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SCA/16906/2004 3/ 3 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 16906 of 2004
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
=========================================================
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 ?
=========================================================
RAJENDRA
S KABUTARWALA - Petitioner(s)
Versus
GSFC
& 3 - Respondent(s)
=========================================================
Appearance :
MR
VIJAY N RAVAL for
Petitioner(s) : 1,
RULE SERVED for Respondent(s) : 1 - 4.
MR AS
VAKIL for Respondent(s) : 1,
MS KJ BRAHMBHATT for Respondent(s) :
2,
MS VARSHA BRAHMBHATT for Respondent(s) : 2,
MR AMIT V
THAKKAR for Respondent(s) :
4,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date : 03/09/2010
ORAL
JUDGMENT
1. By
way of this petition, the petitioner has prayed for the following
reliefs :-
[A]
Your Lordships may be pleased to admit and allow this petition;
[B]
Your Lordships may be pleased to issue a writ of mandamus or a writ
in the nature of mandamus or any other appropriate writ, order or
direction and be pleased to direct the respondent, their agents, and
servants not to attach the Bungalow No. 74 situated in Adarsh
Co-operative Housing Society Limited situated at God-dod Road, Surat
which belongs to the petitioner and/or not to initiate any other
proceeding mentioned in the caveat application against the
petitioner;
[C]
Pending admission, hearing and final disposal of this petition, Your
Lordships may be pleased to restrain the respondent, their agents
and servants from attaching and or disturbing the peaceful possession
of the petitioner’s Bungalow situated at 74, Adarsh Co-operative
Housing Society Limited, Surat.:
[D]
……”
2. The
short facts of the case are that the petitioner has purchased the
residential bungalow situated at 74, Adarsh Co-operative Housing
Society Limited, God-dod Road, Surat by a registered Sale deed dated
28.07.1994. The petitioner was handed over the original documents of
the said bungalow by respondent no. 4 and respondent no. 2 society
had also accepted the petitioner as a member of the society. Thus,
the petitioner is staying in the said bungalow since 1994 as a
tenant holder and member of respondent no. 2 society. The respondent
no. 2 society had also issued No Objection Certificate and a letter
stating that there is no lien or loan against the said bungalow and
that there is no right title or interest over the said bungalow of
any third party. It is the case of the petitioner that the
respondent no.1 had communicated a caveat application to the
petitioner wherein it is
stated that the said bungalow is under the lien of the respondent
no.1 as respondent no.1 has given loan to the original owner of the
bungalow and, therefore, the respondent is likely to attach the said
bungalow. Being aggrieved by the said action of the respondent, the
petitioner has approached this Court by way of this petition.
3. Heard
learned counsel for the respective parties and perused the documents
on record. The learned counsel for the respondent states that
respondent no. 1 has preferred Civil Suit No. 275/2006 before the
Civil Court, Surat and the same is pending. Looking to the peculiar
facts of the case and keeping in mind the evidence on record, it will
be appropriate to relegate the issue before the Civil Court for
adjudication. Therefore, without entering into the merits of the
case, the issue involved in this petition is relegated to the Civil
Court, Surat and the Civil Court, Surat will adjudicate upon the same
in accordance with law. It is, however, observed that the
proceedings u/s. 29 of the Act will not be initiated further against
the petitioner. It is also clarified that pending Civil Suit, the
principle of lis pendens
will apply to the petitioner.
4. With
the above observations and directions, the petition stands disposed
of. Rule is made absolute to the aforesaid extent with no order as to
costs.
[K.S.
JHAVERI, J.]
/phalguni/
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