SCA/5223/2008 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5223 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 ? 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 ? ========================================================= KUVARBEN GANGARAM SATAVARA - Petitioner(s) Versus KANTILAL KARSANBHAI PATEL & 3 - Respondent(s) ========================================================= Appearance : MR BD KARIA for Petitioner(s) : 1, MR TUSHAR MEHTA for Respondent(s) : 1 - 3. MR. VIPUL MISTRY Assit. Government Pleader for Respondent No. 4. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 02/09/2008 ORAL JUDGMENT 1. Rule. Shri Tushar Mehta, learned advocate waives service of notice of rule on behalf of the respondent Nos. 1 to 3 and Shri Vipul Mistry, learned SCA/5223/2008 2/10 JUDGMENT AGP waives service of notice of rule on behalf of the respondent No.4. With the consent of the learned advocates for the respective parties, the matter is taken up for final hearing. 2. By way of this petition under Article 227 of the Constitution of India, the petitioner original plaintiff has prayed for an appropriate writ, direction and/ or order quashing and setting aside the impugned judgment and order dated 31.1.2008 passed by the learned Fast Track Court No.9 at Morbi passed in Civil Miscellaneous Appeal No. 31 of 2007, by which the learned Appellate Court has allowed the said appeal by quashing and setting aside the order passed by the learned trial Court passed below Exh.5 in Civil Suit No. 99 of 2007. 3. Petitioner original plaintiff had instituted Civil Suit No. 99 of 2007 in the Court of learned 2nd Joint Civil Judge, Morbi claiming 1/6th share alongwith defendant Nos. 2 to 5 and further to cancel the sale deed in favour of the defendant Nos. 6 to 8 (respondent Nos. 1 to 3 herein). In the said suit SCA/5223/2008 3/10 JUDGMENT petitioner submitted application Exh. 5 for interim injunction under Order 39 Rules 1 & 2 of the Code of Civil Procedure. That the learned 2nd Joint Civil Judge, Morbi allowed the application Exh. 5 vide order dated 29.9.2007 restraining the respondents from transferring / alienating the suit property. Being aggrieved and dissatisfied by the order dated 29.9.2007 passed by the learned trial Court below Exh. 5, the respondents preferred Civil Miscellaneous Appeal No. 31 of 2007 before the learned Appellate Court and the learned Presiding Officer, Fast Track Court No.9 vide impugned judgment and order dated 31.1.2008 allowed the said appeal by quashing and setting aside the order passed by the learned trial Court below Exh.5. Being aggrieved and dissatisfied with the same, the petitioner-plaintiff has preferred present Special Civil Application under Article 227 of the Constitution of India. 4. Shri B.D. Karia, learned advocate for the petitioner has vehemently submitted that the learned Appellate Court has passed the impugned order without dealing with and discussing the prima facie case and SCA/5223/2008 4/10 JUDGMENT balance of convenience which are in favour of the plaintiff and without assigning any reason in support of the findings recorded by the learned trial Court. It is submitted that the learned Appellate Court has committed a serious error in not appreciating the documentary evidences i.e. power of attorney at mark 3/9, the consent letter dated 2.2.2005 at mark 3/10 and agreement to sale dated 25.1.2005 at mark 3/8, the stamp paper which are purchased on the same day by the respondents and executed on the same day and all these documents are prima facie false and fabricated. It is submitted that learned Appellate Court has not properly appreciated the affidavit dated 15.3.2005 at mark 3/11, by which the power of attorney was revoked and thereafter the sale deed at mark 3/12 has been executed on 18.3.2005 when the power of attorney was not in existence or in force. It is submitted that suit land is undisputedly the ancestral property as per the documents at mark 3/2 to 3/7 and the defendant No. 1 and other Dharamshi Dama are co-owners of the land and yet agreement to sale and sale documents are executed without consent and signature of the co-owner and nor there is any SCA/5223/2008 5/10 JUDGMENT mention of the co-ownerships in the agreement to sale and, therefore, the agreement and sale deed are not prima facie legal and valid and the said aspect has not been considered by the learned Appellate Court. It is also further submitted that petitioner submitted the written arguments at Exh. 12 in the aforesaid appeal pointing out the factual and legal position, in all 24 points, which are not considered and dealt with by the learned Appellate Court, therefore, the impugned order suffers from the vice of non-application of mind. It is also further submitted that even the learned Appellate Court has not properly appreciated the conduct of the parties i.e. agreement to sale was for Rs. 18,90,000/- and the sale deed was executed for consideration of Rs. 32,500/- only. It is submitted that such conduct was required to be considered by the learned Appellate Court. It is further submitted that in any case, during the pendency of the suit, so as to avoid further multiplicity of proceedings, the learned Appellate Court ought to have restrained the defendants from transferring/ alienating the property in question so that further third party rights are SCA/5223/2008 6/10 JUDGMENT not created. Therefore, it is requested to allow the present Special Civil Application. 5. Petition is opposed by Shri Tushar Mehta, learned advocate for the respondents. It is submitted that so far as the original defendants No. 6 to 8 are concerned they have purchased the property in question by registered sale deed and they are found to be in possession and considering the same when the learned Appellate Court has allowed the appeal by quashing and setting aside the order passed by the learned trial Court below Exh.5, the same is not required to be interfered by this Court in exercise the power under Article 227 of the Constitution of India. It is submitted that even subsequent to the order passed by this Court dated 11.8.2008, purchasers have paid the deficit stamp duty, considering the sale consideration at Rs. 18,90,000/-. It is submitted that when the respondents No. 1 to 3 herein had purchased the property in question by registered sale deed, they may not be restrained from transferring the property in question, therefore, it is requested to dismiss SCA/5223/2008 7/10 JUDGMENT the Special Civil Application. 6. Heard the learned advocates for the respective parties. 7. At the outset and first of all the conduct of respondent Nos. 1 to 3 and the power of attorney who executed the sale deed in favour of the respondent Nos. 1 to 3 herein is required to be considered i.e. The agreement to sale was for consideration of Rs. 18,90,000/- and the sale deed was executed for consideratino of Rs. 32,500/- only. Therefore, this Court observed in order dated 11.8.2008 that considering above and even the sale deed is on insufficient stamp duty and to that learned advocate for the respondent Nos. 1 to 3 submitted that respondent Nos. 1 to 3 will pay the balance deficit stamp duty, considering the value of the property / land in question at Rs. 18,90,000/- as mentioned in the agreement to sale and same will be paid before the Sub-Registrar, Morbi. It is reported that subsequently deficit stamp duty has been paid, considering the value of the property/ land in SCA/5223/2008 8/10 JUDGMENT question at Rs. 18,90,000/-. Still the question with respect to payment of consideration to the original land owner still remains. Nothing is on record that the sale consideration of Rs. 18,90,000/- is paid. What is paid is only Rs. 32,500/-. Apart from that there is a serious dispute with respect to the cancellation of the power of attorney. The sale deed in favour of the respondent Nos. 1 to 3 herein is by the power of attorney and the said sale deed was dated 18.3.2005. It is the case on behalf of the petitioner-plaintiff that power attorney has been cancelled on 2.2.2005 and the affidavit dated 15.3.2005 to that effect is also on record. It is submitted that it is the case on behalf of the petitioner that when the sale deed was executed by the power of attorney, the power of attorney was not in existence. Looking to the aforesaid facts and circumstances of the case which are required to be considered at the time of trial and looking to the conduct of the defendants narrated herein above and to see that further third party rights are not created during the pendency of the suit and to avoid further multiplicity of proceedings, the defendants SCA/5223/2008 9/10 JUDGMENT are required to be restrained from further transferring property in question. Under the circumstances, it appears that the learned Appellate Court has committed an error in upsetting the order passed by the learned trial Court passed below Exh.5, by which the learned trial Court restrained the defendant Nos. 7 to 8 from further transferring the property in question. Under the circumstances, it appears that learned Appellate Court has not exercised the jurisdiction properly and, therefore, impugned order passed by the Appellate Court deserves to be quashed and set aside. 8. For the reasons stated above, petition succeeds. The impugned judgment and order dated 31.1.2008 passed by the learned Fast Track Court No.9 at Morbi passed in Civil Miscellaneous Appeal No. 31 of 2007 is hereby quashed and set aside and the order passed by the learned trial Court passed below Exh.5 in Civil Suit No. 99 of 2007 is hereby restored and the respondent Nos. 1 to 3 herein original defendant Nos. 6 to 8 are restrained from further transferring / alienating the property in question during the SCA/5223/2008 10/10 JUDGMENT pendency of the suit. In the facts and circumstances of the case, learned trial Court is directed to decide and dispose of the suit as expeditiously as possible subject to cooperation by all concerned. Rule is made absolute. There shall be no order as to costs. (M.R.SHAH. J.) kaushik