" for short) has been preferred by the appellant - original defendant against the interim injunction granted by the learned Principal Senior Civil Judge, Sanand ("trial court" for short) vide order dated 30/11/2022 passed below Ex.5 in Special Civil Suit No.407 of 2017 (Old Special Civil Suit No.272 of 2013.
2. FACTS :
2.1. The appellant is a Co-operative Housing Society registered under the Gujarat Co-operative Societies Act, 1961 and the respondent is a Partnership Firm. As per the plaint, the respondent is in the business of buying and selling of land and development.
2.2. The respondent had filed Special Civil Suit No.272 of 2013 before the learned Principal Senior Civil Judge, Mirzapur, Ahmedabad, against the present appellant inter alia seeking specific performance of an Agreement-to-sell ("ATS" for short) dated 22/12/2006 and an undated Memorandum of Understanding ("MOU" for short) allegedly executed between the parties. Along with the suit, the respondent had also filed an application for interim injunction. Thereafter, the suit was transferred to the learned Principal Senior Civil Judge, Sanand and renumbered as Special Civil Suit No.407 of 2017.
2.3. On 11/06/2013, the learned Principal Senior Civil Judge, Mirzapur issued summons to the appellant and immediately on receipt of the summons, within 30 days, on 29/6/2013 the appellant preferred an application under Page 2 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 Order VII Rule 11 of the CPC inter-alia on the ground that notice under section 167 of the Gujarat Co-operative Societies Act was not issued by the respondent to the registrar. The respondent filed its reply to the application under Order VII Rule 11 of the CPC.
2.4. During the pendency of the suit, as there was possibility of settlement, on 16/7/2018, the appellant filed a purshis before the learned trial court indicating its willingness to settle the entire dispute.
2.5. In 2020, the appellant and Radhe Developers (India) Ltd. filed Special Civil Suit No.51 of 2020 before the Additional Senior Civil Judge, Sanand against the respondent inter-alia praying to declare the ATS, MOU and booking letters are unenforceable.
2.6. Thereafter, the respondent after a period of 9 years, moved an application on 22/6/2022 before the learned trial court below inter-alia praying that the application Ex.Nos.5 and 15 be heard together and to also close the appellant's right to file a written statement and reply to the Ex.No.5.
The learned trial court partly allowed the respondent's application on the very day and closed the appellant's right to file a written statement and reply to the application Ex.5.
2.7. On 06/07/2022, the learned trial court rejected the Suit under Order VII Rule 11 of the CPC, against which the respondent preferred First Appeal No.2320 of 2022 on 16/07/2022 before this Hon'ble Court. On 08/08/2022, the Page 3 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 co-ordinate Bench of this Court passed the following order:
"2. Learned advocate Mr. D.C. Dave assisted by learned advocate Mr. Saurabh Amin insisted for interim relief. According to learned Counsel many parcels of the land have already been purchased in the interregnum and, therefore, there shall be need for some protective order.
3. Mr. Pandya, since has filed his appearance today he requires time of nearly two weeks to take instructions and file his affidavit-in-reply. However, in the meantime, he has on instructions stated that no change will be effected presently whatever is the status shall continue. He shall provide the details of the status of these lands as on today in writing and there shall be no change effected till the next date of hearing. On the next date of hearing, concerned authorized person shall be present and apprise this Court about the present status of the property in question."
2.8. This interim arrangement made on the appellant's statement above came to be extended from time to time until the disposal of the First Appeal.
2.9. On 06/10/2022, co-ordinate Bench of this Court allowed the First Appeal. However, insofar as the interim arrangement was concerned, this Court observed as follows based on the appellant's statement: -
"17. So far as Annexure-B (from page 134 to
141) is concerned, those are the original allottees. Any transfer in the interregnum to Page 4 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 them shall be accounted separately.
Considering the fact that there is a serious dispute in relation to the list from page 142 to 145 it is volunteered by the learned advocate, Mr.Bhadrish Raju on getting instructions that the respondent shall not be dealing with the said list for a fortnight for the purpose of transfer or otherwise in any mode or manner.
18. Both the parties to co-operate with the trial Court which shall initiate the hearing of Exh.5 within a period of two weeks from the date of receipt of a copy of this order and shall decide the same within a period of four weeks thereafter
19. Without prejudice to the rights and contentions as may be raised by the parties that this arrangement has been made which shall be also subject to the order that would be passed by the trial Court concerned after hearing both the sides on merits of injunction application. None of the observations made by this Court in this order, while considering the matter on merit, shall in any manner prejudice the rights of either side."
2.10. On 18/10/2022, the respondent moved a speaking to minutes application, inter alia, on the following ground: -
"At the time of pronouncement of judgment, the Hon'ble Court had been pleased to frame a time schedule for deciding injunction application below Exh 5 application (4 weeks from the commencement of hearing). Your lordship bad been further pleased to extend the interim arrangement (recorded in Para-Page 5 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023
C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023
17) to operate till the Ld. Trial Court decides the Ex. 5 application. It appears that inadvertently, the said aspect is not reflected in the final order dated 06.10.2022 and hence this note."
2.11. On 19/10/2022, the appellant made a statement before this Hon'ble Court that the interim arrangement concerning the list from page number 142-145 of the appellant's affidavit dated 01/09/2022 filed in the First Appeal may continue until four weeks from the date of the initiation of the hearing of the interim injunction application Ex.5 by the learned trial court or until an order on merits is passed, whichever is earlier. This Court passed an order recording the appellant's above statement on 19/10/2022 and modified the order dated 06/10/2022 accordingly.
2.12. Thereafter, on 20/10/2022, the Suit was restored. The learned trial court thereafter passed an order on 20/10/2022 laying out a time schedule to complete hearing the of the application Exh.5. On 01/11/2022, the appellant moved an application to re-open its right to file a written statement and reply to the interim injunction application along with the written statement and reply to the interim injunction application, production application, and supporting documents requesting that its right to file a written statement and reply to the interim injunction application be re-opened in light of the direction by this Page 6 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 Court to decide the interim injunction application within a span of 4 weeks and also in the interest of justice to ensure that all the appellant's defenses are bought on record. On the very day, the respondent filed its written objections to the appellant's application.
2.13. The learned trial court rejected the appellant's application to re-open its right to file a written statement and reply to the application Exh.5 on 01/11/2022 against which the appellant preferred Special Civil Application No.22297 of 2022 and this Court was pleased to allow the Special Civil Application and re-open the appellant's right to file a written statement and reply to the Application Exh.5 vide order dated 09/11/2022. That inadvertently in para 27(E) of the order dated 09/11/2022 in Special Civil Application No. 22297 of 2022, passed by this Court, it has been mentioned that "Interim arrangement as noted by the Division Bench of this Court vide order dated 19/10/2022 shall continue for a period of three weeks from the date this order is submitted to the learned Civil Judge concerned.".
2.14. On 12/11/2022, the appellant challenged the order dated 06/10/2022 (as modified by the order dated 19/10/2022) passed by this Court in First Appeal No. 2320 of 2022 before the Hon'ble Apex Court vide SLP(C) No. 20976 of 2022.
Page 7 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 2.15. Thereafter, as the appellant's request to file an additional written statement was allowed by this Court in Special Civil Application No. 22297/2022, on 17/11/2022, an additional written statement was filed before the learned trial court and even the order dated 09/11/2022 was served on the learned trial court. The respondent thereafter filed its reply to the written statement and additional written statement along with documents to be relied upon on.
2.16. On 25.11.2022, the Hon'ble Apex Court was pleased to issue notice in SLP(C) No. 20976 of 2022 and also observed that no final judgment may be passed in the Suit. The Hon'ble Apex Court also recorded in its order that "... Till the disposal of the said interim injunction, status quo with respect to the property in dispute shall be maintained by the parties. However, the appellant submits that it has been inadvertently recorded by the Hon'ble Apex Court that status quo has to be maintained by the parties till disposal of the interim injunction, because on 25/11/2022, the Hon'ble Apex Court had only directed that the interim arrangement between the parties shall continue till disposal of the Exh.5 application and also because there was no order of status quo existing qua the Suit lands. The appellant submits that the appellant has filed IA No. 193876 of 2022 to modify the above order.
2.17. That on 29/11/2022, the appellant and respondent Page 8 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 completed their oral arguments with respect to the application Exh.5 and the appellant even submitted its written submissions. The learned trial court allowed the application Exh.5 vide order dated 30/11/2022. That after pronouncement of the Impugned Order, the appellant moved an application before the learned trial court praying that the Impugned Order may be stayed to exercise its statutory remedy of challenging the Impugned Order. The respondent filed its objections to the above application. Thereafter, the application for stay came to be rejected by the learned trial court vide order order dated 30/11/2022.
2.18. The appellant, being aggrieved and dissatisfied by the aforesaid Impugned Order dated 30/11/2022 passed below application Ex.5 in Special Civil Suit No.407 of 2017, has preferred the present Appeal From Order.
3. SUBMISSIONS OF THE APPELLANT :
3.1. Mr.Soparkar, learned senior advocate for the appellant has mainly based his arguments on the points of [1] limitation [2] novation [iii] non-joinder of parties [iv] unamended sections 13, 14 and 16(1)(c) of the Specific Relief Act [v] bar of section 167 of the Gujarat Co-operative Societies Act and [vi] Section 10 of the Specific Relief Act.
Based upon those points, Mr.Soparkar, learned senior advocate for the appellant has argued on the principle of injunction and argued on the finding of the learned trial Page 9 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 court.
Whereas, on the other-hand, Mr.Mihir Joshi, learned senior advocate for the respondent has based his contentions and arguments in reply to all the contentions raised by Mr.Soparkar, learned senior advocate for the appellant.
4. LIMITATION :-
4.1. Submission of appellant on limitation:
On the point of Limitation, Mr.Soparkar, learned senior advocate for the appellant has contended that the appellant is a registered co-operative housing society and as per the ATS, the appellant was required to execute sale deed for the suit land in favour of the respondent upon payment of 50% of the total consideration and as according to the ledger amount submitted by the respondent, they have paid 50% of the amount of total consideration of Rs.15,80,08,800/- on 28/8/2007. Since the 50% of the amount has been paid on 28/8/2007, and the suit is filed in 2013, as per Part 1 of Article 54 of the Limitation Act, the suit is beyond 3 years.
Mr.Soparkar, learned senior advocate for the appellant has submitted that as per the rejoinder filed by the respondent, it is the case of the respondent that execution of the sale deed were refused after the payment of 50% of consideration, which has taken place in the year 2007 and Page 10 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 therefore, the trial court has erred in not believing the issue of limitation.
4.2. Submission of the respondent on Limitation:
Per contra, on the point of Limitation, it has been contended by Mr.Mihir Joshi, learned senior advocate for the respondent that ATS does not provide for any calendar date for executing sale deed and when there is no specific date mentioned, Part 1 of Article 54 of the Limitation Act does not apply. It is contended that ATS fixes time for payment only and even that is not essence of the contract. ATS clause 3 provides for fulfillment of reciprocal obligations by the defendant society, namely (i) obtaining clear title (ii) giving possession of land. Clause 4 and 5 further provide that seller shall obtain Income Tax clearance certificates by 15.01.2007 and shall obtain all necessary permissions for sale. It is further contended that the society was not in a position to perform its part of obligation. As such, till 2013, only two survey numbers were owned by the appellant society and in May, 2013, though the society cleared title of survey Nos.227 and 228, the society refused to perform according to the terms of the ATS and the suit was immediately filed and the suit does no barred by law of limitation.
4.3. Finding of the Court on Limitation:-
Having heard the learned advocates for the respective Page 11 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 parties, the issue which is in dispute between the parties is as to, from which date the period of limitation starts for filing of the suit. Admittedly, ATS and MOU are the main documents relied upon by both the parties and there is no dispute regarding the date of MOU. There is dispute with respect to the date of MOU. Here in this case, the respondent - plaintiff filed the suit for specific performance of the ATS which is executed in the year 2006 and also MOU which according to the case fo the appellant is executed in the year 2007 and as per the case of the respondent, it is executed in the year 2011. No doubt, the learned trial court in the finding regarding limitation has given finding that the execution of MOU is in the year 2011 and it has been considered to be the extension of time for the purpose of ATS and the payment of Rs.11,49,60,600/- has been given on 25/5/2011 as per the ledger which is produced in the trial court's record vide Ex.3/22.
As such, the contention of both the parties on the point of limitation depends upon the appreciation of the date of MOU. There is no dispute regarding the date of ATS, which is in the year 2006 but the MOU which is placed on record is without date and as per the respondent, it is of 2011. It depends upon the books of accounts - ledger which is produced through which contention regarding payment as to upto which date the payment has been made can be decided. Under the circumstances, this Court is of the opinion that as the issue of limitation is of a nature Page 12 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 wherein there is disputes regarding dates and payments and hence the issue of limitation can be decided by the trial court as a preliminary issue taking upon preliminary evidence regarding execution of the MOU and the payment mentioned.
5. BAR OF SECTION 167 :
5.1. Submission of appellant on bar of section 167:
So far as contention regarding question of bar under section 157 of the Gujarat Co-operative Societies Act is concerned, it is submitted by Mr.Soparkar, learned senior advocate for the appellant that the suit is not maintainable for non-
compliance of section 167 of the Gujarat Co-operative Societies Act. As the suit touches the business of the society, notice is required under section 167 of the Gujarat Co-operative Societies Act and notice was required to be served at the registered address and admittedly the respondent failed to serve such notice.
5.2. Submission of respondent on bar of section 167:
Per contra, it is vehemently opposed by Mr.Minir Joshi, learned senior advocate for the respondent that the order by which the trial court has rejected the plaint in exercise of Order 7 Rule 11 on the point of non-compliance of issuance of notice under section 167 of the Gujarat Co-operative Societies Act, in the said order, the learned trial court has dealt with the judgement of the Division Bench of this Court Page 13 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 rendered in First Appeal No.2320 of 2022 and considering the dispute between the parties, in para 15.6 it has been held as under :-
"15.6. Thus, considering the complexity of the transactions involved the Court notices that though the focal point of dispute revolves around the suit lands of which the Cooperative Housing society claims to have right, based on which agreement to sell and MOU have been executed in favour of plaintiff firm, however, at this stage of order 7 rule 11, where one is required to look into the pleadings only, it would be unjust to go to hold as "touching the business of the society"...., It has been observed in para 15.6 of the order of the Division Bench in First Appeal No.2320 of 2012 that, this is not a matter which can be permitted to be dismissed on the point of section 167 of the Act. Thereafter the Division Bench considered the issue of maintainability of the suit. However, the said order passed by the Division Bench in First Appeal No.2320 of 2022 has been challenged before the Hon'ble Apex Court and the SLP is pending. However, at present, as per the order of the Division Bench in First Appeal No.2320 of 2012, the bar of section 167, as it has been directed to be decided as preliminary issue by the trial court in accordance with law at the time of hearing.
6. NOVATION :
6.1. Submission of appellant on novation:Page 14 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023
C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 Mr.Soparkar, learned senior advocate for the appellant has contended that the respondent - plaintiff in the suit has prayed for specific performance of the ATS and MOU. It is vehemently submitted that in the rejoinder filed by the respondent - plaintiff in para 5, condition Nos.B and C of ATS were reproduced and it was specifically stated that as per the new conditions laid down in the MOU, there was a novation in the agreement. It is further submitted that as per section 62 of the Indian Contract Act, the original ATS in this case, does not need to be performed and it is the case of the respondent. It is further submitted that in the MOU, clause Nos.7C and 7D came to be inserted, which has changed the nature of the agreement. Clause 7C indicates new party Mr.Ashish Patel holds 25% in the suit land and clause 7D states that the appellant and respondent will jointly sell, mortgage and deal with the suit land. As such, the agreement for sale has been converted into a joint-selling agreement/joint development agreement and hence, the suit for specific performance is not maintainable. It is also contended that specific performance of the MOU also prayed for and the respondent has also prayed in the plaint that sale deeds in the suit lands may be executed in favour of anyone proposed by the respondent which indicates that the nature of the agreement between the parties has ceased to be an agreement for sale to that of an understanding of development of the land, as it novated the original ATS.Page 15 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023
C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 In support of above submission, Mr.Soparkar, learned senior advocate for the appellant has placed reliance on the decision of the Hon'ble Apex Court in the of Manoj Kumar Agrawal v. Dulari Bai 2006 SCC OnLine Chapter 15 para 5, wherein the Hon'ble Court has held and observed as follows:
"....It indicates that on the wishes or choice of appellant the sale deed is to be executed even in the name of third person whether such an agreement can be treated as agreement to sale is a question debatable."
6.2. Submission of respondent on novation :
Per contra regarding contention of the appellant on novation is concerned, Mr.Mihir Joshi, learned senior advocate for the respondent has submitted that the contention of novation is not raised in the in Written Statement and said contention of novation was never raised before the learned trial court. However, the plaintiff has prayed for specific performance of the ATS as well as MOU on the issue of novation being academic and suit will not fail on the ground that ATS did not survive. It is further contended that even otherwise, the MOU has to be read as a whole. In the MOU all the terms of the ATS are reproduced in paragraph Nos. 1 to 6 and in 7(a) to 7(f) conditions are laid down regarding Income Tax clearance. It is contended that all essential conditions of ATS remained the same in MOU and in law Page 16 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 there is no novation and the parties never understood it to be so. It is submitted that all the obligation of the society to sell the lands to the respondent - plaintiff remain the same and therefore the arrangement between respondent - plaintiff and Mr.Ashish Patel, which was contained in 7(c) and 7(d), which becomes effective, after the land is sold by society, and so it does not amount to a new agreement with the society and it is to be interpreted accordingly. It is also submitted that the phrase "banne-taraf-wala" used in clause 7(d) of the MOU is to be read with clause 7(c) of the MOU which meant the plaintiff and Mr.Ashish Patel and not the plaintiff and the society and as per the MOU, obligation of the society is to convey the agreed land to the respondent - plaintiff for agreed consideration and thereafter the respondent plaintiff can deal with the land with Mr.Ashish Patel or anyone else.
6.3. Finding on Novation :
So far as the contentions of the parties with regard to the issue of novation is concerned, section 62 of the Indian Contract Act is required to be considered, which reads thus:
"62. Effect of novation, rescission, and alteration of contract.--
If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract, need not to be performed.
Page 17 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 Here in this case, it appears that the respondent - plaintiff has argued in a contradictory manner regarding submission of novation, it has been submitted that all the conditions of ATS remain the same in the MOU and MOU is never considered to be novation and clause 7(c) and 7(d) clearly which meant the respondent - plaintiff and Mr.Ashish Patel and not the plaintiff and the society and hence it is not a new agreement with the society. However, in the opinion of this Court, the respondent cannot contend both the contentions. If the respondent seeks specific performance of the ATS as well as MOU, it is evident that there is change in the ATS and which can be termed to be novation of the ATS by insertion of clause 7(c) and 7(d). If it is believed that the clause 7(c) and 7(d) were between the respondent plaintiff and Mr.Ashish Patel, then the interpretation of phrase "banne taraf wala" alleviates Mr.Ashish Patel to the signatory of the MOU on behalf of the Chairman of the society as well as in his individual capacity, as he has been given 25% in the land and if that is the case, right of Mr.Ashish Patel are also to be decided while granting performance of the MOU and there is no reason for not impleading Mr.Ashish Patel as a party to the suit. The respondent plaintiff is seeking 100% performance of the MOU and rights of Mr.Ashish Patel are going to be affected and hence the respondent cannot take contradictory stand especially considering the fact that there is no other development agreement between the Page 18 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 respondent and Mr.Ashish Patel.
Even if it is considered that clause 7(d) is not between Mr.Ashish Patel and the respondent - plaintiff, then it has to be appellant society and the respondent. Hence, it can be considered that Mr.Ashish Patel has right without he being a party or clause 7(c) and 7(d) is between the appellant and the respondent. Hence, making the MOU is a novation version of ATS in the form of joint development agreement, which cannot be termed to be specific agreement to sell. It is not specific agreement to sell, however, if it is proved by leading cogent and convincing evidence that the insertion of clause 7(c) is a novation on the basis of evidence, the original ATS, which is to be enforced, will go away and hence in the light of the observations made in the case of Manoj Kumar Agrawal (supra) as such an agreement can be treated as agreement to sell in is a question which is debatable, this issue of novation is left open to be decided by the learned trial court but at the same time as observed, new insertion of clause 7(c) and 7(d), right of Mr.Ashish Patel is also to be affected if on the point of novation is to be decided by the trial court, eitherway.
7. NON-JOINDER OF PARTIES:
7.1. Submission of appellant on non-joinder of parties:
It is vehemently submitted by Mr.Soparkar, learned senior advocate for the appellant that the suit is bad for non- joinder of necessary parties. It is admitted position that the Page 19 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 appellant has filed the litigation against the original owners of the suit, additionally, clause 5 of the ATS specifically records that earlier allotment made to the allottees / members of the society have to be cancelled. In such circumstances, it is submitted that without adding either the original owners of the suit land or the allottees / members, as party to the suit, the suit is not maintainable, as it is apparent on record that the rights of third parties will be adversely affected, in case they are not heard. As stated above, the MOU also reveals that 75% of the land belongs to the respondent - plaintiff and 25% of the land belongs to Mr.Ashish Patel. It is also submitted that in the rejoinder before the learned trial court, the respondent - plaintiff has admitted that they will be joining necessary party to the suit. However, the respondent - plaintiff has contended that the original owners, allottees / members or Mr.Ashish Patel need not to be included as party to the suit., whereas the respondent himself has admitted that they are going to add necessary parties to the suit, this is not the case where the principles of Dominus Litus will apply.
Mr.Soparkar, learned advocate for the appellant has placed reliance on the decision of the Hon'ble Apex Court in the case of Mashkoor Hasan Khan vs. Zila Parishad, 1977 SCC OnLine All 185, paragraph Nos. 2 & 3 of which read as follow:Page 20 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023
C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 "2. lt may be noted that the actual bidders or the persons in whose favour the rights have now been granted by the Zila Parishad were not implemented as parties to the suit nor in Parishad wean interim injunction made in the suit. They are not implemented in this appeal either. In the counter affidavit filed on behalf of the Zila Parishad it has been stated that written contracts had already been entered into by the Zila Parishad for collection of carcass, bones and hides etc. with third parties who are not parties to the suit or to this appeal.
3. It is thus obvious that in case any injunction is granted it will adversely affect the interest of third parties who are not present before this Court. In these circumstances the interim injunction was not in fact maintainable and it was not necessary for the court below to go into the merits of the application."
[Emphasis Supplied] Mr.Soparkar, learned senior advocate for the appellant, has also placed reliance on the decision of the Hon'ble Apex Court in the case of Mumbai International Airport Private Limited Vs. Regency Convention Centre and Hotels Private Limited and others, reported in (2010) 7 SCC 417 on the aspect of proper and necessary party. Para 15 of the said decision reads as follow :
"A `necessary party' is a person who ought to have been joined as a party and in whose Page 21 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 absence no effective decree could be passed at all by the Court. If a `necessary party' is not impleaded, the suit itself is liable to be dismissed. A `proper party' is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in disputes in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance."
Mr.Soparkar, learned senior advocate for the appellant, has also placed reliance on the decision in the case of Sajli Kishku vs. Talamoyee Kishku and Ors. reported in MANU/WB/2023/2019.
Mr.Soparkar, learned senior advocate for the appellant has further submitted that Mr.Ashish Patel admittedly being 25% of the co-owner of the suit land, would even otherwise is a necessary party to the suit and the relief are clearly evidently against him. It is the case of the respondent that the phrase "banne tarafwala" used in clause 7(d) would include only Mr.Ashish Patel and the respondent, meaning thereby condition to sell the land would be limited to them Page 22 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 only, as such, Mr.Ashish Patel becomes a party to the MOU, even otherwise, Mr.Ashish Patel cannot be termed as "banne tarafwala". It is also submitted by Mr.Soparkar, learned senior advocate for the appellant that specific performance of the contract cannot be sought without impleading all the parties to the contract and since the respondent has sought specific performance of the MOU in which Mr.Ashish Patel is having right to the extent of 25% of land, as per becomes bad for non-joinder of parties and the phrase "banne tarafwala" clearly shows admission that Mr.Ashish Patel is a party to the MOU.
Mr.Soparkar, learned senior advocate for the appellant on the point of non-joinder of parties has submitted that there are allottees in the suit land who have been allotted plots in the land after the society came into existence and they are having Allotment Letters to that effect and admittedly the plaintiff was knowing this aspect, as it is mentioned in the ATS regarding removal of the allottees from the suit land. It is also submitted that some of the allottees have filed application for leave to appeal being Misc. Civil Application No.34 of 2023, which states that the allottees are the owners of the land allotted to them and the undivided share of the common amenities and services as members of the societies. The allotment Dastavej, which is produced, pertains to plot No.15 of the appellant society in the leave to appeal specifically states that apart from the Page 23 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 plot, the members have undivided rights in the common roads and common amenities of the appellant society, which has spread across the entire appellant society including the suit land against which valuable consideration has been paid by the allottees / members. Therefore, even the allottees / members are the necessary parties to the suit as they have interest in the suit land.
Mr.Soparkar, learned senior advocate for the appellant has relied upon the decision of the Hon'ble Apex Court in the case of Shivali (Vejalpur) Co-Op.Hosg. Society Ltd. v. State of Gujarat, reported in 2009 SCC OnLine Guj 11322.
7.2. Submission of the respondent on non-joinder of parties:
Per contra, Mr.Mihir Joshi, learned senior advocate for the respondent on the point of non-joinder of parties has contended that the parties to the agreement to sell are necessary parties, only parties to the contract can be joined, no party claiming individual right can be joined as it would change the nature of the suit. In support of his submission, Mr.Mihir Joshi has relied on the decision of the Hon'ble Apex Court in the case of Gurmit Singh Bhatia v. Kiran Kant Robinson, reported in (2020) 13 SCC 773]. Para 5 of the said judgement reads thus:Page 24 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023
C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 "5. We have heard the learned counsel for the respective parties at length.
5.1. At the outset, it is required to be noted that the original plaintiffs filed the suit against the original owner - vendor - original defendant no.1 for specific performance of the agreement to sell with respect to suit property dated 3.5.2005. It is an admitted position that so far as agreement to sell dated 3.5.2005 of which the specific performance is sought, the appellant is not a party to the said agreement to sell. It appears that during the pendency of the aforesaid suit and though there was an injunction against the original owner - vendor restraining him from transferring and alienating the suit property, the vendor executed the sale deed in favour of the appellant by sale deed dated 10.07.2008. After a period of approximately four years, the appellant filed an application before the learned trial Court under Order 1 Rule 10 of the CPC for his impleadment as a defendant. The appellant claimed the right on the basis of the said sale deed as well as the agreement to sell dated 31.3.2003 alleged to have been executed by the original vendor. The said application was opposed by the original plaintiffs. The learned trial Court despite the opposition by the original plaintiffs allowed the said application which has been set aside by the High Court by the impugned judgment and order. Thus, it was an application under Order 1 Rule 10 of the CPC by a third party to the agreement to sell between the original plaintiffs and original defendant no.1 (vendor) and the said application for impleadment is/was opposed by the original plaintiffs. Therefore, the short question which is posed for consideration before this Court is, whether the plaintiffs can be compelled to implead a person in the suit for specific performance, against his wish and more particularly with respect to a person against whom no relief has been claimed by him?
5.2 An identical question came to be considered before this Court in the case of Kasturi vs. Iyyamperumal, reported in (2005) 6 SCC 733 and applying the principle that the plaintiff is the dominus litis, in the similar facts and circumstances of the case, this Court observed and held that the question of jurisdiction of Page 25 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 the court to invoke Order 1 Rule 10 CPC to add a party who is not made a party in the suit by the plaintiff shall not arise unless a party proposed to be added has direct and legal interest in the controversy involved in the suit. It is further observed and held by this Court that two tests are to be satisfied for determining the question who is a necessary party. The tests are - (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; (2) no effective decree can be passed in the absence of such party. It is further observed and held that in a suit for specific performance the first test can be formulated is, to determine whether a party is a necessary party there must be a right to the same relief against the party claiming to be a necessary party, relating to the same subject matter involved in the proceedings for specific performance of contract to sell.
It is further observed and held by this Court that in a suit for specific performance of the contract, a proper party is a party whose presence is necessary to adjudicate the controversy involved in the suit. It is further observed and held that the parties claiming an independent title and possession adverse to the title of the vendor and not on the basis of the contract, are not proper parties and if such party is impleaded in the suit, the scope of the suit for specific performance shall be enlarged to a suit for title and possession, which is impermissible. It is further observed and held that a third party or a stranger cannot be added in a suit for specific performance, merely in order to find out who is in possession of the contracted property or to avoid multiplicity of the suits. It is further observed and held by this Court that a third party or a stranger to a contract cannot be added so as to convert a suit of one character into a suit of different character.
5.3. In the case of Kasturi (supra) in paragraphs 15 and 16, this Court observed and held as under:
"15. As discussed hereinearlier, whether Respondents 1 and 4 to 11 were proper parties or not, the governing principle for deciding the question would be that the presence of Respondents 1 and 4 to 11 before the court would be necessary to enable it effectually and completely to adjudicate upon and settle all the Page 26 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 questions involved in the suit. As noted hereinearlier, in a suit for specific performance of a contract for sale, the issue to be decided is the enforceability of the contract entered into between the appellant and Respondents 2 and 3 and whether contract was executed by the appellant and Respondents 2 and 3 for sale of the contracted property, whether the plaintiffs were ready and willing to perform their part of the contract and whether the appellant is entitled to a decree for specific performance of a contract for sale against Respondents 2 and 3. It is an admitted position that Respondents 1 and 4 to 11 did not seek their addition in the suit on the strength of the contract in respect of which the suit for specific performance of the contract for sale has been filed.
Admittedly, they based their claim on independent title and possession of the contracted property. It is, therefore, obvious as noted hereinearlier that in the event, Respondents 1 and 4 to 11 are added or impleaded in the suit, the scope of the suit for specific performance of the contract for sale shall be enlarged from the suit for specific performance to a suit for title and possession which is not permissible in law. In the case of Vijay Pratap v. Sambhu Saran Sinha [(1996) 10 SCC 53] this Court had taken the same view which is being taken by us in this judgment as discussed above. This Court in that decision clearly held that to decide the right, title and interest in the suit property of the stranger to the contract is beyond the scope of the suit for specific performance of the contract and the same cannot be turned into a regular title suit. Therefore, in our view, a third party or a stranger to the contract cannot be added so as to convert a suit of one character into a suit of different character. As discussed above, in the event any decree is passed against Respondents 2 and 3 and in favour of the appellant for specific performance of the contract for sale in respect of the contracted property, the decree that would be passed in the said suit, obviously, cannot bind Respondents 1 and 4 to 11. It may also be observed that in the event, the appellant obtains a decree for specific performance of the contracted property against Respondents 2 and 3, then, the Court shall direct execution of deed of sale in favour of the appellant in the event Respondents 2 and 3 refusing to Page 27 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 execute the deed of sale and to obtain possession of the contracted property he has to put the decree in execution. As noted hereinearlier, since Respondents 1 and 4 to 11 were not parties in the suit for specific performance of a contract for sale of the contracted property, a decree passed in such a suit shall not bind them and in that case, Respondents 1 and 4 to 11 would be at liberty either to obstruct execution in order to protect their possession by taking recourse to the relevant provisions of CPC, if they are available to them, or to file an independent suit for declaration of title and possession against the appellant or Respondent 3. On the other hand, if the decree is passed in favour of the appellant and sale deed is executed, the stranger to the contract being Respondents 1 and 4 to 11 have to be sued for taking possession if they are in possession of the decretal property.
16. That apart, from a plain reading of the expression used in sub-rule (2) Order 1 Rule 10 CPC "all the questions involved in the suit" it is abundantly clear that the legislature clearly meant that the controversies raised as between the parties to the litigation must be gone into only, that is to say, controversies with regard to the right which is set up and the relief claimed on one side and denied on the other and not the controversies which may arise between the plaintiff-appellant and the defendants inter se or questions between the parties to the suit and a third party. In our view, therefore, the court cannot allow adjudication of collateral matters so as to convert a suit for specific performance of contract for sale into a complicated suit for title between the plaintiff-appellant on one hand and Respondents 2 and 3 and Respondents 1 and 4 to 11 on the other. This addition, if allowed, would lead to a complicated litigation by which the trial and decision of serious questions which are totally outside the scope of the suit would have to be gone into. As the decree of a suit for specific performance of the contract for sale, if passed, cannot, at all, affect the right, title and interest of Respondents 1 and 4 to 11 in respect of the contracted property and in view of the detailed discussion made hereinearlier, Respondents 1 and 4 to 11 would not, at all, be necessary to be added in the Page 28 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 instant suit for specific performance of the contract for sale."
That thereafter, after observing and holding as above, this Court further observed that in view of the principle that the plaintiff who has filed a suit for specific performance of the contract to sell is the dominus litis, he cannot be forced to add parties against whom, he does not want to fight unless it is a compulsion of the rule of law.
5.4. In the aforesaid decision in the case of Kasturi (supra), it was contended on behalf of the third parties that they are in possession of the suit property on the basis of their independent title to the same and as the plaintiff had also claimed the relief of possession in the plaint and the issue with regard to possession is common to the parties including the third parties, and therefore, the same can be settled in the suit itself. It was further submitted on behalf of the third parties that to avoid the multiplicity of the suits, it would be appropriate to join them as party defendants. This Court did not accept the aforesaid submission by observing that merely in order to find out who is in possession of the contracted property, a third party or a stranger to the contract cannot be added in a suit for specific performance of the contract to sell because they are not necessary parties as there was no semblance of right to some relief against the party to the contract. It is further observed and held that in a suit for specific performance of the contract to sell the lis between the vendor and the persons in whose favour agreement to sell is executed shall only be gone into and it is also not open to the Court to decide whether any other parties have acquired any title and possession of the contracted property.
5.5. It is further observed and held by this Court in the aforesaid decision that if the plaintiff who has filed a suit for specific performance of the contract to sell, even after receiving the notice of claim of title and possession by other persons (not parties to the suit and even not parties to the agreement to sell for which a decree for specific performance is sought) Page 29 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 does not want to join them in the pending suit, it is always done at the risk of the plaintiff because he cannot be forced to join the third parties as party- defendants in such suit. The aforesaid observations are made by this Court considering the principle that plaintiff is the dominus litis and cannot be forced to add parties against whom he does not want to fight unless there is a compulsion of the rule of law.
5.6. Therefore, considering the decision of this Court in the case of Kasturi (supra), the appellant cannot be impleaded as a defendant in the suit filed by the original plaintiffs for specific performance of the contract between the original plaintiffs and original defendant no.1 and in a suit for specific performance of the contract to which the appellant is not a party and that too against the wish of the plaintiffs. The plaintiffs cannot be forced to add party against whom he does not want to fight. If he does so, in that case, it will be at the risk of the plaintiffs."
Mr.Mihir Joshi, learned senior advocate for the respondent has further submitted that if the original owners are joined, nature of the suit will be converted into the suit for enforcement of the ATS between the farmers and the society and even otherwise, as per ATS, onus is on the society to get the sale deeds executed from the farmers.
The appellant has stated that in the suit filed by the appellant against the original owners of the land, it has been stated that the appellant has right in the suit land by virtue of ATS, power of attorney, development agreement with the original owners and it has paid full consideration to the original owners and they have transferred the possession to the society and therefore, when the purchaser Page 30 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 has right to compel the defendant society to procure the concurrence and decree against the present appellant with a direction to get the conveyance from the original owners and execute in favour of the respondent can be passed.
Mr.Mihir Joshi, learned senior advocate for the respondent on the point of non-joinder of allottees has submitted that the so-called allottees are strangers to the ATS and MOU and they are not proper and necessary. It is submitted that there is no pleadings by the appellants - defendants as to who were the allottees in the suit land prior to 22/12/1960 and no documents of allotment of society were produced and only list of allottees has been produced on record which is a typed list prepared by the society, which is false and has inherent contradictions and is not supported by any evidence and the said list does not provide any particulars of the allottees and shows old and new plot numbers and as such, the allotment letters do not create any right in the suit land.
It is also contended by Mr.Mihir Joshi, learned senior advocate for the respondent that the society has filed Civil Suit No.941 of 2011 against the allottees and the society has stated that the allottees are provisional allottees and not accepted as members by the society, as they have not paid the land contribution and allottees are mere allottees and not the members of the society and they are not necessary parties and if the allottees are the members of the Page 31 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 society, then they are not necessary parties. As the members of the society have not individual right and they are required to be represented through the society. If they are nominal members/nominal allottee than under the ATS, it is the obligation undertaken by the society to compensate them and clear the title and sell the land to the plaintiff.
Mr.Mihir Joshi, learned senior advocate for the respondent has relied upon the decision of Hon'ble Apex Court in the case of State of U.P. Vs. C.O.D. Chheoki Employees Co-operative Housing Society Ltd. and others, reported in (1997) 3 SCC 681. Paragraph Nos.16, 17 and 18 of the said judgements are as under:-
"16. Thus, it is settled law that no citizen has an fundamental right under Article 19(1)(c) to become a member of a Co-operative Society. His right is governed by the provisions of the statute. So, the right to become or to continue being a member of the society is a statutory right. On fulfilment of the qualifications prescribed to become a member and for being a member of the society and on admission, he becomes a member. His being a member of the society is subject to the operation of the Act, rules and bye-laws applicable from time to time. A member of the Society has no independent right qua the Society and it is the society that is entitled to represent as the corporate aggregate. No individual member is entitled to assail the constitutionality of the provisions of the Act, rules and the bye-laws as he has his right under the Act, rules and bye-laws and is subject to its operation. The stream cannot rise higher than the source.
17. So, the society having been formed is governed by the provisions of the Act. The individual members do not have any fundamental right to the management of the Committee except in accordance with the provisions Page 32 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 of the Act, rules and bye-laws. The management of the Committee is regulated by Section 29 of the Act. The composition thereof is also regulated by the Act and has to be in accordance with the Rules and the bye- laws. The Rules referred to here in before have to be in furtherance of and in conformity with the provisions contained in Section 130(2)(xii) and (xii-A) and the Rules providing for reservation in the election of the committee or for nomination to the Management Committee of the members belonging to the weaker sections and women should be to effectuate socio- economic and political justice assured by the Preamble, Articles 38 and 46 of the Constitution.
18. Shri Raju Ramachandran, relying upon the judgment of this Court in Damyanti Naranga vs. The Union of India & Ors. [(1971) 1 SCC 678], has contended that in view of the ration laid down by this Court, the Government is devoid of power to make law unless any of the restrictions as controlled by clause (4) of Article 19 of the Constitution of India are infringed. The Government has no power to enact a law incorporating the reservation to the members of weaker sections and women thereof. We find no force in the contention. It could be seen that therein, the Government had enacted the Sahitya Sammelan Act exercising the power under Entry 63, List I of the Seventh Schedule to the Constitution. This Court pointed out that the Act did not envisage that the Samiti is of national importance. Therefor, it was held that the Parliament had lacked power to enact the law incorporating the society and inducting outside members against the wishes of the founder members of the Society registered under the Societies Registration Act. This Court also held that the properties belonging to the original Society stood vested in the Society incorporated under Section 4 of the Act without any compensation. Therefore, it was violative of Article 31 of the Constitution of India, as it stood then. The ratio therein has no application to the facts in this case. He then contended that "Other Backward Classes" defined under the State Public Services Reservation Act applicable to and covering the public services, they are being inducted as members of the society which are otherwise not eligible and, therefore, the induction of them by amendment of Rules made on 15.7.1994 is unconstitutional. In support Page 33 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 thereof, he contends that though Article 15(4) of the Act provides that it is subject to Articles 15(2) and 29(2) of the Constitution, it does not envisage that it is also subject to Article 19(1)(c) of the Constitution. Therefore, the reservation provided to the weaker sections is unconstitutional. We find no force in the contention. The object of Article 15(4) is to lift the prohibition of general equality guaranteed in Article 15(2) and 29(2) of the Constitution dealing with the right to admission into an educational institution maintained by the State or receiving aid from the State. Therefore, their object is distinct and different from Article 19(1)(c). Though Article 19(1)(c) gives freedom to form association, it is controlled by the provisions of the Act. As held by this Court, once a society has been registered under the Act, the management of the society through Section 29 and the Rules made thereunder, is regulated by duly elected members. In the democratic set up, all eligible persons are entitled to contest the election, as held, according to the provisions of the Act and Rules. In the absence of elected members belonging to the weaker sections and women elected, nomination of them by the Government is the alternative dispensation envisaged as one of the policies of the Act. Therefore, the Court cannot interfere with the policy and declare it is unconstitutional violating Article 19(1)(c) of the Constitution.
Mr.Mihir Joshi, learned senior advocate for the respondent has also relied upon the decision of the Hon'ble Apex Court in the case of Daman Singh & Ors vs State Of Punjab & Ors., reported in (1985) 2 SCC 670.
7.3 Finding on the point of non-joinder of the parties :
So far as the submission of the respective parties on the point of non-joinder of the parties is concerned, here in this case, considering the submissions of both the sides, the rectal in the ATS clearly provides that the allottees are to be Page 34 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 removed from the land. Thus, it is apparent that at the time of ATS, allottees were in the suit land, which was in the knowledge of the respondent - plaintiff.
It is admitted fact on record and it cannot be disputed that the transfer or the enforcement of the ATS was based upon the conveyance of the land from the original owners to the appellant plaintiff. The owners was to convey the land and those lands were to be handed over to the respondent. It is also made out that the lands were allotted to other persons who are third party or non-members, however, whether they are legal members of the society or not, it is a question apart but they were allottees on the land. It is also admitted fact that the appellant - original defendant has filed suit against the original owners of the land, which is pending and it has not attained finality. Admittedly, the MOU which is to be enforced also clarifies that 75% of the land will be of the respondent and 25% shall belong to Mr.Ashish Patel.
In the case of Mashkoor Hasan Khan (supra), in para 1, 2, & 3, it has been held and observed as follows:
"2. lt may be noted that the actual bidders or the persons in whose favour the rights have now been granted by the Zila Parishad were not implemented as parties to the suit nor in Parishad wean interim injunction made in the suit. They are not impleaded in this appeal either. In the counter affidavit filed on behalf of the Zila Parishad it has been stated that Page 35 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 written contracts had already been entered into by the Zila Parishad for collection of carcass, bones and hides etc. with third parties who are not parties to the suit or to this appeal.
3. It is thus obvious that in case any injunction is granted it will adversely affect the interest of third parties who are not present before this Court. In these circumstances the interim injunction was not in fact maintainable and it was not necessary for the court below to go into the merits of the application."
[Emphasis Supplied] Similarly, in the case of Sajli Kishku (supra), it has been observed as under:-
"...In the absence of a necessary party the suit is not maintainable unless the defect is cured.
16. It is a settled principle of law that an order of injunction like all interim orders is passed only in aid of the final order that may be passed in the suit. But where as here the suit itself is not maintainable the court should restrain itself from passing any interim order."
It is on record that the allottees / members whether they are legal or illegal, is yet to be decided but prima facie, there are allotments in the name of other persons.
The owners against whom the suit is filed are also not joined. No doubt, it is an obligation on the society to get the land conveyed in favour of the society by the original owner Page 36 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 for which the suit is also filed, but if the appellant fails to get the conveyance of the land from the original owners, rights of the respondent cease to exist. On the contrary, if the owners were joined, they could have come before the trial court and have cleared the obligation of the appellant - defendant. There appears to be some hinch between the appellant and the original owners which would have given rise to the cause of action to file the suit against the original owners. As such the original owners unless and until they do not convey the land, there is no possibility of reconveyance of land to the respondent.
So far as contention of the respective parties with respect to non-joinder of Mr.Ashish Patel is concerned, as per the MOU Mr.Ashish Patel has 25% share in the land. As stated above, the respondents' case is that there is no novation and clause 7(d) is between Mr.Ashish Patel and the respondent and not the appellant and the respondent and hence there is no change in the ATS between the parties. But as Mr.Ashish Patel has not signed individually, as share of Mr.Ashish Patel to the extent of 25% in the MOU, cannot be conveyed to the respondent without joining Mr.Ashish Patel, as he is also an affected party to the suit. By virtue of phrase "banne tarafwala", Mr.Ashish Patel becomes one of the parties of the said phrase. Hence, the performance of the MOU, which is sought by the respondent, cannot be decided without having Mr.Ashish Patel as party.
Page 37 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 So far as the allotments are concerned, in 2006 itself, the allottees were there to whom allotment letters have been issued, however, it is an admitted fact that the allotment dastavej to all the members are not executed. Though it is contended by Mr.Mihir Joshi, learned counsel for the respondent that the allottees are not the members of the society and if they are members of the society, the society will take care of their rights and interest. But this fact also cannot be denied that a list of the allottees has been placed on record by the society. Whether the allottees are legally or illegally on the land is a question which cannot be decided by this Court, but when the ATS says that allottees are to be removed or the allotments are to be cancelled, it becomes an act which affects the rights of the allottees, who are on the land since long and they are waiting for getting their allotment dastavaj. It also reveals that common amenities have been provided on the land, brochure of the society is also placed on record and so the allotttes who are members or non-members of the land, they have right in the land in the common amenities and hence they have undecided rights in the suit land. If they are removed without any legal action, it will be hardship to the allottees and they cannot be removed without following process of law and admittedly in that case the allottees have to agitate their grievance in the suit.
In the case of Shivali (Vejalpur) Co-Op.Hosg. Society Ltd. (supra), in paragraph Nos. 9 & 10, it has been observed Page 38 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 and held as under :-
"9 In my opinion when a housing society issues the allotment letters in favour of its members with reference to its respective units/shares an interest in the same will be said to have been created in favour of its members. Even in the case of a tenant copartnership society or a tenant coownership society, where the land is supposed to be owned by the society and upon which houses are constructed by the society for the benefit of its members or by the members themselves, as the case may be and when allotment letter is issued in favour of an individual member, in such cases also, interest in the immovable property to be occupied is always created.
10. A letter of allotment is an an areement to sell immovable ' property as the possession of the property is transferred to the purchaser before or at the time of or subsequent to the execution letter of allotment of the society is a transfer of interest of the society to a third party who, subsequently, becomes a member. In the case of a housing society, the right of occupation and enjoyment of the plot allotted to the member is vested to him. Under the provisions of the Gujarat Co-operative Societies Act a society and its member/s are independent of each other. Both are mutually exclusive. A society can exist even in the absence of its members and it can include an y personas its members. A co-operative society is formed in order to allow its member/s to execute their requirements and to avail the benefits jointly, which is not Page 39 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 feasible or possible individually. Therefore there is no substance in the contention raised by the petitioners that a society and its members are not independent of each other.
[Emphasis Supplied] So far as the contention raised by Mr.Mihir Joshi, learned counsel for the respondent that the appellant society has filed the suit against some of the allottees in order to argue that the appellant does not recognize the rights or interest of the allottees, it is made out from the plaint itself that the appellant has reframed its obligation to execute allotment dastavej in favour of the allottees, once the remaining balance consideration is paid. Hence, the suit which is filed by the society against the allottees also reveals the fact that the allottees are on the land prior to filing of the present suit and the society was keen to confirm its obligation to execute dastavej on payment of remaining balance consideration and so those allottees who are there on the land, if removed without due process of law, it will be based upon ATS and it will be hardship to the allottees and who will be affected by the order of this Court and the allottees will not be able to use their amenities accordingly and so it will be affecting their rights in their absence.
Mr.Joshi, learned senior advocate has relied on the decision in the case of Gurmit Singh Bhatia (supra), wherein the vendee and the subsequent purchaser claimed Page 40 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 rights on the basis of different agreements with the vendor. As the agreements were different and also because the subsequent purchaser was claiming independent title adverse to the vendor, the subsequent purchaser was not implemented at the risk of the vendee, hence the facts of the case cited by the learned senior advocate for the respondent are different, whereas in this case, the rights of the respondent depends on the agreement that the appellant has with the original owners and as stated above, if the appellant's suit against the original owners fails, the alleged right of the respondent will also ceased to exist and in that case also the owners becomes necessary party and as mentioned above, if they are brought as owners on record, it would have been convenient for the respondent to get conveyance in their favour through the appellant.
In the case of C.O.D. Chheoki Employees' Cooperative Socieety Limited and others (supra), and in the case of Daman Singh (supra) it is laid down that the members of the society do not have any independent right in the co-operative society or the appointment of the chairman was being challenged and the Hon'ble Apex Court observed that the members cannot challenge the Act or bye- laws or the rules by which they exist and they do not have any independent rights in the society. Paragraph 11 of Daman Singh (Supra) states that members under the relevant Co-operative Societies Act in the case, are also Page 41 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 given the chance to be heard if they wish to be heard, indicating that persons do not lose their individuality after becoming a member.
8.1. Finding on readiness and willingness u/s 16 of the Specific Relief Act:
So far as the contentions of both the parties with respect to the readiness and willingness u/s 16 of the Specific Relief Act is concerned, it is the issue wherein the plaintiff and the respondent has to discharge their duties to prove readiness and willingness to perform their part of the contract by adducing cogent and convincing evidence before the learned trial court and resultantly, if the plaintiff is unable to prove readiness and willingness on his part, there will be no order of specific performance of contract in favour of the plaintiff. As such the contents of section 16(1)
(c) pertains to the specific performance. Readiness and willingness is a question of facts and hence, the said question is kept open to be decided by the learned trial court and this Court has not dealt with the same.
9. UNAMENDED SECTIONS 13 AND 14 OF THE SPECIFIC RELIEF ACT :
9.1 Submission of the appellant on Secs.13 and 14 of Specific Relief Act:
Mr.Soparkar, learned senior advocate for the Page 42 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 appellant, on the point of unamended sections 13 and 14 of the Specific Relief Act has submitted that the specific performance of the ATS is not possible under sections 13 and 14 of the Specific Relief Act.
It is submitted that there are three parties in this case having their rights and interest in the suit land, namely, the original owners, Mr.Ashish Patel and allottees / members of the society. It is submitted that as per section 13(1)(b) of the Specific Relief Act neither of the three parties are "bound to concur" or "bound to convey" at the request of the appellant society and therefore ATS cannot be performed under section 13 of the Specific Relief Act.
Mr.Soparkar, learned senior advocate for the appellant has further submitted that where compensation is adequate relief, specific performance of the contract is not enforceable and that under section 41(h) of the Specific Relief Act, an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceedings.
Mr.Soparkar, learned senior advocate for the appellant has further submitted that the respondent has admitted in the plaint itself that the respondent is having business of selling, purchasing and developing the land related activities. It is also admitted in the plaint that even in the past, the respondent had purchased the property from Mr.Ashish Patel. Furthermore, in the suit itself, the respondent has prayed that the sale deed of the suit land Page 43 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 may be executed in favour of any one proposed by the respondent, which indicates that the respondent is satisfied with compensation and is not concerned with the suit land for his own use.
Clause 7(d) also states that the suit land is to be jointly sold by the appellant and the respondent to third party. As such the agreement by way of MOU is an agreement for developing the land and selling it to the third party and therefore, injunction cannot be granted for such an agreement in such a situation. If the suit land will have to be "merchandise" or "stock-in-trade" of the respondent, in which case, presumption will not be available to the respondent and in such a case, the respondent can be compensated in terms of money, as the respondent is concerned with profit after selling the land. It is apparent, that the compensation in form of money would suffice. The respondent is concerned with profit and therefore, presumption is also not applicable to the facts of the present case and injunction ought not to have been granted.
Mr.Soparkar, learned senior advocate for the appellant has placed reliance on the decision of the Hon'ble Apex Court in the case of Hari Krishna Agarwala Vs. k.c. Gupta, reported in 1948 SCC OnLine Allahabad 183.
Mr.Soparkar, learned senior advocate for the appellant has placed reliance on the decision of the Hon'ble Apex Court in the case of Ramji vs. Rao Kishoresingh, reported in 1972 SCC Online Privy Council 40.Page 44 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023
C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 Mr.Soparkar, learned senior advocate for the appellant has further submitted that unamended section 14(1)(a) of the Specific Relief Act stipulates that the contract which can be adequately compensated through money in case of non- performance, cannot be enforced.
Mr.Soparkar, learned senior advocate for the appellant has placed reliance on the decision of the Hon'ble Apex Court in the case of Dave Ramshankar Jivatram vs. Bai Kailasgauri, reported in 1972 SCC OnLine (Gujarat) 61, wherein it has been observed and held in para 7 as under:-
"7. .....Plaintiff No. 1 does not require the suit house for her own residence and that is the material fact Even before the date of the institution of the suit she had entered into an agreement of sale with original plaintiffs Nos 2 and 3 and executed a banakhat Exhibit 25 dated February 14, 1963 The agreement of sale is consideration of Rs 11.999 and Rs 501 has been given as an earnest money as stated in the document it is stated in the plaintiff No 1 has entered into an agreement of sale of the suit property on 14-2- 1963 with plaintiffs Nos 2 and 3. In favour of plaintiff Nos 2 and 3 or in the alternative in favour of plaintiff no 1 does not require the suit property fir her own use of occupation She only wants to reconvey the property. Having regard to the peculiar facts of the case the document Exhibit 2 7 is a contract for the non - performance of which compensation in money is an adequate relief in such a case the contract cannot be specifically enforced as provided in clauses (a) of sub-Page 45 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023
C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 section (1) of section 14 of the Actr Plaintiff No 1 who is the respondent herein has already entered into n agreement of sale of the suit property She does not require the properly she does not require the property fir her own self She could be adequately compensated in money and in my opinion it would be an adequate relief.
9....the plaintiff No 1 admittedly does not require the suit property for her own self She only wants to sell away the suit property to plaintiff Nos 2 and 3 at a profit she has entered into an agreement of sale Exhibit 25 Banakhat dated 14-2-1963. The sale is to be for a price of Rs.11.999 thus what she wants is the money value of the property of the property. The defendant has purchased the property for a sum of Rs 5,999 He is entitled to make repairs and insure other expenses the extent of Rs 751 as provided for in the agreement of sale Exhibit 25 Banakhat dated 14-2-1963. The sale is to be for a price of Rs 11,999. Thus what she wants is the money value of the property. The defendant has purchased the property for a sum of Rs.5,999. He is entitled to make repairs and incur other expenses, the extent of Rs 751, as provided for in the agreement of reconveyance. Ex. 27. the deference, therefore, would be only of Rupees 5,249. The plaintiff No 1 would thus be adequately compensated in money if I decree an award of Rs. 5,249 in her favour, as compensation in money for the admitted breach of the specific performance if the agreement to reconvey evidenced by the document. Exhibit 27. Mr. Shah on behalf of the appellant declares that his client is ready to pay this amount as compensations, I need not therefore go into further detail on this point as regards the quantum of damages.
Page 46 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 Accordingly although I have dismissed the other contentions of Mr. Shah I must accept the last one I hold that having regard to the special facts of the case stated earlier this is not a case in which specific performance of the contract to transfer the immovable property should be granted although there is a breach of such contract In my opinion the breach would be adequately relieved by compensation in money, I accordingly set aside the decree of specific performance passed by the learned 4 the Joint Civil Judge junior Division Baroda in Regular Civil Suit No. 415 of 1963 and confirmed by the learned Assistant Judge Baroda in Regular Civil Appeal No 162 of 1965 and instead decree that the defendant appellant do pay to the plaintiff No.1 (respondent herein) a sum of Rs.5,249 as compensations in money for the breach of the agreement. Exhibit 27 the defendant pay this amount within ten weeks form today failing which the amount will carry interest at 6 per cent per annum from the date of the expiry of the period of ten weeks the appeal is partly allowed with no order as to costs in the circumstances of the case.
Mr.Soparkar, learned senior advocate for the appellant has placed reliance on the decision of the Hon'ble Apex Court in the case of Raman v. R. Natarajan, reported in 2022 SCC OnLine SC 1212. Paragraph Nos. 16, 17 and 20 of the said Judgements are as under:-
"16. In any case, the High Court ought to have seen that a Court cannot grant the relief of specific performance against a person Page 47 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 compelling him to enter into an agreement with a third party and seek specific relief against such a third party. In other words, the specific performance of the agreement by the appellants entering into an agreement with a third party; and (ii) appellants being in a position to compel such third party to perform her obligations under such agreement.
17. The High Court ought to have seen that the specific performance of the Agreement in question comprised of two parts namely, (i) the defendant entering into an agreement with his brother's wife for the purchase of a land for providing access to the land agreed to be sold under the suit Agreement of Sale; and (ii) the defendant thereafter executing a sale deed conveying the property covered by the suit Agreement of Sale.
20. Even the limited rights conferred by Section 13(1)(b) of the Specific Relief Act are not available to the respondent, as there was no legal right in the defendant to compel 3 rd parties to convey their land to him for the purpose of providing a pathway to the land agreed to be sold to the respondent herein. Section 13(1)(b) reads as follows:
"13. Rights of purchaser or lessee against person with no title or imperfect title.--(1) Where a person contracts to sell or let certain immovable property having no title or only an imperfect title, the purchaser or lessee (subject to the other provisions of this Chapter), has the following rights namely:-
(a) xxx xxx xxx Page 48 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023
(b) where the concurrence of other persons is necessary for validating the title, and they are bound to concur at the request of the vendor or lessor, the purchaser or lessee may compel him to procure such concurrence, and when a conveyance by other persons is necessary to validate the title and they are bound to convey at the request of the vendor or lessor, the purchaser or lessee may compel him to procure such conveyance;"
It is submitted that in view of the above, specific performance of the ATS is not possible.
9.2 Submission of the respondent on unamended sections 13 and 14 of the Specific Relief Act :
Per contra, Mr.Mihir Joshi, learned senior advocate for the respondent, on the point of unamended sections of sections 13 and 14 of the Specific Relief Act, has contended that no individual concurrence of the allottees is required over and above the concurrence of Mr.Ashish Patel is also not required because he has 25% share in the land, only after the society as well as land to the respondent and right of Mr.Ashish Patel flows from the respondent and not from the society. It is also submitted that the owners are bound to sell the land to the society and concur and as per the ATS, owners are bound to concur on demand of the society as the society has paid the entire sale consideration. It is submitted that the society who has filed the suit against the allottees have prayed for injunction regarding non-transfer Page 49 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 of the suit land in favour of third party. As such there is no requirement for the allottees also to validate the title.
Mr.Mihir Joshi, learned senior advocate for the respondent, on the point of section 14(1)(a), has submitted that section 14(1)(a) applies to general contract like contract for movable properties and so far as immovable properties are concerned, section 10 specifically provides that unless and until contradictory is proved, general presumption that breach of contract of transfer of immovable property cannot be adequately relief by compensation and this presumption can be rebutted only if contrary is proved in the trial, decree of possession of exception to the general rule and here in this case, as the dispute is with respect to immovable property and therefore, such a contention is not there. It is also submitted that the party coming to the Court for specific performance of the contract of sale of immovable property need not prove anything unless the otherside is removed the presumption. After evidence is led to remove the presumption, the plaintiff is still in a position to prove by other evidence in case that payment that payment of money does nto compensate him adequately. It is also submitted that section 14(1)(d) is not applicable to the facts of the case and does not run into minute details and does not involve personal qualification or volition of the parties. Similarly, it does not involve continuous duties which Court cannot supervise. The transaction is simple in nature for which section 14(1)(d) is not applicable and is raised only to Page 50 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 avoid the obligation.
Mr.Mihir Joshi, learned senior advocate for the respondent has placed reliance on the decision of the Hon'ble Supreme Court in the case of M.L. Devender Singh and others vs. Syed Khaja, reported in (1973) 2 SCC 515, wherein in para 21 it has been observed and held as under :-
"21. The second assumption underlying the contentions on behalf of the Defendants-appellants is that, once the presumption, contained in explanation to Section 12 of the old Act, is removed, the, bar contained in Section 21 of the old Act, against the specific enforcement of a contract for which compensation in money is an adequate relief, automatically operates, over-looks that the condition for the imposition of the bar is actual proof that compensation in money is adequate on the facts and circumstances of a particular case before the Court. The effect of the presumption is that the party coming to Court for the specific performance of a contract for sale of unmovable property need not prove anything until the other side has removed the presumption. After evidence is led to remove the presumption, the plaintiff may still be in a position to prove, by other evidence in the case, that payment of money does not compensate him adequately."
9.3. Finding on the aspect of unamended sections 13 Page 51 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 and 14 of the Specific Relief Act :
Hearing both the sides on the point of concurrence and conveyance under section 13 of the Specific Relief Act, it is not only the person who can transfer his right / title is relevant but also the person who can validate the title is also important. Admittedly, the allottees / members who are on the land have their valuable rights in the suit land including the ownership over the plot and undivided share in the basic amenities and services of the society, their concurrence is required to validate the title to passed on to the respondent. The allottees / members who are on the suit land are not bound to concur at the request of the appellant and hence section 13(1)(b) comes into picture unless and until the allottees / members themselves come forward to validate the title, ATS cannot be enforced and as stated above, without due procedure of law, the allottees / members cannot be removed from the land. Regarding concurrence of Mr.Ashish Patel is concerned, as per MOU which is subsequent even taken place after execution of the ATS, Mr.Ashish Patel has become owner of the suit land to the extent of 25% and in the opinion of this Court, concurrence is required of Mr.Ashish Patel to validate the appellant's title to be passed to the respondent and it cannot be denied that Mr.Ashish Patel also is not bound to concur at the request of the appellant.
Moreover, so far as 25% and 75% share, as per MOU is concerned, which part of the land is of the respondent and Page 52 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 which part is of MOU is also not clarified. The concurrence to that effect for demarcation of the land is also required and here also sections 13 and 14 comes into picture.
As per submission of Mr.Mihir Joshi, learned senior advocate for the appellant, it is open for the appellant to get concurrence and in that manner indirectly it is a statement regarding appellant's right to sue against all the person from whom concurrence is required.
If the respondent is having ATS which is to be enforced whether the Court can issue the decree compelling the appellant to obtain concurrence from the persons who are bound to concur as per the say of the respondent?. and if that is so, the appellant will have to initiate litigation against the original owners which is subject to their personal volition of the appellant. In that sense, section 14(d) of the Specific Relief Act comes into picture, where the Court is to issue a decree compelling the appellant to pursue litigation, it would involve numerous details and performance of the continuous which court cannot supervise continuously. Assuch, it will be a chaos on record compelling the appellant to get enforcement of the ATS of the respondent by suing the owners, allottees and original owners of the land which again cannot be specific enforcement under section 14(1)(d).
Considering the submissions of both the sides and as stated above, three parties in total are affected in this case, Page 53 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 namely original owners, Mr.Ashish Patel and the allottees and as per section 13(1)(b), as mentioned, bound to concurrence cannot be said to be a ground for right to sue against all the persons and create litigations and also as stated above, it will cast obligation where the Court will not be able to issue decree which will compel the appellant to obtain concurrence without legal procedure of law and if that is so, the court issue decree compelling the appellant to pursue litigation it will involve numerous details and purpose of a continuous duty, which will have to be supervised and which can be said to be against section 14 of the Specific Relief Act, as the Court will have to supervise on one side conveyance of the deed from the allottees to the appellant, owners' conveyance towards the appellant and thereafter all the lands if is vested in the appellant it shall be conveyed to the respondent. As such section 14 also, as stated above has a role to play.
10. CAN COMPENSATION BE AN ADQUATE REMEDY:
So far as the submission regarding compensation being adequate remedy is concerned, the respondent himself has admitted in the plaint that the respondent is in the business of purchasing, selling and developing the land. The MOU which is produced on record, clause 7(d) also states that the land is to develop jointly by Mr.Ashish Patel and the respondent and so MOU becomes impliedly a joint development agreement between the parties. It has come on Page 54 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 record that the respondent has not asked the land for his own use but he is asking the land exclusively for selling ahead, which cannot be denied. It is a business of purchasing, selling and developing of the land of the respondent.
This court is in complete agreement with the proposition of law that under section 10 of the Specific Relief Act which shows that unless and until contrary is proved, Court shall presume that the breach of a contract to transfer immovable property cannot be adequate relief by compensation in money. Here in this case, when the respondent has admitted that they are dealing in purchasing, selling and developing the land activities and when they do not require the land for their own, but it is only for the merchandise, this admission itself need not to be proved. In these circumstances, if specific performance is denied, apparently the respondent is entitled for compensation which can be calculated in terms of money. The admission of the respondent itself shows that the respondent is only concerned with the profit after selling the land and when the respondent is not using the land for his own purpose and will be selling and developing the land for profit, presumption cannot be made applicable.
So far as the decision in the case of Syed Khaja (supra) is concerned, in that case the defendant relied on a clause in the contract providing for liquidated damages in case of breach for presumption. Here in this case, Page 55 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 presumption shall not apply on account of admission of the respondent. In the present proceedings regarding their business of purchasing, selling and developing the land activities and their intention is on record to sell and develop the suit land and that also for profit.
Now a days it cannot be ruled out that in such proceedings, when the land is agreed to be sold and agreement is executed but is never concurred to be enforced upon and thereafter, due to some dispute between the parties, litigation takes place, the main dispute is hike in the price of the land.
The respondent has invested money and the return of money is sufficient which cannot be termed to be their profit. This court do agree with the submission of Mr.Soparkar, learned senior advocate for the appellant that compensation can be adequately given to the respondent.
Based upon the case of Dave Ramshankar (supra), when the facts indicated that the plaintiff No.1 did not require suit land for her own use and she only wanted to reconvey the property, compensation of money is adequate relief. In such a case, contract cannot be specifically enforced.
10. PRINCIPLES OF GRANT OF INJUNCTION :
So far as the principles of grant of injunction is concerned, it is submitted by Mr.Soparkar, learned senior advocate for the appellant that the impugned order is Page 56 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 against the settled principles for grant of injunction. It is submitted that in case the impugned order is not vacated, the appellant will face criminal and civil proceedings filed by the allottees / members of the appellant society, who have been allotted plots way back in the year 1996, as many allotment dastavej are yet to be executed in favour of the allottees and therefore, irreparable loss or injury will be caused to the appellant rather than the respondent. It is also submitted that the allottees / members of the society have also initiated proceedings against the appellants and even the respondent has also initiated proceedings, which ultimately resulted into the cancellaton of the sale deed for survey nos.227 and 228. It is also submitted that the respondent never agitated and neither sought to agitate the injunction application for 9 years and therefore, the respondent cannot contend now that irreparable injury will cause to it and for that balance of convenience lies in favourof the respondent. It is the case of the respondent that application under Order 7 Rule 11 of the Code of Civil Procedure was pending and hence there is no delay on the part of the respondent. However, it cannot be denied that the respondent was aware that the suit land was being allotted to the allottees and subsequent allotment dastavej were being executed, which reveals from the list which has been produced on record by the appellant and the respondent never requested the court to agitate the injunction application. The conduct of the respondent Page 57 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 shows that the respondent was never interested in injunction but the respondent was interested with sharing profit only.
It is also submitted by Mr.Soparkar that in the year 2021-2022, as per the say of the respondent, as the original owners of some of the suit land, began executing sale deeds in favour of the appellant, the respondent did not seek any order for injunction since 2013. However, it was in the knowledge of the respondent that survey nos.227 and 228 were in the ownership of the appellant but no urgency was shown for those 2 survey numbers. Even as on today, the respondent has sought injunction of 100% land though the respondent is not in possession and ownership of 100% land. So, the conduct of the respondent is of a nature which shows that there is no irreparable injury to the respondent for 9 years and hence there was also not balance of convenience lies in favour of the respondent and as submitted earlier, when the respondent is having business of purchasing, selling and developing the land, they are concerned with the profit and hence no irreparable injury can be caused to them and they can be compensated adequately, if the injunction is vacated.
Mr.Soparkar, learned senior advocate for the appellant has placed reliance on the decision of the Hon'ble Apex Court in the case of Mandali Ranganna and others vs. T. Ramachandra and others, reported in (2008) 11 SCC 1 and Kishorsinh Ratansinh Jadeja vs. Maruti Corpn.Page 58 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023
C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 (2009) 11 SCC 229, wherein the principles of considering the conduct of the parties while exercising its discretionary jurisdiction is discussed.
11.2. Submission of the respondent on the principle of grant of injunction :
Per contra, Mr.Joshi, learned senior advocate for the respondent has submitted that the suit was filed in the year 2013. It is the case of the respondent that the application under Order 7 Rule 11 of the CPC was pending and it was to be heard before the injunction application and subsequently the suit was also transferred from the court of Ahmedabad to the Court of Sanand. From 2013 to 2020, the society had no other land and the defendant society got 8 survey numbers in the year 2020, 2021 and 2022 and at this stage, the plaintiff immediately moved an application for hearing of the injunction application and thereafter thesuit was dismissed under Order 7 Rule 11 of the CPC, which was challenged by the respondent before this Court by way of First Appeal No.2320 of 2022 and thereafter the application was heard and decided and thus, as such, there is no delay on the part of the plaintiff.
Mr.Joshi, learned advocate for the respondent, on the point of balance of convenience and irreparable injury, has submitted that there are no allottees / members in the suit land and it was the obligation of the society to compensate them and remove them and the society cannot be permitted Page 59 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 to avoid obligation which is accepted. It is also submitted that the society has not executed convenience in favour of the allottees from 1996 to 2022 for their plots. The allottees have also not preferred any civil or criminal proceedings from the year 1996 to 2022, which shows that there are no allotteees in the society and so the balance of convenience and irreparable injury are also in favour of the appellant.
Mr.Mihir Joshi, learned senior advocate for the respondent has relied on the case of Maharwal Khewaji Trust (regd) vs. Baldev Dass, reported in (2004) 8 SCC
488. Para 10 of the said decision is reproduced as under :-
"10. Be that as it may, Mr. Sachhar is right in contending that unless and untill a case of irreparable loss or damage is made out by a party to the suit, the court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. In the instant case no such case of irreparable loss is made out except contending that the legal proceedings are likely to take a long time, therefore, the respondent should be permitted to put the scheduled property to better use. We do not think in the facts and circumstances of this case, the lower appellate court and the High Court were justified in permitting the respondent to change the nature of property by putting up construction as also by permitting the alienation of the property, whatever may be the condition on which the same is done. In the event of the appellant's Page 60 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 claim being found baseless ultimately, it is always open to the respondent to claim damages or, in an appropriate case, the court may itself award damages for the loss suffered, if any, in this regard. Since the facts of this case do not make out any extraordinary ground for permitting the respondent to put up construction and alienate the same, we think both the courts below, namely, the lower appellate court and the High Court erred in making the impugned orders. The said orders are set aside and the order of the trial court is restored."
11.3. Finding on the principle of grant of injunction, prima facie case, balance of convenience and irreparable loss and conduct of the respondent :
Upon hearing the submissions of both the sides on principle of grant of injunction, prima facie case, balance of convenience and irreparable loss and conduct of the respondent, here in this case, it cannot be disputed that the allottes were allotted plots from the year 1996, whether they are legally members of the society or illegally, is a question which cannot be decided at this stage, however, it cannot be denied that the government record i.e. report of the society conveys that if the submission of the respondent is that there were 24 members of the society and four on the suit land, then also, the allottees are there, who are members. Moreover, as per the say of the appellant, till the suit was filed, 69 registered dastavej have been executed in Page 61 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 favour of the appellant, out of 69 allottees, 54 allotment dastavejs are of the suit land and after the suit was filed till 2022, 51 allotment dastavej have been executed, out of which 35 pertains to the suit land. It is also submitted that on the suit land bungalows have been constructed and many bungalows are under construction and even a temple is also under construction in survey no.218. No doubt, the facts which are narrated in the submissions by the learned advocate for the appellant but no documents are placed on record by way of evidence and the same can be proved by the appellant in the trial, but baseline cannot be denied that the allottees were there on the land. It can also not be denied that they have been given rights of using common amenities and other parcels of land. Even for the sake of arguments, if it is believed that only 24 members were there in the society as per the record and only 4 are there in the suit land, but it cannot be denied that the land surrounding the suit land are parcel of the entire suit land and the members who ever may be in the suit land or other land are entitled for the enjoyment of the amenities which cannot be denied. It also cannot be denied that the third party rights exists on the suit land, as recorded by the learned trial court in the impugned order. It is also concluded in the impugned order that the interest of third parties have been created in the suit land. It is also observed by the learned trial court in the impugned order that the appellant has not acted bonafide with the plaintiff and the allottees of the Page 62 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 land. If that is so, then it becomes clear that there are allottees on the land and the injunction will create a situation wherein the appellant will have to face civil and criminal litigation from the allottees. As such the contentions raised by the learned advocate for the appellant that here is construction on the land by the allottees and as per the submission of he learned advocate for the respondent that there are 24 members in the land and 4 members are there in the suit land, then also if any action is taken against the legal allottees, it will be a situation for the appellant for facing civil and criminal litigation from the allottees which cannot be denied, as it is an admitted fact that in the year 2010 some of the original allottees had initiated legal proceedings against the appellant and the respondent for survey nos.227 and 228 and thereafter, partners of the respondent firm in whose favour the land was transferred, decided to cancel sale deed for survey nos.227 and 228, considering this aspect also though the conveyance for survey nos.227 and 228 were executed in favour of the respondent when the respondent was compelled to cancel those sale deeds at the instance of the allottees, it had become a case for agitating dispute by way of suit by the respondent. It is also not in dispute that one of the partners of the respondent firm signed as a witness in allotment dastavaj for plot Nos.15 and 17 which were part of extended Radhe Acres Scheme and in the list, serial number was mentioned which included the suit land and Page 63 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 allotment dastavej also stated that allottee members owned common rights and amenities provided by the appellant which has stated in the suit land.
Over and above, it is required to be noted that in First Appeal No.2320 of 2022 vide order dated 6/10/2022, the Division Bench of this Court while allowing the appeal of the respondent and reviving the suit, has observed that so far as Annexure-B (from page 134 to 141) is concerned, those are the original allottees. Any transfer in the interregnum by them shall be counted separately. As there is serious dispute in relation to the list 142 to
145. It is volunteered by the learned advocate on instruction that the respondent shall not deal with the said list for the purpose of transfer of otherwise. It becomes clear that the Division Bench of this Court has also recognized that there are original allottees of the suit land who have rights. An arrangement was also proposed allowing the appellant to transfer the suit land by maintaining the accounts. Even the Division Bench has also taken into considered the position of allottees and their allotments. As such, if the status-quo is continued, it would result into multiplicity of litigation and which will result into irreparable injury to the appellant rather than the respondent in whose knowledge, the fact of allotment was there and who has remained silent.
Considering overall facts of the case which has not Page 64 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 been considered by the learned trial court, it appears that if the injunction is continued, the allottees have paid their consideration towards their land and allotment dastavej is already executed, which becomes a irreversible situation for the appellant for cancelling the allotments by compensating the rights and taking back the possession without any due process of law. At the same time, the appellant will have to face litigation to that effect against one person i.e. respondent. So considering the balance of convenience and irreparable injury, this Court is of the opinion that it coveys more in favour of the appellant rather than respondent, who has a business of selling, purchasing and developing the land and has pursue the litigation for profit and who can be adequately compensated in terms of money. At the same time, conduct of the respondent stated hereinabove, also tilts the balance of convenience and irreparable injury in favour of the appellant who in the knowledge of the respondent at the time of executing ATS had allotted some plots to the allottees and it cannot be denied that during the pendency of the suit and till hearing of the application, plots were not allotted and till then for 9 years when the respondent has remained silent in agitating the injunction application, it appears from the conduct of the respondent that the respondent was concerned about agitating the litigation wherein even as per his own say, has invested around Rs.11,49,00,000/-, however, the respondent waited patiently for 9 years and as submitted by Page 65 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 the learned advocate for the appellant, there are constructions which are carried out in the suit land during these years, which is though not on the record, but cannot be disbelieved as there is already a list of allottees on record and so after flowing of much water, if the injunction is granted, it will affect the rights of those persons and it would cause irreparable injury to the appellant and the appellant will have to face a lot of hardship. At the same time, balance of convenience is also in favour of the appellant rather than the respondent.
As held in the case of Mandali Ranganna (supra), Court must also take into consideration the conduct of the parties while exercising its discretionary jurisdiction while considering an application for grant of injunction, the court will not only take into consideration the basic elements in relation thereto viz. existence of a prima facie case, balance of convenience and irreparable injury. In the said decision, it is also further held that grant of injunction is an equitable relief and a person who had kept quite for a long time and allowed another to deal with the properties exclusively, ordinarily would not be entitled to an order of injunction.
Relevant paragraph Nos.21, 22 and 26 of the decision in the case of Mandali Ranganna (supra) reads thus:
"21. While considering an application for grant of injunction, the court will not only take into Page 66 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 consideration the basic elements in relation thereto, viz., existence of a prima facie case, balance of convenience and irreparable injury, it must also take into consideration the conduct of the parties.
22. Grant of injunction is an equitable relief. A person who had kept quiet for a long time and allowed another to deal with the properties exclusively, ordinarily would not be entitled to an order of injunction. The court will not interfere only because the property is a very valuable one.....
26. Rightly or wrongly constructions have come up. They cannot be directed to be demolished at least at this stage. Respondent 7 is said to have spent three crores of rupees. If that be so, in our opinion, it would not be proper to stop further construction."
In the case of Ramji v. Rao Kishoresingh, reported in 1929 SCC OnLine PC 40, the Hon'ble Court has observed and held as follows:
"It is necessary to refer to two other findings of the learned District Judge -
namely : (1) that damages would have been an adequate relief to the plaintiff, and (2) that such damages should be Rs.20,000.
In dealing with this question, learned judge said as follows:
"No special damages have been proved by the plaintiff. He simply invested money and a return of money should normally be Page 67 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 sufficient. It is not shown that he had any pressing need for land. On the contrary, from the very nature of the contract, it is evident that there was no hurry at all, and that not only might plaintiff fail to get the land but in any case, he could not expect to get it for several years. Indeed, the only reason for insisting upon specific performance is that the value of the village now is probably more than the money advanced plus reasonable interest. Plaintiff can certainly say that he took a risk and that he should be compensated for such risk. But compensation could be given in money. This ground of appeal must fail."
In the case of Maharwal Khewaji Trust (regd.) (supra), relied upon by the learned senior advocate for the respondent, it is held that unless and until a case of irreparable loss or damage is made out by a party to the suit, court should not permit a change of the said status- quo which may lead to loss or damage, if caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. In any event, it is open to the either party to claim damages if ultimately the case of the other party is found baseless and Court may award damages for the loss suffered, if any.
Considering the aforesaid observations, when a case of irreparable injury is made out, status-quo can be effected, is the principle laid down. In the present case, Page 68 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 when the respondent is agitating the suit or the injunction application for 9 years, irreparable injury or balance of convenience does not lie in favour of the respondent when there are alienation and allotment in the land prior to filing of the suit and after filing of the suit which will affect the rights of the allottees as well as will encourage multiplicity of litigation against the appellant by the allottees. So far as prima facie case, balance of convenience and irreparable loss are concerned, in the opinion of this Court, it tilts in favour of the appellant rather than the respondent.
Considering the basic principle of law as laid down in the case of Wander Ltd. And another vs. Antox India P. Ltd., reported in (1990) Suppl. SCC 727, more particularly para 14, as relied upon by Mr.Mihir Joshi, the learned advocate for the respondent, appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that it had considered the matter at the trial stage, it would have come to a contrary conclusion, if the discretion has been exercised by the trial court in a reasonable and in a judicial manner, the fact that appellate court would have taken a different view may not justify the interference. This court is in complete agreement with this principle of law. But it is open for every court to interfere with the impugned order if the findings are found to be non-judicial or perverse, which cannot be denied. Here in this case, considering the Page 69 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 impugned order, the learned trial court has not considered the facts of the dispute between the parties and therefore, this court has re-examined the facts of the case. The learned trial court has not considered the fact that the injunction ought to have granted when all the three criteria are found in favour of the plaintiff namely prima facie case, balance of convenience and irreparable loss, which cannot be compensated in terms of money. At the same time, the learned trial court ought to have come to the conclusion that granting injunction based on the principle that equity helps the person who does equity. Here in this case, the learned trial court has failed to take into consideration the fact that even the ATS is there and there was no need for MOU to be executed. The fact that the ATS was executed in the year 2006 and though conditions mentioned in the ATS and MOU were not fulfilled, how the cause of action arose in the year 2013. The learned trial court also failed to considered the conduct of the respondent though written submissions were submitted. The finding that after filing of the suit new allotments have been given, no evidence to that effect was brought on record by the respondent and if there was finding that there exists right of third parties in the suit land, the court should have vigilant enough to opine clearly upon the balance of convenience and irreparable loss when there are allottees or third parties rights are existing in the suit land, they will be affected by the order of injunction which in enjoying their properties along with Page 70 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 common amenities. At the same time, it cannot be ruled out that if the injunction is operated, it will cause hardship to the appellant herein and the appellant will face hardship and litigation from the allottees and the same would result into multiplicity of proceedings. The trial court erred that the respondent - plaintiff has prima facie case on the basis of ATS only and as the appellant has sought injunction against the allottees / members in the suit filed by the appellants against the allottees and the respondent is seeking injunction, court has not taken into consideration the fact that the appellant has reaffirmed the obligation towards the allottees members and when the allottees / members pay balance of consideration to the appellant, allotment dastavej will be executed in their favour and restrain order would cause hardship to the appellant herein in not conveying the allotment dastavej, it will result into multiplicity of proceedings to be faced by the appellant herein and same would hardship to the appellant herein. Even for the sake of argument, if the prima facie observations of the learned trial court is believed that the respondent is having a prima facie case, but the trial court has erred in erroneous observation regarding the respondent having irreparable loss and balance of convenience in favour of the respondent. Based upon the findings in the impugned order, the learned trial court has granted injunction over the entire suit land wherein MOU which is to be enforced as a recital to the fact that 75% of Page 71 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 the land will be of the respondent and 25% would be of Mr.Ashish Patel. It is also on record that the legal proceedings initiated against the appellant wherein deeds for survey nos.227 and 228 were executed and the trial court's own finding that there exists rights of the members, the finding that no irreparable injury to the appellant and balance of convenience is not in favour of the appellant herein, is erroneous.
In the entirety, this Court is of the opinion that the entire facts of the case reveals that it becomes an irreversible situation for the appellant to reverse and to cancel the allotment of the members by compensating the rights and take back possession of the plots. In fact, it will be a irreparable injury to the members / allottees and rights which are not being brought on record by the respondent, who admitted them to be brought on record in the rejoinder and this fact also cannot be denied that the allottees are more in number and who are bonafide purchasers of the land, rightly or wrongly which is yet to be decided and they will initiate litigation against the appellant herein and the appellant will face hardship. Whereas, on the other hand, the respondents, who are concerned with their business of purchasing, selling and developing the land activities, can be adequately compensated in terms of money. As such, all the three principles of injunction are not proved. In entirety prima facie case does not help the plaintiff to get the order of injunction but at the same time, the plaintiff should also Page 72 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023 C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 show balance of convenience and irreparable loss is in his favour and unless and until all the three ingredients namely prima facie case, balance of convenience and irreparable loss, are tilted in favour of the plaintiff, the Court should be slow in granting injunction. Here also, prima facie case of the plaintiff depends upon the agreement to sell and MOU and both the documents are contradictory and are disputed. At the same time, as stated hereinabove, balance of convenience and irreparable loss is in favour of the defendant rather than the plaintiff. Under the circumstances, the impugned order is not just, legal and the findings are not on the basis of the facts and evidence on record and hence the impugned order cannot sustain in the eye of law.
12. In the result, present Appeal From Order is allowed. The impugned injunction order passed by the learned Principal Senior Civil Judge, Sanand below Ex.5 in Special Civil Suit No.407 of 2017 (Old Special Civil Suit No.272 of 2013) dated 30/11/2022 is hereby quashed and set aside.
Considering the nature of the dispute between the parties, the learned trial court is hereby directed to expedite the hearing of the suit and decide and dispose of the suit, in accordance with law, subject to result of the SLP(C) No. 20976 of 2022, pending before Hon'ble the Apex Court, within a period of four months from the date of receipt of this order.
Page 73 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023C/AO/203/2022 CAV JUDGMENT DATED: 20/06/2023 Parties are directed to co-operate the learned trial court in early disposal of the suit, as aforesaid No costs.
In view of disposal of the main Appeal From Order, Civil Application No.1 of 2022 and Civil Application No.1 of 2023, do not survive and they stand disposed of accordingly.
In the facts and circumstances of the case, there shall be no order as to costs.
Sd/-
(RAJENDRA M. SAREEN,J) After pronouncement of the judgement and order, the Mr.Jigar Raval, learned advocate for the respondent submits that so as to approach the learned Apex Court, the execution, operation and implementation of the present judgement and order may be stayed for a period of eight weeks.
Mr.Raju, learned advocate appearing for the appellant objected the request of stay of the order made by the learned advocate for the respondent. He has submitted that the appellant has faced a great hardship and inconvenience till today and if the order is stayed, the appellant will face more hardship.
Here in this case, right from the order passed below Exh.5, the status quo is directed to be maintained by the trial court which is continued till today. Therefore, to enable the respondent to challenge the present judgement and order before the Hon'ble Apex Court, the execution, operation and implementation of the above impugned judgement and order pronounced today is hereby stayed for a period of six weeks from today.
Sd/-
(RAJENDRA M. SAREEN,J) R.H.PARMAR Page 74 of 74 Downloaded on : Tue Jun 20 20:47:43 IST 2023