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CA/7547/2011 23/ 23 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION - FOR STAY No. 7547 of 2011
In
APPEAL
FROM ORDER No. 258 of 2011
WITH
CIVIL
APPLICATION - FOR STAY No. 7446 of 2011
In
APPEAL
FROM ORDER No. 255 of 2011
=========================================
KOKILABEN
WD/O DECEASED RAMANGIRI MANIGAR THRO P O A & 4 - Petitioner(s)
Versus
MADHUBEN
D/O DECD.ATMAGAR SWAROOPGAR & 11 - Respondent(s)
=========================================
Appearance :
CIVIL
APPLICATION - FOR STAY No. 7547 of 2011
In
APPEAL
FROM ORDER No. 258 of 2011
MR
P.S.CHAMPANERI for Applicant / Appellant(s) : 1 - 2.
None for
Opponent / Respondent(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.3.1, 1.3.2,
1.3.3, 1.3.4,1.3.5 - 2, 2.2.1, 2.2.2, 2.2.3, 2.2.4,2.2.5 - 3, 3.2.1,
3.2.2, 3.2.3,3.2.4 - 4, 4.2.1, 4.2.2, 4.2.3,4.2.4 - 5, 5.2.1,5.2.2 -
6, 6.2.1, 6.2.2, 6.2.3, 6.2.4, 6.2.5, 6.2.6, 6.2.7,6.2.8 - 9, 9.2.1,
9.2.2, 9.2.3,9.2.4 - 15.
MR. KAMAL TRIVEDI, Ld. AG and Senior
Counsel with Ms Sangeeta Vishen with Mr. Harsh Jani - for Opponent /
Respondent No.12
CIVIL
APPLICATION - FOR STAY No. 7446 of 2011
In
APPEAL
FROM ORDER No. 255 of 2011
MR.
B.B.NAIK with MR PARTHIV A BHATT for Applicant / Appellant(s) : 1 -
2.
None for Opponent / Respondent(s) : 1, 1.2.1, 1.2.2, 1.2.3,
1.3.1, 1.3.2, 1.3.3, 1.3.4,1.3.5 - 2, 2.2.1, 2.2.2, 2.2.3,
2.2.4,2.2.5 - 3, 3.2.1, 3.2.2, 3.2.3,3.2.4 - 4, 4.2.1, 4.2.2,
4.2.3,4.2.4 - 5, 5.2.1,5.2.2 - 6, 6.2.1, 6.2.2, 6.2.3, 6.2.4, 6.2.5,
6.2.6, 6.2.7,6.2.8 - 9, 9.2.1, 9.2.2, 9.2.3,9.2.4 - 15.
MR. KAMAL
TRIVEDI, Ld. AG and Senior Counsel with Ms. Sangeeta Vishen with Mr.
Harsh Jani - for Opponent / Respondent No.16
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 24/08/2011
ORAL
ORDER
Both
the aforesaid Appeals from Order and the aforesaid two Civil
Applications are arising out of the impugned judgment and order
passed below Application (Exh.5) in Special Civil Suit No.269 of
2010 as well as order passed below Application (Exh.5) in Special
Civil Suit No.710 of 2010 by the learned 4th Additional Senior Civil
Judge, Ahmedabad (Rural), Mirzapur at Ahmedabad, both dated
22.6.2011, on the grounds set out in the memo of both the Appeal
from Orders.
Heard
learned learned Counsel Mr. P.S.Champaneri for the Appellants in
Civil Application No. 7547 of 2011 in Appeal from Order No.258 of
2011 and learned Senior Counsel Mr. B.B.Naik appearing with Mr.
Parthiv A. Bhatt for the Applicants / Appellants in Civil
Application No. 7446 of 2011 in Appeal from Order No.255 of 2011, as
well as learned Advocate General and Senior Counsel Mr. Kamal
Trivedi appearing with Ms. S.K.Vishen for the Opponent / Respondent
– Safal Nova Realities Pvt. Limited.
Learned
Senior Counsel Mr. B.B.Naik referred to the facts of the case which
has a chequerred history including the pedigree, and submitted that
the Power of Attorney was executed by some of the co-owners in
favour of Respondent No.5/2 – Baldevbhai Sankabhai Desai in Appeal
from order No. 258 of 2011 and who is Respondent No.9.2 in Appeal
from Order No.255 of 2011, on the basis of which further
transactions have taken place. He submitted that the Respondent –
Baldevbhai Sankabhai Desai has in turn executed a registered sale
deed in favour of the Respondent – Dineshbhai Shivbhagwan. Learned
Senior Counsel Mr. Naik submitted referring to the various details
and also the impugned order passed below Application (Exh.5) in both
the Suits, by which the injunction has been vacated that the
approach of the Court below, i.e. the lower Appellate Court is
totally erroneous. He pointedly referred to some of the
observations made in the impugned order and submitted that the Court
has failed to appreciate that the Power of Attorney is not executed
in favour of the Respondent – Baldevbhai Sankabhai Desai, and it was
not genuine, which has been disputed in the said Suit. Further, it
was submitted that if it is a subject matter of evidence at the
trial, then the Court ought to have considered the other relevant
material, and has failed to draw the inference, which is required
under the pedigree. For that purpose, he again referred to the
observations made in the order of the Appellate Court and further
submitted that if the Power of Attorney is not executed by all the
co-owners then what would be the effect of such Power of Attorney or
any further transaction which may have taken place. He therefore
submitted that if the Power of Attorney is not genuine, or
alternatively, if it was not valid as all the co-owners have not
executed the same, then, the subsequent transactions which may have
taken place, will have no effect, which has not been appreciated by
the lower Appellate Court. He also referred to the record and
details at length to emphasize the submissions made by him,
particularly with regard to the observations made in paragraphs 10
and 11 at pages 44 and 45 and also of the impugned order and
submitted that when genuineness of the Power of Attorney is
disputed, the order with regard to the preservation of the disputed
land in question would have been passed. Referring to the
observations made in paragraph 14, learned Judge has considered the
guidelines with regard to the grant of injunction and has failed to
consider the aspect of burden of proof. He pointedly referred to
the details and submitted that if broadly it was pointed out that
all the co-owners have not executed the Power of Attorney, it will
have some bearing on subsequent transaction, and that by itself
should have been considered for the purpose of application for
injunction as if the property is not preserved it may lead to
further complication.
Learned
Senior Counsel Mr. Naik submitted that normally, in such disputes,
the approach of the Court should be to maintain the property as it
is so that ultimately if it is decided in favour of either party, it
is not causing prejudice. He further submitted that if the decree
is passed, then it may not remain a mere paper decree, and
therefore, the Court would pass an order directing the parties to
maintain status quo to preserve the property as it is so that the
rights of the third party is not created and the irreversible
situation is not created. he pointedly referred to this aspect and
submitted that if the injunction as prayed for is not granted, it
will affect the Plaintiffs – Appellants herein, as it would lead to
the creation of third party right. Further, learned Senior Counsel
Mr. Naik submitted that the inference, which the Court is to draw,
has not been drawn. However, the conduct of the Defendants is also
not considered. He further submitted that irreversible situation
may not be created and if the injunction is not granted as could be
seen from the facts, the Respondent – Safal Nova Realities Pvt.
Limited would proceed further and infact it has proceeded further,
and therefore, it would cause prejudice to the rights of the
Appellants – Original Plaintiffs.
In
support of his aforesaid submissions, learned Senior Counsel Mr.
Naik referred to and relied upon the judgment of the Hon’ble Apex
Court in case of Special Land Acquisition Officer and Otehrs v.
Mallanagouda Rayanagouda Patil and Others, 1985(5) SCC 544. He
has also referred to and relied upon the judgment of the Hon’ble
Apex Court in case of Gangubai Babiya Chaudhary and Others v.
Sitaram Bhalchandra Sukhtankar and Others, AIR 1983 SC 742 and
pointedly referred to the observations made in paragraphs 6 and 7.
Learned Senior Counsel Mr. Naik has also referred to and relied upon
the judgment of the Hon’ble Apex Court in case of Dalpat Kumar
and another v. Prahlad Singh and others, AIR 1993 SC 276 and
pointedly referred to the observations made in paragraphs 4 and 5 to
further emphasize with regard to the criteria or the guidelines
which are required to be considered for the purpose of granting
injunction and emphasized the observations made in paragraph 5 which
reads as under:
“………………….The
court while granting or refusing to grant injunction should exercise
sound judicial discretion to find the amount of substantial
mischief or injury which is likely to be caused to the parties, if
the injunction is refused and compare it with that it is likely to
be caused to the other side if the injunction is granted.
………………… Thus the Court has to exercise its sound
judicial discretion in granting or refusing the relief of ad interim
injunction pending the suit.”
Learned
Senior Counsel Mr. Naik has also referred to and relied upon the
judgment of the Hon’ble Apex Court in case of Dorab Cawasji
Warden v. Coomi Sorab Warden and others, AIR 1990 SC 867 and
pointedly referred to the observations made in paragraphs 27 and 28
and submitted that it has also referred to and discussed the earlier
English judgments with regard to the principles which have been
discussed in paragraphs 14 and 15. He therefore submitted that both
the present Appeals from Order may be admitted by which the
injunction has been vacated by the lower Appellate Court and the
position may be restored.
Learned
Counsel Mr. P.S.Champaneri appearing for the Appellants in Appeal
from Order No.258 of 2011 has also referred to the papers at length
and tried to support the submissions canvassed by learned Senior
Counsel Mr. B.B.Naik. He submitted that though he has adopted the
submissions made by learned Senior Counsel Mr. B.B.Naik, he would
supplement the submissions, for which, he referred to the details
and submitted that the transactions have taken place from time to
time. He submitted that as a Power of Attorney holder of the three
ladies, the Respondent No. 5/2 – Baldevbhai Sankabhai Desai could
not have executed a sale deed without the approval of the co-owners.
He also referred to and emphasized the conduct of Respondent No.6
and submitted that as per the panchnama, which is produced at
Exh.14, there was only some material pending, but no construction
was made, whereas inspite of knowing the pendency of such
application with the Suit, the Respondent – Safal Nova Realities
Pvt. Limited proceeded further, which suggest about their conduct,
which he has pointedly referred. Therefore, he has submitted that
the construction has been made by the Respondent No.16 – Safal Nova
Realities Pvt. Limited with own eyes knowing pending litigation as
well as application for injunction, and therefore cannot be heard to
say about the fact that there is any hardship likely to cause if the
injunction is granted.
Learned
Advocate General and learned Senior Counsel Mr. Kamal Trivedi
appearing for the Respondent – Safal Nova Realities Pvt. Limited
has referred to the pedigree produced on record at pages 31 and 83
of Appeal from Order No. 258 of 2011 and submitted that originally
one Swaroopgar was having this land for the purpose as vahivatkarta
of Kalimas Temple and since
1948 these entries have been made. The Atmagar Swaroopgar and
Devgar Swaroopgar were the two sons. The branch of Atmagar
Swaroopgar consisted of widow Chanchalben of deceased Atmagar and
daughter Shardaben and Madhuben. Madhuben is Defendant – Respondent
No.1 herein, who is said to have initially executed Power of
Attorney in favour of Respondent No.5/2 – Baldevbhai Sankabhai
Desai. Learned Advocate General and learned Senior Counsel Mr.
Kamal Trivedi submitted that there are five registered sale deeds
after the Power of Attorney was executed on 12.3.1993 and the said
Power of Attorney is sought to be challenged or doubted after so
many years during which about five transactions with registered sale
deed have taken place. For that purpose, he submitted that, on the
basis of Power of Attorney executed by the
three ladies as stated above on 16.4.1993 in favour of Respondent
No.5/2 – Baldevbhai Sankabhai
Desai. Thereafter on 18.9.1993, the registered sale deed
was executed by four
persons in favour of Defendant Nos. 6 to 11. The said four persons
are original Defendant Nos. 2, 3, 4 and 5 executed registered sale
deed in favour of Original Defendant Nos. 6 to 11, i.e. Vedprakash
Devkinandan and others known as Chiripal Group. The said Defendant
Nos. 6 to 11 developed the land in question as Nova Party Plot and
utilized the same from 1993 to 2006. Thereafter the said Defendant
Nos. 6 to 11 – “Chiripal Group” sold it to the
Respondent – Safal Nova Realities Pvt. Limited by registered sale
deed dated 30.12.2006. Therefore learned Advocate General and
Senior Counsel Mr. Kamal Trivedi submitted that for the fist time it
is stated that it came to the notice on 30.12.2009 with regard to
the construction or the land which is situated at Bodakdev, and the
Plaintiffs / Appellants herein have filed a Suit on 23.4.2010 on
12.10.2010.
The ad interim relief was refused. Learned Advocate General has
also referred to the paper book which he has supplied referring to
the various revenue record entries in village Form 7/12 and
submitted particularly referring to the Entry no.1806 produced at
mark 22/3 and other Entry No.2456 at mark 22/4 and also Entry
No.3006 at mark 22/6, how Baichanchal considered to be an exclusive
owner though the claim has been made by the Appellants herein with
regard to their right, title and interest. Leaned Advocate General
and Senior Counsel Mr. Kamal Trivedi
submitted that infact
as could be seen from the Entry No.3006
at Mark 22/6 that when on the one hand it is noted that there are no
heirs of Bai Chanchalben whereas the Entry is sought to be mutated
in the name of the heirs which was thereafter taken in revision and
ultimately SSRD passed a detailed order which he has referred to in
detail. He pointedly emphasized the details in the order of the
SSRD produced with the paper book and submitted that he has
considered in detail in entire history with regard to the land and
various Entries. He has also submitted that it is required to be
mentioned that Respondent / Defendant Nos. 6 to 11 made an
application for getting NA permission which has been granted, and on
the basis thereof, ultimately, even in the government record of the
Town Planning Department when the T.P.Scheme No.50 for Bodakdev was
made, the names of Respondent Nos. 6 to 11 have been mentioned in
the column of owners. He therefore submitted that this prima facie
suggest about the fact that the transactions have taken place which
has never been objected, and for the first time, after 20 years, the
Appellants – Original Plaintiffs have raised the dispute with regard
to Power of Attorney contending that it is not genuine, and
alternatively, even if it is genuine, it has not been signed by all
the co-owners, and therefore, even subsequent transactions would be
null and void. However, learned Advocate General and Senior Counsel
Mr. Kamal Trivedi submitted that as pointed out from the
record, infact Bai Chanchal was accepted by the revenue authorities
as the owner though initially it was limited right of occupation.
She has been accepted as the only owner and on the basis thereof
further transactions have taken place by registered sale deed, and
therefore, the Court having considered all these aspects has passed
the order, which cannot be said to be erroneous. Learned Advocate
General and Senior Counsel Mr. Kamal Trivedi submitted that
Defendant No.1-Madhuben is the daughter of Bai Chanchal from whom
the present Appellants / Plaintiffs are claiming right, title and
interest whereas as could be seen from the record Bai Chanchal was
the owner without any heirs which is a matter of appreciation of
evidence. Therefore, it cannot be said that the order made by the
Court below is erroneous.
Leaned
Advocate General and Senior Counsel Mr. Kamal Trivedi submitted that
the submissions have been made with regard to the burden of proof,
drawing of inference and the guidelines / criteria for grant of
injunction. However, he submitted that though much emphasis was
given on the conduct of the Respondent – Safal Nova Realities Pvt.
Ltd., the conduct of the Appellants – Plaintiffs is also required to
be noted as they have awaken from slumber after so many years, which
itself would dis-entitle them from any discretionary relief. He
pointedly referred to the details and the facts and submitted that
the five registered sale deeds which have taken
place are sought to be challenged on the basis that the Power
of Attorney which was executed in the year 1993 in favour of
Respondent No. 5/2 – Baldevbhai Sankabhai Desai is not genuine and
alternatively, it is not signed by all the co-owners though the
revenue record suggest otherwise, which has been discussed at length
in the order of SSRD. Further, learned Advocate General and Senior
Counsel Mr. Kamal Trivedi submitted that the submissions have been
made for the burden of proof and the inference regarding the
approach of the Court, but it has not been pointed out as to what
evidence has been placed with regard to drawing any inference in
favour of the Appellants / Plaintiffs in such disputed questions,
requiring a detailed examination on the basis of the evidence.
Therefore, the inference could have been drawn which has also been
noted by the Court below. Further he submitted that it is for the
Appellants / Plaintiffs to come forward instead of casting a burden
on the Defendants that they have to produce the documents, failing
which the inference could be drawn. Moreover, even if some
documents are not produced, the Appellants / Plaintiffs having
called upon the Defendants by making necessary application, and
therefore, the submission made by learned Counsel for the Appellants
/ Plaintiffs that inference ought to have been drawn, cannot be
accepted. Further, learned Advocate General and Senior Counsel Mr.
Kamal Trivedi submitted that the
criteria for grant of injunction is very well settled and the
reliance placed by learned
Senior Counsel Mr. Naik in case of Dalpat
Kumar and another v. Prahlad Singh and others (supra)
infact refers to the
repeated round of litigations in that case and still the injunction
granted by the High Court was not held to be justified as it has
been observed that the doctrine of lis pendence under Section 52 of
the Transfer of Property Act would be appreciated if any alienation
is made. The Court has also referred to the prima facie case,
balance of convenience and irreparable loss.
He
therefore submitted that the Court had to weigh the rival claims,
and after discussion, the impugned order has been passed, which
cannot be said to be erroneous and therefore the present petition
may not be entertained. He also referred to the judgment of the
Hon’ble Apex Court in case of Kishorsinh Ratansinh Jadeja v.
Maruti Corporation and Others, (2009) 11 SCC 239 and further
emphasised the observations made therein particularly paragraphs 18,
19 and 41 to support his submission. He pointedly referred to the
observations made in paragraph 41 to emphasize that the conduct of
the Appellants / Plaintiffs may also be considered in the facts of
the case that they have awaken from slumber after so many years and
therefore that itself would dis-entitle from any relief and both the
Appeal from Orders may not be entertained.
In
view of the rival submissions, it is required to be considered
whether the present Appeal from Order would be entertained or not.
As
it transpires from the material and evidence as well as rival
submissions which have been discussed threadbare in detail, clearly
suggest from the facts which have been placed on record about the
history that the Appellants are claiming share in the property as
the heir of one of the branches as shown in the pedigree produced at
page 83 in Appeal from Order No. 258 of 2011. Originally, one
Swargoopgar and his widow had two sons – Atmgar Swaroopgar and
Devgar Swaroopgar. The branch of Atmgar Swaroopgar consisted of
widow Chanchalben of deceased Atmagar and daughter Shardaben and
Madhuben – Respondent No.1. Whereas Devgar Swaroopgar another
son of the deceased Atmagar Swaroopgar had five sons who in turn had
their own descendants which is stated in detail in the pedigree.
The claim made by the Appellants herein is that it is the joint
property in which they have right, title, interest and they have
undivided share in the said land in question, and therefore, any
transaction without their knowledge or consent would be void. The
submissions have also been made that the Defendant Nos. 2 to 5 in
collusion have made transactions behind the back of the Appellants /
Petitioners, for which the registered documents are also executed,
but they are void, and as it has been executed without any consent
or knowledge of the Appellants / Petitioners with an oblique motive
and / or fraud, such transactions and / or the documents executed,
are void. It is also contended that further transactions, including
the transactions with the Respondent – Safal Nova Realities
Pvt. Ltd. would therefore also be without any basis and no right
could be claimed on the basis of the right, title or interest
claimed by anybody by misrepresentation or fraud. Therefore, much
emphasis is made by learned Counsel Mr. Naik that if the initial
transaction itself is void, the subsequent transaction, even by
registered sale deed would be void and would not convey any title in
favour of the Respondent – Safal Nova Realities Pvt. Ltd., and
therefore, the Respondent – Safal Nova Realities Pvt. Ltd. cannot
claimed to be a bonafide purchaser for value.
It
is required to be appreciated in light of these submissions which
have been made, the other side of the entire submissions have also
been much emphasized by learned Advocate General and Senior Counsel
Mr. Kamal Trivedi for the Respondent – Safal Nova Realities
Pvt. Ltd., referring to the pedigree in detail and the transactions
which have taken place.
As
recorded hereinabove, in the year 1993 Defendant Nos.2 to 5 are said
to have conveyed by executing registered sale deed to original
Defendant Nos. 6 to 11. Thereafter, the original Defendant Nos. 6
to 11 are said to have developed the land in question, enjoyed it
for about 8 to 10 years in the name of Nova Party Plot and it is
thereafter they have entered into transaction with Defendant No.4 by
executing a registered sale deed on 30.12.2006. Thereafter, for the
first time in December, 2009 it is stated that it came to the
knowledge of the present Appellants / Plaintiffs about such
transactions or the irregularity, and subsequently, the Suit is
filed on 23.4.2010. The ad interim relief was also refused in
Appeal from Order No.258 of 2011 and there is reference to various
entries made for this purpose. Therefore, it is very evident that
though the original Plaintiffs / Appellants herein have claimed
about the right, title, interest that it is a joint undivided share
in the property, the entries, which have been referred to also makes
a prima facie case and suggest about the various stages, and
ultimately, the transaction with regard to the sale in favour of the
Respondent – Safal Nova Realities Pvt. Ltd. Therefore, a bare
perusal of this entire record and the rival submissions would make
the few aspects very evident that on the one hand the right is
claimed on the basis that it is a joint property between the two
branches and the Plaintiffs who belong to one branch and have
undivided share in the said land in question, and therefore, any
subsequent transaction without their knowledge or consent is void.
On the other hand a detailed reference to the entries coupled with
the passage of time and the development of the property with change
of the circumstances from time to time clearly suggest that there
are 5 sale deeds executed in between. There is no claim, no
objection, and if it is assumed for the sake of argument that the
Appellants / Plaintiffs are residing in a different area where they
may not be passing from the land in question every time so that they
can notice about the development, still they would know when they
are claiming an undivided share in the property which is situated
near to the S.G.Highway, which is a fast developed area and cannot
be oblivious of the surrounding development. Therefore to say that
for years together they had no knowledge, and only in the year 2009
they came to know, is too difficult to accept. Even thereafter as
could be seen from the record, what has been claimed is a right or a
share in the entire property, but there is no say about the
conversion of the land into NA, developments thereof, and enjoyment
thereof for years, by the Original Defendants. One cannot be so
ignorant of ones own right or title in the property that the other
branch gets the NA and makes further development for use and
enjoyment in the form of a club and the persons like Plaintiffs /
Appellants are not even aware. Therefore, without any further
elaboration, on the one hand though the right is claimed, the entire
chain of events and the circumstances over a period of time, which
have taken place, and 5 sale deeds which have been executed, cannot
be brushed aside only on the ground that the claim is made that the
Appellants / Plaintiffs were not aware or had no knowledge about the
subsequent transaction. Further, even if it is assumed for the sake
of argument that they had no knowledge, still what would be the
position pending hearing of the Suit with regard to the interim
relief, is required to be considered.
The
Hon’ble Apex Court has laid down the guidelines in the case of
Dorab Cawasji Warden v. Coomi Sorab Warden and others (supra).
The observations made in paragraphs 14 with regard to the guideline
clearly provide that not only a prima facie case but balance of
convenience and the comparative hardship is required to be
considered. The Court is required to weigh the respective claimants
and try to balance the same so that least harm is caused to either
party. That has lead to the evolvement of the concept of
comparative hardship, which again has a reference comparing the
hardship that may be caused to either party, by passing the order.
Therefore, in the facts of the present case, in light of the
circumstances and the developments which have taken place and also
considering the provisions of Specific Relief Act, it could be said
that, ultimately the right of the Appellants Plaintiffs should be
protected for claiming the adequate damages. Therefore, if it could
be compensated in terms of money,
the injunction should not follow.
It is required to be
mentioned that normally the approach of the Court would be to
maintain status quo with regard to the disputed property in order to
see that ultimately, the property or the land in question is
preserved till the rights are crystallized and decided finally and
that could be a equitable justification. However, at the same time,
it is not desirable in every case, as otherwise, it lead to causing
a great comparative hardship to one party merely because some claim
is made, which is kept pending for some time or the years together
causing irreversible damage to the other side. It is in such
circumstances, the Court has to consider the comparative hardship
and pass appropriate order keeping some provisions for compensating
the party who ultimately may succeed, even if the property is
allowed to be developed.
It
is in these circumstances, time and again the Hon’ble Apex Court has
made observations in case of Dalpat Kumar and another v.
Prahlad Singh and others (supra)
and observed:
“The
phrases “prima facie case”, “balance of
convenience” and
“irreparable loss” are not rhetoric phrases for
incantation, but words of width and elasticity, to meet myriad
situations presented by man’s ingenuity in given facts and
circumstances, but always is hedged with sound exercise of judicial
discretion to meet the ends of justice.”
The
Hon’ble Apex Court has emphasized about the sound exercise of
judicial discretion to meet the ends of justice and the words of
balance of convenience and irreparable loss or the comparative
hardship are stated to be the words of width and elasticity.
Further,
as observed by the Hon’ble Apex Court in case of Gujarat
Bottling Co. Ltd. And Others v. Coca Cola Co. And Others, (1995) 5
SCC 545 while considering the
aspect of interim injunction, balance has to be struck by providing
some kind of an undertaking with some deposit to compensate the
other party in case the decision is in favour of that party.
Therefore,
though normally the status quo with regard to the land or the
property in question is ordered to be maintained so as to protect
the interest of both sides till the rights are crystalized and
injunction is granted, however, for that there has to be a strong
primafacie case and the balance of convenience must be almost equal
on each side, whereas in the facts of the present case, as discussed
above, it cannot be said that the primafacie case or the balance of
convenience is totally in favour of the Appellants / Plaintiffs,
particularly considering the claim, delay, conduct and also the
development which has taken place by 5 registered sale deeds during
the entire period, which has not been challenged. It is in these
circumstances, the party cannot be restrained from making use of the
property / land in question which is purchased as a bonafide
purchaser. At the same time if it is permitted to be developed, the
rights of the third party may be
created and it may cause prejudice to the Appellants / Plaintiffs,
if ultimately they succeed. It is in these circumstances, it would
be in the fitness of things, if the Respondents / Original
Defendants may be permitted to make further construction or the
development, but shall deposit the amount of Rs.50 lacs alongwith an
undertaking that in case the Appellants / Plaintiffs succeed in the
respective Suit, they will not claim any right on the ground that
now they have been permitted to develop and / or shall also
undertake to deposit any amount, which the Court may decide as
damages ultimately if they are not in a position to restore the
possession of the land in question.
The
amount of Rs. 50 lacs in each Suit, i.e. Rs.1 crore shall be
deposited in the name of the Registrar, High Court of Gujarat, which
can be invested in a fixed deposit with any Nationalized Bank
subject to renewal till the final outcome of the present Appeal from
Orders and / or Civil suit.
Therefore,
both the Appeals from Order are Admitted and the interim relief as
prayed for in both the Civil Applications, regarding the stay of the
execution and operation of the order dated 22.6.2011 passed by the
learned 4th Additional Senior Civil Judge, Ahmedabad
(Rural), Mirzapur at Ahmedabad, below Application (Exh.5) in Civil
Suit No.269 of 2010 as well as order passed below Application
(Exh.5) in Special Civil Suit No.710 of 2010 cannot be entertained,
though as stated above, the balance could be maintained for both the
rival claimants of both the sides as stated hereinabove.
With
the aforesaid observations, both the Civil Applications stand
disposed of accordingly.
The parties may also
move the Civil Court for expediting the hearing of the Suit.
(Rajesh H.
Shukla,J)
FURTHER
ORDER
After the
order was pronounced, learned Advocate Mr. Y.B.Vaghela for learned
Senior Counsel Mr. P.S.Champaneri for the Applicants requested for
stay of the operation of the order.
Learned
Advocate General and Senior Counsel Mr. Kamal Trivedi with learned
Advocate Ms. Sangeta Vishen for the Opponent has stated that there is
no stay operating, and therefore, the request may not be entertained.
As there
is no stay operating, there is no question of stay of the operation
of the present order and request is therefore rejected.
(Rajesh H.
Shukla,J)
Jayanti*
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