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AO/344/2008 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL
FROM ORDER No. 344 of 2008
With
CIVIL
APPLICATION No. 12586 of 2008
In
APPEAL
FROM ORDER No. 344 of 2008
=========================================================
MUKESHKUMAR
AMULAKHRAI SONI - Appellant(s)
Versus
USHAKANT
SHIVLAL JAISWAL & 1 - Respondent(s)
=========================================================
Appearance :
MR
CB UPADHYAYA for Appellant(s) : 1,
MR RUTVIJ S
OZA for Respondent(s) : 1,
None for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 23/10/2008
ORAL
ORDER
1. Heard
Mr.C.B.Upadhyaya for the appellant ? original plaintiff and
Mr.Tushar Mehta, learned Senior Advocate with Mr.Rutvij Oja, learned
Advocate for the respondents ? original defendants.
2. Present
Appeal from Order is by the appellant ? original plaintiff to quash
and set aside the order passed by the learned 8th Senior
Civil Judge, Bhavnagar dated 10.10.2008 passed below Exh.5 in Special
Civil Suit No.92 of 2007 in dismissing the same. The appellant ?
herein ? original plaintiff has instituted Special Civil Suit No.92
of 2007 in the Court of learned Senior Civil Judge, Bhavnagar for
specific performance of agreement to sale dated 22.07.1994 with
respect to disputed land. In the said Suit the appellant had
submitted application for interim injunction below Exh.5 restraining
the defendants from transferring, alienating and/or creating any
third party rights with respect to disputed land. The learned trial
Court after considering the submissions made on behalf of the both
the parties dismissed the application Exh.5. Being aggrieved and
dissatisfied with the same, the appellant ? original plaintiff has
preferred present Appeal from Order.
3. After
making submissions on merits, Mr.Upadhaya, learned Advocate for the
appellant does not invite any reasoned order and therefore, while
dismissing present Appeal from Order, this Court is not assigning any
further detailed reasoned order. However, suffice it to mention that
considering the fact that agreement to sale is of 1994 of which
Specific performance is sought and Suit has been filed in the year
2007, it cannot be said that the learned trial Court has committed
any error in refusing to grant injunction. However, Mr.Upadhaya,
learned Advocate for the appellant has submitted that the defendants
may transfer the property and/or third party rights might be created
and therefore, it is requested to make suitable observations.
Mr.Tushar Mehta, learned Senior Advocate appearing on behalf of the
defendants has submitted that even otherwise the question with
respect to lis-pendece will always be there. Under the
circumstances while dismissing the present Appeal from Order, it is
directed that any transaction herein after by the defendants will be
subject to the ultimate outcome of the Suit and that subsequent
purchaser be informed by the defendants with respect to the pendency
of the proceedings.
4. With
these, present Appeal from Order is dismissed. In view of dismissal
of Appeal from Order, no order in Civil Application.
[M.R.Shah,J.]
satish
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