Gujarat High Court
Nitinkumar Laxmidas And Ors. vs Smt. Savitaben Pranshanker And Ors. on 28 September, 1995
Equivalent citations: (1996)1GLR560, 1996 A I H C 5346, (1996) 1 GUJ LR 560, (1996) 2 CURCC 512, (1996) 1 GUJ LH 224, (1996) 3 CIVLJ 97
JUDGMENT S.D. Shah, J.
1. Admit. Mr. N.N. Gandhi waives service of admission on behalf of Respondents No. 1, 4/1, 4/2 and 5. Rest of the respondents are ordered to be deleted from this Appeal From Order. With the consent of the learned Advocates appearing for the parties, the matter is finally heard today.
2. In a suit for specific performance filed by appellants plaintiffs for an agreement to sale, they also applied for temporary injunction under Order 39 Rules 1 and 2 of of the Code of Civil Procedure restraining the defendants from dealing with the properties and also against the subsequent purchaser in whose favour sale deed is subsequently executed. It appears that the trial Court initially granted ex parte injunction, but after hearing the respondents defendants and after taking into consideration the various legal submissions raised in the written statement, found that injunction as prayed for could not be granted firstly because the agreement to sale dated 9th of November, 1992 was not registered as required under law and therefore it would not create any right in favour of the purchaser to institute suit for specific performance of such agreement. The said agreement to sale is produced at Exh. 1/4. It is signed by one Harshvadan Shantilal Bhatt, who happens to be the son-in-law of Pranshanker Devshanker Shukla (now deceased), who was the husband of Savitaben Pranshanker Shukla, real owner of the property in question. The second ground given by the trial Court is that since a specific prayer is made in the suit for setting aside the subsequent sale deed in favour of the subsequent purchaser, no relief could be granted in a suit for specific performance in favour of the plaintiffs. Primarily based on these two factors, the trial Court has found that plaintiffs failed to establish prima facie case and has secondly found that if injunction of this nature is granted, subsequent purchasers would be put to irreparable loss.
3. At the hearing of this Appeal From Order, Mr. S.M. Shah, Learned Counsel appearing for the appellants pointed out to the Court that true it is that an agreement to sale is required to be registered as per amended Section 17 of the Gujarat Act No. VII of 1982, but, as per the decision of the Division Bench of this Court in the case of Kaushik Rajendra Thakore v. Allied Land Corporation, reported at 1987(1) GLH (UJ) 22, a view is taken by the Court that since there is no corresponding amendment in Section 49 of the Registration Act, 1908, the suit of the plaintiff would not fall on the ground on non-registration of agreement to sale which is otherwise compulsorily required to be registered by amendment of Sec-17. This position of law having been well settled by the Division Bench of this Court, the Trial Court was in error in holding that it would not act upon such agreement of sale.
4. The second reason given by the trial Court that unless the relief is prayed against the subsequent purchaser for setting aside sale in their favour, the plaintiff cannot succeed against the subsequent purchaser and no injunction as prayed for could be granted also appears to be illegal and untenable because the position of law is well settled as back as 1954 by the decision of the Apex Court in the case of Durga Prasad v. Deep Chand, , wherein Justice Vivian Bose speaking for the Apex Court took the view that when a suit is filed for specific performance by prior purchaser against his vendor and subsequent purchaser, there would be change in the form of decree but it cannot be said that such a suit is not maintainable. In such an eventuality, the Court has pointed out that the proper form of decree will be to direct specific performance of the contract between the vendor and the prior transferee and to direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the prior transferee. He does not join in any special covenants made between the prior transferee and his vendor; all he does is to pass on his title to the prior transferee. In view of the aforesaid, in my opinion, on the second ground also the judgment of the trial Court is not sustainable.
5. Mr. N.N. Gandhi, Learned Counsel appearing for the respondents has however urged that in view of all facts mainly based on document, marked 4/1 and letter marked 4/5, there was a strong prima facie case in favour of the defendants and the suit was one, where no injunction was required to be granted. It is true that both the documents are very relevant and are required to be taken into consideration by the trial Court. Unfortunately, going through the judgment of the trial Court, it has mainly proceeded on two legal submissions referred to hereinabove and has not considered these documents as well as other documents on which the parties rely. The finding of facts therefore on the issue of prima facie case is a halting finding not based on factual material on record but on the Wrong premises of law and therefore the same is required to be quashed and set aside. At the same time since relevant documents on which both the parties rely are not considered in proper perspective by the trial Court so as to reach a finding as regards prima facie case, this Court is of the opinion that it is a fit case where the matter should be remanded to any other Civil Judge, S.D. posted at Bhavnagar to decide Exhibit-5 in accordance with the observations made in this judgment. The District Judge, Bhavnagar is directed to assign this particular suit to any other Civil Judge, SD excepting R.S. Timbaliya. Copy of this judgment is also directed to be sent down to all Civil Judges, S.D. at Bhavnagar so that such errors of law even at the stage of deciding Exhibit-5 application are not committed in future. The Judge to whom the work is assigned is directed to decide Exhibit-5 application preferably by 30th November, 1995. Record and Proceedings of the suit if already received by this Court are directed to be sent back to the Court of Civil Judge, S.D., Bhavnagar, immediately.
6. In view of the aforesaid the Appeal stands allowed to the aforesaid extent only. The judgment and order of the trial Court dated 8th of August, 1995 is hereby quashed and set aside. There shall be no order as to costs.
7. In view of the order passed on Appeal From Order, no order on C.A. Notice on C.A. is discharged.