Gujarat High Court
Vinaykumar Maganbhai Patel vs Sushilaben D/O Maganbhai on 19 February, 2013
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
VINAYKUMAR MAGANBHAI PATELV/SSUSHILABEN D/O MAGANBHAI LALLUBHAI PATEL W/O RAMESHCHANDRA....Respondent(s) C/AO/459/2012 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER NO. 459 of 2012 With CIVIL APPLICATION NO. 12686 of 2012 In APPEAL FROM ORDER NO. 459 of 2012 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ VINAYKUMAR MAGANBHAI PATEL & 1....Appellant(s) Versus SUSHILABEN D/O MAGANBHAI LALLUBHAI PATEL W/O RAMESHCHANDRA....Respondent(s) ================================================================ Appearance: MS KJ BRAHMBHATT, ADVOCATE for the Appellant(s) No. 1 - 2 MS VARSHA BRAHMBHATT, ADVOCATE for the Appellant(s) No. 1 - 2 MR SHAILESH R PATEL, ADVOCATE for the Respondent(s) No. 1 VIRAL K SHAH, ADVOCATE for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA Date : 19/02/2013 ORAL JUDGMENT
The present Appeal from Order has been filed by the appellants-original defendants being aggrieved with the impugned order passed below Exh.5 in Special Civil Suit No.137 of 2012 by the 16th Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Surat dated 13.09.2012 on the grounds set out in the memo of Appeal from Order.
Heard learned Advocate Ms.Varsha Brahmbhatt for the appellants-original defendants and learned Advocate Shri Viral Shah for respondent.
Learned Counsel Ms.Varsha Brahmbhatt submitted referring to the paper book produced by her, that though the fraud as pleaded in the documents and sequence of events would suggest that released deed has been executed willfully before the office of the Registrar. She submitted that there is no dispute with regard to submission and execution of the released deed and in fact affidavit is also filed on the next date. She submitted that suit has been filed as an afterthought. She also submitted that the order of status quo has been granted, though there are other co-sharers, who have not joined as party. She pointedly referred to page Nos.60 as well as No.2 and submitted that there are other co-sharers. She also submitted referring to the list of the lands which have been stated in the plaint that the names of the co-sharers are also mentioned. She has also referred to the objections filed before the Mamlatdar and submitted that the order of status quo is erroneous. She further submitted that the Court below ought to have considered that no such status quo for the entire property could be granted. Learned Counsel Ms.Brahmbhatt submitted that assuming the respondent as the co-sharer in the property, even then, it may be only a part of the property/land and therefore injunction could have been confined to only his share in the property and not for the entire property. She, therefore, submitted that the Court below has committed an error in granting the injunction and present Appeal from Order may be allowed.
Per contra, learned Advocate Shri Viral Shah for the respondent pointedly referred to the signature, obtained by the appellants and submitted that the respondent is not residing in India and the signature has been obtained on the ground that it is for partition deed, though, in fact released deed has been executed and filed by which the rights of the respondent have been relinquished. Therefore, he further submitted that fraud has been pleaded on the basis of misrepresentation. He further submitted that it is only when the notice issued by the Mamlatdar for the purpose of entry made on the basis of the document so executed (released deed), the respondent came to know and had to file the suit for injunction as well as for cancellation of such null and void document. He therefore submitted the if the documents, which have been executed by such misrepresentation and fraud, the discretionary order passed by the Court below would not be interfered, which is just and proper.
In view of the rival submissions, it is required to be considered that whether the impugned order passed by the Court below calls for any interference in the present Appeal from Order or not.
As it appears from the record and the documents produced with the paper book, the contention raised by the respondent-original plaintiff that the document has been executed by misrepresentation and the signature is sought to have been obtained on such a ground, therefore, he has sought cancellation of the document by way of filing suit. There is no dispute that the respondent-original plaintiff would have any right, title or interest in the joint property. Therefore, in view of the contentions raised as to whether the released deed executed in 2007 is based on any such fraud or misrepresentation is a matter of appreciation, which could be considered at the time of evidence of trial. Therefore, the Court below having regard to the material and evidence produced has prima-facie considered the same and passed the impugned order directing the parties to maintain status quo, which cannot be said to be erroneous or perverse.
Learned Advocate Shri Viral Shah has referred to and relied upon the judgment of Hon ble Apex Court in case of Prem Singh and others V. Birbal and others reported in (2006) 5 SCC 353.
The Hon ble Apex Court has observed in the said judgment that when fraudulent misrepresentation is with respect to character of document, it is void, and when it is with respect to contents of document, it is voidable. Therefore, if the signature is not denied and the respondent-original plaintiff has also stated that he has signed the document but the nature of document was for different purpose, then it is executed like released deed.
It is in these circumstances, the moot question which is required to be considered is whether the Court below has failed to consider the relevant criteria for grant of injunction or can it be said that the order passed by the Court below is perverse or contrary to the material evidence. In view of the contentions and material evidence prima-facie, it cannot be said that the Court below has misdirected or failed to consider the relevant criteria for grant of injunction. In such a situation, normally the approach of the Court to direct the parties to maintain status quo to reserve the disputed property which protects the interest of rival claims of the disputed property. Further, the Hon ble Apex Court in catena of judicial pronouncements has laid down the guidelines with regard to the approach in such matters, including the observation made in a judgment in case of Maharwal Khevaji Trust (Regd.), Faridkot V. Baldevdass, reported in 2004 (8) SCC 488.
Therefore, in light of this, the approach of the Court below cannot be said to be erroneous much less perverse which would call for any interference in the impugned order.
The Hon ble Apex Court in catena of judicial pronouncements has also laid down the guidelines with regard to the approach by the Appellate Court while dealing with the discretionary order passed by the Court below, it has been observed in the judgment in case of Wander Ltd. and anr., V. Antox India Pvt. Ltd., reported in 1990 (Supp) SCC 727, that unless the order passed by Court below is perverse, normally it may not be disturbed even if the different view is plausible. Further an useful reference can also be made to the judgment of the Division Bench of the High Court in case of Jasoda Indralal Vadhva V. Hemendrabhai Kakulal Vyas, reported in 2009 (4) GLR 3213.
Therefore, considering the aforesaid submissions, it cannot be said that the impugned order passed by the Court below is erroneous much less perverse, which would call for any interference. The present Appeal from Order with Civil Application deserve to be dismissed and accordingly stand dismissed. Notice is discharged.
(RAJESH H.SHUKLA, J.) Tuvar Page 7 of 7