AO/247/2008 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 247 of 2008 With CIVIL APPLICATION No. 8445 of 2008 In APPEAL FROM ORDER No. 247 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 ? ========================================================= HASMUKHBHAI DAYALBHAI PATEL - Appellant(s) Versus PRABHABEN ARVINDBHAI PATEL & 4 - Respondent(s) ========================================================= Appearance : MR DEVANG T SHAH for Appellant(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1, MR NV GANDHI for Respondent(s) : 2 - 4. MR PR NANAVATI for Respondent(s) : 5, ========================================================= AO/247/2008 2/5 JUDGMENT CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 06/10/2008 ORAL JUDGMENT 1. Heard Mr.Devang T. Shah, learned advocate appearing on behalf of the appellant, Mr.N.V. Gandhi, learned advocate appearing on behalf of the respondent Nos.2 to 4 and Mr.P.R. Nanavati, learned advocate appearing on behalf of the respondent No.5. 2. Being aggrieved by and dissatisfied with the order dtd.16/4/2008 passed by the learned Principal Senior Civil Judge, Bardoli below application Ex.5 in Special Civil Suit No. 21 of 2008 dismissing the said application Ex.5 submitted by the appellant – plaintiff, present appellant – plaintiff has preferred present Appeal From Order. 3. It appears that the original plaintiff – appellant herein has instituted the aforesaid suit for declaration and permanent injunction with respect to the suit properties being Block/Survey Nos.53, 55, 58, 98, 548 of village Akoti, Taluka ; Bardoli, District ; Surat. In the said suit, the AO/247/2008 3/5 JUDGMENT plaintiff – appellant herein submitted an application at Ex.5 for appropriate order restraining the defendants from transferring the said suit properties either by way of mortgage, gift, sale, lease or any other mode of transfer in any manner whatsoever in favour of third party till final disposal of the said suit. It appears that the original plaintiff is residing abroad and by taking disadvantage of the same, the Power of Attorney Holder of the plaintiff substituted three pages of the power of attorney to sell the land in question and thereby the Power of Attorney Holder fraudulently sold / transfer the land in question in favour of the defendants – respondents herein. Therefore the plaintiff - appellant herein filed the aforesaid suit for declaration and permanent injunction, which was resisted by the defendants on the ground that they are bona fide purchasers and have purchased the lands in question from the power of attorney holder of the original plaintiff against valuable consideration and the agricultural lands in question is being used for cultivation. The learned trial court, after hearing both the sides, dismissed the application Ex.5, against which the present Appeal From Order is filed by the appellant – original plaintiff. AO/247/2008 4/5 JUDGMENT 4. Having heard the learned advocates appearing on behalf of the respective parties and considering the fact that the dispute is with respect to the suit properties in question and if the properties in question is further transferred to third party, the rights of the third parties will be created and there will be multiplicity of proceedings and to avoid the same, the parties are required to be directed to maintain status-quo, so as to see that no third party rights are created and to avoid multiplicity of proceedings, the defendants – respondents herein are required to be restrained from transferring the properties in question in any manner whatsoever during the pendency of the Special Civil Suit No.21 of 2008. 5. Under the circumstances, present Appeal From Order succeeds. The impugned order dtd.16/4/2008 passed by the learned Principal Senior Civil Judge, Bardoli below application Ex.5 in Special Civil Suit No. 21 of 2008 is hereby quashed and set aside. The original defendants – respondents herein are hereby restrained from transferring the properties in question in any manner whatsoever during the pendency of the Special Civil Suit AO/247/2008 5/5 JUDGMENT No.21 of 2008. The aforesaid would be without prejudice to the rights and contentions of the respective parties parities. This court is not expressing any further opinion on merits and/or is not assigning further detailed reasons, as it may ultimately affect the parties at the trial. It will be open for the parties to approach the trial court for expeditious hearing of the suit. 6. In view of the disposal of the main Appeal From Order, no order in Civil Application. [M.R. SHAH, J.] (Caroline)