SCA/20562/2005 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 20562 of 2005 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? ========================================================= NOORBIBI WD/O MIYA MOHMAD IBRAHIM & 6 - Petitioner(s) Versus MOHMADSALIM MIYA MOHMAD & 2 - Respondent(s) ========================================================= Appearance : MR AR MAJMUDAR for Petitioner(s) : 1,MR NK MAJMUDAR for Petitioner(s) : 1, MR HARSHAD K PATEL for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 2 - 3. MR SHIRISH JOSHI for Respondent(s) : 2 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 26/11/2008 ORAL JUDGMENT 1. Rule. Mr.Harshad Patel, learned Advocate waives service of rule on behalf of respondent No.1. Mr.Shirish Joshi, learned Advocate waives service of rule on behalf of respondent Nos.2 and 3. With the SCA/20562/2005 2/7 JUDGMENT consent of the learned Advocates appearing on behalf of the respective parties, the petition is taken up for final hearing today. 2. By way of this petition under Article 227 of the Constitution of India, the petitioners – original plaintiffs have prayed for an appropriate writ, direction and/or order quashing and setting aside the impugned order dated 21.10.2004 passed by the learned Civil Judge, (S.D.), Bharuch below Exh. 5 in Regular Civil Suit No.259 of 2004 as well as the judgment and order dated 07.04.2005 passed by the learned Assistant Judge, Bharuch in Civil Misc.Appeal No.95 of 2005 in dismissing the same and confirming the order passed by the learned trial Court below Exh.5. 3. Dispute is with respect to properties bearing City Survey Nos.2540/4, 2540/5, 2540/6 which admittedly belongs to original plaintiffs and defendant No.1. It appears that original plaintiffs executed one power of attorney in favour of defendant No.1 for administration and management of the said properties. However, defendant no.1 misused the said power of attorney and power conferred under the said power of attorney. Co-owner – original defendant No.1 took loan of Rs.15 lacs from respondent No.2 – Bank. Lavad suit came to be filed against original defendant No.1 and decree came to be passed and pursuant to the said decree, said properties were to be auctioned and at that stage original plaintiffs filed Regular Civil Suit No.259 of 2004 for SCA/20562/2005 3/7 JUDGMENT declaration and permanent injunction contending inter-alia that their properties cannot be auctioned as they have not taken loan / finance and that defendant No.1 has taken loan on the said properties by misusing power of attorney and beyond power given under the said power of attorney. In the said suit, the petitioners – original plaintiffs submitted Exh.5 for interim injunction. Considering clause – 7 and interpreting power of attorney, the learned trial Court dismissed the application Exh.5 refusing to grant interim injunction by holding that defendant no.1 was given General power of attorney and therefore, he could have sold and/or taken loan / finance on the said properties. Being aggrieved and dissatisfied with the said order passed by the learned trial Court below Exh.5, the petitioners preferred Civil Misc.Appeal No.95 of 2004 before the learned Appellate Court and same came to be decided and disposed of by the learned Assistant Judge, Bharuch who by judgment dated 07.04.2005 dismissed the said appeal and confirmed the order passed by the learned trial Court passed below Exh.5. Being aggrieved and dissatisfied with aforesaid orders passed by the Courts below, the petitioners have preferred the present Special Civil Application under Article 227 of the Constitution of India. 4. Mr.Suthar, learned Advocate appearing on behalf of the petitioners – original plaintiffs has vehemently submitted that impugned judgment and order passed by the Courts below are on misreading and/or SCA/20562/2005 4/7 JUDGMENT misinterpreting of clause 7 of power of attorney. It is submitted that on fair reading of clause 7 of power of attorney, power was given only for management and administration of the properties in question but no power was given to defendant No.1 to sell and/or deal with the properties in question. He has further submitted that even the learned trial Court has materially erred in observing that when the decree came to be passed by the Lavad Court and when the petitioners – original plaintiffs were not party to the same, same could have been challenged by the petitioners – plaintiffs. Therefore, it is submitted that impugned orders passed by both the Courts below deserve to be quashed and set aside and the petitioners are entitle for interim injunction as prayed for. 5. Petition is opposed by Mr.Joshi, learned Advocate appearing for respondent No.2 – Bank. It is submitted that even otherwise the petitioners – plaintiffs and respondent no.1 – defendant no.1 were co-owners and therefore, so far as the share of defendant no.1 is concerned, he could have taken loan/finance on the said properties. Therefore, the petitioners are not entitled to injunction as prayed for. Therefore, it is requested to dismiss the present Special Civil Application. 6. Heard the learned Advocates appearing on behalf of the respective parties. SCA/20562/2005 5/7 JUDGMENT 7. It is not in dispute that original plaintiffs and respondent no.1 – defendant no.1 were and are co-owners of the properties in question. It is not in dispute that the petitioners – plaintiffs has executed power of attorney in favour of defendant no.1. It is the contention on behalf of the petitioners- plaintiffs that said power of attorney was only for administration and management of the properties in question and no power was given to defendant no.1 to sell and/or deal with the properties in question. Both the Courts below have considered clause – 7 of power of attorney and have held that said power of attorney can be said to be general power of attorney in favour of defendant no.1. However, on fair reading of clause – 7, it cannot be said that same can be termed as general power of attorney as held by both the Courts below. Clause – 7 is required to be read in entirety. General power allegedly given under clause – 7 is with respect to administration and management only. Under the circumstances, it prima-facie appears that both the Courts below have misinterpreted and/or not properly read clause – 7 of power of attorney. 8. So far as the observations of the learned Appellate Court that the petitioners – plaintiffs though not party to Lavad suit could have challenged the said decree passed in Lavad Suit is concerned, it is to be noted that the petitioners – plaintiffs could have challenged the said judgment and award by way of appeal and merely because they have not SCA/20562/2005 6/7 JUDGMENT challenged, it cannot be said that the petitioners cannot file substantive suit and pray for declaration and permanent injunction. 9. So far as the contention on behalf of respondent no.2 – Bank that the petitioners and defendant no.1 admittedly are co-owners and therefore, defendant no.1 could have taken loan / finance so far as his share is concerned, it is true but the question is until and unless there is partition by metes and bounds between co-owners, respondent no.2 cannot even auction the properties in question. Under the circumstances, it prima-facie appears that both the Courts below have committed error in not granting interim injunction as prayed for in favuor of the petitioners-plaintiffs. It is required to be noted that even the order of status- quo granted by this Court is far back on 11.10.2005 and same has been continued till date. 10. For the reasons stated above, present Special Civil Application deserves to be allowed and impugned orders dated 21.10.2004 passed by the learned Civil Judge, (S.D.), Bharuch below Exh. 5 in Regular Civil Suit No.259 of 2004 as well as the judgment and order dated 07.04.2005 passed by the learned Assistant Judge, Bharuch in Civil Misc.Appeal No.95 of 2005 deserve to be quashed and set aside. Accordingly, impugned orders dated 21.10.2004 passed by the learned Civil Judge, (S.D.), Bharuch below Exh. 5 in Regular Civil Suit No.259 of 2004 as well SCA/20562/2005 7/7 JUDGMENT as the judgment and order dated 07.04.2005 passed by the learned Assistant Judge, Bharuch in Civil Misc.Appeal No.95 of 2005 are quashed and set aside and application Exh.5 is allowed. Rule is made absolute accordingly. 11. However, before parting with the present order, it is observed that whatever observations made herein above would be prima-facie and considering application Exh.5 only and the learned trial Court to decide and dispose of the Suit in accordance with law and on merits and on the basis of evidence to be led and without being influenced by the observations made herein above. The suit is expedited. In the facts and circumstances of the case, there shall be no order as to costs. [M.R.Shah,J.] satish