AO/279/2006 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 279 of 2006 With CIVIL APPLICATION No. 11553 of 2006 In APPEAL FROM ORDER No. 279 of 2006 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 ? ========================================================= BHAVNABEN ISHWARLAL THAKKAR & 1 - Appellant(s) Versus HIRABHAI RAMABHAI SINDHAV & 4 - Respondent(s) ========================================================= Appearance : MR SAURABH G AMIN for Appellant(s) : 1 - 2. MR TUSHAR MEHTA for Respondent(s) : 1, MR VIMAL M PATEL for Respondent(s) : 2 - 5. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 24/07/2008 ORAL JUDGMENT 1. Present Appeal From Order is filed by the appellants – original defendant Nos.5 and 6 of Special Civil Suit No. 87 of 2006 to quash and set aside the judgement and AO/279/2006 2/5 JUDGMENT order dtd.12/5/2006 passed by the learned Additional Senior Civil Judge, Viramgam below application Ex.5 in Special Civil Suit No. 87 of 2004 to the extent the said order operates against the following properties; (i) Survey Nos.92 Paiki, 749, 786, 787 of Village Zezra, Taluka Viramgam, District ; Ahmedabad and Survey Nos.477-A Paiki of Mouje Viramgam, Taluka Ahmedabad being properties belonging to the appellant No.1. (ii)Survey Nos.92 Paiki, 130, 1273 of Village Zezra, Taluka Viramgam, District ; Ahmedabad being properties belonging to the appellant No.2. (iii)Survey No.700 of Village Zezra, Taluka Viramgam, District ; Ahmedabad and Survey Nos.400 and 439 of village Bhojwa being properties jointly owned by the appellants. (iv)Survey Nos.69 Paiki and 1071 of Village Zezra, Taluka Viramgam, District ; Ahmedabad being properties belonging to Parimal Ishwarlal Thakkar. (v)Survey Nos.69 Paiki and 1003 of Village Zezra, Taluka Viramgam, District ; Ahmedabad being properties belonging to Milan Ishwarlal Thakkar. (vi)Survey No. 227 of Village Zezra, Taluka Viramgam, District ; Ahmedabad and Survey No.44 of Mouje AO/279/2006 3/5 JUDGMENT Viramgam being properties jointly owned by the appellant No.2 and respondent No.3. 2. The respondent No.1 has filed Special Civil Suit No. 87 of 2004 against the appellants for recovery of Rs.57,71,755=00 for the goods / cotton sold to the defendant Nos.1 to 3. In the said suit, the plaintiff filed an application for interim injunction at Ex.5 against all the defendants and the learned Additional Senior Civil Judge, Surendranagar, vide order dtd.12/5/2006 allowed the application Ex.5 directing all the defendants to maintain status quo with respect to all the properties mentioned in the suit. Being aggrieved by and dissatisfied with the order passed below application Ex.5 in so far as original defendant Nos.5 and 6 by which the appellants herein – original defendant Nos.5 and 6 are directed to maintain status quo, the present Appeal From Order is filed. 3. It is the contention on behalf of the appellants that as such in the suit no relief is prayed against the defendant Nos.5 and 6. It is also the contention on behalf of the appellants that the even the appellants are not party to the transaction. Therefore, it is requested to allow the present Appeal From Order. AO/279/2006 4/5 JUDGMENT 4. Mr.Tushar Mehta, learned advocate appearing on behalf of the plaintiff has to concede that there is no averments or prayer against defendant Nos.5 and 6 in the aforesaid suit. 5. It is to be noted that Civil Application No. 11553 of 2006 in the present Appeal From Order, came to be heard by the learned Single Judge (Coram : P.B. Majmudar, J. as the then he was) and considering the fact that there are no averments or no prayer made against the appellants and that the appellants are not party to the transaction, has stayed the injunction granted against the defendant Nos.5 and 6 by the trial court and the said interim relief has been continued till date. It appears to this Court also that the learned trial court has committed an error in granting injunction against the appellants – original defendant Nos.5 and 6 inasmuch as there is no prayer against the appellants – original defendant Nos.5 and 6 in the suit and there are no averments also against the appellants in the suit. Even the appellants are not party to the transaction. Under the circumstances, there was no question of granting injunction against the appellants. In the facts and circumstances of the case, the trial court has committed error in granting injunction against the AO/279/2006 5/5 JUDGMENT appellants which requires to be quashed and set aside. 6. For the reasons stated above, the appeal succeeds. The impugned the judgement and order dtd.12/5/2006 passed by the learned Additional Senior Civil Judge, Viramgarm below application Ex.5 in Special Civil Suit No. 87 of 2004 in so far as against the appellants – original defendant Nos.5 and 6, is hereby quashed and set aside. Rule is made absolute accordingly. In view of disposal of the Appeal From Order, no order in Civil Application. No In the facts and circumstances of the case, there shall be no order as to costs. [M.R. SHAH, J.] rafik