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SCA/5178/2009 12/ 12 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5178 of 2009
For
Approval and Signature:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
=====================================================
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 ?
=====================================================
IQBALBHAI
HUSHENBHAI PADAYA - Petitioner(s)
Versus
MAHESHKANT
DHIRAJLAL VASAVADA & 6 - Respondent(s)
=====================================================
Appearance :
MR
PRANAV M RAVAL for Petitioner(s) : 1,
MR SATYAM Y CHHAYA for
Respondent(s) : 1,3 - 5.
NOTICE SERVED for Respondent(s) : 2,6 -
7.
=====================================================
CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 04/02/2010
ORAL
JUDGMENT
1. Rule.
Mr.Satyam Y.Chhaya, learned advocate waives service of notice of Rule
for the respondents Nos.1,3,4 and 5. Respondents Nos.2,6 and 7 are
duly served, but none appears on their behalf.
2. This
petition has been filed under Articles 226 and 227 of the
Constitution of India, challenging order dated 30-12-2008 passed by
the District Court, Junagadh, in Civil Misc. Appeal No.45 of
2007,whereby the order dated 20-6-2007 passed by the Trial Court
below application at Exh.5, in Regular Civil Suit No.38 of 2006,has
been confirmed.
3. The
petitioner, who is the plaintiff,has instituted the above-mentioned
Suit for declaration and grant of permanent injunction against the
respondents.
4. Briefly
stated, the case of the petitioner in the Suit is that a registered
Sale Deed dated 4-2-2000 in respect of land bearing Revenue Survey
No.1391/14 admeasuring 202 sq.mts., situated near Link Guest
House,Mangrol, was executed by him in favour of respondents
Nos.1,3,4 and 5 (defendants Nos.1,3,4 and 5 in the Suit). The sale
consideration mentioned in the Sale Deed is Rs.71,000/- and there is
no dispute regarding the fact that the said respondents have paid an
amount of Rs.71,000/- to the petitioner. However, it is the case of
the petitioner that the parties had orally agreed that the sale
consideration would be Rs.5,71,000/- and the concerned defendants
have assured the petitioner that they would pay an additional amount
of Rs.5,00,000/- in a few days, but the said amount was not paid and
possession of the land was taken over by the respondents. The
concerned respondents, further sold the suit land to respondent No.6,
for a sale consideration of Rs.70,000/-.
4.1 In
the Suit the petitioner has, inter alia prayed for the grant of a
mandatory injunction against the respondents, directing them to hand
over the possession of the suit land to him, till the dispute between
the parties is resolved and the full amount of consideration is paid
to him. Another prayer is that the respondents be restrained from
transferring or alienating the suit land till the final decision of
the Suit. Along with the Suit, the petitioner filed an application at
Exh.5, with almost the same prayers, except that the prayer to hand
over the property to the petitioner was prayed for as an interim
prayer, during the pendency of the Suit. The Trial Court has rejected
the application at Exh.5 by passing order dated 20-6-2007, which has
been confirmed by the District Court in Appeal, by way of the
impugned order, giving rise to the filing of the petition.
5. Mr.Pranav
M.Raval, learned counsel for the petitioner has submitted that the
respondents Nos.1,3,4 and 5,in whose favour the Sale Deed has been
executed by the petitioner, have cheated him on several times, by
entering into fraudulent transactions. It is submitted that though
the amount of sale consideration mentioned in the Sale Deed is
Rs.71,000/-, the said respondents had orally agreed to pay an
additional amount of Rs.5,00,000/- for the land which, has not been
paid. On the assurance that the amount would be paid within two to
three days, the petitioner has handed over possession of the suit
land to them. It is further submitted that the impugned orders of
both the courts below are erroneous, inasmuch as they are not based
on any proper reasoning and a material error has been committed while
passing the same. It is submitted that the Courts below have not
taken into consideration the aspect that the respondents had agreed
to pay an amount of Rs.5,00,000/- to the petitioner and, at least,
the prayer regarding maintenance of status-quo, qua the suit land
ought to have been granted during the pendency of the suit,
therefore,the impugned order deserves to be quashed and set aside and
the petition allowed. No other submission has been made by the
learned counsel for the petitioner.
6. On
the other hand, Mr.Satyam Y.Chhaya,learned counsel for respondents
Nos.1,3,4 and 5, while opposing the petition, has submitted that the
petitioner has not challenged the Sale Deed dated 4.2-2000 executed
by him in favour of respondents Nos.1,3,4 and 5 and nor has the
subsequent Sale Deed, by which the land has been sold by the said
respondents to respondent No.6, been challenged. Instead, a Suit for
declaration,valued at Rs.300/-only, has been filed by paying Court
Fees. It is further submitted that the story that the concerned
respondents had agreed to pay an additional amount of Rs.5,00,000/-
to the petitioner is false and in any case there is no material on
record to prove this aspect. It is contended that there is no
dispute that the amount of sale consideration, that has been
mentioned in the Sale Deed, has already been paid to the petitioner,
therefore, the sale transaction is complete. Defending the orders of
the Trial Court as well as the lower Appellate Court, Mr.Satyam
Y.Chhaya,learned counsel submits that the Courts below have rightly
not granted the prayers made in the application at Exh.5 by the
petitioner as the first prayer is for grant of mandatory injunction
and the second prayer, which seeks to restrain the respondents from
alienating the suit property, would amount to a serious transgression
of the rights of the true owners of the property which cannot be done
in the absence of any adverse material on record. It is, urged that
the petition may be dismissed.
7. I
have heard the learned counsel for the respective parties, perused
the averments made in the petition,contents of the impugned order and
other material on record. From a perusal of the impugned judgments of
the Trial Court and the lower Appellate Court it is clear that the
case of the petitioner lies in a narrow compass. According to the
petitioner, the dispute is regarding non-payment of the amount of
Rs.5,00,000/- towards sale consideration to him. The orders of the
Trial Court as well the lower Appellate Court have been passed on the
basis of a proper scrutiny of material on record. Both the Courts
below have arrived at the findings that there is no material on
record to show that the respondents,who purchased the land from the
petitioner by way of Sale Deed dated 4-2-2000, have orally agreed to
pay an additional amount of Rs.5,00,000/- to him. The Sale Deed is a
Registered one and shows that the sale consideration is Rs.71,000/-.
The land which is the subject matter of the Sale Deed admeasures
only 202 sq.mts. The said land has also been sold by the respondents,
who purchased it, to respondent No.6. In the absence of any
material on record to show that an additional amount of Rs.5,00,000/-
was to be paid to the petitioner, both the courts below have come to
the conclusion that the petitioner has not been able to prove that a
prima facie case exists in his favour or that the balance of
convenience or factor of irreparable loss is also on his side. On the
contrary,it has been observed by the lower Appellate Court in the
impugned order that had the petitioner been cheated by the said
respondents at an earlier point of time,as is being submitted, he
would not have parted with the possession of the land by accepting
Rs.71,000/-, relying on the say of the respondents that the remaining
amount of Rs.5,00,000/- would be paid in two or three days. It has
been rightly stated by both the Courts below that the case of the
petitioner can only be decided, after leading evidence during trial
and no mandatory interim injunction, of the nature prayed for, can be
granted to him in the absence of a prima facie case in his favour.
8. If
the prayers made in the application at Exh.5 are perused, it is
evident that the first prayer is for interim injunction of a
mandatory nature. In Dorab Cawasji Warden v. Coomi Sorab Warden,
(1990)2 SCC 117, the Supreme Court has laid down certain
guidelines,clarifying in what circumstances such interim mandatory
relief can be granted. The relevant paragraphs are reproduced
herein-below:
16.
The relief of interlocutory mandatory injunctions are thus granted
generally to preserve or restore the status quo of the last
non-contested status which preceded the pending controversy until
the final hearing when full relief may be granted or to compel the
undoing of those acts that have been illegally done or the
restoration of that which was wrongfully taken from the party
complaining. But since the granting of such an injunction to a party
who fails or would fail to establish his right at the trial may cause
great injustice or irreparable harm to the party against whom it was
granted or alternatively not granting of it to a party who succeeds
or would succeed may equally cause great injustice or irreparable
harm,courts have evolved certain guidelines. Generally stated these
guidelines are:
the
plaintiff has a strong case for trial. That is, it shall be of a
higher standard than a prima facie case that is normally required
for a prohibitory injunction.
It
is necessary to prevent irreparable or serious injury which normally
cannot be compensated in terms of money.
The
balance of convenience is in favour of the one seeking such relief.
Being
essentially an equitable relief the grant or refusal of an
interlocutory mandatory injunction shall ultimately rest in the
sound judicial discretion of the court to be exercised in the light
of the facts and circumstances in each case. Though the above
guidelines are neither exhaustive nor complete or absolute rules,
and there may be exceptional circumstances needing action, applying
them as prerequisite for the grant or refusal of such injunctions
would be a sound exercise of a judicial discretion.
9. Applying
the principles of law enunciated in the above-mentioned case to the
facts and circumstances of the case in hand, it is clearly evident
that the petitioner has not been able to prove that he has a prima
facie case in his favour, leave alone a strong prima facie case.
Similarly, there is nothing on record to indicate that the petitioner
would suffer irreparable loss or injury which cannot be compensated
in terms of money or that the balance of convenience is in his
favour. In such circumstances and in view of the material on record,
it cannot be said that any error of law or jurisdiction has been
committed by the courts below in refusing to grant the prayers made
by the petitioner.
10. As
regards the second prayer restraining the respondents from
transferring or alienating the land, this prayer has also not been
granted for the same reasons,as above. As is rightly submitted by
Mr.Satyam Y.Chhaya, learned counsel for the respondents Nos.1,3,4
and 5, the owners of the land cannot be restrained from enjoying the
land in the absence of any material on record, which would justify
the passing of a restraint order,such as prayed for by the
petitioner.
11. There
are concurrent findings of fact recorded by both the courts below
against the petitioner. The said findings have been arrived at after
proper scrutiny of the material on record and are supported by clear
and cogent reasons. As no error of law or jurisdiction has been
committed by the lower Appellate Court in passing the impugned order,
confirming the order of the Trial Court, interference of this court
is not warranted. The petition, therefore, fails and is dismissed.
Rule is discharged.
(Smt.Abhilasha Kumari,J)
arg
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