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AO/60/2005 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL
FROM ORDER No. 60 of 2005
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
=========================================================
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 ?
=========================================================
NIRAV
NIRANJAN SHAH - Appellant(s)
Versus
HARNISHBHAI
KANTILAL SHAH & 5 - Respondent(s)
=========================================================
Appearance :
MR
DHIRAJ M PATEL for
Appellant(s) : 1,
MR KH BAXI for Respondent(s) : 1,
SERVED BY
AFFIX.-(R) for Respondent(s) : 2 - 3, 6,
RULE SERVED for
Respondent(s) : 4 -
5.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 10/01/2011
ORAL
JUDGMENT
1. Cognate
matters involving similar issue came to be disposed of by this Court
vide judgment and order passed in A.O. No.26/2005 & allied
matters dated 09.01.2006, which reads as under;
“1. This
set of appeals came to be admitted by order dated 8th
February, 2005 and were ordered to be fixed for final hearing on 27th
April, 2005. However, the final hearing has taken place today.
2. In
this set of Appeals from Order, the appellant is original defendant
No.3 in various suits preferred by respondent No.1 against the
appellant and rest of the respondents for damages in respect of
collapse of building in earthquake, which was developed by a firm,
Jay Associates, of which the present appellant was one of the
partners.
3. An
injunction was sought against the defendants, particularly defendant
No.3-present appellant, restraining him from transferring or
alienating the properties indicated in paragraph 5 of the application
for Notice of Motion, which includes three properties stated as under
:-
(1) ‘Jay
Industries’ with its office, factory building and office furniture
at Soni’s Chawl, Beside Chemical factory, Near Old Tolnaka, Rakhial,
Ahmedabad.
(2) ‘Jay
Industries’, a factory manufacturing water pumps, situate at Rajkamal
Estate, Soni’s Chawl, Beside Chemical factory, Near Old Tolnaka,
Rakhial, Ahmedabad.
(3) ‘Jay
House’, a building located at Rambaug, Maninagar, Ahmedabad.
The
injunction was sought only with a view to ensure that the decree that
may be passed does not get frustrated, if the properties are
transferred by the defendants.
4. The
defendants in the Trial Court chose not to contest the Notices of
Motion except the present appellant, who filed written statement to
the plaint and reply to the application specifically contending that
he owns a property in Jaihind Society, which he does not intend to
transfer to anyone. His case is that, he is a partner of Jay
Industries engaged in the manufacture of tools, but he has no
connection whatsoever with Jay Industries engaged in manufacture of
water pumps and the property described as Jay House, located at
Maninagar and, therefore, no such injunction could be sought by the
plaintiff in respect of these two properties.
5. The
Trial Court, after hearing both the sides, passed the impugned orders
on 15th September, 2003, allowing the Notices of Motion
and confirming the ad-interim injunction granted earlier in terms of
paragraph 7(a) and (c).
6. Learned
Advocate, Mr. Patel, for the appellant submitted that the appellant
has no objection so far as the grant of prayer at paragraph 7(a) is
concerned. He submitted that, so far as the relief at paragraph 7(c)
is concerned, the appellant is aggrieved for the reason that Jay
Industries engaged in manufacture of tools is a firm of which the
appellant is only one of the partners. That firm has nothing to do
with the development of the building which collapsed in the
earthquake and the properties of that firm cannot be restrained from
being dealt with only on this count because the suit is for damages,
a decree is yet to be passed and, if it is passed, only the share of
the appellant in that firm can be attached for execution of the
decree. So far as the other firm manufacturing water pumps and the
property called Jay House are concerned, the appellant has no
connection whatsoever and, therefore, the relief could not have been
granted against those properties.
7. Learned
Advocate, Mr. Baxi, submitted that the appellant was the developer of
the building which collapsed in the earthquake and he is trying to
confuse the issue by showing his involvement or non-involvement in
Jay Industries and Jay House, which is not relevant at all. Mr.
Baxi submitted that, if the properties are permitted to be dealt
with, all that the plaintiffs would be getting is a paper decree and
with a view to protect the interest of the plaintiffs, the orders are
passed. He submitted that, this Court may not, therefore, interfere
with the orders.
8. This
Court has taken into consideration rival side contentions. When the
plaintiffs approached the Court seeking a particular relief, the onus
was upon them to establish the case in their favour and to establish
that defendant, No.3-appellant herein, has interest in the
properties in respect of which injunction is sought. The
appellant-original defendant No.3 has come with a specific case that
he has no interest in the property known as Jay House or Jay
Industries manufacturing water pumps. Even, thereafter, no steps
were taken by the plaintiff to bring on record any material to show
that defendant No.3 is interested in that firm or property and, in
absence of any material showing any interest of defendant No.3 either
in the firm or in the property, the orders could not have been passed
by the Trial Court. The orders to that extent, therefore, stands
vitiated and cannot be permitted to stand.
9. So
far as the orders in respect of Jay Industries engaged in manufacture
of tools is concerned, it is the case of the appellant that he is one
of the partners of the firm. Undisputedly, that firm has nothing to
do with the development and/or construction of the building which
collapsed in the earthquake. The developer was Jay Associates in
which the appellant was again one of the partners. Injunction
against defendant No.3 in respect of a firm which has nothing to do
with the development of the building and a firm of which he is only
one of the partners, in absence of any order against rest of the
partners of that firm or in absence of any order against the firm
itself would be of no virtue. The decree for damages is yet to be
passed and transactions of a firm, which has no nexus with the
development or construction of the building, cannot be permitted to
be affected in this manner only because there is a common partner in
the two firms and, therefore, to that extent also, the injunction
order could not have been passed. The order, therefore, is not
sustainable.
10. For
the foregoing reasons, the appeals deserve to be allowed the the same
are allowed. The orders passed by the Trial Court, which are
impugned in these appeals, are hereby set aside. It is, however,
clarified that the appellant shall stand bound by his averment in the
written statement that he does not intend to transfer the property
located at Plots No.9 and 9-A, Jaihind Society, admeasuring 667 sq.
yards till the final disposal of the suits. No costs.
11. At
this stage, a request is made by learned Advocate, Mr. Baxi, to
suspend the operation of this order for a period of four weeks, as
the injunction granted by the Trial Court is operating till today to
enable the respondents-original plaintiffs to approach the higher
forum. Learned Advocate, Mr. Patel, has no objection. The operation
of the order passed today stands suspended for a period of four
weeks, i.e. upto 9th February, 2006.”
2. Since
the present appeal from order is similarly situated, it stands
disposed of in terms of the above order. No order as to costs.
[K.
S. JHAVERI, J.]
Pravin/*
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