AO/304/2006 1/16 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 304 of 2006 with CIVIL APPLICATION No.12140 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE K.A.PUJ ========================================================= 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 ? ========================================================= SHASHIKANT SOMABHAI PATEL THRO' POA INDULAL.S.AMIN & 1 - Appellant(s) Versus UMESHBHAI BABULAL SHAH & 6 - Respondent(s) ========================================================= Appearance : MR CH VORA for Appellant(s) : 1 - 2. NOTICE SERVED for Respondent(s) : 1 - 3. MR DC DAVE for Respondent(s) : 4 - 7. ========================================================= CORAM : HONOURABLE MR.JUSTICE K.A.PUJ Date : 24/01/2008 ORAL JUDGMENT 1. The appellants – original plaintiffs have AO/304/2006 2/16 JUDGMENT filed this Appeal From Order under Section 104 read with Order 43 Rule 1(r) of the CPC, praying for quashing and setting aside the judgment and order passed by the City Civil Court below Notice of Motion Ex.6/7 in Civil Suit No.2492 of 2004 dated 26.9.2006, whereby the learned City Civil Judge has vacated ad- interim relief granted earlier at the time of filing of suit and rejected the Notice of Motion. 2. This Court has issued notice on 2.11.2006 and the respondents were restrained from transferring, alienating the suit property and further directed to maintain the status quo prevailing as on the date of issuance of notice. This interim relief continues till this date. 3. Heard Mr. S.M.Shah, learned advocate appearing with Mr.C.H.Vora, learned advocate for the appellants and Mr. D. C. Dave, AO/304/2006 3/16 JUDGMENT learned advocate appearing for the respondent Nos.4 to 7. Despite service of notice nobody appears on behalf of respondent Nos.1 to 3. 4. It is the case of the appellants – original plaintiffs that they did not sell their land of Final Plot No.330 admeasuring 2090 Sq.Mtrs. Situated in Bodakdev of Ahmedabad City. The appellants – plaintiffs have also alleged in the plaint that the defendants have acted in a criminal conspiracy and got executed a forged instrument purporting to be a power of attorney in favour of the respondent No.3 said to have been executed by the plaintiffs. On the basis of the said power of attorney, sale deed was executed in favour of the respondent Nos.4 and 5. It is also the case of the plaintiffs that on the date of execution of power of attorney, they were not in India and hence according to them there was no question of execution of this power of attorney. Despite this fact, AO/304/2006 4/16 JUDGMENT the sale deed was executed in favor of Non Trading Corporation and construction was made and bunglows were allotted to the members. When this fact has come to the knowledge of the appellants they have filed suit under Section 31 of the Specific Relief Act, praying for declaration that alleged power of attorney is forged document on the basis of which sale deed was executed and hence the suit property was got transferred in favour of the respondent Nos.4 and 5. The appellants - plaintiffs have also prayed for permanent injunction in the suit. 5. Mr. S.M. Shah, learned advocate appearing for the appellants states that the appellants – plaintiffs have not suppressed any material fact as observed by the learned City Civil Judge in the impugned order. He has further submitted that all necessary averments are made in the plaint to the effect that in 1991 the respondents-defendants Nos.1 and 2 have AO/304/2006 5/16 JUDGMENT got executed the agreement to sell from Smt.Chandrikaben, sister of the appellant- plaintiff No.1 and the power of attorney holder of the plaintiff No.1 and his father, Somabhai and as the said agreement to sell was illegal, invalid and void, the plaintiffs-appellants refused to execute a sale deed of the land in favour of the respondents-defendants Nos.1 & 2. He has further submitted that in view of these averments, there is no question of any suppression of facts. Since the agreement to sell executed in 1991 was invalid, illegal and void, at the most it is open for the defendants to ask for specific performance of that agreement but in no case, the defendants or any one of them are permitted to commit a crime of forging a document purporting to be a general power of attorney of appellants- plaintiffs No.1 & 2 in favour of the defendant No.3. He has further submitted that there was no suppression of facts and hence AO/304/2006 6/16 JUDGMENT observation made by the learned City Civil Judge in this regard are uncalled for. He has further submitted that the plaintiffs- appellants have not executed any power of attorney in favour of the respondent- defendant No.3 and, therefore, sale deed dated 15.12.2003, said to have been executed by the respondent-defendant No.3 in favour of respondents-defendants Nos.4 and 5 could not be said to be legal and valid and no title could be passed thereunder. The appellants- plaintiffs are, therefore, entitled to injunction. He has further submitted that Order 43 Rule 1(r) of the CPC enables this Court to entertain an appeal against an order of trial Court wrongly refusing the interim relief to the appellants – plaintiffs. The plaintiffs have proved their prima facie case by showing title to the property and balance of convenience is also in their favour as the properties were fraudulently transferred and if further transfer or alienation of property AO/304/2006 7/16 JUDGMENT is not prevented, it is very difficult for the appellants – plaintiffs to ask for any further relief from such transferee in future. He has further submitted that if the interim injunction as prayed for is not granted and/or continued, the appellants – plaintiffs will suffer irreparable loss. As against this, the defendants would not be in any way affected by granting of the interim relief. Even if during the pendency of suit, if the respondents-defendants want to transfer and/or alienate and/or create any charge, they can come forward before the Court for appropriate order. Lastly, he has submitted that when there is a dispute with regard to immovable property, the order of status quo, as a matter of course, be granted by this Court. 6. Mr. S.M. Shah has relied on the decision of the Hon'ble Supreme Court in the case of Maharwal Khewaji Trust (Regd.) Faridkot vs. AO/304/2006 8/16 JUDGMENT Baldev Dass, reported in AIR 2005 SC 104, wherein it is held that unless and until a case of irreparable loss or damage is made out by a party to the suit, the Court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. He has, therefore, submitted that ad-interim relief which was earlier granted and even continued after rejection of the notice of motion till this date should be continued during the pendency and final disposal of the suit. 7. Mr. D.C.Dave, learned advocate appearing for the respondent Nos.4 to 7 on the other hand has submitted that the learned City Civil Judge has considered all the aspects of the matter and rightly rejected the interim relief, which is of a discretionary one and AO/304/2006 9/16 JUDGMENT in an equitable order, which cannot be interfered with by this Court in exercising its appellate jurisdiction under Order 43 Rule 1(r) of the CPC. He has taken the Court through the impugned order passed by the learned City Civil Judge and submitted that all aspects, namely, previous suit matter, execution of power of attorney in favour of Chandrikaben and Chandkrikaben in turn executed the agreement to sell in favour of defendant, power of attorney executed by the appellants – plaintiffs in favour of respondent No.3 and in turn the respondent No.3 has executed the sale deed in favour of the respondent Nos.4 and 5 are properly examined and appreciated. He has submitted that certain material facts were not disclosed in the plaint at the time of obtaining ad-interim relief from the Court. He has further submitted that the respondent- appellant No.3 has executed the sale deed in favour of the respondent Nos.4 and 5 in 2004 AO/304/2006 10/16 JUDGMENT on the basis of power of attorney granted to him. The Association constructed 10 bunglows on the disputed land. All the bunglows are already allotted to the persons. They are having ownership rights over the bunglows. He has further submitted that the respondents Nos.1 to 3 have acted in collusion with each other and, therefor, despite service of summons of the suit neither they appeared before the Civil Court nor they appeared before this Court. He has, therefore, submitted that no interference may be called for in the impugned order passed by the learned City Civil Judge. 8. With regard to suppression of facts he relied on the decision of this Court in the case of Vijay J. Gadhvi vs. State of Gujarat, reported in 1988 29(2) GLR, 902 and Apex Court judgment in the case of M/s.Gujarat Bottling Co. Ltd., Vs. Coca Cola Company, reported in AIR 1995 SC 2372. He has also AO/304/2006 11/16 JUDGMENT relied on the decision of the Hon'ble Supreme Court in the case of Vinay Krishna vs. Keshav Chandra, reported in AIR 1993 SC 957, for the preposition that in suit for declaration regarding ownership of property, the relief of possession ought to have been asked for. The failure to do so undoubtedly bars the discretion of the Court in granting the decree for declaration. 9. He has, therefore, submitted that the prayer made in the suit for declaration and injunction cannot be granted and hence the learned City Civil Judge has rightly rejected the notice of motion and did not grant interim injunction. 10. Having heard the learned advocates for the respective parties and having gone through the impugned order passed by the learned City Civil Judge and considering the authorities cited before the Court, this Court is of the AO/304/2006 12/16 JUDGMENT view that the learned trial Judge has rightly rejected the interim injunction and the impugned order does not call for interference of this Court. 11. The trial Court has minutely examined and properly considered various aspects, which have been raised before the Court. In para-6 of the impugned order the learned trial Judge has observed that the plaintiffs have suppressed material facts about the previous transactions taken place between the parties. Chandrikaben Mukundbhai Patel is the sister of the plaintiff No.1. The plaintiff No.1 alongwith Somabhai Motibhai Patel have given general power of attorney in her favour on 6.2.1991. The land was originally belonged to Somabhai Motibhai Patel, father of the plaintiff No.1 and plaintiff No.1 – Shashikant Somabhai Patel. The facts further reveal that the defendant No.2 executed two agreement to sell in favour of defendant AO/304/2006 13/16 JUDGMENT Nos.4 and 5 on 12.4.1991. The supplementary agreement was also executed thereafter. Chandrikaben Mukundbhai Patel had signed both the documents as power of attorney of Somabhai Motibhai Patel and Shashikant Somabhai Patel. The impugned transactions taken place by the agreements dated 9.2.1991 and 12.4.1991 are mentioned in the registered sale deed. However, these facts were not stated in the plaint. The learned City Civil Judge has, therefore, rightly observed that the transactions taken place during 1991 to 2000 did not find their place in the plaint. So far as the execution of power of attorney by the appellants-plaintiffs in favour of the respondent No.3 which is alleged to be forged one, Mr.Dave has submitted that it is a matter of trial and it can be decided during the course of trial only. The learned trial Judge has, prima facie, come to the conclusion that the sale deed was executed in 2001, it was registered in 2004, construction AO/304/2006 14/16 JUDGMENT were made and bunglows were allotted to members, and without joining the members as parties in the suit, no interim relief can be granted against them. There are other issues relating to limitation, jurisdiction etc, and the learned trial Judge prima facie found those issues favouring the respondents Nos.4 to 7. Considering overall view of the matter, the learned trial Judge has come to the conclusion that the interim relief should be granted. It is specifically stated that in a suit for declaration no injunction can be granted without praying for the possession of the property in question. Here the relief prayed for is with regard to the declaration and injunction. Reliance placed by Mr. Shah on the decisions of the Hon'ble Supreme Court, reported in AIR 2005 SC 104 does not lead the case any further. Even in that case also the exception was carved out to the effect that in exceptional cases the Court would consider the prayer regarding interim AO/304/2006 15/16 JUDGMENT relief. This is not the case which falls in that category. First of all, all the parties are not joined as party in the suit. Simply because fraud is alleged, only on that basis interim relief cannot be granted. Even if, once it is granted, it is not necessary to continue it for all time to come. The plaintiffs must prove prima facie case, balance of convenience and irreparable injury. On their failure to prove these basic ingredients the interim relief can be refused. This Court is in complete agreement with the observation made and findings arrived at by the learned trial Judge while rejecting the interim relief and hence the impugned order does not require any interference by this Court. This Appeal From Order is accordingly dismissed. 12. Since the Appeal From Order is dismissed the Civil Application is rejected. Ad- Interim relief granted earlier stands AO/304/2006 16/16 JUDGMENT vacated. 13. Mr. C.H.Vora, learned advocate appearing for the appellants requested for continuation of ad-interim relief granted earlier. Mr. Dave, learned advocate appearing for the respondent Nos.4 to 7 has strongly objected to the same. Considering the facts and circumstances of the case and in view of the discussion made hereinabove, the request made for continuation of ad-interim relief is rejected. (K. A. PUJ, J.) kks