AO/449/2007 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 449 of 2007 With CIVIL APPLICATION No. 15468 of 2007 In APPEAL FROM ORDER No. 449 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 ? ========================================================= RAJENDRAKUMAR MANMOHANDAS DESAI & 2 - Appellant(s) Versus ROHITKUMAR MANMOHANDAS DESAI & 4 - Respondent(s) ========================================================= Appearance : MR ASHISH H SHAH for Appellant(s) : 1 - 3. MR RAJESH K SHAH for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 2 - 5. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 01/12/2008 ORAL JUDGMENT 1. Admit. Shri Rajesh K. Shah, learned advocate waives service of notice of admission on behalf of the respondent No.1 original plaintiff. With AO/449/2007 2/7 JUDGMENT the consent of the learned advocates appearing on behalf of the respective parties, the matter is taken up for final hearing today. 2. Present Appeal from Order is preferred by the appellants original defendants No. 1 to 3 challenging the impugned order passed by the learned Civil Judge (S.D.) Nadiad dated 20.2.2007 passed below Exh. 5 in Special Civil Suit No. 25 of 2006, by which the learned trial Court has allowed the said application Exh. 5 restraining the defendants No. 1 to 3 and 7 from transferring/alienating the suit properties in any manner whatsoever during the pendency and final disposal of the aforesaid suit. 3. Respondent No.1 herein original plaintiff who is residing at USA since 1967 had instituted Special Civil Suit No. 25 of 2006 in the Court of learned Civil Judge (S.D.) Court, Nadiad for partition of the suit properties against the defendants brothers contending inter alia, that the suit properties mentioned in the plaint is ancestral properties belonging to their father and, therefore, he has right /share in the said properties. In the said suit, the original plaintiff submitted application Exh. 5 for interim injunction restraining the defendants from transferring/alienating the suit properties in question during the pendency and final disposal of the suit. The said application Exh. AO/449/2007 3/7 JUDGMENT 5 was resisted by the appellants-defendants No. 1 to 3 submitting that there was already oral partitioned in the year 1977, which was reduced in writing in the year 1984 and a General Power of Attorney was given by the plaintiff in favour of appellant No. 2 and the said power of attorney signed on behalf of the plaintiff also and the respective shares as per the said partition have been given to the respective parties and thereafter after a period of almost 22 years the present suit has been filed. Therefore, it was submitted that in view of the fact that partition had already taken place and the respective family members are given their respective shares, it was requested to dismiss the application Exh. 5. That learned trial Court by impugned order granted injunction against the defendants No. 1 to 3 and 7 by restraining them from transferring/alienating the suit properties in any manner whatsoever during the pendency of the suit. Being aggrieved and dissatisfied with the order passed by the learned trial Court passed below Exh. 5 in Special Civil Suit No. 25 of 2006 dated 20.2.2007, the appellants original defendants No. 1 to 3 have preferred the present Appeal from Order under Order 43 Rule 1 of the Code of Civil Procedure. 4. Shri Ashish Shah, learned advocate appearing on behalf of the appellants has vehemently submitted that the learned trial Court has AO/449/2007 4/7 JUDGMENT materially erred in allowing the application Exh. 5 restraining the appellants from transferring /alienating the suit properties. It is submitted that considering the fact that the properties were already partitioned in 1977, which were reduced in writing in 1984 and the respective shares were given to the respective family members as per the said partition and when the suit has been filed after a period of 22 years and in the meantime the plaintiff did not raise any objections at all, the learned trial Court ought not have granted injunction by allowing application Exh. 5. It is also further submitted that the learned trial Court has erred in observing that though as per the agreement for partition reducing in writing the land bearing survey No. 118/3 was allotted to the share of plaintiff, however as per the village form No. 7/12 abstract the land stand in the name of defendant No. 4 Kirankumar Mohandas. It is submitted that the said findings of the learned trial Court is ex-facie illegal and contrary to the records. It is submitted as per the agreement the part of the land bearing Survey No. 118/3 to the share of the defendant No. 1 and defendant No. 4 and that the plaintiff was allotted Survey No. 51 and 52/3 situated at Chaklasi, Pati. It is further submitted that the learned trial Court has materially erred in observing that even if the partition is believable then also same was done on the basis AO/449/2007 5/7 JUDGMENT of the power of attorney and the said power of attorney is not on record. Therefore, it is requested to allow the present Appeal from Order. 5. Appeal from Order is opposed by Shri Rajesh K. Shah, learned advocate appearing on behalf of the respondent-original plaintiff. It is submitted that in the facts and circumstances of the case, more particularly, considering the fact that the suit is for partition and with a view to avoid multiplicity of proceedings and with a view to see that further third party rights are not created, the learned trial Court has rightly injuncted the appellants-defendants from transferring the suit properties. Therefore, it is requested to dismiss the present Appeal from Order. 6. Heard the learned advocates appearing on behalf of the respective parties. It is to be noted that the original plaintiff is residing in USA since 1967 and he executed General Power of Attorney in favour of defendant No. 3. It appears that the suit properties were partitioned in the year 1977, which was reduced in writing in the year 1984 and the same was singed by the power of attorney of the plaintiff and respective family members were given their shares as per the said partition and even their names were mutated in the record of rights AO/449/2007 6/7 JUDGMENT accordingly. Thereafter, the present suit has been filed in the year 2006 i.e. after a period of 22 years and in between at no point of time the plaintiff has raised any objection against the said partition and thereafter after a period of 22 years, present suit for partition is filed for the partition which was already partitioned in the year 1977/1984. Considering the above, the learned trial Court has materially erred in injuncting the appellants original defendants from transferring /alienating the suit properties. It also appears that there are some incorrect findings/observations by the learned trial Court. The learned trial Court has observed that the power of attorney produced on record does confer power upon the power of attorney holder to partition the properties, however it prima facie appears that said power of attorney is a General Power of Attorney. As such the aforesaid is required to be considered in light of the fact that during last 22 years plaintiff had never raised any objection. It cannot be disputed that delay and laches is a relevant consideration while considering the application Exh. 5 i.e. application for interim injunction. Considering the aforesaid overall facts and circumstances of the case, impugned order passed by the learned trial Court passed below Exh. 5 deserves to be quashed and set aside. AO/449/2007 7/7 JUDGMENT 7. For the reasons stated above, Appeal from Order succeeds. The impugned order passed by the learned 7th Additional Senior Civil Judge, Nadiad dated 20.2.2007 passed below Exh. 5 in Special Civil Suit No. 25 of 2006 is hereby quashed and set aside. Appeal from Order is allowed. In the facts and circumstances of the case, there shall be no order as to costs. CIVIL APPLICATION NO. 15468 OF 2007 In view of allowing the Appeal from Order, no order in Civil Application. (M.R.SHAH,J.) kaushik