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AO/279/2006 3/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL
FROM ORDER No. 279 of 2006
With
CIVIL
APPLICATION No. 11553 of 2006
In
APPEAL
FROM ORDER No. 279 of 2006
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================================
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 ?
=========================================================
BHAVNABEN
ISHWARLAL THAKKAR & 1 - Appellant(s)
Versus
HIRABHAI
RAMABHAI SINDHAV & 4 - Respondent(s)
=========================================================
Appearance
:
MR
SAURABH G AMIN for
Appellant(s) : 1 - 2.
MR TUSHAR MEHTA for Respondent(s) : 1,
MR
VIMAL M PATEL for Respondent(s) : 2 -
5.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 24/07/2008
ORAL
JUDGMENT
Present
Appeal From Order is filed by the appellants ? original
defendant Nos.5 and 6 of Special Civil Suit No. 87 of 2006 to
quash and set aside the judgement and order dtd.12/5/2006 passed by
the learned Additional Senior Civil Judge, Viramgam below
application Ex.5 in Special Civil Suit No. 87 of 2004 to the extent
the said order operates against the following properties;
Survey
Nos.92 Paiki, 749, 786, 787 of Village Zezra, Taluka Viramgam,
District ; Ahmedabad and Survey Nos.477-A Paiki of Mouje Viramgam,
Taluka Ahmedabad being properties belonging to the appellant No.1.
Survey
Nos.92 Paiki, 130, 1273 of Village Zezra, Taluka Viramgam, District
; Ahmedabad being properties belonging to the appellant No.2.
Survey
No.700 of Village Zezra, Taluka Viramgam, District ; Ahmedabad and
Survey Nos.400 and 439 of village Bhojwa being properties jointly
owned by the appellants.
Survey
Nos.69 Paiki and 1071 of Village Zezra, Taluka Viramgam, District ;
Ahmedabad being properties belonging to Parimal Ishwarlal Thakkar.
Survey
Nos.69 Paiki and 1003 of Village Zezra, Taluka Viramgam, District ;
Ahmedabad being properties belonging to Milan Ishwarlal Thakkar.
Survey
No. 227 of Village Zezra, Taluka Viramgam, District ; Ahmedabad and
Survey No.44 of Mouje Viramgam being properties jointly owned by the
appellant No.2 and respondent No.3.
The
respondent No.1 has filed Special Civil Suit No. 87 of 2004 against
the appellants for recovery of Rs.57,71,755=00 for the goods /
cotton sold to the defendant Nos.1 to 3. In the said suit, the
plaintiff filed an application for interim injunction at Ex.5
against all the defendants and the learned Additional Senior Civil
Judge, Surendranagar, vide order dtd.12/5/2006 allowed the
application Ex.5 directing all the defendants to maintain status quo
with respect to all the properties mentioned in the suit. Being
aggrieved by and dissatisfied with the order passed below
application Ex.5 in so far as original defendant Nos.5 and 6 by
which the appellants herein ? original defendant Nos.5 and 6 are
directed to maintain status quo, the present Appeal From Order is
filed.
It
is the contention on behalf of the appellants that as such in the
suit no relief is prayed against the defendant Nos.5 and 6. It is
also the contention on behalf of the appellants that the even the
appellants are not party to the transaction. Therefore, it is
requested to allow the present Appeal From Order.
Mr.Tushar
Mehta, learned advocate appearing on behalf of the plaintiff has
to concede that there is no averments or prayer against defendant
Nos.5 and 6 in the aforesaid suit.
It
is to be noted that Civil Application No. 11553 of 2006 in the
present Appeal From Order, came to be heard by the learned Single
Judge (Coram : P.B. Majmudar, J. as the then he was) and considering
the fact that there are no averments or no prayer made against the
appellants and that the appellants are not party to the transaction,
has stayed the injunction granted against the defendant Nos.5 and 6
by the trial court and the said interim relief has been continued
till date. It appears to this Court also that the learned trial
court has committed an error in granting injunction against the
appellants ? original defendant Nos.5 and 6 inasmuch as there is
no prayer against the appellants ? original defendant Nos.5 and 6
in the suit and there are no averments also against the appellants
in the suit. Even the appellants are not party to the transaction.
Under the circumstances, there was no question of granting
injunction against the appellants. In the facts and circumstances
of the case, the trial court has committed error in granting
injunction against the appellants which requires to be quashed and
set aside.
For
the reasons stated above, the appeal succeeds. The impugned the
judgement and order dtd.12/5/2006 passed by the learned Additional
Senior Civil Judge, Viramgarm below application Ex.5 in Special
Civil Suit No. 87 of 2004 in so far as against the appellants ?
original defendant Nos.5 and 6, is hereby quashed and set aside.
Rule is made absolute accordingly. In view of disposal of the Appeal
From Order, no order in Civil Application. No In the facts and
circumstances of the case, there shall be no order as to costs.
[M.R.
SHAH, J.]
rafik
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