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CA/10202/2009 17/ 17 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION - FOR INTERIM RELIEF No.10202 of 2009
In
SECOND
APPEAL No.253 of 2009
=========================================
HIRABEN
D/O SOMABHAI BAPUBHAI & 2 - Applicant(s)
Versus
VIMLABEN
MANIBHAI PATEL & 3 - Respondent(s)
=========================================
Appearance
MR SURESH M
SHAH for
Applicant(s): 1 - 3, 3.2.1, 3.2.2, 3.2.3, 3.2.4, 3.2.5,3.2.6
None
for Respondent(s): 1, 4,
MR AJ PATEL for MR DIPUM S RAMI for
Respondent(s): 1.2.1,1.2.2
SERVED BY AFFIX.(N) for Respondent(s):
2 - 3.
MR SUNIT SHAH for MR RISHIT P BHATT for Respondent(s): 2 -
3.
RULE SERVED for Respondent(s): 4.2.1, 4.2.2, 4.2.3, 4.2.4,
4.2.5,4.2.6
=========================================
CORAM
:
HONOURABLE
MS. JUSTICE HARSHA DEVANI
Date
: 18/10/2011
C.A.V.
ORDER
1. By
this application, the applicants (original plaintiffs –
appellants) have prayed for a direction for maintaining status quo as
regards the suit property pending hearing and final disposal of
Second Appeal No.253/2009.
2. The
applicants herein have preferred the above referred appeal
challenging the judgment and decree dated 29th
July, 2009 passed by the learned Presiding Officer, Fast Track Court
No.3, Ahmedabad (Rural) in Regular Civil Appeal No.13/2007 whereby
the appeal has been dismissed and the judgment and decree dated 19th
October, 2006 passed by the learned 6th
Additional Senior Civil Judge, Ahmedabad (Rural) whereby he has
dismissed the suit filed by the appellants – plaintiffs
has been confirmed.
3. Mr.
S.M. Shah, learned advocate for the applicants invited attention to
the order dated 20th
November, 2009 passed in Second Appeal No.253/2009 whereby the appeal
has been admitted on the following two substantial questions of law:-
Whether
the suit is time barred?
Whether,
in the facts and circumstances of the case, the sale deed Exh.118 is
void or voidable in law?
3.1 It
was submitted that in the suit, in 2001, order of status quo was
granted which continued till the life of the suit till the appeal was
filed, that thereafter status quo continued till the life of the
appeal and till the appeal period. It was submitted that the second
appeal was filed within the prescribed period of limitation and came
to be admitted on 20th
November, 2009 hence, there was no delay on the part of the
appellants. However, from the date of expiry of the appeal period,
there was no interim relief operating in favour of the applicants
till date. It was submitted that considering the fact that at the
stage of suit as well as appeal, the applicants had been granted
interim relief, it is a matter of consistent practice to grant status
quo once the appeal is admitted. Reliance was placed upon the
decision of this court in the case of Nagji
Uka vs. Administrator of Sakedi Agri. Co-op. So. Ltd. & Ors.,
1977 G.L.T.
83, wherein the court
had held that once the revision application was entertained by the
State Government, according
to justice, common sense and sound judgment, the further proceedings
ought to have been stayed, for, the revision application would become
entirely infructuous unless interim relief is granted. That to refuse
interim relief after entertaining a revision application would be to
deny a just relief to the litigant pending the hearing of the case.
Discretion in the matter of grant of interim relief could not be said
to have been judicially exercised by refusal of such relief. Reliance
was also placed upon the decision of this court in the case of Salim
Ahmed Mathada and Anr. vs. Aminabai Hussein Bela, 1995
(2) G.L.H. (U.J.) 22,
for the proposition that where the learned Judge feels that the case
is one where the interim relief is not required to be granted, it is
always open to set down the entire appeal for hearing and decide the
same on merits. The court held that by rejecting the application
Exh.5, the learned Judge had rendered the Miscellaneous Civil
Application meaningless and, therefore, on that count alone, the
revision application was allowed. Reliance was placed upon the
decision of this court in the case of Bhanubhai
Mohanlal Bhatt and Another vs. M/s. Vinayak Developers, Bhuj. through
its partners, 1996
(1) G.L.H. (U.J.) 28,
wherein the court has held that if the appellate court while deciding
AO under Order 43 and while hearing Exh.5 application, finds that
there is no case made out for grant of interim relief and or
maintenance of status quo, then it must immediately set down the
appeal for hearing and must decide the appeal alongwith the
application. The very ground which convinced him for rejecting
application would be the ground for rejecting and/or dismissing the
appeal. The court observed that it had failed to understand this
nature of exercise of power by the Extra Assistant Judge who rejects
Exh.5 application in CMA
while admitting the appeal to be decided in future virtually thereby
he renders the appeal meaningless. Reliance was also placed upon an
unreported decision dated 16th
November, 2009 passed by this court in Special Civil Application
No.11755/2009 in the case of Real
Shopping Centre vs. State of Gujarat through Secretary, Revenue Dept.
(Appeals) wherein
the court had observed that when revision application is pending for
final hearing, if the parties are not directed to maintain status
quo, the revision application would be likely to become infructuous
and accordingly directed that the revision application be decided and
disposed of within a stipulated time and in the meantime without
prejudice to the rights and contentions of the parties, the parties
were directed to maintain status quo as on that date so as to meet
the ends of justice. An unreported decision of this court dated 18th
October, 2010 passed in Special Civil Application No.9667/2010 in the
case of Navinchandra
Hansrajbhai Lakhiyar vs. Jamnagar Municipal Corporation
was also relied upon wherein the court had observed that having
regard to the fact that the first appellate court had prima facie
found merits in the appeal and, therefore, admitted the appeal for
final hearing and having regard to the fact that the interim relief
granted by the trial court which remained in operation throughout the
suit proceedings for about four years, it would be in the fitness of
things if the parties are directed to maintain status quo during the
pendency of the appeal. Another unreported decision of this court
dated 30th
August, 2010 rendered in the case of Kumbhar
Shivaben Mehabhai vs. State of Gujarat through Special Secretary,
Special Civil
Application No.5154/2010,
was cited wherein
the court had directed the Special Secretary to take up the revision
application within a period of one year from the date of application
and had directed both the sides to maintain status quo till the
revision is heard and decided.
3.2 It
was submitted that it is a consistent practice of this Court to grant
status quo in a case where an appeal is admitted so as not to render
the appeal infructuous and as such, today at this stage, interim
relief should not be refused to the applicants and status quo as on
today should be directed to be maintained. Reference was made to the
decision of this High Court in the case of Ibrahim
Shah Mohamad vs. Noor Ahmed Noor Mohamed, 1983
(2) GLR 961, for the
proposition that when the Court is seized with a matter pertaining to
property, if pending the litigation the property changes hands, it
would be necessary for the plaintiff or somebody else to bring on
record all the parties, meaning thereby, delaying further proceedings
for bringing them on record, having their say and thus delaying the
passing of the final decree. The court should always lean towards
seeing that there is no multiplicity of proceedings and also that the
proceedings should go on as far as possible so smooth that the
decision can be arrived at between the parties who are on record as
early as possible. The court accordingly thought it fit to grant
injunction in the said case. Strong reliance was placed upon the
decision of the Supreme Court in the case of Maherwal
Khewaji Trust (Regd.), Faridkot vs. Baldev Dass, AIR
2005 SC 104, for the
proposition that unless and until a case of irreparable loss or
damage is made out by a party
to the suit, the Court should not permit the nature of the property
being changed which also includes alienation or transfer of the
property which may lead to loss or damage being caused to the party
who may ultimately succeed and may further lead to multiplicity of
proceedings. In the facts of the said case, the High Court found
that no case of irreparable loss had been made out except for
contending that the legal proceedings are likely to take a long time
and, therefore, the respondent should be permitted to put the
scheduled property to better use. The Supreme Court held that the
lower appellate court and the High Court were not justified in
permitting the respondent to change the nature of the property by
putting up construction as also by permitting alienation of the
property, whatever may be the condition on which the same is done. In
the event the appellants’ claim being found baseless ultimately, it
is always open for the respondent to claim damages or, in an
appropriate case, the Court may itself award damages for the loss
suffered, if any, in this regard. It was submitted that if the Court
is of the view that the case is not one for grant of interim
injunction, the appeal should be fixed for final hearing, but once
the Court has found merit by framing substantial question of law, the
interim relief should be granted.
4. Opposing
the application, Mr. A.J. Patel, learned advocate for the respondents
No.1.2.1 and 1.2.2 submitted that for the purpose of granting interim
relief, the facts of the case are required to be examined so as to
ascertain whether this is a case where discretion is required to be
exercised in favour of the applicants. It was submitted that the
Court would be required
to consider the merits of the case to find out whether there was any
chance of the applicants ultimately succeeding and as to whether any
irreparable loss is likely to be caused to the applicants. In the
facts of the present case, the applicants do not deserve any sort of
equitable relief and that, in any case, if they succeed, the price of
the land can always be evaluated and they can be compensated in terms
of money. In support of his submission, the learned advocate placed
reliance upon the decision of this High Court in the case of Veetrag
Holding Co. Ltd. vs. Gujarat State Textile Corporation Ltd., 1996
(3) G.L.R. 536,
wherein the court has held that when it comes to grant of equitable
relief when the suit is filed after such a long time, it cannot be
said that the remedy of interim injunction was the necessary remedy
and there was no other remedy available to the party concerned in
this behalf. The decision of the Supreme Court in the case of State
of Maharashtra vs. Digambar, (1995)
4 SCC 683, was cited
for the proposition that where the High Court grants relief to a
citizen or any person under Article 226 of the Constitution against
any person including the State without considering his blame worthy
conduct, such as lapses or undue delay, acquiescence or waiver, the
relief so granted becomes unsustainable even if relief was granted in
respect of alleged deprivation of his legal right by the State. It
was submitted that in the facts of the present case, the registered
sale deed was executed on 2nd
April, 1947 between deceased Ramabhai Somabhai and deceased Manibhai
Somabhai Patel. The said sale deed came to be challenged by the
plaintiffs in the year 2001 after a period of more than fifty years
during which period, the lands remained with the defendants. It was
submitted that
considering the belated stage at which the suit came to be instituted
for challenging the registered sale deed dated 2nd
April, 1947 as well as considering the fact that both the courts
below have found that the plaintiffs’ suit is barred by limitation,
this is not a case where the Court is required to exercise discretion
in favour of the original plaintiffs by granting any sort of interim
relief in their favour. Reliance was also placed upon decision of
the Supreme Court in the case of
Colgate
Palmolive (India) Ltd. vs. Hindustan Lever Ltd.,
(1999) 7 SCC, for the
proposition that while considering the question of grant of
injunction, the Court ought not to ignore the factum of strength of
one party’s case being stronger than the others. In conclusion, it
was submitted that the applicants do not deserve any sort of
equitable relief and if ultimately they succeed, the price of land
can always be evaluated and they can be compensated in terms of
money.
5. Opposing
the application, Mr. Sunit Shah, learned advocate appearing on behalf
of the respondents No.2 and 3 submitted that the decisions on which
reliance had been placed upon by the learned advocate for the
applicants would not carry the case of the applicants any further
inasmuch as there is a change in jurisprudence as regards grant of
interim relief. It was submitted that apart from the normal
parameters which are required to be taken into consideration while
considering the question of grant of interim relief, viz., balance of
convenience, prima facie case and irreparable injury, the Court is
also required to take into consideration an additional factor namely,
conduct of the parties. It was submitted that the impugned registered
sale deed came to be executed in the year 1947. Till the year 2001,
the property was totally free and there was no injunction. That
status quo was operating qua the suit property only since 2001 till
2009. It was further submitted that the suit property belonged to
Somabhai and upon his death, devolved upon Ramabhai, Manilal,
Manguben, Hiraben who are children of Somabhai as well as upon
Rukhiben, wife of Somabhai. It was submitted that at the time of
execution of sale deed, Ramabhai was 20 years old and as such, he was
an adult and, therefore, the case of the plaintiffs that the
agreement had been entered between minors is devoid of merit. It was
further pointed out that during their life time, Rukhiben, Ramabhai,
or Manilal had not challenged the sale deed. Thus, the persons
affected did not challenge the transaction at the relevant time. It
was further submitted that the heirs of Ramabhai have not challenged
the sale deed and that it is the two daughters of Somabhai as well as
the heirs of deceased Manilal who have challenged the sale deed. It
was submitted that in the circumstances, the applicants not being
full owners of the suit property would not be entitled to an order of
injunction qua the entire suit property. It was urged that when
Manilal himself did not challenge the transaction, the question that
arises for consideration is whether his heirs have any right to
challenge the said transaction. It was emphatically argued that in
the year 2001, when the status quo was granted in favour of the
applicants, they had an opportunity to prove their case but they
failed; the second opportunity was available at the stage of the
first appeal, at which stage also they had failed. In the suit,
injunction has been granted as the trial was yet to take place. Now,
the trial has taken place and the applicants have failed. The
applicants have further failed in first appeal. Therefore, initially
opportunity is one aspect of the matter and opportunity in the second
appeal is another and as such having failed before two courts below,
the applicants are not entitled to the grant of any interim relief.
5.1
Next, it was submitted that on the factual aspect, namely
possession of the suit properties, both the courts below are with the
defendants and as such, there is no question as regards possession.
It was submitted that in the circumstances, there is hardly any
chance of the applicants succeeding in the appeal. In support of his
submissions, the learned advocate placed reliance upon the decision
of the Supreme Court in the case of Mandali
Ranganna and Others vs. T. Ramachandra and Others, (2008)
11 SCC 1, wherein the
court held thus:
“21.
While considering an application for grant of injunction, the court
will not only take into consideration the basic elements in relation
thereto viz. existence of a prima facie case, balance of convenience
and irreparable injury, it must also take into consideration the
conduct of the parties.
22.
Grant of injunction is an equitable relief. A person who had kept
quiet for a long time and allowed another to deal with the properties
exclusively, ordinarily would not be entitled to an order of
injunction. The court will not interfere only because the property is
a very valuable one. We are not, however, oblivious of the fact that
grant or refusal of injunction has serious consequence depending upon
the nature thereof. The courts dealing with such matters must make
all endeavours to protect the interest of the parties. For the said
purpose, application of mind on the part of the courts is imperative.
Contentions raised by the parties must be determined objectively.
27.
We, therefore, are of the opinion that the interest of justice would
be subserved if while allowing the respondents to carry out
constructions of the buildings, the same is made subject to the
ultimate decision of the suit. The trial court is requested to hear
out and dispose of the suit as early as possible. If any third-party
interest is created upon completion of the constructions, the deeds
in question shall clearly stipulate that the matter is sub judice and
all sales shall be subject to the ultimate decision of the suit. All
parties must cooperate in the early hearing and disposal of the suit.
The respondents must also furnish sufficient security before the
learned trial Judge within four weeks from the date which, for the
time being, is assessed at rupees one crore.”
5.2
Reliance was also placed upon the decision of the Supreme Court in
the case of
Kishorsinh Ratansinh Jadeja vs. Maruti Corporation and Others, (2009)
11 SCC 229, wherein
the court was of the view that the respondent No.1 therein could be
compensated in terms of money and no irreparable loss and injury
would be caused to it on account thereof. The court was further of
the view that if the owners of the property remain restrained from
developing the same, it is they who will suffer severe prejudice, as
they will be deprived of the benefit of the user of their land during
the said period. The balance of convenience and inconvenience is
against the grant of such an injunction. The court observed that the
success of the suit for specific performance filed by the respondent
depends to a large extent on tenuous proof of genuineness of the
agreement sought to be enforced after 19 years, despite the finding
of the trial court that the suit was not barred by limitation. The
court was of the view that the conduct of respondent No.1 also
becomes relevant, inasmuch as, having slept over its rights for more
than 19 years, it would be
inequitable on its prayer to restrain the owners of the property from
dealing with the same, having particular regard to the fact that a
large portion of the land had already been conveyed to as many as 280
purchasers who were in the process of erecting constructions
thereupon.
5.3 Mr.
Sunit Shah further submitted that in the facts and circumstances of
the present case, the court may, if it so deems fit, direct deposit
of certain amount subject to the result of the suit and that all
transactions shall be subject to the result of the appeal. However,
no case has been made out for grant of status quo and that
irreparable loss would be caused to the respondents herein if the
relief as prayed for is granted to the applicants. The factors such
as balance of convenience, irreparable injury as well as conduct of
the applicants all lean in favour of the respondents and as such, the
applicants are not entitled to the relief claimed in the application
and the application deserves to be dismissed.
6. In
rejoinder, Mr. S. M. Shah learned advocate for the applicants
submitted that the second appeal has been admitted after the court
found prima facie merit in the case and accordingly substantial
questions of law came to be formulated. It was submitted that insofar
as the delay is concerned, though the suit had been instituted in
2001, it is a fact that interim relief was granted in favour of the
applicants and that the same had continued. It was submitted that the
interim relief has operated for a period of nine years against the
respondents hence, they can wait for some more time and as such, the
application deserves to be allowed by ordering the parties to
maintain status quo as on today.
7. In
the backdrop of the aforesaid facts and contentions, it is an
admitted position that it is apparent that the plaintiffs before the
trial court are Hiraben, Manguben and the heirs of deceased Manilal
Somabhai whereas defendants are the heirs of deceased Manibhai
Somabhai Patel who had purchased the suit land by virtue of the
registered sale deed dated 2nd
April, 1947 executed by deceased Rambhai Somabhai in his favour. A
perusal of the judgment and decree passed by the trial court as well
as the lower appellate court indicates that both the courts below
have, upon appreciation of the evidence on record, found as a matter
of fact that the possession of the suit property was with the
defendants; and have also found that the suit was barred by
limitation inasmuch as the sale deed dated 2nd
April, 1947 had been challenged by instituting the suit in the year
2001. True it is that this court has admitted the appeal against the
judgment and decree passed by the lower appellate court by framing
two questions of law, viz., (i) whether the suit is time barred; and
(ii) whether, in the facts and circumstances of the case, the sale
deed Exh.118 is void or voidable in law. However, in the facts and
circumstances of the present case, considering the delay in
instituting the suit, as well as the conduct of the applicants in not
approaching the court at the earliest, this court is of the view that
in the light of the principles enunciated by the Supreme Court in the
above referred decisions on which reliance had been placed upon by
the learned advocate for the defendants No.2 and 3, the applicants by
their conduct are disentitled from the grant of the relief prayed for
in the present application.
The defendants have been holding the suit property as owners by
virtue of the sale deed executed way back on 2nd
April 1947 which has not been challenged by the owners at the
relevant time. It is at a belated stage in the year 2001, that is,
after a period of more than fifty years that the
applicants-plaintiffs have challenged the same. Both fact findings
courts below have found that the suit is barred by limitation and
that possession of the suit lands is with the defendants. In the
aforesaid premises, as held by the Supreme Court in the case of
Kishorsinh
Ratansinh Jadeja vs. Maruti Corporation and Others
(supra), if the defendants herein are restrained from developing the
suit property, they would suffer severe prejudice as they would be
deprived from the benefit of the user of their land during the period
when the appeal is pending before this court. The balance of
convenience and inconvenience is, therefore, against the grant of any
order of status quo. In the present case, apart from the fact that
the courts below have found that the suit is barred by limitation,
the success of the suit only depends upon the question as to whether
the sale deed in question was void or voidable. Considering the fact
that Rambhai Somabhai who had executed the sale deed in favour of
Manibhai Somabhai was a major having attained the age of 20 years at
the time when the sale deed was executed, this Court is of the view
that on this count also the balance of convenience leans in favour of
the respondents. In the circumstances, in the light of the decision
of the Supreme Court in the case of Mandali
Ranganna and Others vs. T. Ramachandra and Others
(supra), the interest of justice would be subserved if no order of
status quo is granted in favour of the applicants however, endeavour
is required to be made to
protect the interest of the parties. In the circumstances, interest
of the parties would be taken care of by observing that the action if
any taken by the defendants in relation to the suit property would be
subject to the result of the appeal.
8. For
the foregoing reasons, the court is of the view that the applicants
are not entitled to the grant of the relief of status quo as prayed
for in the application. However, Mr. A.J. Patel and Mr. P.M. Bhatt,
learned advocate for the respondents No.1.2.1, 1.2.2, 2 and 3 on
instructions of some of the respondents who are present before the
court state that the respondents will not part with the possession of
the disputed land nor will they create any third party rights during
the pendency of the second appeal. In the light of the aforesaid
statement made by the learned advocates for the respondents No.1.2.1,
1.2.2, 2 and 3, no order for furnishing security is required to be
made.
9. In
view of the above discussion, the application fails and is
accordingly rejected subject to the aforesaid statement made on
behalf of the respondents No.1.2.1, 1.2.2, 2 and 3 as recorded
hereinabove. There shall be no order as to costs. Liberty to apply
in case of difficulty qua respondent No.4.
(
Harsha Devani, J. )
hki
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