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AO/170/2011 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL
FROM ORDER No. 170 of 2011
With
CIVIL
APPLICATION No. 5175 of 2011
In
APPEAL FROM ORDER No. 170 of 2011
=========================================================
SHAILESHBHAI
HIRABHAI GAJERA - Appellant(s)
Versus
VAGHJIBHAI
GHELABHAI BHAGIYA & 4 - Respondent(s)
=========================================================
Appearance
:
MR
CL SONI FOR M/S S G ASSOCIATES
for
Appellant(s) : 1,
None for Respondent(s) : 1 -
5.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 02/05/2011
ORAL
ORDER
Present
Appeal From Order under Order 43 Rule 1 of the Code of Civil
Procedure has been preferred by the appellant herein –
original plaintiff to quash and set aside the impugned order passed
by the learned Principal Senior Civil Judge, Surat below application
Ex.5 in Regular Civil Suit No.
71 of 2008 dtd.31/3/2010, by which the learned trial court has
rejected the said application for interim injunction submitted by
the appellant herein – original plaintiff restraining the
defendant Nos.2 to 5 from transferring and/or alienating the suit
property in any manner whatsoever till final disposal of the suit.
The
appellants herein has instituted Regular Civil
Suit No.71 of 2008 against the defendants for specific
performance of the Agreement-to-sell dtd.12/3/2003 alleged to have
been executed by the respondent No.1 herein – owner. That in
the said suit, the plaintiff prayed for interim injunction against
the defendant Nos.2 to 5 – purchasers of the land in question, who
had purchased the land in question for value and on payment of
consideration in the year 2007. That the said application came to be
dismissed by the learned trial court and hence the appellant herein
– original plaintiff has preferred present Appeal From Order.
Having
heard Mr.Soni, learned advocate appearing on behalf of the appellant
– original plaintiff and considering the impugned order passed
by learned trial court refusing to grant interim injunction in
favour of the appellant, it cannot be said that the trial court has
committed any error in rejecting the application Ex.5, on the
following grounds :-
(A) The
Agreement-to-sell in favour of the appellant is dtd.12/3/2003.
(B) That
the registered sale deed in favour of the defendant Nos.2 to 5 is
dtd.14/5/2007. They have purchased the land in question by registered
sale deed ion payment of full consideration i.e. for value and they
are bona fide purchasers of the land in question.
(C) Depsite
the above, there was notice correspondence between the appellant and
the original defendant No.1 in the year 2005, still Suit was filed
by the original plaintiff for specific performance of the alleged
Agreement-to-sell dtd.12/3/2003 and the suit came to be filed only in
the year 2008.
(D) While
issuing notice Mark 3/6 by the appellant – original plaintiff
to the original defendant No.1 somewhere in the year 2005-2006, the
appellant – original plaintiff demanded to refund the amount
which was alleged to have been paid by him at the time of execution
of the alleged Agreement-to-sell dtd.12/3/2003 and at that time also
the original plaintiff – appellant herein did not even pray for
specific performance of the Agreement-to-sell and even the plaintiff
did not show readiness and willingness to perform his part of
contract. Thus, it appears that the appellant herein had waived his
right for specific performance of the Agreement-to-sell, as he was
interested subsequently in getting the amount back which was alleged
to have been paid at the time of execution of the Agreement-to-sell
dtd.12/3/2003.
Considering
the aforesaid facts and circumstances of the case, when the learned
trial court has rejected the application Ex.5 and refused to grant
interim injunction against the respondent Nos.2 to 5, who have
purchased the property / land in question by registered sale deed
in the year 2007, it cannot be said that the learned trial court has
committed any error and/or illegality.
In
view of the above and for the reasons stated above, there is no
substance in the present Appeal From Order which deserves to be
dismissed and is accordingly dismissed. In view of dismissal of the
main Appeal From Order, no order in the Civil
Application for stay and the same is also accordingly dismissed. No
costs.
[M.R.
SHAH, J.]
rafik
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