Gujarat High Court
Bharatbhai Hasmukhbhai Oza vs Gandabhai Khodabhai Desai & on 14 August, 2014
Author: S.H.Vora
Bench: S.H.Vora
C/AO/334/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL FROM ORDER NO. 334 of 2014
With
CIVIL APPLICATION NO. 8947 of 2014
In
APPEAL FROM ORDER NO. 334 of 2014
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BHARATBHAI HASMUKHBHAI OZA....Appellant(s)
Versus
GANDABHAI KHODABHAI DESAI & 1....Respondent(s)
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Appearance:
MS TRUSHA K PATEL, ADVOCATE for the Appellant(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.H.VORA
Date : 14/08/2014
ORAL ORDER
1. Challenge in this appeal from order is order dated 27.6.2014, whereby the learned Judge was pleased to reject application Exh.5 filed by the appellant - original plaintiff in Special Civil Suit No.226 of 2013.
2. The parties would be referred to as per their original status in the plaint.
3. It is the case of the plaintiff that the defendants have agreed to sell land bearing block Nos.169/1, 169/2 and 169/3 situated at village Narpur, Tal: Kathlal, Dist: Kheda (hereinafter referred to as "the suit lands") to the plaintiff at Page 1 of 7 C/AO/334/2014 ORDER the rate of Rs.2 lac per vigha with total consideration of Rs.20,76,198/- on 9.5.2012. It is the case of the plaintiff that he made payment of Rs.4 lac by cheque/cash and thus, the defendants admitted receipt of said amount.
4. It is further the case of the plaintiff that he paid further payment of Rs.2,25,000/- on 5.6.2013 and Rs.4,50,000/- on 7.6.2013 to the relatives of the defendants and the defendants' relatives issued receipt to that effect. It is the case of the plaintiff that on the same day, the suit lands were cleared from the bank charges and after paying bank's dues to the bank, the parties to the suit reached at 12:00 p.m. at Sub Registrar Office, Kathlal. It is case of the plaintiff that on reaching at Sub Registrar Office, Kathlal, the defendants left the place without informing the plaintiff and thus, the plaintiff waited for entire day at the said office and because of the absence of the defendants, the sale deed could not be executed. Because of this conduct, the plaintiff inquired and came to know that the defendants are executing such writings to various persons and found that the defendants have executed one sale agreement in favour of one Keshubhai Barot on 24.5.2012. It is the case of the plaintiff that on 19.11.2013, the plaintiff issued notice to the defendants to execute registered sale deed. As the plaintiff failed to execute the sale deed, present suit is filed by the plaintiff for specific performance of sale agreement dated 9.5.2012 and for possession. Pending hearing of the suit, the plaintiff has filed injunction application restraining the defendants from transferring, mortgaging, gifting and assigning right, title and interest in favour of third party and further, the defendants be restrained from preventing the plaintiff from entering into the Page 2 of 7 C/AO/334/2014 ORDER suit land.
5. I have heard learned advocate Ms. Trusha Patel for the plaintiff and examined the impugned order.
6. No doubt, it is true that the plaintiff has paid Rs.4 lac on the date of execution of sale agreement on 9.5.2012. But subsequent case as projected in the plaint does not inspire any confidence in respect to sequence of events as asserted in the plaint. It is so because, it is the case of the plaintiff that he paid Rs.6.75 lac in the month of June, 2013 to defendants' relatives. No name is mentioned, but reliance is placed upon one receipt dated 5.6.2013 placed in the record of Appeal from Order No.335 of 2014. So, it becomes clear that the plaintiff has not paid any amount to the defendants or any so called payment made to any relative of the defendants which are not acknowledged by them cannot be considered as payment made to the defendants. Further, it is specific case of the plaintiff that while making payment of said amount of Rs.6.75 lac, they all went to the office of Sub Registrar Office, Kathlal for the purpose of executing registered sale deed. Had it been so, in that eventuality, the plaintiff must have drafted sale deed on stamp paper and also must have brought balance consideration to be paid to the defendants. No evidence worth the name is placed on record so as to infer the plaintiff's case as ascertained in para 7 of the injunction application. It is more surprising that though the defendants left the place in the month of June, 2013 without executing sale deed and also after taking huge amount of Rs.6.75 lac, still however, the plaintiff remained silent till 19.11.2013. No attempt is made to issue any notice to the defendants Page 3 of 7 C/AO/334/2014 ORDER immediately. All these sequence of events as asserted in the injunction application/plaint without supporting evidence does not inspire any confidence in the mind of the Court so as to believe the plaintiff's case as projected by learned advocate Ms. Trusha Patel during the course of hearing. It is settled principle of law that if a person comes before the Court for equitable relief , his conduct requires to be fair and equitable and he must come before the Court with clean hands. In the case on hand, it appears that the plaintiff has approached the Court without material evidence supporting the averment made in para 7 of the injunction application and therefore, the learned Judge has rightly refused the injunction application.
7. At present, the Court is not endorsing the findings of learned trial Judge as to requirement of registration of sale agreement under section 17 of the Indian Registration Act. But, looking to the observations made herein above, the Court is not inclined to entertain present appeal from order for the reasons recorded herein above.
8. It is required to be kept in mind that the present Appeal from Order is filed under the provisions of Order 43 Rule 1(r) of the Code and challenge in this appeal is a discretionary order passed by the learned trial Judge under the provisions of Order 39 Rules 1 and 2 of the Code. In case of Matrix Telecom Pvt.Ltd. V/s. Matrix Cellular Services Pvt. Ltd. reported in 2011(3) GLR 1951, this Court, in paras 6 and 6.1, observed as under:-
"6. Before proceeding further it is required to be noted that the present appeal is against the rejection of interim relief and the main suit is still Page 4 of 7 C/AO/334/2014 ORDER pending. If this court elaborately deals with the matter on merits it is likely that the same would prejudice the case of either side. Therefore, it is well settled law that this Court is not required to go into the merits of the entire matter at this stage and what is required to be seen is whether the appellant-plaintiff has made out a prima facie case or not for grant of interim injunction.
6.1. It is required to be noted that it is well settled law that the Appellate Court may not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. The Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion."
9. Similarly, in the case of Wonder Ltd. and another V/s. Antox India Pvt. Ltd. reported in 1990 (Supp.) SCC 727, the Hon'ble Supreme Court in para 9 of the said decision, after considering the scope of Order 43 Rule 1(r) of the Code in an appeal wherein, the discretionary order passed by the learned trial Court is under challenge, observed as under:-
"9. Usually, the prayer for grant of an interlocutory injunction is at a stage when the existence of the legal right asserted by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till Page 5 of 7 C/AO/334/2014 ORDER they are established at the trial on evidence. The court, at this stage, acts on certain well settled principles of administration of this form of interlocutory remedy which is both temporary and discretionary. The object of the interlocutory injunction, it is stated "...is to protect the plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the "balance of convenience lies".
The interlocutory remedy is intended to preserve in status quo, the rights of parties which may appear on a prima facie. The court also, in restraining a defendant from exercising what he considers his legal right but what the plaintiff would like to be prevented, puts into the scales, as a relevant consideration whether the defendant has yet to commence his enterprise or whether he has already been doing so in which latter case considerations somewhat different from those that apply to a case where the defendant is yet to commence his enterprise, are attracted."
10. So, in light of the limited powers of this Court, the Appellate Court can interfere with the discretionary order passed by the trial Court only in exceptional circumstances and the Appellate Court cannot interfere with the exercise of discretion of the Court of first instance and substitute its own discretion except, where the discretion has been shown to have been exercised arbitrarily, capriciously or perversely or Page 6 of 7 C/AO/334/2014 ORDER where the Court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. In nutshell, an appeal against exercise of discretion is said to be an appeal on principle. To put it differently, the Appellate Court cannot reassess the entire evidence so as to come to its own conclusion contrary to the conclusion arrived at by the trial Court, if two views are possible.
11. While parting with the order, it is clarified that this Court has examined the impugned order passed by the learned trial Judge within the limited scope of provisions of Order 43 Rule 1(r) of the Code, whereas the main controversy involved in the suit is at large before the trial Court to be adjudicated through full-fledge trial. Therefore, the learned trial Judge shall not be influenced by any observations recorded in the impugned order and observations recorded by this Court herein above while deciding the suit at the end of trial. The findings recorded either by the trial Court or by this Court at inter locutory stage of the suit are tentative in its nature and the learned trial Judge shall decide the case on its merit and as per evidence that may be led during the course of trial and decide the suit in accordance with law.
12 In the result, the appeal from order fails and stands dismissed. Consequently, civil application also stands disposed of.
(S.H.VORA, J.) shekhar Page 7 of 7