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CA/2662/2011 2/ 2 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION - FOR ORDERS No. 2662 of 2011
In
FIRST
APPEAL (STAMP NUMBER) No. 348 of 2011
=========================================================
KIRIT
SHIVCHARAN GUPTA & 1 - Petitioner(s)
Versus
SURESHBHAI
MOTIBHAI PATEL & 2 - Respondent(s)
=========================================================
Appearance :
MR
MS SHAH FOR YV VAGHELA for
Petitioner(s) : 1 - 2.
UNSERVED-REFUSED (R) for Respondent(s) :
1,
RULE SERVED BY DS for Respondent(s) : 2 - 3.
MR SM SHUKLA
for Respondent(s) : 2 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 20/04/2011
ORAL
ORDER
The instant application is filed
by the applicants seeking leave to prefer first appeal challenging
the impugned consent decree passed in Civil Suit No.2316 of 2010 by
the learned City Civil & Sessions Court, Court No.9, Ahmedabad
on 22.10.2010. Perused the application as well as the relevant
papers annexed with the application, so also annexed with the
appeal, and heard Mr.MS Shah, ld.advocate for Mr.YV Vaghela,
ld.advocate for the applicants and Mr.SM Shukla, ld.advocate for
respondents No.2 and 3. None appeared for respondent No.1.
Having considered the submissions
advanced on behalf of both the sides, so also considering the
contents of the application as well as the papers annexed with the
application and with the appeal, it transpires that respondent No.1
herein filed the aforementioned suit against respondents No.2 and 3
seeking permanent injunction against respondents No.2 and 3 herein
for the protection of his alleged possession of the disputed
property. The copy of Rojkam annexed with the appeal papers at
Annexure G reveals that the suit was filed on 08.10.2010, and after
some time, the suit was adjourned to hear the notice of motion on
1.11.2010, but it seems that the suit appears to have been
compromised on 22.10.2010 by preponing the date. By virtue of the
compromise, the respondent Nos.2 and 3 herein undertook that they
will not snatch away the possession of respondent No.1 of the
disputed property and they would not cause any obstruction in the
same. The aforesaid suit came to be disposed of on the basis of the
said compromise. The case put up by the applicants herein is that
they entered into one agreement with the original owners of the
disputed property, namely, respondents No.2 and 3 herein on
16.08.2009 for purchase of the disputed property, and according to
the applicants, some payment was made at the time of execution of
the agreement, and it is submitted that the remaining payment was
made till the end of the year 2010. It is further submitted on
behalf of the applicants that since the date of execution of the
agreement dated 16.8.2009, the actual and physical possession of the
disputed property was handed over by the original owners of the
property to the applicants. Mr.Shah, ld.advocate for the applicants
drew my attention to sub-rule 2 of Rule 1(A) of Order 43 of the Code
of Civil Procedure, so also the case of State of Punjab Vs.Amar
Singh reported in AIR
1974 SC 994.
On the other hand,
Mr.Shukla, ld.advocate for the respondents No.2 and 3 opposed this
application and submitted that no registered sale-deed was ever
executed in connection with the alleged sale of the disputed
property and no full and final payment was ever made. It is,
therefore, submitted that the application itself is not maintainable
and deserves to be dismissed.
Considering
the submissions advanced on behalf of both the sides, so also
considering the relevant papers annexed with the application as well
as the appeal, and considering the above-referred provisions
contained in the CPC and the ratio laid down by Hon’ble the Apex
Court in the above-referred decision, this Court is of the
prima-facie opinion that the applicants can be said to have been
adversely affected by the compromise arrived at in the suit and
atleast they can be said to be aggrieved party. Admittedly, in the
aforesaid suit, the respondent No.1 (plaintiff in said suit) has not
joined the applicants herein, as one of the parties to said suit.
When such is the situation,
the application deserves to be allowed.
It is hereby
clarified that whatever observation made by this Court in this order
is confined only to the fact as to whether the leave to file the
appeal should be granted to the applicants or not, and the rights of
the respondents to contest the matter, if occasion so arises, shall
not be construed to have been adversely affected. With this
clarification, the application is allowed. The applicants are
permitted to prefer the appeal. There shall be no order as to costs.
The application stands disposed of accordingly.
(J.C.UPADHYAYA,
J.)
(binoy)
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