AO/458/2007 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 458 of 2007 With CIVIL APPLICATION No. 15498 of 2007 In APPEAL FROM ORDER No. 458 of 2007 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 ? ========================================================= DINESHCHANDRA DHIRAJLAL GANDHI - Appellant(s) Versus MANUBHAI KANJIBHAI JHALAVADIA & 3 - Respondent(s) ========================================================= Appearance : MR DAKSHESH MEHTA for Appellant(s) : 1, MR RS SANJANWALA for Respondent(s) : 1, RULE SERVED for Respondent(s) : 2 - 4. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 01/12/2008 ORAL JUDGMENT 1. Admit. Shri R.S. Sanjanwala, learned advocates waives service notice of admission on behalf of the respondent No.1 original plaintiff who is AO/458/2007 2/12 JUDGMENT the main contesting party. With the consent of the learned advocate for the respective parties, the matter is taken up for final hearing today. 2. Present Appeal from Order is filed by the appellant original defendant No.1 to quash and set aside the impugned order dated 23.11.2007 passed by the learned 6th Senior Civil Judge, Navsari Exh. 5 in Special Civil Suit No. 15 of 2006, by which the learned trial Court has partly allowed the said application Exh. 5 submitted by the respondent herein original plaintiff restraining the defendants from transferring /alienating and / or creating charge in any manner whatsoever with respect to the suit land /property till the final disposal of the suit. 3. That the respondent No.1 original plaintiff had instituted Special Civil Suit No. 15 of 2006 in the Court of learned Civil Judge, (S.D.) Navsari for specific performance of the agreement to sell dated 22.1.1996 with respect to the land in question and for permanent injunction. As per the plaintiffs, father of the appellant and the respondent Nos. 2 to 4 herein Shri Dhirajlal Gandhi was the owner of the suit land who entered into the agreement to sell deed dated 22.1.1996 with the plaintiffs. It was also the case of the plaintiff that the said Dhirajlal Gandhi signed the said document along with all AO/458/2007 3/12 JUDGMENT the defendants and his late wife Paravatiben. As per the plaintiff, Dhirajlal and his wife along with all the defendants made partition of the properties wherein original defendant No. 4 has been made the owner and has got right to sell the suit properties. According to the plaintiff on demise of said Shri Dhirajlal Gandhi only defendant No.4 became the owner of the suit land and on 18.10.1998 the original plaintiffs entered into a Satakhat with original defendant No.4. As per the plaintiff he had paid 75% of the sale consideration in 2004 and 95% of the consideration on 29.1.2006. Thus, the plaintiff has performed his part of the promise as per the agreement to sell dated 21.5.1996 and 18.10.1998 and rest of the amount of Rs. 10 lacs is to be paid at the time of executing the sale deed by the original defendant Nos. 1 to 4 entered into registered sale deed. That inspite of the above, the sale deed was not executed and possession was not handed over the plaintiff had instituted Civil Suit for specific performance, declaration and permanent injunction and for taking possession. In the said suit the original plaintiff submitted application Exh. 5 for interim injunction, which came to be partly allowed by the learned trial Court by the impugned order restraining the defendants from transferring/alienating the suit property in question till the final disposal of the suit. Being aggrieved and dissatisfied with the AO/458/2007 4/12 JUDGMENT impugned order, the appellant original defendant No.4 has preferred the present Appeal from Order and Civil Application for interim relief therein. 4. Shri D.B. Mehta, learned advocate for the appellant has vehemently submitted that learned trial Court has materially erred in allowing the application Exh. 5 restraining the defendants from transferring/alienating the suit property in question. It is submitted that learned trial Court has materially erred in holding the payment of part sale consideration by the original plaintiff. It is submitted that at different places original plaintiff has placed different story with respect to the payment of part sale consideration. It is further submitted that in the earlier suit No. 10 of 2006 the original plaintiff has come with the story that he has paid Rs. 76 lacs towards the part sale consideration, however in the subsequent suit being Civil Suit No. 15 of 2006 the plaintiff has come out with the story he has paid Rs. 31 lacs towards part sale consideration (Bana amount). It is also further submitted that as alleged Bana amount of Rs. 76 lacs and / or 31 lacs is alleged to have been paid by cash which is disputed by the defendants No. 1 to 3 and still original plaintiff has failed to produce the documentary evidence prima facie satisfying and / or proving the payment of such huge amount AO/458/2007 5/12 JUDGMENT by way of cash. It is also further submitted that thus original plaintiff has failed to even prima facie prove the payment of part sale consideration. Shri Mehta, learned advocate for the appellant has heavily relied upon the decision of the learned Single Judge in the case of Khimjibhai Harjivanbhai Patadia Vs. Patel Govindbhai Bhagvanbhai & Ors reported in 2006(4) GLR, 3058. 5. It is also further submitted that even the learned trial Court has not dealt with and considered any of the submissions made by the defendants No. 1 to 3 and has only considered the submission made by the defendant No.4 who is supporting the plaintiff. It is further submitted that even conduct of the plaintiff is also required to be considered. It is submitted that earlier the plaintiff has taken possession of the some of the suit properties from the appellants forcibly, which was required to be returned pursuant to the order passed by this Court. It is submitted that the original plaintiff filed Regular Civil Suit No. 10 of 2006 for declaration and permanent injunction against the appellant and other 10 persons on 30.1.2006 with regard to the same subject matter and the same property, wherein application Exh. 5 was also made. The learned trial Court did not pass any interim order on 30.1.2006. Still, the plaintiff along with other strong headed AO/458/2007 6/12 JUDGMENT persons, forcibly took the possession of the suit at the midnight on 31.1.2006. Immediately on the very next day in the morning on 1.2.2006, a criminal complaint came to be lodged against the plaintiff and others before the Navsari (Rural) Police Station. However, as nothing was done by the Police Authority till 7.2.2006 and, therefore, the appellant was constrained to file Special Criminal Application No. 224 of 2006 before this Court and the learned Single Judge of this Court directed the DSP,Navsari by an order dated 8.2.2006 to make discreet inquiry and to ascertain whether the appellant and the registered owners of the property have been dispossessed forcibly and he can suo moto take appropriate action to protect the person and property. It is submitted that in compliance some discreet inquiry was made and it was found that appellant and others were dispossessed forcibly and, therefore, the possession was restored by the Panchkyas dated 28.4.2006. It is submitted that thereafter the aforesaid Civil Suit No. 10 of 2006 came to be withdrawn. Therefore, it is submitted that when earlier original plaintiff has tried to take the possession illegally and in fact, forcibly took the possession which was required to be restored, such a conduct of plaintiff is required to be considered while considering the application for interim injunction under Order 39 Rule 1 and 2 of the Code of Civil Procedure. AO/458/2007 7/12 JUDGMENT Therefore, it is submitted that in the aforesaid facts and circumstances the impugned order passed by the learned trial Court restraining the appellant and other defendants from transferring /alienating the suit property in question till the final disposal of the suit which is based on the concocted document deserves to be quashed and set aside. 6. Appeal from Order is opposed by Shri Sanjanwala, learned Senior Advocate for the respondents. It is submitted that the original plaintiff has paid Rs. 76 lacs towards part sale consideration out of Rs. 1 crores 76 lacs of sale consideration. It is also further submitted that the suit is based upon the agreement to sell, initially executed by the Dhirajlal Gandhi and thereafter by defendant No.4 as an absolute owner. It is submitted that whether the said documents are concocted or not is a question to be decided at the time of trial and, therefore, in the meantime if the defendants are not restrained from transferring and or alienating the suit properties in that case, third party rights will be created and there will be multiplicity of proceedings which is to be avoided and, therefore, the learned trial Court has not committed any error in granting injunction restraining the original defendants from transferring /alienating the suit property in question. It is submitted that earlier the AO/458/2007 8/12 JUDGMENT suit No. 10 of 2006 was withdrawn with a liberty to filed afresh and, therefore, the same will not come in the way of the plaintiff in instituting subsequent suit and praying for interim injunction. Therefore, it is requested to dismiss the present Appeal from Order. 7. Heard the learned advocates for the respective parties. It is required to be noted that it is the contention on behalf of the plaintiff in Civil Suit No. 15 of 2006 that he has paid Rs. 31 lacs towards the Bana amount /part sale consideration paid by cash. It is to be noted that earlier the very plaintiff had instituted Civil Suit No. 10 of 2006 with respect to the very subject matter and the property in question and based upon the very agreement to sell and at that time it has the contention on behalf of the plaintiff that he has paid Rs. 76 lacs towards Bana amount/ part sale consideration. Thus, the plaintiff is not consistent with respect to the payment of Bana amount/part sale consideration. It is also further submitted that in different proceedings the plaintiff has stated different story. It is to be noted that the defendants have specifically denied the receipt of the any part sale consideration either by late Dhiarjlal Gandhi and /or any of the defendants No. 1 to 3. It appears that original defendant No. 4 is supporting the plaintiff and it appears that even it is the case on behalf of the plaintiff AO/458/2007 9/12 JUDGMENT that he has paid amount to defendant No. 4 and the defendant is the absolute owner of the suit property after the demise of the late Shri Dhirajlal Gandhi. Nothing is on record how the defendant No. 4 became the absolute owner on demise of the Dhirajlal Gandhi. Suit Property in question belonged to Dhirajlal Gandhi HUF and / or the same is ancestral property and, therefore, all the family members have right or share in the property in question and, therefore, it cannot be said prima facie that the original defendant No. 4 had become the absolute owner. As state above, the payment of part sale consideration has been disputed and the alleged part consideration of 76 lacs is alleged to have been paid by cash. When the execution of the agreement to sell and the payment of part sale consideration has been disputed and when the part sale consideration is alleged to have been paid by the cash it is incumbent on the part of the plaintiff to prima facie satisfy the payment of such a huge amount by cash by producing necessary documentary evidence like passbook of the bank and or source of the said amount. In absence of such a prima facie case being made out the plaintiff is not entitled to any injunction as it cannot be said that payment of part sale consideration has not been proved even prima facie. As held by the learned Single Judge of this Court in the case of Khimjibhai Harjivanbhai Patadia (Supra). As AO/458/2007 10/12 JUDGMENT observed by the learned Single Judge in the aforesaid decision in case where the factum of payment of part sale consideration paid by cash is seriously disputed by the defendant and the plaintiff has not produced anything to show that whether he has withdrawn said amount from any bank account or he has borrowed any amount from any one and or no corresponding documentary evidence in the form of income tax return is finding place on record in connection with the said payment, it can safely be presumed that the theory of so called payment is not at all believable. In the present case though it is alleged that huge sum of Rs. 76,00,000/- is alleged to have been paid by cash as part sale consideration and when the same seriously disputed in absence of any documentary evidence is referred to hereinabove, the so called payment cannot be accepted at this stage. 8. Even Otherwise, on considering the impugned order passed by the learned trial Court it appears that though the written statement is filed on behalf of the respondent Nos. 1 and 3 and submissions were made by defendants No. 1 to 3 who are main contesting defendants, the learned trial Court has not dealt with and / or considered and/or referred to any of the submissions of defendants No. 1 to 3 and has considered and / or dealt with and referred to submission made on behalf of the defendant No. 4 AO/458/2007 11/12 JUDGMENT only who is supporting the plaintiff. Under the circumstance, also the impugned order deserves to be quashed and set aside. 9. It is to be noted that Exh. 5 was submitted by the plaintiff for interim injunction under order 39 Rule 1 and 2 of the Code of Civil Procedure. It cannot be disputed that granting of interim injunction under Order 39 Rule 1 & 2 of the Code of Civil Procedure is a discretionary relief and in a proper case if it is found that the plaintiff has not come with clean hands and/ or his conduct is such which disentitles him the equitable relief, Court even may not grant any injunction in favour of such person /plaintiff. In the present case, after filing of the Civil Suit No. 10 of 2006 having failed to get any interim injunction, the plaintiff and his man took the forcibly possession of the suit land for which the plaintiff was constrained to initiate criminal proceedings and pursuant to the order passed by this Court, DSP,Navsari hold discreet inquiry and on inquiry it was found that the plaintiff and others were forcibly dispossessed illegally and, therefore, the possession was required to be restored by the plaintiff on drawing panchnama. This shows the conduct on behalf of the plaintiff which disentitles him any equitable discretionary relief of injunction. The aforesaid aspect has not been considered by the learned trial Court at all while partly allowing the application AO/458/2007 12/12 JUDGMENT Exh. 5. Considering the aforesaid overall facts and circumstances of the case, it appears that the learned trial Court has committed an error in partly allowing the application Exh. 5 restraining the appellant and other defendants from transferring/alienating the suit property in question, which deserves to be quashed and set aside. 10.For the reasons stated above, the Appeal from Order succeeds and the impugned order passed by the learned 6th Senior Civil Judge, Navsari Exh. 5 in Special Civil Suit No. 15 of 2006 dated 23.11.2007 is hereby quashed and set aside and the application Exh. 5 submitted by the original plaintiff-respondent No.1 herein is hereby dismissed. Rule is made absolute. In the facts and circumstances of the case, no order as to costs. CIVIL APPLICATION NO. 15498 OF 2007 In view of the allowing the Appeal from Order, no further order is required to be passed in Civil Application. (M.R.SHAH,J.) kaushik