SCA/10575/2008 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10575 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= BADI MARIYAMBEN NOORMAMAD & 2 - Petitioners Versus RID AHMAD HUSSEN ABDUL RAHIM - Respondent ========================================================= Appearance : MR MEHUL S SHAH for Petitioner(s) : 1 - 3.MR SURESH M SHAH for Petitioner(s) : 1 - 3. MR MIHIR JOSHI WITH MR SP MAJMUDAR for Respondent(s) : 1, MR YJ PATEL for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 02/09/2008 ORAL JUDGMENT SCA/10575/2008 2/10 JUDGMENT 1. By way of this petition under Article 227 of the Constitution of India, petitioners-original defendants have prayed for an appropriate writ, order or direction, quashing and setting aside the impugned judgment and order dated 5.7.2008 passed by the learned Presiding Officer, Fast Track Court No.7, Morvi passed in Civil Misc. Appeal No.17 of 2008 in allowing the same and quashing and setting aside the order passed by the learned trial court passed below Exh.5 in Regular Civil Suit No.87 of 2008. 2. Respondent herein – original plaintiff had instituted Civil Suit No.87 of 2008 in the Court of learned Principal Civil Judge, Wankaner for a declaration and a permanent injunction declaring that the power of attorney in favour of defendant No.2 executed by the plaintiff is obtained by misrepresentation and the same is illegal, null and void. It was further prayed for a declaration that any transaction pursuant to the said power of attorney with respect to the agriculture lands be declared illegal, null and void and ineffective and SCA/10575/2008 3/10 JUDGMENT not binding to the plaintiff. In the said suit, the plaintiff submitted application Exh.5 for interim injunction restraining the defendants, their agents and servants from transferring and/or alienating the property in question in any manner whatsoever till the final disposal of the suit. The application Exh.5 was opposed by the defendants by submitting that the property in question have been purchased by the petitioner No.1 by registered sale deed, and in fact, one Civil Suit No.228 of 1997 was filed against the plaintiff and the defendants appeared personally and contested the case and the claim of the petitioner No.1, he admitted the aforesaid power of attorney and the sale of suit land by power of attorney the petitioner No.2 to the petitioner No.1 also for the receipt of consideration of sale and admitted the ownership of the petitioner No.1 of the suit land and the said fact has been suppressed by the plaintiff in the suit. The learned trial court after considering the rival submissions dismissed the application Exh.5 by order dated 9.5.2008. 2.1 Being aggrieved and dissatisfied by the order SCA/10575/2008 4/10 JUDGMENT passed by the learned trial court passed below Exh.5 dated 9.5.2008 passed in Civil Suit No.87 of 2008, the respondent-original plaintiff preferred Civil Misc. Appeal No.17 of 2008 before the learned appellate court which came to be heard, decided and disposed of by the learned Presiding Officer, Fast Track Court No.7, Morvi, who by his judgment and order dated 5.7.2008 allowed the said appeal by quashing and setting aside the order passed by the learned trial court passed below Exh.5 directing the defendants to maintain the status-quo and restraining the defendants from dealing with the disputed agriculture land and selling and/or transferring the same till the final disposal of the suit. 2.2 Being aggrieved and dissatisfied with the judgment and order passed by the learned appellate court passed in Civil Misc. Appeal No.17 of 2008, the petitioners-original defendants have preferred the present petition under Article 227 of the Constitution of India. 3. Shri S.M.Shah, learned advocate appearing on SCA/10575/2008 5/10 JUDGMENT behalf of the petitioners has vehemently submitted that the power of attorney executed by the respondent-plaintiff in favour of petitioner No.2 on 21.8.1995 and the petitioner No.1 had purchased the suit property executed by the power of attorney on 18.11.1996 and the necessary entry was also mutated in the revenue record in the year 1996 itself. It is further submitted that even thereafter in the year 1997 the petitioner No.1 purchaser filed Civil Suit No.228 of 1997 against the defendants in the Wankaner Court and the respondent-original plaintiff appeared in the said suit and had admitted the execution of power of attorney, sale of the suit land by power of attorney holder in favour of petitioner No.1 and the receipt of the consideration for sale and also admitted the ownership of petitioner No.1 for the suit land and the said fact has been suppressed by the plaintiff in Civil Suit No.87 of 2008. It is, therefore, submitted that the learned appellate court has committed an error in allowing the appeal and quashing and setting aside the order passed by the learned trial court passed below Exh.5. It is submitted that the appeal has been allowed mainly on SCA/10575/2008 6/10 JUDGMENT the ground that subsequently the plaintiff has submitted the application before the learned trial court for setting aside the judgment and decree passed in Civil Suit No.228 of 1997 and therefore unless and until it is held that the decree which is passed in the year 1997 is legal or not and/or binding upon the plaintiff or not, the parties are required to maintain the status-quo. It is submitted that the learned appellate court has not properly appreciated the suppression of the suit in the year 1997 and filing of the application for setting aside the decree of 1997 in the year 2008 only and therefore it is requested to allow the present petition. 4. Shri Mihir Joshi, learned Senior Advocate with Shri S.P.Majmudar, learned advocate appearing on behalf of the respondent-original plaintiff has vehemently submitted that considering the fact that the consent decree passed in Civil Suit No.228 of 1997 has been challenged by the plaintiffs while submitting Civil Misc. Appeal No.17 of 2008, and unless and until there is a decision in Civil Misc. SCA/10575/2008 7/10 JUDGMENT Appeal No.17 of 2008 is binding or not and/or the same is right or not, the parties are required to maintain the status-quo and therefore the learned appellate court was justified in allowing the appeal by directing the parties to maintain the status-quo which is not required to be interfered with by this Court in exercise of powers under Article 227 of the Constitution of India. Therefore, it is requested to dismiss the present petition. 5. Having heard the learned advocates appearing for the respective parties and considering the orders passed by both the courts below, what is emerging from the record is that the original plaintiff executed power of attorney in favour of petitioner No.2 i.e. original defendant No.2 on 21.8.1995 and the said power of attorney had executed sale deed in favour of petitioner No.1-original defendant No.1 on 18.11.1996 and the necessary entry in the revenue record was also mutated in the year 1996 itself. There was a suit filed by the petitioner No.1- original defendant No.1 against the original plaintiff being Civil Suit No.228 of 1997 on SCA/10575/2008 8/10 JUDGMENT 23.10.1997 in the Wankaner Court and the original plaintiff appeared in the said suit and a consent decree came to be passed and the respondent herein- original plaintiff admitted the execution of the power of attorney, sale of the suit land by power of attorney holder petitioner No.2 in favour of petitioner No.1 and also the receipt for consideration of sale and also admitted the ownership of petitioner No.1 of the suit land. In spite of the above the respondent herein-original plaintiff instituted another suit being Civil Suit No.87 of 2008 after the period of 11 years and that too suppressing the Civil Suit No.228 of 1997. Considering the above, the learned trial court dismissed the application Exh.5. However, having realised that the consent decree passed in Civil Suit No.228 of 1997 will come in his way, the respondent- original plaintiff had filed one Civil Misc. Appeal No.17 of 2008 in the year 2008 challenging the consent decree passed in Civil Suit No.228 of 1997, and mainly relying upon the same, the learned appellate court allowed the appeal directing the defendants to maintain the status-quo by observing SCA/10575/2008 9/10 JUDGMENT that unless and until there is a decision in the Civil Misc. Appeal No.17 of 2008 with respect to legality and validity of the consent decree passed in Civil Suit No.228 of 1997 are required to maintain status-quo. However, the learned appellate court has not appreciated the fact that there was a suppression of Civil Suit No.228 of 1997 in the suit filed by the respondent and that subsequently Civil Misc. Appeal No.17 of 2008 challenging the consent decree in Civil Suit No.228 of 1997 is filed. Considering the above, the learned appellate court has committed an error in allowing the appeal quashing and setting aside the order passed by the learned trial court passed below Exh.5 and directing the defendants to maintain status-quo when petitioner No.1 has purchased the property in the year 1996 and the necessary entry in the record of rights was also mutated in the year 1997 in favour of petitioner No.1 and since 1996 the petitioner No.1 is in exclusive possession of the property in question. Under the circumstances, the impugned order passed by the learned appellate court deserves to be quashed and set aside. SCA/10575/2008 10/10 JUDGMENT 6. For the reasons stated above, the petition succeeds. The impugned judgment and order passed by the learned Presiding Officer, Fast Track Court No.7, Morvi dated 5.7.2008 passed in Civil Misc. Appeal No.17 of 2008 quashing and setting aside the order passed by the learned trial court dated 9.5.2008 passed below Exh.5 in Regular Civil Suit No.87 of 2008 is hereby restored. Rule is made absolute to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs. ( M.R. SHAH, J. ) syed/